JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

23 April 2015

Case T‑352/13 P

BX

v

European Commission

(Appeal — Civil service — Recruitment — Notice of competition — Open competition — Constitution of a reserve pool of Administrators (AD 5) of Bulgarian and Romanian citizenship in the field of Law — Selection board’s decision not to include the appellant on the reserve list — Burden of proof — Comparative assessment — Equal treatment — Stability in the composition of the selection board — Fifth paragraph of Article 3 of Annex III to the Staff Regulations — Distortion of the facts and evidence — Action for damages — Decision as to costs)

Appeal:      against the judgment of the European Union Civil Service Tribunal (First Chamber) of 24 April 2013 in BX v Commission (F‑88/11, ECR-SC, EU:F:2013:51), seeking to have that judgment set aside.

Held:      The appeal is dismissed. Mr BX is to bear his own costs and is ordered to pay those incurred by the European Commission in the course of the present proceedings.

Summary

1.      Appeals — Grounds — Ground of appeal raised against a ground of the judgment not necessary in order for the operative part to be founded — Ground of appeal ineffective

2.      Officials — Competitions — Assessment of candidates’ abilities — Necessarily a comparative assessment

(Staff Regulations, Art. 27, and Annex III, Art. 5)

3.      Officials — Competitions — Selection board — Composition — Balanced representation of men and women

(Staff Regulations, Annex III, Art. 3, fifth para.)

4.      Actions for annulment — Pleas in law — Ineffective plea — Definition

1.      A ground of appeal directed against a general quotation of the Civil Service Tribunal and merely calling it into question, without seeking to demonstrate how it constituted an error of law that could affect the operative part of the judgment under appeal, must be rejected as ineffective.

(see para. 17)

See:

Judgment of 18 March 1993 in Parliament v Frederiksen, C‑35/92 P, ECR, EU:C:1993:104, para. 31

2.      Every competition has the aim of selecting the candidates who are best suited for the post to be filled, and it is therefore inevitable that competition selection boards review the respective merits of the candidates and conduct the tests in such a way that only the most deserving are selected.

The concept of comparative assessment must be interpreted in the light of Article 27 of the Staff Regulations, which requires the selection board to compare the performance of candidates in order to select those with the highest standard of ability, efficiency and integrity.

Where a candidate has not met the minimum requirements in respect of the oral test, the comparison of the assessment of his oral test with that of the other candidates, with a view to classification in the reserve list of the competition, is no longer necessary.

(see paras 26, 29, 34)

See:

Order of 9 September 2003 in Vranckx v Commission, T‑293/02, ECR-SC, EU:T:2003:224, paras 52 and 53 and the case-law cited therein

3.      The fifth paragraph of Article 3 of Annex III to the Staff Regulations, which provides that a selection board of more than four members should comprise at least two members of each gender, must be understood as referring only to selection boards composed of more than four full members.

Therefore, when a selection board formally consists of more than four full members, it should be ensured that not only the full members, but also alternate members, include at least two members of each gender, so that any full member of the under-represented gender is always replaced by an alternate member of the same gender, in order to ensure the effectiveness of the fifth paragraph of Article 3 of Annex III to the Staff Regulations.

(see paras 74, 79, 80)

4.      In an action for annulment, the Courts of the European Union may dismiss a plea or complaint as ineffective where they find that that plea or complaint is not capable, in the event that it is well founded, of leading to the annulment sought.

(see para. 85)

See:

Judgment of 19 November 2009 in Michail v Commission, T‑50/08 P, ECR-SC, EU:T:2009:457, para. 59 and the case-law cited therein