JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (First Chamber)

11 December 2012

Case F‑112/10

Cornelia Trentea

v

European Union Agency for Fundamental Rights (FRA)

(Civil service — FRA staff — Members of the temporary staff — Recruitment — Vacancy notice — Rejection of an application)

Application: Action brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, whereby Ms Trentea requests the Tribunal, first, to annul the decisions of the European Union Agency for Fundamental Rights (‘the FRA’ or ‘the Agency’) rejecting her application for the post of administrative assistant and appointing another candidate to that post and, second, to order the FRA to pay her damages.

Held: The action is rejected. The applicant is to bear her own costs and is ordered to pay the costs incurred by the FRA.

Summary

1.      Officials — Members of the temporary staff — Recruitment — Procedure — Recruitment by the European Union Agency for Fundamental Rights of a temporary staff member in order to fill a long-term post — Obligation to initiate and exhaust an internal recruitment procedure or an Interagency Job Market recruitment procedure before initiating an external procedure — None

(Staff Regulations, Art. 110) Conditions of Employment of Other Servants, Arts 2(a) and 12(5))

2.      Officials — Vacancy notice — Purpose — Consideration of candidates’ comparative merits — Discretion of the appointing authority or the contracting authority — Limits — Observance of the conditions laid down in the vacancy notice

(Staff Regulations, Art. 29)

3.      Officials — Vacancy — Consideration of candidates’ comparative merits — Procedures — Possibility of interviewing candidates at each stage of the examination of applications

(Staff Regulations, Art. 29)

4.      Officials — Decision adversely affecting an official — Rejection of an application — Obligation to state reasons — Scope — Respect for secrecy of the selection committee’s proceedings

(Staff Regulations, Art. 25(2); Charter of Fundamental Rights of the European Union, Art. 41(2)(c))

5.      Officials — Vacancy — Consideration of candidates’ comparative merits — Discretion of the appointing authority or the contracting authority — Observance of the conditions laid down in the vacancy notice — Judicial review — Limits — Manifest error of assessment — None

(Staff Regulations, Art. 29)

1.      Article 2 of Decision 2009/3 of the European Union Agency for Fundamental Rights (FRA) on general implementing provisions on the procedure governing the engagement and the use of temporary agents at the FRA, which provides that ‘[l]ong-term employment posts may be filled through an internal engagement procedure or via the Interagency Job Market and then through an external engagement procedure’ and that ‘[t]he publication of a long-term employment post may be done simultaneously internally in the Agency and in the Interagency Job Market, before making an external publication of the vacant post’, cannot be read as compelling the FRA, where it seeks to fill a long-term employment post, to open or exhaust an internal recruitment procedure or an Interagency Job Market recruitment procedure before opening an external procedure.

The use of the verb ‘may’ shows only that, where the FRA considers that a long-term employment post could, in all likelihood, be filled by an internal recruitment procedure or an Interagency Job Market recruitment procedure, it is entitled to use either of those procedures. Accordingly, where the FRA considers that, on the contrary, neither of those two recruitment procedures is sufficiently likely to achieve that aim, it is entitled to have recourse, from the outset, to an external recruitment procedure.

Moreover, to interpret Article 2 of Decision 2009/3 as obliging the FRA to exhaust an internal recruitment procedure or an Interagency Job Market recruitment procedure before opening an external recruitment procedure would be contrary to the general scheme of that provision, which is intended to enable the FRA — whose workforce is scheduled to be increased — to recruit staff rapidly in order to enable it to fulfil all its tasks.

(see paras 46-47)

2.      The purpose of a notice of vacancy is, first, to give those interested the most accurate information possible as to the conditions of eligibility for the post to be filled, in order to enable them to decide whether they should apply for it and, second, to set the legal framework in the light of which the institution intends to undertake a comparison of the candidates’ merits. The latter function implies that sufficiently precise requirements must be set out to enable that comparison to be carried out and to justify the choices made.

In that regard, the fact that the vacancy notice did not include information relating to the weighting assigned to each of the selection criteria or the method of assessing the written and oral tests does not mean that the choice of the successful candidate must have been made without account being taken of the selection criteria; rather, it shows only that, within the legal framework established by the vacancy notice, the appointing authority intended to allow the Selection Committee some discretion in the weighting to be assigned to each of the selection criteria and in the procedures for the written and oral tests.

(see paras 57-58)

See:

19 February 1998, T‑3/97 Campogrande v Commission, para. 100

3.      Within the scope of the discretion which the appointing authority enjoys in defining the rules for the comparative consideration of candidates, the appointing authority itself and the various higher-ranking officials consulted in the course of the selection procedure must consider at each stage in the examination of the candidatures whether it is necessary at this stage to obtain further information or form further assessments through interviews with all the candidates or only with some of them, in order to be able to reach a decision in full knowledge of the facts.

(see para. 62)

See:

11 July 2007, T‑93/03 Konidaris v Commission, para. 107 and the case-law cited

4.      The duty to state reasons imposed by the second paragraph of Article 25 of the Staff Regulations is intended, first, to provide the person concerned with sufficient details to enable him to assess whether the measure adversely affecting him is well founded and whether it is appropriate to bring proceedings before the Tribunal and, second, to enable the Tribunal to review the legality of the measure. Moreover, Article 41(2)(c) of the Charter of Fundamental Rights provides that the right to good administration includes, inter alia, ‘the obligation of the administration to give reasons for its decisions’.

However, such a duty to state reasons must be reconciled, in the context of a recruitment procedure to fill a vacant post, with observance of the secrecy surrounding the proceedings of selection committees, which precludes disclosure of the attitudes adopted by individual members of the selection committee and disclosure of factors relating to individual or comparative assessments of candidates.

(see paras 89-90)

See:

15 September 2005, T‑132/03 Casini v Commission, para. 30 and the case-law cited; 14 November 2006, T‑494/04 Neirinck v Commission, para. 73

5.      In exercising the discretion available to it regarding an appointment or promotion, the administration must examine carefully and impartially all the relevant parts of each application and meticulously observe the requirements laid down in the vacancy notice, thus being 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.

As regards the question whether there was any error in the choice of the successful candidate, such an error must be manifest and must exceed the wide discretion enjoyed, within the legal framework laid down in the vacancy notice, by the administration in comparing the merits of candidates and in assessing the interests of the service. The Tribunal’s review must be confined to the question whether, having regard to the considerations which influenced that authority in making its assessment, the latter remained within reasonable bounds and did not use its power in a manifestly incorrect way or for purposes other than those for which that power was conferred on it. The Tribunal cannot therefore substitute its assessment of the merits and qualifications of the candidates for that of the administration where there is nothing in the file to suggest that, in assessing those merits and qualifications, the administration made a manifest error.

In that regard, the mere fact that a candidate has obvious and acknowledged merits does not exclude the possibility that, in the context of consideration of the comparative merits of candidates for promotion, other candidates may have higher merits. Likewise, the fact that a candidate satisfies all the criteria in the vacancy notice does not in itself suffice to prove that the administration made a manifest error of assessment.

(see paras 101-02, 104)

See:

30 October 1974, 188/73 Grassi v Council, paras 26, 38 and 41; 4 February 1987, 324/85 Bouteiller v Commission, para. 6

18 September 2003, T‑73/01 Pappas v Committee of the Regions, para. 54; 9 November 2004, T‑116/03, para. 65; 4 May 2005, T‑30/04 Sena v EASA, para. 80

6 May 2009, F‑39/07 Campos Valls v Council, para. 43