JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber)

15 September 1998

Case T-94/96

Martin Hagleitner

v

Commission of the European Communities

‛Officials — Open competition — Selection board — Examiners — Marking of tests’

Full text in German II-1467

Application for:

annulment of the measures adopted by the Commission in the context of competition COM/A/904 or, at the very least, of the decision of the selection board in that competition not to admit the applicant to the oral tests.

Decision:

Annulment of the Commission's decision of 18 September 1995. For the rest, application dismissed.

Abstract of the Judgment

On 13 January 1995 the Commission published notice of open competition COM/A/904 for the recruitment of grade A 7/A 6 administrators of Austrian nationality (OJ 1998 C 10 A, p. 8). The applicant was admitted to that competition and sat the written tests in April 1995.

By letter of 1 June 1995, the Commission informed the applicant of the decision of the selection board not to admit him to the oral tests on the ground that he did not feature among the 150 candidates who had obtained the best overall results.

By letter of 7 June 1995, the applicant requested verification of the appraisal by the selection board of certain of his written tests. By letter of 21 June 1995 from the chairman of the selection board, the Commission informed the applicant that, following further verification, the previous result was confirmed.

By letter of 7 August 1995 to Mr Liikanen, the Member of the Commission responsible for personnel and administration matters, the applicant stated that he had learned that part of the tests in competition COM/A/904 had been marked by Austrian Government officials. In the applicant's view, those examiners were neither qualified nor objective, and a significant part of the marking carried out by them had not been verified. By the same letter, that applicant asked for verification and for an investigation as to the proper conduct of the appraisal procedure and the results of certain of the written tests in competition COM/A/904.

Mr Liikanen replied to the applicant by letter of 18 September 1995, stating that the tests had already been the subject of a review, that the Commission had been obliged for linguistic reasons to have recourse to national examiners in certain parallel competitions for Finnish and Swedish nationals, and that it had sought to apply the same principle in relation to the competitions reserved for Austrian nationals. Those national examiners possessed sufficient knowledge to enable them to appraise the tests sat by the candidates.

By letter of 2 November 1995, categorised by him as a complaint, the applicant requested, inter alia, further verification of the written tests in competition COM/A/904 and asked, in so far as might be necessary, for the contested procedure to be annulled in its entirety, for the decisions relating to it to be likewise annulled and for the initiation of a new procedure. By decision of 8 March 1996, notified to the applicant on 11 March 1996, the Commission rejected the complaint of 2 November 1995.

Substance

The third paragraph of Article 3 of Annex III to the Staff Regulations, which provides that, in the context of a competition, the selection board may, for certain tests, have recourse to one or more examiners serving in an advisory capacity, may be applied, in particular, where the large number of candidates involved in a competition would prevent the selection board from completing its work within a reasonable period.

See: 122/77 Claes and Others v Commission [1978] ECR 2085, para. 8; 4/78, 19/78 and 28/78 Salerno and Others v Commission [1978] ECR 2403, para. 14

Since it was considered necessary for linguistic reasons, in the context of the competitions for Swedish and Finnish nationals organised in parallel to the contested competition, to have recourse to external examiners, the selection board did not exceed its discretionary powers merely by virtue of the fact that, with a view to adopting the same working method for all the competitions in question, it had recourse in the present case to Austrian examiners acting in an advisory capacity, even though there was a sufficient number of German-speaking officials within the Commission who were capable of doing the marking in question.

However, where recourse is had to the assistance of external examiners, it is necessary for the selection board to retain ultimate control over the procedures and its discretionary power.

See: Salerno and Others v Commission, cited above, para. 15; 90/74 Deboeck v Commission [1975] ECR 1123, para. 38; T-132/89 Gallone v Council [1990] ECR II-549, para. 28;T-153/95 Kaps v Court of Justice [1996] ECR-SC II-663, para. 26

In the contested procedure, the selection board merely adopted the arithmetical average of the various marks awarded by the examiners, without in any way checking the appraisals made by the latter and without verifying whether the criteria for awarding marks had been complied with or whether those criteria had been applied uniformly, save where there was a difference of more than 50% between the results arrived at by the two examiners involved.

Since the difference in the marks awarded by the two examiners was less than 50% in the case of the applicant, it follows that his test papers were not read by any member of the selection board.

In those circumstances, the procedure adopted by the selection board was contrary to the third paragraph of Article 3 of Annex III to the Staff Regulations. The examiners involved were not serving in a purely ‘advisory’ capacity; instead, their conclusions determined the results obtained by candidates who, like the applicant, were awarded, by the two examiners correcting their papers, sets of marks which differed by less than 50%.

The principle requiring the selection board to retain ultimate control over the procedures and its discretionary power is a fortiori applicable in circumstances such as those of the present case, in which the examiners chosen had no previous experience of marking Community competitions and were themselves officials of the national institutions from which a significant number of the candidates came.

Operative part:

The decision of the Commission contained in the letter of Mr Liikanen of 18 September 1995, rejecting the applicant's request of 7 August 1995 for verification and for an investigation as to the proper conduct of the appraisal procedure and the results of competition COM/A/904 is annulled.

For the rest, the application is dismissed.