JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

3 December 2015

Case T‑506/12 P

Eva Cuallado Martorell

v

European Commission

(Appeal — Civil service — Officials — Recruitment — Open competition to draw up a reserve list of lawyer-linguists with Spanish as their main language — Decision of the selection board confirming failure to pass the last written test and non-admittance to the oral test — Article 90(2) of the Staff Regulations — Admissibility of the action at first instance — Duty to state reasons — Refusal to send the marked written tests to the appellant — Access to documents)

Appeal:      against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 18 September 2012 in Cuallado Martorell v Commission (F‑96/09, ECR-SC, EU:F:2012:129) and seeking to have that judgment set aside.

Held:      The judgment of the European Union Civil Service Tribunal (Second Chamber) of 18 September 2012 in Cuallado Martorell v Commission (F‑96/09, ECR-SC, EU:F:2012:129) is set aside inasmuch as it declares the action to be inadmissible in seeking the annulment of the decision refusing admission to the oral test and, consequently, the reserve list. The remainder of the appeal is dismissed. The case is referred back to the Civil Service Tribunal. The costs are reserved.

Summary

1.      Officials — Competitions — Selection board — Refusal to send marked written tests — Obligation to state reasons — Scope — Observance of the secrecy of proceedings

(Staff Regulations, Art. 25 and Annex III, Art. 6)

2.      Actions brought by officials — Decision of a competition selection board — Prior administrative complaint — Optional — Submission — Consequences — Compliance with the procedural requirements applicable to prior complaints

(Staff Regulations, Arts 90 and 91)

3.      Actions brought by officials — Prior administrative complaint — Definition

(Staff Regulations, Art. 90(2))

1.      The statement of reasons for a decision adversely affecting a person is intended, first, to provide the person concerned with details sufficient to allow him to ascertain whether the decision is well founded and whether it is appropriate to bring proceedings before the Courts of the Union and, secondly, to enable the Courts to review the legality of the decision.

As regards decisions taken by a selection board in a competition, the obligation to state reasons must be reconciled with observance of the secrecy surrounding the proceedings of the selection board, and therefore communication of the marks obtained in the various tests constitutes an adequate statement of the reasons on which the selection board’s decisions are based. An express decision refusing to send the marked written tests contains a sufficient statement of reasons in so far as it refers to Article 6 of Annex III to the Staff Regulations, which provides that the proceedings of the selection board are to be secret.

(see paras 37-39, 67)

See:

Judgment of 4 July 1996 in Parliament v Innamorati, C‑254/95 P, ECR, EU:C:1996:276, para. 31

Judgments of 25 June 2003 in Pyres v Commission, T‑72/01, ECR-SC, EU:T:2003:176, para. 66 and the case-law cited therein; 5 April 2005 in Hendrickx v Council, T‑376/03, ECR-SC, EU:T:2005:116, paras 73 and 74 and the case-law cited therein; 12 February 2014 in De Mendoza Asensi v Commission, F‑127/11, ECR-SC, EU:F:2014:14, para. 94, and 11 December 2014 in van der Aat and Others v Commission, T‑304/13 P, ECR-SC, EU:T:2014:1055, para. 43 and the case-law cited therein

2.      The legal remedy available regarding decisions of a selection board normally consists of a direct application to the Union Court. The whole point of allowing a person to rely on that direct legal remedy without a prior administrative complaint is to implement his right to effective judicial protection. It is a possibility, not an obligation.

However, if the person concerned by a decision of a selection board, instead of making an application directly to the Union Court, invokes the Staff Regulations and submits an administrative complaint to the appointing authority, the admissibility of the action brought subsequently will depend on his compliance with all the procedural requirements applicable to the prior complaint.

(see paras 54, 55, 62)

See:

Judgment of 23 January 2002 in Gonçalves v Parliament, T‑386/00, ECR-SC, EU:T:2002:12, paras 34 and 35 and the case-law cited therein

3.      A letter whereby an official clearly seeks to achieve an amicable settlement of his complaint or a letter which clearly manifests the applicant’s intention to challenge the decision which adversely affects him constitutes a complaint within the meaning of Article 90(2) of the Staff Regulations, even if he does not expressly request the withdrawal of the decision in question.

Thus, the aim of the pre-litigation procedure being to find an amicable settlement for a dispute arising at the time of the complaint, the appointing authority must be in a position to have a sufficiently detailed knowledge of the arguments which the official is relying on against an administrative decision. It follows that the complaint must contain a statement of the pleas and arguments relied on against the administrative decision against which the complaint is brought.

Furthermore, a complaint need not take any particular form. It is sufficient that it should clearly and precisely manifest the applicant’s intention to challenge a decision taken concerning him.

The administration must examine complaints with an open mind, and it is sufficient, in order for it to consider that it is dealing with a complaint within the meaning of Article 90(2) of the Staff Regulations, that a plea was raised earlier in the administrative procedure clearly enough to enable the appointing authority to know the criticisms made by the person concerned of the contested decision. Thus, even if pleas or arguments were not included in the complaint itself, provided that the appointing authority was made precisely aware of them through a document forwarded to it separately, the complaint may not be regarded as inadmissible.

(see paras 63-66)

See:

Judgments of 31 May 1988 in Rousseau v Court of Auditors, 167/86, ECR, EU:C:1988:266, para. 8, and 14 July 1988 in Aldinger and Virgili v Parliament, 23/87 and 24/87, ECR, EU:C:1988:406, para. 13

Judgments of 7 March 1996 in Williams v Court of Auditors, T‑146/94, ECR-SC, EU:T:1996:34, paras 44 and 50 and the case-law cited therein; 13 January 1998 in Volger v Parliament, T‑176/96, ECR-SC, EU:T:1998:1, para. 65, and 16 February 2005 in Reggimenti v Parliament, T‑354/03, ECR-SC, EU:T:2005:54, paras 43 and 44 and the case-law cited therein