JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Full Court)

12 February 2014

Case F‑127/11

Gonzalo de Mendoza Asensi

v

European Commission

(Civil service — Open competition — Notice of competition EPSO/AD/177/10 — Non-inclusion on the reserve list — Statement of reasons for the selection board’s decision — Communication of subjects in a test — Stability of the competition selection board)

Application: under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr de Mendoza Asensi seeks, principally, annulment of the decision of the selection board in open competition EPSO/AD/177/10 not to include his name on the reserve list for that competition.

Held: The action is dismissed. Mr de Mendoza Asensi is to bear his own costs and is ordered to pay the costs incurred by the European Commission.

Summary

1. Officials — Competitions — Organisation and content of tests — Selection board’s discretion — Judicial review — Limits

(Staff Regulations, Annex III)

2. Officials — Competitions — Selection board — Composition — Requirement for sufficient stability to ensure consistency in marking — Scope

(Staff Regulations, Art. 27 and Annex III, Art. 3)

3. Officials — Competitions — Selection board — Composition — Officials seconded to the European Personnel Selection Office (EPSO) — Lawfulness — EPSO’s influence on the selection board’s proceedings — None)

(Staff Regulations, Art. 30 and Anne III, Art. 3)

1. It is for the selection board to ensure that the principle of equal treatment of candidates is strictly complied with in a competition. Consequently, while the board enjoys a wide discretion in the organisation and detailed content of the tests, it is nevertheless for the European Union Court to exercise its review as far as is necessary to ensure that candidates are treated equally and that the board is objective in selecting from them.

In that context, it is also for the appointing authority, as the organiser of the competition, and for the selection board to take action to ensure that, as far as the written tests are concerned, all candidates in the same competition sit the same test in the same conditions. It is thus for the selection board to make sure that the tests present more or less the same degree of difficulty for all candidates.

Any competition generally and inherently involves a risk of unequal treatment given the necessarily limited number of questions that can be asked in an examination on a particular subject. It is, therefore, accepted that the principle of equal treatment may be deemed to have been breached only if the board has failed, when choosing the tests, to confine the risk of inequality of opportunity to that which is generally inherent in any examination.

Therefore, in the light of the selection board’s obligations, the decision not to include a candidate on a reserve list must be annulled if it becomes apparent that the competition was organised in a manner that created a greater risk of unequal treatment than that inherent in any competition, without the candidate concerned having to provide evidence that some candidates were indeed afforded an advantage.

That does not apply where the tests in a competition include a case study divided into a number of variants, which are designed in such a way that, while still presenting the same degree of difficulty, they contain sufficiently clear differences to prevent candidates from being able to take advantage of any prior knowledge of another variant.

(see paras 43-46, 48)

See:

27 October 1976, 130/75 Prais v Council, para. 13

12 March 2008, T‑100/04 Giannini v Commission, paras 132 and 133

15 April 2010, F‑2/07 Matos Martins v Commission, para. 171 and the case-law cited therein

2. The obligation to recruit officials of the highest standard of ability, efficiency and integrity imposed on the institutions by Article 27 of the Staff Regulations means that the appointing authority and the competition selection board must ensure, each exercising its own powers, that competitions are conducted in compliance with the principles of equal treatment between candidates and objective marking. To that end, the selection board is obliged to ensure consistent application of the assessment criteria to all the candidates concerned by making sure inter alia that its composition is stable throughout the tests.

However, it is possible that where full members of a selection board are prevented from attending and are replaced by alternates for tests sat by certain candidates, so as to enable the board to complete its work within a reasonable period, the composition of the selection board may nevertheless remain sufficiently stable if it organises the coordination needed to ensure consistent application of the marking criteria.

Similarly, the steps taken by a selection board with a view to discharging its obligation to ensure that its composition is stable must, where appropriate, be assessed in the light of the particular characteristics of the recruitment being organised and the practical requirements inherent in the organisation of the competition, although this does not mean that the selection board can exempt itself from observing the fundamental guarantees of equal treatment for the candidates and objectivity in the choice made between them.

It is thus possible that, in the light of the organisation of the tests in a competition and the organisation of the proceedings of the selection board, it may be sufficient, in order to ensure that candidates are assessed on a comparative basis, that the stability of the board is maintained only in some phases of the competition.

Moreover, account must be taken of a selection system in which the stability of the selection board is ensured only in certain key phases of the procedure, but in which candidates are guaranteed equal treatment because the working methods are the same and the same criteria are applied for assessing candidates’ performance.

(see paras 64, 65, 67-69, 73)

See:

25 May 2000, T‑173/99 Elkaïm and Mazuel v Commission, para. 87; 24 September 2002, T‑92/01 Girardot v Commission, paras 24 to 26; 19 February 2004, T‑19/03 Konstantopoulou v Court of Justice, para. 43; 5 April 2005, T‑336/02 Christensen v Commission, para. 44; Giannini v Commission, paras 208 to 216

29 September 2010, F‑41/08 Honnefelder v Commission, para. 35

3. There is no provision of the Staff Regulations which prohibits members of a competition selection board from being officials seconded to the European Personnel Selection Office (EPSO) specifically in order to perform the duties of selection board members.

Moreover, it may not be inferred from the mere fact that the members of a selection board are officials seconded to EPSO in order to perform the duties of selection board members for a limited period that EPSO has, by means of those officials, exercised any influence whatsoever on the selection board’s proceedings.

(see paras 83, 84)