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Language of document : ECLI:EU:F:2014:245

JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

13 November 2014

Case F‑2/12

Emil Hristov

European Commission
and European Medicines Agency (EMA)

(Civil service — Procedure for selection and appointment of the Executive Director of a regulatory agency — European Medicines Agency (EMA) — Two-stage selection procedure — Pre-selection within the Commission — Appointment by the EMA’s Management Board — Obligation for the EMA’s Management Board to choose the Executive Director from among the candidates shortlisted by the Commission — Action for annulment — Composition of the pre-selection panel — Combination of functions of a member of the pre-selection panel and member of the EMA’s Management Board — Candidates who are members of the EMA’s Management Board included on the list of candidates shortlisted by the Commission — Appointment of the candidate who is a member of the EMA’s Management Board — Duty of impartiality — Infringement — Annulment — Action for damages — Non-material damage severable from the illegality serving as the basis for the annulment — Proof — None)

Application: under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Hristov seeks, first, annulment of a number of decisions adopted by the European Commission in the context of the procedure for selecting the Executive Director of the European Medicines Agency (EMA) and of the decision of the EMA’s Management Board of 6 October 2011 appointing that Executive Director, and, second, compensation for the non-material damage allegedly sustained as a result of the adoption of those decisions.

Held: The European Commission’s decision of 20 April 2011, by which it proposed to the Management Board of the European Medicines Agency a list of four candidates recommended by the pre-selection panel and approved by the Consultative Committee on Appointments, is annulled. The decision of the Management Board of the European Medicines Agency of 6 October 2011 appointing the Executive Director is annulled. The remainder of the action is dismissed. The European Commission and the European Medicines Agency are to bear their own costs and are ordered to each pay half of the costs incurred by Mr Hristov.

Summary

1. Officials — Recruitment — Procedure for filling a post of director of an EU agency — Pre-selection panel — Analogy with a selection board in a competition

(Commission Guidelines related to selection and appointment of Directors of the regulatory and executive agencies as well as of the joint undertakings, para. 7)

2. Officials — Recruitment — Procedure for filling a post of director — Pre-selection panel — Principle of impartiality — Composition — Combination of functions of a member of the pre-selection panel and member of the appointing body — Unlawful

(European Parliament and Council Regulation No 726/2004, Arts 64 to 67; Commission Guidelines related to selection and appointment of Directors of the regulatory and executive agencies as well as of the joint undertakings)

3. Officials — Recruitment — Procedure for filling a post of director of an EU agency — Pre-selection panel — Principle of impartiality — Judicial review

4. Actions brought by officials — Judgment annulling a measure — Effects — Annulment of a pre-selected shortlist of candidates in a procedure for filling a post of director of an EU agency — Annulment of the appointment decision

1. The wide discretion enjoyed by a competition selection board in determining the procedures for and detailed content of the oral tests to be undergone by the candidates must be counterbalanced by scrupulous observance of the rules governing the organisation of those tests.

Furthermore, a competition selection board is required to ensure that its assessments of all the candidates examined in the oral tests are made in conditions of equality and objectivity.

Those rules may be applied to a pre-selection panel which forms part of the procedure for filling a post of director of an EU agency, since the purpose of the panel, as with a competition selection board, is to select the best candidates from among those who have applied, and it has a wide discretion in organising the pre-selection tests.

(see paras 81-83)

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

judgment in CG v EIB, F‑115/11, EU:F:2014:187, para. 60

2. In a procedure for filling a post of director of an EU agency, it is for the Commission, in application of the principles of sound administration and equal treatment, to ensure that the first stage of the selection procedure, which takes place before the pre-selection panel, is properly organised. That requires that all members of the pre-selection panel appointed by the Commission have the necessary independence to preclude any doubt as to their objectivity.

As for whether a person who is both a member of the pre-selection panel (the proposing body) and a member of the management board of the agency concerned (the decision-making body) fulfils his duty of impartiality in the light of the very different responsibilities of those two bodies, it should be noted that the pre-selection panel has a decisive influence on the final shortlist of candidates proposed by the Commission to the management board of the agency. Likewise, a member of the pre-selection panel who is also a member of the management board will be able, at the meeting of the management board, to vote in person or through his alternate for the appointment of one of the candidates shortlisted by the Commission. Furthermore, the management board member may play a particularly important role in the board’s deliberations, regardless of whether or not he exercises his right to vote, and in any case he is in direct contact with the other members of the board.

Thus, combining the functions of a member of the pre-selection panel and a member of the management board is liable to compromise the independence and objectivity of the person combining those functions, and consequently, in so far as each of the members of the pre-selection panel must possess the independence necessary to ensure that the objectivity of the pre-selection panel as a whole cannot be comprised, the duty of impartiality of the pre-selection panel as a whole is infringed.

(see paras 84, 88-92)

See:

judgment in CG v EIB, EU:F:2014:187, para. 61

3. It is for the Civil Service Tribunal to ascertain whether a pre-selection panel is constituted and functions properly, in accordance in particular with its duty of impartiality, that duty being one of the rules which govern the proceedings of selection boards in competitions and, by analogy, the proceedings of pre-selection panels, and which are subject to review by the Courts of the Union.

(see para. 86)

See:

order in Meierhofer v Commission, F‑74/07 RENV, EU:F:2011:63, para. 62

4. In a procedure for filling a post of director of an EU agency organised in two stages, in which the appointing body can appoint as director only one of the pre-selected candidates shortlisted by a decision of the Commission, once that decision of the Commission has been annulled, the decision to appoint one of the shortlisted candidates must also be annulled.

(see para. 101)