JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (First Chamber)

14 October 2008

Case F-74/07

Stefan Meierhofer

v

Commission of the European Communities

(Civil service – Open competition – Failure in oral test – Non‑inclusion on the reserve list – Obligation to state reasons – Observance of the secrecy of the selection board’s proceedings – Institution’s refusal to comply with a measure of organisation of procedure)

Application: brought under Articles 236 EC and 152 EA, in which Mr Meierhofer seeks in essence, firstly, annulment of the decision of 10 May 2007 of the selection board in competition EPSO/AD/26/05, organised by the European Communities Personnel Selection Office, informing him of his failure in the oral test of that competition, and of the decision of 19 June 2007 rejecting his request for a review of the decision of 10 May 2007, and, secondly, a re‑evaluation of that test and his inclusion on the reserve list.

Held: The decision of 19 June 2007 of the selection board in competition EPSO/AD/26/05 is annulled. The remainder of the action is dismissed. The Commission is to bear its own costs and to pay the applicant’s costs.

Summary

Officials – Competitions – Selection board – Rejection of application – Obligation to state reasons – Scope

(Staff Regulations, Art. 25, second para.; Annex III, Art. 6)

Even though the outcome of reconciling the obligation to state reasons and observance of the principle of the secrecy of the selection board’s proceedings, in particular as to whether the communication of a single eliminatory individual mark to the candidate eliminated in the oral phase satisfies that obligation, is more often than not in favour of the principle of the secrecy of the selection board’s proceedings, the position may be otherwise when special circumstances exist, such as the fact that the candidate only narrowly failed the test, or that there existed intermediate marks which served in calculating the eliminatory mark, or, lastly, that it does not appear that communication of more detailed information than the individual eliminatory mark, without revealing the individual assessments of the members of the selection board or the numbers of marks awarded by each of them, could either represent a significant extra burden of work for the institution, given the technological means now available, or prove delicate.

Such communication, on the other hand, constitutes more than merely the initial elements of a statement of reasons which is susceptible of being supplemented by further information provided during the proceedings.

Although the Tribunal is indeed precluded from substituting its assessment for that of the members of the selection board, it must be in a position to ascertain, having regard to the obligation to state reasons, that they marked the applicant's performance on the basis of the assessment criteria set out in the notice of competition and that no errors occurred in the calculation of the mark; similarly, it must be in a position to carry out a limited review of the relationship between the assessments made by the members of the selection board and the numbers of marks awarded by them. For that purpose, it needs to order whatever measures of organisation of procedure seem appropriate to it, in the light of the particular circumstances, making it clear where appropriate to the defendant institution that the replies would be passed on to the person concerned only to the extent that this would be compatible with the principle of the secrecy of the selection board’s proceedings. Where the defendant institution refuses to produce, even to the Tribunal alone, the items of information requested by way of measures of organisation of procedure, it infringes its obligation to state reasons and does not allow the Tribunal to exercise properly its power of judicial review.

(see paras 40, 42-44, 46, 49-54)

See:

40/86 Kolivas v Commission [1987] ECR 2643, para. 11

F-73/06 Van Neyghem v Commission [2007] ECR-SC I-A-0000, paras 72, 79 and 80, currently the subject of an appeal pending before the Court of First Instance, Case T‑105/08 P; F-127/07 Coto Moreno v Commission [2008] ECR-SC I‑A‑0000, paras 34 and 36

JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (First Chamber)

14 October 2008 ( )

(Civil service – Open competition – Failure in oral test – Non‑inclusion on the reserve list – Obligation to state reasons – Observance of the secrecy of the selection board’s proceedings – Institution’s refusal to comply with a measure of organisation of procedure)

In Case F‑74/07,

ACTION under Article 236 EC and Article 152 EA,

Stefan Meierhofer, residing in Munich (Germany), represented by H.‑G. Schiessl, lawyer,

applicant,

v

Commission of the European Communities, represented by B. Eggers and K. Herrmann, acting as Agents,

defendant,

THE TRIBUNAL (First Chamber),

composed of H. Kreppel, President, H. Tagaras (Rapporteur) and S. Gervasoni, Judges,

Registrar: R. Schiano, Administrator,

having regard to the written procedure and further to the hearing on 23 April 2008,

gives the following

Judgment

1 By application received by fax at the Tribunal Registry on 3 July 2007 (the original being lodged on 5 July 2007), Mr Meierhofer seeks in essence, firstly, annulment of the decision of 10 May 2007 of the selection board in competition EPSO/AD/26/05, organised by the European Communities Personnel Selection Office (EPSO), informing him of his failure in the oral test of that competition, and of the decision of 19 June 2007 not granting his request for review submitted against the decision of 10 May 2007, and, secondly, a re‑evaluation of that test and his inclusion on the reserve list.

Legal context

General Community law and relevant provisions of the Staff Regulations

2 Article 253 EC provides:

‘Regulations, directives and decisions adopted jointly by the European Parliament and the Council [of the European Union], and such acts adopted by the Council or the Commission [of the European Communities], shall state the reasons on which they are based and shall refer to any proposals or opinions which were required to be obtained pursuant to this Treaty.’

3 The second paragraph of Article 25 of the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’) is worded as follows:

‘Any decision relating to a specific individual which is taken under these Staff Regulations shall at once be communicated in writing to the official concerned. Any decision adversely affecting an official shall state the grounds on which it is based.’

4 Article 6 of Annex III to the Staff Regulations reads as follows:

‘The proceedings of the Selection Board shall be secret.’

Notice of competition

5 On 20 July 2005, the EPSO published in the Official Journal of the European Union a notice of open competition ‘EPSO/AD/26/05: Law’ (OJ 2005 C 178 A, p. 3).

6 Firstly, in section ‘A. Duties and eligibility (profile sought)’, that notice of competition specifies, at point ‘I. Duties’, ‘[c]onducting analyses and carrying out administrative, advisory and supervisory duties relating to the activities of the European Union’; as to the subsection relating to law, it is worded as follows:

‘EPSO/AD/26/05: Law

– Devising, analysing and drafting Community legislation,

– providing legal advice,

– carrying out research into national, Community and international law,

– taking part in the negotiation of international agreements,

– analysing and preparing draft decisions, for example in the area of competition law,

– examining and monitoring national legislation to check that it complies with Community law,

– investigating alleged infringements of Community law, complaints, etc.,

– various tasks related to court proceedings; preparing positions for the institutions in court proceedings, mainly before the Court of Justice of the European Communities or the Court of First Instance of the European Communities; legal duties in the secretariats of the Court of Justice or the Court of First Instance,

– formulating, preparing and implementing rules in the field of justice and home affairs.’

7 Secondly, in section ‘B. Successive stages of the competition’, that notice contains the following rules concerning the oral test and inclusion on the reserve list:

‘3. Oral test — Marking

(e) Interview with the selection board in your main language to enable it to assess your suitability to carry out the duties described at section A.I above. This interview will focus in particular on your specialist knowledge in the field chosen and your knowledge of the European Union, its institutions and its policies. Knowledge of your second language will also be tested. The interview is also designed to evaluate your ability to adjust to working as a European civil servant in a multicultural environment.

This test will be marked out of 50 (pass-mark: 25).

…

5. Reserve list

The selection board will draw up reserve lists by competition, divided into (no more than four) merit groups sorted in alphabetical order, of the candidates … (see section A, number of successful candidates) having obtained the best marks in written test (d) and oral test (e) combined and who have obtained the pass-mark in each of these tests.

…’

Facts

8 The applicant, who is of German nationality, took part in competition EPSO/AD/26/05. After passing the pre‑selection tests and the written tests, he took part in the oral test on 29 March 2007.

9 By letter of 10 May 2007, the chairman of the selection board in competition EPSO/AD/26/05 informed the applicant that he had obtained 24.5 marks in the oral test, thus not reaching the pass‑mark of 25 out of 50, and that he could not be included on the reserve list.

10 By letter of 11 May 2007, the applicant submitted a request for review of the abovementioned decision of 10 May 2007, taking the view, with reference to the report which he himself had drawn up following the oral test and which is annexed to the application, that he had answered correctly at least 80% of the questions during that test. The applicant thus called for a review of the marking of his oral test and, in the alternative, for an explanation of the marks which he had obtained for each of the questions put during that test.

11 By letter of 19 June 2007, the chairman of the selection board in competition EPSO/AD/26/05 informed the applicant that, after reviewing his candidature, the selection board had not found any reason to change his results. In that letter, it was also made clear to the applicant, firstly, that, as regards his specialist knowledge, the number of unsatisfactory answers had exceeded the number of satisfactory answers, secondly, that the oral test had been conducted in accordance with the criteria specified in the notice of competition and, thirdly, that, having regard to the secrecy of the proceedings of the selection board required by Article 6 of Annex III to the Staff Regulations, it was not possible to provide candidates with either the marking grid or the breakdown of their marks for the oral test.

Forms of order sought and procedure

12 The applicant claims that the Tribunal should:

– annul of the decision of 10 May 2007 of the selection board in competition EPSO/AD/26/05;

– annul the decision of 19 June 2007 of the selection board in competition EPSO/AD/26/05 not granting his request for review submitted on 11 May 2007;

– order the Commission to reassess, in the light of the relevant assessment criteria, the oral test taken on 29 March 2007;

– order the Commission to take a new decision on the applicant’s inclusion on the reserve list in Community personnel selection procedure EPSO/AD/26/05 in the light of the new result of the test;

– order the Commission to give reasons for the decisions to be taken by reason of the third and fourth indents above;

– order the Commission to pay the costs.

13 The Commission contends that the Tribunal should:

– dismiss the action;

– order each party to bear its own costs.

14 By way of measures of organisation of procedure prescribed pursuant to Article 55 of the Rules of Procedure, the Tribunal called on the Commission, in the preparatory report for the hearing sent to the parties, to lodge, prior to the hearing:

(a) the marking grid and the breakdown of the applicant’s marks for the oral test, as referred to in the decision of 19 June 2007 not granting his request for review,

(b) any other information relating to the assessment of the quality of the applicant’s performance in the oral test,

(c) a list of the marks, without names, obtained by the other candidates who received an eliminatory mark in the oral test,

(d) the calculations which led to the precise result of 24.5 out of 50 for the applicant’s marking in the oral test.

15 That same preparatory report for the hearing, after calling on the parties to concentrate their argument on the plea in law alleging breach of the obligation to state reasons, stated, firstly, that the purpose of the measures prescribed was ‘to maximise the effectiveness of the proceedings on that plea in law (and on the plea in law alleging manifest infringement of the relevant assessment criteria, a plea in law connected in essence with that concerning the statement of reasons), secondly, that the communication to the applicant of the items listed under points (a) to (d) of that preparatory report would take place in so far as such communication could be reconciled with the principle of secrecy of the selection board’s proceedings and/or after omission, where appropriate, of certain particulars whose disclosure would conflict with that principle.

16 In response to those measures of organisation of procedure, by letter received by fax at the Tribunal Registry on 18 February 2008 (the original being lodged on 19 February 2008), the Commission sent to the Tribunal, as called for in point (c) of the preparatory report for the hearing, a table, without names, of the eliminatory marks of the candidates who had failed the oral test. However, the Commission refused to comply with the measures of organisation indicated under points (a), (b) and (d) of that report, contending in essence that, in the absence of proof of infringement of the rules governing the proceedings of the selection board, the plea in law concerning the statement of reasons alone did not justify, having regard to the secrecy of the proceedings of the selection board, the production of the other information and documents requested by the Tribunal. The Commission also pointed out that it was not obliged to produce such information and documents, whether the Tribunal asks for them by way of measures of organisation of procedure, as in this case, or even by way of measures of inquiry.

17 The applicant lodged at the Tribunal Registry, on 20 March 2008, observations, dated 17 March 2008, on the measures of organisation of procedure addressed to the Commission, and inter alia on the latter’s refusal to comply with all of the Tribunal’s requests.

18 On 19 May 2008, the Commission lodged at the Tribunal Registry observations in response to the applicant’s aforementioned observations.

Subject‑matter of the action

19 The applicant seeks, inter alia, annulment of the decision of 10 May 2007 informing him of his failure in the oral test of the competition, and annulment of the decision of 19 June 2007 not granting his request for review. In this regard, it must be recalled that, according to the case‑law, where a candidate in a competition seeks review of a decision taken by a selection board, it is the decision taken by the latter after the review of the candidate’s situation that constitutes the act adversely affecting him (order in Joined Cases T‑95/00 and T‑96/00 Zaur-GoraandDubigh v Commission [2001] ECR‑SC I‑A‑79 and II‑379, paragraphs 24 to 27; judgments in Case T‑386/00 Gonçalves v Parliament [2002] ECR‑SC I‑A‑13 and II‑55, paragraph 39; Case T‑294/03 Gibault v Commission [2005] ECR‑SC I‑A‑141 and II‑635, paragraph 22; Case T‑173/05 Heus v Commission [2006] ECR‑SC II‑A‑2‑1695, paragraph 19; and Case T‑100/04 Giannini v Commission [2008] ECR‑SC I‑0000 and II‑0000, against which an appeal is pending before the Court of Justice, Case C‑231/08 P, paragraph 30). Consequently, the decision of 19 June 2007, adopted following the request for review submitted by the applicant on 11 May 2007, replaced the selection board’s original decision of 10 May 2007 and therefore constitutes the act adversely affecting him.

20 The action must therefore be held to be directed solely against the decision of 19 June 2007 of the selection board in competition EPSO/AD/26/05.

Law

Arguments of the parties

21 In support of his action, the applicant puts forward three pleas in law.

22 Firstly, the Commission failed to fulfil its obligation to state the reasons on which the decision of 10 May 2007 was based (see paragraph 9 of this judgment), as laid down in Article 253 EC, since the ‘duty of discretion’ referred to in Article 6 of Annex III to the Staff Regulations applies only vis‑à‑vis third parties, and not vis‑à‑vis the candidate himself. In the Commission’s view, so far as a candidate’s access to the selection board’s proceedings is concerned, it is settled case‑law that Article 6 of Annex III to the Staff Regulations contains a special provision prohibiting disclosure of the attitudes of the selection board and disclosure of any factors relating to individual or comparative assessments of candidates; that being so, by communicating to the applicant his mark obtained in the oral test, the Commission fulfilled its obligation to state reasons.

23 Secondly, the applicant alleges a procedural defect relating to the fact that the chairman of the selection board, Mr Singer, by not using the headphones making it possible to follow the simultaneous translation in French of the oral test, did not understand the answers given in German by the applicant. The Commission submits that this plea is unfounded, inasmuch as, in addition to the fact that Mr Singer has a perfect command of German and the members of the selection board are not obliged to make use of the simultaneous interpretation, it is clear, firstly, that the applicant did not suffer any inequality of treatment, since Mr Singer did not use the simultaneous interpretation for any of the 94 other candidates in the oral test who answered in German, and, secondly, that, in any event, that cannot be regarded as a procedural irregularity.

24 Finally, the applicant claims that, in the light of the many full and indisputably correct answers which he gave in the oral test, a performance marking below 50% constitutes a manifest infringement of the rules governing the proceedings of the selection board in the competition and of the relevant assessment criteria and can arise only from such an infringement. The Commission contends that there is no manifest error of assessment in so far as a selection board in a competition enjoys a wide discretion, which is widened even further during the oral tests of a competition, in that the selection board may take account not only of candidates’ answers but also of their experience and personality.

25 In response to the measures of organisation of procedure prescribed by the Tribunal in the preparatory report for the hearing, on 7 February 2008, the Commission, in order to justify its refusal to communicate certain information asked for by the Tribunal (see paragraph 16 of this judgment), maintains, in particular, that the applicant has not demonstrated any infringement of the rules which governed the proceedings of the selection board and that the latter’s decision is therefore, according to settled case‑law, outside the scope of judicial review. The Commission acknowledges that, in Case T‑53/00 Angioli v Commission [2003] ECR‑SC I‑A‑13 and II‑73, it provided the person concerned with a ‘breakdown of the marks which she had obtained in the oral test’, but argues that this was an ‘absolute exception’ and that, in accordance with the settled case‑law on the secrecy of the proceedings of selection boards, an alleged breach of the obligation to state reasons does not in this case justify production of the applicant’s ‘evaluation sheets’ which contain a marking grid, the various marks awarded during the oral test and the assessment made by the members of the selection board. It submits that, in the absence of any evidence which would call into question the validity of the contested act, the latter benefits from the presumption of validity which Community measures enjoy and it is not for the Tribunal to seek the information asked for.

26 In his observations on the Commission’s refusal to communicate certain information asked for by way of measures of organisation of procedure, the applicant, relying on Article 27 of the Staff Regulations, reasserted that there was a manifest infringement of the rules relevant to the work of the selection board in the competition, in so far as, inter alia, the selection board did not state the reasons on which its decision was based; since that manifest infringement of those rules is demonstrated in this case, the applicant should exceptionally benefit from a relaxation of the burden of proof, on account of his inability, through no fault of his own, to produce such proof. In addition, the applicant complains, in the light of Angioli v Commission, that the Commission infringed the principle of equal treatment.

27 In response to the observations outlined in the previous paragraph, the Commission contends that, in accordance with the case‑law, subsequent judicial review of an oral test is, by its very nature, impossible and that it is sufficient, therefore, in order to satisfy the obligation to state reasons, to communicate only an overall mark. It then insists that there was no manifest infringement of the rules governing the proceedings of the selection board, in the light, firstly, of the correct assessment by the members of the selection board of the applicant’s performance in his examination, secondly, of its compliance with the obligation to state reasons and, thirdly, of its compliance with the principle of equal treatment; it adds, moreover, that the applicant has failed to adduce sufficient evidence of any manifest infringement of such rules.

Findings of the Tribunal

28 It must be noted as a preliminary point that, in support of his action, the applicant puts forward three pleas in law, alleging breach of the obligation to state reasons, the existence of a procedural defect and the existence of a manifest error of assessment. Since the Commission, in its defence, set out certain considerations relating to the principle of equal treatment, the applicant, in his further submissions of 17 March 2008, put forward arguments concerning an alleged breach of that principle, arguments to which the Commission replied in its observations of 19 May 2008. Given that such complaints were not raised by the applicant in his application, the Tribunal is obliged to hold that they are inadmissible and that there is no call to entertain them.

29 Among the three pleas in law raised by the applicant in his application, it is appropriate to examine, in the first place, that alleging breach of the obligation to state reasons.

30 In this regard, it must be stated at the outset that it is clear from Article 253 EC and from the second paragraph of Article 25 of the Staff Regulations that any decision relating to a specific individual which is taken under the Staff Regulations and adversely affects that person must state the reasons on which it is based. According to settled case‑law, the obligation to state reasons constitutes both a fundamental principle of Community law and an essential procedural requirement for acts of the institutions and is intended, on the one hand, to enable the competent court to review the legality of the decision and, on the other, to provide the person concerned with the information necessary to allow him to ascertain whether or not the decision is well founded and to enable him to decide whether to bring an action (see, to that effect, Case, C-310/99 Italy v Commission [2002] ECR I‑2289, paragraph 48; Case C‑113/00 Spain v Commission [2002] ECR I‑7601, paragraph 47; Case T‑1/90 Pérez- Mínguez Casariego v Commission [1991] ECR II‑143, paragraph 73; Case T‑583/93 P v Commission [1995] ECR‑SC I‑A‑137 and II‑433, paragraph 24; and Case T-280/94 Lopes v Court of Justice [1996] ECR‑SC I‑A‑77 and II‑239, paragraph 148).

31 However, as far as concerns decisions taken by a selection board in a competition, the Court has made clear that the obligation to state reasons must be reconciled with observance of the secrecy surrounding the proceedings of selection boards by virtue of Article 6 of Annex III to the Staff Regulations, secrecy which was instituted with a view to guaranteeing the independence of selection boards and the objectivity of their proceedings, by protecting them from all external interference and pressures, whether these come from the Community administration itself or the candidates concerned or third parties; it has, in particular, been held that observance of this secrecy precludes both disclosure of the attitudes adopted by individual members of selection boards and disclosure of any factors relating to individual or comparative assessments of candidates and that the obligation to state the reasons on which decisions of a selection board in a competition are based must take account of the nature of the proceedings concerned, which, at the stage of examination of the abilities of the candidates, are primarily comparative in character and accordingly covered by the secrecy inherent in those proceedings (see, to that effect, Case C‑254/95 P Parliament v Innamorati [1996] ECR I‑3423, paragraphs 24 to 28).

32 On the basis of those considerations, it has consistently been held that ‘communication of the marks obtained in the various tests’ constitutes an adequate statement of the reasons on which the selection board’s decisions are based (Parliament v Innamorati, paragraph 31; Case T‑153/95 Kaps v Court of Justice [1996] ECR‑SC I‑A‑233 and II‑663, paragraph 81; Joined Cases T‑167/99 and T‑174/99 Giulietti and Others v Commission [2001] ECR‑SC I‑A‑93 and II‑441, paragraph 81; Angioli v Commission paragraph 69, and Gibault v Commission, paragraph 39).

33 That conclusion is particularly valid where the marking of the written phase or the oral phase of the competition consists of several individual marks, corresponding to the various tests in the phase in question; the same is true where the intermediate marks, corresponding to the various assessment criteria for each of the written or oral tests, are communicated to the person concerned. In such cases, the communication to the eliminated candidates of the individual or intermediate marks entails informing them not only of their elimination from the next stage of the selection procedure, but also of the reasons for their failure, by providing them with particulars of the subjects or criteria in relation to which the selection board did not consider their performance satisfactory.

34 The case‑law mentioned in paragraphs 31 and 32 of this judgment does not, at least directly, make any distinction between the communication of several individual or intermediate marks and the communication of only a single eliminatory mark. Nevertheless, it cannot follow from this that communication to the candidate of only a single individual eliminatory mark always constitutes a sufficient statement of reasons, irrespective of the particular circumstances of the case in question.

35 Firstly, there is nothing in the wording or context of the case‑law set out in paragraphs 31 and 32 of this judgment which would give grounds for construing the reference to ‘marks obtained in the various tests’ as referring only to the individual eliminatory marks as opposed to the other existing marks, including the intermediate marks, in particular, so far as concerns the latter, where the written phase or – as in this case – the oral phase consists of only a single test and, therefore, of a single individual mark. The Tribunal notes in this regard the general language used by the case‑law in question, and the fact that, in Parliament v Innamorati, in which the case‑law cited in paragraph 32 has its origins, the complaint relating to the obligation to state reasons did not concern the defendant institution’s refusal to provide the applicant with several individual or intermediate marks, but its refusal to notify the applicant of the selection board’s criteria and of the reasons for the decision contested in that case (see Parliament v Innamorati, paragraph 22); that is equally true of the judgments which concerned, as in the present case, the elimination of the applicants in the oral phase, such as, for example, Angioli v Commission, paragraphs 56 to 65, and Gibault v Commission, paragraphs 33 to 35.

36 In addition, in a recent case concerning – like this one – the failure of a candidate in the oral phase of a competition, it was held that the obligation to state reasons may entail informing a candidate, at the latter's request, of the intermediate marks and the method used by the selection board to determine the individual mark in one of the oral tests and that if that statement of reasons is not provided at the request of an unsuccessful candidate, it is for the Community judicature to seek further particulars through measures of organisation of procedure (Case T‑277/02 Pascall v Council [2004] ECR‑SC I‑A‑137 and II‑621); in that case, such measures were in fact prescribed by the Court of First Instance and the defendant complied, as a result of which the plea in law alleging breach of the obligation to state reasons became devoid of object (see Pascall v Council, paragraphs 28 to 31).

37 The Tribunal further observes that the Commission itself has previously agreed to communicate intermediate marks to candidates, inter alia in two cases concerning the failure of candidates in the oral phase, which comprised only a single oral test. In the first case, regarding a competition, the Commission sent to the person concerned, at her request, the breakdown of the various intermediate marks in the oral test, criterion by criterion (see Angioli v Commission, paragraph 79). In the second case, regarding a recruitment procedure, the Commission forwarded, at the request of the Court of First Instance, the assessments of the oral selection test, criterion by criterion, represented by a scale ranging from ‘- -’ to ‘+ +’ (see Case C‑17/07 P Neirinck v Commission [2008] ECR I‑0000, paragraph 56). Thus, contrary to what the Commission asserted, with reference to Angioli v Commission, in its response to the measures of organisation of procedure, the communication of additional information and, in particular, of the marks obtained for each of the assessment criteria was not an ‘absolute exception, in only one particular instance’, but has taken place on a number of occasions, on account of the circumstances of the case in point.

38 Secondly, as regards requests relating to items of information other than marks as such, namely the criteria or the reasons for an eliminatory mark or other particulars relating to the marking of the candidate concerned, it is clear that, notwithstanding the statement that the communication of individual marks satisfies the obligation to give reasons, the Community judicature, as shown by the actual wording of the judgments setting out that statement (see paragraph 32 of this judgment), including Parliament v Innamorati and, inter alia, the judgments concerning the oral phase, such as, for example, Angioli v Commission (paragraphs 71 to 85), and Gibault v Commission (paragraph 42), does not merely apply the abovementioned case‑law automatically, but examines each case in point, taking account of the particular context of the case and of the claims of the candidates concerned

39 The considerations set out in paragraphs 35 to 37 and in the previous paragraph are borne out by the existing case‑law concerning failure to pass the written phase of a competition, according to which the candidate receives in practice a sufficiently full explanation of his failure by obtaining not only the various individual marks, but also the reasons for the eliminatory individual mark which led to his exclusion from the rest of the competition, and other information. It has been held that ‘unsuccessful candidates may, where appropriate, obtain from the institution which organised the competition in question their marked scripts and/or the general marking criteria drawn up by the selection board, and may do so, as in this case, by means of the disclosure of documents during court proceedings between that institution and those candidates or pursuant to a practice adopted by that institution for the purpose of ensuring the transparency of recruitment procedures while observing the rule that the proceedings of the selection board in a competition are to be secret, laid down in Article 6 of Annex III to the Staff Regulations’ (see Case T‑72/01 Pyres v Commission [2003] ECR‑SC I‑A‑169 and II‑861, paragraph 70, and Case T‑233/02 Alexandratos and Panagiotou v Council [2003] ECR‑SC I‑A‑201 and II‑989, paragraph 31). It is in fact apparent that, on several occasions, the institutions have handed over, either directly to an applicant or to the Community judicature at its request, the marked written paper and/or an evaluation sheet containing an assessment of the paper (see Case T‑371/03 Le Voci v Council [2005] ECR‑SC I‑A‑209 and II‑957, paragraphs 115 to 117; Case F‑73/06 Van Neyghem v Commission [2007] ECR‑SC I‑A‑0000 and II‑0000, against which an appeal is pending before the Court of First Instance; Case T‑105/08 P, paragraphs 72, 79 and 80, and Case F‑147/06 Dragoman v Commission [2008] ECR‑SC I‑A‑0000 and II‑0000, paragraphs 21, 82 and 83). While the examiners marking the written tests, in contrast to the members of the selection board sitting in the oral phase, may admittedly not be known to the persons concerned (and are thereby protected from interference and pressures to which the case‑law cited in paragraph 31 of this judgment refers), the Tribunal takes the view that that circumstance does not objectively justify the existence of significant differences between the requirements concerning the statement of reasons in the case of failure in the written phase, as those requirements are formulated in the case‑law cited in this paragraph, and those advocated by the Commission in the case of failure in the oral test, which, in particular in the instant case, would consist in giving the applicant only his eliminatory individual mark, despite the circumstances described in paragraphs 42 to 47 of this judgment.

40 Consequently, even though the outcome of reconciling the obligation to state reasons and observance of the principle of the secrecy of the selection board’s proceedings, in particular as to whether the communication of a single eliminatory individual mark to the candidate eliminated in the oral phase satisfies that obligation, is more often than not in favour of the principle of the secrecy of the selection board’s proceedings, it has to be recognised that the position may be otherwise when special circumstances exist. Such a conclusion does not in any way run counter to the principle of observance of the secrecy of the selection board’s proceedings, laid down in Article 6 of Annex III to the Staff Regulations, and is, moreover, in line with the recent development of Community case‑law in favour of openness (see, to that effect, Case C‑64/05 P Sweden v Commission [2007] ECR I‑11389; Joined Cases C-39/05 P and C-52/05 P Sweden and Turco v Council [2008] ECR I‑0000; Case T‑194/04 Bavarian Lager v Commission [2007] ECR II‑4523, against which an appeal is pending before the Court of Justice, Case C‑28/08 P).

41 The Tribunal considers that special circumstances as referred to in the previous paragraph are present in the instant case.

42 Firstly, from a reading of the decision of 10 May 2007 (see paragraph 9 of this judgment), it is evident that the applicant only narrowly failed the oral phase. That being so, it is reasonable for the person concerned to request further information, even if only to satisfy himself that his mark is not the result of an error or to be informed of any rounding up or down to which it has been subject.

43 Secondly, it is also common ground that the applicant received only a single individual mark for the oral phase, which, in contrast to the cases mentioned in paragraph 33 of this judgment, does not enable him to obtain the particulars, set out in that paragraph, which he needs in order to understand the reasons for his failure in that phase of the competition, particularly since, as has just been recalled, he failed only narrowly.

44 Thirdly, it is likewise established that there existed in this case intermediate marks which served in calculating the applicant’s individual eliminatory mark. That is clearly indicated in the reply to his request for review and was confirmed by the Commission’s representative at the hearing.

45 In the fourth place, although the Commission’s representative maintained at the hearing that all the assessment criteria set forth in notice of competition EPSO/AD/26/05 had indeed been the subject of a marking and had been taken into account in calculating the candidates’ individual marks, it must be observed, firstly, that, according to her own statement, she herself had not seen the evaluation sheets (see paragraph 25 of this judgment) and was merely conveying to the Tribunal the information she had received from the EPSO; secondly, and most importantly, that, when questioned on this point by the Tribunal, she conceded that she did not know whether all those assessment criteria had the same weighting or whether account had been taken of other factors, not provided for by the notice of that competition. In particular, when questioned repeatedly as to whether the mark of 24.5 out of 50 was the result of the mathematical sum of each of the intermediate marks corresponding to the assessment criteria laid down in the notice of the competition, the Commission’s representative, while replying in the affirmative to that question, nevertheless qualified her position in such a way as not to exclude the possibility that other factors or considerations may have been taken into account in awarding the applicant that eliminatory mark. However, although the ‘criteria for marking’ mentioned in paragraph 29 of the judgment in Parliament v Innamorati are intended to provide the examiners marking the written tests – who are normally more numerous than the members of the selection board sitting in the oral phase – with common rules for assessing and marking the written tests and are covered by secrecy, the same does not apply to the assessment criteria referred to in this case, which are laid down in section B.3 of the notice of competition EPSO/AD/26/05, are accessible to the public and are binding on the members of the selection board. It follows that, in the particular circumstances described above, the communication of the individual eliminatory mark alone does not enable either the applicant to satisfy himself or the Tribunal to satisfy itself that the decisions of 10 May 2007 and 19 June 2007 are not vitiated by errors in relation to the evaluation criteria to be taken into account in calculating the individual mark, criteria which focused, in the present case, on assessment, firstly, of candidates’ specialist knowledge ‘in the field chosen’ and their knowledge of the European Union, its institutions and its policies, secondly, of their knowledge of a second language, and, finally, of their ability to adjust to working as a European civil servant in a multicultural environment.

46 In the fifth place, it does not appear that communication to the applicant of more detailed information than his individual eliminatory mark could either represent a significant extra burden of work for the Commission, given the technological means now available, or prove delicate. While it is true that, during the hearing, the Commission’s representative raised those two questions, the Tribunal must point out that she did so only in general terms, without adverting to any problems faced in the specific case, in particular without invoking any large numbers of other candidates demanding a more detailed statement of reasons for their individual eliminatory mark and without indicating in what respect communication to the applicant of more detailed information, while not revealing the individual assessments of the members of the selection board or the numbers of marks awarded by each of them, could lead to sensitive situations. At the very most, during the hearing, she continued to contend in general terms that the refusal to communicate such information was based, among other things, on the difficulty of finding people prepared to volunteer to be members of selection boards and on the ‘flood of objections’ from candidates in competitions, to which the communication of such information would be likely to give rise.

47 In the sixth place, in its decision of 19 June 2007 not granting the request for review, the selection board, referring to the applicant’s ‘specialist knowledge’, stated that the number of his unsatisfactory answers had exceeded the number of satisfactory answers, whereas, in the replies to the measures of organisation of procedure, then during the hearing, the defendant indicated that the principal shortcoming in the applicant’s answers in the oral test was their generally rather imprecise and unclear nature. In addition, as regards the latter criticism, the Commission has not mentioned whether it applied to all of the assessment criteria laid down in the notice of competition or only to the criterion relating to specialist knowledge. The Tribunal therefore finds certain gaps and ambiguities in the Commission’s statements, which the simple communication of the applicant’s evaluation sheets and/or his intermediate marks could have remedied.

48 As a secondary point, the Tribunal observes that the applicant annexed to his application a three‑page report on his oral test of 29 March 2007. While it is well established that it is not for the Tribunal to call in question the assessments made by the members of the selection board on the basis of such a document, to which, moreover, no value can be attached as regards the merits of the case, the fact nevertheless remains that the applicant does not found his objections, which are directed at the results of the oral test, on confused and vague considerations, put forward in an imprecise and disorganised manner, but on a clear and explicit report reflecting the questions which were put to him and reproducing the answers which he gave.

49 In consequence, although the communication to the applicant of the individual eliminatory mark, of 24.5 out of 50, which he received in the oral test constitutes more than merely the initial elements of a statement of reasons which, according to the case‑law (see Case T‑71/96 Berlingieri Vinzek v Commission [1997] ECR‑SC I‑A‑339 and II‑921, paragraph 79), was susceptible of being supplemented by further information provided during the proceedings, that mark alone must, on the other hand, be taken as not being sufficient, in the particular circumstances, to satisfy fully the obligation to state reasons; it follows that the Commission’s refusal to provide any further information constitutes breach of that obligation.

50 It is not for the Tribunal to determine the items of information which the Commission must communicate to the person concerned in order to satisfy its obligation to state reasons, notably where, as in the present case, the Commission refuses to comply with the measures of organisation prescribed by the Tribunal and where, consequently, the Tribunal finds itself unable to acquaint itself with the content of the applicant’s evaluation sheets or other material relating to the conduct of his oral test and, in particular, the process of awarding his mark.

51 The Tribunal observes, however, that, in any event, and in particular in this case, certain additional particulars could have been communicated to the applicant, as in Pascall v Council, without prejudicing the secrecy surrounding the proceedings of the selection board, as circumscribed by the case‑law (see paragraph 31 of this judgment), and notably, as required by the judgment in Parliament v Innamorati, without disclosing either the attitudes adopted by individual members of the selection board or any factors relating to individual or comparative assessments of candidates (see Pascall v Council, paragraph 28). The Tribunal has in mind, in particular, the intermediate marks for each of the assessment criteria laid down in the notice of competition; the same could have applied to the evaluation sheets, which could have been sent to him with any items of information covered by the secrecy of the selection board’s proceedings blacked out. The Commission’s refusal to communicate, even to the Tribunal alone, those items of information meant that the Tribunal could not exercise properly its power of judicial review. Notwithstanding the fact that the Commission expressed the view, at the hearing, that communication of the breakdown of the marks by criterion ‘would not contribute much’, then, in its observations of 19 May 2008 on the applicant’s further submissions of 17 March 2008, that the documents requested by the Tribunal, namely the evaluation sheets, were ‘irrelevant’, such an assessment as to whether or not the plea in law alleging breach of the obligation to state reasons is well founded is one for the Tribunal rather than for the Commission to make.

52 In any event, to accept the Commission’s reasoning would amount to removing from the Tribunal any capacity to judicially review the marking of the oral phase. Although the Tribunal is indeed precluded from substituting its assessment for that of the members of the selection board, it must be in a position to ascertain, having regard to the obligation to state reasons (the scope of which was recalled in paragraph 30 of this judgment), that they marked the applicant's performance on the basis of the assessment criteria set out in the notice of competition and that no errors occurred in the calculation of the mark awarded to him; similarly, it must be in a position to carry out a limited review of the relationship between the assessments made by the members of the selection board and the numbers of marks awarded by them (see Case 40/86 Kolivas v Commission [1987] ECR 2643, paragraph 11; Van Neyghem v Commission, paragraph 86; and Case F-127/07 Coto Moreno v Commission [2008] ECR‑SC I‑A‑0000 and II‑0000, paragraphs 34 and 36). For that purpose, it needs to order whatever measures of organisation of procedure seem appropriate to it, in the light of the particular circumstances, making it clear where appropriate to the defendant institution, as has been done in the instant case, that the replies would be passed on to the person concerned only to the extent that this would be compatible with the principle of the secrecy of the selection board’s proceedings.

53 In the present case, in the light of the material in the file (inter alia the circumstances set out in paragraphs 42 to 47 of this judgment) and in consequence of the failure on the part of the Commission to produce the items of information requested by the Tribunal by way of measures of organisation of procedure (see paragraph 16 of this judgment), the Tribunal considers that the plea in law alleging breach of the obligation to state reasons is well founded and must be upheld.

54 Such a conclusion cannot be called in question by the Commission’s submission, set out in its pleading of 18 February 2008, that its refusal to hand over the evaluation sheets and other items requested by the Tribunal was justified, firstly, by the absence of any claim, and even less proof, by the applicant, of a manifest infringement of the rules governing the proceedings of the selection board and, secondly, by the Tribunal's having erred in characterising the obligation to state reasons as a rule governing the proceedings of the selection board or, at the very most, as a related rule. Apart from a mere reading of the preparatory report for the hearing making it evident that the measures in question were prescribed, primarily, for the purpose of assessing the plea in law alleging breach of the obligation to state reasons, the Commission’s submission fails to have regard, in the circumstances of this case, both to the character of the obligation to state reasons as a matter of public policy and to the very scope of that obligation, as reiterated in paragraph 30 of this judgment.

55 It follows from all the foregoing, without there being any need to consider the other two pleas in law raised by the applicant, that the claims seeking annulment of the decision of 19 June 2007 of the selection board in competition EPSO/AD/26/05 (see paragraph 19 of this judgment) must be upheld, inasmuch as there has been a breach of the obligation to state reasons.

56 However, as regards the claims that the Tribunal should issue directions to the Commission, the Tribunal recalls that, according to settled case‑law, the Community judicature manifestly has no jurisdiction to issue directions to the Community institutions. That case‑law is applicable to staff cases (Joined Cases C‑41/88 and C‑178/88 Becker et Starquit v Parliament [1989] ECR 3807, summary publication, paragraph 6, and Case T‑172/95 Chesi and Others v Council [1998] ECR‑SC I‑A‑265 and II‑817, paragraph 33). Accordingly, the Tribunal may not, without encroaching on the powers of the administration (see, inter alia, Case T‑300/97 Latino v Commission [1999] ECR‑SC I‑A‑259 and II‑1263, paragraph 28, and the case‑law cited), give directions to the Commission in the instant case, even where they would correspond to the obligation incumbent upon that institution, under Article 233 EC, following a judgment annulling a measure (see, to that effect, Case T‑80/04 Castets v Commission [2005] ECR‑SC I‑A‑161 and II‑729, paragraph 17, and Case T‑203/03 Rasmussen v Commission [2005] ECR‑SC I‑A‑279 and II‑1287, paragraph 32). It is, on the other hand, for the Commission to take the necessary measures to comply with the judgment.

Costs

57 Under Article 122 of the Rules of Procedure, the provisions of Title 2, Chapter 8, on costs are to apply only to cases brought before the Tribunal from the date on which those Rules enter into force, namely on 1 November 2007. The relevant provisions of the Rules of Procedure of the Court of First Instance on the subject are to continue to apply mutatis mutandis to cases pending before the Tribunal before that date.

58 Under Article 87(2) of the Rules of Procedure of the Court of First Instance, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. However, under Article 88 of those Rules, in proceedings between the Communities and their servants the institutions are to bear their own costs. Since the applicant has been largely successful in his action, the Commission must be ordered to bear its own costs and to pay the applicant’s costs.

On those grounds,

THE TRIBUNAL (First Chamber)

hereby:

1. Annuls the decision of 19 June 2007 of the selection board in competition EPSO/AD/26/05;

2. Dismisses the remainder of the action;

3. Orders the Commission of the European Communities to bear its own costs and to pay the applicant’s costs.

Kreppel Tagaras Gervasoni

Delivered in open court in Luxembourg on 14 October 2008.

W. Hakenberg S. Gervasoni

Registrar President