JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (Third Chamber)

1 July 2010

Case F-40/09

Radek Časta

v

European Commission

(Civil service — Open competition — Non‑admission to the oral tests — Request for a review — Obligation to state reasons — Professional experience required — Late submission of a certificate — Principle of equal treatment — Action for annulment — Action for damages)

Application: brought under Articles 236 EC and 152 EA, in which Mr Časta seeks, first, annulment of the appointing authority’s decision of 22 December 2008 confirming the selection board’s decision of 9 June 2008 in open competition EPSO/AD/107/07-LAW not to admit him to the oral tests, and, second, compensation for the material and non-material harm allegedly suffered as a result of that decision.

Held: The application is dismissed. The applicant is to bear all the costs.

Summary

1.      Officials — Actions — Act adversely affecting an official — Decision adopted after reconsideration of a previous decision

(Staff Regulations, Arts 90(2) and 91(1))

2.      Officials — Competitions — Selection board — Decision not to admit to tests — Obligation to state reasons — Scope

(Staff Regulations, Art. 25, second para.)

3.      Officials — Competitions — Competition based on qualifications and tests — Notice of competition — Subject-matter

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

4.      Officials — Competitions — Competition based on qualifications and tests — Conditions for admission — Fixing by the competition notice — Selection board’s assessment of candidates’ professional experience — Judicial review — Limits

(Staff Regulations, Annex III, Arts 2 and 5)

5.      Officials — Competitions — Competition based on qualifications and tests — Criteria for selecting candidates — Candidates’ professional experience

(Staff Regulations, Annex III, Art. 5)

6.      Officials — Competitions — Competition based on qualifications and tests — Conditions for admission — Production of supporting documents for admission to the tests

(Staff Regulations, Annex III, Arts 2 and 5)

7.      Officials — Equal treatment — Limits — Advantage unlawfully granted

8.      Officials — Actions — Claim for damages linked to an application for annulment — Dismissal of application for annulment entailing dismissal of claim for damages

(Staff Regulations, Art. 91)

1.      When a party whose request to be admitted to a competition organised by the European Union institutions has been rejected seeks reconsideration of that decision on the basis of a precise provision binding on the administration, it is the decision taken by the selection board after reconsideration which constitutes the act adversely affecting him within the meaning of Article 90(2) or, as the case may be, Article 91(1) of the Staff Regulations. It is also that decision, taken after reconsideration, which causes the periods for lodging a complaint and bringing an action to start to run, without there being any need to ascertain whether, in such a situation, that decision may be regarded as a purely confirmatory act.

(see para. 27)

See:

T‑386/00 Gonçalves v Parliament [2002] ECR‑SC I‑A‑13 and II‑55, para. 39; T‑375/02 Cavallaro v Commission [2005] ECR‑SC I‑A‑151 and II‑673, para. 58; T‑293/03 Giulietti v Commission [2006] ECR‑SC I‑A‑2‑5 and II‑A‑2‑19, para. 29

2.      Under the second paragraph of Article 25 of the Staff Regulations any decision relating to a specific individual taken under the Staff Regulations and which adversely affects that person must state the grounds on which it is based. The requirement that a decision adversely affecting a person should state the reasons on which it is based 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. The purpose of that requirement is, in particular, to enable the person to know the reasons for a decision taken concerning him, so that he can, if appropriate, pursue the legal remedies necessary to defend his rights and interests.

As regards, more particularly, decisions refusing admission to a competition, the selection board must indicate precisely which conditions in the competition notice the candidate is deemed not to have satisfied.

(see para. 42)

See:

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

T‑133/89 Burban v Parliament [1990] ECR II‑245, para. 43; T‑214/99 Carrasco Benítez v Commission [2000] ECR‑SC I‑A‑257 and II‑1169, para. 173; Gonçalves v Parliament, para. 62; 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, para. 43; T‑145/02 Petrich v Commission [2004] ECR‑SC I‑A‑101 and II‑447, para. 54

3.      The selection board in a competition is bound by the wording and, in particular, by the conditions of admission laid down in the notice of competition. The basic function of a notice of competition, according to the Staff Regulations, is to give those interested the most accurate information possible about the conditions of eligibility for the post, in order to enable them to judge, first, whether they should apply for it and, second, what supporting documents are important for the proceedings of the selection board and must therefore be enclosed with the application.

(see para. 56)

See:

Gonçalves v Parliament, para. 73; Petrich v Commission, para. 34

4.      It is for the selection board in a competition to assess in each case whether the professional experience of each candidate corresponds to the level required by the notice of competition. It enjoys a discretion, under the provisions of the Staff Regulations concerning competition procedures, in assessing the nature and duration of the previous experience of candidates and its relevance to the post to be filled. In its review of legality, the Civil Service Tribunal must therefore confine itself to ascertaining whether the selection board’s exercise of that discretion was free from manifest errors.

(see para. 58)

See:

T‑115/89 González Holguera v Parliament [1990] ECR II‑831, published in extract form, para. 54; T‑158/89 Van Hecken v ESC [1991] ECR II‑1341, para. 22; Carrasco Benítez v Commission, paras 69 to 71; Petrich v Commission, para. 37

F‑121/05 De Meerleer v Commission [2007] ECR‑SC I‑A‑1‑161 and II‑A‑1‑865, para. 116

5.      In a competition, documents concerning a candidate’s professional experience which he has drawn up himself represent his own opinion of his experience, the content of those documents corresponding to those of a curriculum vitae. Since such documents cannot, in principle, be objectively checked so as to enable the selection board to conduct a detailed examination of the professional experience required, they must be regarded not as supporting documents providing evidence of professional experience, but as simply forming part of the candidate’s curriculum vitae.

(see para. 64)

See:

T‑420/04 Blackler v Parliament [2006] ECR‑SC I‑A‑2‑185 and II‑A‑2‑943, para. 49

6.      In order to ascertain whether the conditions for admission have been satisfied, a selection board is entitled to take account only of the information provided by candidates in their application and of the documents which they are required to produce in support of it. A selection board cannot be required to make enquiries itself in order to ensure that candidates satisfy all the conditions laid down in the notice of competition. When clear provisions in a notice of competition unequivocally require candidates to enclose supporting documents with their application form, a candidate’s failure to comply with that obligation cannot enable or, a fortiori, oblige the selection board or the appointing authority to act contrary to that notice of competition.

(see paras 67, 71)

See:

C‑255/90 P Burban v Parliament [1992] ECR I‑2253, para. 12

Carrasco Benítez v Commission, para. 77; Gonçalves v Parliament, para. 74; Petrich v Commission, paras 45 and 49

7.      The principle of equal treatment must be reconciled with the principle of legality and thus a person may not rely, in support of his claim, on an unlawful act committed in favour of a third party. An unlawful act committed in respect of other candidates in a competition who are not parties to the proceedings cannot lead the Civil Service Tribunal to determine that there has been discrimination and therefore an unlawful act in respect of one particular candidate. Such an approach would be tantamount to affirming the principle of ‘equal treatment in unlawfulness’. There cannot be equality in unlawfulness, since the principle of non-discrimination does not justify any entitlement to the non-discriminatory application of unlawful treatment.

(see paras 88-89)

See:

134/84 Williams v Court of Auditors [1985] ECR 2225, para. 14

T‑327/94 SCA Holding v Commission [1998] ECR II‑1373, para. 160; T‑23/99 LR AF 1998 v Commission [2002] ECR II‑1705, para. 367; T‑13/99 Pfizer Animal Health v Council [2002] ECR II‑3305, para. 479; T‑120/04 Peróxidos Orgánicos v Commission [2006] ECR II‑4441, para. 77

F‑4/07 Skoulidi v Commission [2008] ECR‑SC I‑A‑1‑47 and II‑A‑1‑229, para. 81

8.      In staff cases, a claim for compensation for damage must be dismissed where there is a close connection between it and an application for annulment which has itself been dismissed either as inadmissible or as unfounded.

(see para. 94)

See:

T‑273/94 N v Commission [1997] ECR‑SC I‑A‑97 and II‑289, para. 159; T‑214/02 Martínez Valls v Parliament [2003] ECR‑SC I‑A‑229 and II‑1117, para. 43; T‑155/03, T‑157/03 and T‑331/03 Cwik v Commission [2005] ECR‑SC I‑A‑411 and II‑1865, para. 207

F‑114/07 Wenning v Europol [2009] ECR‑SC I‑A‑1‑363 and II‑A‑1‑1935, para. 210