JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

12 March 2008

Case T-100/04

Massimo Giannini

v

Commission of the European Communities

(Civil service – Open competition – Non‑inclusion in the reserve list – Irregularities in the conduct of the tests liable to distort the result – Equal treatment – Action for annulment – Action for damages)

Application: first, for annulment of the decision of the selection board in Competition COM/A/9/01 with a view to constituting a reserve list for the recruitment of administrators (A 7/A 6) in the fields of economics and statistics (OJ 2001 C 240 A, p. 12) not to include the applicant’s name on the competition reserve list, and, second, for damages.

Held: The action is dismissed. The Commission is ordered to pay its own costs and three quarters of Mr Massimo Giannini’s costs. Mr Giannini is to pay one quarter of his own costs.

Summary

1. Officials – Actions – Act adversely affecting an official – Decision adopted after reconsideration of a previous decision

(Staff Regulations, Arts 90(2) and 91(1))

2. Officials – Actions – Prior administrative complaint – Same subject-matter and legal basis

(Staff Regulations, Arts 90 and 91)

3. Officials – Competitions – Open competition – Participation of officials in a post and grade referred to in the competition notice – Lawfulness

(Staff Regulations, Arts 4 and 27, first para.)

4. Officials – Recruitment – Procedures – Choice – Administration’s discretion

(Staff Regulations, Art. 29(1))

5. Officials – Administration’s duty to have regard for the interests of officials

6. Officials – Competitions – Organisation and content of tests

(Staff Regulations, Annex III)

7. Officials – Competitions – Selection Board – Composition

(Staff Regulations, Annex III, Art. 3)

8. Officials – Competitions – Selection Board – Composition

(Staff Regulations, Annex III, Art. 3)

9. Officials – Rights and obligations – Duty of independence and integrity

(Staff Regulations, Art. 14)

10. Officials – Competitions – Principle that selection board must be impartial

(Staff Regulations, Art. 14)

11. Officials – Competitions – Community institutions’ duty to all candidates to ensure that tests are conducted impartially and regularly

12. Officials – Competitions – Assessment of candidates’ abilities

(Staff Regulations, Annex III)

1. When a candidate in a competition seeks reconsideration of a decision of the selection board not to include him on the reserve list and that application is rejected, it is the rejection decision that constitutes the act adversely affecting the candidate, and therefore the measure open to challenge.

(see paras 29, 30)

See: T‑95/00 and T‑96/00 Zaur-Gora and Dubigh v Commission [2001] ECR-SC I‑A‑79 and II‑379, paras 24 to 27; T‑386/00 Gonçalves v Parliament [2002] ECR-SC I‑A‑13 and II‑55, para. 39; T‑294/03 Gibault v Commission [2005] ECR-SC I‑A‑141 and II‑635, para. 22; T-173/05 Heus v Commission [2006] ECR-SC I-A-2-329 and II‑A‑2‑1695, para. 19

2. In actions brought by officials, the rule of consistency between the initial administrative complaint and the application before the Civil Service Tribunal applies in full where the persons concerned, although not required to do so in the case of a decision by a selection board in a competition, choose first to lodge an administrative complaint with the appointing authority instead of applying directly to the Community judicature. Consequently, where the applicant brings a complaint under Article 90(2) of the Staff Regulations against a decision of a selection board in a competition and that complaint is rejected by the appointing authority, the claims raised before the Community judicature may only have the same subject-matter as those made in the complaint. Furthermore, the heads of claim developed before the Community judicature must be based on the same matters as those relied on in the complaint.

However, given that the pre-litigation procedure is designed to permit and encourage the amicable settlement of differences which may arise between officials and the administration, that the procedure is informal in character and that those concerned generally act without the assistance of a lawyer at that stage, the administration must not interpret the complaints restrictively but should, on the contrary, consider them with an open mind. Furthermore, the heads of claim in the complaint may be developed both during the pre-litigation procedure, by additional notes, and before the Court, provided that the criticisms they contain are based on the same matters as those which formed the basis of the heads of claim relied on in the initial complaint. The submissions and arguments made to the Court in support of those heads of claim need not, therefore, necessarily appear in the complaint, but must be closely linked to it.

(see paras 37-40)

See: 52/85 Rihoux and Others v Commission [1986] ECR 1555, paras 11 to 13; 242/85 Geist v Commission [1987] ECR 2181, para. 9; T‑57/89 Alexandrakis v Commission [1990] ECR II‑143, para. 9; T‑58/91 Booss and Fischer v Commission [1993] ECR II‑147, para. 83; T‑4/96 S v Court of Justice [1997] ECR II‑1125, para. 99; T‑159/95 Dricot and Others v Commission [1997] ECR-SC I‑A‑385 and II‑1035, para. 24; Gonçalves v Parliament, para. 42; T‑293/02 Vranckx v Commission [2003] ECR-SC I‑A‑187 and II‑947, paras 41 to 45

3. The admission to a competition of officials occupying posts and holding the grades referred to in the notice of open competition does not prejudice either the purpose or objective of recruitment as defined in the Staff Regulations.

According to the first paragraph of Article 4 of the Staff Regulations, no recruitment may be made for any purpose other than that of filling a vacant post. The first paragraph of Article 27 of the Staff Regulations states that the objective of any recruitment must be to engage persons of the highest standard of ability, efficiency and integrity on the broadest possible basis, not just geographical, from among nationals of Member States of the Communities.

As regards the purpose of recruitment, it is clear that if a Community institution recruits, following a competition in a particular field and for a specific grade, an official who already occupies a post in that field and already holds the grade referred to in the competition notice, it cannot be complained that the institution has not filled a vacant post. It is admittedly true that that recruitment fills a vacant post by creating another vacancy. However, given that the recruitment fills a vacancy in the vacant post, it is not contrary to the purpose of recruitment as defined in Article 4 of the Staff Regulations.

As for the objective of recruitment, where an official who occupies a post in the field and holds the grade referred to in a competition notice passes the various tests in that competition, his recruitment by the institution following that competition does not undermine the objective of recruitment by competition. The fact that such an official has passed the various tests in the competition shows that he is among the candidates best qualified to occupy the posts to be filled in the institution. Moreover, such a recruitment has indeed been conducted on the broadest possible basis.

(see paras 83-87)

See: 16/64 Rauch v Commission [1965] ECR 135; T‑56/89 Bataille and Others v Parliament [1990] ECR II‑597, para. 48; T‑40/96 and T‑55/96 de Kerros and Kohn-Bergé v Commission [1997] ECR-SC I‑A‑47 and II‑135, paras 40 and 41; T‑294/97 Carrasco Benítez v Commission [1998] ECR-SC I‑A‑601 and II‑1819, para. 35

4. The use of the formulation ‘whether ... can’ in Article 29(1) of the Staff Regulations clearly indicates that the appointing authority is not bound absolutely, where a vacant post is to be filled, to fill that post by way of promotion or transfer, but merely to consider in each case whether those measures are capable of resulting in the appointment of a person of the highest standard of ability, efficiency and integrity.

Thus, while the order of priority established by Article 29(1) of the Staff Regulations implies that the appointing authority must consider the options of promotion or transfer very carefully before moving on to the next phase, it does not prevent the appointing authority from taking into account, when considering those options, the possibility of obtaining better candidates by using the other procedures. Consequently, the appointing authority may move on to a later phase in the recruitment procedure even where there are one or more candidates who satisfy all the conditions and requirements set out in the vacancy notice for the post to be filled.

If, therefore, having examined possible transfers, the appointing authority considers that some of the officials could fill the vacant posts or, on the contrary, that none of the officials would be suitable to fill those posts, the appointing authority cannot be prevented from recruiting, from among those officials, those who passed an open competition with a view to filling the posts in question. The participation and inclusion of those officials on the reserve list may bear out or even demonstrate that they are the best candidates to fill the vacant posts. The appointing authority may thus, in the light of its wide discretion, confirm its assessment or reconsider its initial assessment of those officials and appoint them to the vacant posts, not by transfer, but in consequence of the competition. That new appointment results in the termination of the first appointment once the new appointment takes effect.

(see paras 91-93)

See: 12/64 and 29/64 Ley v Commission [1965] ECR 107, 121; 10/82 Mogensen and Others v Commission [1983] ECR 2397, para. 10; C‑174/99 P Parliament v Richard [2000] ECR I‑6189, I‑6191, paras 38-40; T‑372/00 Campolargo v Commission [2002] ECR-SC I‑A‑49 and II‑223, paras 93-95; T‑330/00 and T‑114/01 Cocchi and Hainz v Commission [2002] ECR-SC I‑A‑193 and II‑987, para. 38

5. The duty of the administration to have regard for the welfare of its officials reflects the balance of the reciprocal rights and obligations established by the Staff Regulations in the relationship between a public authority and civil servants. However, the requirements of the duty to have regard for the welfare of its officials cannot prevent the appointing authority from adopting the measures it believes necessary in the interests of the service, since the filling of each post must be based primarily on the interests of the service.

Whether an institution has fulfilled its duty to have regard for the welfare of its staff when recruiting an official must therefore be assessed in the light of the interests of the service, which are a paramount factor to be taken into account by the institution when filling its posts. The institution does, however, have a wide discretion in determining what the interests of the service are, and the review undertaken by the Court must be confined to the question whether it remained within acceptable bounds and did not use its discretion in a manifestly wrong way.

In admitting to a competition and including on the reserve list officials who already occupied a post and already held the grade referred to in the competition notice, the institution – or more precisely the appointing authority as regards the adoption of the competition notice and the selection board as regards the application of that notice – remained within such bounds and did not use its discretion in a manifestly wrong way.

(see paras 98, 103, 105, 106)

See: 417/85 Maurissen v Court of Auditors [1987] ECR 551, para. 12; C‑298/93 P Klinke v Court of Justice [1994] ECR I‑3009, para. 38; T‑80/92 Turner v Commission [1993] ECR II‑1465, para. 77; T‑589/93 Ryan-Sheridan v Eurofound [1996] ECR-SC I‑A‑27 and II‑77, para. 132; T‑78/96 and T‑170/96 W v Commission [1998] ECR-SC I‑A‑239 and II‑745, para. 116; T‑112/96 and T‑115/96 Séché v Commission [1999] ECR-SC I‑A‑115 and II‑623, para. 267; T‑223/99 Dejaiffe v OHIM [2000] ECR-SC I‑A‑277 and II‑1267, para. 53; Cocchi and Hainz v Commission, para. 89; T‑103/01 Cwik v Commission [2002] ECR-SC I‑A‑229 and II‑1137, para. 52; T-236/02 Marcuccio v Commission [2005] ECR-SC I‑A‑365 and II‑1621, para. 129

6. The principle of equal treatment is a fundamental principle of Community law, and the selection board therefore has a duty to ensure that it is strictly observed between candidates in the course of a competition. While the board enjoys a wide discretion in the organisation and detailed content of the tests, it is nevertheless for the Court to exercise its review as far as is necessary to ensure that candidates are treated equally and that the board is objective in selecting from them.

Any examination generally and inherently involves a risk of unequal treatment given the necessarily limited number of questions that can reasonably be asked in an examination on a particular subject. It is, therefore, accepted that the principle of equal treatment may be deemed to have been breached only if the board has failed, when choosing the tests, to confine the risk of inequality of opportunity to that which is generally inherent in any examination.

Familiarity with a document which certain candidates in a competition may have gained through their work in a Community institution does not mean that they have been placed at an improper advantage by the selection board’s decision to use that document as a basis for the questions in the written test in the competition. Firstly, the advantage which the choice of that document confers on certain candidates forms part of the risk that is generally inherent in any examination. Secondly, the text of that document was accessible before and during the written test in question.

(see paras 132, 133, 164)

See: 64/86, 71/86 to 73/86 and 78/86 Sergio and Others v Commission [1988] ECR 1399, para. 27; T‑43/91 Hoyer v Commission [1994] ECR-SC I‑A‑91 and II‑297, para. 47; T‑44/91 Smets v Commission [1994] ECR-SC I‑A‑97 and II‑319, para. 46; T‑173/99 Elkaïm Mazuel v Commission [2000] ECR-SC I‑A‑101 and II‑433, paras 87 and 90

7. The composition of the selection board must remain as stable as possible in the course of the tests so that the marking criteria are applied in a consistent manner. Such consistency in turn ensures that candidates are treated objectively and equally in the tests. In view of the importance of the principle of equal treatment in recruitment procedures, a selection board’s failure to respect the requirement of stability of composition may be characterised as a breach of essential procedural requirements. Consequently, a decision vitiated by such a defect must be annulled without its being necessary for the person concerned to prove that there has been any particular adverse effect on his subjective rights or to show that the results of the competition might have been different if the essential procedural requirements in question had been complied with.

(see para. 202)

See: T‑165/03 Vonier v Commission [2004] ECR-SC I‑A‑343 and II‑1575, para. 39 and the case-law cited therein

8. The simultaneous presence, during the oral tests, of full members and alternate members on the selection board does not render the proceedings and composition of the selection board unlawful, as long as the representatives required by the first paragraph of Article 3 of Annex III to the Staff Regulations are present and the members of the selection board with the right to vote retain control over the procedures and reserve discretionary power and decision-making power to themselves. Consequently, the simultaneous presence of the full chairman and the alternate for the chairman does not render the proceedings and composition of the selection board unlawful, as long as, in such a situation, the alternate for the chairman does not have the right to vote.

(see paras 210, 255)

See: T‑290/03 Pantoulis v Commission [2005] ECR-SC I‑A‑241 and II‑1123, paras 77 and 78

9. Under Article 14 of the Staff Regulations, a conflict of interests arises only in a situation where an official, in the performance of his duties, is called upon to decide on a matter in the handling or outcome of which he has a personal interest such as to impair his independence. In assessing the risk of a conflict of interests, the existence of professional relations between an official and a third party cannot, in principle, mean that the official’s independence is or appears to be impaired when that official is called upon to decide on a matter in which that third party is involved.

Consequently, the involvement of a member of a selection board in a competition in assessing a candidate who works or has worked in the same unit or directorate as that member does not in itself require the member to decide on a matter in the handling or outcome of which he has a personal interest such as to impair his independence.

(see paras 223-224)

See: T‑89/01 Willeme v Commission [2002] ECR-SC I‑A‑153 and II‑803, para. 58; T‑137/03 Mancini v Commission [2005] ECR-SC I‑A‑7 and II‑27, para. 33; T‑157/04 De Bry v Commission [2005] ECR-SC I‑A‑199 and II‑901, para. 35

10. The principle that the selection board must be impartial thus requires a member of the board to refrain from taking part in the assessment of a candidate where there is a direct link between the board member and the candidate. The impartiality of the selection board is safeguarded if a member of the board who is present at the oral test of candidates with whom he is acquainted refrains from any involvement in the interview and assessment of those candidates and if, in the consideration of the comparative merits of all the candidates, the jury is required to contain at least three or four members with no direct link with the candidate, in addition to that ‘passive’ member.

(see paras 228-229)

See: T‑336/02 Christensen v Commission [2005] ECR-SC I‑A‑75 and II‑341, para. 53

11. Under the principles of sound administration and equal treatment, the Community institutions have a duty to all candidates in a competition to ensure that the tests are conducted in as impartial and regular a manner as possible. However, an irregularity which occurs during the course of the tests in a competition affects the legality of those tests only if it is of a substantive nature or if the applicant proves that the irregularity is such as to distort the results of the tests. Where such an irregularity occurs, however, it is for the defendant institution to prove that it did not affect the results of the tests .

In that respect, the different durations of deliberations on the various candidates do not mean that the principle of non-discrimination has been breached and do not therefore constitute an irregularity, since the duration of a deliberation is not an indication of the effectiveness or quality of that deliberation.

(see paras 244, 250)

See: T‑200/97 Jiménez v OHIM [1999] ECR-SC I‑A‑19 and II‑73, para. 55; T‑159/98 Torre and Others v Commission [2001] ECR-SC I‑A‑83 and II‑395, para. 47; T‑193/00 Felix v Commission [2002] ECR-SC I‑A‑23 and II‑101, para. 46

12. A selection board’s assessment of candidates’ knowledge and ability constitutes a value judgement on each candidate’s performance in the test and falls within the wide margin of discretion accorded to the board. The Community judicature has no jurisdiction to review it unless the rules which govern the proceedings of the selection board have clearly been infringed. It is not for the Community judicature to substitute its own assessment for that of the selection board. It follows that where, in an application for annulment of the decision of a selection board declaring that the applicant has failed the eliminatory tests, the applicant does not allege an infringement of the rules governing the proceedings of the board or does not provide proof of such an infringement, the Community judicature has no jurisdiction to review the validity of the selection board’s appraisal.

It follows from the principle set out in Article 27 of the Staff Regulations, that recruitment must be directed to securing for the institution the services of officials of the highest standard of ability in particular, that any candidate required to answer questions for which there is, in each case, only one specific correct answer must be selected by the selection board on the basis of the correctness of his answers. That rule does not affect the discretion which every selection board enjoys. Where there is only one single, specific correct answer to a question, the selection board has no discretion to state whether the answer given by a candidate to that question is right or wrong.

It follows from that rule that inaccurate corrections made during the oral test in a competition by certain members of the selection board to a candidate’s answers to questions to which there is only one correct answer constitute an infringement of the rules governing the proceedings of the board.

(see paras 274-278)

See: T‑46/93 Michaël-Chiou v Commission [1994] ECR-SC I‑A‑297 and II‑929, paras 48 and 49; T‑146/99 Teixeira Neves v Court of Justice [2000] ECR-SC I‑A‑159 and II‑731, para. 41; T‑72/01 Pyres v Commission [2003] ECR-SC I‑A‑169 and II‑861, para. 30; T‑285/02 and T‑395/02 Vega Rodríguez v Commission [2004] ECR‑SC I‑A‑333 and II‑1527, paras 35-45; T‑267/03 Roccato v Commission [2005] ECR-SC I‑A‑1 and II‑1, para. 42