JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

18 September 2012

Case F‑96/09

Eva Cuallado Martorell

v

European Commission

(Civil service — Open competition — Non-admission to the oral test following results obtained in written tests — Requests for review — Specific right of candidates to have access to certain information concerning them — Purpose and scope — Right of access to marked written tests — None)

Application: brought under Article 236 EC and Article 152 EA, in which Ms Cuallado Martorell seeks, in essence, annulment, first, of the decision of the selection board for competition EPSO/AD/130/08 organised by the European Personnel Selection Office (EPSO) not to admit her to the oral test and, second, of the decisions refusing her access to her corrected written tests and the personal evaluation sheet concerning those tests.

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

Summary

1. Officials — Competitions — Notice of competition — Establishment of a right of access to certain information for unsuccessful candidates — Failure by the European Personnel Selection Office (EPSO) to respect that right –Maladministration for which the administration may incur liability

(Charter of Fundamental Rights of the European Union, Arts 41, 42 and 47)

2. Officials — Actions — Prior administrative complaint — Formal conditions — Must be sufficiently explicit

(Staff Regulations, Art. 90(2))

3. Officials — European Union — Institutions — Right of public access to documents — Regulation No 1049/2001 — Access to tests conducted in the context of a competition for the recruitment of officials of the European Union — Person subject to the rules of the Staff Regulations — Obligation to send corrected written tests to unsuccessful candidates — None — Observance of the secrecy of the selection board’s proceedings

(Staff Regulations, Annex III, Art. 6; European Parliament and Council Regulation No 1049/2001)

4. Officials — Competitions — Selection Board — Rejection of candidature — Obligation to state reasons — Scope — Observance of the secrecy of proceedings

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

5. Officials — Judicial proceedings — Costs — Responsibility — Taking into account requirements of fairness — Order that the successful party bear its own costs

(Rules of Procedure of the Civil Service Tribunal, Arts 87(1) and (2) and 88)

1. Although a notice of competition gives unsuccessful candidates the specific right of access to certain information concerning them directly and individually so that they may obtain information and documents enabling them to take an informed decision as to whether it is appropriate to challenge a decision to exclude them from the competition, strict observance by the European Personnel Selection Office (EPSO) of that right, both as regards the substance of that right and in respect of the time-limit for responding, is the embodiment of the duties which stem from the principle of good administration, the public right of access to documents and the right to an effective remedy, in accordance with Articles 41, 42 and 47 of the Charter of Fundamental Rights of the European Union. It follows that failure on the part of EPSO to observe the specific right of candidates, in addition to the possibility that it might lead unsuccessful candidates to bring actions or complaints without having sufficient data, may constitute an administrative error capable of giving rise, where appropriate, to a candidate having a right to compensation.

(see paras 46-48)

2. A complaint does not need to take any particular form. It is sufficient that it clearly and precisely manifests the applicant’s intention to challenge a decision taken concerning him. Furthermore, the administration must examine complaints with an open mind and it is sufficient, in order for it to consider that it is dealing with a complaint within the meaning of Article 90(2) of the Staff Regulations, that a plea has already been raised in the administrative procedure sufficiently clearly to enable the appointing authority to know the criticisms made by the person concerned of the contested decision.

However, the aim of the pre-litigation procedure being to find an amicable settlement for a dispute arising at the time of the complaint, the appointing authority must be in a position to have a sufficiently detailed knowledge of the arguments which the person concerned is relying on against an administrative decision. It follows that the complaint must, in any event, contain a statement of the pleas and arguments relied on against the administrative decision against which the complaint is brought.

(see paras 60-61)

See:

31 May 1988, 167/86 Rousseau v Court of Auditors, para. 8; 14 July 1988, 23/87 and 24/87 Aldinger and Virgili v Parliament, para. 13

7 March 1996, T‑146/94 Williams v Court of Auditors, para. 44; 13 January 1998, T‑176/96 Volger v Parliament, para. 65; 16 February 2005, T‑354/03 Reggimenti v Parliament, para. 43

3. With regard to access for candidates in competitions to their written tests and the evaluation sheets of those tests by the selection board, Article 6 of Annex III to the Staff Regulations constitutes a special provision which derogates from the general rules of Regulation No 1049/2001, since it governs access to specific types of documents. That provision, which states that the proceedings of the selection board are to be secret, 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. It follows that, since Regulation No 1049/2001 is not applicable, Article 6 of Annex III to the Staff Regulations does not require the European Personnel Selection Office (EPSO) to send candidates their marked written tests.

Accordingly, where an institution of the European Union refuses to send a candidate his marked written test, the candidate cannot validly rely on the concept of transparency in order to call in question the applicability of Article 6 of Annex III to the Staff Regulations.

However, Article 6 of Annex III to the Staff Regulations pursues its own ends, justified by reasons of public interest, and concerns specifically access to the proceedings of the selection board. Although the notice of competition gives unsuccessful candidates the specific right to have access to information concerning them and relating to their participation in the competition, that right is neither absolute nor unlimited but consists, for those candidates who have not passed the written tests, in the right to obtain a copy of their written test and the personal evaluation sheet for their written test showing the marking by the board.

(see paras 81, 84-85, 95-96, 99)

See:

4 July 1996, C‑254/95 P European Parliament v Innamorati, para. 24

27 March 2003, T‑33/00 Martínez Páramo and Others v Commission, para. 44; 5 April 2005, T‑376/03 Hendrickx v Council, para. 56; 14 July 2005, T‑371/03 Le Voci v Council, para. 124

4. The requirement that a decision adversely affecting a person should state the reasons on which it is based is intended to provide the person concerned with sufficient details to allow him to ascertain whether or not the decision is well founded and make it possible for the decision to be the subject of judicial review. As far as concerns decisions taken by a selection board in a competition, that obligation must be reconciled with observance of the secrecy surrounding the proceedings of selection boards pursuant to Article 6 of Annex III to the Staff Regulations. 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 involve as a rule at least two separate stages, the first being an examination of the applications in order to select the candidates admitted to the competition and the second being an examination of the abilities of the candidates for the posts to be filled in order to draw up a list of suitable candidates. The second stage of the selection board’s proceedings involves tasks that are primarily comparative in character and is accordingly covered by the secrecy inherent in those proceedings. The criteria for marking adopted by the selection board prior to the tests form an integral part of the comparative assessments which it makes of the candidates’ respective merits. Those criteria are therefore covered by the secrecy of the proceedings in the same way as the selection board’s assessments. The comparative assessments made by the selection board are reflected in the marks it allocates to the candidates. Having regard to the secrecy which must surround the proceedings of a selection board, communication of the marks obtained in the various tests constitutes an adequate statement of the reasons on which the board’s decisions are based, since the board is not required to identify the candidates’ answers which were considered unsatisfactory or to explain why they were considered unsatisfactory.

(see para. 88)

See:

European Parliament v Innamorati, paras 23 to 31

Martínez Páramo and Others v Commission, paras 43 to 52

30 April 2008, F‑16/07 Dragoman v Commission, para. 63

5. Article 87(1) of the Rules of Procedure of the Civil Service Tribunal provides that, without prejudice to the other provisions of Chapter 8 of Title 2 of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. However, Article 88 of those rules provides that a party, even if successful, may be ordered to pay some or all of the costs, if this appears justified by the conduct of that party, especially if he has made the other party incur costs which are held to be unreasonable or vexatious.

Article 88 is to be applied in the event that the European Personnel Selection Office (EPSO) has failed to comply with its obligation contained in the notice of competition to provide a candidate who so requests, and who subsequently lodges a complaint and then an action, with supplementary information relating to his participation in the competition. In that regard, even though the information requested was not essential for drafting the complaint, it cannot be excluded that if the applicant had received it in time she would have been in a better position to prepare her complaint and the application initiating proceedings, or that she may even have decided not to bring an action.

(see paras 111-112)