JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

11 December 2012

Case F‑65/10

José Manuel Mata Blanco

v

European Commission

(Civil service — Internal competition COM/INT/OLAF/09/AD 10 — Anti-fraud — Respective powers of EPSO and the selection board — Access tests supervised by the selection board — Oral test — Breach of the competition notice — Discrepancy in marks — Assessment criteria — Equal treatment of candidates — Manifest error of assessment — Principles of transparency and of sound administration — Obligation to state reasons)

Application: Action brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, whereby Mr Mata Blanco seeks, in essence, annulment of the decision of the selection board for internal competition COM/INT/OLAF/09/AD 10 of 11 May 2010, confirming, after reconsideration, its decision of 9 March 2010 not to place him on the reserve list.

Held: The action is dismissed. The applicant is to bear his own costs and is ordered to pay the costs incurred by the Commission.

Summary

1.      Officials — Competitions — Conduct of the competition — Allocation of powers between the European Personnel Selection Office (EPSO) and the selection board — Access test — Preliminary review of candidates’ eligibility by the selection board

(Staff Regulations, Arts 30 and 1; Annex III, Arts 5 and 7)

2.      Officials — Competitions — Competition based on qualifications and tests — Content of the tests and implementation of the marking criteria and their weighting — Selection board’s discretion — Judicial review — Limits

(Staff Regulations, Annex III)

3.      Officials — Competitions — Selection board — Respect for the secrecy of its proceedings — Scope — Criteria for the correction of written tests and parameters for the evaluation of oral tests — Included

(Staff Regulations, Annex III, Art. 6)

4.      Officials — Competitions — Competition based on qualifications and tests — Conduct of the tests — Different dates and content of the oral tests — Breach of the principle of equal treatment — None

5.      Officials — Competitions — Competition based on qualifications and tests — Evaluation of candidates’ abilities — Selection board’s discretion — Judicial review — Limits

(Staff Regulations, Annex III)

6.      Officials — Competitions — Selection board — Rejection of application — Obligation to state reasons — Scope — Respect for the secrecy of the proceedings

(Staff Regulations, Art. 25; Annex III, Art. 6)

1.      The first stage of a competition, namely the stage of pre-selection based on access tests, cannot be considered to have been organised solely by the European Personnel Selection Office and in the complete absence of the selection board, in so far as all candidates who, following a preliminary review of eligibility by the selection board, satisfied the conditions of eligibility set out in the notice of competition were invited to take part in the access tests. In carrying out the preliminary review of the eligibility of candidates who could be admitted to the access tests, the selection board was in a position to supervise, from the outset of the selection procedure, all the tests in the competition.

(see para. 31)

2.      The selection board in a competition, which has considerable discretion as regards the arrangements for and the detailed content of the tests provided for within the framework of a competition, is none the less bound by the wording of the notice of competition. It is not for the Courts of the European Union to criticise the content of the tests unless that content does not remain within the framework laid down in the competition notice or is not consistent with the purposes of the test or the competition. It follows that the selection board has a wide discretion as to whether the evaluation criteria set out in the competition notice are sufficiently precise to enable it to carry out its task or whether more detailed criteria must be defined before the tests take place. In addition, it is also open to the selection board, where the notice of competition does not lay down criteria for marking, to fix such criteria or, where the notice lays down such criteria but does not mention their respective weighting, to determine that weighting. The Tribunal can criticise a decision taken by a selection board in the exercise of that discretion only in so far as is necessary to ensure the equal treatment of candidates.

(see paras 46-47, 55)

See:

14 July 1995, T‑291/94 Pimley-Smith v Commission, para. 48; 5 April 2005, T‑336/02 Christensen v Commission, paras 85 and 94

8 July 2010, F‑17/08 Wybranowski v Commission, para. 32 and the case-law cited

3.      The criteria for marking the written tests, adopted by the selection board prior to those tests, form an integral part of the assessments of candidates’ comparative merits made by the selection board in a competition. Those criteria are intended to ensure, in the candidates’ interest, a certain homogeneity in the selection board’s assessments, in particular where the number of candidates is high, and they are covered by the secrecy of the deliberations, on the same basis as the assessments made by the selection board. The same reasoning must be applied to the criteria adopted by the selection board, prior to the oral test, to enable it to appraise the different assessment criteria set by the competition notice for that test.

It follows that the parameters fixed by the selection board for the answers provided in the oral test, such as the internal consistency of those answers and the structure of the argument, can clearly not be stated in the notice of competition.

(see paras 68-69)

See:

4 July 1996, C‑254/95 P Parliament v Innamorati, para. 29

4.      Although the principle of equality requires that written tests take place on the same date for all candidates, such a condition cannot be imposed for oral tests, which by their nature cannot take place at the same time for all candidates and which, moreover, do not necessarily have the same content for all candidates.

In that regard, the fact that the oral tests were held over 10 working days and that on 4 working days no oral tests were held cannot constitute a breach of the principle of equal treatment for candidates. A difference of 4 working days to prepare for an oral test in a competition which had been published almost 10 months before the oral tests were held, and which was aimed at persons who had to have at least 15 years’ professional experience in the relevant duties, is negligible. Consequently, the fact that a candidate was among the first to be called to sit the oral tests and that he had a few days less in which to prepare than candidates called later is not such as to place that candidate at a disadvantage by comparison with those other candidates, in breach of the principle of equal treatment.

(see paras 83, 85)

See:

16 October 1990, T‑132/89 Gallone v Council, para. 36

5.      A selection board’s assessment of candidates’ knowledge and ability is of a comparative nature. Such an assessment, and the selection board’s decision that a candidate has failed a test, is the expression of a value judgment of the candidate’s performance in the test and falls within the wide margin of discretion accorded to the board, and the Courts of the European Union have no jurisdiction to review it unless there has been a breach of the rules governing the proceedings of the selection board.

Thus, in relation to recruitment on the basis of a competition, review by the Courts of the European Union is limited to examining the regularity of the procedures used by the administration, ascertaining that the facts on which the administration relied in taking its decision are correct and, last, establishing that there has been no manifest error of assessment, error of law and misuse of powers that might vitiate the administrative decision.

(see paras 93-94)

See:

23 January 2003, T‑53/00 Angioli v Commission, paras 91 and 92

6.      The requirement that a decision adversely affecting a person should state the reasons on which it is based is intended to provide the person concerned with sufficient details to allow him to ascertain whether or not the decision is well founded and make it possible for the decision to be the subject of judicial review. So far as decisions taken by a selection board in a competition are concerned, that obligation must none the less be reconciled with observance of the secrecy surrounding the proceedings of selection boards pursuant to Article 6 of Annex III to the Staff Regulations. Observance of this secrecy precludes both disclosure of the attitudes adopted by individual members of selection boards and disclosure of any factors relating to individual or comparative assessments of candidates. In those circumstances, the obligation to state the reasons on which decisions of a selection board in a competition are based must take account of the nature of the proceedings concerned, which involve as a rule at least two separate stages, the first being an examination of the applications in order to select the candidates admitted to the competition and the second being an examination of the abilities of the candidates for the posts to be filled in order to draw up a list of suitable candidates.

The second stage of the selection board’s proceedings is primarily of a comparative nature and for that reason is covered by the secrecy inherent in those proceedings. The parameters for assessment adopted by the selection board prior to the tests form an integral part of the comparative assessments which it makes of the candidates’ respective merits. Those parameters for assessment are therefore covered by the secrecy of the proceedings in the same way as the selection board’s assessments. The comparative assessments made by the selection board are reflected in the marks it allocates to the candidates. These marks are the expression of the value judgements made concerning each of them. Having regard to the secrecy which must surround the proceedings of a selection board, communication of the marks obtained in the various tests constitutes an adequate statement of the reasons on which the board’s decisions are based. Such a statement of reasons is not prejudicial to the rights of the candidates.

Furthermore, in view of the broad discretion enjoyed by a competition selection board in evaluating the results of the tests in a competition, the board cannot be required, in giving the reasons for a candidate’s failure of a test, to identify candidates’ answers that were considered unsatisfactory or to explain why they were considered unsatisfactory. Such detailed reasons are not necessary to enable the Tribunal to exercise its power of review and, consequently, to enable the candidate to determine whether or not it is appropriate to lodge a complaint or, if need be, to bring an action.

(see paras 106-09)

See:

Parliament v Innamorati, paras 23 to 29 and 32

Pimley-Smith v Commission, paras 63 and 64; 19 February 2004, T‑19/03 Konstantopoulou v Court of Justice, para. 34

30 April 2008, F‑16/07 Dragoman v Commission, para. 63 and the case-law cited