JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (Third Chamber)

8 May 2008

Case F-6/07

Risto Suvikas

v

Council of the European Union

(Civil service – Members of the temporary staff – Preliminary plea – Confidential documents – Documents obtained unlawfully – Removal of documents – Recruitment – Vacant post – Unlawful rejection of candidature – Annulment – Action for damages – Loss of the opportunity to be recruited – Equitable assessment)

Application: brought under Articles 236 EC and 152 EA, in which Mr Suvikas seeks, in particular, first, annulment of the decision of 20 February 2006 of the Council’s contracting authority not to include his name on the list of the best candidates following the selection of Council/B/024 members of the temporary staff, and, second, damages for the material and non-material harm allegedly suffered.

Held: The documents produced by the applicant in Annex A 14 to A 16 to the application are to be removed from the file. The decision of the contracting authority of 20 February 2006 not to include the applicant on the list of the best candidates following the selection of Council/B/024 members of the temporary staff is annulled. The Council is ordered to pay the applicant the sum of EUR 20 000 to compensate him for the material damage he has suffered. The remainder of the action is dismissed. The Council is ordered to pay the costs.

Summary

1. Procedure – Admissibility of pleadings – Assessment at the time when the pleading is submitted – Application for a decision on a preliminary plea – Admissibility at any stage of the proceedings

(Rules of Procedure of the Court of First Instance, Art. 114; Rules of Procedure of the Civil Service Tribunal, Art. 78)

2. Officials – Competitions – Selection board – Secrecy of its proceedings – Scope

(Staff Regulations, Annex III, Art. 6)

3. Officials – Members of the temporary staff – Recruitment – Procedure – Discretion of an Advisory Selection Committee – Limits – Observance of the conditions laid down in the vacancy notice

4. Officials – Members of the temporary staff – Recruitment – Procedure – Assessment of merits

5. Officials – Members of the temporary staff – Recruitment – Procedure – Discretion of the authority authorised to conclude contracts of engagement – Limits – Observance of the conditions laid down in the vacancy notice and of the rules of procedure adopted for the exercise of discretion

6. Officials – Actions – Judgment annulling a measure – Effects

(Staff Regulations, Art. 91)

7. Officials – Actions – Unlimited jurisdiction – Possibility for the Tribunal to order of its own motion that the defendant institution pay compensation

(Staff Regulations, Art. 91(1))

8. Officials – Actions – Unlimited jurisdiction – Compensation for material harm linked to the loss of opportunity arising from the unlawful rejection of a candidature

(Staff Regulations, Art. 91(1); Conditions of Employment of Other Servants, Art. 47(b)(ii))

9. Officials – Actions – Action for damages – Annulment of the illegal act in dispute – Whether appropriate reparation for non-material damage

(Staff Regulations, Art. 91)

1. Although the rule laid down in Article 78 of the Rules of Procedure of the Civil Service Tribunal that if an application is made to the Tribunal for a decision on a preliminary plea, it may decide on the application by way of reasoned order or reserve its decision for the final judgment, is a procedural rule which applies to all proceedings pending before the Tribunal at the time when it enters into force, the same is not true of rules on the basis of which the Tribunal may, under that article, decide on the admissibility of that preliminary plea and which, in so far as they determine the admissibility of the application for a decision on the preliminary plea, may only be those applicable on the date when that application is submitted.

In the case of an application for a decision on a preliminary plea submitted before the date when the Rules of Procedure of the Civil Service Tribunal entered into force, the rules which establish the conditions to be applied for the preliminary plea to be admissible are those referred to by Article 114 of the Rules of Procedure of the Court of First Instance, applicable mutatis mutandis to the Civil Service Tribunal. Article 114 is the provision of the Rules of Procedure of the Court of First Instance which corresponds to Article 78 of the Rules of Procedure of the Civil Service Tribunal. Consequently, in such a situation, the rules to be applied should be, first, the procedural rule referred to in Article 78 of the Rules of Procedure of the Civil Service Tribunal, and, second, the rules on admissibility referred to by Article 114 of the Rules of Procedure of the Court of First Instance.

Since a preliminary plea, which is to be distinguished from a plea of inadmissibility of the action, may arise at any stage of the proceedings, an application for a decision on such a plea must be able to be brought at any stage of the proceedings.

(see paras 49-51, 54)

2. The principle of the secrecy of the proceedings of selection boards in competitions was established with a view to guaranteeing the independence of selection boards and the objectivity of their proceedings, and is also intended to protect candidates’ legitimate interests in not having assessments of their abilities and qualities made public. Observance of that principle therefore precludes disclosure of the attitudes adopted by individual members of selection boards and disclosure of factors relating to individual or comparative assessments of candidates, made by the selection board.

However, although the assessments of a comparative character made by a selection committee or certain of its members are covered by the secrecy surrounding the proceedings of a selection board, the same is not true of documents drawn up outside the selection procedure, which do not, properly speaking, form part of the Advisory Selection Committee’s overall proceedings, but result from the personal initiative of one of the Committee members. Such documents do not necessarily enjoy the same degree of confidentiality as that which is accorded to the selection board’s comparative assessments and which precludes their production before the Tribunal. Whether or not such documents were obtained lawfully is, therefore, a factor to be taken into consideration.

In that respect, documents drawn up by a member of the board outside the selection procedure, which one of the parties had received from a third party who had himself obtained them without authorisation, must be removed from the file.

(see paras 57, 58, 60, 61, 64-66, 71)

See:

T-118/99 Bonaiti Brighina v Commission [2001] ECR-SC I‑A‑25 and II‑97, para. 46; T-336/02 Christensen v Commission [2005] ECR-SC I‑A‑75 and II‑341, paras 23, 24 and 26

3. An advisory selection committee for the recruitment of temporary staff set up by the authority authorised to conclude contracts of engagement enjoys a certain discretion in organising its proceedings, provided that it remains within the framework fixed by the vacancy notice. In that respect, there is nothing to prevent the committee from proceeding in stages, progressively eliminating candidates, on the basis of criteria laid down in the vacancy notice. Thus, the mere fact that a selection committee has considered candidates’ performance in interviews in the light of the criteria laid down in the vacancy notice in two successive stages does not, in itself, vitiate the selection procedure.

(see paras 88-90)

4. In the context of a competition the selection board is called upon to assess factors known to the candidates, whether it be qualifications that they hold, tests which they have undergone or periodic assessments of which they are aware and on which they have had an opportunity to comment. That constitutes a guarantee that the competition will be properly conducted and a protection against arbitrariness, inasmuch as the candidates are aware of all the factors which entered into the selection board’s assessment and are therefore well placed to contest that assessment if they consider that it is wrong. If, on the other hand, the selection board bases its decision at least in part on factors such as information supplied by, and the opinions of, the candidates’ superiors, of which the candidates concerned have no knowledge, those candidates have no opportunity to defend themselves against statements made by third parties which, though they may well be perfectly correct, may also be incorrect for one reason or another. The fact that candidates did not have an opportunity to state their views on the opinions expressed on them by their superiors and taken into account by the selection board constitutes a breach of a principle governing the competition procedure justifying the annulment of decisions not to admit them.

Like a selection board in a competition, and for the same reasons, an advisory selection committee set up by the authority authorised to conclude contracts of engagement cannot base its assessment, even in part, on factors such as information supplied by, and the opinions of, the candidates’ superiors, of which the candidates concerned have no knowledge and on which they have not had an opportunity to state their views. The consultation of the candidates’ superiors by even just one member of the committee acting on his own behalf is such as to render unlawful the actions of the committee as a whole.

(see paras 93, 94, 97)

See:

293/84 Sorani and Others v Commission [1986] ECR 967, paras 17 to 20; 294/84 Adams and Others v Commission [1986] ECR 977, paras 22 to 25

5. The exercise of the wide discretion enjoyed by the authority authorised to conclude contracts of engagement requires, at the very least, scrupulous observance of the relevant regulations, in other words not just of the recruitment notice, but also of any procedural rules which the authority has adopted for the exercise of its discretion.

Moreover, the fact that the authority enjoys a wide discretion does not consequently remedy an unlawful act committed during the preparatory procedure for its decision. When it adopts its own decision following an unlawful preparatory procedure, the authority therefore renders that decision unlawful if it fails to takes steps to remedy the unlawful act identified during that preparatory procedure.

(see paras 101-103)

See:

T-73/01 Pappas v Committee of the Regions [2003] ECR-SC I‑A‑207 and II‑1011, para. 53

6. Where the decision of the authority authorised to conclude contracts of engagement not to include a candidate’s name on the list of the best candidates in an unlawful procedure for the selection of temporary staff is annulled, the consequent annulment of the list of candidates itself and of the decisions to recruit the candidates on the list to the posts to be filled would constitute an excessive penalty for the unlawful act committed by the institution concerned. It would be contrary to the principles of proportionality and protection of legitimate expectations, and to the interests of the service, to deprive the candidates selected, who had become members of the temporary staff, of the benefit of their appointment solely on the ground that the recruitment procedure was unlawful.

(see paras 109, 111, 122)

7. Where a comparison of the interests involved shows that the interest of the service and the interest of third parties prevent the consequent annulment of decisions following on from an annulled decision, the Community judicature may, in order to ensure that the annulment judgment is effective in the applicant’s interests, use the unlimited jurisdiction conferred upon it in financial disputes and order, even of its own motion, the defendant institution to pay compensation. It may also call on that institution adequately to protect the applicant’s rights by seeking an equitable solution to his case.

(see para. 127)

See:

24/79 Oberthür v Commission [1980] ECR 1743, para. 14; C‑242/90 P Commission v Albani and Others [1993] ECR I‑3839, para. 13

T‑18/92 and T‑68/92 Coussios v Commission [1994] ECR-SC I‑A‑47 and II‑171, para. 107

8. When examining a dispute of a financial character within the meaning of the second sentence of Article 91(1) of the Staff Regulations, the Civil Service Tribunal has unlimited jurisdiction, pursuant to which it has the power, if need be, of its own motion to order the defendant to pay compensation for the damage caused by the defendant’s wrongful act and, in such a case, taking account of all of the circumstances of the case, to assess the damage suffered ex aequo et bono. Furthermore, where the Tribunal has found that there is damage, it is for the Tribunal alone to assess, within the confines of the claim, the method and scale of the reparation for that damage, subject to the qualification that in order for the appeal court to be able to review the judgments of the Tribunal, those judgments must be sufficiently reasoned and, and as regards the quantification of damage, that they state the criteria taken into account for the determination of the amount decided upon.

In that respect, in order to determine the amount of equitable compensation to be awarded to a candidate in an unlawful selection procedure who has lost an opportunity to be recruited, the Tribunal should, first, specify the loss of earnings suffered by the candidate, by establishing the difference between the earnings which he would have received if he had been recruited and the earnings which he actually received following the unlawful act, and then, secondly, assess, as a percentage, the chance he had of being recruited in order to weight the loss of earnings thus calculated .

However, where, because of special circumstances such as the degree of uncertainty concerning the impact of the unlawful act on the rejection of the candidate’s candidature, the Tribunal cannot determine a mathematical coefficient expressing the loss of opportunity suffered, it should award the person concerned a fixed sum in compensation for that loss of opportunity.

In assessing the amount of compensation, it cannot be taken for granted that if the applicant had been successful in the selection procedure he would have received a temporary staff contract for six years. Under Article 47(b)(ii) of the Conditions of Employment of Other Servants, the institution has the power to terminate a fixed period temporary contract provided that it observes a period of notice in accordance with that provision. Furthermore, if he had been recruited, the applicant would have had no entitlement to have his contract renewed for a period of two years following the initial four year period.

(see paras 133-135, 142-145)

See:

C-348/06 P Commission v Girardot [2008] ECR I-833 paras 45 and the case-law cited therein, and 58, and the case-law cited therein

T-10/02 Girardot v Commission [2006] ECR-SC I‑A‑2‑129 and II‑A‑2‑609

9. The annulment of an act of the administration which has been challenged by an official in itself constitutes appropriate and, in principle (that is to say, in the absence from that act of any expressly negative assessment of the applicant’s abilities likely to cause him damage), sufficient reparation for any non-material harm which the applicant may have suffered by reason of the annulled act.

(see para. 151)

See:

T-60/94 Pierrat v Court of Justice [1995] ECR-SC I‑A‑23 and II‑77, para. 62; T-21/96 Giannini v Commission [1997] ECR-SC I‑A‑69 and II‑211, para. 35