JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

28 October 2010

Case F-9/09

Isabel Vicente Carbajosa and Others

v

European Commission

(Civil service — Open competitions EPSO/AD/116/08 and EPSO/AD/117/08 in the field of fraud prevention — Act adversely affecting the applicants — Exclusion of candidates following results obtained in admission tests — EPSO not competent)

Application: brought under Articles 236 EC and 152 EA, in which Ms Vicente Carbajosa and two other officials/members of the temporary staff of the Commission seek annulment of the decisions of the European Personnel Selection Office (EPSO) adopting and publishing the open competition notices EPSO/AD/116/08 and EPSO/AD/117/08, of EPSO’s decision relating to the correction of the pre-selection tests and the written tests, and annulment of the marks awarded for the oral tests in those competitions.

Held: EPSO’s decisions not to admit Ms Vicente Carbajosa in respect of the competition EPSO/AD/117/08 and Ms Lehtinen and Ms Menchén in respect of the competition EPSO/AD/118/08 onto the list of candidates invited to submit a full application are annulled. The remainder of the action is dismissed as inadmissible. The Commission is ordered to pay all the costs.

Summary

1. Officials — Actions — Interest in bringing proceedings — Candidate eliminated from a competition seeking annulment of all the operations in the competition — Admissible only in relation to the applicant’s exclusion

(Staff Regulations, Art. 91)

2. European Personnel Selection Office (EPSO) — Conduct of recruitment competitions for officials — Role of EPSO — Assistance for the selection board

(Staff Regulations, Annex III, Arts 1, 4 and 7)

3. Officials — Actions — Judgment annulling a measure — Effects

(Staff Regulations, Art. 91)

1. An application from a candidate eliminated from the list of candidates invited to submit a full application with a view to their possible admission to an open competition, seeking the annulment of the competition procedure, is admissible only in so far as it relates to the refusal to enter the candidate onto the list in question.

(see para. 36)

See:

T-173/99 Elkaïm and Mazuel v Commission [2000] ECR-SC I-A-101 and II-433, para. 23 and the case-law cited therein

2. Although the tasks assigned to the European Personnel Selection Office (EPSO) are such as to make this body an important actor in the determination and implementation of EU policy in the field of staff selection, its role as regards the conduct of recruitment competitions for officials, on the other hand, while significant to the extent that EPSO assists the selection board, necessarily remains subsidiary to the latter, which EPSO, moreover, may not replace.

While it is true that, under Article 1 of Annex III to the Staff Regulations, it is the appointing authority, and therefore EPSO since 2002, which draws up notices of competitions – specifying the conditions for admission to the competition – the fact remains that, as is clear from Article 4 of that Annex, which was adapted in the 2004 reform to include Article 7 on the tasks assigned to EPSO, once the competition procedure begins, EPSO’s role is confined to drawing up a list of candidates satisfying the conditions laid down in Article 28(a) to (c) of the Staff Regulations – that is to say, candidates who are nationals of one of the Member States of the Union and enjoy full rights as a citizen, who have fulfilled any obligations imposed by the laws concerning military service, and who produce the appropriate character references as to suitability for the performance of the duties envisaged – and to sending that list, together with the candidates’ files, to the chairman of the selection board. The Staff Regulations do not, therefore, assign any duties to EPSO concerning the actual selection of staff.

(see paras 48-49)

See:

judgment of 15 June 2010 in F-35/08 Pachtitis v Commission, para. 58, on appeal before the General Court of the European Union, Case T-361/10 P

3. Where a decision of the European Personnel Selection Office (EPSO) not to include a candidate on the list of candidates invited to submit a full application with a view to their possible admission to an open competition is annulled, the rights of the person concerned are adequately protected if the appointing authority seeks an equitable solution to his case, without there being any need to call into question the entire outcome of the competition or to annul the appointments made as a result.

(see paras 60, 62)

See:

144/82 Detti v Court of Justice [1983] ECR 2421, para. 33; C-242/90 P Commission v Albani and Others [1993] ECR I-3839, paras 13 and 14

T-32/89 and T-39/89 Marcopoulos v Court of Justice [1990] ECR II-281, para. 44

judgment of 5 May 2010 in F-53/08 Bouillezand Others v Council, paras 82 and 83