ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(Third Chamber)
7 April 2016
Case F‑44/15
Sergio Spadafora
v
European Commission
(Civil service — Officials — Post of head of unit — Vacancy notice — Selection procedure — Pre-selection panel — Interview with the pre-selection panel — Non-inclusion on the short-list of candidates proposed for a final interview with the appointing authority — Regularity of the selection procedure — Priority recruitment of a candidate having the nationality of a particular Member State — Conduct of the chairman of the pre-selection panel — Language discrimination — Claim for compensation — Article 81 of the Rules of Procedure)
Application: under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Sergio Spadafora essentially seeks, first, annulment of the decision of 30 June 2014 by which the Director General of the European Anti-Fraud Office (OLAF) decided to appoint Ms D. to the post of Head of the Legal Advice Unit of the Investigation Support Directorate, and, secondly, an order that OLAF pay compensation for the material harm resulting, in his view, from the loss of opportunity to be selected to occupy that post.
Held: The action is dismissed as in part manifestly inadmissible and in part manifestly unfounded. Mr Sergio Spadafora is to bear his own costs and is ordered to pay the costs incurred by the European Commission.
Summary
1. Officials — Vacancy — Consideration of the comparative merits of candidates — Post of head of unit — Candidate having occasionally replaced the head of unit or having held the post temporarily — Not decisive
(Staff Regulations, Art. 27, first para.)
2. Officials — Vacancy — Consideration of the comparative merits of candidates — Administration’s discretion — Observance of the conditions laid down in the vacancy notice — Scope
(Staff Regulations, Art. 29)
3. Officials — Vacancy — Consideration of the comparative merits of candidates — Post of head of unit — Discretion of the pre-selection panel — Scope
(Staff Regulations, Art. 29)
4. Officials — Recruitment — Criteria — Geographical balance — Nationality as a factor in selection — Lawfulness — Condition — Equivalence of different candidates’ profiles
(Staff Regulations, Art. 27, first para.)
5. Officials — Vacancy — Post of head of unit — Procedure before the pre-selection panel — Observance of principle of impartiality — Scope
(Staff Regulations, Art. 27)
6. Officials — Recruitment — Procedure — Obligation for the administration to communicate with a candidate in a language of which he has thorough knowledge — Scope
(Staff Regulations, Art. 27)
1. When comparing the merits of candidates in order to fill a post of head of unit, the fact that a candidate has occasionally replaced the head of unit and the fact that he has held the post concerned temporarily do not constitute decisive criteria capable of outweighing the high standard of ability, efficiency and integrity required by the first paragraph of Article 27 of the Staff Regulations as decisive for selecting the candidate to be appointed to a post which is the subject of a vacancy notice.
(see para. 52)
See:
Judgment of 13 December 2001 in Cubero Vermurie v Commission, C‑446/00 P, EU:C:2001:703, para. 21
Judgment of 6 July 1999 in Séché v Commission, T‑112/96 and T‑115/96, EU:T:1999:134, para. 62
2. In exercising the discretion available to it regarding an appointment or engagement, 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 constitutes a legal framework which the administration imposes on itself and to which it must adhere strictly.
(see para. 59)
See:
Order of 9 July 2015 in De Almeida Pereira v Eurojust, F‑142/14, EU:F:2015:83, para. 29 and the case-law cited therein
3. In a procedure to fill a post of head of unit at the European Anti-Fraud Office (OLAF), provided that the assessment of a candidate’s application and performance at the interview has been conducted jointly by the pre-selection panel, it may not be considered that, in the light of its composition, and particularly the presence of a staff member of the Commission, the chairman of the panel was able to exercise such a dominant influence as to have decided on his own not to include a candidate’s name on the short-list.
(see para. 63)
4. It is not incompatible with the requirements relating to the principle of non-discrimination on grounds of nationality for the administration, in cases where the profiles of different candidates are approximately equal, to allow nationality to play a decisive role when it is necessary to maintain or to re-establish a geographical balance among its staff, as required by Article 27(1) of the Staff Regulations.
(see para. 70)
See:
Judgment of 4 March 1964 in Lassalle v Parliament, 15/63, EU:C:1964:9, p. 73
5. It is true that the duty of impartiality is one of the rules governing the proceedings of competition selection boards and, by analogy, the proceedings of pre-selection panels.
However, as regards the conduct of the chairman of the panel in a procedure for the recruitment of a head of unit, the fact that he gives a polite, kindly or even sarcastic smile during a candidate’s interview with the pre-selection panel does not in any way permit the inference that he is biased, even if the candidate in retrospect has that impression. In any event, in the light of the level of the post concerned, involving the management of staff and therefore of any difficult relationships or behaviour among those staff, a candidate may be expected to remain assured, focused and calm, even where he may subjectively perceive the conduct of one of the members of the pre-selection panel as offensive.
(see paras 82, 85)
See:
Order of 25 May 2011 in Meierhofer v Commission, F‑74/07 RENV, EU:F:2011:63, para. 62, and judgment of 13 November 2014 in Hristov v Commission and EMA, F‑2/12, EU:F:2014:245, para. 86, on appeal in two cases before the General Court of the European Union, Cases T‑26/15 P and T‑27/15 P
6. Generally speaking, the Union administration may communicate with one of its officials, including in a recruitment procedure, in an official EU language other than that official’s mother tongue, or the first foreign language he has chosen. The choice of language of communication thus does not constitute an infringement of the rights of that official if he has an understanding of the language used by the administration which enables him effectively and easily to acquaint himself with the content of the information provided or questions asked by his administration.
Furthermore, it is only where a language condition has the effect of reserving a post in the EU administration for a particular nationality, without such action being justified on grounds connected with the proper functioning of the service, that Article 27 of the Staff Regulations precludes the appointing authority requiring candidates for such a post to have a thorough knowledge of a particular official language.
(see paras 91, 92)
See:
Judgment of 4 March 1964 in Lassalle v Parliament, 15/63, EU:C:1964:9, p. 73
Judgments of 5 October 2005 in Rasmussen v Commission, T‑203/03, EU:T:2005:346, paras 62 to 64, and 20 November 2008 in Italy v Commission, T‑185/05, EU:T:2008:519, paras 129, 132 and 145