JUDGMENT OF THE GENERAL COURT (Appeal Chamber)
14 December 2011 (*)
(Appeal – Civil service – Officials – Recruitment – Notice of competition – Open competition – Non-admission to participation in the written test following the result obtained in the admission tests – Division of powers between EPSO and the competition selection board)
In Case T‑361/10 P,
APPEAL against the judgment of the European Union Civil Service Tribunal (First Chamber) of 15 June 2010 in Case F‑35/08 Pachtitis v Commission [2010] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000 and for that judgment to be set aside,
European Commission, represented initially by J. Currall and I. Chatzigiannis, acting as Agents, and subsequently by J. Currall, and by E. Antypas and E. Bourtzalas, lawyers,
appellant,
the other parties to the proceedings being
Dimitrios Pachtitis, residing in Athens (Greece), represented by P. Giatagantzidis and K. Kyriazi, lawyers,
applicant at first instance,
supported by
European Data Protection Supervisor (EDPS),
intervener at first instance,
THE GENERAL COURT (Appeal Chamber),
composed of M. Jaeger, President, N.J. Forwood and A. Dittrich (Rapporteur), Judges,
Registrar: S. Spyropoulos, Administrator,
having regard to the written procedure and further to the hearing on 9 November 2011,
gives the following
Judgment
1 By its appeal lodged pursuant to Article 9 of Annex I to the Statute of the Court of Justice of the European Union, the European Commission seeks to have set aside the judgment of the European Union Civil Service Tribunal (First Chamber) of 15 June 2010 in Case F‑35/08 Pachtitis v Commission [2010] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000 (‘the judgment under appeal’) by which the Civil Service Tribunal annulled the decisions of the European Personnel Selection Office (EPSO) of 31 May and 6 December 2007 excluding Mr Dimitrios Pachtitis from the list of the 110 candidates who had obtained the best marks in the admission tests for open competition EPSO/AD/77/06.
The facts
2 The facts, in so far as relevant for the determination of the present appeal, are set out as follows in the judgment under appeal:
‘16 On 15 November 2006, EPSO published notice of open competition EPSO/AD/77/06 (OJ 2006 C 277 A, p. 3, “the competition at issue”) to constitute a reserve list of Greek-language linguistic administrators, in grade AD 5, in the field of translation. In compliance with the notice of competition, candidates had to choose from two options, described as Option 1 and Option 2, the one which corresponded to their knowledge of languages …
17 [T]he applicant, a Greek national, was a candidate in that open competition for Option 1.
18 The competition was in three stages. According to section B of the notice of competition, the first stage, or the preliminary stage, consisted of two admission tests, each of 30 multiple-choice questions, the first, to assess knowledge of the European Union, its institutions and policies (“Test (a)”) and the second to assess general ability, in particular verbal and numerical reasoning skills (“Test (b)”). According to section C of the notice of competition, the second stage consisted of written tests and the third stage of an oral test. Under section B of the notice of competition, and in the case of Option 1, only the 110 candidates who obtained the best marks in the admission tests and, in any event, at least the pass mark, that is to say, 5 out of 10 points in test (a) and 10 out of 20 points in test (b), were to be invited to submit a full application with a view to possible admission to the second stage of the competition; the number of candidates to be admitted to the second stage for Option 2 was fixed at 30.
19 Under section D of the notice of competition candidatures had to be submitted by electronic means. More specifically, each candidate was invited first to create an electronic account with his or her personal data in the EPSO computer system. After registration of his or her account, the candidate could make an electronic application to take part in the competition. If the application was made within the period prescribed, EPSO sent an electronic invitation to participate in the preliminary stage of the competition, and then directed the candidate to the internet site of an external contractor, to whom EPSO had entrusted the organisation and implementation of the preliminary stage of the competition. On the website of that contractor, the candidate had to electronically reserve an examination date and time in the period from 10 April to 4 May 2007, the period during which the admission tests were scheduled to take place in different examination centres.
20 Those tests, which, as provided in section B of the notice of competition, were carried out by computer, were therefore held in places and on dates which were different for each candidate. The questions, which were randomly selected from a database containing a batch of questions, provided to EPSO by an external contractor, were also different for each candidate. The selection board of the competition at issue was involved only after the admission tests and therefore only at the stage of the written and oral tests. According to section E, point 2, of the notice of competition, the names of the members of the selection board were to be published on the EPSO internet site 15 days before the written tests.
21 After the applicant had taken the admission tests, EPSO informed him, on 31 May 2007, by electronic means, of the marks he had obtained in tests (a) and (b), and informed him that those marks “although better or equal to the minimum required [were] insufficient to allow him to be included among the candidates who obtained the 110 best marks in the admission tests as provided in section B of the notice of competition” …
…
…
24 The applicant contested “the validity and content” of the EPSO decision of 31 May 2007 by submitting a complaint under Article 90(2) of the Staff Regulations, in which he alleged, first, infringement of the principles of equal treatment, objectivity and transparency as well as the obligation to give reasons for the decision of 31 May 2007 and, second, errors of assessment that the “selection board of the admission tests (namely, the computer)” had obviously made having regard to his professional experience when correcting his admission tests, and requested that EPSO revise the content of that decision following re-examination of his admission tests and inform him which, if any, of the questions in the admission tests had been “cancelled” by the selection board.
…
26 By decision of 6 December 2007, in which EPSO stated that it had re-examined, first, the applicant’s file on the automatic processing of his admission tests and, second, the consequences of the cancellation of certain questions on his results, EPSO rejected the complaint and confirmed its decision of 31 May 2007. As regards, more particularly, the cancellation of questions, EPSO stated that seven questions had indeed been cancelled by an “advisory committee” which was responsible for the quality control of questions inserted in the database, but that the applicant’s admission tests did not include any of the cancelled questions.’
Procedure at first instance and the judgment under appeal
3 By application lodged at the Registry of the Civil Service Tribunal on 14 March 2008, Mr Pachtitis brought an action which was registered as Case F‑35/08.
4 Mr Pachtitis claimed at first instance that the Civil Service Tribunal should annul EPSO’s decisions of 31 May and 6 December 2007 and all related measures, and order the Commission to pay the costs (paragraph 27 of the judgment under appeal).
5 The Commission contended at first instance that the Civil Service Tribunal should dismiss the application as manifestly unfounded and order Mr Pachtitis to pay the costs (paragraph 28 of the judgment under appeal).
6 As is apparent from paragraphs 29 and 30 of the judgment under appeal, the European Data Protection Supervisor (EDPS), who, by order of the President of the First Chamber of the Civil Service Tribunal of 20 November 2008, was granted leave to intervene in support of the form of order sought by Mr Pachtitis, was an intervener at first instance.
7 By the judgment under appeal (paragraphs 43 to 72), the Civil Service Tribunal granted the application for annulment since it considered the second plea in law raised by Mr Pachtitis, alleging that EPSO lacked authority to eliminate candidates during the preliminary stage of the competition at issue, to be well founded. The Civil Service Tribunal therefore concluded that EPSO’s decisions of 31 May and 6 December 2007 had to be annulled, and that it was not necessary to rule on the three other pleas in law raised by Mr Pachtitis.
Procedure before the General Court and forms of order sought
8 By document lodged at the Registry of the General Court on 25 August 2010 the Commission brought the present appeal and requested that it be given priority, pursuant to the first subparagraph of Article 55(2) of the Rules of Procedure of the General Court.
9 By letter lodged on 30 November 2010 the EDPS waived his right to take part in the present proceedings and to lodge a response.
10 On 29 December 2010 Mr Pachtitis lodged his response.
11 By letter lodged on 21 January 2011 the Commission made an application for submission of a brief reply.
12 By decision of 3 February 2011 the President of the Appeal Chamber allowed that application.
13 On 14 March 2011 the Commission lodged a reply.
14 On 5 May 2011 Mr Pachtitis lodged a rejoinder.
15 By letters lodged on 24 May and 14 June 2011, respectively, the Commission and Mr Pachtitis applied, pursuant to Article 146 of the Rules of Procedure, to be heard in the oral stage of the procedure.
16 After hearing the report of the Judge-Rapporteur, the General Court (Appeal Chamber) decided to allow the applications pursuant to Article 146 of the Rules of Procedure, and opened the oral procedure.
17 By decision of 13 October 2011 the President of the Appeal Chamber allowed the Commission’s application for the present appeal to be given priority, pursuant to the first subparagraph of Article 55(2) of the Rules of Procedure.
18 The parties presented oral argument and answered the questions put to them by the Court at the hearing on 9 November 2011.
19 The Commission claims that the Court should:
– set aside the judgment under appeal;
– refer the case back to the Civil Service Tribunal for consideration of the other pleas for annulment;
– order Mr Pachtitis to pay the costs of the appeal proceedings and of the proceedings at first instance.
20 Mr Pachtitis contends that the Court should:
– dismiss the appeal in its entirety;
– order the Commission to pay all the costs.
The appeal
21 In support of its appeal the Commission raises a single plea, alleging infringement of Articles 1, 5 and 7 of Annex III to the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’), of Decision 2002/620/EC of the European Parliament, the Council, the Commission, the Court of Justice, the Court of Auditors, the Economic and Social Committee, the Committee of the Regions and the European Ombudsman of 25 July 2002 establishing EPSO (OJ 2002 L 197, p. 53), of Decision 2002/621/EC of the Secretaries-General of the European Parliament, the Council and the Commission, the Registrar of the Court of Justice, the Secretaries-General of the Court of Auditors, the Economic and Social Committee and the Committee of the Regions, and the Representative of the European Ombudsman of 25 July 2002 on the organisation and operation of EPSO (OJ 2002 L 197, p. 56) and of the obligation to state the reasons on which a decision is based.
22 The Commission submits, in essence, that the Civil Service Tribunal erred in finding that EPSO had no authority to exclude Mr Pachtitis from the second stage of the open competition at issue, consisting of a written test. According to the Commission, in the first stage of that competition, consisting of two admission tests, EPSO was authorised to define the content of pre-selection tests for admission to the second stage of that competition. The second and third stages of the competition, the latter consisting of an oral test, constituted the competition proper. There was no provision that prevented EPSO from organising the first stage of that competition since, as from the second stage, that competition was subject to review by a selection board.
23 Before addressing the complaints referred to in paragraph 22 above, the Court must consider the alleged infringement of the obligation to state the grounds of the judgment under appeal.
The obligation to state the grounds of the judgment under appeal
24 In support of its assertion that the Civil Service Tribunal infringed its obligation to state the grounds of the judgment under appeal, the Commission maintains that the Civil Service Tribunal did not explain its view that a competition cannot be organised in ‘two stages’, the first consisting of pre-selection tests, the second consisting of the competition proper. In addition, the Civil Service Tribunal had not mentioned any provision preventing the first stage in a ‘two-stage’ competition from being organised by EPSO. Furthermore, the Civil Service Tribunal was wrong not to take account of Decisions 2002/620 and 2002/621.
25 It must be noted that the obligation to state reasons does not require the Civil Service Tribunal to provide an account that follows exhaustively and point by point all the reasoning articulated by the parties to the case. The reasoning may therefore be implicit on condition that it enables the persons concerned to know why the measures in question were taken and provides the competent court with sufficient material for it to exercise its power of review (see, to that effect and by analogy, Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraph 372, and Case C‑3/06 P Groupe Danone v Commission [2007] ECR I‑1331, paragraph 46).
26 As regards, first, the Commission’s assertion that the Civil Service Tribunal did not explain its view that a competition cannot be organised in ‘two stages’, it must be held that no such view was expressed by the Civil Service Tribunal. In fact, in paragraph 64 of the judgment under appeal, the Civil Service Tribunal expressly stated that the reasoning set out in the judgment under appeal did not call into question the discretion of the appointing authority to organise a competition consisting of two distinct stages, namely an initial pre-selection stage, based on multiple-choice questions, and a second stage of competition as such, which is subject to success in the first-stage tests and to which admission is reserved to a reduced number of candidates.
27 As regards, second, the Commission’s assertion that the Civil Service Tribunal had not mentioned any provision preventing the first stage in a ‘two-stage’ competition from being organised by EPSO, it must be noted that the Civil Service Tribunal did not find that EPSO was not entitled to organise that first stage. It did however conclude, in paragraphs 57 and 58 of the judgment under appeal, that both the choice and the assessment of the subjects of the questions set during a competition fall outside the remit of EPSO, and that EPSO’s role, while significant to the extent that EPSO assists the selection board, necessarily remains subsidiary to that of the selection board, which EPSO, moreover, may not replace. The Civil Service Tribunal explained to the requisite legal standard its reasoning in that regard by examining, in paragraphs 50 to 56 of the judgment under appeal, the sharing of powers between EPSO and the competition selection board in relation to the recruitment of officials. In that regard, it began by comparing the powers of the appointing authority and the selection board and considering in particular, in paragraphs 50 to 55 of the judgment under appeal, the first paragraph of Article 30 of the Staff Regulations, under which, for each competition, a selection board appointed by the appointing authority is to draw up a list of suitable candidates, and the procedure for competitions laid down in Annex III to the Staff Regulations. It went on to state, in paragraph 56 of the judgment under appeal, that the allocation of powers between the appointing authority and the selection board, as described in the preceding paragraphs, had not been affected by the establishment in 2002 of EPSO, it being expressly provided in Article 2 of the decision setting up EPSO that the latter is to exercise the powers of selection conferred on the appointing authority with regard to competitions. The Commission’s arguments must therefore be rejected.
28 As regards, third, the Commission’s assertion that the Civil Service Tribunal infringed the obligation to state reasons in so far as it was wrong not to take account of Decisions 2002/620 and 2002/621, suffice it to note that, in paragraph 56 of the judgment under appeal, the Civil Service Tribunal set out its reasoning to the effect that those decisions did not contradict its conclusion concerning the allocation of powers between EPSO and the selection board. According to the Civil Service Tribunal, those decisions are in any event of lower rank than the provisions of the Staff Regulations.
29 Consequently, the Commission’s arguments in relation to an alleged infringement of the obligation to state reasons must be rejected.
EPSO’s power to exclude Mr Pachtitis from the second stage of the competition at issue
30 The Commission submits, in essence, that the Civil Service Tribunal erred in finding, in paragraph 65 of the judgment under appeal, that EPSO lacked the power to exclude Mr Pachtitis from the second stage of the competition. In that regard, it states that the Civil Service Tribunal misinterpreted the provisions relating to the procedure for competitions covered in Annex III to the Staff Regulations. Thus, according to the Commission, the Civil Service Tribunal failed to take account of all the powers conferred on EPSO by that annex, in particular by Article 1(1)(e) and Article 7(1) and (2), as well as by Decisions 2002/620 and 2002/621.
31 With regard, in the first place, to the organisation of the competition at issue, contrary to what is alleged by the Commission, the Civil Service Tribunal did not find that EPSO had no authority to organise that ‘two-stage’ competition. In fact, it stated in paragraph 64 of the judgment under appeal, referring to Case T‑207/02 Falcone v Commission [2004] ECR‑SC I‑A‑305 and II‑1393, that the reasoning set out in the judgment under appeal did not call into question the discretion of the appointing authority to organise a competition consisting of two distinct stages, namely an initial pre-selection stage, based on multiple-choice questions, and a second stage of competition as such, which is subject to success in the first-stage tests and to which admission is reserved to a reduced number of candidates. According to the Civil Service Tribunal, the question that arose in the judgment under appeal is whether the first stage of a competition, such as that described in Falcone v Commission or in the judgment under appeal, can be organised and carried out solely by EPSO, without any involvement of the selection board.
32 With regard, in the second place, to the nature of the first stage of the competition at issue, the Commission states that that stage consists of pre-selection tests for admission to the ‘second stage’, the latter constituting the competition proper.
33 As regards the content of the first stage of the competition, it will be recalled that, according to paragraph 18 of the judgment under appeal, that stage consisted of two admission tests, each of 30 multiple-choice questions, the first, to assess knowledge of the European Union, its institutions and policies, and the second to assess general ability, in particular verbal and numerical reasoning skills.
34 In paragraph 61 of the judgment under appeal, the Civil Service Tribunal found that, of the 1 772 candidates who had reserved a date for the admission tests in respect of the competition at issue, only 140 could be invited to submit a full application with a view to their possible admission to the second stage of the competition. In paragraph 62 of the judgment under appeal, the Civil Service Tribunal referred – without being specifically challenged in that respect by the Commission – to the comparative nature of the first-stage tests, which is inherent in the very concept of a competition, in so far as it was not enough to obtain the average in the tests in question but, in order to be admitted to the second stage of the competition, it was necessary to be among a predetermined number of candidates who had obtained the highest marks in the admission tests. In the light of those considerations, the Civil Service Tribunal was fully entitled to conclude that that first stage was in the nature of a competition. Not only did that stage therefore constitute a formal element of the procedure for the competition at issue, it was also a competition.
35 With regard, in the third place, to the sharing of powers between the appointing authority and the selection board for the recruitment of officials, the Commission submits that the appointing authority has always had the power, under Article 1 of Annex III to the Staff Regulations, to determine the content of pre-selection tests and that the establishment of EPSO merely resulted in the transfer of that particular power to EPSO.
36 In that regard, the Court must consider whether the Civil Service Tribunal erred in law in its assessment, in paragraphs 51 to 55 of the judgment under appeal, of the sharing of powers between the appointing authority and the selection board with regard to the recruitment of officials.
37 In paragraph 51 of the judgment under appeal, the Civil Service Tribunal held that it was for the appointing authority, as can be seen from the first subparagraph of Article 1(1) of Annex III to the Staff Regulations and Article 4 thereof, to draw up the notice of competition after consulting the Joint Committee and to draw up the list of candidates satisfying the first three conditions for appointment as officials set out in Article 28 of the Staff Regulations, namely that requiring the person in question to be a national of one of the Member States, and those relating to the laws concerning military service and the appropriate character references as to suitability for the performance of the official’s duties.
38 In paragraph 52 of the judgment under appeal, the Civil Service Tribunal held that, once that list is sent by the appointing authority to the chairman of the selection board, it is subsequently for the selection board itself, as indicated in Article 5 of Annex III to the Staff Regulations, first, to draw up a list of candidates who meet the requirements set out in the notice of competition, second, to proceed with the tests and, third, to draw up a list of suitable candidates, and to send it to the appointing authority.
39 In paragraphs 53 to 55 of the judgment under appeal, the Civil Service Tribunal pointed out that, in light of the crucial role conferred on competition selection boards, the legislature had provided for a number of safeguards, with regard to its establishment and composition as well as its operation. It referred, in particular, to the first paragraph of Article 30 of the Staff Regulations, which provides that, for each competition, a selection board is to be appointed by the appointing authority and that that board is to draw up a list of suitable candidates.
40 According to the Commission, the Civil Service Tribunal erred in law in its failure to take account, when assessing the sharing of powers between the appointing authority and the selection board, of Article 1(1)(b) and (e) of Annex III to the Staff Regulations or of the fact that that annex does not contain anything to preclude the appointing authority from determining the content of the pre-selection tests.
41 With regard to Article 1(1)(b) and (e) of Annex III to the Staff Regulations, according to which the appointing authority must specify, in the notice of competition, the kind of competition (whether on the basis of either qualifications or tests, or of both qualifications and tests) and, where the competition is on the basis of tests, what kind they will be and how they will be marked, it must be observed that those provisions do not mention any power of the appointing authority in relation to the choice and the assessment of the subjects of the questions set during a competition. Since the kind of competition for the purposes of Article 1(1)(b) of Annex III to the Staff Regulations means a competition whether on the basis of qualifications or tests, or of both qualifications and tests, that provision does not cover the determination of the content of the tests. As regards Article 1(1)(e) of Annex III, it must be noted that, while the setting of pass levels falls within the scope of ‘what kind [of tests] they will be and how they will be marked’, the same cannot be said of the determination of the content of the questions set during a competition (see, to that effect, Case T‑24/01 Staelen v Parliament [2003] ECR-SC I‑A‑79 and II‑423, paragraph 51).
42 With regard to the Commission’s argument that Annex III to the Staff Regulations does not contain any provision precluding the appointing authority from determining the content of the pre-selection tests, it must be noted that that annex does not expressly state who is to determine the content of pre-selection tests and who is to supervise that stage of the competition. That power is expressly conferred on neither the appointing authority nor the selection board.
43 However, the Civil Service Tribunal referred, correctly, for the purpose of assessing the sharing of powers between the appointing authority and the selection board in that regard, to the first paragraph of Article 30 of the Staff Regulations and to the first paragraph of Article 5 of Annex III thereto. Those provisions provide, respectively, that it is for the selection board to draw up a list of suitable candidates and to draw up a list of candidates who meet the requirements set out in the notice of competition. In light of those powers, the Civil Service Tribunal was fully entitled to consider, in paragraph 53 of the judgment under appeal, that the selection board has a crucial role in the conduct of a competition.
44 As regards more particularly the Commission’s argument that the appointing authority has always had the power to determine the content of pre-selection tests, it must be noted that the Civil Service Tribunal correctly held, in paragraph 64 of the judgment under appeal, that, in the legal situation that obtained before the establishment of EPSO, the organisation of pre-selection tests comparable to the admission tests in the present case was entrusted only to the selection board of a competition. It is apparent from settled case-law that before EPSO was established by Decision 2002/620, although the appointing authority had a wide discretion in determining the rules and conditions under which a competition was organised, the selection board had a wide discretion in regard to the arrangements for and the detailed content of the tests provided for within the framework of a competition (Staelen v Parliament, cited in paragraph 41 above, paragraph 51; Falcone v Commission, cited in paragraph 31 above, paragraphs 31 and 38; and Case T‑371/03 Le Voci v Council [2005] ECR-SC I‑A‑209 and II‑957, paragraph 41). Before EPSO was established, the selection board also had the power to supervise any initial candidate pre-selection stage organised by the appointing authority (Case T‑233/02 Alexandratos and Panagiotou v Council [2003] ECR‑SC I‑A‑201 and II‑989, paragraph 26, and Falcone v Commission, cited in paragraph 31 above, paragraph 39). The Commission’s argument must therefore be rejected.
45 It follows that the Civil Service Tribunal did not err in law in its assessment, in paragraphs 51 to 55 of the judgment under appeal, of the sharing of powers between the appointing authority and the selection board with regard to the recruitment of officials. The Commission’s arguments in that regard must therefore be rejected.
46 With regard, in the fourth place, to the findings of the Civil Service Tribunal in paragraphs 56 to 58 of the judgment under appeal, to the effect that that allocation of powers between the appointing authority and the selection board was not affected by the establishment in 2002 of EPSO, the Civil Service Tribunal referred to Article 7 of Annex III to the Staff Regulations and to Decisions 2002/620 and 2002/621.
47 As regards, first of all, Article 7 of Annex III to the Staff Regulations, the Civil Service Tribunal considered, in paragraph 56 of the judgment under appeal, that it followed from that provision that, as regards the conduct of competitions for the recruitment of officials, the tasks of EPSO are essentially organisational. Furthermore, in paragraph 57 of the judgment under appeal, the Civil Service Tribunal notes the absence in Article 7 of Annex III to the Staff Regulations of any reference to any task of EPSO related to the determination or the definition of ‘the contents of the tests’ for recruitment competitions for officials. By contrast, that same Article 7, according to the Civil Service Tribunal, expressly ascribes such tasks to EPSO in respect, in particular, of the certification of officials (in paragraph 2(c)) and the selection of temporary staff and contract staff (in paragraph 4). That absence confirms, according to the Civil Service Tribunal, that both the choice and the assessment of the subjects of the questions set during a competition fall outside the remit of EPSO.
48 The Commission states in that regard that EPSO’s mission under Article 7(1) of Annex III to the Staff Regulations – to ensure that uniform standards are applied in the selection procedures for officials – can be accomplished only if EPSO has a role in determining the content of examinations. However, EPSO’s various tasks are expressly defined in Article 7(2) of Annex III to the Staff Regulations. While those tasks must undoubtedly be interpreted by reference to EPSO’s mission, as referred to in Article 7(1), the definition of the mission as such cannot confer new powers on EPSO. Furthermore, it must be noted that that mission of EPSO concerns the determination, in general, of selection procedures for officials, and not the determination of the content of examinations for specific competitions.
49 With regard to the Commission’s argument that the legislature did not explicitly mention, in Article 7 of Annex III to the Staff Regulations, EPSO’s power to determine the content of tests for recruitment competitions for officials – unlike in the case of the engagement of temporary and contract staff and the procedure for the career development of officials in AST grades – because it regarded such a reference as nugatory since that power already existed in Annex III to the Staff Regulations, the Court notes that it follows from paragraphs 35 to 45 above that the appointing authority did not have such a power. It follows, in particular, from the contents of paragraph 44 above that in the situation that obtained before the establishment of EPSO, the organisation of pre-selection tests was entrusted only to the selection board of a competition. The Civil Service Tribunal was therefore fully entitled to hold that the absence in Article 7 of Annex III to the Staff Regulations of any reference to any task of EPSO related to the determination or the definition of ‘the contents of the tests’ for recruitment competitions for officials confirmed its conclusion that both the choice and the assessment of the subjects of the questions set during a competition fall outside the remit of EPSO.
50 As regards, second, Decisions 2002/620 and 2002/621, the Civil Service Tribunal held, in paragraph 56 of the judgment under appeal, that Decision 2002/620 expressly provided in Article 2 that EPSO is to exercise the powers of selection conferred on the appointing authority with regard to competitions. In addition, the Civil Service Tribunal held, in the same paragraph of the judgment under appeal, that the conclusion that EPSO’s tasks are essentially organisational was not contradicted by the specific provisions contained in Decisions 2002/620 and 2002/621, even if those decisions sometimes contain misleading formulations, such as the statement that EPSO is to ‘draw up reserve lists’, suggesting that EPSO is responsible for determining which candidates are included, because those decisions are in any event of lower rank than the provisions of the Staff Regulations.
51 According to the Commission, the Civil Service Tribunal erred in law in failing to take those decisions into account as a result of the alleged hierarchy of norms. Since the power to draw up the questions in a competition was not reserved exclusively to the selection board, the Commission maintains, by reference to Article 1(2)(c) of Decision 2002/621, that EPSO is authorised to determine the content of those questions.
52 It must be noted in that regard that the Civil Service Tribunal was fully entitled to conclude that, pursuant to Article 2(1) of Decision 2002/620, EPSO was exercising the powers of selection conferred on the appointing authority with regard to competitions. It follows from that provision that the powers of the appointing authority under the first paragraph of Article 30 of the Staff Regulations and Annex III to the Staff Regulations have passed to EPSO. Since it has already been held that the Civil Service Tribunal did not err in law in its assessment of the sharing of powers between the appointing authority and the selection board with regard to the recruitment of officials, the Tribunal was fully entitled to conclude, in paragraph 57 of the judgment under appeal, that both the choice and the assessment of the subjects of the questions set during a competition fall outside the remit of EPSO.
53 As regards Decision 2002/621, it must be noted that the Civil Service Tribunal correctly considered that that decision ranked below the provisions of the Staff Regulations. In particular, since Decision 2002/621 was adopted on the basis of Article 5 of Decision 2002/620, it also ranks below Decision 2002/620. It follows from this order of precedence, which must be observed by virtue of the principle of legality, that Decision 2002/621 cannot be interpreted as contravening the Staff Regulations and Decision 2002/620. However, Decision 2002/621 may be a factor which enables the Staff Regulations and Decision 2002/620 to be interpreted for the purposes of applying them to the present case.
54 Article 1(2)(c) of Decision 2002/621, under which EPSO is, according to the Commission, authorised to determine the content of the questions at issue, states that one of EPSO’s tasks is to develop selection methods and techniques on the basis of best practice and in line with the skills profiles laid down for the various categories of staff of the institutions. However, it does not follow from the wording of that provision that EPSO has the power claimed. In the context of the first sentence of Article 1(1) of Decision 2002/621, which provides that EPSO is to organise open competitions with a view to securing the services of officials on optimal professional and financial terms for the institutions, Article 1(2)(c) instead confers on EPSO the role of assisting the selection board in the conduct of a competition, in that it is responsible for developing the selection methods and techniques. In the present case, therefore, Article 1(2)(c) of Decision 2002/621 cannot be interpreted as contravening the Staff Regulations or Decision 2002/620, neither of which moreover confers on EPSO the power claimed.
55 In view of the foregoing, the Civil Service Tribunal did not err in law in holding, in paragraphs 56 to 58 of the judgment under appeal, that the establishment of EPSO and, in particular Article 7 of Annex III to the Staff Regulations and Decisions 2002/620 and 2002/621, had not affected the allocation of powers between the appointing authority and the selection board. The Commission’s arguments in that regard must therefore be rejected.
56 In so far as the Commission challenges the Civil Service Tribunal’s finding, in paragraph 71 of the judgment under appeal, that the heavy workload which the monitoring and supervision of the admission tests of the preliminary stage would entail for a selection board, even if a reduced number of candidates were eventually admitted to those tests, would constitute only a minor part of the voluminous workload necessitated by the written and oral tests, it must be noted that that is a ground that was included for the sake of completeness and cannot lead to the judgment under appeal being set aside. That complaint is therefore ineffective and must be rejected.
57 Finally, in so far as the parties disagree as regards the lawfulness of the choice of an external contractor, to whom EPSO had entrusted the organisation and implementation of the preliminary stage of the competition, it must be noted that the judgment under appeal does not contain any finding of the Civil Service Tribunal in relation to the lawfulness of that choice, not even for the sake of completeness. Under Article 11(1) of Annex I to the Statute of the Court of Justice, an appeal to the General Court is to be limited to points of law. It is to lie on the grounds of lack of jurisdiction of the Civil Service Tribunal, a breach of procedure before it which adversely affects the interests of the appellant, as well as the infringement of European Union law by the Tribunal. In those circumstances, it is not necessary for the General Court to adjudicate on that choice of an external contractor.
58 Accordingly, the Civil Service Tribunal did not err in law in so far as it concluded that Mr Pachtitis had been excluded from the second stage of the competition at issue by a procedure conducted by an authority lacking power to do so and by a decision taken by that same authority. The Commission’s arguments must therefore be rejected.
59 In light of all the foregoing, the appeal must be dismissed in its entirety.
Costs
60 Pursuant to the first paragraph of Article 148 of the Rules of Procedure, where the appeal is unfounded, the General Court is to make a decision as to costs.
61 Under the first subparagraph of Article 87(2) of the same rules, which apply to the procedure on appeal by virtue of Article 144 thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
62 Since the Commission has been unsuccessful and Mr Pachtitis has applied for costs, the Commission must be ordered to bear its own costs and to pay those incurred by Mr Pachtitis in the present proceedings.
On those grounds,
THE GENERAL COURT (Appeal Chamber)
hereby:
1. Dismisses the appeal;
2. Orders the European Commission to bear its own costs and to pay those incurred by Mr Dimitrios Pachtitis in the present proceedings.
Delivered in open court in Luxembourg on 14 December 2011.
[Signatures]