JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(First Chamber)

5 November 2013

Case F‑104/11

Gábor Bartha

v

European Commission

(Civil service — Open competition EPSO/AD/56/06 — Reopening of the competition procedure — Measures to comply with the judgment in Case F‑50/08)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Bartha seeks, principally, annulment of the decision of the selection board in open competition EPSO/AD/56/06 informing him that he had failed the new competition tests held in order to comply with a judgment of the Tribunal.

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

Summary

1.      Actions brought by officials — Act adversely affecting an official — Definition — Administration’s decision to reopen a competition procedure not compelling the candidate to sit new tests — Not included

(Staff Regulations, Arts 90(2) and 91(1))

2.      Actions brought by officials — Judgment annulling a measure — Effects — Obligation to implement — Annulment of the decision of a competition selection board not to include a candidate on the reserve list — Reopening of the competition solely vis-à-vis the applicant — Adequate method of compliance

(Art. 266 TFEU; Staff Regulations, Art. 28(d))

1.      A decision of the administration, adopted as a measure to comply with an annulling judgment, which merely informs the candidate concerned of its decision to reopen the competition procedure vis-à-vis him and to constitute a selection board composed in accordance with the principles laid down in the annulling judgment, and which does not compel the candidate to sit the new tests, may not be regarded as producing binding legal effects that directly and immediately affect his interests and therefore does not constitute an act adversely affecting him.

(see paras 32-33)

2.      Where the decision of a selection board not to include a candidate on a reserve list is annulled, the annulling judgment is regarded as properly complied with if an equitable solution is found.

In the case of an open competition organised in order to draw up a recruitment reserve and the tests of which have been vitiated, the rights of a candidate who has unlawfully been eliminated are adequately protected if the appointing authority reopens the competition vis-à-vis that candidate.

Even if it is true that reopening the competition procedure is not capable of fully remedying the defect found in the annulling judgment or of ensuring that the principle of equal treatment is fully observed, it is capable of allowing adequate compliance with the annulling judgment, since it constitutes the only solution capable of offering a candidate who has unlawfully been eliminated, in the competition, a fresh chance of being appointed as an official. It is clear from Article 28(d) of the Staff Regulations that no-one may be appointed as an official if he has not, in particular, passed a competition.

(see paras 36-37, 39, 42- 43)

See:

14 July 1983, 144/82 Detti v Court of Justice, para. 33; 6 July 1993, C‑242/90 P Commission v Albani and Others, para. 13

25 May 2000, T‑173/99 Elkaïm and Mazuel v Commission, para. 23

13 December 2012, F‑42/11 Honnefelder v Commission, para. 49