ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(First Chamber)

25 February 2014 ( )

(Civil service – Competitions – Competition notice EPSO/AD/215/11 – Not included on the reserve list – Statement of reasons for a decision rejecting an application – Principle of equal treatment – Conflict of interests)

In Case F‑155/12,

ACTION brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof,

Luis García Domínguez, residing in Brussels (Belgium), represented by S. Rodrigues and A. Tymen, lawyers,

applicant,

v

European Commission, represented by B. Eggers and G. Gattinara, acting as Agents,

defendant,

THE CIVIL SERVICE TRIBUNAL (First Chamber)

composed of H. Kreppel (Rapporteur), President, E. Perillo and R. Barents, Judges,

Registrar: W. Hakenberg,

makes the following

Order

1 By application lodged at the Registry of the Tribunal on 19 December 2012, Mr García Domínguez seeks the annulment of the decision by which the selection board of Open Competition EPSO/AD/215/11 decided not to include him on the reserve list for that competition, and an order that the European Commission pay him damages.

Factual background to the dispute

2 On 25 May 2011, the European Personnel Selection Office (EPSO) published in the Official Journal of the European Union the notice of Open Competition EPSO/AD/215/11 to constitute a reserve list for the recruitment of administrators of Grade AD5 in the field of communication having as their native language Dutch, English, Estonian, French, Polish, Portuguese, Slovak, Slovenian, Spanish or Swedish (OJ C 155 A, p. 1, ‘the competition notice’).

3 The applicant applied for Open Competition EPSO/AD/215/11 and chose Spanish as the language of the competition (‘the competition’).

4 After having passed the admission tests provided for by the competition notice, the applicant sat tests (d), (e), (f), (g) and (h), those tests being referred to as ‘parts’ by the competition notice.

5 Tests (d) and (e), which were intended to assess the specific competencies of candidates in the field of communication, consisted, first, in drafting a note relating to the duties in question and, second, in a structured interview.

6 Tests (f), (g) and (h), which were intended to assess eight general competencies (analysis and problem-solving, communication, delivering quality and results, learning and development, prioritising and organising, resilience, working with others and leadership), consisted in a case study, a group exercise and an interview respectively.

7 In addition, the competition notice provided that tests (d) and (e) were each to be marked from 0 to 50 points and that the pass mark for each of those tests was 25 points. The marks obtained in the two tests (d) and (e) were to count for 50% of the overall mark. The eight general competencies, for their part, were to be marked from 0 to 80 points, that is to say, 10 points per competency, the pass mark being 3 points per competency and 40 points for all eight general competencies. The mark thus obtained in the assessment of the general competencies was also to count for 50% of the overall mark.

8 By email of 28 June 2012, EPSO informed the applicant that his name could not be included on the reserve list for the competition (‘the decision of 28 June 2012’). In the ‘Competency Passport’, accessible by means of a hypertext link in the email, it was indicated, as regards the assessment of the specific competencies, that the selection board for Open Competition EPSO/AD/215/11 (‘the selection board’) had awarded the applicant 17 points out of 50 in test (d), that is, fewer points than the pass mark of 25 points, and 45 points out of 50 in test (e). It was also stated that the applicant had been awarded a total of 52 points out of 80 in the assessment of the general competencies and the ‘Competency Passport’ specified the mark obtained for each of the eight general competencies.

9 By email of 29 June 2012, supplemented by another email of 3 July 2012, the applicant sought the review of the decision of 28 June 2012.

10 By letter of 19 September 2012, the Chairman of the selection board informed the applicant that his application for review had been refused (‘the decision of 19 September 2012’). He explained that the selection board confirmed the marks awarded to the applicant, in particular that of 17/50 for test (d).

11 By email of 5 October 2012, the applicant asked to be sent the questions and background information provided for test (d), the script which he had written in that test and the corrections of the assessors. Following that request, EPSO sent him a copy of test (d).

12 By email of 11 October 2012, the applicant requested from EPSO his marked scripts and the general marking criteria. There was no reply to that request.

Procedure and forms of order sought

13 The present action was brought on 19 December 2012.

14 The applicant claims that the Tribunal should:

– annul the decision of 19 September 2012;

– if necessary, annul the decision of 28 June 2012;

– in the alternative, order that he be paid compensation for the harm suffered;

– order the Commission to pay the costs.

15 The Commission contends that the Court should:

– dismiss the action;

– order the applicant to pay the costs.

Law

16 Under Article 76 of the Rules of Procedure, where an action is, in whole or in part, manifestly inadmissible or manifestly lacking any foundation in law, the Tribunal may, by reasoned order, give a decision on the action without taking further steps in the proceedings.

17 In the present case, the Tribunal considers that there is sufficient information in the documents before it and has decided, pursuant to Article 76 of the Rules of Procedure, to give a decision on the action without taking further steps in the proceedings.

1. The claims seeking annulment of the decision of 28 June 2012 and, if necessary, of the decision of 19 September 2012

18 According to case-law, where a candidate in a competition seeks review of a decision taken by a selection board, it is the decision taken by the latter after the review of the candidate’s situation that constitutes the act adversely affecting him (judgment of 13 December 2006 in Case T‑173/05 Heus v Commission, paragraph 19). It follows that, in the present case, it is only the claims for annulment directed against the decision of 19 September 2012 that must be examined (‘the contested decision’).

19 In support of the claims seeking annulment of the decision of 19 September 2012, the applicant raises 3 pleas in law alleging, first, infringement of the principle of equal treatment, the principle of sound administration and the duty to have regard for the welfare of candidates, second, infringement of the obligation to state reasons and the principle of sound administration and, third, a manifest error of assessment.

The first plea, alleging infringement of the principle of equal treatment, the principle of sound administration and the duty to have regard for the welfare of candidates

Arguments of the parties

20 In the first part of the plea, the applicant claims that two of the candidates in the competition had an advantage in test (d) because of their previous experience in the Parliament press department, given that that test consisted in drafting, inter alia, a fictitious press release concerning the adoption of Regulation (EU) No 211/2011 of the European Parliament and of the Council of 16 February 2011 on the citizens’ initiative.

21 In the second part of the plea, the applicant submits that several members of the selection board had direct links, before the competition tests, with certain candidates and should therefore have refused to sit on that board.

22 The Commission contends that both parts of the applicant’s plea should be rejected.

Findings of the Tribunal

– The first branch of the first plea

23 It is settled case-law that the principle of non-discrimination or equal treatment requires that comparable situations are not treated differently unless differentiation is objectively justified (see, to that effect, judgment of 26 September 1990 in Case T‑48/89 Beltrante and Others v Council, paragraph 34). There is therefore an infringement of the principle of non-discrimination where two classes of persons whose factual and legal situations are not essentially different are treated differently or where different situations are treated in an identical manner (judgment of 16 April 1997 in Case T-66/95 Kuchlenz-Winter v Commission, paragraph 55).

24 The principle of equal treatment is a fundamental principle of European Union law, and the selection board of a competition therefore has a duty to ensure that it is strictly observed between candidates in the course of that competition. While the board enjoys a wide discretion in the organisation and detailed content of the tests, it is nevertheless for the European Union judicature to exercise its review as far as is necessary to ensure that candidates are treated equally and that the board is objective in selecting from them (judgment of 12 March 2008 in Case T-100/04 Giannini v Commission, paragraph 132).

25 Lastly, in a competition procedure, any examination generally and inherently involves a risk of unequal treatment given the necessarily limited number of questions that can reasonably be asked in an examination on a particular subject. It is, therefore, accepted that the principle of equal treatment may be deemed to have been breached only if the board has failed, when choosing the tests, to confine the risk of inequality of opportunity to that which is generally inherent in any examination (Giannini v Commission, paragraph 133).

26 In the present case, it is apparent from the documents in the file that test (d) consisted in drafting a note divided into three parts (a press release, bullet points for a radio interview and a tweet), concerning the adoption of Regulation No 211/2011.

27 Among the candidates who participated in the competition were two persons who, at the date when the draft Regulation No 211/2011 was voted in by the Parliament, that is, 15 December 2010, were employed within the Spanish team of the Parliament’s press service. In addition, even though it is not proven that those two candidates were themselves associated with the drafting of the press release issued on that occasion by the Parliament, it is not disputed that their names were mentioned as ‘media contacts’ in the Spanish version of that press release.

28 However, even if the choice of Regulation No 211/2011 as the subject‑matter for test (d) might have placed those two candidates at an advantage, such a fact, which is part of the risk which is generally inherent in any competition, did not confer on those candidates an advantage such as to infringe the principle of equal treatment.

29 The subject-matter of test (d) was chosen in order to prevent candidates who, as a result of their previous professional experience, had acquired a degree of familiarity with that subject from having a decisive advantage. In that regard, the theme of the citizen’s initiative was a subject of general interest about which there was wide media coverage when Regulation No 211/2011 was adopted, and which did not present any particular technical difficulty. Furthermore, since the objective of test (d) was to evaluate competencies rather than knowledge, all of the candidates were provided with documents enabling them to understand the context behind the adoption of Regulation No 211/2011. Lastly, it is apparent from the documents in the file that the subject had been chosen by the selection board for all of the 213 candidates in Open Competition EPSO/AD/215/11 admitted to sit the tests, regardless of their linguistic group, and that that choice had been made before the date on which the results of the access tests and, consequently, the names of the candidates admitted to participate in the tests in that competition, were known.

30 The applicant cannot call that finding into question by relying on the authority of the judgment of 13 February 1979 in Case 24/78 Martin v Commission.

31 Admittedly, in Martin v Commission, the Court held that the fact that a candidate is placed at an unfair advantage by the choice of the subject for the written test of a competition constitutes an infringement of the principle of equal treatment of candidates, such as to vitiate the subsequent procedure of the competition in question, and added that that is the case where the concrete way in which that subject is defined enables a candidate to profit from the special experience acquired in the performance, as a member of the temporary staff, of duties relating to the post put up for competition (paragraphs 20 and 21).

32 However, the factual background to the present case differs clearly from that of the case which gave rise to Martin v Commission. In the latter case, besides the fact that only two candidates were admitted to the written test, the subject-matter of that test required detailed knowledge and was therefore such as to place one of the two candidates, namely the candidate who had carried out his professional activity in a field closely related to the subject in question, at a clear advantage. Lastly, that subject had been chosen by the competition selection board at a date when the board knew the identity of those two candidates.

33 In those circumstances, the first part of the first plea must be rejected without it being necessary to rule on the admissibility of the complaint by the applicant, who did not attain the minimum required in test (d), that other candidates were placed at an advantage by the choice of the subject-matter of that test.

– The second part of the first plea

34 According to case-law, in the assessment of a conflict of interests, the existence of professional relations between an official and a third party cannot, in principle, mean that the official’s independence is or appears to be impaired when that official is called upon to decide on a matter in which that third party is involved (judgments of 3 February 2005 in Case T-137/03 Mancini v Commission, paragraph 33, and of 12 July 2005 in Case T-157/04 De Bry v Commission, paragraph 35). In addition, it has been held that the principle that the selection board must be impartial requires a member of the board to refrain from taking part in the assessment of a candidate where there is a direct link between the board member and the candidate (Giannini v Commission, paragraph 224).

35 In the present case, the applicant claims that, because of the professional links which they had with certain candidates, three members of the selection board ought to have abstained and refused to participate in the deliberations concerning those candidates.

36 In this connection, admittedly, one of the members of the selection board was the head of the Spanish team of the Parliament’s press service when the two candidates mentioned in paragraph 27 above were employed there. However, it cannot be inferred from this fact that that member of the selection board had a direct link, within the meaning of Giannini v Commission, with those two candidates. Furthermore, that member of the selection board confirmed, in a sworn statement, the credibility of which is not called into question by any document in the file, that he was not responsible for the choice of the theme of the citizen’s initiative for test (d). Lastly, it must be pointed out that all the candidates in test (d) were anonymised for the purposes of the marking of the test.

37 Moreover, although several candidates in the competition appear as ‘friends’ on the ‘Facebook’ account of two other members of the selection board, that status alone does not show that there are direct links between the members and those candidates. ‘Facebook’ is a social network on the internet which enables certain information to be published on it and shared with persons categorised as ‘friends’. The fact that two persons are ‘friends’ on that network does not necessarily mean that there is a friendship, in the usual sense of the word, between those persons, but may merely be due to the wish of both those persons to exchange information on topics of general or professional interest. In addition, a person who is a ‘friend’ of another person does not necessarily have access to all the information published by that person, since each Facebook user may customise the settings for the access which he wishes to grant to his personal data.

38 In those circumstances, the second part of the first plea cannot be upheld.

39 It follows that the first plea must be rejected as manifestly lacking any foundation in law.

The second plea, alleging the infringement of the obligation to state reasons and the principle of sound administration

Arguments of the parties

40 The applicant claims that the selection board did not meet its obligation to state reasons so far as concerns test (d). Since test (d) was made up of three separate exercises, he should have been informed of the ‘intermediate marks’ which he was awarded for each of those exercises to enable him to understand his overall mark.

41 The applicant also points out that the competition notice stipulated that the eight general competencies would be assessed by means of three tests, namely a case study (test (f)), a group exercise (test (g)) and an interview (test (h)). In the applicant’s opinion, the selection board should not have restricted itself to informing him of the marks obtained for those eight general competencies. The selection board was also required to inform him of the ‘intermediate marks’ awarded for each general competency in tests (f), (g) and (h) respectively.

42 The Commission contends that the plea should be dismissed.

Findings of the Tribunal

43 The requirement that a decision adversely affecting a person, such as that taken by a competition selection board with regard to a candidate, should state the reasons on which it is based is intended to provide the person concerned with sufficient details to allow him to ascertain whether or not the decision is well founded and make it possible for the decision to be the subject of judicial review (judgments of 26 November 1981 in Case 195/80 Michel v Parliament, paragraph 22, and of 4 July 1996 in Case C-254/95 P Parliament v Innamorati, paragraph 23).

44 As regards decisions taken by a competition selection board, the obligation to state reasons must be reconciled with observance of the secrecy surrounding the proceedings of selection boards by virtue of Article 6 of Annex III to the Staff Regulations of Officials of the European Union. That secrecy was introduced with a view to guaranteeing the independence of selection boards and the objectivity of their proceedings, by protecting them from all external interference and pressures, whether these come from the European Union administration itself or the candidates concerned or third parties. Observance of that secrecy therefore precludes both disclosure of the attitudes adopted by individual members of selection boards and disclosure of any factors relating to individual assessments of candidates (Parliament v Innamorati, paragraph 24).

45 Having regard to the need to reconcile the obligation to state the reasons for a decision adversely affecting a person with the observance of the secrecy surrounding the proceedings of a selection board, communication of the marks obtained in the various tests constitutes an adequate statement of the reasons on which the board’s decisions are based (Parliament v Innamorati, paragraph 31; judgment of 28 March 2012 in Case F-19/10 Marsili v Commission, paragraph 51).

46 In the present case, as regards the assessment of the specific competencies in the field of communication, it is apparent from the documents in the file that the selection board informed the applicant, through the ‘Competency Passport’, of the marks which he had obtained in tests (d) and (e), that is 17 out of 50 and 45 out of 50 respectively. As regards the assessment of the eight general competencies, the selection board also communicated to the applicant the marks awarded in respect of each of those competencies.

47 Thus, in the light of the case-law referred to in the preceding paragraphs, the selection board fulfilled the obligation on it to state reasons for its decision.

48 It must be added that the selection board went beyond what was required by the case-law, since it communicated to the applicant its written assessments of the quality of his performance.

49 The applicant cannot criticise the selection board, by relying in particular on the judgment of 28 April 2004 in Case T-277/02 Pascall v Council, for not having communicated to him the ‘intermediate marks’ which he submits were awarded for each of the three exercises constituting test (d).

50 Admittedly, at paragraph 28 of Pascall v Council, the Court of First Instance held that, where a selection board has awarded intermediate marks for the candidates’ knowledge, the obligation to provide a statement of reasons entails the communication, at a candidate’s request, of the intermediate marks and the method used by the selection board to determine the final mark.

51 However, it must be observed that, in the present case, the competition notice, which constituted the legal framework for the competition, merely stated that test (d), consisting in the drafting of a note relating to the duties in question, would be marked from 0 to 50 points and did not provide for the award of any ‘intermediate marks’. Furthermore, in its pleadings, the Commission expressly denied that the selection board awarded such ‘intermediate marks’.

52 Likewise, given that the competition notice obliged the selection board only to award a mark in respect of each of the eight general competencies, the Commission has formally disputed – and there is no document in the file such as to cast any doubt on its assertions – that ‘intermediate marks’ were granted for each general competency in tests (f), (g) and (h) respectively.

53 In any event, even if the selection board were to have awarded such intermediate marks in tests (f), (g) and (h), the applicant would have no legitimate interest in alleging that those marks were not communicated to him, since he was allocated a mark below the pass mark in test (d) and has not been able to demonstrate, as it will be seen in paragraphs 58 to 60 below, that that mark is vitiated by a manifest error of assessment.

54 Lastly, the fact that the selection board delayed in answering emails sent by the applicant after the contested decision has no effect on the legality of that decision.

55 It follows that the second plea must be rejected as manifestly lacking any foundation in law.

The third plea, alleging a manifest error of assessment

Arguments of the parties

56 The applicant claims that the selection board committed a manifest error of assessment in awarding him only 17 points in test (d). He points out in particular that that mark is consistent neither with the mark which he obtained in test (e) nor with his previous professional experience. He adds that the press release which he drafted in test (d) met all the requirements of a good press release and, consequently, deserved a higher mark.

57 The Commission contends that the plea should be dismissed.

Findings of the Tribunal

58 First of all, it is settled case-law that the assessments made by a selection board in a competition when it evaluates the knowledge and abilities of candidates and also the decisions whereby the selection board determines that a candidate has failed a test constitute the expression of a value judgment. They fall within the wide discretion enjoyed by the selection board and are amenable to review by the European Union judicature only where there has been a flagrant breach of the rules governing the selection board’s work (judgment of 5 April 2005 in Case T‑336/02 Christensen v Commission, paragraph 25).

59 In the present case, none of the arguments put forward by the applicant is such as to establish that the selection board committed a manifest error of assessment in awarding him only 17 points for test (d). While the applicant claims that that mark is inconsistent with the high mark which he obtained for test (e), that fact does not suggest that there is such an error, since the performance of a candidate in successive tests may vary from one test to another (judgment of 13 December 2012 in Case F-101/11 Mileva v Commission, paragraph 45). Furthermore, it has been held that a selection board, in its evaluation of the candidates’ professional knowledge and of their abilities and motivation, must decide, exclusively and independently, solely on the basis of the candidates’ performance, in accordance with the requirements of the notice of competition (judgment of 14 July 2000 in Case T-146/99 Teixeira Neves v Court of Justice, paragraph 41). Thus, the applicant cannot profitably rely on his lengthy previous professional experience in order to challenge the mark awarded to him in test (d). Lastly, nor does the applicant’s personal belief that he drafted a note meeting all the requirements of a good press release constitute proof of a manifest error of assessment.

60 Consequently, the plea alleging a manifest error of assessment must be dismissed as manifestly lacking any foundation in law.

61 Since none of the pleas raised against the contested decision have been upheld, the claims for annulment of that decision must be dismissed as manifestly lacking any foundation in law.

2. The claims for damages

62 The applicant claims that, should the Tribunal decide not to annul the contested decision, he has nevertheless suffered loss by losing a chance to be included on a reserve list. He submits that his loss, for which the Commission should be ordered to pay compensation, amounts to EUR 30 000.

63 However, the European Union can be held non-contractually liable for the unlawful conduct of its institutions only if three conditions are satisfied, namely that the allegedly wrongful act committed by the institutions was illegal, actual harm was suffered and there is a causal link between the act of which the institution is accused and the damage alleged to have been suffered (judgment of 9 September 1999 in Case C-257/98 P Lucaccioni v Commission, paragraph 11).

64 However, in the present case, since all the applicant’s pleas have been rejected, he cannot claim to have been the victim of an illegal act on the part of the Commission.

65 Consequently, the claims for damages must be dismissed as manifestly lacking any foundation in law.

66 It follows from the foregoing that the action must be dismissed as manifestly lacking any foundation in law.

Costs

67 Under Article 87(1) of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title II of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 87(2), the Tribunal may, if equity so requires, decide that an unsuccessful party is to pay only part of the costs or even that that party is not to be ordered to pay any.

68 It follows from the grounds of the present order that the applicant is the unsuccessful party. Furthermore, the Commission expressly claimed in its pleadings that the applicant should be ordered to pay the costs. Since the circumstances of the present case do not warrant application of Article 87(2) of the Rules of Procedure, the applicant must bear his own costs and be ordered to pay the costs incurred by the Commission.

On those grounds,

THE CIVIL SERVICE TRIBUNAL (First Chamber)

hereby orders:

1. The action is dismissed as manifestly lacking any foundation in law;

2. Mr. García Domínguez is to bear his own costs and shall pay the costs incurred by the European Commission.

Luxembourg, 25 February 2014.

W. Hakenberg H. Kreppel