JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

16 September 2013

Joined Cases F‑23/12 and F‑30/12

Jérôme Glantenay and Marco Cecchetto

v

European Commission

(Civil service — Open competition — Competition notice EPSO/AD/204/10 — Selection on the basis of qualifications — Elimination of candidates without specific examination of their degrees and diplomas and professional experience)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, by which the applicants seek annulment of the decisions of the selection board for open competition EPSO/AD/204/10 rejecting their respective applications.

Held:      The decisions of the selection board for open competition EPSO/AD/204/10 to exclude the applications of Mssrs Bonagurio, Cecchetto, Gecse, Glantenay, Gorgol, Kalamees and Skrobich and of Ms Venckunaite and Ms Załęska from the competition procedure, without examining them at the second stage of the qualification-based selection provided for by the competition notice, are annulled. The applications in Cases F‑23/12 and F‑30/12 are dismissed as to the remainder. The European Commission is to pay nine tenths of its costs and is ordered to pay the costs incurred by Mssrs Bonagurio, Cecchetto, Gecse, Glantenay, Gorgol, Kalamees and Skrobich and Ms Venckunaite and Ms Załęska. Ms Crucero is to pay her own costs and is ordered to pay one tenth of those incurred by the European Commission.

Summary

1.      Judicial proceedings — Application initiating proceedings — Form of order sought — Alteration once proceedings have been started — Where permissible

(Rules of Procedure of the Civil Service Tribunal, Art. 35)

2.      Officials — Competitions — Selection Board — Date of constitution — First point in time when all members have been appointed — Effect of changes in composition due to the resignation of some members — None

(Staff Regulations, Annex III, Art. 3)

3.      Officials — Competitions — Selection Board — Obligation to publish composition before tests begin – None

(Staff Regulations, Annex III, Art. 3)

4.      Officials — Competitions — Selection Board — Composition — Requirement for sufficient stability to ensure consistency in marking — Scope — Obligation of members to be present during written tests — None

(Staff Regulations, Annex III, Art. 3)

5.      Actions brought by officials — Action challenging a decision refusing admission to competition tests — Reliance on irregularities in the competition notice

(Staff Regulations, Arts 90 and 91)

6.      Officials — Competitions –Organisation — Discretion of the appointing authority — Limits

(Staff Regulations, Art. 27; Annex III Arts 1, 4 and 5)

7.      Officials — Competitions — Competition based on qualifications and tests — Assessment of candidates’ merits — Elimination of candidates on the basis of their weighted responses to questions asked at the preselection stage — Lack of direct consideration by the selection board of the candidates’ qualifications and professional experience — Unlawful

(Staff Regulations, Annex III, Art. 5 paras 1 and 3)

1.      Under Article 35 of the Rules of Procedure, only the form of order set out in the originating application may be taken into consideration and consequently, unless the subject-matter of the dispute is to be changed, as a matter of principle, a party may not submit fresh claims or extend the subject-matter of existing claims in the course of the proceedings. Only where there is a new factor capable of affecting the subject-matter of the action, such as, in particular, the adoption during the proceedings of an act repealing and replacing the contested act, may an applicant amend his claims.

(see para. 34)

See:

8 July 1965, 83/63 Krawczynski v Commission; 3 March 1982, 14/81 Alpha Steel v Commission, para. 8

2.      Although a selection board responsible for assessing candidates in a competition must necessarily be constituted before the selection of candidates begins, it must be regarded as constituted once all of its members have been nominated by the appointing authority for the first time. Although the composition of that selection board may have to change as a result of the resignation of some of its members, that fact is not capable of having a retroactive effect on the date on which the selection board is to be regarded as having been constituted.

(see para. 43)

3.      Even if the appointing authority is under an obligation to publish the composition of each competition selection board before the tests begin, compliance with that obligation would not constitute an essential procedural requirement violation of which could have the result that the decisions taken by a selection board should be annulled, unless it were such as to have influenced those decisions or denied the candidates a safeguard. Knowledge of the identity of the members of a competition selection board is not likely to influence a candidate’s chances of success, since candidates are selected on the basis of the criteria laid down in the competition notice, and not according to the identity of the selection board’s members. Furthermore, although publication of the list of members of a selection board is intended to allow the candidates to make sure that none of the members of the selection board before whom they appear has a conflict of interests, the late publication of that list is not capable of denying the candidates a safeguard, since it is always possible for them to invoke any conflict of interests in a subsequent action against that selection board’s decision not to include them in the reserve list.

(see para. 46)

4.      In order to ensure consistent and objective marking for candidates in an oral test, and having regard to the comparative nature of competitions, it is necessary for all the members of the selection board to be present or, at the very least, for a certain stability to be maintained in the composition of the selection board. However, the maintenance of such stability does not appear necessary, in order to ensure respect for the principle of equal treatment, for written tests. A selection board member who is not present when the other members of the selection board examine a candidate’s script may, if he considers it necessary, examine that script subsequently in order to compare it with others and, consequently, play an active part in its assessment.

(see para. 49)

See:

26 January 2005, T‑267/03 Roccato v Commission, para. 38

29 September 2010, F‑5/08 Brune v Commission, para. 41; 29 September 2010, F‑41/08 Honnefelder v Commission, para. 36

5.      In an action against a decision of a selection board in a competition, an applicant is entitled to rely on irregularities occurring in the course of the competition, even if the origin of those irregularities may be found in the wording of the competition notice itself. As long as the applicants’ applications had not been rejected by the selection board, they could not be sure whether they had an interest in bringing proceedings against the competition notice, so that they cannot be criticised for not having contested the competition notice within the time-limits provided for in Articles 90 and 91 of the Staff Regulations.

(see para. 65)

See:

11 August 1995, C‑448/93 P Commission v Noonan, para. 17

6.      The purpose of organising a competition is to fill vacant posts within the institutions and, as follows in particular from the first paragraph of Article1 and Article 4 of Annex III to the Staff Regulations, it is therefore the appointing authority’s task to draw up the competition notice and, for that purpose, to decide on the most suitable method for selecting candidates, in the light of the requirements attaching to the posts to be filled and, more generally, of the interests of the service.

However, the exercise by the appointing authority of that discretion, regardless of the number of people likely to apply for the competition in question, is necessarily circumscribed by the need to observe the rules in force and general principles of law. It follows that the method chosen by the appointing authority must, first, aim to recruit persons of the highest standard of ability and efficiency, in accordance with Article 27 of the Staff Regulations, second, in accordance with Article 5 of Annex III to the Staff Regulations, reserve for an independent selection board the task of determining, case by case, whether the diplomas submitted or the professional experience presented by each candidate correspond to the level required by the Staff Regulations and the notice of competition and, third, result in the consistent and objective selection of candidates. .

(see paras 69-70)

See:

27 September 2006, T‑420/04 Blackler v Parliament, paras 23 and 45

7.      A method of selection based on qualifications consisting, for the first stage, of asking the applicants, by means of a questionnaire, whether they considered that they satisfied a series of conditions relating to their education and professional experience, and then, on the basis of the answers given by all the candidates, fixing a threshold below which candidates with insufficient positive replies, counted in the form of points and after weighting, were eliminated, infringes the provisions of the Staff Regulations and the general principles governing competitions.

It is clear from the first and third paragraphs of Article 5 of Annex III to the Staff Regulations that where selection is on the basis of qualifications, it is for the selection board to assess whether the candidates’ diplomas and experience meet the requirements set out in the competition notice. That selection method does not require the selection board to carry out any checks on the relevance of the candidates’ qualifications and professional experience and necessarily implies that those candidates are not selected according to the relevance of their diplomas or professional experience, but on the basis that they possess them, which does not constitute a sufficiently objective factor to guarantee that the best candidates will be chosen, or even that the selection made will be consistent.

Moreover, where the number of points that a candidate had to obtain in order to have his file examined in the second stage depended on the number of points of the other candidates, that candidate could find himself eliminated simply because other candidates had ticked certain questions as a result of interpreting the criteria too much to their own advantage, misunderstanding the questions or assessing the value of their diplomas or professional experience incorrectly, since each question asked called for a highly subjective assessment by the candidate of the relevance of his diplomas and professional experience. In that respect, the selection method does not adequately guarantee objective and consistent marking.

Consequently, in providing for some candidates to be eliminated on the ground that their diplomas and professional experience are not sufficiently relevant without the selection board specifically examining that relevance, the provisions of the competition notice relating to the first stage of the selection procedure based on qualifications wrongfully restrict the rights and powers of the selection board, and they must therefore be regarded as unlawful.

(see paras 71-74, 76)

See:

24 April 2013, F‑73/11 CB v Commission, paras 50 to 52

14 December 2011, T‑361/10 P Commission v Pachtitis, para. 43; 14 December 2011 T‑6/11 Commission v Vicente Carbajosaand Others, para. 58