JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

5 May 2010

Case F-48/09

Nikolaus Schopphoven

v

European Commission

(Civil service — Open competition EPSO/AD/117/08 — Fraud prevention — Non‑inclusion on the reserve list — Review — Conduct of the tests — Marking — Manifest error of assessment — Breach of the notice of competition — Equal treatment of candidates — Principles of transparency and sound administration)

Application: brought under Articles 236 EC and 152 EA, in which Mr Schopphoven seeks, first, annulment of the decision of the European Personnel Selection Office (EPSO) of 28 April 2009 not to include his name on the reserve list for open competition EPSO/AD/117/08, as evident from the EPSO notices of 4 March, 25 March and 27 April 2009, and, second, annulment of that reserve list.

Held: The action is dismissed. The applicant is ordered to pay the costs.

Summary

1.      Officials — Actions — Act adversely affecting an official — Decision adopted after reconsideration of a previous decision

(Staff Regulations, Arts 90(2) and 91(1))

2.      Officials — Competitions — Competition based on qualifications and tests — Content of the tests

(Staff Regulations, Annex III)

1.      Where a candidate who has not been included on the reserve list for a competition seeks review of a decision taken by a selection board, it is the decision taken by the latter after the review of the candidate’s situation that constitutes the act adversely affecting him.

(see para. 22)

See:

T-293/03 Giulietti v Commission [2006] ECR-SC I‑A‑2‑5 and II‑A‑2‑19, para. 27; T-173/05 Heus v Commission [2006] ECR-SC I‑A‑2‑329 and II‑A‑2‑1695, para. 19

2.      In assessing tests, selection boards for competitions enjoy a wide discretion, which must be exercised on the basis of objective criteria, but is not, however, exempt from review by the Court, the purpose of which is to ascertain whether a manifest error or misuse of powers occurred in the exercise of the discretion or whether the limits of the discretion have been manifestly exceeded.

The selection board in a competition also has a wide discretion with regard to the detailed content of the tests which form part of that competition, and it is not for the Court to criticise that content unless it is not confined within the limits laid down in the competition notice or is not consistent with the purposes of the test of the competition. That applies a fortiori to the oral test, where the selection board enjoys the widest discretion.

In the case of tests made up of multiple-choice questions, it is not for the Tribunal to substitute its own correction for that of the selection board in the competition. Criticism of a question is called for, possibly in the light of the answers it proposes, only if it appears that the question was manifestly inappropriate in view of the purpose of the competition in question. That would be the case in particular if it was clear from the selection board’s explanations that the various answers proposed for a question did not make it possible to determine the only correct answer, contrary to the special instructions to that effect given to the candidates.

(see paras 26, 37)

See:

64/86, 71/86 to 73/86 and 78/86 Sergio and Others v Commission [1988] ECR 1399, para. 22

T-153/95 Kaps v Court of Justice [1996] ECR-SC I‑A‑233 and II‑663, para. 37; T-200/97 Jiménez v OHIM [1999] ECR-SC I‑A‑19 and II‑73, para. 40 and the case-law cited therein; T-53/00 Angioli v Commission [2003] ECR-SC I‑A‑13 and II‑73, paras 91, 93 and 94; T‑285/02 and T‑395/02 Vega Rodríguez v Commission [2004] ECR-SC I‑A‑333 and II‑1527, para. 36