ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

9 July 2013

Case F‑34/12

Annalisa Vacca

v

European Commission

(Civil service — Open competition — Notice of competition EPSO/AD/207/11 — Non-admission to the assessment tests — Request for review — No express response — Claim for annulment not based on any specific plea or argument of fact or of law — Inadmissibility)

Application:      brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, whereby Ms Vacca seeks annulment of the implied decision which, in her submission, was taken in the absence of a response to her request for review of the decision of the selection board in open competition EPSO/AD/207/11 not to allow her to participate in the assessment tests for the recruitment of administrators in grade AD 7 in the field of European public administration. The applicant also requests that the Commission be ordered to compensate her for the non-material damage which she sustained owing to her exclusion from the competition procedure and the failure to give an express response to her request for review.

Held:      The action is dismissed as inadmissible in part and manifestly unfounded in part. The parties are to bear their own costs.

Summary

1.      Judicial proceedings — Costs — Burden — Taking into account of the requirements of fairness — Order that the successful party pay the costs

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

2.      Officials — Competitions — Notice of competition — Establishment of a right for candidates to secure a review of their application — Failure to respect that right on the part of the European Personnel Selection Office (EPSO) — Maladministration for which the administration may incur liability

(Charter of Fundamental Rights of the European Union, Art. 41(1))

3.      Procedure — Application initiating proceedings — Rectification — Request to submit an abridged version — Submission of an application identical to the original and using a smaller font — Not permissible

(Rules of Procedure of the Civil Service Tribunal, Art. 36)

1.      Under Article 87(2) of its Rules of Procedure, the Civil Service Tribunal may, if equity so requires, decide that an unsuccessful party is to pay only part of the costs or even that he is not to be ordered to pay any. However, under Article 88 of the Rules of Procedure, 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, including before the proceedings were brought. In that regard, an order that the institution pay the costs may be justified by its lack of diligence during the administrative procedure.

(see paras 32, 34)

See:

5 July 2011, F‑73/10 Coedo Suárez v Council, para. 48

2.      Where a notice of competition specifically recognises that a candidate in an open competition is entitled to request a review of his application where he considers that the European Personnel Selection Office has not complied with the provisions governing the competition procedure or where the selection board has not complied with the provisions governing its proceedings, the candidate is entitled to receive a response, which EPSO is required to provide without undue delay. That right is intended to ensure that an eligible candidate is not excluded and also to avoid as far as possible pointless complaints and actions by candidates whose exclusion from the competition proves, after review, to have been fully justified.

Strict compliance by EPSO with a specific right is the expression of the duties which flow from the principle of sound administration, in accordance with Article 41(1) of the Charter of Fundamental Rights of the European Union. Failure by EPSO to comply with a candidate’s specific right to have his application reviewed by the selection board is capable of constituting maladministration which, where appropriate, may give rise to a right to compensation for the candidate.

(see paras 36-37)

See:

18 September 2012, F‑96/09 Cuallado Martorell v Commission, paras 47 and 48

3.      Responding to a request to put the application in order by lodging an application identical to the original but in a smaller font following a request to submit an abridged version is not only manifestly contrary to the spirit of point 8 of the practice instructions to parties, but places a fruitless burden on the Tribunal, since it has to deal with a second version of the application that is identical in every aspect to the first version.

(see para. 38)