JUDGMENT OF THE CIVIL SERVICE TRIBUNAL
(Second Chamber)

29 September 2011

Case F‑72/10

Mario Paulo da Silva Tenreiro

v

European Commission

(Civil service – Officials – Recruitment – Article 7(1) of the Staff Regulations – Article 29(1)(a) and (b) of the Staff Regulations – Manifest error of assessment – Misuse of powers – Statement of reasons)

Application:      brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr da Silva Tenreiro seeks, first, annulment of the decision of the European Commission rejecting his candidature for the vacant post of Director of Directorate E ‘Justice’ of the Directorate-General (DG) ‘Justice, Freedom and Security’ and the decision appointing Ms K to that post, and, second, of the Commission’s decision to terminate the procedure for filling the post of Director of Directorate F ‘Security’ of the DG ‘Justice, Freedom and Security’ (‘the “Security” Directorate’), together with the decision appointing Mr P to that post.

Held:      The action is dismissed. The applicant is ordered to bear the costs.

Summary

1.      Officials – Vacancy – Filled by promotion or transfer – Consideration of candidates’ comparative merits

(Staff Regulations, Arts 7(1) and 29(1))

2.      Officials – Vacancy notice – Determination of minimum qualifications required for the post to be filled

(Staff Regulations, Art. 29)

1.      The latitude available to the appointing authority regarding appointment presupposes that it must examine candidates’ files carefully and impartially and that it must have meticulous regard to the requirements laid down in the vacancy notice, so that it is required to reject any candidate who does not meet those requirements. The vacancy notice thus constitutes a legal framework which the appointing authority imposes on itself and must observe meticulously.

For the purpose of verifying that the appointing authority has not acted outside the scope of that legal framework, the Union court must first examine the conditions required by the vacancy notice and then verify whether the candidate chosen by that authority to occupy the vacant post did indeed satisfy those conditions. Lastly, it must examine whether or not, as regards the applicant’s capabilities, the appointing authority committed a manifest error of assessment in preferring another candidate to him.

Such a review must, however, be limited to whether, in the light of the considerations which led the administration to arrive at its assessment, the administration kept within reasonable limits and did not use its power in a manifestly erroneous manner. The Union court cannot therefore substitute its assessment of the qualifications of the candidates for that of the appointing authority.

(see paras 48-50)

See:

28 February 1989, 341/85, 251/86, 258/86, 259/86, 262/86, 266/86, 222/87 and 232/87 van der Stijl and Cullington v Commission, para. 51

11 December 1991, T‑169/89 Frederiksen v Parliament, para. 69; 19 March 1997, T‑21/96 Giannini v Commission, para. 20; 12 May 1998, T‑159/96 Wenk v Commission, paras 63 to 65 and 72; 19 September 2001, T‑152/00 E v Commission, para. 29; 14 October 2003, T‑174/02 Wieme v Commission, para. 38; 11 November 2003, T‑248/02 Faita v ESC, para. 71; 5 July 2005, T‑370/03 Wunenburger v Commission, para. 51; 4 July 2006, T‑45/04 Tzirani v Commission, paras 46, 48 and 49

2.      The appointing authority enjoys a wide discretion in deciding upon the abilities required for posts to be filled, and only a manifest error of assessment in the definition of the minimum conditions required to fill the post in question can render the notice of vacancy unlawful.

(see para. 61)

See:

16 October 1990, T‑132/89 Gallone v Council, para. 27; 12 December 2002, T‑135/00 Morello v Commission, para. 69; 11 July 2007, T‑93/03 Konidaris v Commission, para. 72