JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Third Chamber)

29 September 2010

Case F-5/08

Markus Brune

v

European Commission

(Civil service — Open competition — Non-inclusion on the reserve list — Conduct of the oral test — Stable nature of the composition of the selection board)

Application: brought under Articles 236 EC and 152 EA, in which Mr Brune seeks, principally, annulment of the Commission’s decision of 10 May 2007 not to place him on the reserve list in open competition EPSO/AD/26/05 and of the decision of 2 October 2007 rejecting his complaint.

Held: The Commission’s decision of 10 May 2007 not to place the applicant on the reserve list in competition EPSO/AD/26/05 is annulled. The Commission is ordered to pay all the costs.

Summary

Officials — Competitions — Selection board — Composition

(Staff Regulations, Annex III, Art. 3)

In order to ascertain whether the procedure followed in the oral tests of a competition satisfied the two basic requirements of objectivity and equality in the appraisal of candidates, an overall examination must be made of the organisation of the oral tests in the particular circumstances of the case, having regard to all the relevant factors. Those factors include, among others, the number of candidates admitted to the tests, fluctuations in the composition of the selection board, with a particular focus on whether the chairman of the selection board and, where appropriate, his alternate were present, and the coordination measures taken to ensure the consistent application of the marking criteria.

Absences of the chairman of the selection board in an open competition with a large number of candidates are not, taken in isolation, such as to justify the annulment of a decision of the selection board where those absences were limited in number and where, during those absences, the selection board was chaired by the alternate chairman, who had been present, with the chairman, at the vast majority of the tests, thus ensuring continuity in the chairing of the selection board. The chairman’s absences must be weighed against the other relevant factors in order to determine whether the composition of the selection board was sufficiently stable.

Regardless of whether the chairman of the selection board attended the tests, the regular attendance of a sufficient number of examiners is required to ensure consistent marking and the comparative appraisal of the candidates. However, in view of the difficulties associated with organising a competition with a large number of candidates, in order for the selection board to contain a core of examiners able to provide sufficient stability, it is not necessary for the members of that core to have attended all the tests. In that respect, an alternate member of a competition selection board may replace a full member when the latter is absent. However, where the attendance rate of full members is particularly low, such absences must be justified.

Where the core of examiners who attended the tests was confined to the chairman of the selection board and his alternate, since the other selection board members did not attend a sufficient number of tests and no identical formation attended a large number of oral tests, the composition of the selection board is not stable enough to ensure compliance with the principles of objectivity in marking and equal treatment, and this must be classified, in view of the importance of those principles, as an infringement of essential procedural requirements. In such a situation where the composition of the selection board is not stable, the fact that the alternate chairman attended, together with the chairman, the first part of the tests in order to compare how the appraisal criteria were applied, and the fact that the selection board agreed the appraisal rules in advance cannot be regarded as circumstances guaranteeing consistent marking.

(see paras 44, 52, 53, 56, 62-63)

See:

T-100/04 Giannini v Commission [2008] ECR-SC I-A-2-9 and II-A-2-37, paras 205, 209 to 212 and 215

F-22/05 Neophytou v Commission [2006] ECR-SC I-A-1-159 and II-A-1-617, paras 44 and 56