JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(First Chamber)

7 October 2013

Case F‑97/12

Florence Thomé

v

European Commission

(Civil service — Open competition — Notice of competition EPSO/AD/177/10 — Decision not to recruit a successful candidate — Criteria governing permissibility — University diploma or degree)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Ms Thomé essentially challenges the European Commission’s refusal to recruit her to the post referred to in vacancy notice COM/2011/218 and seeks an order that the Commission pay her damages.

Held:      The European Commission’s decisions of 11 November 2011 and 5 June 2012 are annulled. The European Commission is ordered to pay Ms Thomé the sum of EUR 14 000. The remainder of the application is dismissed. The European Commission is to bear its own costs and is ordered to pay the costs incurred by Ms Thomé.

Summary

1.      Actions brought by officials — Interest in bringing proceedings — Action directed against a measure which has been repealed — Respective effects of repeal and withdrawal

(Staff Regulations, Arts 90 and 91)

2.      Officials — Recruitment — Competitions — Competition based on qualifications and tests — University diploma or degree required — Meaning of ‘diploma or degree’ — Determination on the basis of the legislation of the Member State in which the studies took place — Discretion of the selection board and the appointing authority — Judicial review — Limits

1.      The withdrawal of a decision eradicates it with retroactive effect, whereas its repeal eradicates it only for the future. It follows that although an action directed against a decision that was withdrawn prior to the bringing of that action is, in principle, nugatory and must be dismissed as inadmissible, an official retains an interest in challenging a decision which has merely been repealed and not withdrawn, where the annulment of that measure by the Tribunal may in itself have legal consequences.

(see para. 28)

See:

14 September 1995, T‑480/93 and T‑483/93 Antillean Rice Mills and Others v Commission, para. 60

2.      The selection board in a competition based on qualifications and tests is responsible for determining, case by case, whether the diplomas or degrees submitted or the professional experience presented by each candidate correspond to the level required by the Staff Regulations and the notice of competition in question. In the absence of any provision to the contrary contained either in a regulation or a directive applicable to recruitment competitions or in the notice of competition, the requirement of possession of a university diploma or degree on which admission to an open competition depends is necessarily to be construed in the light of the definition of such a diploma or degree given in the legislation of the Member State in which the candidate completed the studies on which he relies.

Where, in particular, the connection between the diploma or degree and the field of the competition or the nature and duration of the professional experience required is at issue, the Union judicature considers that the selection board enjoys a wide discretion and that the Civil Service Tribunal must confine itself to ascertaining that the exercise of that discretion was not vitiated by a manifest error of assessment.

However, where the question is whether the diploma or degree is recognised by the legislation of the Member State where it was awarded, or whether, in the light of that legislation, it meets the level required by the competition notice, the Union judicature considers that the selection board’s interpretation of the national legislation does not fall within the scope of its wide discretion and that it must, instead, be subject to the Union judicature’s overall review of errors of assessment.

The same principles must also apply to situations in which the appointing authority considers, contrary to the selection board’s previous assessment, that the candidate’s diploma or degree is not recognised by the legislation of the Member State where it was awarded or, in the light of that legislation, does not meet the level required by the competition notice. In such a situation there would be no reason for the Union judicature to confine itself to reviewing only whether the appointing authority’s decisions contain any manifest error of assessment, whereas the selection board’s decisions, on the other hand, would be subject to an overall review of errors of assessment.

(see paras 45, 48-52)

See:

28 November 1991, T‑158/89 Van Hecken v ESC, para. 22; 11 February 1992, T‑16/90 Panagiotopoulou v Parliament, paras 50 to 53; 3 March 1994, T‑82/92 Cortes Jimenez and Others v Commission, para. 33; 9 December 1999, T‑299/97 Alonso Morales v Commission, para. 60

30 November 2009, F‑83/07 Zangerl-Posselt v Commission, para. 51; 20 June 2012, F‑83/11 Cristina v Commission, para. 67