JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

23 October 2012

Case F‑57/11

Gustav Eklund

v

European Commission

(Civil service — Recruitment — Open competition — Inclusion on the reserve list — Offer of employment made to a person on a reserve list — Conditions of admission — Professional experience acquired after graduation — Respective powers of the selection board and the appointing authority — Acceptance of the offer of employment — Withdrawal of the offer of employment)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, in which Mr Eklund seeks, in essence, annulment of the Commission’s decision of 5 August 2010 not to give effect to his acceptance of the post of official as a technical assistant which had been offered to him by the Commission in a decision contained in the letter of 30 July 2010, sent to him by email, and to withdraw that offer.

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

Summary

1. Actions brought by officials — Act adversely affecting an official — Definition — Withdrawal of an offer of employment — Not included — Decision not to give effect to a candidate’s acceptance of an offer of employment — Included

(Staff Regulations, Arts 90 and 91)

2. Officials — Competitions — Selection board — Independence — Limits — Adoption of unlawful decisions — Obligations of the appointing authority — Judicial review

3. Officials — Competitions — Competitions based on qualifications and tests — Conditions for admission — Professional experience — Definition — Periods of study — Not included

(Staff Regulations, Annex III, Art. 5)

1. An offer of employment made to a candidate with a view to his appointment as an official constitutes a statement of intent, accompanied, in some cases, by a request for information, and does not create rights. The appointment of an official can take place only in the manner and subject to the conditions provided for by the Staff Regulations. As a statement of intent is a preparatory act that cannot be challenged by way of an action for annulment, annulment proceedings cannot be brought against its withdrawal, since a measure which does not create rights may be withdrawn at any time.

On the other hand, a decision not to give effect to the acceptance by a candidate of an offer of employment and to withdraw that offer puts an end to any procedure that may give rise to the appointment of an official and constitutes, by nature, an act adversely affecting the person concerned. Thus, the claim for annulment directed against such a decision is admissible.

(see paras 30-31, 66, 97)

See:

12 May 2011, T‑267/08 and T‑279/08 Région Nord-Pas-de-Calais v Commission, para. 190; 14 December 2011, T‑563/10 P De Luca v Commission

30 September 2010, F‑41/05 Jacobs v Commission, para. 44; 30 September 2010, F‑20/06 De Luca v Commission, para. 37; 14 December 2010, F‑25/07 Bleser v Court of Justice, para 54; 14 April 2011, F‑113/07 Šimonis v Commission, paras 44 and 45

2. Taking into account the independence of selection boards, the appointing authority has no power to annul or amend a decision taken by a selection board. Nevertheless, in the exercise of its own powers it is required to take decisions untainted by errors of law. It cannot therefore be bound by a selection board’s decision, the unlawfulness of which would be liable as a consequence to vitiate its own decisions. That is the reason why the appointing authority is required, before appointing a person as an official, to verify whether that person meets the relevant conditions. Where the selection board wrongly allows a candidate to take part in a competition and subsequently puts his name on the reserve list, the appointing authority must express its refusal to appoint the candidate by way of a reasoned decision from which the Tribunal can judge whether the refusal is well founded.

However, it must also be borne in mind that, subject to the provisions of the notice of competition, a selection board has broad discretion in assessing whether the previous professional experience of candidates, both as regards the nature and duration thereof and as regards its relevance to the post to be filled, enables them to fulfil the conditions for admission to the competition. As a consequence, in its review of the legality of a selection board’s decisions the appointing authority must confine itself to ascertaining whether the selection board has exercised its discretion without any manifest errors.

In that regard, an error may only be classified as manifest where it can be readily detected, in the light of the criteria which the legislature intended to apply to the exercise by the administration of its broad discretion. Consequently, in order to establish that a manifest error was committed in the assessment of the facts such as to justify the annulment of a decision, it is necessary to show that the evidence adduced in the contested decision is implausible. In other words, there can be no manifest error if the challenged assessment may be accepted as being true or valid

Those principles must be regarded as being applicable also to the review exercised by the Courts of the European Union over decisions of the selection board and of the appointing authority when the latter examines, before appointing a person as an official, whether that person fulfils the relevant conditions.

(see paras 49-52)

See:

23 October 1986, 142/85 Schwiering v Court of Auditors, paras 19 and 20; 20 February 1992, C‑345/90 P Parliament v Hanning, para. 22

22 May 2008, F‑145/06 Pascual-García v Commission, para. 55 and the case-law cited; 29 September 2011, F‑80/10 AJ v Commission, para. 34

3. In the context of an open competition held in order to constitute a reserve list of suitable candidates, unless the notice of competition provides otherwise, periods of study do not constitute periods that count as professional experience acquired after graduation, whatever the level of study, since studies lead to the acquisition of knowledge and not skills. Naturally, periods in which the candidate has been studying at the same time as working may be taken into account, but in that situation, it is the work that has been carried out which counts as professional experience and the studying that has gone on at the same time, purely marginally and incidentally, does not preclude those periods being taken into account.

(see para. 54)

See:

6 November 1997, T‑101/96 Wolf v Commission, para. 71

Pascual-García v Commission, para. 66