ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(Third Chamber)

10 March 2016

Case F‑152/15

Małgorzata Kozak

v

European Commission

(Civil service — Open Competition EPSO/AD/293/14 — Decision of the selection board not to admit a candidate to sit tests at the assessment centre — Request for review — New decision of the selection board confirming its initial decision — Communication by EPSO of a reasoned reply — Purely confirmatory act — Time-limit for bringing proceedings — Manifest inadmissibility — Article 81 of the Rules of Procedure)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Ms Kozak seeks, in essence, annulment of (i) the decision of the selection board in Open Competition EPSO/AD/293/14 (‘the selection board’) of 15 April 2015 stating that she had not passed the ‘Talent Screen Test’ organised in that competition, meaning that she was not eligible to sit tests at the assessment centre in connection with that competition, and (ii) the decision of 11 June 2015 by which the selection board, after review, confirmed its initial decision.

Held:      The action is dismissed as manifestly inadmissible. Ms Kozak is to bear her own costs.

Summary

Actions brought by officials — Prior administrative complaint — Time-limits — Request concerning the reply of a competition selection board to additional arguments raised by an unsuccessful candidate following communication of the selection board’s review decision — No new fact which would permit the re-opening of the period — Inadmissibility

(Art. 270 TFEU; Staff Regulations, Art. 91)

The communication by the European Personnel Selection Office (EPSO), on behalf of the chairman of a selection board, of the board’s reasoned response to the arguments which a candidate not admitted to sit competition tests at the assessment centre had put forward in his request for review, cannot be considered to be a new decision taken by the selection board following a second review of the candidate’s situation different from the first review already carried out by that board for the purposes of adopting the review decision.

That communication merely confirms the review decision, with the result that the adoption of that act cannot have the effect of resetting the time-limit for bringing an action against the selection board’s decision not to invite the candidate to take part in the next stage of the competition and against the review decision.

Furthermore, the fact that, by its communication, EPSO disclosed to the candidate the content of the grounds on the basis of which the selection board had, by its review decision, confirmed its previous decision is not such as to reset, in favour of the candidate, a time-limit for bringing an action against the review decision or against the decision not to invite him to sit the next test in the competition.

Indeed, if that were not the case, any explicit decision of a competition selection board, including a review decision, containing either an inadequate statement of reasons or no statement of reasons (and thus necessitating a substantive examination) would be liable at any moment to become the subject of a request for an additional statement of reasons enabling candidates for the competition in question to set themselves a new time-limit, running from the receipt of that additional statement of reasons, for bringing an action under Article 270 TFEU and Article 91 of the Staff Regulations or, where appropriate, lodging a complaint within the three-month time-limit laid down in the Staff Regulations, even though the fact that a competition selection board’s decision contains an inadequate statement of reasons or no statement of reasons is actually a plea which may be raised in an action or, where appropriate, a complaint.

(see paras 23-27)

See:

Judgments of 10 November 1980 in Grasselli v Commission, 23/80, EU:C:1980:284, para. 18, and 14 September 2006 in Commission v Fernández Gómez, C‑417/05 P, EU:C:2006:582, para. 46

Order of 7 September 2005 in Krahl v Commission, T‑358/03, EU:T:2005:301, para. 47

Order of 22 April 2015 in ED v ENISA, F‑105/14, EU:F:2015:33, paras 37 and 41 and the case-law cited therein