JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Third Chamber)

24 April 2013

Case F‑73/11

CB

v

European Commission

(Civil service — Officials — Open competition — Notice of competition EPSO/AD/181/10 — Non-admission to the assessment tests)

Application: under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which CB seeks annulment of the decision of the selection board in open competition EPSO/AD/181/10, communicated by letter from the European Personnel Selection Office (EPSO) of 20 August 2010 and confirmed after review, refusing the applicant access to the assessment tests of that competition.

Held: The action is dismissed. The Commission is to bear its own costs and is ordered to pay half of the costs incurred by CB. CB is to bear half of his own costs.

Summary

1. Officials — Competitions — Competition based on qualifications and tests — Conditions for admission — Diplomas produced or professional experience attested — Discretion of the selection board — Judicial review — Limits

(Staff Regulations, Art. 27; Annex III, Art 5)

2. Officials — Competitions — Organisation — Conditions for admission and arrangements — Discretion of the appointing authority — Competition with many entrants — Recourse to pre-selection tests — Verifying that the conditions for admission to the competition laid down in the notice of competition were met — Decision to exclude taken after the pre-selection tests — Whether permissible

(Staff Regulations, Annex III, Arts 4 and 5)

3. Officials — Competitions — Assessment of candidates’ abilities — Arrangements for taking into account the number of publications

(Staff Regulations, Annex III, Art. 5)

1. The notice of competition may merely repeat a general formula, without specifying the level of experience required for the post to be filled, and thus leave it to the selection board to decide in each case whether the qualifications and diplomas produced and the relevant experience claimed by each candidate correspond to the level required by the Staff Regulations and, therefore, by the notice of competition, for the discharge of duties pertaining to the category to which that notice refers.

In that regard, the selection board enjoys a discretion, in assessing the previous experience of candidates, both as regards the nature and length of that experience and as regards the extent to which it meets the requirements of the post to be filled. In its review of legality, the European Union Court must confine itself to ascertaining whether the selection board’s decisions were free from manifest errors.

As regards a notice of competition which states that professional experience in negotiations at an international level would be an asset for the selection of candidates, taking into account the nature of the duties of the positions to be filled covered by the notice of competition, in particular in so far as those duties may include participation in negotiations between the European Union and third countries or international organisations, it is permissible for the selection board, within the limits of its broad discretion, to interpret that asset as relating only to public international negotiations without infringing the notice of competition. In that regard, the fact that consideration is given only to that experience cannot be defined as a manifest error of assessment.

Furthermore, the selection board may not take into account the same work of a particular candidate twice when selecting candidates. The selection board seeks to admit candidates with the highest standard of ability, which implies, in particular, those with the most experience possible. A situation where a candidate, on behalf of whom the same work was taken into account two or more times, was admitted and candidates who had much more experience, but who had their work taken into account only once, were excluded, would, therefore, contravene the objective of Article 27 of the Staff Regulations.

(see paras 42-44, 52, 63, 74)

See:

14 June 1972, 44/71 Marcato v Commission, para. 14; 12 July 1989, 225/87 Belardinelli and Others v Court of Justice, paras 13-14

12 June 1997, T‑237/95 Carbajo Ferrero v Parliament, para. 48; 21 November 2000, T‑214/99 Carrasco Benítez v Commission, para. 70; 28 November 2002, T‑332/01 Pujals Gomis v Commission, paras 39-40; 31 January 2006, T‑293/03 Giulietti v Commission, paras 64-65

2. The appointing authority enjoys a wide discretion in deciding upon the rules and conditions under which a competition is organised and it is for the EU Court to censure its choice only if the limits of that discretion have not been observed.

In the exercise of that discretion that authority may, when it organises an open competition, provide in the competition notice for an initial stage of pre-selection by the selection board so as to retain only those candidates who, in the appropriate field, possess the qualifications required for admission to the competition, in order to meet the requirements of rational organisation of the competition, in accordance with the principle of sound administration.

In that connection, a procedure consisting, in particular in competition procedures involving a large number of candidates, in ascertaining only after the pre-selection tests whether candidates meet the specific conditions for admission to the competition, is consistent with Articles 4 and 5 of Annex III to the Staff Regulations and the institution’s interest in ensuring that only candidates meeting those conditions take part in the tests of the competition, and with the principle of sound administration.

(see paras 81-83)

See:

26 October 2004, T‑207/02 Falcone v Commission, paras 38-40

3. As regards the award of points by a selection board to candidates in the light of their publications, where the selection board of the competition can assign a maximum of four points, there cannot be a mathematical correspondence between, on the one hand, the number of pages and the number of publications and, on the other hand, the number of points awarded by the selection board.

(see para. 94)