CELEX: 62014FO0142
Language: en
Date: 2015-07-09 00:00:00
Title: Order of the Civil Service Tribunal (Third Chamber) of 9 July 2015.#Manuel Antonio De Almeida Pereira v Eurojust.#Civil service — Eurojust staff — Member of the temporary staff — Vacancy notice — Candidate selection procedure — Examination of applications by a selection board — Admission to the next stage of the selection procedure — Conditions — Scoring of selection criteria — Required points threshold — Rejection of application — Action manifestly lacking any basis in law — Article 81 of the Rules of Procedure.#Case F-142/14.

Parties
               Grounds
               Operative part
               
            
            Parties
            In Case F‑142/14,
            ACTION brought under Article 270 TFEU,
            Manuel Antonio De Almeida Pereira,  residing in Voorburg (Netherlands), represented by E.H. Schulze, lawyer,
            applicant,
            v
            Eurojust,  represented by C. Deboyser and J. Carmona-Bermejo, acting as Agents, and by B. Wägenbaur, lawyer,
            defendant,
            THE CIVIL SERVICE TRIBUNAL (Third Chamber)
            composed of S. Van Raepenbusch, President, H. Kreppel and J. Svenningsen (Rapporteur), Judges,
            Registrar: W. Hakenberg,
            makes the following
            Order 
            
            Grounds
            1. By application lodged at the Registry of the Tribunal on 24 December 2014, Mr De Almeida Pereira brought the present action seeking, in essence, annulment of the decision of 8 August 2014, by which Eurojust decided to reject his application for the post of Advisor to the Office of the President of Eurojust.
            Legal context 
            2. In addition to the provisions of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) and those of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’) regarding the recruitment of temporary staff, the legal framework consists of the Eurojust administrative director’s decision of 27 April 2012 ‘on the improvement of selection procedures for the recruitment of applicants [for posts as members of the temporary staff or of the contract staff]’. That decision provides that selection boards are to invite to interviews only applicants who, on the basis of the preliminary evaluation sheet provided for the purposes of that stage of the selection, score a minimum of 75% with regard to selection criteria considered ‘essential’. However, in certain exceptional cases, selection boards may decide, in agreement with the Head of the human resources unit, to apply a threshold of 60% with regard to those criteria for the purposes of inviting applicants to interviews.
            3. Furthermore, according to Eurojust’s internal rules on recruitment, when a candidate is found ineligible or is not invited to an interview and possibly a written test, the candidate may request the selection board, via the recruitment office of the Eurojust human resources unit, to reconsider its assessment within 20 days of notification of the initial decision adopted by that board. In that event, the selection board must then reconsider the application and notify the candidate of its decision within 45 calendar days of receipt of the request. The applicant is to retain the right to challenge that decision by bringing an action before the Tribunal under Article 270 TFEU and Article 91 of the Staff Regulations.
            Background to the dispute 
            4. On 27 June 2014, the applicant submitted his application for the post of Advisor to the Office of the President, a post in the administrators’ (AD) function group with the grade of AD 6 which had been the subject of a vacancy notice published on the Eurojust website (‘the vacancy notice’) and which had to be filled in the form of a contract as a member of the temporary staff, within the meaning of Article 2(f) of the CEOS, for a period of five years.
            5. By e-mail of 8 August 2014, the applicant was informed by the recruitment office of the Eurojust human resources unit that he had not been selected to participate in further steps of the recruitment procedure (‘the decision to reject the application’).
            6. By letter of 13 August 2014, the applicant, under the reconsideration procedure provided for by the internal rules of Eurojust, challenged the decision to reject the application. In that regard, he argued that he fulfilled all the eligibility criteria contained in the vacancy notice, both in respect of the general requirements, such as those relating to nationality, to his rights as a citizen and to knowledge of languages, and in respect of the minimum qualifications and professional experience, namely that he held a diploma certifying successful completion of university studies of at least three years and provided proof of at least three years’ professional experience acquired after obtaining the diploma.
            7. With regard to the ‘selection criteria’, which were divided into ‘essential criteria’ and ‘advantageous criteria’, the applicant argued that he fulfilled all the criteria considered essential referring, in particular, to long and varied professional experience of 24 years acquired in various fields and with various organisations, such as the European Institute of Public Administration and the United Nations Office on Drugs and Crime, but also with Eurojust, between 2006 and 2009, as a case management analyst. As regards criteria considered advantageous, he stated that he fulfilled the criteria concerning knowledge of additional languages of the European Union, professional experience acquired in a multicultural or European environment and knowledge of judicial cooperation in criminal matters.
            8. The applicant concluded his request of 13 August 2014 by inviting the president of the selection board to reconsider the decision to reject the application and to find that he fulfilled all the eligibility criteria and should, therefore, be invited to participate in the written test and the interview with the selection board.
            9. By letter of 25 September 2014, the Head of the Eurojust recruitment office informed the applicant, who was then working in Somalia in a programme under the United Nations Office on Drugs and Crime, of the decision of the same date adopted by the selection board confirming the rejection of his application (‘the decision of 25 September 2014’).
            10. As regards the reasons for the refusal to include the applicant’s name on the list of candidates invited to the next step of the recruitment procedure, it was explained to the applicant that the selection board had considered that he did indeed fulfil the eligibility criteria, namely the general requirements and the minimum qualification and professional experience requirements, so that the selection board had continued its assessment of his application by submitting it to the next step, consisting of the assessment on the basis of the selection criteria, that is, the criteria considered essential and those considered advantageous. However, following that assessment, the selection board had awarded the applicant 9 points, whereas the minimum threshold, resulting from a rate of 75%, was fixed at 15 points to ensure that only a limited number of candidates would be invited for an interview — in the present case, 3.5% of the candidates. Pointing out that the selection board’s work and deliberations were strictly confidential, the Head of the Eurojust recruitment office indicated, in her letter of 25 September 2014, that she could not discuss with the applicant either the justifications for the scores that had been attributed to him or the relative merits of other candidates.
            Forms of order sought and procedure 
            11. The applicant claims that the Tribunal should: 
            – annul the decision to reject the application, as confirmed by the decision of 25 September 2014;
            – order Eurojust to admit him to participate further in the selection procedure;
            – order Eurojust to pay the costs.
            12. Eurojust contends, in essence, that the Tribunal should:
            – dismiss the action as manifestly inadmissible and, in any event, as manifestly unfounded;
            – order the applicant to pay the costs.
            13. By a letter from the Tribunal Registry of 8 May 2015, Eurojust was requested, pursuant to Article 69(2) of the Rules of Procedure, to provide a copy of the vacancy notice. Eurojust duly complied with that request within the time allowed.
            Law 
            The decision of the Tribunal to give a decision by way of reasoned order 
            14. Under Article 81 of the Rules of Procedure, where an action is, in whole or in part, manifestly inadmissible or manifestly lacking any foundation in law, the Tribunal may, by reasoned order, give a decision on the action without taking further steps in the proceedings.
            15. In particular, according to established case-law, the dismissal of the action by reasoned order adopted on the basis of Article 81 of the Rules of Procedure not only benefits procedural economy, but also saves the parties the costs entailed by the holding of a hearing, where, upon reading the case-file, the Tribunal, provided that it considers itself to be sufficiently informed by the documents before it, is fully satisfied that the application is manifestly inadmissible or is manifestly lacking any foundation in law and considers, moreover, that the holding of a hearing would be unlikely to provide any new information that could influence its view (orders of 10 July 2014 in Mészáros v Commission , F‑22/13, EU:F:2014:189, paragraph 39, and 23 April 2015 in Bensai v Commission , F‑131/14, EU:F:2015:34, paragraph 28).
            16. In the present case, the Tribunal considers that it has sufficient information from the documents before it and decides therefore, pursuant to Article 81 of the Rules of Procedure, to give a decision on the action by reasoned order without taking further steps in the proceedings.
            The claim seeking an order that Eurojust admit the applicant to participate further in the selection procedure 
            17. At the outset, it is noted that it is not for the Tribunal, in an action, like the present case, brought under Article 91 of the Staff Regulations, to issue injunctions to the EU institutions (judgments of 14 September 2010 in Da Silva Pinto Branco v Court of Justice , F‑52/09, EU:F:2010:98, paragraph 31, and 6 November 2014 in DH v Parliament , F‑4/14, EU:F:2014:241, paragraph 41).
            18. Accordingly, in so far as it seeks an order that Eurojust admit the applicant to participate in the remainder of the selection procedure, the present claim must be rejected as manifestly inadmissible.
            The claim for annulment 
            Admissibility
            19. Principally, Eurojust contends that the action is inadmissible in that, in breach of Article 50(1)(e) of the Rules of Procedure, the applicant has not provided a separate, precise and structured summary of the pleas in law and arguments relied on in support of his action.
            20. In that regard, the Tribunal confirms that, according to consistent case-law concerning Article 21 of the Statute of the Court of Justice of the European Union, applicable before the Tribunal pursuant to Article 7 of Annex I to the Statute of the Court, a mere abstract statement of the pleas in law in the application does not satisfy the requirements of the Statute of the Court and that the words ‘summary of the pleas in law’ used in that instrument mean that the application must specify the nature of the pleas on which the application is based (judgments of 16 September 2013 in De Nicola v EIB , T‑618/11 P, EU:T:2013:479, paragraph 57, and 15 October 2014 in De Bruin  v Parliament , F‑15/14, EU:F:2014:236, paragraph 39).
            21. In that regard, the case-law has clarified that the facts and law must be sufficiently clear and precise to enable the defendant to prepare its defence and the Tribunal to rule on the action, if necessary, without any further information. In order to ensure legal certainty and the sound administration of justice, if an action is to be admissible the essential facts and law on which it is based must, therefore, be apparent from the text of the application itself, at the very least summarily, provided that the statement is coherent and intelligible (orders of 28 April 1993 in De Hoe v Commission , T‑85/92, EU:T:1993:39, paragraph 20; 21 May 1999 in Asia Motor France and Others v Commission , T‑154/98, EU:T:1999:109, paragraph 42; and 26 June 2008 in Nijs v Court of Auditors , F‑108/07, EU:F:2008:86, paragraph 28).
            22. However, the Tribunal points out that the wording of Article 50(1)(e) of the Tribunal’s Rules of Procedure, which entered into force on 1 October 2014, is now more demanding than the previous corresponding provision in that it provides that the application must contain ‘a clear summary of the relevant facts presented in chronological order, and a separate, precise and structured summary of the pleas in law and arguments of law relied on’. The purpose of that amendment was, therefore, in particular, to strengthen the requirement that applicants clearly present their pleas in law by requiring that those pleas set out a precise identification of their legal basis, that the argument presented under each plea in law is exclusively related to that basis and that each plea is strictly distinguished from the others, in the interest of all professionals involved in the work of the judiciary, litigants, lawyers, agents and magistrates (judgment of 30 June 2015 in Petsch v Commission , F‑124/14, EU:F:2015:69, paragraph 21).
            23. However, first, the Tribunal finds in the present case that, although the applicant sets out in his application criticisms and comments concerning the decisions which he seeks to have annulled, without necessarily referring formally and clearly to specific grounds for annulment, Eurojust, in its defence, was able to identify certain grounds and to present structured arguments in defence. Moreover, the Tribunal considers itself to be in a position to rule on the action and to assess the legality of the contested decisions having regard to the complaints made by the applicant.
            24. In those circumstances, it may be conceded that the present action is admissible.
            Substance
            –  Arguments of the parties
            25. In support of his action, the applicant argues, in essence, to contest the number of points attributed to him by the selection board, that, taking into account the nature and duration of his professional experience and having regard to certain aspects of his application, such as his range of languages, he met all the selection criteria, both those considered essential and those constituting an advantage, so that he should have been invited to participate in the next step of the recruitment procedure. He claims that, by adopting the decision to reject the application and by confirming the decision of 25 September 2014, Eurojust ‘arbitrarily excluded’ him from the selection procedure, ‘thereby violating the principles of fair and equal treatment of all candidates, laid out in Article 27 of the [Staff Regulations] and [Annex III of the Staff Regulations]’, as well as the ‘the rules governing selection [procedures], and [the right to a] fair process in general’. 
            26. Eurojust contends that the claim for annulment should be rejected stating, in relation to what had already been explained to the applicant in the decision of 25 September 2014, that, of the 15 points available under the selection criteria considered essential, the applicant had been attributed a total of 9 points by the selection board and that, since that result was below the 75% threshold expressly provided for ‘essential criteria’ in Article 1(1) of the Eurojust administrative director’s decision of 27 April 2012, he could not be invited to the interview. In those circumstances, the selection board did not have to consider whether to award the applicant points in respect of the criteria considered advantageous, for which 5 additional points could be attributed. Furthermore, Eurojust states that the selection board had decided, in order to invite only 3.5% of the total number of candidates to the next step of the selection procedure, to set the number of points required to be invited to that next step at 17 points out of 20, across all the selection criteria.
            27. Eurojust considers that, in general, the applicant has not provided specific evidence to substantiate his allegations of arbitrary and/or discriminatory treatment. It contends that the applicant merely asserts, according to his own assessment of the merits of his application, that he should have been selected for the written test and interview. Eurojust believes that it conducted the selection procedure fairly. Thus, of the 251 candidates who responded to the vacancy notice, 194 fulfilled the eligibility criteria; of the latter, it is contended that only 13 candidates obtained, for the selection criteria considered essential, a score greater than or equal to the threshold of 75%, of whom only 9 candidates obtained more than 17 out of 20 points across all the selection criteria. Accordingly, only those last 9 candidates were invited to participate in the next step of the recruitment procedure. It was, therefore, according to Eurojust, a highly competitive recruitment procedure in which other candidates had profiles that corresponded more closely than the applicant’s did to the requirements of the post to be filled.
            – Findings of the Tribunal
            28. In the light of the applicant’s arguments, the Tribunal understands that he claims that, given the assessment made by Eurojust’s internal selection board, it committed an error in the assessment of the merits of his application, as revealed in the contested decisions, and acted in an arbitrary and discriminatory manner by excluding him from the selection procedure.
            29. In that regard the Tribunal notes that, according to settled case-law, in exercising the discretion available to it regarding an appointment or engagement, the administration must examine carefully and impartially all the relevant parts of each application and meticulously observe the requirements laid down in the vacancy notice, thus being required to reject any candidate who does not meet those requirements. The vacancy notice constitutes a legal framework which the administration imposes on itself and to which it must adhere strictly (see, to that effect, judgments of 30 October 1974 in Grassi v Council , 188/73, EU:C:1974:112, paragraphs 26, 38 and 41; 18 September 2003 in Pappas v Committee of the Regions , T‑73/01, EU:T:2003:237, paragraph 54; and 11 December 2012 in Trentea v FRA , F‑112/10, EU:F:2012:179, paragraph 101).
            30. As to whether there was any error in the choice of the successful candidate, such an error must be manifest and must exceed the wide discretion enjoyed, within the legal framework laid down in the vacancy notice, by the administration in comparing the merits of candidates and in assessing the interests of the service. The Tribunal’s review must be confined, therefore, to the question whether, having regard to the considerations which influenced the administration in making its assessment, the latter remained within reasonable bounds and did not use its power in a manifestly incorrect way or for purposes other than those for which that power was conferred on it (judgment of 6 May 2009, Campos Valls v Council , F‑39/07, EU:F:2009:45, paragraph 43).
            31. In carrying out its review of legality the Tribunal cannot, therefore, substitute its assessment of the merits and qualifications of the candidates for that of the administration where there is nothing in the file to suggest that, in assessing those merits and qualifications, the administration committed a manifest error (see, for example, judgments of 4 February 1987 in Bouteiller v Commission , 324/85, EU:C:1987:59, paragraph 6, and 11 December 2012 in Trentea v FRA , F‑112/10, EU:F:2012:179, paragraph 102).
            32. In the present case, as regards the applicant’s assumption that his profile and professional experience corresponded perfectly to the requirements of the post and should have led the selection board, acting in the present case on behalf of Eurojust, to invite him to the next step of the recruitment procedure, the Tribunal finds that the applicant’s allegations are not based on specific evidence, but only on his own assessment of the merits of his application. The applicant’s reasoning seems to have as its starting point the mistaken premiss, comparable to the assessment of whether a prima facie case has been made out in summary proceedings, that evidence showing prima facie illegality would be sufficient to enable the Tribunal to annul the contested decision. However, as has already been pointed out, in relation to recruitment, it is for the unsuccessful candidate to prove, by means of specific evidence in the file, that the administration has committed a manifest error of assessment.
            33. In any event, the Tribunal considers that the mere fact that the applicant’s candidature has obvious and acknowledged merits does not exclude the possibility that, in the context of consideration of the comparative merits of candidates, other candidates may have greater merits. Likewise, the fact that the applicant fulfilled all of the eligibility criteria contained in the vacancy notice, which is not contested by Eurojust, clearly does not suffice, in itself, to prove that the administration, in the present case through the decision of an internal selection board, committed a manifest error of assessment by deciding, having regard to the number of points that the applicant had obtained for selection criteria considered essential, namely 9 points out of 15, and applying the threshold of 75% laid down for those criteria in the Eurojust administrative director’s decision of 27 April 2012, not to invite him to participate in the next step of the selection procedure, that is, a written test and/or interview with that board (see judgment of 11 December 2012 in Trentea v FRA , F‑112/10, EU:F:2012:179, paragraph 104).
            34. The above considerations are all the more valid having regard to the settled case-law according to which the authority empowered to conclude contracts of employment has a wide discretion when comparing the merits of the candidates for a post as a member of the temporary staff (see, to that effect, judgments of 13 December 1990 in Moritz v Commission , T‑20/89, EU:T:1990:80, paragraph 29, and 9 July 2002 in Tilgenkamp v Commission , T‑158/01, EU:T:2002:180, paragraph 50 and the case-law cited). It could therefore, in the context of its power of internal organisation and by means of internal rules, such as the Eurojust administrative director’s decision of 27 April 2012, decide that, in general, only candidates having obtained a number of points exceeding a certain threshold, in the present case the threshold of 75% of the points attributed under selection criteria considered essential, could be invited to an interview with the selection board appointed by Eurojust. For the same reasons, those internal rules could provide that, in specific cases, the internal selection board could decide, as in the present case, in a uniform manner for all candidates, to raise the selectivity threshold by requiring a total of 17 out of the 20 points available, across all the selection criteria, to be invited to the next step of the recruitment procedure, whether that is a written test or an interview or both. Moreover, the applicant has not established any infringement of those internal rules.
            35. As regards the applicant’s professional experience, the length and variety of which he emphasises, the Tribunal finds that the selection board could legally specify, in the vacancy notice requirements, both the level of qualifications required and the degree of their material or functional relevance to the duties to be performed (see, to that effect, judgment of 9 July 2002 in Tilgenkamp v Commission , T‑158/01, EU:T:2002:180, paragraph 55 and the case-law cited).
            36. Accordingly, and in the absence of evidence or even prima facie evidence to show that candidates with a profile less suitable than the applicant’s were invited to participate in the next step of the recruitment procedure, or in the absence of even a likelihood of such facts, the decisions contested by the applicant are presumed lawful (see, to that effect, judgments of 4 February 2010 in Wiame v Commission , F‑15/08, EU:F:2010:7, paragraph 21, and 24 April 2013, in BX v Commission , F‑88/11, EU:F:2013:51, paragraph 33).
            37. In that regard, the fact that the applicant was not selected to participate in the next step of the recruitment procedure cannot, in itself, justify the conclusion that the contested decisions are discriminatory or arbitrary. On the contrary, in the light of the replies provided by Eurojust, both in the decision of 25 September 2014 and in its defence, it is apparent that the decision rejecting the application results from a consideration of the comparative merits of the various candidates by the selection board. Moreover, the fact that the applicant’s professional experience may have been, quantitatively, superior to that of the successful candidate was not, in itself, relevant (see, to that effect, judgments of 19 February 1998 in Campogrande v Commission , T‑3/97, EU:T:1998:43, paragraph 124; 16 December 1999 in Cendrowicz v Commission , T‑143/98, EU:T:1999:340, paragraph 67; and 9 July 2002 in Tilgenkamp v Commission , T‑158/01, EU:T:2002:180, paragraph 59). Accordingly, the Tribunal considers that the fact that, in the present case, the applicant has almost 24 years of professional experience did not preclude the selection board from deciding not to accept his candidature for the next step of the recruitment procedure.
            38. As regards the reasons underlying the awarding of points for the applicant’s candidature, the Tribunal notes that, in the context of a recruitment procedure to fill a vacant post for a member of the temporary staff, as in the present case, the duty to state reasons must be reconciled with observance of the secrecy surrounding the proceedings of selection boards to which the administration has entrusted the task of assessing, on its behalf, the merits of the candidates, and that secrecy precludes disclosure of the attitudes adopted by individual members of the selection board and disclosure of factors relating to individual or comparative assessments of candidates (see, to that effect, judgments of 11 December 2012 in Trentea v FRA , F‑112/10, EU:F:2012:179, paragraph 90 and the case-law cited, and 5 March 2015 in Gyarmathy v FRA , F‑97/13, EU:F:2015:7, paragraph 48).
            39. It follows that, in view of the secrecy surrounding the proceedings of the selection board, communication of the scores obtained by the applicant in the various tests constitutes, in principle, an adequate statement of the reasons on which the selection board’s decisions are based (see, to that effect, Gyarmathy v FRA , F‑97/13, EU:F:2015:7, paragraph 49 and the case-law cited), so that the applicant’s request that the Tribunal should order Eurojust to provide the selection board’s assessment of the merits of all the candidates, must be rejected. For the sake of completeness, the Tribunal considers that the applicant’s request for a measure of inquiry in that regard is more in the nature of an attempt to obtain new evidence in support of its action and that, in the light of the case-law, it should not be granted (see, to that effect, judgment of 23 May 2014 in European Dynamics Luxembourg v ECB , T‑553/11, EU:T:2014:275, paragraphs 317 and 318 and the case-law cited).
            40. As regards the allegations of a breach of the principle of equal treatment, arbitrary conduct in the selection procedure and breach of Article 27 of the Staff Regulations, of Annex III of the Staff Regulations and of the principle of transparency, the Tribunal finds that they are in no way substantiated and appear to be purely speculative.
            41. In the light of all the foregoing considerations, the claim for annulment must be rejected as being manifestly unfounded, and, therefore, the action must be dismissed in its entirety.
            Costs 
            42. Pursuant to Article 101 of the Rules of Procedure, subject to the other provisions of Chapter 8 of Title 2 of those Rules, the unsuccessful party is to bear his own costs and is to be ordered to pay the costs incurred by the other party if they have been applied for in the other party’s pleadings. Under Article 102(1) of those Rules, if equity so requires, the Tribunal may decide that an unsuccessful party is to bear his own costs, but is to pay only part of the costs incurred by the other party, or even that he is not to be ordered to pay any costs. 
            43. It is apparent from the reasons set out in the present order that the applicant has been unsuccessful. Furthermore, in its pleadings Eurojust has expressly requested that the applicant be ordered to pay the costs. Since the circumstances of the present case do not warrant application of Article 102(1) of the Rules of Procedure, the applicant must bear his own costs and be ordered to pay the costs incurred by Eurojust. 
            
            Operative part
            On those grounds,
            THE CIVIL SERVICE TRIBUNAL (Third Chamber)
            hereby orders:
            1. The action is dismissed as manifestly unfounded. 
            2. Mr De Almeida Pereira is to bear his own costs and is ordered to pay the costs incurred by Eurojust. 
            Luxembourg, 9 July 2015