JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

21 October 2004

Case T-49/03

Gunda Schumann

v

Commission of the European Communities

(Officials – Open competition – Preselection tests – Cancellation of a multiple-choice question – Principle of proportionality – Breach of the competition notice)

Full text in German II - 0000

Application: for annulment of the decision of the selection board in open competition COM/A/11/01 not to admit the applicant to the tests following the preselection tests.

Held: The application is dismissed as inadmissible in so far as it seeks annulment of the decision of 19 July 2002. The application is dismissed as unfounded in so far as it seeks annulment of the decision of 4 June 2002. The parties are to bear their own costs

Summary

1. Officials – Actions – Decision of a selection board in a competition – Prior administrative complaint – Optional – Lodging of complaint – Consequences – Compliance with the procedural requirements associated with complaints through official channels

(Staff Regulations, Arts 90 and 91)

2. Officials – Actions – Prior administrative complaint – Requirement that subject-matter and grounds be the same – Pleas in law and arguments not appearing in the complaint, but closely linked to it – Admissibility

(Staff Regulations, Arts 90 and 91)

3. Officials – Competitions – Competition based on qualifications and tests – Irregularities or errors occurring during the conduct of the tests in an open competition – Discretion of the selection board to rectify without holding further tests

4. Officials – Competitions – Competition based on qualifications and tests – Discretion of the selection board – Limits – Notice of competition

(Staff Regulations, Annex III, Art. 1(1))

1. The legal remedy open to persons concerned by a decision of a selection board normally lies in a direct application to the Community judicature. Although the submission of a complaint through official channels, whatever its legal significance, extends the period for bringing the matter before the Court, that does not mean that such persons may ignore the procedural constraints associated with the path which they have chosen.

(see para. 25)

See: 52/85 Rihoux v Commission [1986] ECR 1555, para. 9 et seq.

2. The rule that there must be harmony between a complaint and the action which follows, which applies to all applicants whether they be officials or aspire to become officials, requires that, for a plea to be admissible, it must have already been raised in the pre-litigation procedure, enabling the competent authority to know in sufficient detail the criticisms made by the person concerned of the contested decision, so as to allow the dispute to be settled amicably. However, whilst claims for relief before the Community judicature may contain only the same heads of claim, based on the same cause of action, as those raised in the complaint, those heads of claim may nevertheless be developed before the Community judicature by the presentation of pleas in law and arguments which, whilst not necessarily appearing in the complaint, are closely linked to it.

Since the pre-litigation procedure is informal in character and those concerned are generally acting without the assistance of a lawyer at that stage, the administration must not interpret the complaints restrictively but, on the contrary, must consider them with an open mind.

(see paras 37-39)

See: 133/88 Del Amo Martinez v Parliament [1989] ECR 689, para. 11; T-262/94 Baiwir v Commission [1996] ECR-SC I-A-257 and II-739, para. 41; T-174/02 Wieme v Commission [2003] ECR-SC I-A-241 and II-1165, para. 18, and the case-law cited therein

3. A wide discretion must be afforded to the selection board in a competition where it is confronted with irregularities or errors which have occurred in the course of an open competition involving a large number of candidates and which cannot, under the principles of proportionality and sound administration, be rectified by a repetition of the tests in the competition. Thus, where a selection board, faced with an error in one question out of 40 in a preselection test, cancels that question and apportions the points allocated for the marking of that question amongst the remaining questions, it is making lawful use of its powers and having recourse to a measure which is consistent with the principle of proportionality.

(see paras 53-55)

See: T-189/99 Gerochristos v Commission [2001] ECR-SC I-A-11 and II-53, para. 25; T-167/99 and T-174/99 Giulietti and Others v Commission [2001] ECR‑SC I-A-93 and II-441, para. 58

4. Although the selection board enjoys a wide discretion to determine the conditions governing a competition, the selection board is bound by the text of the notice of competition as published. The notice of competition forms both the legal basis and the basis of assessment for the selection board.

(see para. 63)

See: 67/81 Ruske v Commission [1982] ECR 661, para. 9; T-80/96 Fernandes Leite Mateus v Council [1997] ECR-SC I-A-87 and II-259, para. 27; T-24/01 Staelen v Parliament [2003] ECR-SC I-A-79 and II-423, para. 47