JUDGMENT OF THE COURT OF FIRST INSTANCE (Appeal Chamber)
13 October 2008
Case T-43/07 P
Neophytos Neophytou
v
Commission of the European Communities
(Appeals – Civil service – Open competition – Rejection of the appellant’s candidature – Composition of the selection board for the oral tests – Principle of equal treatment – New pleas in law – Error of law – Appeal in part unfounded and in part founded – Referral back to the Civil Service Tribunal)
Appeal: against the judgment of the European Union Civil Service Tribunal (Third Chamber) of 13 December 2006 in Case F-22/05 Neophytou v Commission [2006] ECR-SC I‑A‑1‑159 and II‑A‑1‑617 seeking to have that judgment set aside.
Held: The judgment of the European Union Civil Service Tribunal (Third Chamber) of 13 December 2006 in Case F-22/05 Neophytou v Commission is set aside to the extent that the Civil Service Tribunal held that the submissions, with the exception of the last, put forward by Mr Neophytos Neophytou at the hearing at first instance and summarised in paragraph 27 of that judgment were inadmissible. The remainder of the appeal is dismissed. The case is referred back to the Civil Service Tribunal. The costs are reserved.
Summary
1. Appeal – Pleas in law – Admissibility – Conditions – Submission of arguments already submitted to the Civil Service Tribunal – No effect
(Statute of the Court of Justice, Annex I, Art. 11(1); Rules of Procedure of the Court of First Instance, Art. 138(1)(c))
2. Appeal – Pleas in law – Review by the Court of First Instance of the legal characterisation of the facts by the Civil Service Tribunal
(Rules of Procedure of the Court of First Instance, Art. 48(2))
3. Officials – Competitions – Selection board – Composition
(Staff Regulations, Annex III, Art. 3)
4. Procedure – Introduction of new pleas during the proceedings – Plea based on elements which come to light during the proceedings
(Rules of Procedure of the Court of First Instance, Art. 48(2))
5. Appeal – Pleas in law – Distortion of the clear sense of the evidence
6. Officials – Competitions – Selection board – Composition
(Staff Regulations, Annex III, Art. 3)
1. Where an appellant challenges the interpretation or application of Community law by the judges at first instance, the points of law examined at first instance may be rediscussed in the course of an appeal. If an appellant could not base his appeal on pleas in law and arguments already relied on at first instance, the appeal procedure would be deprived of part of its purpose. Thus an appellant, on appeal, may rely on submissions based on findings of fact and on the assessment of those facts in the judgment under appeal where the appellant claims that the judges at first instance have made findings which the documents in the file show to be substantially incorrect or that they have distorted the clear sense of the evidence before them. However, it follows from Article 11(1) of Annex I to the Statute of the Court of Justice and Article 138(1)(c) of the Rules of Procedure of the Court of First Instance that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside, and also the legal arguments specifically advanced in support of the appeal.
(see paras 24, 41)
See: C‑352/98 P Bergaderm and Goupil v Commission [2000] ECR I‑5291, para. 34; C‑488/01 P Martinez v Parliament [2003] ECR I‑13355, paras 39 and 40 and the case-law cited therein; C‑229/05 P PKK and KNK v Council [2007] ECR I‑439, paras 32 to 35
2. Where an appellant challenges the characterisation by the judges at first instance of the legal nature of the facts in order to determine the legal consequences thereof, that is a question of law which may be raised in the context of an appeal. That is particularly true with regard to the legal question whether the established presence at the deliberations of the selection board of an alternate member alongside ‘his’ corresponding full member might be such as to influence improperly the voting of the selection board and, accordingly, to render that vote unlawful.
(see paras 45, 46, 71)
See: C‑136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I‑1981, para. 49; C‑412/05 P Alcon v OHIM [2007] ECR I‑3569, paras 38 to 40
3. The simultaneous presence of full members and alternate members in the selection board at the oral tests in a competition does not render the proceedings and composition of the selection board unlawful, as long as, in such circumstances, the alternate member does not have a vote.
(see para. 53)
See: T‑290/03 Pantoulis v Commission [2005] ECR-SC I‑A‑241 and II‑1123, paras 62, 77 and 78; T-100/04 Giannini v Commission [2008] ECR-SC I-A-0000, para. 210
4. The first paragraph of Article 48(2) of the Rules of Procedure of the Court of First Instance prohibits the introduction of new pleas in the course of the proceedings unless they are based on elements which come to light in the course of the procedure. The same applies to a submission made in support of a plea in law. Moreover, that provision in no way excludes the possibility that the elements may have been discovered in the context of a measure of organisation of procedure. Lastly, the time-bar laid down by that provision inasmuch as it restricts the interested party’s ability to put forward all matters necessary for the success of its claims, should be interpreted restrictively.
(see para. 76)
See: C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I‑8375, para. 370; T‑32/91 Solvay v Commission [1995] ECR II‑1825, para. 40; T‑231/99 Joynson v Commission [2002] ECR II‑2085, para. 156
5. In order to determine whether the judges at first instance distorted the evidence contained in documents stating the composition of a selection board by holding to be inadmissible the submissions put forward at the hearing at first instance alleging that the appointment of the selection board was unlawful and that the number of members present was too small, it is necessary for the Court of First Instance to examine whether the case‑file at first instance and, in particular, the documents filed by the Commission are such as to allow the Court to establish the meaning and scope of those submissions and to review whether the Civil Service Tribunal clearly erred in its reading and assessment of those documents.
That is true where nothing in the case‑file indicates that the appellant was in a position to make those submissions prior to the hearing at first instance.
(see paras 78, 80, 82)
See: C‑326/05 P Industrias Químicas del Vallés v Commission [2007] ECR I‑6557, paras 57 to 60
6. It is for the selection board to ensure that the principle of equal treatment of candidates is strictly complied with and for the Community judicature to examine whether the composition of the selection board during the oral tests complied with the procedural requirements established by the Community legal order. The selection board’s failure to abide by the rules governing its work may be characterised as a breach of essential procedural requirements, with the result that it is not necessary for the appellant to prove that the result of the competition might have been different if that breach had not occurred.
Since the principle of equality underpins the rules on the composition of selection boards for competitions, the Community judicature errs at law in failing to take account of the close connection which exists between that principle and the rules on the composition of the selection board.
(see paras 85-86)
See: T‑95/98 Gogos v Commission [2000] ECR-SC I‑A‑51 and II‑219, paras 25, 37 to 39, 53 and 54 and the case-law cited therein; T‑165/03 Vonier v Commission [2004] ECR-SC I‑A‑343 and II‑1575, para. 40