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

17 December 2015

Case F‑76/14

Alfonso López Cabeza

v

European Commission

(Civil service — Open competition — Competition notice EPSO/AD/248/13 — Non-inclusion on the reserve list — Insufficient mark in the assessment centre tests — Actions for annulment — Breach of the competition notice — Illegality of a test)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, by which Mr López Cabeza seeks, essentially, annulment of the decision of the selection board for open competition EPSO/AD/248/13 not to include his name on the reserve list drawn up for the field to which his application related.

Held:      The action is dismissed as manifestly unfounded. The European Commission shall bear its own costs and is ordered to pay the entirety of the costs incurred by Mr Lopez Cabeza.

Summary

1.      Actions brought by officials — Action directed against a decision of non-inclusion on a competition reserve list — Possibility of relying on irregularity of the guide, as an integral part of the competition notice, in order to challenge the non-inclusion — Conditions

(Staff Regulations, Arts 90(2) and 91)

2.      Officials — Equal treatment — Meaning — Competitions — Difference of treatment of candidates in a competition relating to two distinct fields — Legality

3.      Judicial proceedings — Costs — Burden thereof — Taking into account of the requirements of equity — Order for the successful party to pay the costs

(Rules of Procedure of the Civil Service Tribunal, Art. 102(2))

1.      While it is true that a candidate in a competition is entitled to rely, in an action directed against a decision not to include him on the reserve list, on irregularities occurring in the course of the competition, including any which may originate from the wording of the competition notice or the guide which forms an integral part of that notice, it nevertheless remains the case that, in the absence of a close link between the reasoning of the contested decision and the complaint based on unlawfulness of the competition notice, or the guide which forms an integral part of it, those documents not having been challenged in a timely manner, the complaint must be held to be inadmissible.

(see para. 62)

See:

Judgments of 23 January 2013 in Katrakasas v Commission, F‑24/11, EU:F:2013:4, paragraph 71, and 21 March 2013 in Taghani v Commission, F‑93/11, EU:F:2013:40, paragraph 38

2.      There is a breach of the principle of equal treatment where two categories of persons whose factual and legal situations are not essentially different receive different treatment or where different situations are treated in the same way. Likewise, observance of the principle of equal treatment must be reconciled with observance of the principle of legality, according to which a person may not rely, in support of his claim, on an unlawful act committed in favour of a third party.

In the context of a competition relating to two distinct fields, there is no breach of the principle of equal treatment where the selection board includes, in relation to one of those fields, more successful candidates on the reserve list than there are places available, without doing the same in relation to the field chosen by the candidate concerned. Where that candidate has chosen to apply for one of the competition fields, he is not in the same situation as candidates applying for the other, and cannot rely on an argument based on breach of the principle of equal treatment.

(see paras 63-65)

See:

Judgment of 4 July 1985 in Williams v Court of Auditors, 134/84, EU:C:1985:297, paragraph 14

Judgment of 22 December 2005 in Gorostiaga Atxalandabaso v Parliament, T‑146/04, EU:T:2005:584, paragraph 141

Judgment of 18 May 2015 in Dupré v EEAS, F‑11/14, EU:F:2015:47, paragraph 69

3.      Under Article 102(2) of its Rules of Procedure, the Civil Service Tribunal may order the successful party to bear its own costs and to pay the costs incurred by the other party if this appears justified by its conduct, including before the proceedings were brought. In that regard, ordering the institution to pay the costs may be justified by lack of due diligence in the pre-litigation procedure.

It is appropriate to make an order under Article 102(2) of the Rules of Procedure where the decision rejecting a request for re-examination made by a candidate in an open competition was not made within a reasonable time, but almost six and a half months after receipt of the request by the European Personnel Selection Office, and over five months after publication of the competition reserve list, since the candidate has, for no acceptable reason, been left in a state of uncertainty as regards the prospects of his name being included on the reserve list in the event of his request for re-examination being accepted.

(see paras 103, 107-109)

See:

Order of 5 July 2011 in Coedo Suárez v Council, F‑73/10, EU:F:2011:102, paragraph 47