ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

24 June 2013

Case F‑144/11

Carlos Mateo Pérez

v

European Commission

(Civil service — Open competition — Application for annulment of a corrigendum to a notice of competition — Corrigendum not providing for conditions excluding the applicant — No act having adverse effects — Non-admission to the assessment tests — Admissibility — Time-limit for instituting proceedings — Submission out of time — Manifest inadmissibility)

Application:      brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Mateo Pérez seeks, in essence, annulment of the corrigendum to the notice of open competition EPSO/AST/111/10 (OJ 2011, C 68 A, p. 2, ‘the corrigendum’) and of the selection board’s decision not to admit him to participate in the second stage of the competition (‘the non-admission decision’).

Held:      The action is dismissed as manifestly inadmissible. The European Commission is to bear its own costs and to pay the costs of Mr Mateo Pérez arising as from 14 March 2012, the date on which the defence was lodged. Mr Mateo Pérez is to bear his own costs arising before 14 March 2012.

Summary

1.      Actions brought by officials — Action brought against a decision not to admit a candidate to the tests in a competition — Whether unlawfulness of the competition notice may be relied upon — Scope — Corrigendum not providing for conditions excluding the applicant — Not included

(Staff Regulations, Arts 90(2) and 91)

2.      Judicial proceedings — Costs — Responsibility — Taking into account of requirements of fairness — Successful party ordered to pay the costs

(Rules of Procedure of the Civil Service Tribunal, Arts 87(1) and (2) and 88)

1.      In accordance with Article 90(2) of the Staff Regulations, both the prior administrative complaint and the action before the courts must be directed against an act adversely affecting the applicant which produces legal effects which are binding on, and capable of affecting, directly and immediately, the interests of the applicant by bringing about a distinct change in his legal position.

As regards competition notices, in the light of the special nature of the recruitment procedure, which is a complex administrative operation composed of a series of closely-linked decisions, an applicant is entitled to rely on irregularities occurring in the course of the competition, even if the origin of those irregularities may be found in the wording of the competition notice itself, in an action against a subsequent individual decision, such as a decision not to admit him to the tests. A competition notice may also, exceptionally, be the subject of an action for annulment where, by imposing conditions excluding the applicant’s candidature, it constitutes a decision adversely affecting him within the meaning of Articles 90 and 91 of the Staff Regulations.

That is not the case, however, of a corrigendum to a competition notice which amends the methods of assessment provided for in that notice for admission tests but does not impose any condition excluding the applicant’s candidature.

(see paras 43-47)

See:

8 March 1988, 64/86, 71/86 to 73/86 and 78/86 Sergio and Others v Commission, para. 15; 11 August 1995, C‑448/93 P Commission v Noonan, paras 17 to 19

16 September 1993, T‑60/92 Noonan v Commission, para. 21; 13 July 2000, T‑87/99 Hendrickx v Cedefop, para. 37

2 July 2009, F‑19/08 Bennett and Others v OHIM, paras 65 and 66 and the case‑law cited; 14 April 2011, F‑82/08 Clarke and Others v OHIM, para. 79

2.      Under Article 87(1) of the Rules of Procedure of the Civil Service Tribunal, without prejudice to the other provisions of Chapter 8 of Title 2 of those Rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 88 of the Rules of Procedure, however, a party, even if successful, may be ordered to pay some or all of the costs, if this appears justified by the conduct of that party.

Article 88 must be applied in cases where the successful party, even after admitting that the plea of inadmissibility which he put forward alleging submission of the application out of time was based on a misreading of a document produced in support of it and that he had no evidence to support it, did not withdraw that plea of inadmissibility. Such conduct obliged the Tribunal formally to dismiss that plea of inadmissibility.

(see paras 66, 68-69)