JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber)

14 July 1995

Case T-291/94

Zudella Patricia Pimley-Smith

v

Commission of the European Communities

‛Officials — Competition — Decision of the Selection Board finding that a candidate has failed the oral test — Scope of the obligation to give reasons — Scope of judicial review in cases where the procedural rules have not been infringed’

Full text in French II-637

Application for:

annulment of the decision of the Selection Board in an open competition not to place the applicant on the list of suitable candidates and, so far as is necessary, annulment of the Commission's decision rejecting the applicant's complaint.

Decision:

Application dismissed.

Abstract of the Judgment

The applicant took part in an open competition, based on tests, organized by the Commission and the Court of Justice to constitute a reserve list from which to recruit administrative assistants in grade B 5/B 4. The competition covered two areas, namely ‘library-documentation’ and ‘archives’. Since applications had to be restricted to either one or the other, Ms Pimley-Smith applied to sit the tests in the library-documentation field.

She passed the eliminatory tests and the written test but failed the oral test.

The Commission informed the applicant of her results in the eliminatory tests and the written test. Initially, it refused to give her the results of the oral test. In the decision rejecting her complaint, however, the Commission informed the applicant that she had obtained 19 marks out of 40 in the oral test when the pass mark was 20.

The plea in law alleging infringement of Article 30 of the Staff Regulations and of Annex III thereto

First, the Court rejects the applicant's argument that the Selection Board failed to discharge its responsibilities in that it did not make an adequate assessment of her knowledge in the field of documentation.

A competition selection board has considerable discretion as regards the content of the tests and it is not for the Community judicature to criticize the selection board's choice of tests unless that choice goes beyond the limits laid down in the notice of competition or is not consistent with the purposes of the test or of the competition. In the present case, having regard to the purpose of the oral test, which was to enable the Selection Board to complete its assessment of the candidates' suitability, and to the fact that Ms Pimley-Smith's application showed that she had practical experience in the field of documentation but gave no indication of training or practical experience in librarianship, the Court considers that the Selection Board did not fall short of its responsibilities by asking the applicant more questions on librarianship than on documentation (paragraphs 26 to 30).

See: 228/86 Goossens and Others v Commission [1988] ECR 1819; T-132/89 Gallone v Council [1990] ECR II-549; T-156/89 Valverde Mordt v Court of Justice [1991] ECR II-407

Secondly, the Court rejects tire applicant's argument that the members of the Selection Board were not suitably qualified to evaluate her knowledge of documentation.

The Court finds, in the light of extracts from the staff reports for the members of the Selection Board present at the oral test, that at least three of them possessed the qualifications necessary to evaluate the applicant's knowledge (paragraph 35).

Lastly, the Court rejects the applicant's third argument, on the basis of which she submits that the appraisal of her knowledge of Spanish was made by the secretary of die Selection Board, independently of the Board itself.

On consulting extracts — provided by the Commission — from the staff reports of the members of die Selection Board, the Court notes that two of those present at the applicant's oral test claimed to have a good understanding of Spanish and that one of them had completed a course in Spanish at die most advanced level offered by die relevant institution. Consequently, die Court finds no reason to doubt Üiat die appraisal of die applicant's knowledge of Spanish was made by one member, at least, of die Selection Board (paragraphs 38 and 39).

Furthermore, the Court considers that the fact that the questions designed to test the applicant's knowledge of languages were chosen and put to her by the Selection Board's secretary does not constitute an infringement of the rules governing the Board's proceedings. Since, as the Commission's explanations make clear, the Selection Board had decided that the test of linguistic knowledge should take the form of a conversation with each candidate and that the sole purpose of its questions was to initiate such conversation, the fact that the Selection Board allowed its secretary to choose the questions to be asked is unlikely to have had a decisive influence on the appraisal of the applicant's knowledge (paragraph 40).

The plea in law alleging breach of the principle of non-discrimination

The question addressed by the Court is essentially whether the Selection Board was under a duty to lay down, before the oral tests, more precise criteria for assessment than those indicated in the notice of competition. In that connection, the Court notes that selection boards have a wide power of. appraisal regarding the arrangements for and detailed content of tests in competitions and finds, on consulting the notice of competitionj that it has not been shown that the assessment criteria set, out. therein were insufficiently detailed to enable the Selection Board to draw up a list of suitable candidates whilst ensuring that all candidates were treated equally (paragraphs 48 to 50).

See: Goossens and Others v Commission, cited above

The plea in law alleging a manifest error of assessment

Competition selection boards enjoy a wide discretion, and the Community judicature has no jurisdiction to review their value judgments unless the rules which govern the proceedings of selection boards have been infringed (paragraph 54).

See: T-17/90; T-28/91andT-17/92 Cámara Alloisio and Others v Conmiission, [1993] ECR II-841 ;T-6/93 Pérez Jimenez v Commission [1994] ECRSC II-497; T.-46/93 Michaël-Chiou v Commission [1994] ECRSG II-929

Consequently, since it is clear from consideration of the preceding pleas in law that the applicant has not furnished proof that the rules governing the proceedings of the Selection Board have been infringed, the question whether or not the Selection Board's assessment of the applicant's performance in the oral test was well founded lies outside the jurisdiction of the Court (paragraph 55).

The plea in law alleging that the statement of reasons for the Selection Board's decision is defective

The obligation to state reasons forms an essential principle of Community law and its twofold purpose is to make it possible for the decision to be the subject of judicial review and to provide the person concerned with sufficient details to ascertain whether or not the decision is well founded.

See: T-583/93 P. v Commission [1995] ECRSC II-433

In order to determine the scope of the obligation incumbent on the selection board in a competition to give reasons for its decisions, a distinction must be drawn between, on the one hand, decisions not to admit candidates to die tests and, on the odier, decisions on the part of a selection board to the effect tìiat a candidate has failed a particular test.

A selection board's decision not to admit a candidate to the tests flows from an assessment of the relevant application in the light of objective criteria laid down by the notice of competition or specified by the selection board itself. As regards such decisions, it is plain from settled case-law that, although the selection board may, where there is a large number of candidates in a competition, confine itself initially to informing candidates only of the criteria for selection and the results thereof, it must subsequently provide an individual explanation to tíiose candidates who expressly ask for one, stating the reasons for its refusal to admit them to the tests.

See: 195/80 Michel v Parliament [1981] ECR 2861; T-l 15/89 González Holguera v Parliament [1990] ECR II-831; T-55/91 Fascilla v Parliament [1992] ECR II-1757

A decision on the part of a selection board to the effect that a candidate has failed a test reflects a value judgment regarding the candidate's performance in that test. According to established case-law, the selection board enjoys a wide discretion in evaluating the results of tests in a competition and the Community judicature has no jurisdiction to review the merits of such value judgments unless the rules governing the proceedings of selection boards have manifestly been infringed.

See: Cámara Alloisio and Others v Commission, cited above; Pérez Jimenez v Commission, cited above; Michaël-Chiou v Commission, cited above

Consequently, a selection board cannot be required, when giving reasons for a candidate's failure of a test, to identify the answers which were considered unsatisfactory or to explain why they were considered unsatisfactory. It is not necessary to enter into such detail in the statement of reasons in order to enable the Court to exercise its power of review or, consequently, to enable the candidate to determine whether to lodge a complaint or, if appropriate, bring an action. That does not mean that there is no need to amplify the reasons fpr a decision that a candidate has failed a test. A candidate is entitled to explanations, if he expressly requests them, on points other than the selection board's value judgment regarding his performance, such as, for example, the conduct of the procedure.

In the present case, it is clear from the foregoing observations that the notification to the candidate of her marks in the oral test constituted a sufficient statement of reasons for the contested decision.

Operative part:

The application is dismissed.