JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

14 June 2007

Case F-121/05

Michel De Meerleer

v

Commission of the European Communities

(Civil service – Officials – Open competition – Non-admission to the written tests – Professional experience – Obligation to state reasons – Communication of the decision of the selection board – Request for re-examination)

Application: brought under Articles 236 EC and 152 EA, in which Mr De Meerleer essentially seeks, first, annulment of the decision of 12 April 2005 of the selection board in competition EPSO/A/19/04 not to accept his candidature for that competition, and annulment of the decision of 30 May 2005 of the same selection board not to reach a decision on his request for re-examination, and second, an order for the Commission to pay him damages for the loss allegedly suffered.

Held: The application is dismissed. The parties are ordered to bear their own costs.

Summary

1.      Officials – Actions – Interest in bringing proceedings

(Staff Regulations, Arts 90 and 91)

2.      Officials – Competitions – Organisation – Conditions for admission and arrangements

(Staff Regulations, Arts 25, 90 and 91; Annex III, Art. 7)

1.      A candidate in a competition for entry to the Community civil service has a separate and real interest in applying for annulment of the selection board’s decision not to re-examine its initial decision not to admit him to the competition owing to his inadequate professional experience, even though he has, in any event, been able to lodge a complaint and bring a challenge before the courts against that initial decision not to admit him. The discretion which a selection board enjoys, when re-examining its decisions, in assessing both the nature and duration of the previous professional experience of candidates and its relevance to the post to be filled, is not comparable to the review conducted, in connection with a complaint, by the appointing authority, which does not have the power to annul or amend decisions of the selection board, or to the judicial review carried out by the Community judicature when a challenge is brought before the courts, since that review must be confined to determining whether the selection board’s exercise of its discretion in assessing the professional experience of each candidate was not manifestly incorrect.

The applicant must therefore be able to ask the Community judicature to review the lawfulness of the selection board’s decision not to re-examine its decision not to admit him to the competition, taken on the ground that the request was out of time, even though that judicature is, at the same time, reviewing the validity of the initial decision.

(see paras 29-30, 32-33)

See:

117/78 Orlandi v Commission [1979] ECR 1613, para. 9; 52/85 Rihoux and Others v Commission [1986] ECR 1555, para. 9

T-115/89 González Holguera v Parliament [1990] ECR II‑831, para. 54; T-214/99 Carrasco Benítez v Commission [2000] ECR‑SC I‑A‑257 and II‑1169, paras 70 and 71; T-386/00 Gonçalves v Parliament [2002] ECR-SC I‑A‑13 and II‑55, para. 34; T-145/02 Petrich v Commission [2004] ECR-SC I‑A‑101 and II‑447, para. 37

2.      Although it is true that the procedure for re-examining a decision taken by a selection board in a competition is not subject to the provisions of Articles 90 and 91 of the Staff Regulations, the effectiveness of the request for re-examination and the guarantee that candidates can use that legal remedy in accordance with the principle of equal treatment require not just that the decision which is the subject of a request for re-examination must have been communicated to the addressee, but also that the addressee must have been able to have effective knowledge of its content. The administration has an obligation to ensure that candidates are effectively and easily able to acquaint themselves with decisions which are of individual concern to them.

It is not contrary to Article 25 of the Staff Regulations, Article 7 of Annex III to the Staff Regulations, the competition notice or the principle of equal treatment for the selection board in a competition organised by the European Personnel Selection Office (EPSO) to decide to reject as out of time a request for re-examination of a decision not to admit a candidate, despite the absence of proof that that candidate received the email informing him that the decision had been placed in his personal file on the EPSO’s website, where, even if the competition notice did not give details of the arrangements for communicating the selection board’s decisions, the information it contained, read together with its annex and the clear instructions given on the EPSO website, prescribed that, first, the point from which time started to run for submitting a re-examination request did not depend upon receipt of an email alert sent to the candidate’s email address, but was constituted by the placing of a new document in his personal file on the EPSO website, and secondly, the candidate was required actively to monitor changes to that file, which, contrary to his duty to exercise due care and attention, he did not do.

(see paras 61, 72, 80-81, 87-88)

See:

T-95/04 Lavagnoli v Commission [2006] ECR-SC I-A-2-121 and II‑A‑2‑569, paras 45 and 48