JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

10 July 2014

Case F‑115/11

CG

v

European Investment Bank (EIB)

(Civil service — Staff of the EIB — Appointment — Post as Head of Division — Appointment of a candidate other than the applicant — Irregularities in the selection procedure — Duty of impartiality of the members of the selection panel — Reprehensible behaviour of the Chairperson of the selection panel vis-à-vis the applicant — Conflict of interests — Oral presentation common to all the candidates — Documents supplied for the oral presentation apt to favour one of the candidates — Candidate having assisted in the drafting of the documents supplied — Breach of the principle of equal treatment — Action for annulment — Request for compensation)

Application:      under Article 270 TFEU, in which CG, in essence, requests the Tribunal to annul the decision of the President of the European Investment Bank (‘the EIB’ or ‘the Bank’) to appoint Mr A, instead of the applicant, to the post of head of the ‘Risk Policy and Pricing division’ (‘the “RPP” division’), part of the Credit Risk department of the Risk Management Directorate-General (DG) (‘the “Risk Management” DG’), and to order the Bank to make reparation for the material and non-material damage which she claims to have sustained.

Held:      The decision of the President of the European Investment Bank of 28 July 2011 appointing Mr A to the post of head of the ‘Risk Policy and Pricing’ division is annulled. The European Investment Bank is ordered to pay CG the sum of EUR 25 000. The remainder of the action is dismissed. The European Investment Bank is to bear its own costs and is ordered to pay the costs incurred by CG.

Summary

1.      Officials — Staff of the European Investment Bank — Vacancy — Selection panel — Application of the principles governing the proceedings of selection boards in competitions — Principle of impartiality — Obligation for a member of the panel to abstain from assessing a candidate where there is a conflict of interests between the member and the candidate

(Charter of Fundamental Rights of the European Union, Art. 41; Staff Regulations of Officials, Art. 11a and Annex III)

2.      Officials — Competitions — Organisation and content of tests — Oral test — Choice of documents provided for candidates giving one of them an advantage — Breach of the principle of equal treatment

(Staff Regulations of Officials, Annex III)

3.      Actions brought by officials — Staff of the European Investment Bank — Pre-litigation procedure — Optional nature — Possibility of analogy with the pre-litigation procedure laid down in the Staff Regulations of Officials — None

(Staff Regulations of Officials, Arts 90 and 91; Staff Regulations of the European Investment Bank, Art. 41)

1. The wide discretion which a selection board enjoys in determining the procedures and the detailed content of the oral tests which candidates are required to undergo must be offset by a scrupulous observation of the rules governing the organisation of those tests. Consequently, a selection board in a competition is required to ensure that its assessments of all the candidates examined in the oral tests are made in conditions of equality and objectivity. That applies even where the recruitment procedure does not take the form of a competition but of a selection procedure involving a selection panel, since the purpose of a selection panel, like that of a selection board, is to choose the best candidates from among those who applied following the publication of a vacancy notice and it has significant discretion when organising the selection tests.

In that regard, the mere fact that a member of a selection board in a competition or a panel in a selection procedure is the subject of a complaint for harassment lodged by a candidate in the competition or the selection procedure does not as such mean that the member concerned is required to recuse himself from the selection board or selection panel. On the other hand, if it is apparent, on the basis of objective, relevant and consistent evidence, that that member of the selection board has a conflict of interests in the sense that he has, directly or indirectly, a personal interest in acting to the advantage or disadvantage of one of the candidates, the obligation of impartiality, as enshrined in Article 41 of the Charter of Fundamental Rights of the European Union, requires that he be unable to express his opinion on the merits of that candidate, in particular where it is supposed that the person eventually selected will subsequently work under his authority.

(see paras 59, 60, 65, 76)

See:

judgments in Girardot v Commission, T‑92/01, EU:T:2002:220, para. 24; Christensen v Commission, T‑336/02, EU:T:2005:115, para. 38; and Pantoulis v Commission, T‑290/03, EU:T:2005:316, para. 90 and the case-law cited therein

judgment in BY v EASA, F‑81/11, EU:F:2013:82, para. 72

2. The principle of non-discrimination, or equal treatment, requires that comparable situations are not treated differently, unless such different treatment is objectively justified. That principle is a fundamental principle of EU law which applies, in particular, in the field of competitions and which the selection board must ensure is strictly observed in the competition.

In that regard, any examination entails, generally and inherently, a risk of unequal treatment, in the light of the necessarily limited number of questions that can reasonably be put during an examination in relation to a given subject. Thus, a breach of the principle of equal treatment can be found only where the selection board, in its choice of tests, did not limit the risk of inequality of opportunities to that generally inherent in every examination.

Consequently, in choosing to base the oral presentation test common to all candidates on internal memoranda of the institution, which one of the candidates helped to draft, the institution breaches the principle of equal treatment. The mere fact of being the author or co-author of such memoranda confers a genuine familiarity with their content and potentially makes any presentation based on them easier.

(see paras 93-95, 97, 102)

See:

judgment in Giannini v Commission, T‑100/04, EU:T:2008:68, paras 131 to 133 and the case-law cited therein

judgment in Brown v Commission, F‑37/05, EU:F:2009:121, para. 64; and De Mendoza Asensi v Commission, F‑127/11, EU:F:2014:14, paras 43 and 45

3. It is clear from Article 41 of the Staff Regulations of the European Investment Bank, which provides for a conciliation procedure taking place independently of the action brought before the Courts, that the admissibility of that judicial action is not subject to exhaustion of the administrative procedure, which is optional for the employees of the Bank, whereas officials and other servants must await the end of the pre-litigation procedure provided for in the Staff Regulations of Officials.

Consequently, the admissibility of an action for compensation brought by a member of the staff of the Bank cannot be made conditional on the prior submission to the Bank of a request for compensation or on the existence of an act adversely affecting the person concerned to which it would be possible to attach the claim for compensation. In those circumstances, the request for compensation submitted to the Bank by a member of its staff forms part of the internal amicable settlement procedure, which is in any event optional, under Article 41 of the Staff Regulations of the Bank.

(see paras 110, 112)

See:

judgment in De Nicola v EIB, T‑7/98, T‑208/98 and T‑109/99, EU:T:2001:69, para. 96