JUDGMENT OF THE COURT OF FIRST INSTANCE (Single Judge)

25 May 2000

Case T-173/99

Gilbert Elkaïm and Philippe Mazuel

v

Commission of the European Communities

‛Officials — Open competition based on qualifications and tests — Infringement of notice of competition — Equal treatment of candidates — Principle of sound administration — Abuse of powers and of procedure’

Full text in French II-433

Application for:

first, annulment of open competition COM/A/15/98, of the lists of suitable candidates drawn up following that competition and of any recruitment made on the basis of those lists and, second, a direction to the Commission to hold a fresh competition.

Held:

The appeal is dismissed. The parties shall bear their own costs.

Summary

Procedure — Costs — Article 88 of the Rules of Procedure of the Court of First Instance — Scope ratione personae — Action brought by a candidate not admitted to the tests in an open competition

Officials — Competitions — Selection Board — Composition — Requirement that members of the Selection Board be chosen from among officials of a grade at least equal to that of the post to be filled

An application by a candidate who was not included on the list of suitable candidates, drawn up following a competition, for annulment of the competition procedure is admissible only in so far as it concerns the refusal of the Selection Board to enter him on the list of suitable candidates. (see para. 23) See: T-74/91 Tancredi v Parliament [1992] ECR II-1645, para. 17, and the case-law cited therein

Where a test in an open competition held for the purpose of constituting a reserve list for future recruitment is annulled, the rights of an applicant who was unsuccessful in that test will be adequately protected if the Selection Board and the appointing authority reconsider their decisions and seek a just solution in his case, without its being necessary to call in question the entire results of the competition or to annul the appointments made as a result thereof. (see para. 23) See: C-242/90 P Commission v Albani and Others [1993] ECR I-3839, para. 13, and the case-law cited therein

In order to be constituted in accordance with the provisions of the Staff Regulations and of Article 3 of Annex III thereto, the Selection Board in a competition based on qualifications and tests must be composed in such a way as to guarantee an objective assessment of the performance of candidates in the tests in relation to the professional qualities expected. However, the requirements which the abilities of the members of the Selection Board must satisfy vary according to the particular circumstances of each competition. In that regard, the appointing authority and the Staff Committee enjoy a wide discretion to evaluate the abilities of the persons whom they nominate as members of the Selection Board and it is not for the Court to criticise their choice if the limits ofthat discretion are not exceeded. Where one competition is held in order to constitute two separate reserve lists and for that purpose includes two distinct options, the fact that the same Selection Board is responsible for evaluating the results of the tests associated with the two options is not a ground of irregularity, provided that the members of the Selection Board have the necessary abilities to make an objective assessment of the performance of the candidates in the tests for each option. (see paras 70 and 71) See: Valverde Mordt v Court of Justice, cited above, paras 195 and 196, and the case-law cited there; T-166/95 Karagiozopoulou v Commission [1997] ECRSC I-A-397 and II-1065, para. 34

Having regard to the third paragraph of Article 3 of Annex III to the Staff Regulations, which provides that members of a selection board are to be chosen from officials whose grade is at least equal to that of the post to be filled, an institution cannot be criticised for not having appointed a person from outside the institution as chairman of the selection board. (see para. 107)

There is no abuse of power, of which abuse of procedure is merely one form, unless it is proved that in adopting the contested measure the appointing authority pursued an aim other than that laid down in the rules in question or if it is apparent, on the basis of objective, relevant and consistent evidence, that the contested measure was adopted for purposes other than those stated. (see para. 120) See: T-86/97 Apostolidis v Court of Justice [1998] ECRSCI-A-167 and II-521, para. 61, and the case-law cited therein