JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(First Chamber)

17 October 2013

Case F‑69/11

BF

v

Court of Auditors of the European Union

(Civil service — Procedure for filling the post of director — Report of the pre-selection board — Statement of reasons — None — Unlawfulness of the appointment decision — Conditions)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which BF, the applicant, essentially seeks annulment of the decision of the Court of Auditors of the European Union of 18 November 2010 to appoint Ms Z to the post of Director of Human Resources and of the Court of Auditors’ decision of the same date to reject his candidature for that post, as well as compensation for the material and non-material harm suffered.

Held:      The decisions of 18 November 2010 by which the Court of Auditors of the European Union appointed Ms Z to the post of Director of Human Resources and rejected BF’s candidature for that post are annulled. There is no need to adjudicate on the request of the Court of Auditors of the European Union to remove from the file Annexes A7 and A11 to the application. The remainder of the action is dismissed. The Court of Auditors of the European Union is to bear its own costs and is ordered to pay those incurred by BF.

Summary

1.      Officials — Recruitment — Procedure for filling a post of director — Consideration of candidates’ comparative merits — Administration’s discretion — Limits — Observance of the conditions laid down in the vacancy notice and of the rules of procedure adopted for the exercise of discretion — Judicial review — Limits

(Staff Regulations, Art. 29(2))

2.      Officials — Recruitment — Procedure for filling a post of director — Report by the pre-selection board — Obligation to state reasons — Scope

(Staff Regulations, Art. 29(2))

3.      Officials — Recruitment — Procedure for filling a post of director — Report by the pre-selection board flawed by a procedural irregularity — Consequences

1.      The appointing authority’s broad discretion in comparing the merits of persons who are candidates for vacant posts, particularly where the post to be filled is at one of the highest grades in the administration, such as the post of Director at the Court of Auditors, must be exercised with scrupulous observance of the relevant regulations, in other words not just of the vacancy notice, but also of any procedural rules which the authority has adopted for the exercise of its discretion, such as internal directives on recruitment. Such internal rules thus form part of the legal framework from which the appointing authority, in exercising its broad discretion, may not depart without explaining the reasons which led it to do so, if it is not to infringe the principle of equal treatment. In that context, the Tribunal’s review of the exercise of the broad rights and powers which the competent authority may rely on must consequently be confined to ascertaining principally whether the authority remained within reasonable bounds, following a procedure free of irregularities, and did not use its discretion in comparing the merits of the candidates in a manifestly incorrect way or for purposes other than those for which it was conferred on it.

(see paras 40-41)

See:

22 March 1995, T‑586/93 Kotzonis v ESC, para. 81 and the case-law cited therein; 25 October 2005, T‑43/04 Fardoom and Reinard v Commission, para. 35 and the case-law cited therein

22 October 2008, F‑46/07 Tzirani v Commission, para. 67; 30 January 2013, F‑87/11 Wahlström v Frontex, para. 56 and the case-law cited therein

2.      In a procedure to fill a post of director, the statement of reasons for the report which the pre-selection board must submit to the appointing authority under the terms of internal rules of procedure requiring a ‘reasoned report’ may not consist solely of a statement of the name of the candidate(s) selected and whether or not the opinion of the pre-selection board was adopted unanimously, or of a reiteration of the procedure and the assessment criteria followed. It must contain all the assessment information necessary to enable the authority, at the end of the pre-selection procedure, to exercise its broad powers regarding appointments in a proper manner, in strict compliance with the rules and conditions which it has voluntarily set itself, enabling it to understand the pre-selection board’s assessment of the candidates selected and then, following a comparative consideration, to select for itself the most suitable candidate to perform the duties which are the subject of the vacancy notice.

Brief verbal information given by the chairman of the pre-selection board at his oral presentation must not under any circumstances take the place of a written report setting out a minimum amount of factual information from which the appointing authority may identify and decide, with all the necessary objectivity, which of the candidates proposed by the pre-selection board to choose.

(see paras 44, 52)

See:

23 September 2004, C‑150/03 P Hectors v Parliament, paras 46 and 48 to 50

20 February 2002, T‑117/01 Roman Parra v Commission, paras 31 and 32; 18 September 2003, T‑73/01 Pappas v Committee of the Regions, para. 60

3.      A procedural irregularity must result in the annulment of the contested decision where it is established that it may have influenced the content of that decision. The absence of a statement of reasons for a report by the pre-selection board, whereas that board should, under internal rules of procedure, submit a reasoned report to the appointing authority, constitutes a serious irregularity in the recruitment procedure.

(see para. 62)

See:

16 December 1993, T‑58/92 Moat v Commission, para. 63; Pappas v Committee of the Regions, para. 71