JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (First Chamber)

14 October 2008

Case F-74/07

Stefan Meierhofer

v

Commission of the European Communities

(Civil service – Open competition – Failure in oral test – Non‑inclusion on the reserve list – Obligation to state reasons – Observance of the secrecy of the selection board’s proceedings – Institution’s refusal to comply with a measure of organisation of procedure)

Application: brought under Articles 236 EC and 152 EA, in which Mr Meierhofer seeks in essence, firstly, annulment of the decision of 10 May 2007 of the selection board in competition EPSO/AD/26/05, organised by the European Communities Personnel Selection Office, informing him of his failure in the oral test of that competition, and of the decision of 19 June 2007 rejecting his request for a review of the decision of 10 May 2007, and, secondly, a re‑evaluation of that test and his inclusion on the reserve list.

Held: The decision of 19 June 2007 of the selection board in competition EPSO/AD/26/05 is annulled. The remainder of the action is dismissed. The Commission is to bear its own costs and to pay the applicant’s costs.

Summary

Officials – Competitions – Selection board – Rejection of application – Obligation to state reasons – Scope

(Staff Regulations, Art. 25, second para.; Annex III, Art. 6)

Even though the outcome of reconciling the obligation to state reasons and observance of the principle of the secrecy of the selection board’s proceedings, in particular as to whether the communication of a single eliminatory individual mark to the candidate eliminated in the oral phase satisfies that obligation, is more often than not in favour of the principle of the secrecy of the selection board’s proceedings, the position may be otherwise when special circumstances exist, such as the fact that the candidate only narrowly failed the test, or that there existed intermediate marks which served in calculating the eliminatory mark, or, lastly, that it does not appear that communication of more detailed information than the individual eliminatory mark, without revealing the individual assessments of the members of the selection board or the numbers of marks awarded by each of them, could either represent a significant extra burden of work for the institution, given the technological means now available, or prove delicate.

Such communication, on the other hand, constitutes more than merely the initial elements of a statement of reasons which is susceptible of being supplemented by further information provided during the proceedings.

Although the Tribunal is indeed precluded from substituting its assessment for that of the members of the selection board, it must be in a position to ascertain, having regard to the obligation to state reasons, that they marked the applicant's performance on the basis of the assessment criteria set out in the notice of competition and that no errors occurred in the calculation of the mark; similarly, it must be in a position to carry out a limited review of the relationship between the assessments made by the members of the selection board and the numbers of marks awarded by them. For that purpose, it needs to order whatever measures of organisation of procedure seem appropriate to it, in the light of the particular circumstances, making it clear where appropriate to the defendant institution that the replies would be passed on to the person concerned only to the extent that this would be compatible with the principle of the secrecy of the selection board’s proceedings. Where the defendant institution refuses to produce, even to the Tribunal alone, the items of information requested by way of measures of organisation of procedure, it infringes its obligation to state reasons and does not allow the Tribunal to exercise properly its power of judicial review.

(see paras 40, 42-44, 46, 49-54)

See:

40/86 Kolivas v Commission [1987] ECR 2643, para. 11

F-73/06 Van Neyghem v Commission [2007] ECR-SC I-A-0000, paras 72, 79 and 80, currently the subject of an appeal pending before the Court of First Instance, Case T‑105/08 P; F-127/07 Coto Moreno v Commission [2008] ECR-SC I‑A‑0000, paras 34 and 36