JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

5 November 2014

Case T‑669/13 P

European Commission

v

Florence Thomé

(Appeal — Civil service — Officials — Recruitment — Notice of competition — Refusal to recruit — Existence of a degree that complies with the condition laid down in the notice of competition on account of a homologation — Financial and non-material damage)

Appeal:      against the judgment of the European Union Civil Service Tribunal (First Chamber) of 7 October 2013 in Thomé v Commission (F‑97/12, ECR-SC, EU:F:2013:142), seeking to have that judgment set aside.

Held:      The appeal is dismissed. The Commission is ordered to pay the costs.

Summary

1.      Officials — Recruitment — Competitions — Competition based on qualifications and tests — University diploma or degree required — Meaning of ‘diploma or degree’ — Determination on the basis of the legislation of the Member State in which the studies took place — Discretion of the selection board and the appointing authority — Judicial review — Scope

(Staff Regulations, Annex III, Art. 5)

2.      EU law — Principles — Rights of the defence — Audi alteram partem rule — Scope — Right of the Union institutions to rely on that rule as parties to proceedings

3.      Appeal — Pleas in law — Review by the General Court of the assessment of rules of national law which determine the legality of the contested measure — Possible only where the rules of national law have been distorted

(Art. 257 TFEU; Statute of the Court of Justice, Annex I, Art. 11(1))

1.      In the absence of any provision to the contrary contained either in a regulation or a directive applicable to recruitment competitions or in the notice of competition, the requirement of possession of a university diploma on which admission to an open competition depends is necessarily to be construed in the light of the definition of such a diploma given in the legislation of the Member State in which the candidate completed the studies on which he relies.

In that regard, a selection board’s refusal to admit a candidate to the tests on the ground that a diploma submitted by the candidate is not of the level required by the competition notice is not covered by the discretion conferred on the selection board and must therefore be open to full judicial review.

The same degree of review must be applied when it is the appointing authority’s assessment of the existence of a diploma or its compliance with the requirements of the competition notice that is before the Court. The considerations which lead the Union judicature to conduct a full judicial review of such assessments when made by a selection board (observance of equality of treatment between candidates and the legal nature of the examination of whether the diploma meets the requirements of the competition notice) may be transferred to review of the appointing authority when it decides to substitute its own assessments for those of the selection board.

(see paras 26, 27, 42)

See:

judgments of 11 February 1992 in Panagiotopoulou v Parliament, T‑16/90, ECR, EU:T:1992:11, para. 39; and of 3 March 1994 in Cortes Jimenez and Others v Commission, T‑82/92, ECR-SC, EU:T:1994:24, paras 33 and 34

2.      The audi alteram partem applies to all proceedings that may lead to a decision of a Union institution or body which has an appreciable effect on the interests of a person. As a general rule, it means that the parties in a case must be given an opportunity to state their views on the facts and documents on which a judicial decision will be based, and to discuss the evidence and observations submitted to the court and the pleas in law which the court has raised of its own motion and on which it intends to base its decision. In order to satisfy the requirements associated with the right to a fair hearing, it is important for the parties to be able to debate and be heard on the matters of fact and of law which will determine the outcome of the proceedings.

The Union Courts ensure that the audi alteram partem rule is respected in proceedings before them and that they themselves respect that rule. The rule must benefit all parties to proceedings before the Union judicature, irrespective of their legal status. The Union institutions and bodies may also, therefore, avail themselves of that principle when they are parties to such proceedings.

(see paras 31, 32)

See:

judgment of 17 December 2009 in Réexamen M v EMEA, C‑197/09 RX-II, ECR, EU:C:2009:804, paras 41 and 42

3.      As regards the review which the General Court must conduct of the assessments of the court at first instance which do not relate to Union law, but to the interpretation and application of the national law of a Member State determining the legality of the decisions contested before the first instance court, it is only in situations where those assessments appear to be based on a distortion of the relevant rules of national law, or to correspond to a manifest error in the interpretation or application of those rules, that they must be declared unlawful.

Moreover, such distortion must be obvious — without any need for a new assessment of the facts and the evidence — from the documents on the Court’s file.

(see paras 46, 47)

See:

judgment of 5 July 2011 in Edwin v OHIM, C‑263/09 P, ECR, EU:C:2011:452, paras 44 to 53

judgment of 18 June 2013 in Heath v ECB, T‑645/11 P, ECR-SC, EU:T:2013:326, para. 101 and the case-law cited therein