JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

21 May 1996

Case T-153/95

Raymond Kaps

v

Court of Justice of the European Communities

‛Officials — Competition — Selection board — Oral test — Decision by the selection board not to place a candidate on the reserve list — Scope of the obligation to state reasons — Scope of judicial review’

Full text in French II-663

Application for:

annulment of the decisions of the selection board in internal competition no CJ 51/93 awarding the applicant marks for his written and oral tests such that he could not be placed on the reserve list and, if necessary, annulment of the defendant's decision not to place the applicant on the reserve list following that competition and of the decision rejecting the applicant's complaint.

Decision:

Application dismissed.

Abstract of the Judgment

On 18 February 1994, the Court of Justice issued a ‘Notice of an internal competition on the basis of tests’, No CJ 51/93, to constitute a reserve list for the recruitment of grade B 5/B 4 administrative assistants. The conditions stated in the competition notice included a thorough knowledge of one of the official languages of the European Communities and a good knowledge of another. The notice stated that knowledge of other official languages of the European Communities would be taken into account in the oral test and candidates' linguistic knowledge would be assessed by the selection board at the interview. The applicant, an official in grade D 3, entered the competition, took the written tests and was admitted to the oral test.

By note of 19 December 1994 from the Head of the Personnel Division, the applicant was informed that he had not been placed on the reserve list. By note of 21 December 1994, he was informed of the marks he had been awarded in each of the competition tests. By memorandum of 15 March 1995, he submitted an application for a review by the selection board of the marks it had awarded him for some of the written tests and the oral test in the competition and, in the alternative, a complaint pursuant to Article 90(2) of the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’). By another memorandum of 15 March 1995, the applicant asked the appointing authority to grant him a ‘preliminary interview’ to address the complaints procedure.

By memorandum of 7 April 1995 to the Head of the Personnel Division, the selection board confirmed the marks it had awarded. On 27 April 1995, the Head of the Personnel Division passed that memorandum on to the applicant and explained that, in view of the alternative application he had submitted on 15 March 1995, that further application would be dealt with as a complaint. The complaint was rejected on 15 May 1995.

The applicant's case is based essentially on five pleas. The first is breach of the principle of equal treatment of candidates, in that - it was alleged - some of the written tests had been translated and typed and the members of the selection board conducting the oral test did not have an adequate command of all the languages offered by the candidates in that test. The second plea is breach of the competition notice, in that the selection board for the competition had misapplied the criterion of ability to think and marked linguistic knowledge incorrectly. The third plea is that there was a manifest error of assessment. The fourth alleges breach of the pre-litigation procedure. The fifth is breach of the obligation to state reasons (paragraph 19).

At the hearing, the applicant withdrew the first part of the first plea, relating to the written tests, and the first part of the second plea (paragraph 20).

The first plea: breach of the principle of equal treatment

The Court notes that the selection board consisted of members who had as their mother tongue the languages offered by the applicant at the oral test. The board was consequently quite capable of judging the applicant's linguistic knowledge for itself and he had no reason to complain of any breach of the principle of equal treatment as far as he was concerned (paragraph 25).

Selection boards may have recourse to the assistance of examiners whenever they consider this to be necessary. The procedure is deemed to have been correctly conducted if the marking methods are the same for all candidates and the final decision rests with the selection board (paragraph 26).

See: 40/86 Kolivas v Commission [1987] ECR 2643, para. 16; T-132/89 Gallone v Council [1990] ECR II-549, para. 28

The second plea: breach of the competition notice

Admissibility

The Court points out that the applicant was not really in a position to appraise the manner in which the tests had been marked or to develop his arguments on that point in detail until the defendant had answered the questions put by the Court. Consequently, the facts adduced in support of the second plea form part of the arguments concerning the conduct of the competition at issue and the conditions relating to the introduction of new pleas in the course of the proceedings, laid down in Article 48 of the Rules of Procedure, are met in this case (paragraph 35).

See: T-80/89, T-81/89, T-83/89, T-87/89, T-88/89, T-90/89, T-93/89, T-95/89, T-97/89, T-99/89, T-100/89, T-101/89, T-103/89, T-105/89, T-107/89 and T-l 12/89 BASF and Others v Commission [1995] ECR II-729, para. 66

Substance

In accordance with the conditions and requirements stated in the competition notice, selection boards must be accorded a wide power of appraisal regarding the arrangements for the conduct of a competition and the detailed content of the tests. The Community judicature cannot review the arrangements for the conduct of a test except to the extent necessary to ensure that the candidates were treated equally and that the choice from among them made by the selection board was objective. It is likewise not for the Community judicature to criticise the detailed content of a test unless that content goes beyond the limits laid down in the competition notice or is not consonant with the purposes of the test or the competition (paragraph 37).

See 64/86 71/86, 72/86. 73/86 and 78/86 Sergioand Others v Commission [1988] ECR 1399. para 22' 228/86 Coossens and Others v Commission [1988] ECR 1819, para. 14; T-132/89 Gallone v Council [1990] ECR II-549, para. 27; T-156/89 Valverde Mordi v Court of Justice [1991] ECR II-407, para. 121

A selection board's assessment of candidates' knowledge and ability is of a comparative nature and, together with its decision that a candidate has failed a test, it constitutes a value judgment on the candidate's performance in the test; such an assessment falls within the wide margin of discretion accorded to the board and the Community judicature has no jurisdiction to review it unless the rules which govern the proceedings of the selection board have clearly been infringed (paragraph 38).

See: 112/73,144/73 and 145/73 Campograndeand Others v Commission [1974] ECR 957, para. 53- T-17/90 T-28/91 T-17/92 Cámara Alloisio and Others v Commission [1993] ECR II-841, para. 90; T-46/93 Michaėl-Chiou v Commission [1994] ECRSC II-929, para. 48; T-291/94 Pimley-Smith v Commission [1995] ECRSC II-637, para. 63

In view of the wording of the competition notice, which stated that knowledge of other official languages of the European Communities would be taken into account in the oral test, the selection board was obliged to take into account the linguistic knowledge of the other candidates and the number of languages they knew, compared with the number of languages offered by the applicant, and the quality of his performance in the oral test compared with theirs. In so doing, the board operated within the legal framework laid down in the competition notice and ensured that candidates were accorded equal treatment and selected in an objective manner (paragraphs 39 and 40).

The third plea: manifest error of assessment

The selection board for a competition must base its decisions solely on objective criteria, not on a subjective assessment made by candidates as to their linguistic knowledge. This criterion is of particular importance when the competition notice states that there will be an oral test to assess candidates' linguistic knowledge objectively, on the basis of comparison. Neither a periodic report nor a language certificate constitute absolute proof of a given level of competence in a language. The selection board for a competition cannot therefore be bound by such documents in assessing the linguistic knowledge shown by candidates in the oral test of a competition (paragraphs 53 to 57).

See: 322/85 and 323/85 Hoyer and Others v Court of Auditors [1986] ECR 3215, paras 15 to 17

The fourth plea: breach of the pre-litigation procedure

It was only in his reply that the applicant put forward the plea alleging breach of the pre-litigation procedure. Moreover, this plea bears no relation to the other pleas stated in the application and does not contain any matter of fact or law that came to light in the course of the procedure. It must therefore be rejected as being out of time (paragraph 65).

See: C-330/88 Grifoni v EAEC [1991] ECR I-1045, para. 18; T-l6/91 Rendo and Others v Commission [1992] ECR II-2417, paras 130 and 131; T-39/93 and T-553/93 Baltsavias v Commission [1995] ECRSC II-695, para. 72

Fifth plea: breach of the obligation to state reasons

Admissibility

The Community judicature must of its own motion examine whether the defendant institution has fulfilled its obligation to state the reasons for any decision that is the subject of a complaint and, as that examination may take place at any stage of the proceedings, an applicant may not be time-barred from relying on such a plea merely because he did not raise it at an earlier stage (paragraph 75).

See: T-37/89 Hanning v Parliament \ 1990] ECR II-463, para. 38; T-l 15/89 Gonzalez Holguera v Parliament \ 1990] ECR II-831, para. 37; T-534/93 Grynberg and Hall v Commission [1994] ECRSC II-595, para. 59; T-12/94 Daffix v Commission [1995] ECRSC II-233, para. 31

Substance

As the selection board for a competition is independent, the institution concerned has no power to annul or amend any decision taken by the board. Nevertheless, in the exercise of its own powers, the appointing authority cannot be bound by a decision of the board which, if unlawful, would be liable as a consequence to vitiate its own decisions. It is therefore under an obligation to verify the legality of decisions taken by the selection board (paragraph 78).

See: 7/77 Von Wiillerstorff and Urbair v Commission [1978] ECR 769, para. 7; 34/80 Antidé v Commission [1981] ECR 665, para. 7; 144/82 Detti v Court of Justice [1983] ECR 2421, para. 16; 142/85 Schwiering v Court of Auditors [1986] ECR 3177, paras 19 to 21

The decision to reject the complaint, the sole ground for which was that the defendant's committee responsible for dealing with complaints had no power to alter the marks awarded by the selection board, is consistent with the limited powers enjoyed by the appointing authority according to the case-law cited above. Moreover, the applicant did not refer in his complaint to any procedural flaw in the conduct of the competition tests that was capable of being reviewed by the appointing authority. Lastly, in its decision to reject the applicant's complaint, the complaints committee referred him to the note from the selection board which presented a detailed review of the marks awarded to the applicant that largely met the requirement to state reasons which a candidate is entitled to expect from a selection board for a competition. In stating the reasons for its decision not to include a candidate on a list of suitable candidates following a competition, a selection board cannot be required to specify which of the candidate's answers were held to be inadequate or to explain why they were held to be so. This assessment is consistent with a well-established line of decisions pursuant to which notification of the marks obtained by a candidate in the various tests is deemed to constitute a sufficient statement of reasons for the value judgment made by the selection board (paragraphs 79 to 81).

See: Valverde Mordt v Court of Justice, cited above, paras 130 to 133; T-27/82 Camera-Lampitelliand Others v Commission [1993] ECR II-873, paras 51 and 52; Pimley-Smith v Commission, cited above, paras 64 and 65

Operative pari:

The application is dismissed.