JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (Second Chamber)

4 September 2008

Case F-147/06

Adriana Dragoman

v

Commission of the European Communities

(Civil service – Open competition – Non‑admission to the oral test)

Application: brought under Articles 236 EC and 152 EA, in which Ms Dragoman seeks annulment of the decision of 27 October 2006 of the selection board for open competition EPSO/AD/44/06, made for the purpose of establishing a reserve list for the recruitment of Romanian-language lawyer-linguists (AD 7), to award her a mark of 18/40 in written test (b), and annulment of the selection board’s decision of 29 November 2006 rejecting her request for reconsideration.

Held: The action is dismissed. Each party is to bear its own costs.

Summary

1.      Officials – Competitions – Selection board – Organisation of proceedings

2.      Officials – Competitions – Selection board – Composition – Qualification of members to assess tests objectively

(Staff Regulations, Annex III, Art. 3)

3.      Officials – Competitions – Community institutions’ duty to all candidates to ensure that tests are conducted smoothly and properly

4.      Officials – Competitions – Selection board – Rejection of candidature – Duty to state reasons – Scope – Respect for the secrecy of the selection board’s deliberations

(Art. 253 EC; Staff Regulations, Art. 25, second para.; Annex III, Art. 6)

5.      Officials – Competitions – Assessment of candidates’ abilities – Selection board’s discretion – Non-inclusion on the list of suitable candidates – Duty to state reasons – Scope

(Staff Regulations, Annex III)

6.      Officials – Recruitment – Applicable rules – Possibility of relying on national law – Precluded

1.      There is no provision of the Staff Regulations which prevents a selection board in a competition from using French as its working language.

(see paras 43-44)

2.      In order to be constituted in accordance with the provisions of the Staff Regulations and of Article 3 of Annex III thereto, a selection board must be composed in such a way as to guarantee an objective assessment of the performance of candidates in the tests in relation to the professional qualities expected.

Spelling mistakes and syntactical errors made by the markers in the assessment sheet for a written test do not, by their nature, and taking account of the constraints on members of the selection board in a competition with a large number of candidates, call into question the professional abilities and objectivity of members of the selection board.

(see paras 49, 52)

See:

T-160/99 Svantesson and Others v Council [2001] ECR-SC I‑A‑175 and II‑799, para. 32

3.      Under the principles of sound administration and equal treatment, the Community institutions have a duty to all candidates in a competition to ensure that the tests are conducted as smoothly and properly as possible. To that end, the administration is obliged to ensure that the competition is properly organised.

However, the publication of the composition of a selection board in a competition three days prior to the start of the tests instead of around two weeks as provided for in the competition notice does not render unlawful the selection board’s decision to award a certain mark to a candidate who cannot prove that, if he had known the composition of the selection board for the period provided for in that notice, the mark obtained might have been different.

(see paras 67-69)

See:

T-44/92 Delloye and Others v Commission [1993] ECR II‑221, para. 24; T-102/98 Papadeas v Committee of the Regions [1999] ECR‑SC I‑A‑211 and II‑1091, para. 68

4.      The requirement that a decision adversely affecting a person should state the reasons on which it is based, provided for in Article 253 EC and the second paragraph of Article 25 of the Staff Regulations, 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.

As far as concerns decisions taken by a selection board in a competition, the obligation to state reasons must be reconciled with observance of the secrecy surrounding the proceedings of selection boards pursuant to Article 6 of Annex III to the Staff Regulations. That secrecy was introduced with a view to guaranteeing the independence of selection boards and the objectivity of their proceedings, by protecting them from all external interference and pressures, whether these come from the Community administration itself, the candidates concerned or third parties. Observance of this secrecy therefore 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.

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. It serves to make them aware of the value judgement made in regard to their performance and enables them to satisfy themselves, where appropriate, that they have not in fact obtained the number of points required by the notice of competition in order to be admitted to certain tests or to all the tests.

(see paras 75-78)

See:

195/80 Michel v Parliament [1981] ECR 2861, para. 22; C-254/95 P Parliament v Innamorati [1996] ECR I‑3423, paras 23 and 24

T-53/00 Angioli v Commission [2003] ECR-SC I‑A‑13 and II‑73, para. 67; T-33/00 Martínez Páramo and Others v Commission [2003] ECR-SC I‑A‑105 and II‑541, paras 43 and 44; T-19/03 Konstantopoulou v Court of Justice [2004] ECR-SC I‑A‑25 and II‑107, paras 27, 32 and 33

5.      In view of the broad discretion which it enjoys in assessing the results of the tests, the selection board is not compelled, when stating the reasons for its decision not to admit a candidate to a test, to give details of those of the candidate’s answers that were considered inadequate or to explain why those answers were considered inadequate .

Therefore, a selection board which has communicated to the candidate the mark obtained in a written test and has sent him a copy of the test itself, together with the assessment sheet for that test, enabling the candidate to identify the assessment criteria applied by the selection board and to know how it assessed his performance according to predetermined parameters, satisfies its obligation to provide a statement of reasons.

(see paras 79, 82, 84)

See:

Konstantopoulou v Court of Justice, para. 34

6.      The procedure for recruiting Community officials is subject only to the provisions of the Staff Regulations and of measures taken for their application. That being so, a candidate cannot reasonably allege, against a decision of a selection board in a competition, that the selection board has breached national law.

(see paras 88-89)