JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

5 March 2015

Valéria Anna Gyarmathy

v

European Union Agency for Fundamental Rights (FRA)

‛Civil service — Staff of the European Union Agency for Fundamental Rights — Members of the temporary staff — Recruitment — Notice of vacancy — Rejection of candidature’

Application:

under Article 270 TFEU, in which Ms Gyarmathy lodged the present action seeking, essentially, annulment of the decision of the Director of the European Union Agency for Fundamental Rights (‘the FRA’ or ‘the Agency’) to recruit a candidate other than the applicant for the post of ’Senior Programme Manager — Social Research’. Furthermore, she claims payment of compensation in respect of the material and non-material harm which she considers herself to have suffered.

Held:

The action is dismissed. Ms Gyarmathy is to bear her own costs and is ordered to pay the costs incurred by the European Union Agency for Fundamental Rights.

Summary

Actions brought by officials — Prior administrative complaint — Correspondence between complaint and action — Same relief sought and heads of claim — Administration’s duty to interpret complaints with an open mind — Mere list of possible grounds of illegality of the contested decision — Inadmissibility

The duty to state reasons laid down in the second paragraph of Article 25 of the Staff Regulations is intended, first, to provide the person concerned with details sufficient to allow him to ascertain whether the act adversely affecting him is well founded and whether it is appropriate to bring proceedings before the Tribunal and, secondly, to enable the Tribunal to review the legality of the act. Moreover, Article 41(2)(c) of the Charter of Fundamental Rights of the European Union provides that the right to good administration includes, inter alia, ‘the obligation of the administration to give reasons for its decisions’. However, in the context of a recruitment procedure to fill a vacant post, such a duty to state reasons must be reconciled with observance of the secrecy surrounding the proceedings of selection committees, which precludes disclosure of the attitudes adopted by individual members of the selection committee and disclosure of factors relating to individual or comparative assessments of candidates. In competitions, in view of the secrecy surrounding the proceedings of the selection board, communication of the scores obtained in the various tests constitutes, in principle, an adequate statement of the reasons on which the selection board’s decisions are based. Those principles apply by analogy to a selection procedure for a position as a member of the temporary staff. (see paras 47-49) See: Judgments in Trentea v FRA, F‑112/10, EU:F:2012:179, paras 89 and 90, and De Mendoza Asensi v Commission, F‑127/11, EU:F:2014:14, para. 94 and the case‑law cited therein

Since the pre-litigation procedure is informal in character and those concerned act, in general, without the assistance of a lawyer at that stage, the administration must not interpret the complaints restrictively but must, on the contrary, examine them with an open mind. Furthermore, Article 91 of the Staff Regulations is not intended to be strictly and definitively binding for the purposes of a possible contentious stage of the procedure, provided that neither the heads of claim nor the relief sought in the complaint are changed in the action brought. However, the fact remains that, in order for the pre-litigation procedure provided for in Article 91(2) of the Staff Regulations to achieve its objective, it is necessary that the appointing authority be in a position to know with sufficient precision the criticisms formulated by the persons concerned against the contested decision. In that regard, a list of possible grounds of illegality of the contested decision does not allow the administration, even interpreting the complaint with an open mind, to examine the criticisms that the applicant makes regarding that decision. Interpreting a complaint with an open mind does not mean that the administration is obliged to imagine or speculate on what the claimant intended to refer to without giving further details. It follows that the applicant cannot rely on the mere mention of those possible grounds of illegality of the contested decision to justify the admissibility of a plea as regards the rule of correspondence. (see paras 69, 72) See: Judgment in Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, paras 76 and 77 and the case‑law cited therein