JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (First Chamber)

23 November 2010

Case F-50/08

Gábor Bartha

v

European Commission

(Civil service — Officials — Open competition — Failure to include the applicant on the reserve list — Balanced representation of men and women on competition selection boards)

Application: brought under Articles 236 EC and 152 EA, in which Mr Bartha essentially seeks, first, annulment of the decision of the selection board in open competition EPSO/AD/56/06 informing him that he had failed the tests in that competition, and, second, an order that the Commission compensate him for the damage allegedly suffered as a result of that decision.

Held: The decision of 23 January 2008, by which the selection board of competition EPSO/AD/56/06 dismissed the applicant’s application for review of the decision of that selection board rejecting his candidature is annulled. The remainder of the application is dismissed. The Commission is ordered to bear all of 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(2))

2.      Officials — Actions — Prior administrative complaint — Correspondence between the complaint and the action

(Staff Regulations, Arts 90 and 91)

3.      Officials — Competitions — Selection board — Composition

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

4.      Officials — Non-contractual liability of the institutions — Conditions — Unlawfulness — Damage — Causal link

1.      Where a candidate in a competition who has not been included on the reserve list drawn up as a result of that 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-173/05 Heus v Commission [2006] ECR-SC I‑A‑2‑329 and II‑A‑2‑1695, para. 19

2.      The rule of correspondence between the administrative complaint and the originating application is not complied with only where the judicial action alters the relief sought in the complaint or its cause of action, and the concept of ‘cause of action’ must be given a broad interpretation. According to such an interpretation, as regards claims for annulment, the ‘cause of action of the dispute’ must be understood as the applicant’s challenge to the substantive legality of the contested decision or, in the alternative, the challenge to its procedural legality. Consequently, and subject to pleas alleging illegality, and to grounds raising a public-policy issue, the cause of action of the dispute would be altered, and the correspondence rule therefore breached, where the applicant, who criticised in his administrative complaint solely the formal validity of the act adversely affecting him, including in its procedural aspects, raised substantive pleas in the originating application, or in the opposite case where the applicant, after having disputed in the complaint only the substantive legality of the act adversely affecting him, submitted an application containing pleas relating to the formal validity of that act.

(see para. 34)

See:

judgment of 1 July 2010 in F‑45/07 Mandt v Parliament, paras 119 and 120

3.      A selection board consisting, when the list of members is published, of more than four full members cannot be regarded as satisfying the requirements of the fifth paragraph of Article 3 of Annex III to the Staff Regulations unless those full members include at least two members of each gender.

However, the requirement that only the full members of the selection board at the stage when the list of members is published must be taken into consideration may be qualified in a particular situation where, despite the fact that the composition of the selection board at that stage does not satisfy the rule laid down in the fifth paragraph of Article 3 of Annex III to the Staff Regulations, its composition when the tests actually take place is in accordance with that rule. In such a situation, the purpose of that provision, which is to ensure that the performance of candidates in a competition is assessed by a selection board in which there is guaranteed to be balanced representation between women and men, is ultimately entirely fulfilled.

(see paras 43-44)

4.      The administration can be held liable for damages only if a number of conditions are satisfied: the illegality of the allegedly wrongful act committed by the institutions, actual harm suffered, and the existence of a causal link between the act and the damage alleged to have been suffered. Those three conditions are cumulative. The absence of any one of them is sufficient for a claim for damages to be dismissed.

As regards the causal link, the applicant must, in principle, adduce proof of a direct causal nexus between the wrong committed by the institution concerned and the injury pleaded.

However, the degree of certainty of the causal link required by the case-law is attained where the wrongful act committed by a Community institution has definitely deprived a person, not necessarily of recruitment, to which the person concerned could never prove he had a right, but of a genuine chance of being recruited as an official or other member of staff, resulting in material damage for the person concerned in the form of loss of income.

(see paras 53-55)

See:

C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I‑1981, para. 42; C-348/06 P Commission v Girardot [2008] ECR I‑833, para. 52

T-140/97 Hautem v EIB [1999] ECR-SC I‑A‑171 and II‑897, para. 85; T-45/01 Sanders and Others v Commission [2004] ECR II‑3315, para. 150

F-46/07 Tzirani v Commission [2008] ECR-SC I‑A‑1‑323 and II‑A‑1‑1773, para. 218