JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber)

6 November 1997

Case T-71/96

Sonja Edith Berlingieri Vinzek

v

Commission of the European Communities

‛Officials — Competition based on qualifications and tests — Non-admission to the oral tests’

Full text in French II-921

Application for:

annulment of the decision of the selection board in Competition COM/A/955 of 26 March 1996 not to admit the applicant to the oral test in the competition and, so faias is necessary, of its initial decision of 16 February 1996.

Decision:

Application dismissed.

Abstract of the Judgment

The notice of Open Competition COM/A/955 for the constitution of a reserve list for the recruitment of principal administrators (A 5/A 4) of Austrian nationality was published in the Official Journal of the European Communities of 4 October 1995 (OJ 1995 C 259 A, p. 9, German version only). That competition, based on qualifications and an oral test, comprised four options, including one for the recruitment of staff with experience of general administration, public administration or management.

Point IV.B of the notice of competition, concerning the examination of qualifications, was worded as follows:

‘1. Following admission to the competition, the selection board will as a first step establish the criteria on the basis of which it will assess the candidates' qualifications, taking particular account of the nature and duration of the professional experience in relation to the competition.

2. The selection board will then proceed, on the basis of those criteria, to examine the qualifications of the candidates admitted to the competition. Those candidates with the best qualifications will be admitted to the oral test.’

The applicant, who is an Austrian national, is professionally qualified as a veterinary practitioner and, since 1974, has held various posts as an independent consultant in technical and administrative areas connected with the veterinary sector. She lodged her candidature for Competition COM/A/955 in the appropriate manner, choosing the option ‘general administration, public administration and management’.

By letter of 16 February 1996, she was informed that the selection board for the competition, after examining the documents submitted by candidates evidencing their qualifications in accordance with points IV.B.l and IV.B.2 of the competition notice, and having taken into account, in particular, the nature and duration of her professional experience in relation to the competition, had decided not to admit her to the oral test, even though she fulfilled the conditions for admission laid down by the competition notice.

By letter of 29 February 1996, the applicant requested that that decision be reexamined. The Commission rejected that request by a letter from the Head of Unit 7 (Recruitment) of Directorate A (Personnel) of the Directorate-General for Personnel and Administration (DG IX) (Unit IX.A.7) of 26 March 1996.

By letter of 23 April 1996, the applicant's lawyer reiterated the request for notification of the criteria used to assess the candidates' merits and the exact moment of their adoption. As the Commission made no immediate reaction to that request, the applicant brought the present action by application lodged at the Registry of the Court of First Instance on 15 May 1996.

By a letter of 6 June 1996 to the applicant's lawyer, the Head of Unit IX.A.7 specified the criteria adopted by the selection board ‘at the beginning of its work’ as follows:

‘In assessing the files of candidates entered for die competition in order to select those to be admitted to the oral test, the selection board has decided to take into consideration all the conditions for admission laid down in the competition notice, especially professional experience, and to assess the candidates by reference to their respective merits.

For candidates' professional qualifications, the selection board has decided to give a mark out of a maximum of 45 points, by reference to the extent of those qualifications.

Regarding professional experience, the following aspects in particular are to be assessed: duration, nature of the professional activity exercised, level and quality of the functions performed, any experience in international organizations. Professional experience is to be marked as a whole out of a maximum of 65 points.

For knowledge of languages, the selection board has fixed a maximum of 7 points, by reference to the extent of that knowledge.

The selection board has decided to admit to the oral test only those candidates who score at least 80 points out of the maximum possible of 117.’

In the same letter, the rejection of the applicant's candidature was explained as follows:

‘The points awarded by the selection board to Ms S. Berlingieri Vinzek, namely 25 for “professional qualification”, 30 for “professional experience” and 7 for “knowledge of languages” were insufficient for the selection board to place her amongst the candidates to be called to the oral test.

It was, in particular, because your client's professional experience was essentially centred on an occupation as a veterinary consultant that the selection board was able to award her a mark of only 30 points out of 65.’

By letter to the Registry of the Court of First Instance of 2 June 1997, the applicant sought leave to place on the Court's file a series of documents concerning her admission to the list of suitable candidates in Competition COM/A/1032, organized with a view to recruiting the Head of Unit 2 ‘Veterinary and zootechnical legislation’ in Directorate B.II ‘Quality and health’ in the Directorate-General for Agriculture (DG VI) (Unit VI.B.II.2), which was notified to her by a letter from the Commission of 16 April 1997.

The second head of claim

The applicant seeks annulment not only of the selection board's decision of 26 March 1996, but also, so far as is necessary, of its initial decision of 16 February 1996 (paragraph 17).

It is settled case-law that a decision whereby the selection board in a competition refuses to admit a candidate to tests, having carried out a reexamination of that person's candidature at his request, replaces its previous decision and cannot be regarded as merely confirming it (paragraph 18).

See 294/84 Adams and Others v Commission [1986] ECR 977, paras 14 lo 16; 206/85 Beiten v Commission [1987] ECR 5301. para. 8; T-16/90 Panagwtopoulous Parliament [1992] ECR II-89. para. 20; T-82/92 Cortes J imenei and Others v Commission [1994] ECRSC II-237, para. 17

There is therefore no need to adjudicate on the claim for annulment of the selection board's decision of 16 February 1996 (paragraph 19).

The addition to the file of the documents relating to Competition COM/A/1032

Although there is no provision in the Rules of Procedure which expressly sets out the conditions in which fresh documents may be put forward at the hearing, the consistent practice of the Court of First Instance, on the basis of the principle that both parties should be heard and of respect for the rights of the defence, is to accept the lodging of such documents only in exceptional circumstances where, for valid reasons, it was not possible to produce them in the course of the written procedure (paragraph 22).

In this case the applicant has validly explained why she could not produce the documents in question during the written procedure. Moreover, the Commission's rights as defendant are not prejudiced by the late production of these documents, since they had either already been addressed to the Commission in a job application procedure, or emanated from the Commission's own departments (paragraph 23).

Substance

The first plea, alleging illegality of Competition Notice COM/A/955 and the decisions adopted thereunder

It is clear from Article 4, read together with the first, second, third and fourth paragraphs of Article 5 of Annex III to the Staff Regulations, that, having taken cognizance of the files, the selection board must first of all draw up the list of candidates admitted to the competition. It then determines how the candidates' qualifications are to be assessed and, on the basis of the criteria chosen, assesses the qualifications of the candidates admitted to the competition (paragraph 32).

See: 361/87 and 362/87 Caturla-Pochand de la Fuente Pascuala Parliament [1989] ECR 2471, para. 8

In this case, the Commission duly complied with that procedure (paragraph 33).

The criteria adopted by the selection board in this case, and in particular those relating to candidates' professional experience (duration, nature of the professional activity exercised, level and quality of the functions performed, any experience in international organizations), are normal qualitative criteria in assessing the qualifications of candidates in a competition (paragraph 38).

The assessments made by a selection board in assessing the suitability of candidates may be subject to review by the Community judicature only where there is a flagrant breach of the rules governing the selection board's work. In this case, those rules require the selection board to follow the procedure it did (paragraph 39).

See: T-17/90, T-28/91 and T-17/92 Cámara Alloisio and Others v Commission [1993] ECR II-841, para. 90

The second plea, alleging manifest error of assessment

Within the framework of the conditions and requirements laid down by the notice of competition, the selection board has a wide discretion as to the detailed rules for conducting the competition and the detailed content of the tests to be held. The Community judicature may censure the conduct of a test only in so far as it is necessary in order to ensure equal treatment of candidates and the objectivity of the selection made between them (paragraph 46).

See: 64/86, 71/86, 72/86, 73/86 and 78/86 Sergio and Others v Commission [1988] ECR 1399, para. 22; T-153/95 Kaps v Court of Justice [1996] ECRSC II-663, para. 37

Those principles apply to the comparative examination of candidates' qualifications, at which stage the selection board carries out a first selection amongst candidates, on the basis of die criteria it has previously established, so as to select only the best and the most suitable qualifications in relation to the duties to be carried out (paragraph 48).

In this case, the applicant has not established that the selection board made an obvious error of assessment, having regard to the nature of the posts of principal administrator (A 5/A 4) to be filled, by giving a less favourable mark for her professional experience ‘essentially centred on work as a veterinary consultant’ than to that of persons carrying out administrative, supervisory or managerial duties (paragraph 55).

For the remainder, the applicant has adduced no evidence of any unequal treatment of candidates by the selection board, such as to cast doubt on the objectivity of its work (paragraph 56).

As for the subsequent inclusion of the applicant on the list of suitable candidates of Competition COM/A/1032, that special competition was held with a view to recruiting a Head of Unit in the area of veterinary and zootechnical legislation, in which the applicant has specific professional experience. Whatever criteria might be adopted by the selection board in a special competition of that type in order to assess the merits of candidates, no useful comparison can be made between its work and that of the selection board in a general competition organized with a view to recruiting staff with experience of general administration, public administration or management. The ‘professional experience’ required of candidates in a competition must be interpreted exclusively in the light of the aims of that competition, as set out in the general description of duties contained in the competition notice (paragraph 57).

See: T-50/89 Span v Commission [1990] ECR II-207, para. 18

ne third plea, alleging infringement of the duty to state reasons

The purpose of the obligation under Article 25 of the Staff Regulations to state grounds for any decision adversely affecting an official is both to enable the Community judicature to exercise review of the legality of the decision and to give the person concerned the necessary information to ascertain whether or not the decision is well founded. More particularly concerning decisions refusing admission to a competition, the selection board must to that end indicate precisely those conditions laid down in the competition notice which have been considered not to have been fulfilled by the candidate. In a competition in which there is a large number of applicants, the selection board may initially give only summary grounds for the rejection and send to candidates merely information on the criteria for selection and the result thereof (paragraphs 72 to 74).

See: 4/78, 19/78 and 28/78 Salerno and Others v Commission [1978] ECR 2403; 108/84 De Santis v Court of Auditors [1985] ECR 947; 225/87 Belardinelli v Court of Justice [1989] ECR 2353, para. 7; T-54/91 Almeida Antunes v Parliament [1992] ECR II-1739, para. 33; T-27/92 Camera-Lampitelliand Others v Commission [1993] ECR II-873. para. 51; T-289/94 Innamorati v Parliament [1995] ECRSC II-393, para. 27; T-125/95 Belhanbel v Commission [1996] ECRSC II-115, para. 21

In this case, therefore, the selection board cannot be blamed for informing the applicant of its decision not to admit her to the oral test by means of the standard-form letter of 16 February 1996, which indicated with sufficient clarity which conditions in the competition notice the selection board considered not to be satisfied (paragraph 75).

Nevertheless, the selection board in a competition is obliged to provide individual explanations subsequently to those candidates who expressly request them. Those individual details must be sent by the selection board before the expiry of the period laid down by Articles 90 and 91 of the Staff Regulations, so that the recipients may, if they think fit, avail themselves of their rights. The decision of a selection board not to admit a candidate to the next stage of a competition may be said to give adequate reasons only if it explains to the person concerned the reasons why he did not satisfy the selection criteria. The difficulties inherent in any comparative examination cannot exempt the selection board from the obligation to provide such a statement of reasons. Likewise, the need to make an overall assessment of the candidates does not preclude a statement of reasons which meets the criteria laid down by the Court (paragraph 76).

See: 225/82 Vernek v Commission [1983] ECR 1991, para. 16; Sergio and Others v Commission, cited above, para. 49

Since the letter of 26 March 1996 did not inform the applicant of the general criteria on which the qualifications of the candidates were appraised or the results of the selection made and did not contain any statement, even in summary form, of the reasons on which the decision relating to her was based, the selection board thus did not give sufficient reasons for its decision not to admit her to the oral test and the plea directed against the initial reasoning for that decision is well founded (paragraphs 77 and 78).

See: Verzyck v Commission, cited above, para. 17; Sergio and Others v Commission, cited above, para. 51

Although the total absence of a statement of reasons for a decision cannot be rectified by explanations provided following the bringing of an action, since at that stage such explanations no longer fulfil their function, it is permissible in the case of an insufficient statement of reasons for further explanations to be provided in the course of the proceedings, thereby rendering a plea that the statement of reasons has been defective nugatory and thus no longer justifying the annulment of the decision in question, provided always that the institution is not entitled to substitute an entirely new statement of reasons for the initial erroneous statement (paragraph 79).

See: 195/80 Michel v Parliament [1981] ECR 2861, para. 22; 111/83 Picciolo v Parliament [1984] ECR 2323, para. 22; 12/84 Kypreos v Council [1985] ECR 1005, para. 8; Sergio and Others v Commission, cited above, para. 52; C-343/87 Culin v Commission [1990] ECR I-225, para. 15; C-115/92 P Parliament v Volger [1993] ECR I-6549, para. 23; T-160/89 and T-161/89 Kalavros v Court of Justice [1990] ECR II-871, para. 72; T-52/90 Volger v Parliament [1992] ECR II-121, paras 40 and 41; T-25/92 Vela Palacios v ESC [1993] ECR II-201, para. 26; T-78/92 Perakis v Parliament [1993] ECR II-1299. para. 52; T-18/92 and T-68/92 Coussios v Commission [1994] ECRSC II-171, paras 74 to 76; T-230/94 Farrugia v Commission [1996] ECR II-195, paras 31 to 38

The reasons given by the Commission in its letter of 6 June 1996 are capable of rectifying the initial defects in the statement of reasons, to the extent authorized by the case-law (paragraph 81).

Moreover, notification of the specific marks obtained by a candidate in the various tests constitutes a sufficient statement of reasons for the value judgment made by the selection board (paragraph 84).

See: C-254/95 P Parliament v Innamorati [1996] ECR I-3423, para. 31; T-156/89 Valverde Mortit v Court of Justice [1991] ECR II-407, paras 130 to 133; Camera-Lampitelli and Others v Commission, cited above, paras 51 and 52; Belhanbelv Commission, cited above, para. 22, Kaps v Court of Justice, cited above, para. 81

Operative part:

The application is dismissed.

The Commission is ordered to pay its own costs and one third of the applicant's costs.