JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

15 June 2010

Case F-35/08

Dimitrios Pachtitis

v

European Commission

(Open competition EPSO/AD/77/06 — Non‑admission to the written test following the result obtained in the admission tests — Powers of EPSO)

Application: brought under Articles 236 EC and 152 EA, in which Mr Pachtitis seeks annulment of, first, the decision of the European Personnel Selection Office (EPSO) of 31 May 2007, informing him that he had failed the admission tests in Open Competition EPSO/AD/77/06, second, the EPSO decision of 6 December 2007, rejecting his complaint against the decision of 31 May 2007, and third, any related measures.

Held: The EPSO decisions of 31 May and 6 December 2007 excluding the applicant from the list of the 110 candidates who had obtained the best marks in the admission tests for Open Competition EPSO/AD/77/06 are annulled. The Commission is ordered to bear its own costs and to pay those incurred by the applicant. The European Data Protection Supervisor, intervener for the applicant, is to bear his own costs.

Summary

1.      Officials — Actions — Act adversely affecting an official — Express decision rejecting a complaint — Decision taken after reconsideration of an earlier decision — Admissibility

(Staff Regulations, Arts 90 and 91)

2.      European Personnel Selection Office (EPSO) — Powers — Determination of the content and correction of admission tests for a competition — Not included

(Staff Regulations, Annex III, Art. 7; Decision 2002/620 of the European Parliament, the Council, the Commission, the Court of Justice, the Court of Auditors, the Economic and Social Committee, the Committee of the Regions and the European Ombudsman, Art. 2)

3.      Officials — Competitions — Concept — Preliminary stage involving admission tests with multiple-choice questions — Included

(Staff Regulations, Annex III)

1.      A decision purely and simply rejecting a complaint, whether it be express or implied, only confirms the act or failure to act to which the complainant takes exception and is not, by itself, a decision which may be challenged. That applies to an act which contains no new factors as compared with a previous measure adversely affecting a person and which has not therefore replaced it. However, an express decision rejecting a complaint may, in view of its content, not be confirmatory of the measure challenged.

That is the case where the decision rejecting the complaint contains a re-examination of the applicant’s situation in the light of new elements of law or of fact or when it amends or is supplementary to the original decision. In such circumstances, the rejection of that complaint is a measure subject to review by the Courts of the European Union, which take it into consideration for the purposes of the review of the legality of the contested measure, or even treat it as an act adversely affecting an applicant replacing that earlier decision.

(see paras 37-39)

See:

33/79 and 75/79 Kuhner v Commission [1980] ECR 1677, para. 9; 23/80 Grasselli v Commission [1980] ECR 3709, para. 18; 371/87 Progoulis v Commission [1988] ECR 3081, para. 17

T-608/97 Plug v Commission [2000] ECR-SC I‑A‑125 and II‑569, para. 23; T‑338/00 and T‑376/00 Morello v Commission [2002] ECR-SC I‑A‑301 and II‑1457, paras 34 and 35; T-14/03 Di Marzio v Commission [2004] ECR-SC I‑A‑43 and II‑167, para. 54; T-258/01 Eveillard v Commission [2004] ECR-SC I‑A‑167 and II‑747, para. 31; T-389/02 Sandini v Court of Justice [2004] ECR-SC I‑A‑295 and II‑1339, para. 49; T-375/02 Cavallaro v Commission [2005] ECR-SC I‑A‑151 and II‑673, paras 63 to 66

F-18/08 Ritto v Commission [2008] ECR-SC I‑A‑1‑281 and II‑A‑1‑1495, para. 17

2.      It is apparent, inter alia, from Annex III to the Staff Regulations that the rules on the competition procedure are based on the principle of the sharing of powers between the appointing authority and the competition selection board. That diarchy created by the Staff Regulations, while being a demonstration of the self-limitation of administrative power, reveals the intention of the legislature, in order to ensure the protection of the transparency of the selection procedure for staff of the European Union, not to reserve that sensitive task exclusively to the administration, but also to involve, through the selection board, persons outside the administrative hierarchy and, in particular, staff representatives.

That allocation of powers was not affected by the establishment of the European Personnel Selection Office (EPSO), it being expressly provided in Article 2 of Decision 2002/620 establishing EPSO that the latter is to exercise the powers of selection conferred on the appointing authority with regard to competitions. Furthermore, it follows from Article 7 of Annex III to the Staff Regulations that, as regards the conduct of competitions for the recruitment of officials, the tasks of EPSO are essentially organisational. In that respect, both the choice and the assessment of the subjects of the questions set during a competition fall outside the remit of EPSO.

In conclusion, although the tasks assigned to EPSO are such as to make that body an important actor in the determination and implementation of EU policy in the field of staff selection, its role as regards the conduct of recruitment competitions for officials, on the other hand, while significant to the extent that EPSO assists the selection board, remains necessarily subsidiary to the latter, which EPSO, moreover, may not replace.

A decision by which EPSO eliminated a candidate from a competition on the ground that the marks he had obtained in the admission tests were insufficient must therefore be annulled. Even if it is true that the correction of those tests, made up of multiple-choice questions, was carried out by computer and that, therefore, it is based on an automated procedure with no subjective discretion, the fact remains that the conduct of that automated procedure involved a decision on the merits, as regards the determination of the level of difficulty of the questions set during the admission tests and the cancellation of certain questions. Consequently, without an amendment to the Staff Regulations authorising EPSO to carry out tasks affecting the determination of the content of the tests and their correction, those are manifestly tasks which are normally the responsibility of a competition selection board.

(see paras 50, 56-58, 63, 65, 70)

3.      In a competition procedure, a preliminary stage leading to the elimination of more than 90% of the candidates taking part in the competition, not for formal reasons but for failing to perform sufficiently well in the admission tests, is an intrinsic part of a competition. The fact that the admission tests are competitive in nature is particularly clear since it is not enough to obtain the average in the tests in question, but, in order to be admitted to the second stage of the competition, it is necessary to be among the candidates who obtain the highest marks in the tests. This comparative nature of the tests in the preliminary stage is something inherent in the very concept of a competition.

(see paras 61-62)

See:

C-254/95 P Parliament v Innamorati [1996] ECR I‑3423, para. 28

T-167/99 and T-174/99 Giuliettiand Others v Commission [2001] ECR-SC I‑A‑93 and II‑441, para. 81