JUDGMENT OF THE COURT OF FIRST INSTANCE (First Chamber)

26 January 1995

Case T-60/94

Myriam Pierrat

v

Court of Justice of the European Communities

‛Members of the temporary staff — Recruitment of readers of judgments — Selection procedure — Rejection of a candidature — Duty to state reasons’

Full text in French II-77

Application for:

annulment of the decisions of the Court of Justice, first, to appoint Mrs B as reader of judgments, and, second, not to uphold the applicant's candidature for a post of reader of judgments, together with a symbolic award to the applicant of one ecu as compensation for the nonmaterial damage she claims to have suffered.

Decision:

Annulment; for the rest, application dismissed.

Abstract of the Judgment

On 15 June 1992 the Administrative Committee of the Court of Justice decided to organize two parallel procedures, one ‘internal’ by publication of a vacancy notice and the other ‘external’, for the recruitment of two readers of judgments.

The vacancy notice gave rise to the candidatures of four officials and three members of the temporary staff, of whom Mrs B was one. In the parallel procedure, 28 external candidatures, including those of the applicant and of Mr W, were submitted.

On 28 September 1992 the Administrative Committee set up a Selection Committee to examine the candidatures and to ‘carry out selection on the basis of the candidates' files, followed by tests and/or interviews’. On 25 January 1993 the Selection Committee submitted its report, showing that 18 candidates, including Mrs B, the applicant, and Mr W, had been admitted to the subsequent stages of the procedure. Of the 18 candidates, ten had completed the written tests. In the first of these, the Selection Committee had not awarded a mark of 50% or more to any of the candidates, but, by way of compensatory passes taking into account the marks obtained in the second written test, it admitted five candidates to the oral test, including the applicant and Mr W, while rejecting five others, including Mrs B. At the conclusion of the oral test, five candidatures were upheld and ranked in order of merit, with Mr W placed first and the applicant placed fifth.

By memorandum of 25 January 1993, the Personnel Division forwarded the report of the Selection Committee to the Administrative Committee. On 15 February 1993 the Administrative Committee sent the file to the administrative meeting of the Judges and Advocates General. Having distributed the personal files of all the candidates, together with copies of the written tests and a description of the criteria adopted in the oral tests organized by the Selection Committee, to all its Members, the Court decided by secret ballot at its administrative meeting of 26 April 1993 to recommend the appointment of Mrs B and Mr W as members of the temporary staff, and the latter were appointed by decision of the President of the Court of 27 May 1993.

By letter of 8 June 1993, the Head of the Personnel Division of the Court informed the applicant that the selection procedure in which she had participated had closed, and that Mrs B had been appointed as reader of judgments. By letter of 7 July 1993, the applicant lodged a complaint against the decision to appoint Mrs B, but the complaint was rejected.

The claim for annulment

The Court must first consider whether sufficient reasons have been given, since, in the case of decisions such as the two at issue here, which adversely affect the person concerned, the Community judicature is required to determine of its own motion whether die obligation to state reasons has been fulfilled (paragraph 25).

See: 18/57 Nold v High Authority [1959] ECR 41, pp. 89, 115; T-156/89 Valverde Mordi v Court of Justice [1991] ECR H-407, para. 128

Tixe plea based on the insufficiency of the reasons given

In the case of decisions such as those in this case, which involve a choice between several candidates, the appointing authority is under an obligation to state its reasons, at least at the stage when a complaint by an unsuccessful candidate against the decision rejecting his candidature, and/or against the decision appointing another candidate, is rejected. The purpose of that obligation is both to enable the Community judicature to review the legality of the decisions at issue and to give the person concerned a sufficient indication to determine whether such decisions are well founded or contain defects allowing their legality to be challenged. The extent of the obligation must be determined on the basis of the particular facts of each case (paragraphs 30 to 32).

See: 33/79 and 75/79 Kühner v Commission [1980] ECR 1677, para. 15; 176/82 Nebe v Commission [1983] ECR 2475, para. 21 ; 69/83 Lia v Court of Auditors [1984] ECR 2447, para. 36; C-169/88 Prelle v Commission [1989] ECR 4335, para. 9; C-115/92 P Parliament v Volger [1993] ECR I-6549, paras 22 and 23; T-25/92 Vela Palacios v Economic and Social Committee [1993] ECR II-201, para. 22; T-508/93 Mancini v Commission [1994] ECRSC II-761, para. 36

The Selection Committee was entrusted by the Administrative Committee with a purely advisory function. The results of its deliberations were not, therefore, capable of binding the appointing authority, which thus had the right to depart from them. Moreover, the provisions in the Staff Regulations concerning selection boards in competitions do not apply to a recruitment committee, not provided for by the Staff Regulations, the advisory functions of which are not comparable with those of a selection board in a competition. However, in promotion cases within the context of Article 45 of the Staff Regulations, where a Community institution sets up an advisory committee not provided for by the Staff Regulations in order to obtain an opinion, regarding appointments to certain posts, in relation to the abilities and aptitudes of candidates, having regard to the qualifications required, that measure is designed to ensure that the institution, as appointing authority, has a better basis for carrying out the comparative examination of the merits of the candidates, so that, although the committee is purely advisory in character, its opinion forms part of the information on the strength of which the institution bases its own assessment of the candidates. The appointing authority is obliged to take account of a list of candidates found by such an advisory committee to be suitable, and it is particularly necessary to state reasons in cases where the appointing authority considers it has to depart entirely from the proposals in the opinion of the advisory committee (paragraphs 34 and 35).

See: 282/81 Ragusa v Commission [1983] ECR 1245, para. 20; 44/85, 77/85, 294/85 and 295/85 Hochbaum and Rawes v Commission [1987] ECR 3259, para. 16; T-25/90 Schönherr v Economic and Social Committee [1992] ECR II-63, paras 27 to 29

That case-law also applies to the recruitment of members of the temporary staff, since that recruitment also concerns a comparative choice between several candidates, and the setting up of the Selection Committee is likewise designed to ensure that the appointing authority has as broad a basis of assessment as possible in order to make that choice (paragraph 36).

In this case, the authority appointed, in the person of Mrs B, a candidate who did not appear on the list of five suitable persons drawn up by the Selection Committee at the conclusion of its task. Having thus entirely departed from the Committee's recommendations, the appointing authority was under a duty to state specifically the reasons for its decision, and could not limit itself to a general statement of reasons or to reliance on the regularity of the procedure followed (paragraph 38).

Neither at the stage of the administrative proceedings nor in the proceedings before the Court has the appointing authority given any such specific statement, having stated at the hearing before the Court that it was ‘difficult for the defendant to lift the veil of secrecy of the deliberation of the Court of Justice and the administrative meeting’ because of the ‘secret and confidential nature of the internal discussions’. That was the ‘only explanation’ which could be given (paragraph 54).

In those circumstances, the Court finds that the insufficiency of the reasons given prevents it from reviewing the legality of the contested decisions, either as to breach of the general principle of equality of treatment or as to infringement of Article 12 of the Conditions of Employment of Other Servants. Since there is insufficient information concerning the appointing authority's assessment in this particular case of the value of the Selection Committee's work, especially as regards the specific reasons for which it departed from the committee's assessment, the Court camiot verify whether the difference between the appointing authority's treatment of the applicant — whose candidature was rejected, even though she was successful in the selection tests — and its treatment of Mrs B — whose candidature was upheld, even though she failed those tests — was objectively justified (paragraphs 58 and 59).

The claim for compensation

The annulment of a contested act may in itself constitute appropriate and, in principle, sufficient reparation for any nonmaterial harm which the applicant may have suffered. In this case, the Court finds that the contested decisions did not contain any expressly negative assessments of the applicant's abilities that were likely to cause her damage. Therefore, annulment of the contested decisions in itself constitutes appropriate reparation for the nonmaterial harm suffered by the applicant, and her claim for symbolic damages of one ecu therefore serves no purpose (paragraph 62).

See: C-343/87 Culin v Commission [1990] ECR I-225, paras 25 to 29; T-37/89 Harming v Parliament [1990] ECR II-463, para. 83

Operative part:

1. The decision of the President of the Court of Justice of 27 May 1993, appointing Mrs B as reader of judgments and the decision, notified to the applicant by letter of 8 June 1993, not to uphold her candidature for a post as reader of judgments are annulled.