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

11 September 2008 (*)

(Civil service – Officials – Open competition – Non-inclusion on the reserve list – Assessment of written and oral tests)

In Case F‑127/07,

ACTION under Articles 236 EC and 152 EA,

Juana Maria Coto Moreno, an official of the Commission of the European Communities, residing in Gaborone (Botswana), represented by K. Lemmens and C. Doutrelepont, lawyers,

applicant,

v

Commission of the European Communities, represented by B. Eggers and M. Velardo, acting as Agents,

defendant,

THE TRIBUNAL (Third Chamber),

composed of P. Mahoney, President, H. Kanninen and S. Gervasoni (Rapporteur), Judges,

Registrar: R. Schiano, Administrator,

having regard to the written procedure and further to the hearing on 11 June 2008,

gives the following

Judgment

1        By application lodged at the Registry of the Tribunal on 30 October 2007 by fax (the original was lodged on 6 November 2007), Ms Coto Moreno asks the Tribunal in essence to annul the decision of 12 February 2007 by which the selection board for Competition EPSO/AD/28/05 refused to include her name on the reserve list, to rule that the competent authorities must include her name on that list and to order the Commission of the European Communities to pay damages to compensate for the professional, financial and non-material damage she allegedly suffered.

 Facts

2        On 16 September 2004, the applicant was appointed as an official in Grade B*3 and posted to the Commission’s Delegation to Botswana.

3        The applicant subsequently enrolled for Competition EPSO/AD/28/05, held to constitute a reserve list of 100 successful candidates from which to recruit administrators in Grade AD 5 in the field of ‘Financial Resource Management’.

4        As can be seen from Notice of Competition EPSO/AD/28/05 published in the Official Journal of the European Union of 20 July 2005 (OJ 2005 C 178 A, p. 3) (‘the notice of competition’), that competition comprised three stages.

5        First, the competition began with three pre-selection tests, in the second language specified by the candidate, comprising multiple-choice questions. Candidates who obtained the pass-mark or over in each of those tests and who were among the 300 best candidates were allowed to take the written test.

6        Secondly, the written test, in the candidate’s main language, was on a subject of his or her choosing related to the field of the competition and was designed to assess the candidate’s specialist knowledge, comprehension skills and ability to analyse and summarise, and his or her drafting skills. The test was marked out of 50, with a pass-mark of 25. Candidates who obtained the pass-mark or over in the written test and were among the 150 best candidates were invited to take the oral test.

7        Thirdly, the oral test, again in the candidate’s main language, was intended to enable the selection board to assess the candidate’s suitability to carry out the duties relating to the posts which the competition was designed to fill. It focused on specialist knowledge in the field of the competition and on knowledge of the European Union, its institutions and its policies. Knowledge of the candidate’s second language was also tested, together with the ability to adjust to working as a European civil servant in a multicultural environment. The test was marked out of 50, with a pass-mark of 25.

8        The pre-selection tests and the written test were held on 31 March 2006. The applicant passed those tests and was invited to take the oral test, which was held in Brussels on 10 January 2007.

9        By letter of 12 February 2007, the European Personnel Selection Office (EPSO) informed the applicant that the selection board had not included her name on the reserve list because her result was not among the best 100 results (‘the contested decision’). Although the last candidate accepted had obtained 56.1 marks, the applicant’s total was only 54 marks, namely, 25/50 in the written test and 29/50 in the oral test.

10      In an email she sent to EPSO on 22 February 2007 the applicant expressed surprise at her mark in the oral test, made observations about the test and, lastly, asked that the selection board should reassess her written and oral tests.

11      By letter of 22 March 2007 the chair of the selection board replied to the applicant that the selection board, having reassessed her written and oral tests, had confirmed the applicant’s result and sent her back her written paper and the selection board’s assessment sheet for that paper.

12      It can be seen from the selection board’s assessment sheet relating to the applicant’s paper that the board considered that the applicant’s answer to the first question was ‘adequate but lacking in detail’ as regards her specialist knowledge, and ‘good’ as regards her ability to analyse, summarise and draft. With regard to her answer to question 3, which the applicant chose to answer from among questions 2, 3 and 4, the selection board found that ‘certain concepts were missing’, although it described the answer as ‘adequate’ as regards her specialist knowledge and ‘good’ as regards her ability to analyse, summarise and draft.

13      On 29 March 2007 the applicant sent EPSO a further email, in which she argued that she had not obtained an adequate reply to her remarks on the oral test and considered the selection board’s comments were exceptionally brief. She also asked what marks the comments ‘adequate’ and ‘good’ equated to. Lastly, the applicant challenged the assessment of her answer to question 3 of the written test.

14      By letter of 2 May 2007, the chair of the selection board again replied to the applicant. He explained in particular the selection board’s assessment of the applicant’s paper, stating that the four criteria for assessing that test were not of equal value and that specialist knowledge in the field of the test was considered to be more important than comprehension skills and the ability to summarise and express oneself. The chair of the selection board stated that, as regards the first question, the gaps in the content of the essay had been made up for by the quality of the analysis, summarising and drafting, which had enabled the applicant to obtain the mark 25/50.

15      As regards the assessment of the answer to question 3, the chair of the selection board gave the following explanations in the letter of 2 May 2007:

‘As you specifically requested more detail as regards your answer to question 3, the opinion of the Board is that your answer contained many weaknesses. First, the selection criteria were not explained or justified. What were the purposes of the proposed ceilings? Why would the turnover have to be 10 times the value of the market? Why did 50% of the turnover have to come from the tender domain? Why would 50% of the personnel have to be dedicated to the tender domain? etc.

As regards the award criteria, there was no mention of performance and quality of the equipment. Criteria such as the rate of becoming obsolete and the purchase cost versus maintenance, for example, were not mentioned. The criteria on the experience of the personnel and the company are clearly selection criteria and not award criteria; the simple but crucial date of delivery was also not mentioned.

Further, the contractual clauses given were not always pertinent (e.g. pre-financing guarantee) for such a market, but other more important possible clauses were missing, such as a clause for the sanctions in case of delay or non-function, the contractual responsibility for damages resulting from faults, the obligation to subscribe a professional insurance. Clauses for cancelling the contract in case of professional misconduct were also not mentioned.’

16      On 3 May 2007 the applicant lodged a complaint against the contested decision. By decision of 31 July 2007 the appointing authority rejected that complaint.

 Forms of order sought

17      The applicant claims that the Tribunal should:

–        annul the contested decision;

–        order the Commission to pay her damages of EUR 25 000 in compensation for the non-material loss she allegedly suffered;

–        order the Commission to pay her damages of EUR 8 000 to cover her lawyers’ fees;

–        declare that the competent authorities should include her name on the reserve list or, in the alternative, failing such inclusion, pay her damages of EUR 384 000 in compensation for the material loss she allegedly suffered;

–        order the Commission to pay the costs.

18      The Commission contends that the Tribunal should:

–        dismiss the action;

–        order the applicant to pay the costs.

 The claims for annulment

19      The applicant puts forward four pleas in support of her claims for annulment:

–        first plea, alleging that the selection board committed a manifest error in the assessment of her answers in the written and oral tests;

–        second plea, alleging breach of the notice of competition, the principle of equality and the ‘principle of reasonableness’;

–        third plea, alleging infringement of the obligation to state reasons;

–        fourth plea, alleging a manifest error of assessment as regards the lack of consistency between the numerical mark for the written test and the selection board’s assessments expressed in words.

 First and fourth pleas, alleging manifest errors of assessment on the part of the selection board

 Arguments of the parties

–       First plea: manifest error on the part of the selection board in the assessment of the applicant’s answers in the written and oral tests.

20      The applicant claims, first, that the selection board committed a manifest error of assessment in pointing to ‘many weaknesses’ in her answer to question 3 in the written test. On the one hand, the applicant cannot be criticised for failing to explain and justify the selection criteria with regard to the economic and technical capacity of tendering companies, since candidates were asked to specify selection criteria, not to justify their choice. Moreover, the selection criteria given by the applicant are so clear that reasons or justification for choosing them were superfluous. On the other hand, the applicant’s selection criteria are both relevant and currently used in practice, since they appear in the Commission’s ‘Practical Guide to contract procedures for EC external actions’. Since the applicant used the criteria contained in that Commission guide, the selection board should not have considered that her answer contained ‘many weaknesses’.

21      Secondly, the selection board also committed a manifest error of assessment in considering that the experience of the personnel and that of the company were wrongly cited by the applicant as being award criteria when they were in fact selection criteria. The Commission’s ‘Practical Guide to contract procedures for EC external actions’ gives the curriculum vitae of the experts proposed as criteria for awarding service contracts. The selection board was therefore in breach of the rules which the Commission had laid down for itself and thus infringed the principle patere legem quam ipse fecisti.

22      Thirdly, the selection board wrongly asserted that the contractual clauses proposed by the applicant in order to ensure the quality of goods and services and to limit financial risks were not always relevant. The pre-financing guarantee given as an example by the selection board in its letter of 2 May 2007 is, on the contrary, not only relevant but even compulsory in European Development Fund (EDF) contracts.

23      Finally, the answer the applicant gave to the question put to her at the oral test concerning ways to reduce the risk of financial losses following exchange rate variations under a contract between parties from countries with different currencies followed EDF practice: pay the price using both currencies and insert clauses in the contract allowing for prices to be reviewed. The selection board was therefore wrong to regard that answer as inadequate.

24      The Commission points to the limited nature of the review that can be exercised by the Tribunal over the selection board’s assessments.

25      As regards the written test, the Commission considers that the various references to the EuropeAid Cooperation Office’s Guide made by the applicant in her application in order to demonstrate that her answers were well founded reveal a misconception. That guide covers service contracts concluded by the EDF, whereas the wording of the questions in the written test did not mention the EDF and related to supply contracts.

–       Fourth plea: manifest lack of consistency between the numerical mark for the written test and the selection board’s assessments expressed in words

26      The applicant claims that the selection board committed a manifest error of assessment when it converted the assessment of her written test into a numerical mark. Since the board considered her answers ‘adequate’ as regards specialist knowledge and ‘good’ as regards the ability to analyse, summarise and draft which the answers demonstrate, the board was manifestly mistaken in awarding her a mark of 25/50, which is the pass-mark allowing her to take the oral test.

27      By awarding the applicant 25/50 the selection board also infringed the principle of equality. The board treated the applicant in the same way as other candidates who had been awarded ‘adequate’ twice for specialist knowledge and twice for ability to analyse, summarise, comprehend and draft. The applicant considers that her mark should have reflected the fact that she had been awarded ‘good’ for all the criteria apart from specialist knowledge.

28      In any event, the mark obtained in the written test is not proportionate to the assessment given on the assessment sheet.

29      The Commission’s response is that there is no inconsistency between the numerical mark of 25/50 and the comments. As the chair of the selection board explained in his letter of 2 May 2007, specialist knowledge in the field of the competition was of greater importance in the assessment of candidates. Even if there was an inconsistency between the numerical mark and the comments, it was altogether negligible and by no means manifest.

 Findings of the Tribunal

30      The applicant relies on two manifest errors of assessment, the first in the selection board’s assessment of the candidates’ performance and the second in the consistency between the numerical mark for the written test and the selection board’s assessments in words.

31      First of all, it is necessary to recall the scope of the review that the Tribunal can exercise over the decision by which a selection board refuses to include a candidate on the list of successful candidates.

32      Where it is required to review the legality of such a decision, the Tribunal verifies whether the relevant rules of law have been observed, that is to say the rules, in particular the procedural rules, laid down in the Staff Regulations and the notice of competition and those governing the proceedings of the selection board, in particular the selection board’s duty of impartiality and its observance of the principle of equal treatment of candidates (Case T‑24/01 Staelen v Parliament [2003] ECR‑SC I‑A‑79 and II‑423, paragraphs 47 to 52; Case T‑72/01 Pyres v Commission [2003] ECR‑SC I‑A‑169 and II‑861, paragraphs 32 to 42; and Case T‑165/03 Vonier v Commission [2004] ECR‑SC I‑A‑343 and II‑1575, paragraph 39), and the absence of misuse of powers (Joined Cases 112/73, 144/73 and 145/73 Campogrande and Others v Commission [1974] ECR 957, paragraphs 34 to 53; Case T‑200/97 Jiménez v OHIM [1999] ECR‑SC I‑A‑19 and II‑73, paragraphs 43 to 57). In situations where the selection board does not have discretion, the review may extend to the correctness of the facts on which the board relied in order to arrive at its decision (Case T‑100/04 Giannini v Commission [2008] ECR-SC I‑A‑0000 and II-0000, paragraphs 277 and 278).

33      However, a selection board’s assessment of candidates’ knowledge and ability is not open to review by the Tribunal (Campogrande and Others v Commission, paragraph 53; Case T‑267/03 Roccato v Commission [2005] ECR‑SC I‑A‑1 and II‑1, paragraph 42).

34      This does not apply as regards consistency between the numerical mark and the selection board’s assessments expressed in words. Such consistency, which furnishes a guarantee of equal treatment of candidates, is one of the rules governing the proceedings of the selection board, such that, by virtue of the case-law cited above, compliance with it must be verified as part of judicial review. Moreover, consistency between the numerical mark and the assessment expressed in words may be reviewed by the Tribunal independently of review of the selection board’s assessment of the candidates’ performance, the latter being a review which the Tribunal declines to exercise, provided the review of consistency is limited to verifying the absence of manifest inconsistency. That is why in Case F‑73/06 Van Neyghem v Commission [2007] ECR‑SC I‑A‑0000 and II‑0000, paragraph 87, the Tribunal considered whether, in view of the assessment expressed in words on the assessment sheet for a paper, the selection board had not committed a manifest error of assessment when deciding on the mark for that paper.

35      It is, in the first place, clear from the case-law cited in paragraph 33 above that the applicant cannot properly plead before the Tribunal the manifest error which, in her view, the selection board made in the assessment of the candidates’ performance and that the first plea must therefore be rejected.

36      Secondly, as is made clear in paragraph 34 above, the Tribunal must, on the other hand, determine whether or not the selection board has awarded the applicant a mark that is manifestly inconsistent with the assessments expressed in words that it has noted on the assessment sheet for her paper.

37      The applicant maintains in essence that the selection board committed a manifest error of assessment in awarding her 25/50 in the written test, that is to say, the pass-mark allowing her to take the oral test, although it assessed her answers to the two questions in the written test as ‘adequate’ as regards her specialist knowledge and ‘good’ as regards her ability to analyse, summarise and draft.

38      It should be noted that in a competition the candidates’ performance is marked on a relative scale and there is nothing to preclude, in particular, only candidates who are considered to be at a good level being allowed to take the oral test. Thus, the applicant is not justified in inferring from the mark she obtained in the written test (25/50), the minimal pass-mark allowing her to take the oral test, that the selection board did not consider her paper satisfactory. In those circumstances, the fact that the applicant obtained the bare pass-mark allowing her to take the oral test, although her written answers had been considered to be more than adequate overall, does not demonstrate a manifest inconsistency between that mark and the assessment expressed in words. Consequently, no manifest error of assessment can be inferred in this case from the comparison between the mark attributed to the applicant’s paper and the selection board’s assessments of that paper expressed in words.

39      The applicant’s fourth plea must therefore be rejected.

 Second plea: breach of the notice of competition, the principle of equality and the ‘principle of reasonableness’

 Arguments of the parties

40      According to the applicant, although the notice of competition stated that the written test was designed to assess the candidate’s ‘specialist knowledge, comprehension skills and ability to analyse and summarise, and drafting skills’, the selection board only assessed the applicant’s specialist knowledge. The specialist knowledge criterion was, in any event, given priority over the other criteria.

41      Since compliance with the notice of competition is designed to ensure equal treatment for candidates, equality of treatment was not ensured since the notice of competition was not complied with.

42      The applicant’s mark in the written test, which was the minimal pass-mark allowing her to take the oral test, reflected only the selection board’s assessment of her specialist knowledge as ‘adequate’ and not the favourable assessment her paper had received as regards her ability to analyse, summarise and draft. The discrepancy between the mark and the assessments expressed in words thus demonstrates that the specialist knowledge criterion was over-emphasised, if not the one relied on exclusively. The selection board thus infringed the ‘principle of reasonableness’.

43      The Commission contends that the written test was assessed in the light of all the criteria specified and considers that, in the case of a competition to recruit officials with specific financial resource management skills, it was reasonable to attach greater importance to candidates’ specialist knowledge in that field.

 Findings of the Tribunal

44      The applicant puts forward two arguments in support of the plea alleging breach of the notice of competition, the principle of equality and the ‘principle of reasonableness’.

45      First, she asserts that the selection board took into account only candidates’ specialist knowledge in the field of the competition, that is to say, financial resource management, and not the other assessment criteria for the written test stipulated in the notice of competition. That assertion is clearly contradicted by the selection board’s assessments expressed in words on the assessment sheet for the applicant’s paper. Those assessments relate both to the applicant’s specialist knowledge, which is considered to be ‘adequate’, and to her ability to analyse, summarise and draft, described as ‘good’.

46      The applicant considers, secondly, not without contradicting the preceding argument, that among the selection criteria listed in the notice of competition the selection board improperly attached greater value to the criterion of specialist knowledge in the field of the competition. It is not disputed that the selection board did consider that to be the most important criterion.

47      Nonetheless, the selection board’s ranking of the criteria does not breach the notice of competition, since the notice did not state that the criteria listed were of equal importance in the assessment of the candidates.

48      Moreover, ranking of the criteria does not in itself breach the principle of equal treatment of the candidates. The applicant does not, moreover, claim that the selection board applied those criteria differently to the other candidates.

49      Lastly, the applicant argues, exclusively on the basis of the discrepancy, which she describes as being manifest, between the mark she obtained in the written test and the selection board’s assessments in words in respect of her paper, that the selection board attached manifestly disproportionate importance to the specialist knowledge criterion. As was stated in paragraph 38 above, no manifest discrepancy is apparent between the mark obtained by the applicant in the written test and the selection board’s assessments expressed in words, contrary to what the applicant contends.

50      It follows from the above that the second plea must be rejected.

 Third plea: infringement of the obligation to state reasons

 Arguments of the parties

51      According to the applicant, the chair of the selection board stated in his letter of 2 May 2007 that her answer to question 3 in the written test contained ‘many weaknesses’, although on the assessment sheet the board stated that the answer concerned omitted certain points but was adequate. In view of those contradictions, the selection board could not be considered to have given the reasons for its assessment.

52      In none of its replies to the letters sent to it by the applicant did the selection board explain in what way the applicant’s oral answer to the question concerning the financial risks caused by exchange rate variations was not satisfactory. The selection board thus failed to comply with its obligation to state reasons.

53      The Commission maintains that, as the Court held in Case C‑254/95 P Parliament v Innamorati [1996] ECR I‑3423, paragraph 31, communication of the marks obtained in the various tests constitutes an adequate statement of the reasons on which the board’s decisions are based. The Commission infers from this that lack of adequate reasons cannot be argued on the basis of an alleged inconsistency between two documents which appeared after the mark was awarded. Moreover, the applicant obtained all the relevant explanations at the reassessment procedure and pre-litigation procedure stages. The Commission notes that the applicant was sent copies not only of her paper but also of the relevant assessment sheet.

54      As regards the question put to the applicant at the oral test concerning ways in which to guard against the financial risk linked to exchange rate variations, the selection board has already explained to the applicant that her answer was not totally wrong but that there were other answers that were more appropriate and better argued than hers.

 Findings of the Tribunal

55      The obligation on a selection board to state reasons for its decision must, on one hand, be reconciled with the secrecy surrounding the latter’s proceedings. Observance of this secrecy therefore precludes both disclosure of the attitudes adopted by individual members of selection boards and disclosure of any factors relating to individual or comparative assessments of candidates (Parliament v Innamorati, paragraph 24).

56      On the other hand, the requirement to state reasons for decisions must not place an intolerable burden on the functioning of the selection boards and the work of personnel administration (Case 89/79 Bonu v Council [1980] ECR 553, paragraph 6, and, by contrary reference, judgment of 28 February 2008 in Case C‑17/07 P Neirinck v Commission, not published in the ECR, paragraph 58). That is why, in a competition with many candidates, communication of the marks obtained in the various tests constitutes an adequate statement of the reasons on which the board’s decisions are based (Parliament v Innamorati, paragraph 31).

57      In the instant case, on completion of the pre-selection tests, 300 candidates were allowed to take the written test in the competition and a reserve list of 100 candidates was finally drawn up. The competition in which the applicant took part was thus a competition with many candidates. In those circumstances, as noted in the preceding paragraph, communication of the marks obtained in the various tests constituted an adequate statement of the reasons on which the board’s decisions were based as regards each candidate. It is common ground that the applicant was sent her marks. Also, in any event, the applicant received other documents enabling her to ascertain even more precisely the reasons why she failed the competition, such as her paper in the written test, the assessment sheet for that paper and an explanatory letter dated 2 May 2007, sent to her by the chair of the selection board. It follows therefore that the third plea, alleging failure to state reasons for the contested decision, fails.

58      The claims seeking annulment of that decision must therefore be rejected.

 Claims for compensation

59      The applicant seeks compensation for the material and non-material damage allegedly caused to her by the contested decision. Rejection of the claims directed against that decision therefore means that the claims for compensation made in the application must also be rejected.

60      It follows from all the foregoing that the application must be dismissed.

 Costs

61      Under Article 122 of the Rules of Procedure, the provisions of Title 2, Chapter 8, on costs apply only to cases brought before the Tribunal from the date on which those Rules entered into force, namely 1 November 2007. The relevant provisions of the Rules of Procedure of the Court of First Instance on the subject continue to apply mutatis mutandis to cases pending before the Tribunal before that date.

62      Under Article 87(2) of the Rules of Procedure of the Court of First Instance, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. However, under Article 88 of those Rules, in proceedings between the Communities and their servants the institutions are to bear their own costs. Since the applicant has been unsuccessful, each party must be ordered to bear its own costs.

On those grounds,

THE TRIBUNAL (Third Chamber)

hereby:

1.      Dismisses Ms Coto Moreno’s application;

2.      Orders each party to bear its own costs.

Mahoney

Kanninen

Gervasoni

Delivered in open court in Luxembourg on 11 September 2008.

W. Hakenberg

 

      P. Mahoney

Registrar

 

      President


The text of the present decision and those of the decisions of the Community Courts cited in it which have not yet been published in the European Court Reports are available on the internet site of the Court of Justice: www.curia.europa.eu


* Language of the case: French.