JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(First Chamber)
22 September 2015
Case F‑82/14
Roberto Gioria
v
European Commission
(Civil service — Open competitions — Competition EPSO/AST/126/12 — Family relationship between a member of the selection board and a candidate — Conflict of interests — Article 27 of the Staff Regulations — Recruitment of officials of the highest standard of integrity — Decision to exclude the candidate from the competition)
Application: under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Gioria seeks, first, annulment of the decision of 15 May 2014 by which the selection board in open competition EPSO/AST/126/12 (‘the selection board’) confirmed his exclusion from that competition, and, second, compensation for the non-material harm he considers he has suffered.
Held: The action is dismissed. Mr Gioria is to bear half of his own costs. The European Commission is to bear its own costs and is ordered to pay half of the costs incurred by Mr Gioria.
Summary
1. Officials — Recruitment — Competitions — Candidate — Failure to provide information about the family relationship with a member of the selection board — Breach of the requirement of integrity — Exclusion of the candidate — Breach of the obligation for a selection board member to abstain where there is a family relationship with a candidate — No effect
(Staff Regulations, Arts 11a and 27)
2. Officials — Competitions — Selection board — Observance of principles of equal treatment and objectivity — Irregularities capable of undermining the objective of Article 27 of the Staff Regulations — Consequences
(Staff Regulations, Art. 27)
3. Actions brought by officials — Action for damages — Autonomy in relation to the action for annulment — Admissible despite the lack of a pre-litigation procedure in accordance with the Staff Regulations — Condition — Application for damages linked to an application for annulment
(Staff Regulations, Arts 90 and 91)
1. The mere fact that, in breach of his obligations under Article 11a of the Staff Regulations, a member of a selection board having a family relationship with a candidate failed to inform the other members of the selection board responsible for a competition in which the related candidate is taking part does not exempt the latter, as a candidate for a post for which recruitment requires demonstration of the highest standard of integrity, in accordance with Article 27 of the Staff Regulations, from responsibility with regard to not having seen fit himself to inform the European Personnel Selection Office and/or the selection board of his family relationship with a member of that board, such a step being the least that might be expected of a candidate hoping to be recruited as an official of the European Union, particularly in a context where the Office has reminded candidates on numerous occasions that it was prohibited to have contact with any member of the selection board.
Consequently, in the context of its wide discretion, a selection board authorised to draw up a list of suitable candidates in accordance with Article 30 of the Staff Regulations is entitled to consider that a candidate, because of his family relationship with a member of the selection board, even if that member is on the selection board in connection with a different subject field, is, unbeknown to the selection board, in a privileged position compared with the other candidates in the open competition, and that that position risks undermining the essential condition for any competition, which is that all candidates must be guaranteed equal treatment.
(see paras 36, 53)
2. The principle of equal treatment is a fundamental principle of EU law which applies, in particular, in the field of competitions and which the selection board must ensure is strictly observed in a competition. Thus, the selection board in a competition must ensure that its assessments of all the candidates examined are made under conditions of equality and objectivity and it is important that the marking criteria should be uniform and applied in a consistent manner to all candidates.
Any event or situation capable of disrupting observance of the fundamental guarantees of equal treatment of candidates and objectivity in the choice made between them risks undermining the objective laid down by Article 27 of the Staff Regulations for every recruitment procedure, which is ‘to secur[e] for the institution the services of officials of the highest standard of ability, efficiency and integrity’.
In that regard, a competition selection board has a wide discretion where it is confronted with irregularities capable of undermining that objective.
Consequently, where the existence of a family relationship is discovered at a point when the selection tests have already taken place, a selection board has no alternative but to exclude the candidate concerned from an open competition in order to ensure that the competition may continue to be conducted in strict observance of the conditions of equality required to meet the objective of Article 27 of the Staff Regulations.
(see paras 50-52, 54)
See:
Judgments of 17 January 2001 in Gerochristos v Commission, T‑189/99, EU:T:2001:12, para. 25; 20 January 2004 in Briganti v Commission, T‑195/02, EU:T:2004:10, para. 31; 5 April 2005 in Christensen v Commission, T‑336/02, EU:T:2005:115, para. 43, and 13 September 2005 in Pantoulis v Commission, T‑290/03, EU:T:2005:316, para. 90
Judgments of 29 September 2009 in Aparicio and Others v Commission, F‑20/08, F‑34/08 and F‑75/08, EU:F:2009:132, para. 77, and 12 February 2014 in De Mendoza Asensi v Commission, F‑127/11, EU:F:2014:14, para. 43
3. Although an action for damages is admissible even without a claim to that effect having previously been addressed to the administration, where there is a direct link between the action for damages and an action for annulment, the same is not true where the alleged harm is the result of faults or omissions committed by the administration. In the latter case, where the alleged harm results not from the measure whose annulment is sought but from faults and omissions allegedly committed, it is mandatory for the pre-litigation procedure to begin with a request calling on the administration to make good that harm.
Thus, claims for damages submitted on the basis of compensation for harm which a candidate allegedly suffered as a result of being unfairly excluded from a competition on grounds not provided for in any legislation, or in other words as a result of the unlawful conduct of a selection board, and which did not directly arise from the contested decision, are admissible where no request has been made under Article 90(1) of the Staff Regulations prior to the action for compensation for that harm.
However, if non-material harm has arisen from the adoption of the contested decision, which was taken in order to ensure that a competition is conducted in strict observance of the conditions of equality required to meet the objective of Article 27 of the Staff Regulations, and if the claim for annulment has been dismissed without any finding of illegality, the claims for damages must consequently also be dismissed.
(see paras 74, 76, 77)
See:
Judgment of 27 June 1989 in Giordani v Commission, 200/87, EU:C:1989:259, para. 22
Judgment of 11 May 2005 in de Stefano v Commission, T‑25/03, EU:T:2005:168, para. 78
Judgment of 24 April 2013 in Demeneix v Commission, F‑96/12, EU:F:2013:52, para. 87