Case T‑734/15 P

European Commission

v

FE

(Appeal — Civil service — Officials — Open competition — Inclusion on reserve list — Decision of the appointing authority not to recruit a successful candidate — Respective competences of the selection board and the appointing authority — Conditions of admission to the competition — Minimum duration of professional experience — Rules for calculation — Loss of a chance of recruitment — Claim for damages)

Summary — Judgment of the General Court (Appeal Chamber), 15 September 2017

A competition notice would be deprived of its purpose, which is to inform candidates of the conditions that must be satisfied in order to fill a post, if the administration were able to remove a candidate on a ground not expressly stated in the notice of competition or in the Staff Regulations, or that has not been published. The notice of competition can, lawfully, merely repeat the general wording of Article 5(1) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), without specifying the level of experience required for the post to be filled, and thus leave it to the Selection Board to decide in each case whether the qualifications and diplomas produced and the relevant experience claimed by each candidate correspond to the level required by the Staff Regulations and, therefore, by the notice of competition, for the discharge of duties pertaining to the category to which that notice relates. Where a condition in the competition notice is drafted in general terms, the selection board had broad discretion in defining the criteria for applying the eligibility conditions to be met, including the duration of the required professional experience. Thus, where the competition notice requires only that the professional activity be carried out for a minimum of two years, that condition is to be construed as referring to a period of work carried out on a full-time basis for two years or to a period of work carried out on a part-time basis during a period or periods of time, or as a self-employed individual, equivalent (in terms of time worked) to a period of two years of full-time work. That interpretation is the only one that guarantees uniform application of the recruitment procedure to all candidates in the competition, since, depending on whether the activity is carried out full-time, half-time, quarter-time or one day a week for three years, the period of activity required may vary considerably and may give rise to unequal treatment as between candidates in terms of the duration of experience required. (see paras 24, 26, 29, 30, 85)

Even though the appointing authority does not have the power to annul or amend a decision taken by a competition selection board, it is required, in exercising its own powers, to take decisions free of irregularities. It cannot therefore be bound by a selection board decision the illegality of which is liable to vitiate its own decisions. That is why the appointing authority is required to verify, before appointing a person as an official, whether that person satisfies the conditions required for that purpose. Where the selection board wrongly allows a candidate to take part in a competition and subsequently places him on the reserve list, the appointing authority must express its refusal to appoint that candidate by way of a reasoned decision from which the EU judicature can judge whether the refusal is well founded. Given the selection board’s broad discretion in determining whether candidates’ previous professional experience satisfies the conditions for being admitted to the competition, the appointing authority, in its review of the lawfulness of selection board decisions, must restrict itself to ensuring that the selection board’s exercise of its discretion was not vitiated by a manifest error. An error may be said to be manifest only where it may easily be detected in the light of the criteria to which the legislature intended the exercise by the administration of its broad discretion to be subject. Consequently, in order to establish that a manifest error was made in the assessment of the facts such as to justify the annulment of a decision, it is necessary to demonstrate that the findings made in the decision at issue are implausible. In other words, there cannot be manifest error if the contested assessment may be accepted as true or valid. In that regard, the lack of information about the selection board’s assessments in no way prevents the appointing authority from considering that the decision to which it came could be vitiated by a manifest error of assessment. (see paras 55-57, 61)

The calculation method consisting of quantifying the work performed on the basis of the number of pages translated is widely used in the translation sector, both by the institutions and in the private sector, probably because it is considered the most objective. Thus, the fact that, in calculating the minimum duration of professional experience laid down by the competition notice, the appointing authority used the criterion of the number of pages translated per day employed by the Commission’s translation services, namely five pages per working day, cannot be considered in itself to be manifestly incorrect. In that regard, the decision of the selection board decision and that of the appointing authority do not have the same scope. Although the first of those decisions leads to the admission (or not) of a candidate to the competition, the decision of the appointing authority is limited to the potential recruitment of the successful candidate by a given institution. It must be remembered that the appointing authority does not have the power to annul or modify a decision taken by the competition selection board. Where the person concerned wishes to be recruited to an institution and in the absence of a generally applicable interinstitutional method or indications of a plausible calculation having been made by the selection board, the appointing authority is right to apply the calculation method generally used in internal translation-related matters. (see paras 104-106)