JUDGMENT OF THE CIVIL SERVICE TRIBUNAL
(First Chamber)

20 September 2011

Case F‑117/10

Barry Van Soest

v

European Commission

(Civil service – Recruitment – Competitions – Conditions for admission – Required qualification – Concept of a diploma attesting to a level of secondary education and giving access to post-secondary education – Decisions of a selection board for a competition – Nature of the review exercised by the appointing authority)

Application:      brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, whereby Mr Van Soest seeks, principally, annulment of the Commission’s decision not to recruit him in spite of his having been successful in competition EPSO/AST/41/07.

Held:      The action is dismissed. The Commission is ordered to bear its own costs and to pay those incurred by the applicant.

Summary

1.      Officials – Competitions – Selection board – Independence – Limits – Adoption of unlawful decisions – Obligations of the appointing authority

2.      Procedure – Costs – Burden – Taking into account of the requirements of fairness

(Rules of Procedure of the Civil Service Tribunal, Art. 88)

1.      The appointing authority is required, in the exercise of its own powers, to take decisions which are free of illegalities. It cannot therefore be bound by decisions of a selection board the illegality of which is likely to vitiate, in consequence, the appointing authority’s own decisions. Consequently, where a selection board wrongly allows a candidate to sit a competition and subsequently places him on the reserve list, the appointing authority must refuse to appoint that candidate, by a reasoned decision, which enables the EU Courts to review the merits of that decision.

Thus, where a competition selection board has wrongly included on the reserve list a candidate who did not have the qualification required by the competition notice, the appointing authority is required to terminate the procedure for the recruitment of that candidate.

(see paras 24, 25)

See:

23 October 1986, 142/85 Schwiering v Court of Auditors, paras 19 and 20

16 March 2005, T‑329/03 Ricci v Commission, para 35; 15 September 2005, T‑306/04 Luxem v Commission, para. 23

2.      Under Article 88 of the Rules of Procedure of the Civil Service Tribunal, a party, even if successful, may be ordered to pay some or all of the costs, if this appears justified by the conduct of that party, including before the proceedings were brought, especially if he has made the other party incur costs which are held to be unreasonable or vexatious.

However, the application of that article is not confined to that situation alone. Thus, where an applicant was initially included by a competition selection board on the reserve list for that competition before eventually being informed by the appointing authority, almost one year later, that he could not be recruited because he did not satisfy the conditions for admission relating to the qualifications prescribed in the competition notice, the fact that the selection board had considered that the applicant did satisfy those conditions explains why he may have doubted, in good faith, the legality of the decision at issue and therefore brought an action. In such circumstances, the institution, the successful party, must be ordered to pay the costs incurred by the applicant.

(see paras 29, 30)