JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

29 September 2009

Joined Cases F-20/08, F-34/08 and F-75/08

Jorge Aparicio and Others and Anne Simon

v

Commission of the European Communities

(Civil service – Members of the contract staff – Recruitment – Selection procedure CAST 27/Relex – Non‑inclusion in the database – Cancellation of questions – Verbal and numerical reasoning test – Equal treatment)

Application: brought under Articles 236 EC and 152 EA, in which Mr Aparicio and 46 other members of the Commission’s contract staff seek: annulment of the decisions of the European Personnel Selection Office of 25 October 2007 not to include them on the list of successful candidates and in the database for the CAST 27/Relex recruitment procedure.

Held: The actions in Joined Cases F‑20/08, F‑34/08 and F‑75/08 are dismissed. Mr Aparicio and the applicants whose names appear in the Annex under numbers 1 to 18 are ordered to pay the costs in Case F‑20/08 and nineteen forty-sixths of the costs in Case F‑75/08. Ms Simon, the applicant in Case F-34/08 and one of the applicants in Case F-75/08, is ordered to pay the costs in Case F‑34/08 and one forty‑sixth of the costs in Case F‑75/08. The applicants whose names appear in the Annex under numbers 19 to 40 and 42 to 46 are ordered to pay twenty six forty‑sixths of the costs in Case F‑75/08.

Summary

1.      Actions for annulment – Jurisdiction of the Community judicature – Application for annulment of an individual measure having adverse effect – Community judicature not competent to declare a provision of general application unlawful in the operative part of its judgments

(Art. 230 EC)

2.      Officials – Contract staff – Recruitment – Organisation of the tests – Organisation and content of the tests

(Conditions of Employment of Other Servants, Art. 82(5) and (6))

3.      Officials – Contract staff – Recruitment – Tests – Content of the tests – Measures taken to correct errors or irregularities occurring in the course of the tests

4.      Officials – Contract staff – Recruitment – Tests – Content of the tests – Cancellation of questions

1.      Although, in an application for annulment of an individual measure having adverse affect, the Community judicature does in fact have jurisdiction to declare, incidentally, the illegality of a provision of general application upon which the contested measure is based, the Tribunal does not, however, have jurisdiction to make such declarations in the operative part of its judgments.

(see para. 28)

See:

F‑134/07 and F‑8/08 Adjemian and Others v Commission [2009] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, para. 38

2.      According to Article 82(5) and (6) of the Conditions of Employment of Other Servants, the European Personnel Selection Office (EPSO) is to provide assistance to the different institutions by defining and organising the selection procedures for members of the contract staff whilst complying with the general provisions adopted by the institutions. Moreover, it follows from Article 5(1)(c) and (2) of the General implementing provisions on the procedures governing the engagement and the use of contract staff at the Commission that EPSO is to comply with the specific competency profiles and qualifications required by the authority authorised to conclude contracts. It follows, none the less, from those provisions and from Article 3(2) of Decision 2002/620 establishing EPSO that EPSO has a wide discretion in the organisation of selection tests.

Thus, a memorandum and a letter from the Commission containing an ambiguity as regards the fact of the tests concerned being ‘not eliminatory’ do not allow a finding that EPSO exceeded the limits imposed on its terms of reference by the Commission by setting an eliminatory verbal and numerical reasoning test, given that those two documents can be understood, in an interpretation compatible with Article 5 of the General implementing provisions, as meaning that the tests concerned are not eliminatory in the way that a competition is, in that no limit on the number of successful candidates was fixed beforehand, without, however, announcing that those tests were not eliminatory.

(see paras 57-62)

3.      As recognised in the case‑law, a wide discretion must be afforded to the selection board, where it is confronted with irregularities or errors which have occurred in the course of an open competition involving a large number of candidates and which cannot, under the principles of proportionality and sound administration, be rectified by a repetition of the tests in the competition. Although EPSO is not a selection board and the test concerned did not take the form of a competition, that case‑law may be extended to it because EPSO is vested with a wide discretion in the organisation of selection tests.

(see paras 77-78)

See:

T-167/99 and T-174/99 Giulietti and Others v Commission [2001] ECR-SC I‑A‑93 and II‑441, para. 58

4.      The principle of equality requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified. Moreover, breach of the principle of equality presupposes that the treatment concerned entails disadvantages to some persons as opposed to others.

Where the call for expression of interest does not fix a limited number of successful candidates, the selection tests do not involve any direct comparison between the candidates, so that the question of equal treatment between them thus does not arise in the same way as in a competition.

However, it cannot be ruled out, even in that context, that the award of an additional point to all the candidates who were faced with problematic questions, as a means of cancelling those questions, may have favoured certain candidates by enabling them to reach more easily the pass thresholds fixed for success in the tests.

The fact that the cancelled questions worried or preoccupied the persons concerned more than others, to the point of affecting their ability to answer the entire test, does not infringe the principle of equality, because that situation results from their own response to the difficulty and emphasises the existence of differences between them and the other candidates.

(see paras 82-85)

See:

17/61 and 20/61 Klöckner-Werke and Hoesch v High Authority [1962] ECR 325, 345; C-227/04 P Lindorfer v Council [2007] ECR I‑6767, para. 63; C-71/07 P Campoli v Commission [2008] ECR I‑5887, para. 50; C-127/07 Arcelor Atlantique et Lorraine and Others [2008] I-9895, para. 39

T-189/99 Gerochristos v Commission [2001] ECR-SC I‑A‑11 and II‑53, para. 26; T-351/02 Deutsche Bahn v Commission [2006] ECR II‑1047, para. 137