JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

14 December 2011

Case T‑6/11 P

European Commission

v

Isabel Vicente Carbajosa and Others

(Appeal — Civil service — Officials — Recruitment — Notice of competition — Open competition — Non-admission to participation in the written test following the result obtained in the admission tests — Division of powers between EPSO and the competition selection board — Audi alteram partem rule)

Appeal: against the judgment of the European Union Civil Service Tribunal (First Chamber) of 28 October 2010 in Case F‑9/09 Vicente Carbajosa and Others v Commission, seeking to have that judgment set aside.

Held: The judgment of the European Union Civil Service Tribunal of 28 October 2010 in Case F‑9/09 Vicente Carbajosa and Others v Commission is set aside in so far as it annuls the decisions of the European Personnel Selection Office (EPSO) not to admit Ms Isabel Vicente Carbajosa in respect of competition EPSO/AD/117/08 and Ms Niina Lehtinen and Ms Myriam Menchén in respect of competition EPSO/AD/116/08 onto the list of candidates invited to submit a full application. The decisions of EPSO not to admit Ms Vicente Carbajosa in respect of the competition EPSO/AD/117/08 and Ms Lehtinen and Ms Menchén in respect of competition EPSO/AD/116/08 onto the list of candidates invited to submit a full application are annulled. Ms Vicente Carbajosa, Ms Lehtinen and Ms Menchén and the Commission shall bear their own costs relating to the present proceedings.

Summary

1. Union law — Principles — Rights of the defence — Audi alteram partem rule — Observance in judicial proceedings — Scope — Judgment annulling a decision on the basis of a plea identified by the court of its own motion without inviting the parties to submit their observations — Infringement of that rule

2. Officials — Competitions — Definition — Preliminary stage consisting of admission tests made up of multiple-choice questions — Included

(Staff Regulations, Annex III)

3. Officials — Competitions — Conduct of competition — Division of powers between the European Personnel Selection Office (EPSO), the appointing authority and the selection board

(Staff Regulations, Art. 30, first para.; Annex III, Arts 1(1) and 5; Decision of the Secretaries-General of the European Parliament, the Council and the Commission, the Registrar of the Court of Justice, the Secretaries-General of the Court of Auditors, the Economic and Social Committee and the Committee of the Regions, and the Representative of the European Ombudsman, Art. 1(1) and (2)(c))

1. The rights of the defence occupy a prominent position in the organisation and conduct of a fair trial and include the audi alteram partem rule. That rule applies to any procedure which may result in a decision by an institution perceptibly affecting a person’s interests. As a general rule, it means that the parties in a case must be given an opportunity to state their views on the facts and documents on which a judicial decision will be based, and to discuss the evidence and observations submitted to the court and the pleas in law which the court has raised of its own motion and on which it intends to base its decision. In order to satisfy the requirements associated with the right to a fair hearing, it is important for the parties to be able to debate and be heard on the matters of fact and of law which will determine the outcome of the proceedings. A court must itself observe the audi alteram partem rule, in particular, when it decides a dispute on a ground it has identified of its own motion.

In so far as there was a plea on a matter of public policy which was neither raised nor debated by the parties at the hearing in a case, but only at the hearing in other cases, and the Civil Service Tribunal annulled the contested decisions on the basis of that plea raised by the court of its own motion without having called on the parties, during the written or oral procedure, to submit their observations on that plea, the Tribunal has infringed the audi alteram partem rule. However, it is necessary to examine, assessing the specific circumstances of the case, whether the procedure followed by the Tribunal can be legitimised on account of the fact that, even had that breach of procedure not taken place, the procedure could not have led to a different result, so that the breach of the audi alteram partem rule could not have affected the content of the judgment.

(see paras 25, 30-32)

See:

C‑89/08 P Commission v Ireland and Others [2009] ECR I‑11245, para. 54; C‑197/09 RX‑II Review M v EMEA [2009] ECR I‑12033, paras 39 to 41 and 52, and the case‑law cited

2. In the first stage of a competition to recruit officials, the admission tests, consisting of multiple-choice questions, are of a comparative nature, which is inherent in the very concept of a competition, in so far as it is not enough to obtain the average in the tests in question but, in order to be admitted to the second stage of the competition, it is necessary to be among a predetermined number of candidates who obtained the highest marks in the admission tests. Not only does that stage therefore constitute a formal element of the procedure for the competition at issue, it is also a competition.

(see para. 54)

3. Article 1(1)(b) and (e) of Annex III to the Staff Regulations, according to which the appointing authority must specify, in the notice of competition, the kind of competition (whether on the basis of either qualifications or tests, or of both qualifications and tests) and, where the competition is on the basis of tests, what kind they will be and how they will be marked, does not mention any power of the appointing authority in relation to the choice and the assessment of the subjects of the questions set during a competition. Since the kind of competition for the purposes of Article 1(1)(b) of Annex III means a competition either on the basis of qualifications or tests, or of both qualifications and tests, that provision does not cover the determination of the content of the tests. As regards Article 1(1)(e) of Annex III, while the setting of pass levels falls within the scope of ‘what kind [of tests] they will be and how they will be marked’, the same cannot be said of the determination of the content of the questions set during a competition. Annex III to the Staff Regulations does not expressly state who is to determine the content of pre-selection tests and who is to supervise that stage of the competition. That power is expressly conferred on neither the appointing authority nor the selection board.

The first paragraph of Article 30 of the Staff Regulations and the first paragraph of Article 5 of Annex III thereto provide, respectively, that it is for the selection board to draw up a list of suitable candidates and to draw up a list of candidates who meet the requirements set out in the notice of competition. In light of those powers, the selection board has a crucial role in the conduct of a competition.

Before the European Personnel Selection Office (EPSO) was established, the appointing authority had a wide discretion in determining the rules and conditions under which a competition was organised, and the selection board had a wide discretion in regard to the arrangements for and the detailed content of the tests provided for within the framework of a competition, while also having the power to supervise any initial candidate pre-selection stage organised by the appointing authority. That allocation of powers between the appointing authority and the selection board was not affected by the establishment in 2002 of EPSO, whose tasks, as regards the conduct of competitions for the recruitment of officials, are essentially organisational. EPSO’s mission is to ensure that uniform standards are applied in the selection procedures for officials. It concerns the determination, in general, of selection procedures for officials, and not the determination of the content of examinations for specific competitions.

Thus, while EPSO is to exercise the powers of selection conferred on the appointing authority with regard to competitions, both the choice and the assessment of the subjects of the questions set during a competition fall outside its remit. In the context of the first sentence of Article 1(1) of Decision 2002/621 on the organisation and operation of EPSO, which provides that EPSO is to organise open competitions with a view to securing the services of officials on optimal professional and financial terms for the institutions, Article 1(2)(c) instead confers on EPSO the role of assisting the selection board in the conduct of a competition, in that it is responsible for developing the selection methods and techniques.

(see paras 60-62, 64, 67, 68, 72, 74 and 75)

See:

T‑24/01 Staelen v Parliament [2003] ECR‑SC I‑A‑79 and II‑423, para. 51; T‑233/02 Alexandratos and Panagiotou v Council [2003] ECR‑SC I‑A‑201 and II‑989, para. 26; T‑207/02 Falcone v Commission [2004] ECR‑SC I‑A‑305 and II‑1393, paras 31, 38 and 39; T‑371/03 Le Voci v Council [2005] ECR‑SC I‑A‑209 and II‑957, para. 41