JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (Third Chamber)

6 May 2009

Case F-39/07

Manuel Campos Valls

v

Council of the European Union

(Civil service – Officials – Recruitment – Appointment – Post of Head of Unit – Rejection of the applicant’s candidature – Conditions laid down in the vacancy notice – Manifest error of assessment)

Application: brought under Articles 236 EC and 152 EA, in which Mr Campos Valls seeks annulment, first, of the decision of the appointing authority appointing Mr G. to the post of Head of the Spanish Language Unit of Directorate 3: Translation and Document Production of Directorate General A Personnel and Administration of the Council and, second, of the decision rejecting his candidature for the contested post.

Held: The action is dismissed. Each party is ordered to bear its own costs.

Summary

1. Officials – Vacancy – Filled by promotion or transfer – Consideration of candidates’ comparative merits – Administration's discretion – Limits

(Staff Regulations, Arts 4, 7(1), 29(1) and 45(1))

2. Officials – Vacancy notice – Post of head of unit in a translation directorate – Qualifications required

(Staff Regulations, Art. 29(1))

1. The wide latitude available to the appointing authority regarding appointment presupposes that it should carefully and impartially examine the candidates’ files and have meticulous regard to the requirements laid down in the vacancy notice, so that it is required to reject any candidate who does not meet those requirements. The vacancy notice thus constitutes a legal framework which the appointing authority imposes on itself and must observe meticulously.

In order to determine whether the appointing authority exceeded the bounds of that legal framework, it is incumbent on the Community judicature, in exercising its judicial review, to examine first of all what conditions were laid down in the vacancy notice and then to ascertain whether the candidate selected by the appointing authority to fill the vacant post did indeed meet those conditions. Lastly, it must examine whether, as regards the applicant’s capabilities, the appointing authority did not commit a manifest error of assessment in preferring another candidate to him.

Such a review must, however, be limited to whether, in the light of the considerations which led the administration to arrive at its assessment, the administration kept within reasonable limits and did not use its power in a manifestly erroneous manner. The Community judicature may not therefore substitute its own assessment of the candidates’ qualifications for that of the appointing authority.

(see paras 41-43)

See:

341/85, 251/86, 258/86, 259/86, 262/86, 266/86, 222/87 and 232/87 van der Stijl and Cullington v Commission [1989] ECR 511, para. 51; C-35/92 P Parliament v Frederiksen [1993] ECR I‑991, paras 15 and 16

T-21/96 Giannini v Commission [1997] ECR-SC I‑A‑69 and II‑211, para. 20; T-159/96 Wenk v Commission [1998] ECR-SC I‑A‑193 and II‑593, paras 63, 64 and 72; T-152/00 E v Commission [2001] ECR-SC I‑A‑179 and II‑813, para. 29; T-174/02 Wieme v Commission [2003] ECR-SC I‑A‑241 and II‑1165, para. 38; T-248/02 Faita v ESC [2003] ECR-SC I‑A‑281 and II‑1365, para. 71; T-137/03 Mancini v Commission [2005] ECR-SC I‑A‑7 and II‑27, paras 85 and 92; T-30/04 Sena v EASA [2005] ECR-SC I‑A‑113 and II‑519, para. 80; T-370/03 Wunenburger v Commission [2005] ECR-SC I‑A‑189 and II‑853, para. 51; T-45/04 Tzirani v Commission [2006] ECR-SC I‑A‑2‑145 and II‑A‑2‑681, paras 46, 48 and 49

2. In a competition notice for a post of head of unit in a translation directorate, the qualifications required cannot be interpreted independently of the job description for the vacant post. Thus where that job description does not directly involve translation or control of the quality of translation, but involves essentially management and organisation, the condition stipulating a knowledge of translation techniques cannot be interpreted as requiring the same qualifications as those needed for a post of translator or controller of translation quality.

(see paras 50-51)

See:

Tzirani v Commission, para. 53

JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Third Chamber)

6 May 2009 ( )

(Civil Service – Officials – Recruitment – Appointment – Post of Head of Unit – Rejection of the applicant’s candidature – Conditions laid down in the vacancy notice – Manifest error of assessment)

In Case F‑39/07,

ACTION under Articles 236 EC and 152 EA,

Manuel Campos Valls, an official of the Council of the European Union, residing in Brussels (Belgium), represented by S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers,

applicant,

v

Council of the European Union, represented by M. Arpio Santacruz and I. Šulce, acting as Agents,

defendant,

THE TRIBUNAL (Third Chamber),

composed of P. Mahoney (President), H. Kanninen (Rapporteur) and S. Gervasoni, Judges,

Registrar: R. Schiano, Administrator,

having regard to the written procedure and further to the hearing on 5 June 2008,

gives the following

Judgment

1 By application received at the Registry of the Tribunal on 23 April 2007 by fax (the original being received on 25 April 2007), Mr Campos Valls brought the present action for annulment, first, of the decision of the appointing authority appointing Mr G. to the post of Head of the Spanish Language Unit of Directorate 3: Translation and Document Production of Directorate General (DG) A Personnel and Administration of the Council of the European Union (‘the contested post’) and, second, of the decision rejecting his candidature for the contested post.

Legal context

2 Article 4 of the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’) provides:

‘No appointment or promotion shall be made for any purpose other than that of filling a vacant post as provided for in these Staff Regulations.

Vacant posts in an institution shall be notified to the staff of that institution once the appointing authority decides that the vacancy is to be filled.

If the vacancy cannot be filled by transfer, appointment to a post in accordance with Article 45a or promotion, it shall be notified to the staff of the other institutions, and/or an internal competition shall be organised.’

3 Article 7(1), first subparagraph, of the Staff Regulations provides:

‘The Appointing Authority shall, acting solely in the interest of the service and without regard to nationality, assign each official by appointment or transfer to a post in his function group which corresponds to his grade.’

4 Article 29(1) of the Staff Regulations reads:

‘Before filling a vacant post in an institution, the Appointing Authority shall first consider:

(a) whether the post can be filled by:

(i) transfer, or

(ii) appointment in accordance with Article 45a, or

(iii) promotion

within the institution;

…

and then follow the procedure for competitions on the basis either of qualifications or of tests …’

5 Article 45(1) of the Staff Regulations provides:

‘Promotion shall be by decision of the Appointing Authority in the light of Article 6(2). It shall be effected by appointment of the official to the next higher grade in the function group to which he belongs. Promotion shall be exclusively by selection from among officials who have completed a minimum of two years in their grade after consideration of the comparative merits of the officials eligible for promotion. When considering comparative merits, the Appointing Authority shall in particular take account of the reports on the officials, the use of languages in the execution of their duties other than the language for which they have produced evidence of thorough knowledge in accordance with Article 28(f) and, where appropriate, the level of responsibilities exercised by them.’

Facts

6 On 15 March 2006 the General Secretariat of the Council published in Staff Note No 46/06 Notice of Vacancy 60/06 for the post of Head of the Spanish Language Unit of Directorate 3: Translation and Production of Documents of DG A Personnel and Administration (Category A, Grade 14, 13 or 12) (‘the vacancy notice’).

7 The wording of the vacancy notice under the heading ‘Job description’ is as follows:

‘– Be responsible, under the coordination of the heads of the language service, for the management of the Spanish Language Unit, as regards both human resources (translators, secretaries and support staff) and overall production (preparation, translation, revision and final presentation of documents, compliance with time limits and quality standards);

– contribute to drawing up and implementing guidelines of the [General Secretariat of the Council] in language matters, in particular with regard to the Spanish language;

– provide contact with individuals and arrange regular meetings with some or all of the members of the unit;

– so far as the Spanish language is concerned, manage contacts with opposite numbers in other institutions and cooperate with them;

– manage structural changes agreed in connection with reorganisation of [Directorate 3: Translation and Production of Documents of DG A Personnel and Administration] following the latest enlargement.’

8 The wording under the heading ‘Qualifications required’ is as follows:

‘The applicant must:

– be a Council official;

– be in Category A*, grade 14, 13 or 12;

– possess management skills and an awareness of the responsibilities involved in managing a language unit;

– possess the skill to manage organisational change;

– have a good knowledge of the work of the General Secretariat and its procedures; have a knowledge of translation and organisational techniques and of the working methods of the General Secretariat of the Council;

– possess coordination and organisational skills, interpersonal skills and the ability to communicate (team working, conflict management, flexibility, staff motivation, …);

– have a very good knowledge of Spanish, and sufficient knowledge of English and/or French to enable him or her to draft in one or other of those languages.’

9 The applicant, who was promoted on 22 December 1994 to grade LA 3 (now, since 1 May 2006, AD 14) and assigned to the Spanish Language Unit as a Linguistic Adviser, applied for the contested post.

10 In its report of 30 May 2006, the selection board, after interviewing four candidates including Mr G. and the applicant, took the view that Mr G. was the only candidate who met the conditions laid down for the contested post and went on to recommend that his candidature should be accepted.

11 By memorandum of 7 June 2006 the applicant was informed that his candidature had not been successful. That memorandum stated that ‘another candidature which meets more fully the requirements [of the contested post]’ had been selected.

12 On 9 June 2006 the staff of the General Secretariat of the Council were informed of the appointing authority’s decision to appoint Mr G. to the contested post with effect from 1 July 2006.

13 On 6 September 2006 the applicant lodged a complaint under Article 90(2) of the Staff Regulations against the decision appointing Mr G. and the decision rejecting his own candidature.

14 By decision of 8 January 2007, sent to the applicant’s lawyer by fax of 11 January 2007, the appointing authority rejected the complaint.

Procedure and forms of order sought

15 By way of measures of organisation of procedure, the Tribunal asked the Council, in accordance with Article 55(2)(d) of the Rules of Procedure of the Tribunal, to produce a copy in full of the vacancy notice and a copy of the internal guidelines applying in connection with the procedure for selecting candidates.

16 By letter received at the Registry of the Tribunal on 30 April 2008 by fax (the original being lodged on 8 May 2008), the Council produced:

– a copy in full of the vacancy notice;

– a copy of Note No 113/04 of 16 July 2004 to the staff of the General Secretariat of the Council concerning Decision No 111/2004 of the Deputy Secretary-General implementing Article 7(4) of Annex XIII to the Staff Regulations and containing the organisation chart of managerial posts within the General Secretariat of the Council and the list of officials holding them at 30 April 2004;

– a copy of a memorandum of 17 June 2005 to officials in Category A* concerning the procedure for filling head of unit posts;

– a copy of Note to staff of the Council General Secretariat No 188/04 of 9 November 2004 concerning the procedure for selecting heads of unit.

17 In its letter in reply to the measures of organisation of procedure, the Council explained that it had envisaged adopting a new procedure for filling head of unit posts. According to the Council, that procedure entailed applying to the process of selecting heads of unit the practical arrangements used for filling directors’ posts, with a few alterations. The Council added that, pending formalisation of that procedure, the practical arrangements involved following, mutatis mutandis, the procedure laid down for filling directors’ posts. Thus, when filling head of unit posts, the appointing authority was to be assisted by a selection board comprising a chairperson (the Director-General/Director of the ‘applicant’ service), two members appointed by the appointing authority and one member appointed by the staff committee.

18 At the hearing the Tribunal asked the Council to produce the file on Mr G.’s candidature and all the documents prepared by the selection board concerning the assessment of the qualifications required of the candidates in the vacancy notice, including, if appropriate, the table setting out the comparative merits of the candidates who had taken part in the selection procedure.

19 By letter received at the Registry of the Tribunal on 17 June 2008 by fax (the original being lodged on 20 June 2008), the Council complied with the Tribunal’s request. By letter received at the Registry of the Tribunal on 7 July 2008 by fax (the original being lodged on 12 July 2008), the applicant submitted his observations on the documents produced by the Council.

20 The Tribunal declared, by decision of 12 July 2008, that the oral procedure was closed and that the case should proceed to deliberation.

21 The applicant claims that the Tribunal should:

– annul the decisions of the appointing authority rejecting his candidature and appointing Mr G. to the contested post;

– order the Council to pay the costs.

22 The Council contends that the Tribunal should:

– dismiss the action;

– order each of the parties to bear its own costs.

Law

23 In support of his action, the applicant raises three pleas in law, alleging a manifest error of assessment, infringement of the vacancy notice and infringement of Article 45 of the Staff Regulations.

24 It is appropriate to consider all the pleas put forward by the applicant together, since they are based on the same line of argument.

Arguments of the parties

25 The applicant notes in the first place that among the qualifications required by the vacancy notice was one stipulating that candidates should have a good knowledge of the work of the General Secretariat of the Council, of Council procedures and working methods and a knowledge of translation and organisational techniques.

26 According to the applicant, after obtaining his degree in law and European law, Mr G. began work in the Consumer Protection Service of the Commission of the European Communities; he was then appointed to DG E 6 (Balkans) and DG H 1 (Asylum) of the General Secretariat of the Council and lastly to the unit concerned with modernising the administration, follow-up of audits, and equal opportunities within the service dealing with general administrative matters. Consequently, Mr G. does not have ‘any training or professional experience in the field of translation and more specifically in the particular translation techniques and new translation working methods of the [General Secretariat of the Council] (Trados and Euramis)’.

27 In his reply, the applicant claims that although the tasks of translation and quality control are not carried out by heads of unit in Directorate 3: Translation and Production of Documents of DG A Personnel and Administration, but by the translators and quality controllers, the fact remains that, according to the vacancy notice, the person appointed to the contested post would be responsible for managing the Spanish Language Unit as regards both human resources and overall production (preparation, translation, revision and final presentation of documents, meeting deadlines and quality standards). The applicant queries whether a head of unit is capable of taking on any such responsibility within the translation process without being able to demonstrate a sound and proven knowledge of translation techniques. The head of unit should, in particular, be in a position to check on the work of the quality controller and the translators in order to manage human resources and overall production.

28 In the applicant’s submission, although it adverted to Mr G.’s four years’ service in administrative management, the Council has been unable to show that the candidate concerned possesses a knowledge of translation techniques. Even if Mr G. can be said to have some knowledge in the field of translation, it could not in any event be a knowledge of translation techniques comparable to that of the applicant, who has demonstrated his mastery in that regard over many years.

29 In his observations referred to in paragraph 19 above, the applicant contends that the selection board found that Mr G. had no training or practical experience as a linguist and that he might take a technocratic approach. In that regard, the applicant relies on the selection board’s assessment table, which states, in the ‘Job-related aspects’ section, that Mr G. ‘has no practical experience or training as a linguist’ and in the ‘Management and team working aspects’ section that Mr G. ‘might take a technocratic approach’.

30 In addition, the applicant complains that the selection board and the appointing authority failed to take into consideration the candidates’ last three staff reports. In his view, his staff reports contain sufficient evidence to prove that he possesses all the necessary qualifications, including the management skills and awareness of responsibilities required in order to manage a team of linguists and also the coordination and organisational skills.

31 Lastly, again in his observations referred to in paragraph 19 above, the applicant also considers that the selection board committed a manifest error of assessment in commenting in respect of his candidature that his unconvincing knowledge of English was a negative point, and by failing to regard his command of French as a positive point. In that connection, the applicant observes that the qualifications required by the vacancy notice merely called for a very good knowledge of Spanish, and sufficient knowledge of English and/or French to enable the person concerned to draft in one or other of those languages.

32 The Council replies first of all that Mr G. meets all the conditions laid down in the vacancy notice and that, therefore, in deciding to appoint him to the contested post the appointing authority did not use its discretion in a manifestly incorrect manner.

33 The Council also states that the conditions laid down in the vacancy notice should be read in the light of the job description contained in the vacancy notice. The vacancy notice describes the work of a head of unit as being to manage the Spanish Language Unit of Directorate 3: Translation and Production of Documents of DG A Personnel and Administration, and not to perform the tasks of a translator by overseeing the translations of the members of the unit.

34 As regards in particular the knowledge of translation techniques required by the vacancy notice, the Council maintains that it is clear from that condition that it is not professional experience in the field of translation that is required but simply a knowledge of translation techniques. In that connection, the Council observes that the applicant appears to confuse knowledge in the field of translation with experience in that field.

35 The Council also states that Mr G. had acquired, through his previous work, a knowledge of specific translation techniques and working methods, particularly with regard to methods that could improve overall production. The applicant, on the other hand, provides no evidence to support his assertion that he meets all the conditions laid down in the vacancy notice, in contrast to the opinion of the selection board, which considered that it was only Mr G. who met those conditions.

36 Lastly, the Council claims that the plea alleging violation of Article 45 of the Staff Regulations is inadmissible on the ground that the applicant does not explain in what way the appointing authority infringed that provision.

37 On this point, the Council argues, in the alternative, that Article 45 of the Staff Regulations is concerned with decisions on promotion, whereas in the present case the contested post was filled in accordance with Articles 4, 7(1) and 29(1) of the Staff Regulations, since both the applicant and Mr G. were in a grade within the band of grades stipulated in the vacancy notice (grades 12 to 14).

38 In the Council’s view, it follows from this that the applicant’s arguments in that regard can only be interpreted as referring to the comparative examination of the candidatures for the contested post. Such an examination was carried out with the assistance of the selection board. Hence, the arguments relating to failure to comply with the conditions laid down in Article 45 of the Staff Regulations, taken in conjunction with Article 29(1) of the Staff Regulations, are unfounded.

39 In its rejoinder, the Council states that a knowledge of translation techniques is only one of the conditions laid down in the vacancy notice. The role of a head of unit is to manage a unit. In that respect, unlike the applicant, Mr G. meets the conditions laid down in the vacancy notice.

Findings of the Tribunal

40 The applicant claims that Mr G., who was selected to occupy the contested post, does not possess all the qualifications required by the vacancy notice. Mr G. has no training or professional experience of translation and, more specifically, of translation techniques. At the hearing the applicant stated that the decision not to accept his own candidature was also unlawful in so far as it was judged that he did not meet the conditions laid down in the vacancy notice. The dispute therefore turns on the assessment of the applicant’s qualifications and those of Mr G. in the light of the interpretation to be given to the conditions laid down in the vacancy notice.

41 It is established case-law that the wide latitude available to the appointing authority regarding appointment presupposes that it should carefully and impartially examine the candidates’ files and have meticulous regard to the requirements laid down in the vacancy notice, so that it is required to reject any candidate who does not meet those requirements. The vacancy notice thus constitutes a legal framework which the appointing authority imposes on itself and must observe meticulously (Joined Cases 341/85, 251/86, 258/86, 259/86, 262/86, 266/86, 222/87 and 232/87 van der Stijl and Cullington v Commission [1989] ECR 511, paragraph 51; Case C‑35/92 P Parliament v Frederiksen [1993] ECR I‑991, paragraphs 15 and 16; Case T‑159/96 Wenk v Commission [1998] ECR-SC I‑A‑193 and II‑593, paragraph 63; Case T‑137/03 Mancini v Commission [2005] ECR-SC I‑A‑7 and II‑27, paragraph 85; Case T‑30/04 Sena v EASA [2005] ECR-SC I‑A‑113 and II‑519, paragraph 80; Case T‑370/03 Wunenburger v Commission [2005] ECR‑SC I‑A‑189 and II‑853, paragraph 51; and Case T‑45/04 Tzirani v Commission [2006] ECR-SC I‑A‑2‑145 and II‑A‑2‑681, paragraph 46).

42 In order to determine whether the appointing authority exceeded the bounds of the legal framework, it is incumbent on the Tribunal to examine first of all what conditions were laid down in the vacancy notice and then to ascertain whether the candidate selected by the appointing authority to fill the vacant post did indeed meet those conditions (Case T‑21/96 Giannini v Commission [1997] ECR‑SC I‑A‑69 and II‑211, paragraph 20; Wenk v Commission, paragraph 64; and Tzirani v Commission, paragraph 48). Lastly, the Tribunal must examine whether, as regards the applicant’s capabilities, the appointing authority did not commit a manifest error of assessment in preferring another candidate to him (Wenk v Commission, paragraph 72, and Mancini v Commission, paragraph 92).

43 Such a review must be limited to whether, in the light of the considerations which led the administration to arrive at its assessment, the administration kept within reasonable limits and did not use its power in a manifestly erroneous manner. The Tribunal may not therefore substitute its own assessment of the candidates’ qualifications for that of the appointing authority (Wenk v Commission, paragraph 64; Case T‑152/00 E v Commission [2001] ECR-SC I‑A‑179 and II‑813, paragraph 29; Case T‑174/02 Wieme v Commission [2003] ECR-SC I‑A‑241 and II‑1165, paragraph 38; Case T‑248/02 Faita v ESC [2003] ECR-SC I‑A‑281 and II‑1365, paragraph 71; and Tzirani v Commission, paragraph 49).

44 In the light of the abovementioned principles, it is necessary in the first place to identify those qualifications required by the vacancy notice which, in the applicant’s submission, Mr G. did not meet.

45 The vacancy notice contained, under the heading ‘Job description’, five subparagraphs, which are reproduced in paragraph 7 above. Also, under the heading ‘Qualifications required’, the vacancy notice listed in seven subparagraphs the requirements reproduced in paragraph 8 above. The first two of those seven subparagraphs, which are of a general nature, required candidates to be officials of the Council and to be in Category A*, grade 14, 13 or 12. The last paragraph concerned knowledge of languages. The third, fourth and sixth subparagraphs required, in particular, management, coordination and organisational skills. Lastly, the fifth paragraph required candidates to have ‘a good knowledge of the work of the General Secretariat and its procedures’ and a knowledge of ‘translation and organisation techniques and of the working methods of the General Secretariat of the Council’.

46 Since the applicant disputes Mr G.’s knowledge of translation matters, the point at issue in the present case must be taken to be the requirement concerning translation techniques laid down in the fifth subparagraph of the vacancy notice, under the heading ‘Qualifications required’. Moreover, in his pleadings the applicant himself places particular reliance on that condition of the vacancy notice.

47 Secondly, the applicant, while not claiming that the Head of the Spanish Language Unit should perform the tasks of translating or controlling the quality of translations, does maintain that, in order to perform managerial tasks and be responsible for organisation, the head of that unit should have a sound knowledge of translation techniques.

48 In that connection, the actual wording of the vacancy notice spells out that it was not sufficient for candidates to have knowledge in the fields of management and organisation and the work of the General-Secretariat of the Council. Candidates also needed to have specific knowledge in the field of translation, since a knowledge of translation techniques was required.

49 It is therefore necessary, thirdly, to establish the meaning and scope of the requirement of a knowledge of translation techniques.

50 As the Council points out, the qualifications required cannot be interpreted independently of the job description (see to that effect Tzirani v Commission, paragraph 53). Those qualifications, which are listed in paragraph 7 above, emphasise the role of the post-holder as a manager and organiser. Consequently, the requirement of a knowledge of translation techniques is to be interpreted in the light of that specific role assigned to the post-holder.

51 In that connection, since the tasks relating to the contested post do not directly involve translation or control of the quality of translation, but involve essentially management and organisation, the condition stipulating a knowledge of translation techniques cannot be interpreted as requiring the same qualifications as those needed for the post of translator or controller of translation quality. It should also be observed that there is no condition in the vacancy notice concerning training or experience in the field of translation.

52 That understanding of the role of head of unit is confirmed by documents produced by the Council which describe the new structure of Directorate 3: Translation and Production of Documents of DG A Personnel and Administration, of which the Language Service is a part, and hence the Spanish Language Unit also. It is clear in particular from the document entitled ‘Modernising the administration of the [General Secretariat of the Council], a report on an optimal structure for Directorate 3: Translation and Production of Documents of DG A Personnel and Administration, a new administrative structure’, in the version dated 8 July 2004, that the head of unit is ‘under the authority of the heads of the Language Service’ and is to ‘be responsible for managing the unit and overall production’. That document also states that within each language unit there will be a person responsible for product quality, who will be responsible for the overall quality of documents.

53 Thus, it is clear that one of the objectives of reorganising Directorate 3: Translation and Production of Documents of DG A Personnel and Administration was to entrust a managerial role to the head of unit, whilst the person in the unit responsible for product quality would have responsibility for the overall quality of documents and, in particular, of their translation.

54 It follows from the foregoing analysis of the tasks of a head of unit that the appointing authority did not exceed its discretionary powers with regard to the interpretation to be given to the condition laid down in the vacancy notice concerning knowledge of translation techniques.

55 This being so, it is necessary to establish whether Mr G. satisfied that condition.

56 As documented in the material produced by the Council at the request of the Tribunal, a selection board composed of six persons was appointed by the Council on 7 April 2006. The selection board decided to use an assessment table as a guide during interviews with the candidates. That table contained three sections, with a maximum number of marks for each: 30 marks for the ‘Personal aspects’ section, 30 marks for the ‘Job-related aspects’ section and 40 marks for the ‘Management and team working aspects’ section. The selection board also decided that only those candidates who obtained a minimum of 50 marks out of 100 could be recommended for the contested post.

57 The selection board held interviews with four candidates, including the applicant and Mr G. After those interviews a consolidated version of the assessment table was prepared in respect of each candidate, reflecting the views of all the members of the selection board. That version also lists the number of marks awarded to each candidate in each of the three sections of the table and the total number of marks obtained. The assessment forms disclose that Mr G. obtained a total of 70 marks, made up as follows: 24 marks in the ‘Personal aspects’ section, 18 marks in the ‘Job-related aspects’ section and 28 marks in the ‘Management and team working aspects’ section.

58 The ‘Job-related aspects’ section of Mr G.’s assessment form contains the following positive comments: ‘Very familiar with the functioning of the [General Secretariat of the Council] (as regards both policy and administrative matters) – Was involved in drawing up the proposal for reorganising [Directorate 3: Translation and Production of Documents of DG A Personnel and Administration] – Was actively involved in the [think-tank] on the optimal structure of the Language Service’. The negative comment in that section is: ‘Has no practical experience or training as a linguist’.

59 The documents produced by the Council, in particular Mr G.’s request for a transfer and his curriculum vitae, also reveal that he had been actively involved in the reform of Directorate 3: Translation and Production of Documents of DG A Personnel and Administration, the directorate which the language units come under, and that for several years he had been ‘[i]n charge of projects for modernising the administration, in particular those relating to job descriptions, the organisation chart (including introducing into the [General Secretariat of the Council] the concept of head of unit), financial organisation, decentralising the administration, reform of DG A [Personnel and Administration, Directorate 3 Translation and Production of Documents] and sound administrative practices’.

60 In its statement in defence, the Council makes the further point, which the applicant does not dispute, that since his transfer in January 2002 to the unit concerned with modernising the administration, follow-up of audits, and equal opportunities, within the service dealing with general administrative matters, Mr G. had been in charge of Project 11, concerning the action plan for modernising the administration (PAMA), reform of DG A Personnel and Administration. According to the Council, ‘that project was subdivided into [five] sub-projects concerning, respectively, [c]entral coordination, language services and secretarial services, documents and terminology support services, appropriate organisation of the secretarial function and divisional aid and technical production services’. The Council adds that, since he was a project leader, Mr G. was also a member of the [Directorate 3: Translation and Production of Documents DG A Personnel and Administration] Study Group on the action plan for modernising the administration of the [General Secretariat of the Council], the group which, between 2002 and 2004, drew up reports for Directorate 3: Translation and Production of Documents of DG A Personnel and Administration, and for the Director General in charge of modernising administration, on documentary support for translation and terminology, on measures designed to ensure quality, on the tasks of translation and revision, the exchange of important information, and use by translators of computers and appropriate software.

61 In those circumstances and in view of the interpretation given to the requirement stipulating a knowledge of translation techniques, the applicant cannot claim that the appointing authority disregarded the conditions laid down in the vacancy notice in considering that Mr G. met those conditions. Furthermore, in the light of the interpretation to be given to the condition stipulating a knowledge of translation techniques, the applicant’s argument that Mr G.’s assessment table contains, in the ‘Job-related aspects’ section, the negative comment ‘has no practical experience or training as a linguist’, is without relevance since such experience or training is not one of the conditions laid down in the vacancy notice.

62 Lastly, it is necessary to establish whether or not the appointing authority made a manifest error of assessment in rejecting the applicant’s candidature.

63 In that connection, in the decision rejecting the applicant’s candidature, the appointing authority informed the applicant that it had selected another candidature ‘which meets more fully’ the requirements of the contested post.

64 At the hearing the Council’s representative explained that, in the view of the appointing authority, the applicant did not meet the requirements of the contested post as fully as Mr G.

65 As already stated in paragraph 56 above, the selection board had decided that only candidates obtaining a minimum of 50 marks out of 100 on the assessment table could be recommended for the contested post. It is also to be noted that the selection board did not reject any of the candidatures submitted by the four candidates invited to interviews on grounds of failure to comply with one of the conditions laid down in the vacancy notice, and that the interviews concerned took place before the selection board submitted the candidatures to a comparative examination.

66 The applicant’s candidature was not therefore rejected on the ground that he failed to satisfy one of the qualifications required by the vacancy notice, but after an examination of the candidates’ comparative merits. The fact that an official has evident and acknowledged merits does not exclude the possibility that, in the context of consideration of the comparative merits of candidates, other officials may have higher merits (Wunenburger v Commission, paragraph 74, and Case F‑46/07 Tzirani v Commission [2008] ECR‑SC I‑A‑1-0000 and II‑A-1-0000, paragraph 119).

67 For the purposes of the present case, it is therefore necessary to examine whether the appointing authority committed a manifest error of assessment in its comparison of the merits of Mr G. and the applicant.

68 In that connection, it should be observed that the applicant’s arguments are based mainly on the premiss that his interpretation of the condition concerning a knowledge of translation techniques is accepted. However, since that interpretation must be rejected, for the reasons given in paragraphs 49 to 54 above, the applicant cannot claim that the appointing authority committed a manifest error of assessment.

69 In the first place, the selection board awarded very different marks to Mr G. from those it awarded to the applicant. As already stated in paragraph 57 above, Mr G. received a total of 70 marks, made up as follows: 24 marks in the ‘Personal aspects’ section, 18 marks in the ‘Job-related aspects’ section and 28 marks in the ‘Management and team working aspects’ section. For his part, the applicant received a total of only 42 marks, made up as follows: 10 marks in the ‘Personal aspects’ section, 20 marks in the ‘Job-related aspects’ section and 12 marks in the ‘Management and team working aspects’ section.

70 In the second place, in the light of the interpretation to be given to the condition laid down in the vacancy notice concerning a knowledge of translation techniques, the applicant’s arguments do not cast doubt on the structure of the assessment table used by the selection board, in particular regarding the weight given to the condition in the vacancy notice concerning management skills.

71 In the third place, the applicant has not established that he meets the conditions of the vacancy notice more fully than Mr G., particularly in view of the way in which they must be interpreted as regards the condition concerning knowledge of translation techniques.

72 It follows that the appointing authority did not commit a manifest error of assessment in considering that Mr G.’s candidature satisfied the requirements of the contested post more fully than that of the applicant.

73 That conclusion is not invalidated by the argument that the selection board failed to take into account in the course of its work the last three staff reports, in breach of Article 45 of the Staff Regulations. To begin with, the Council maintains in its defence that the last three staff reports were taken into consideration. In his observations referred to in paragraph 19 above, the applicant states that the documents which the Council submitted to the Tribunal do not contain any mention of an examination of those reports. However, it cannot be inferred merely from the absence of any reference to those reports on the candidates’ assessment tables that the selection board did not examine those reports (see, to that effect Case F‑44/05 Strack v Commission [2008] ECR‑SC I‑A‑1-0000 and II-A-1‑0000, paragraph 165). Also, even assuming that the applicant’s staff reports do mention his management and organisational skills, the applicant has not established that those reports would be such as to show that the appointing authority committed a manifest error of assessment in considering that Mr G.’s candidature met the requirements of the contested post more fully than did his own. In that regard account must be taken of the significant difference noted by the selection board in the comparative examination of the applicant’s merits and those of Mr G.

74 Lastly, even if the selection board did commit a wrong in giving an assessment of the applicant’s knowledge of English, that is not sufficient to prove that the appointing authority committed a manifest error of assessment. On this point also, the significant difference noted by the selection board in its comparative examination of the applicant’s merits and those of Mr G. should be taken into account. What is more, in his curriculum vitae the applicant mentioned his knowledge not only of French but also of English, which he describes as ‘excellent’. In addition, as regards the level of the applicant’s knowledge of French, the fact that the selection board did not comment on this on the assessment table, either positively or negatively, does not indicate the existence of a manifest error of assessment.

75 It follows from all the foregoing that the pleas alleging a manifest error of assessment, infringement of the vacancy notice and infringement of Аrticle 45 of the Staff Regulations must be rejected without there being any need to rule on the objection of inadmissibility raised by the Council in regard to the plea alleging infringement of Article 45 of the Staff Regulations. The action must therefore be dismissed in its entirety.

Costs

76 Under Article 122 of the Rules of Procedure of the Tribunal, the provisions of Title 2, Chapter 8, of those Rules on costs apply only to cases brought before the Tribunal from the date on which the Rules enter into force, namely, 1 November 2007. The relevant provisions of the Rules of Procedure of the Court of First Instance of the European Communities continue to apply mutatis mutandis to cases pending before the Tribunal before that date.

77 Under Article 87(2) of the Rules of Procedure of the Court of First Instance, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. However, under Article 88 of those Rules, in proceedings between the Communities and their servants the institutions are to bear their own costs. Since the applicant has been unsuccessful, each party must be ordered to bear its own costs.

On those grounds,

THE TRIBUNAL (Third Chamber)

hereby:

1. Dismisses the action;

2. Orders each party to bear its own costs.

Mahoney Kanninen Gervasoni

Delivered in open court in Luxembourg on 6 May 2009.

W. Hakenberg P. Mahoney

Registrar President