JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

20 June 2012

Case F‑66/11

Alma Yael Cristina

v

European Commission

(Civil service — Open competition — Decision of the selection board not to admit the applicant to the assessment tests in a competition — Remedies — Proceedings brought without awaiting the decision on the administrative complaint — Admissibility — Specific conditions for admission to the competition — Required professional experience)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, seeking, first, annulment of the decision of the selection board in open competition EPSO/AST/111/10 not to allow the applicant to take part in the assessment tests for that competition, and, second, an order that the Commission compensate her for the harm she claims to have suffered as a result of that decision.

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

Summary

1. Officials — Actions — Decision of a competition selection board — Prior administrative complaint — Optional — Submission — Consequences — Retention of right to apply directly to the courts of the Union

(Staff Regulations, Arts 90 and 91)

2. Officials — Competitions — Competition based on qualifications and tests — Conditions for admission — Certificates produced or professional experience demonstrated — Selection board’s assessment — Judicial review — Limits

(Staff Regulations, Annex III, Arts 2, second para., and 5)

1. Where a candidate who has been eliminated challenges a decision of a selection board in a competition, there is no need for him to lodge a prior complaint against the decision he is challenging. Where such a candidate nevertheless contacts the appointing authority, such a step, whatever its legal significance may be, cannot have the effect of depriving him of his right to apply directly to the courts. Also, the admissibility of such an action before the courts cannot be subject to the condition that the pre-litigation procedure laid down in Article 91 of the Staff Regulations has been exhausted, since such a condition applies only to actions for which an administrative complaint is mandatory.

In that regard, compliance with the requirements of legal certainty cannot justify imposing, in a direct application to the courts, a condition of admissibility which is not required in the case of such an application, which would limit the right unsuccessful candidates enjoy to refer a decision of a selection board directly to the courts. As for observance of the principle of the sound administration of justice, the best way to comply with that principle is for the court to deal with the direct action before it, without taking account of the uncertainties of a complaint which is not before it.

(see paras 38, 40, 42, 50-51)

See:

30 November 1978, 4/78, 19/78 and 28/78 Salerno and Others v Commission, para. 10

20 June 1990, T‑133/89 Burban v Parliament, para. 17

2. It is for the selection board in a competition to assess in each case whether the professional experience of each candidate corresponds to the level required by the notice of competition. It enjoys a discretion, under the provisions of the Staff Regulations concerning competition procedures, in assessing the nature and duration of the previous experience of candidates and its relevance to the post to be filled. In its review of legality, therefore, the Union judicature must confine itself to ascertaining whether the exercise of that discretion was free from manifest errors.

In that regard, in order to ascertain whether the conditions of admission have been satisfied, the selection board is entitled to take account only of the information provided by candidates in their application and of the documents which they are required to produce in support, and it is not under any obligation to invite candidates to provide additional documentation, or to make enquiries itself in order to ascertain whether the person concerned fulfilled all the conditions in the competition notice. It is clear from the provisions of the second paragraph of Article 2 of Annex III to the Staff Regulations that those provisions merely enable a selection board to request additional information from candidates if it is in doubt as to the exact significance of a document submitted. There can be no question of transforming into an obligation that which the legislature viewed as a mere possibility open to the selection board in a competition.

(see paras 67-69, 80-81)

See:

21 November 2000, T‑214/99 Carrasco Benítez v Commission, paras 71 and 78; 25 March 2004, T‑145/02 Petrich v Commission, para. 37; 31 January 2006, T‑293/03 Giulietti v Commission, paras 65 and 66

1 July 2010, F‑40/09 Časta v Commission, paras 58 and 67 and the case‑law cited therein