JUDGMENT OF THE COURT FOR FIRST INSTANCE (Single Judge)

23 January 2002

Case T-386/00

Margarida Gonçalves

v

European Parliament

‛Officials — Notice of competition — Non-admission to competition — Rule of consistency between the complaint and the action — Admissibility — Statement of grounds — Administration's duty to have regard for the welfare of officials and principle of sound administration’

Full text in French II-55

Application for:

first, annulment of the decisions of the selection board in internal competition B/172 not to admit the applicant to the tests in that competition and establishing the list of suitable candidates, as well as any subsequent decision taken by the Parliament on the basis of those decisions, and, second, compensation for the material and nonmaterial damage allegedly sustained as a result of those decisions.

Held:

The application is dismissed. The parties are to bear their own costs.

Summary

Officials — Actions — Prior complaint through official channels — Requirement that subject-matter and claims be the same — Pleas and arguments not appearing in the complaint — Matter considered in detail by the appointing authority in the decision rejecting the complaint — Admissibility

The legal remedy available against a decision of a competition selection board normally lies in a direct application to the Community judicature. A complaint directed through official channels against such a decision would appear to be pointless, since the institution concerned has no authority to annul or alter a decision of a competition selection board. Nevertheless, if, instead of bringing the matter directly before the Community judicature, the person concerned relies on the provisions of the Staff Regulations in order to refer the question to the appointing authority by means of a complaint through official channels, the admissibility of the action brought subsequently will depend on the compliance by the person concerned with all the procedural requirements associated with complaints through official channels. In particular, the claims submitted to the Court must have the same subject-matter as those set out in the complaint and the time-limits laid down by Articles 90 and 91 of the Staff Regulations must be observed. (see paras 34-35) See: 117/78 Orlandi v Commission [1979] ECR 1613, paras 8 to 10; 52/85 Riltoia and Others v Commission [1986] ECR 1555, para. 9; T-215/97 Jouhki v Commission [1998] ECRSC I-A-503 and II-513, para. 22, and the case-law cited

When a party whose application for admission to a Community competition has been rejected seeks reexamination of that decision on the basis of a precise provision by which the administration is bound, it is the decision taken by the selection board after reexamination which must be regarded as the act adversely affecting him within the meaning of Article 90(2) or, as the case may be, Article 91(1) of the Staff Regulations. It is also that decision, taken after reexamination, which causes the periods for lodging a complaint and bringing an action to start to run, without there being any need to ascertain whether, in such a situation, that decision may be regarded as a purely confirmatory act. (see para. 39) See: T-95/00 and T-96/00 Zaur-Gora and Dubigh v Commission [2001] ECRSC I-A-79 and II-379, para. 28

The claims submitted to the Court must have the same subject-matter as those set out in the complaint. However, since the pre-litigation procedure is an informal procedure and those involved at that stage are generally acting without the assistance of a lawyer, the administration must not interpret the complaints restrictively but should, on the contrary, consider them with an open mind. Where the appointing authority states its position regarding the legality of the rejection of the applicant's candidature and makes observations in that connection during the administrative procedure, the absence of formal claims in the complaint does not undermine the principles of legal certainty and observance of the rights of the defence underlying the rule of consistency between the administrative complaint and that action. (see paras 42, 45-46) See: T-4/96 S v Court of Justice [1997] ECR II-1125, para. 99; T-78/96 and T-170/96 W. v Commission [1998] ECRSC I-A-239 and II-745, para. 66; Jouhki v Commission, cited above, para. 31 ; T-214/99 Carrasco Benitez v Commission [2000] ECR-SCI-A-257 and II-1169, para. 38

The obligation to state the grounds for a decision adversely affecting an official is intended both to provide the person concerned with sufficient details to allow him to ascertain whether or not the decision is well founded and to enable the Court to review the legality of the decision. Such an obligation must, inter alia, enable the official concerned to know why a decision was adopted in regard to him in order that he may take the legal steps necessary to defend his rights and interests. With respect, in particular, to decisions refusing admission to competition, the competition selection board is required to indicate precisely which conditions in the notice of competition are considered not to have been satisfied by the candidate. (see paras 61-62) See: 69/83 Lux v Court of Auditors [1984] ECR 2447, para. 36; T-133/89 Burbau v Parliament [1990] ECR II-245, para. 43; Carrasco Benitez v Commission, cited above, paras 172 and 173, and the case-law cited

In order to ascertain whether the conditions of admission set out in the notice of competition 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 of it. A selection board cannot be required to make enquiries itself in order to ensure that candidates satisfy all the conditions laid down in the notice of competition. When clear provisions in a notice of competition lay down the unequivocal requirement that candidates attach to their application form all necessary supporting documents, a candidate's failure to comply with that obligation cannot enable or, a fortiori, oblige the selection board or the appointing authority to act contrary to that notice of competition. (see para. 74) See: C-255/90 P Burban v Parliament [1992] ECR I-2253, para. 12; T-12/00 Crestai v Commission [2000] ECRSC I-A-67 and II-289, para. 22; Zaur-Gora and Dubigh v Commission, cited above, para. 55