JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

12 November 2015

Christodoulos Alexandrou

v

European Commission

‛Appeal — Civil service — Recruitment — Competition notice EPSO/AD/231/12 — Non-admission to the assessment tests — Obligation to state reasons — Access to documents — Refusal of the request for access to the multiple-choice questions set in the admission tests — Secrecy of the Selection Board’s proceedings — Regulation (EC) No 1049/2001 — Scope of jurisdiction of the Civil Service Tribunal — Article 270 TFEU — Concept of an act adversely affecting an official — Article 90(2) of the Staff Regulations’

Appeals:

against the judgments of the European Union Civil Service Tribunal (Third Chamber) of 14 May 2014 in Alexandrou v Commission (F‑34/13, ECR-SC, EU:F:2014:93, and F‑140/12, ECR-SC, EU:F:2014:94), seeking to have those judgments set aside.

Held:

The appeal in Case T‑516/14 P is dismissed. In Case T‑515/14 P, the judgment of the Civil Service Tribunal of 14 May 2014 in Alexandrou v Commission (F‑34/13) is set aside in part to the extent that it: did not give a response to the first plea in law, in so far as it alleged failure to state reasons, in that the particular circumstances would have justified giving Mr Christodoulos Alexandrou access to the questions at issue; rejected the fourth plea in law. The remainder of the appeal in case T‑515/14 P is dismissed. The action in case F‑34/13 is dismissed in so far as it is based, first, on the failure to state reasons in the contested decisions in that Mr. Alexandrou raised particular circumstances justifying his access to the questions at issue and, secondly, on the plea in law alleging infringement of the right to a fair trial, alternatively, to an effective remedy. In Case T‑516/14 P, each party is to bear its own costs. In Case T‑515/14 P, each party is to bear its own costs.

Summary

Officials — Competitions — Competition based on qualifications and tests — Assessment of the candidates’ merits — Elimination of candidates on the basis of their weighted answers to the questions set for them during the preselection stage — Candidate obtains a mark significantly lower than the marks obtained in the other admission tests — Circumstance that is not likely of itself to cast doubt on the validity of the test

Institutions of the European Union — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the decision-making process — Disclosure of questions set in preselection tests for an open competition for the recruitment of EU officials — Presumption that the decision-making process will be undermined — Limits

Institutions de the European Union — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the decision-making process — Scope — Multiple-choice questions set in preselection tests for an open competition for the recruitment of EU officials — Included

Institutions de the European Union — Right of public access to documents — Regulation No 1049/2001 — Request for access to documents relating to a competition for the recruitment of EU officials — Subject both to the rules of the Staff Regulations and to those of Regulation No 1049/2001

A plea alleging failure by the court of first instance to respond to a form of order sought or a plea in law submitted to it is in essence tantamount to claiming infringement by the Civil Service Tribunal of the obligation to state reasons laid down in Article 36 of the Statute of the Court of Justice, applicable to the Civil Service Tribunal pursuant to Article 7(1) of Annex I to that Statute. In that regard, an appellant who relies on failure to respond to his argument cannot be criticised for not citing any passage or part of the judgment under appeal to which his complaint relates specifically, since, ex hypothesi, it is the lack of a response which he is relying on. (see paras 34-35) See: Judgment of 8 October 2014 in Bermejo Garde v EESC, T‑529/12 P, ECR-SC, EU:T:2014:861, paragraph 43

The Civil Service Tribunal has exclusive jurisdiction to hear disputes in connection with the open competition procedure, both ratione personae, where an unsuccessful candidate submits a request for access to documents in his capacity as a candidate in a competition, and ratione materiae, in so far as that request originates in the exclusion of that candidate from the competition. Under Article 256(1) TFEU and Article 1 of Annex I to the Statute of the Court of Justice, the Civil Service Tribunal has jurisdiction to hear and determine at first instance actions brought under Article 270 TFEU which concern, within the wording of the latter article, any dispute between the Union and its servants within the limits and under the conditions laid down in the Staff Regulations of Officials and the Conditions of Employment of other servants of the Union. That delimitation of the jurisdiction of the Civil Service Tribunal is based on the personal status of the person concerned and on the origin of the dispute. In that regard, a dispute between an official and the institution by which he is employed, where it originates in the relationship of employment between the person concerned and the institution, comes under Article 270 TFEU and Articles 90 and 91 of the Staff Regulations and therefore lies outside the scope of Article 263 TFEU, which determines the general system of applications for annulment of acts adopted by the institutions or bodies of the European Union. It follows moreover expressly from Article 270 TFEU, read in conjunction with Article 91(1) of the Staff Regulations, that the criterion for determining whether an action may be brought by a person to whom the Staff Regulations apply, on the basis of Article 270 TFEU, is whether the act whose legality is challenged is an act affecting him adversely within the meaning of Article 90(2) of the Staff Regulations. It is clear from the latter article that a decision or the failure to adopt a measure prescribed by the Staff Regulations is subject to the remedies provided for in Chapter VII of the Staff Regulations. Furthermore, the remedies provided for in Chapter VII of the Staff Regulations are open to candidates in open competitions or selection procedures, whether or not they are staff of the European Union. (see paras 59-63) See: Order of 10 June 1987 in Pomar v Commission, 317/85, ECR, EU:C:1987:267, para. 7 and the case law cited therein Order of 20 April 2012 in Pachtitis v Commission, T‑374/07, EU:T:2012:188, paras 13 to 15

Article 15(3) TFEU, in providing for the adoption of regulations, such as Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, in order to determine the principles and limits governing the right of public access to EU documents, does not preclude the adoption or maintenance of special rules concerning access to certain documents, in specific fields, where the existence of such rules is justified by the need to meet specific objectives. However, in the absence, both in Regulation No 1049/2011 and in the special regulations falling within a particular area of EU law and having a purpose other than the objective of transparency, of a provision expressly giving one of those sets of rules primacy over the other, it is necessary to ensure that each of the sets of rules is applied in a manner which is compatible with the other and enables them to be applied consistently. It follows that the principle of the protection of the secrecy of the selection board’s proceedings, laid down in Article 6 of Annex III to the Staff Regulations, which states that the proceedings of the selection board are to be secret, is not such as to exclude the application of Regulation No 1049/2001, since that regulation must be interpreted taking into account in each case the special provisions of the Staff Regulations. However, those rules of the Staff Regulations and the general principles laid down in Regulation No 1049/2001 must be applied consistently. In those circumstances, a person requesting access cannot validly rely on the general principle of transparency deriving from Article 15(3) TFEU and Article 42 of the Charter of Fundamental Rights of the European Union in order to justify the exclusive application of the provisions of Regulation No 1049/2001 and thus disregard the provisions of Article 6 of Annex III to the Staff Regulations. (see paras 68-71) See: Judgment of 27 February 2014 in Commission v EnBW, C‑365/12 P, ECR, EU:C:2014:112, para. 84 and the case law cited therein

So far as access to documents in connection with the proceedings of a selection board is concerned, the exceptions to the right of access to documents set out in Article 4 of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, cannot be interpreted without taking account of the special rules laid down in this instance by Article 6 of Annex III to the Staff Regulations and point 6.2 of the Guide to Open Competitions. Those special rules pursue objectives that are different from the objective of transparency referred to in Regulation No 1049/2001. In the scheme of that regulation, the right of public access to documents of the institutions or bodies of the European Union is established as a principle in order to facilitate the exercise of that right as far as possible and promote good administrative practices by ensuring the greatest possible transparency with regard to the decision-making processes of public authorities and the information on which their decisions are based. As a consequence, exceptions to that principle are interpreted narrowly. In contrast, Article 6 of Annex III to the Staff Regulations, which relates specifically to the procedure for competitions, introduces the principle of the secrecy of the proceedings of the selection board with a view to guaranteeing the independence of selection boards and the objectivity of their proceedings, by protecting them from all external interference and pressures whether these come from the EU administration itself or the candidates concerned or third parties. In addition, so far as open competitions are concerned in particular, it is clear from point 6.2 of the Guide to Open Competitions that the principle of the secrecy of the proceedings of the selection board covers the wording of the multiple-choice questions set in the preselection tests. That restriction on the right of access to documents is intended to avoid questions, which might be used in subsequent competitions, being disclosed to future candidates. In view of the large number of competition candidates, leading to the organisation of preselection tests over several days, it is common knowledge that the questions set in those tests for each candidate, in each group of questions of comparable nature and difficulty, determined by the selection board on the basis of objective criteria that are the same for all candidates, are chosen at random by computer from a database of multiple-choice questions. In those circumstances, it is acknowledged that, since they are closely associated with the recruitment process, multiple-choice questions set in admission tests for a competition to recruit EU officials come within the Commission’s decision-making process and, accordingly, within the scope of Article 4(3) of Regulation No 1049/2001. Although those questions are set for thousands of candidates in an open competition, they nonetheless form part of the institution’s internal database for use by selection boards when the European Personnel Selection Office holds competitions and are therefore internal documents covered by the exception concerning protection of the Commission’s decision-making process. (see paras 78-81, 86) See: Judgment of 27 February 2014 in Commission v EnBW, EU:C:2014:112, para. 83 and the case law cited therein Judgments of 5 April 2005 in Hendrickx v Council, T‑376/03, ECR-SC, EU:T:2005:116, para. 56, and of 14 July 2005 in Le Voci v Council, T‑371/03, ECR-SC, EU:T:2005:290, para. 123

In order to justify refusal of access to a document the disclosure of which has been requested under Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, it is not sufficient, in principle, for that document to be covered by an activity mentioned in Article 4(2) and (3) of that regulation. The institution concerned must also provide explanations as to how access to that document could specifically and actually undermine the interest protected by an exception laid down in that article. However, it is open to the EU institution concerned to base its decisions on general presumptions which apply to certain categories of documents, as considerations of a generally similar kind are likely to apply to requests for disclosure relating to documents of the same nature. In that regard, in the case of a request for access to multiple-choice questions set in preselection tests for an open competition to recruit EU officials, in accordance with the objectives pursued by the principle of protection of the secrecy of the proceedings of the selection board, the Commission is entitled to presume, without carrying out a specific, individual examination of those documents, that disclosure of such questions will, in principle, seriously undermine its decision-making process. The application of such a general presumption, with regard to multiple-choice questions set in the context of an open competition, fully comes within the scope of Regulation No 1049/2001, which must be reconciled with the relevant special rules, justified by specific objectives. Accordingly, the application of such a general presumption, when the Commission decides to rely on the exception relating to protection of the decision-making process in order to reject a request for access to multiple-choice questions set in the context of an open competition, submitted under Regulation No 1049/2001, must not be construed as being the addition of a new exception. Furthermore, in certain specific circumstances, that general presumption may be overturned, in the context of weighing up the interests involved, in accordance with the scheme laid down in Article 4 of Regulation No 1049/2001. That is so where a candidate specifically disputes the relevance of certain questions or the validity of the answers adopted as correct and provided that the difference between his results and the pass threshold is such that, assuming that his objection is well founded, he could be among the candidates who passed the tests in question. In such a case, communication of the text of the questions at issue to the person concerned is necessary in order to enable him to assess whether the decision excluding him from the competition was lawful and whether it is appropriate for him to bring an action and also to enable the Tribunal to conduct a review. In that case, the right for the person concerned to have access to the information on which that decision was based prevails over the principle of the secrecy of the proceedings of the selection board. (see paras 87, 88, 94, 95, 98) See: Judgment of 27 February 2014 in Commission v EnBW, EU:C:2014:112, paras 64 and 65 and the case law cited