ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(First Chamber)

25 February 2014

Case F‑155/12

Luis García Domínguez

v

European Commission

(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)

Application: under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr García Domínguez seeks annulment of the decision by which the selection board in 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.

Held: The action is dismissed as manifestly lacking any foundation in law. Mr García Domínguez is to bear his own costs and is ordered to pay the costs incurred by the European Commission.

Summary

1. Officials — Competitions — Organisation and content of tests — Selection board’s discretion — Judicial review — Limits

(Staff Regulations, Annex III)

2. Officials — Rights and obligations — Duty of independence and integrity — Risk of conflict of interests where there are professional relations between a member of the selection board and a candidate — None

(Staff Regulations, Annex III)

3. Officials — Competitions — Evaluation of candidates’ abilities — Selection board’s discretion — Judicial review — Limits

(Staff Regulations, Annex III)

1. The principle of equal treatment is a fundamental principle of EU 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.

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.

However, as regards a test in which the choice of subject-matter might place certain candidates at an advantage, such a fact, which is part of the risk which is generally inherent in any competition, does not confer on those candidates an advantage such as to infringe the principle of equal treatment. That applies where the subject-matter is chosen by the selection board for all candidates in an open competition admitted to sit the tests, regardless of their linguistic group, and that choice has 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.

(see paras 24-25, 28, 29)

See:

12 March 2008, T‑100/04 Giannini v Commission, paras 132 and 133

2. 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. Furthermore, 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.

In this connection, it cannot be inferred from the fact that one of the members of the selection board was the head of a team in a European institution department when a candidate in a competition was employed there that that member of the selection board had a direct link with that candidate.

Furthermore, the fact that a candidate in a competition appears as a ‘friend’ on the ‘Facebook’ account of a member of the selection board also does not show that there are direct links between the candidate and the selection board member. 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.

(see paras 34, 36, 37)

See:

3 February 2005, T‑137/03 Mancini v Commission, para. 33; 12 July 2005, T‑157/04 De Bry v Commission, para. 35; Giannini v Commission, para. 224

3. 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.

In that regard, although an unsuccessful candidate may claim that the mark in one test in the competition is inconsistent with the high mark he obtained in another test in the same competition, that fact does not suggest that the selection board committed a manifest error of assessment, since the performance of a candidate in successive tests may vary from one test to another. Furthermore, 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. Thus, the candidate cannot profitably rely on his lengthy previous professional experience in order to challenge the mark awarded to him in a test. Finally, the candidate’s personal belief also does not constitute proof of a manifest error of assessment.

(see paras 58, 59)

See:

14 July 2000, T‑146/99 Teixeira Neves v Court of Justice, para. 41; 5 April 2005, T‑336/02 Christensen v Commission, para. 25

13 December 2012, F‑101/11 Mileva v Commission, para. 45