JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

15 April 2010

Case F-2/07

José Carlos Matos Martins

v

European Commission

(Civil service — Members of the contract staff — Call for expressions of interest — Selection procedure — Pre-selection tests — Access to documents)

Application: brought under Articles 236 EC and 152 EA, in which Mr Matos Martins essentially seeks annulment of the decision of the European Personnel Selection Office (EPSO) of 27 February 2006 laying down the results of the verbal and numerical reasoning tests undertaken in connection with the call for expressions of interest launched by EPSO on behalf of the European institutions, particularly the Commission of the European Communities and the Council of the European Union, in order to constitute a database of candidates to be recruited as contract staff to perform various tasks within those institutions.

Held: The action is dismissed. The applicant is to bear his own costs, except the costs of accommodation and travel incurred as a result of the consultation of documents by his lawyer on 30 March, 1 April and 21 July 2009 in the premises of the Registry of the Tribunal. The Commission is to bear its own costs and to pay the costs referred to above incurred by the applicant.

Summary

1.      Officials — Competitions — Competition based on qualifications and tests — Content of the tests

(Staff Regulations, Annex III)

2.      Officials — Competitions — Competition based on qualifications and tests — Organisation and content of tests — Multiple-choice questions

(Staff Regulations, Annex III)

1.      The selection board in a competition or the selection committee has a wide discretion with regard to the procedures for and detailed content of the tests which form part of a competition or selection procedure. It is not for the Union courts to criticise that content unless it is not confined within the limits laid down in the competition notice or is not consistent with the purposes of the test of the competition or selection procedure.

That principle also applies to tests made up of multiple-choice questions, where it is not for the court to substitute its own correction of the tests for that of the selection board in the competition or, in particular, to substitute its own judgment as regards the degree of difficulty of the tests . The great difficulty of a question cannot constitute an indication of its inappropriate nature. A competition selection board is entitled to choose questions from a wide range of difficulty in order to achieve the primary objective of a competition which is to recruit officials or other staff of the highest standard of ability. The selection board in a competition also has a wide discretion with regard to the question whether it is confronted with irregularities or errors which have occurred in the course of an open competition involving a large number of candidates, in particular as regards the formulation of the multiple-choice questions. Consequently, the Union judicature must confine itself to a restricted review as regards the intelligibility of those questions.

However, in view of the importance of the principle of equal treatment in competition or selection procedures, it is for the selection board to ensure that the tests display substantially the same degree of difficulty for all the candidates.

The above principles may be transferred to tests organised by the European Personnel Selection Office for the recruitment of contract staff.

(see paras 161, 170-172)

See:

268/80 Guglielmi v Parliament [1981] ECR 2295, para. 8; 64/86, 71/86 to 73/86 and 78/86 Sergio and Others v Commission [1988] ECR 1399, para. 22; 228/86 Goossens and Others v Commission [1988] ECR 1819, para. 14

T‑132/89 Gallone v Council [1990] ECR II‑549, para. 27; T‑156/89 Valverde Mordt v Court of Justice [1991] ECR II‑407, paras 121 and 123; T‑170/95 Carrer v Court of Justice [1996] ECR‑SC I‑A‑363 and II‑1071, para. 37; T‑217/95 Passera v Commission [1997] ECR‑SC I‑A‑413 and II‑1109, para. 45; T‑173/99 Elkaïm and Mazuel v Commission [2000] ECR‑SC I‑A‑101 and II‑433, para. 35; T‑146/99 Teixeira Neves v Court of Justice [2000] ECR‑SC I‑A‑159 and II‑731, para. 37; T‑167/99 and T‑174/99 Giulietti and Others v Commission [2001] ECR‑SC I‑A‑93 and II‑441, para. 61; T‑285/02 and T‑395/02 Vega Rodríguez v Commission [2004] ECR‑SC I‑A‑333 and II‑1527, paras 35 and 36; T‑5/04 Scano v Commission [2005] ECR‑SC I‑A‑205 and II‑931, para. 45; T‑92/04 Moren Abat v Commission [2005] ECR‑SC I‑A‑399 and II‑1817, paras 44 and 45

2.      The fact that the multiple-choice questions put to the candidates in a competition or selection procedure were selected at random by computer reflects a concern to ensure equality between candidates, while also enabling the tests to be held over several days in the interest of the candidates themselves. It is, admittedly, possible that a given question, taken individually, put to one candidate may be more difficult than another, of the same level, put to another candidate. However, that disparity is compensated for by the large number of questions asked, given that all the questions adopted must display substantially the same degree of difficulty for all the candidates.

The mere fact that a candidate considers that he was faced with difficult or very difficult questions does not prove that some candidates in the selection procedure were given an improper advantage over him. Consequently, an argument based on general, abstract statements is not such as to prove unequal treatment or at the very least an appearance of unequal treatment. In that respect, the time taken by candidates to answer a question, which differs from one candidate to another, constitutes a subjective factor and merely emphasises the existence of differences between the candidates taking part in a competition.

(see paras 178-180)

See:

Goossens and Others v Commission, para. 15

Giulietti and Others v Commission, para. 59