JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

13 December 2012

Case F‑101/11

Tzena Mileva

v

European Commission

(Civil service — Open competition — Notice of competition EPSO/AD/188/10 — Non-inclusion on the reserve list — Composition of the selection board — Permanent and non-permanent members)

Application: Action brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, whereby Ms Mileva seeks, primarily, annulment of the decision of the selection board for open competition EPSO/AD/188/10 not to include her on the reserve list for that competition.

Held: The action is dismissed. The applicant is to bear her own costs and is ordered to pay the costs incurred by the Commission.

Summary

1. Officials — Competitions — Selection board — Rejection of application — Obligation to state reasons — Scope — Observance of the secrecy of the proceedings

(Art. 296 TFEU; Staff Regulations, Art. 25(2); Annex III, Art. 6)

2. Officials — Competitions — Evaluation of candidates’ abilities — Selection board’s discretion — Decision not to include a candidate on the reserve list — Obligation to state reasons — Scope

(Staff Regulations, Annex III)

3. Officials — Officials — Competitions — Evaluation of candidates’ abilities — Selection board’s discretion — Judicial review — Limits

(Staff Regulations, Annex III, Art. 5)

4. Officials — Competitions — Organisation and content of tests — Selection board’s discretion — Judicial review — Limits

(Staff Regulations, Annex III)

5. Officials — Competitions — Selection board — Composition — Members’ qualification to undertake an objective assessment of the tests

(Staff Regulations, Annex III, Art. 3)

1. Under Article 296 TFEU and the second paragraph of Article 25 of the Staff Regulations, any decision relating to a specific individual taken under the Staff Regulations which adversely affects that person must state the grounds on which it is based. As concerns decisions taken by a selection board in a competition, however, the obligation to state reasons must be reconciled with observance of the secrecy surrounding the proceedings of selection boards provided for in Article 6 of Annex III to the Staff Regulations.

As that secrecy was established in order to ensure the independence of the selection boards and the objectivity of their proceedings, by sheltering them from any external interference and pressure, whether from the European Union administration itself, from interested candidates or from third parties, it therefore precludes both the disclosure of the attitudes of the individual members of the selection boards and the disclosure of any factors relating to the personal or comparative assessments of candidates.

In view of the secrecy which must surround the proceedings of a selection board, communication of the marks obtained in the various tests constitutes an adequate statement of the reasons on which the selection board’s decisions are based. Such a statement of reasons is not prejudicial to the candidates’ rights since it enables them to know the value set on their performance and to ascertain, if such is the case, that they have not in fact obtained the number of marks required by the notice of competition in order to be admitted to certain tests or to all the tests.

The obligation to state reasons presumes only that the addressee of a decision adversely affecting him is in a position to understand clearly and unequivocally the reasoning that led the administration to adopt the decision in question. Conversely, the fact that that reasoning is incorrect, on the assumption that that is shown to be the case, goes to a possible error of law or a manifest error of assessment.

(see paras 27-29, 34)

See:

4 July 1996, C‑254/95 P Parliament v Innamorati, para. 24

19 February 2004, T‑19/03 Konstantopoulou v Court of Justice, paras 27, 32 and 33; 4 May 2005, T‑30/04 Sena v EASA, para. 62

2. In view of the broad discretion which it enjoys in assessing the results of the tests, the selection board is not compelled, when stating the reasons for its decision not to admit a candidate to a test, to state precisely which of the candidate’s answers were considered inadequate or to explain why those answers were considered inadequate.

(see para. 30)

See:

Konstantopoulou v Court of Justice, para. 34

3. Where it is required to review the legality of a decision whereby a selection board refuses to include a candidate on a reserve list, the Civil Service Tribunal verifies whether the relevant rules of law have been observed, that is to say, the rules, in particular the procedural rules, laid down in the Staff Regulations and the notice of competition and those governing the proceedings of the selection board, in particular the selection board’s duty of impartiality and its observance of the principle of equal treatment of candidates, as well as the absence of any misuse of powers.

In certain situations, moreover, in which the selection board has no discretion, notably where each of the questions put to a candidate calls for a single answer, the Tribunal’s review may cover the accuracy of the facts on which the selection board relied in order to take its decision. Last, the Tribunal ascertains that there has been no material error and that the mark awarded corresponds to the selection board’s written appraisals, provided that review of such correspondence is confined to ascertaining that there is no manifest inconsistency.

However, a selection board’s assessment of candidates’ knowledge and ability is not amenable to review by the Tribunal. Its review cannot cover the lack of consistency between the appraisals made in different tests, as such review would amount to ascertaining the accuracy of a selection board’s assessment of candidates’ knowledge and ability.

In any event, on the assumption that the Tribunal had jurisdiction to undertake such a review, it must be held that the existence of inconsistency between the appraisals made in different tests does not prove the existence of an error of assessment. Since a competition makes provision for several tests and since different persons are called upon to mark them, inconsistent appraisals may inevitably occur.

(see paras 40-45)

See:

9 October 1974, 112/73, 144/73 and 145/73 Campogrande and Others v Commission, para. 53

27 March 2003, T‑33//00 Martínez Páramo and Others v Commission, paras 62 to 64; 26 January 2005, T‑267/03 Roccato v Commission paras 42, 50 and 51; 12 March 2008, T‑100/04 Giannini v Commission, paras 277 and 278

11 September 2008, F‑127/07 Coto Moreno v Commission, paras 32 and 34 and the case-law cited

4. The institutions of the European Union have a wide discretion when determining the detailed arrangements of a competition and it is not for the Courts of the European Union to criticise those arrangements unless they have no relation to the purpose of the competition.

In any event, the selection of the best candidates means that the administration must seek those with a combination of significant knowledge and the intellectual capacity to put that knowledge into practice in what may well be a changing context and, consequently, the fact that a competition makes provision for tests designed to evaluate candidates’ general abilities does not appear to be unrelated to the purpose of the competition. Even if the tests designed to evaluate general abilities consisted in tests requiring a psychological analysis of candidates, that would not prove that the assessment of those tests was subjective to such a degree that respect for the principles of equal treatment and objectivity of the marking could not be ensured.

(see paras 51, 54-55)

See:

6 November 1997, T‑71/96 Berlingieri Vinzek v Commission, para. 36; 26 October 2004, T‑207/02 Falcone v Commission, para. 31; 30 November 2005, T‑361/03 Vanlangendonck v Commission, para. 38

29 September 2009, F‑20/08, F‑34/08 and F‑75/08 Aparicio and Others v Commission, para. 53

5. While a selection board has a wide discretion in evaluating candidates in a competition, it must, on the other hand, conduct its proceedings with scrupulous respect for the rules governing the organisation of the tests and governing the choice of the panel called upon to examine a candidate’s performance.

In order to be constituted in accordance with the provisions of the Staff Regulations and of Article 3 of Annex III thereto, a selection board must be composed in such a way as to guarantee an objective assessment of the performance of candidates in the tests in relation to the professional qualities expected. Furthermore, as the assessment of candidates in a competition is comparative, a candidate may rely on an irregularity in favour of another candidate in order to secure annulment of the decision not to include him on the reserve list.

(see paras 61, 63)

See:

23 March 2000, T‑95/98 Gogos v Commission, paras 37 and 41 to 56; 24 September 2002, T‑92/01 Girardot v Commission, para. 24; 10 November 2004, T‑165/03 Vonier v Commission, para. 39

4 September 2008, F‑147/06 Dragoman v Commission, para. 49