JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

26 June 2013

Case F‑116/11

Annalisa Vacca

v

European Commission

(Civil service — Open competition — Notice of Competition EPSO/AD/207/11 — Non-admission to the assessment tests — Admission tests — Neutralisation of questions — Information for candidates)

Application:      brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Ms Vacca seeks, first, annulment of the decision of the selection board in open competition EPSO/AD/207/11 not to admit her to the assessment tests for the recruitment of administrators in grade AD 7 in the field of European public administration, and, second, an order that the European Commission pay damages to make good the non-material loss which she suffered as a result of that decision.

Held:      The European Commission is to pay the sum of EUR 500 to Ms Vacca. The action is dismissed as to the remainder. The European Commission is to bear its own costs and to pay two thirds of the costs incurred by Ms Vacca. Ms Vacca is to bear one third of her own costs.

Summary

1.      Officials — Competition based on tests — Conditions for admission — Fixing by the competition notice — Obligation to state criteria for the neutralisation of questions, the minimum number of points required in order to be invited to attend the assessment tests and the number of candidates that may be invited — None

(Staff Regulations, Annex III, Art. 1(1)(e))

2.      Officials — Competitions — Selection Board — Rejection of candidature — Obligation to state reasons — Scope — Intervention before expiry of the time-limit for bringing proceedings

(Art. 296 TFEU; Staff Regulations, Art. 25)

1.      Under Article 1(1)(e) of Annex III to the Staff Regulations, where the competition is on the basis of tests, the notice of competition must specify what kind of tests they will be and how they will be marked.

In that regard, the neutralisation of questions in the written tests relates to the number of questions in an examination and also the individual marking of each question. Such factors do not come within the concept of ‘how [the tests] will be marked’ referred to above and do not need to appear in a competition notice, so that if they are adopted or altered by the selection board after the tests have commenced the competition notice is not changed in any way.

The same applies with regard to the information concerning the minimum number of marks required in order to be invited to the assessment tests and the maximum number of candidates who may be invited. A purely literal interpretation of the wording of Article 1(1)(e) of Annex III to the Staff Regulations precludes such information being covered by ‘what kind [the tests] will be’ and ‘how they will be marked’.

(see paras 35-36, 38)

See:

13 March 2013, F‑125/11 Mendes v Commission, paras 58 and 81 and the case-law cited

2.      The purpose of the obligation to state the reasons for a decision adversely affecting an official laid down in the second paragraph of Article 25 of the Staff Regulations, which merely reiterates in the specific context of relations between the institutions and their staff the general obligation laid down in Article 296 TFEU, is to provide the persons concerned with sufficient information to determine whether the decision is well founded or whether it is defective in such a way that its legality may be challenged, and to enable the EU judicature to exercise its review of the legality of the contested decision

As regards the decisions 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. However, where irregularities or errors have occurred in the course of a competition and cannot be rectified by a repetition of the tests, with the result that the only alternative is the application of a corrective factor in the assessment of the tests, that factor must be applied unequivocally and the person concerned is entitled to be informed of the criteria adopted.

Such information must be provided within the period laid down by the Staff Regulations for bringing proceedings, in order to enable a candidate who has failed the admission tests to examine in full knowledge of the facts the lawfulness of the decision ending his participation in the competition.

(see paras 53-54, 60)

See:

14 July 1983, 144/82 Detti v Court of Justice, para. 29

25 October 2007, T‑154/05 Lo Giudice v Commission, para. 160

18 September 2012, F‑96/09 Cuallado Martorell v Commission, paras 46 and 47