JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(Full Court)
12 February 2014 (*)
(Civil service — Open competition — Notice of competition EPSO/AD/177/10 — Failure to include the applicant on the reserve list — Statement of reasons for the selection board’s decision — Notification of the subjects of a test — Stable nature of the composition of the selection board)
In Case F‑127/11,
ACTION brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof,
Gonzalo de Mendoza Asensi, member of the temporary staff of the European Parliament, residing in Strassen (Luxembourg), represented by P. Nelissen Grade and G. Leblanc, lawyers,
applicant,
v
European Commission, represented by J. Currall and B. Eggers, acting as Agents,
defendant,
THE CIVIL SERVICE TRIBUNAL (Full Court)
composed of S. Van Raepenbusch, President, M.I. Rofes i Pujol, President of the Chamber, E. Perillo, R. Barents and K. Bradley (Rapporteur), Judges,
Registrar: W. Hakenberg,
having regard to the written procedure and further to the hearing on 26 June 2013,
gives the following
Judgment
1 By application lodged at the Registry of the Tribunal on 29 November 2011, Mr de Mendoza Asensi brought the present action for annulment of the decision of the selection board for open competition EPSO/AD/177/10 not to include his name on the reserve list for that competition.
Background to the dispute
2 On 16 March 2010 the European Personnel Selection Office (EPSO) published in the Official Journal of the European Union notice of open competition EPSO/AD/177/10 to constitute a reserve from which to recruit administrators in grade AD 5 in the fields of European public administration, law, economics, audit and information and communication technology (ICT) (OJ 2010 C 64 A, p. 1, ‘the notice of competition’).
3 The notice of competition provided, in Section IV, for admission tests and, in Section V, for tests taking place at an assessment centre.
4 Section V, point 2, of the notice of competition stated that candidates invited to attend the assessment centre session were to be assessed on their specific competencies in their chosen field and the following general competencies:
‘– Analysis and problem solving[;]
– [c]ommunicating[;]
– [d]elivering quality and results[;]
– [l]earning and development[;]
– [p]rioritising and organising[;]
– [r]esilience[;]
– [w]orking with others[;]
– [l]eadership’.
5 Section V, point 2, of the notice of competition also stated that the above competencies were to be tested by means of a case study in the chosen field, a group exercise, an oral presentation and a structured interview.
6 Section V, point 4, of the notice of competition provided that specific competencies in the chosen field were to be marked out of 20, with a pass mark of 10. It is clear, moreover, from the documents in the case that specific competencies were marked only during the case study. The same provision stated that general competencies were to be marked out of 10, with a pass mark of 3 for each competency, and 50 out of 80 for all eight general competencies.
7 The applicant submitted an application in competition EPSO/AD/177/10 (‘the competition’) in the field of law. Having passed the admission tests on line, he took part in the tests which were held at the assessment centre in Brussels (Belgium) on 29 September 2010.
8 By letter of 3 February 2011, sent to the applicant via his EPSO account, EPSO informed him that the selection board had decided that his results were not good enough for his name to be included on the reserve list and that, inter alia, the mark for his specific competencies was 8 out of 20, whereas the pass mark was 10 out of 20 (‘the non-admission decision’). Annexed to that letter was a document entitled ‘competency passport’ containing the applicant’s results for the general and specific competencies tests, together with the selection board’s comments on each of the general competencies assessed.
9 By fax of 8 February 2011, the applicant requested a review of the non-admission decision and access to ‘all the marked exercises, written and oral, questions and answers [and also] the assessment sheet which the selection board used for each written/case study exercise’.
10 By e-mail of 10 February 2011, the applicant was sent an unmarked copy of his paper in the case study and of his language test, together with the assessment sheet used during the language test.
11 By letter of 4 April 2011, sent to the applicant via his EPSO account, EPSO informed him that the selection board, noting certain inconsistencies in the marking of his case study, had decided to revise upwards the marks awarded to him for the general competencies ‘[c]ommunicating’ and ‘[p]rioritising and organising’ and his mark for the specific competencies, which was increased from 8 out of 20 to 9 out of 20. In that letter EPSO informed the applicant that following those amendments his overall mark was 71.2 out of 100, which was still below 76.10, the lowest mark obtained by the candidates included on the reserve list, and that consequently the selection board upheld its decision not to include him on that list. An amended version of the ‘competency passport’ document was also sent to him.
12 By e-mail of 5 May 2011, the applicant submitted a complaint under Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) against the selection board’s decision not to include his name on the reserve list. In the same complaint, he requested access to ‘the evaluation of the case study exercise, the assessment sheet and the corrections’.
13 By decision of 29 August 2011, EPSO, acting in its capacity as appointing authority rejected the complaint (‘the decision rejecting the complaint’).
Forms of order sought and procedure
14 The applicant claims that the Tribunal should:
– before ruling and by way of measures of organisation of procedure, order the European Commission to produce the relevant documents in order to enable him to assess whether there was any manifest de facto or de jure error of assessment in the evaluation of his performance and in particular to produce the test paper for the case study on which he was examined in the written test at the assessment centre, together with his corrected answers;
– annul the non-admission decision;
– annul the selection board’s decision, which was notified to him by letter of 4 April 2011, confirming the non-admission decision;
– annul the decision rejecting the complaint;
– order the defendant to pay the costs.
15 In its defence, the Commission contends that the Tribunal should:
– dismiss the action;
– order the applicant to pay the costs.
16 By letter of 29 June 2012, the Tribunal requested the parties, by way of measures of organisation of procedure, to answer certain questions and to produce certain documents. In particular, it requested the Commission to send it the version of the subject used for the applicant’s case study and at least two other versions used in the competition.
17 The applicant complied with the measures of organisation of procedure ordered by the Tribunal within the set time-limits. However, in its reply dated 10 August 2012, the Commission sent to the Tribunal only some of the documents requested, on the ground that the papers for the different versions of competition subjects used were highly sensitive and it was essential to ensure the confidentiality of the method used in EPSO’s selection procedures when constructing and applying the different versions.
18 By order of 19 October 2012, adopted under Article 44(2) of the Rules of Procedure, the Tribunal ordered the Commission to send it the version of the subject used in the applicant’s case study, and two other versions used in the competition, namely the one in respect of which the average mark awarded to the candidates was highest and the one in respect of which the average mark awarded to the candidates was lowest. At the same time, the Tribunal ordered that the documents requested be communicated to the applicant confidentially and subject to a number of conditions, including a written undertaking by the applicant’s representatives not to disclose to third parties the content of the documents supplied by the Commission, and in particular not to transmit their observations on those documents to their client or to third parties.
19 The Commission sent the Tribunal the documents covered by the order of 19 October 2012 within the set time-limit. By letter of 20 November 2012, the applicant’s representatives gave an undertaking not to disclose to their client or to third parties the documents supplied by the Commission, or their observations on those documents.
20 By decision of 31 January 2013 of the Tribunal sitting in full court, the case, which had initially been assigned to the Second Chamber of the Tribunal, was reassigned to the full court.
21 By order of 5 February 2013, the Tribunal ordered the Commission to send it ‘a copy of any guide or checklist used by the members of the selection board for assessing the candidates’ papers during the competition case study’.
22 By letter received by the Registry of the Tribunal on 19 February 2013, the Commission sent the Tribunal a general guide containing instructions for examiners, a detailed guide containing instructions regarding the substance of the case study for each of the different versions, entitled ‘legal manual’, and the marking profile in the software supplied to examiners/members of the selection board for assessing the competencies of the candidates during the case study. In its covering letter, the Commission pointed out, however, that the detailed guide contained the criteria for marking the case study and stated that that document was therefore covered in full by the secrecy surrounding the proceedings of the selection board. It also stated that the marking profile must be regarded as confidential and that therefore only a non-confidential version of that document should be placed on the file.
23 After examining the documents supplied by the Commission, the Tribunal decided, by order of 18 April 2013, to place the general guide on the file and to send the detailed guide back to the Commission, on the ground that, having read the guide the Tribunal did not consider that this was necessary for it to rule on the merits of the pleas put forward by the applicant in the present case; to agree to the Commission’s request for confidentiality regarding the marking profile, and to make communication to the applicant of the general guide and the non-confidential version of the marking profile subject to confidential treatment and to certain conditions.
Preliminary considerations
24 The Tribunal finds as a preliminary point that it is clear from the documents in the case that on 3 July 2008 EPSO approved a report entitled ‘Development Programme’. The development programme introduces, for all open competitions held since 2010, a shift from a knowledge-based selection method to a competency-based selection method (‘the new method’). In particular, the development programme states that a main element for the selection of staff for the Administrator (AD) function group will be the use of assessment centres, where candidates will sit several tests, including a case study, a structured interview, an oral presentation and a group exercise.
25 As regards the oral tests held at the assessment centre, the new method contains several measures to overcome various types of cognitive bias generally found in examiners and thus to ensure consistent marking.
26 In particular, it is clear from the defendant’s pleadings that:
– candidates are observed during each test by at least two members of the selection board and each general competency is assessed during two different exercises, hence by several members of the selection board;
– the tests are pre-structured and follow a pre-established methodology using pre-defined behaviour indicators in order to overcome the ‘halo effect’, which is a cognitive bias affecting the perception that an examiner may have of people and is the tendency which any examiner may have to over- or underestimate a candidate purely on the basis of the initial perception indicators;
– at least half the members of the selection board are officials of the institutions specifically seconded to EPSO for that purpose, who perform their duties as members of the selection board full time and who have successfully completed five days’ training in assessment techniques; the other members of the selection board are also given specific training;
– the same assessment criteria and the same methodology are applied in respect of each candidate;
– the chairman of the selection board is present during the first few minutes of each test in order to ensure that the methodology is properly applied;
– the final decisions are taken collectively by the selection board as a whole on the basis of the results in all the tests;
– studies and analyses are carried out in order to check that the marking is consistent.
27 Competition EPSO/AD/177/10 was held according to the new method.
Law
1. The subject-matter of the action
28 The applicant seeks, by his second and third heads of claim, annulment of the non-admission decision and annulment of the selection board’s decision which was communicated to him by letter of 4 April 2011, taken after the review, upholding the non-admission decision.
29 However, according to case-law, where a candidate in a competition seeks review of a decision taken by a selection board, it is the decision taken by the latter after a review of the candidate’s situation that constitutes the act adversely affecting him (judgment of 13 December 2006 in Case T‑173/05 Heus v Commission, paragraph 19). It follows that the selection board’s decision, communicated to the applicant by letter of 4 April 2011, replaced the non-admission decision; consequently, it is necessary to examine only the claim for annulment of the decision communicated to the applicant by letter of 4 April 2011.
30 As regards the fourth head of claim, seeking annulment of the decision rejecting the complaint, it should be recalled that an action formally directed against the decision rejecting the complaint has the effect of bringing before the Tribunal the measure against which the complaint was filed, when rejection of the complaint, as such, lacks any independent content (judgment of 15 September 2011, Case F‑6/10 Munch v OHIM, paragraph 24 and the case-law cited).
31 In the present case, the decision rejecting the complaint lacks independent content since it merely confirms the non-admission decision, which was replaced by the selection board’s decision communicated to the applicant by letter of 4 April 2011 without a review of the applicant’s situation in the light of new arguments or facts, so there is no need to give a separate ruling on the claim for its annulment.
32 It is clear from all the foregoing that judgment must be given only on the request for measures of organisation of procedure and on the claim for annulment of the selection board’s decision communicated to the applicant by letter of 4 April 2011 upholding the non-admission decision (‘the contested decision’).
2. The request for measures of organisation of procedure
33 In his application initiating proceedings, the applicant claims that the Tribunal, before ruling and by way of measures of organisation of procedure, should order the European Commission to produce the relevant documents in order to enable him to assess whether there was any manifest de facto or de jure error of assessment in the evaluation of his performance, and in particular to produce the test paper for the case study on which he was examined, together with his corrected answers.
34 However, in the light of the documents which the parties enclosed with their written submissions and the documents provided in the context of the measures of organisation of procedure, the Tribunal considers that it has sufficient information to rule on the action and has decided that there is no need to agree to the request for the adoption of measures of organisation of procedure other than those already adopted.
3. The claim for annulment
35 In support of his claim for annulment, the applicant puts forward the following three pleas:
– breach of the principle of equal treatment;
– breach of the principle of the independence of the selection board;
– breach of the obligation to state reasons.
First plea: breach of the principle of equal treatment
36 The applicant divides the present plea into two parts, alleging first that the candidates who were examined last were put in a more favourable position and, second, that the fluctuations in the composition of the selection board during the oral tests were excessive.
First part of the first plea
– Arguments of the parties
37 The applicant points out that the case study tests took place over a period of three months and that the subjects which were given to the candidates did not vary substantially from one test to another. Those circumstances put the candidates in very different factual situations depending on the order in which they took the test. First, those candidates who were examined last had more time to prepare and, secondly, they might have obtained information from the candidates who had gone before them as to the content of some of the versions of the subject used. In that regard, the applicant maintains that information concerning the case studies was passed between candidates who had already taken the tests and those who had not yet taken them, so that the latter could have focused their preparation in the light of that information.
38 In the applicant’s view, in order to avoid that situation EPSO should have held all the case studies on the same day, as the Court of Justice of the European Communities ruled in its judgment of 27 October 1976 in Case 130/75 Prais v Council and as EPSO did with the competitions held in 2011.
39 At the hearing, observing that candidates could take the case study test in German, English or French, the applicant pointed out that it was clear from the documents produced by the Commission in the context of the measures of organisation of procedure that candidates who took that test in German or in French all had the same version of the subject. Hence, those candidates had greater opportunity to obtain information from the other candidates on the content of the version of the subject on which they were going to be tested.
40 The Commission considers that, in view of the new method and in particular the case study it includes, the objective of which is to test candidates’ competencies rather than their knowledge, no knowledge of a specific aspect of EU law or case-law is required, only a very general knowledge combined with legal competencies. Moreover, in the Commission’s view, obtaining information about the case study from other candidates might even be a disadvantage, since that test was designed to neutralise any prior knowledge a candidate might have of the subject of the test. At any rate, candidates who may have received information about the case study and who tried to use that information to prepare for the test would have found that the test was not what they had prepared for.
41 Moreover, the Commission states that the applicant did not provide any evidence of the purported exchanges of information between candidates about the case study. At the hearing, the Commission informed the Tribunal that EPSO monitors exchanges of information on social networks and other electronic means of communication, which would enable it to detect any leaks about subjects and to react accordingly if information was circulating that was too specific. The Commission states that in the present case no evidence had been found of leaked information.
– Findings of the Tribunal
42 It should be noted that, in the context of the judicial review of the decision by which a selection board refuses to include a candidate on the reserve list, the Tribunal verifies whether the relevant rules of law have been observed, that is to say the rules, in particular the procedural rules, laid down in the Staff Regulations and the notice of competition and those governing the proceedings of the selection board, in particular the selection board’s duty of impartiality and its observance of the principle of equal treatment of candidates, and the absence of misuse of powers (judgment of 13 December 2012 in Case F‑101/11 Mileva v Commission, paragraph 40 and the case-law cited).
43 As regards, in particular, equal treatment of candidates, it is established in the case-law that the selection board has a duty to ensure that this principle is strictly observed in the course of a competition. While the board enjoys a wide discretion as regards the organisation and detailed content of the tests, it is nevertheless for the Courts of the European Union to exercise their review as far as is necessary to ensure that candidates are treated equally and that the board is objective in selecting from them (judgment of 12 March 2008 in Case T‑100/04 Giannini v Commission, paragraph 132).
44 In that context, it is also incumbent on the appointing authority as the organiser of the competition and on the selection board to ensure that all candidates in the same competition, in the case of written tests, take the same test under the same conditions (Prais v Council, paragraph 13). Thus, it is for the selection board to ensure that the tests display substantially the same degree of difficulty for all the candidates (judgment of 15 April 2010 in Case F‑2/07 Matos Martins v Commission, paragraph 171 and the case-law cited).
45 Any competition generally and inherently involves a risk of unequal treatment given the necessarily limited number of questions that can be asked in an examination on a particular subject. It is, therefore, accepted that the principle of equal treatment may be deemed to have been breached only if the board has failed, when choosing the tests, to limit the risk of inequality of opportunity to that which is generally inherent in any examination (Giannini v Commission, paragraph 133).
46 In the light of the case-law cited in paragraphs 43 to 45 above, the Tribunal considers that, in view of the obligations incumbent on a selection board, the decision not to include a candidate on a reserve list must be annulled if it transpires that the competition was organised in a way which led to a risk of inequality that was greater than that inherent in any competition, without the candidate concerned’s being required to provide evidence of the fact that some candidates were actually at an advantage.
47 It is clear from the documents in the present case that the case study is designed to test the competency of candidates in a situation which is fictitious but close to reality, where previously acquired knowledge plays only a very limited role. In that regard, the Tribunal finds that point 4.1 (‘Case study’) of the ‘Assessment Centre’ brochure sent to all the candidates invited to attend the assessment centre, the point cited by the applicant in his request for review, states that candidates must give their answer in writing to the case study solely on the basis of the material available.
48 Furthermore, it is apparent from the Commission’s pleadings that the case study for the competition had been produced in sixteen different versions, which were designed so that, whilst being of the same level of difficulty, they were sufficiently different for candidates not to be able to benefit from any prior knowledge of another version. In that regard, the Tribunal found, from examining three of the sixteen versions of the competition’s case study, that the case study, far from being a simple paper consisting of a few lines capable of being memorised by one candidate and easily explained to another, took the form of a file of more than twenty pages containing a set of documents of very different types.
49 In the light of the evidence set out above, the Tribunal finds that the applicant has failed to prove to the requisite legal standard that the fact that the candidates who were examined last had more time to prepare for the case study and some candidates could have obtained information from other candidates about the content of the version of the subject on which they were going to be examined, was capable of giving the candidates who sat the case study last a genuine advantage over the other candidates.
50 Moreover, the applicant did not even attempt to counter the Commission’s argument that the new method is specifically designed to ensure that, during the course of the tests held at the assessment centre, all the candidates are treated equally and that the results of those tests are not distorted by cognitive biases on the part of the examiners, cognitive biases which have been scientifically proven to exist and which a responsible administration cannot overlook.
51 In particular, so far as alleged leaks of information about the case study are concerned, it should be noted that the applicant merely makes conjectures without providing a shred of evidence or proof of the accuracy of his assertions. When questioned on this by the Tribunal at the hearing, the applicant admitted that he had no objective evidence of the existence of such leaks. Moreover, even if information was leaked the applicant has not provided the Tribunal with any evidence capable of calling into doubt the Commission’s argument that, with the new method, having information about a case study is at the very least useless and may even be disadvantageous for the candidates.
52 Therefore, it must be held that, in the light of the above-mentioned circumstances, the fact that not all the case studies took place on the same day did not, in the present case, lead to unequal treatment of the candidates, capable of putting some of them in an advantageous position compared to others, nor to a risk of inequality that was greater than that inherent in any competition.
53 That finding is not altered by the applicant’s argument that those candidates who chose to sit the case study test in German or French all took that test on the same version of the subject and over several days. In view of the circumstances described in paragraphs 47 and 48 above, the applicant has not been able to show that the candidates examined last were able to derive any advantage from this.
54 Lastly, the applicant cannot validly rely on paragraph 14 of Prais v Council, in which the Court held that ‘[i]t is therefore of great importance that the date of the written tests should be the same for all candidates’. Suffice it to say that this finding must be assessed in its original factual context, namely that of a written test, identical for all the candidates, held in the context of a competition designed to evaluate candidates’ knowledge. Conversely, in the present case, the test the arrangements for which are being challenged by the applicant is a case study, of which there are sixteen versions, designed to evaluate candidates’ competencies rather than their knowledge.
55 It follows from all of the foregoing that the first part of the first plea must be rejected.
Second part of the first plea
– Arguments of the parties
56 In the second part of the first plea the applicant asserts that the principle of equal treatment was breached because the selection board altered its composition excessively from one candidate to another.
57 In that regard the applicant states that, during the various tests he took during the oral stage of the competition, he was never examined by the same members of the selection board and that therefore no one member of the selection board was present at all his tests. Therefore, the selection board infringed his right to be examined by a significant number of selection board members. Furthermore, the applicant points out that during the oral tests the members of the selection board were different for almost all the candidates and that therefore the selection board made a very partial comparative assessment of all the candidates. Moreover, in the applicant’s view, the inadequate number of permanent members of the selection board, and the significant alterations in the composition of the selection board were not offset by the permanent presence of the selection board’s chairman or vice-chairman.
58 Lastly, the applicant claims that the persons responsible for marking the case study were not members of the selection board but examiners appointed by EPSO, and that each week those persons were replaced by other persons. In view of the tight deadlines imposed by EPSO the selection board did not have time to check the marking by those examiners. Therefore, the consistency of the marking could not be guaranteed.
59 The Commission contends that in this part of the first plea the applicant calls into question only the oral tests, although in respect of the specific competencies, which were evaluated only in the case study, he obtained a mark that was below the pass mark. Consequently, the Commission contends primarily that the applicant has no interest in putting forward this part of the first plea, since even if the marks obtained in respect of the general competencies were annulled he would not derive any benefit therefrom.
60 In any event, the Commission considers that this part of the first plea is also devoid of any basis in law. According to the Commission, maintaining stability in the composition of the selection board is not an objective in itself but a requirement established by the case-law in order to counteract certain defects in the way in which the oral tests were carried out before 2010. Since the new method does not have those defects it is no longer necessary for the selection board to ensure its stability throughout the competition procedure in order that the principles of equal treatment and objectivity of marking are observed. At the hearing, the Commission refined its argument by saying that it was not asking for the principle of the stability of the selection board to be totally abandoned, but that it should be redefined taking into account the new method.
– Findings of the Tribunal
61 The Courts of the European Union are entitled to assess, according to the circumstances of each case, whether the proper administration of justice justifies the dismissal on the merits of an action without first ruling on the objection of inadmissibility raised by the defendant (judgment of 28 September 2011 in Case F‑26/10 AZ v Commission, paragraph 34).
62 In the circumstances of the present case and for the purposes of procedural economy, it is necessary to examine first of all the applicant’s argument on the merits, without first ruling on admissibility.
63 It should be noted that the EU institutions have a wide discretion with regard to the procedure for organising a competition and the Courts of the Union may therefore review those procedures only in so far as is necessary to ensure equal treatment of the candidates and objectivity in the choice made between them (see judgment of 16 September 2013 in Case F‑46/12 Höpcke v Commission, paragraph 63).
64 The obligation to recruit officials of the highest standard of ability, efficiency and integrity, imposed on the institutions by Article 27 of the Staff Regulations, means that the appointing authority and the selection board must each ensure, when exercising its powers, that competitions take place in such a way that the principles of equal treatment of the candidates and objectivity of the marking are observed.
65 Thus it has been held that the wide discretion enjoyed by a selection board in determining the procedures for and detailed content of the tests to be undergone by the candidates must be counterbalanced by scrupulous observance of the rules governing the organisation of those tests. The selection board must therefore ensure that the principle of equal treatment is complied with strictly in relation to the candidates in the course of those oral tests and that the choice made between the persons concerned is objective (judgment of 25 May 2000 in Case T‑173/99 Elkaïm and Mazuel v Commission, paragraph 87). To that end, the selection board is obliged to ensure consistent application of the assessment criteria to all the candidates concerned by making sure inter alia that its composition is stable (see, concerning a selection board in a procedure to draw up a reserve list of temporary staff, judgment of 24 September 2002 in Case T‑92/01 Girardot v Commission, paragraphs 24 to 26; see also judgment of 29 September 2010 in Case F‑41/08 Honnefelder v Commission, paragraph 35).
66 According to case-law, observance of the principles of equal treatment and objectivity of marking requires that, so far as is possible, stability of the composition of the selection board should be maintained throughout the tests (judgment of 10 November 2004 in Case T‑165/03 Vonier v Commission, paragraph 39).
67 However, it cannot be excluded that consistency of marking may be ensured by means other than maintaining the stability of the selection board throughout the tests. Thus, the Court of First Instance accepted that where full members of a competition selection board are prevented from attending and are replaced, for some of the candidates’ tests, by alternate members in order for the selection board to complete its work within a reasonable period, the composition of the selection board can none the less remain sufficiently stable if the selection board puts in place the coordination needed in order to ensure consistent application of the marking criteria (see, to that effect, Giannini v Commission, paragraphs 208 to 216).
68 In the same way, it should be noted that measures taken by a selection board in order to comply with its obligation to ensure stability of its composition must, where appropriate, be assessed in the light of the particular characteristics of the recruitment organised and of the practical requirements inherent in the organisation of the competition without, however, the selection board being able to dispense with observance of the fundamental assurances of equal treatment of the candidates and objectivity in the choice made between them (judgment of 5 April 2005 in Case T‑336/02 Christensen v Commission, paragraph 44).
69 A selection board’s assessment of candidates’ competencies or their knowledge and ability is primarily of a comparative nature (see judgment of 19 February 2004 in Case T‑19/03 Konstantopoulou v Court of Justice, paragraph 43). However, it cannot be excluded that, in the light of the way the tests in a competition and the proceedings of the selection board are organised, it may be sufficient, in order to ensure the comparative nature of the selection board’s assessment, that the latter’s composition be kept stable only during certain stages of the competition.
70 As maintaining a certain stability of the selection board is not a requirement in itself but a means of ensuring that the principles of equal treatment and objectivity of marking are observed, it is necessary to examine whether, in the present case, the way in which the competition was organised enabled those principles to be observed.
71 In the present case, it should be noted that the Commission stated in its response to the measures of organisation of procedure and at the hearing, without being contradicted by the applicant, that although the selection board did not remain stable throughout the tests, at the very least, it met at the beginning when it decided on the way the tests were to take place, then every two or three days, on each occasion on which the marks awarded to the candidates were brought together in order to form an assessment of the competencies of the candidates who had been examined over that period and, lastly, when it reviewed the consistency of the assessments of the candidates at the end of all the tests.
72 In addition, it is also necessary to take into account the measures adopted by EPSO under the new method, which are designed to overcome various types of cognitive bias generally found in examiners, and thus ensure consistent marking. In particular, the Tribunal notes that those measures include the use of pre-structured tests which follow a pre-established methodology using pre-defined behaviour indicators, the presence of the chairman of the selection board during the first few minutes of all of the tests and the carrying out of studies and analyses in order to check the consistency of marking (see paragraph 26 above).
73 It appears, therefore, that the new method replaces the old selection process based on membership of the selection board remaining the same throughout the competition procedure, by a selection process in which the stability of the selection board is guaranteed only at certain key stages of the procedure but in which equal treatment of the candidates is ensured by working methods remaining the same and through application of the same assessment criteria to the candidates’ performance.
74 In those circumstances, in view of the stability of the selection board during the stages referred to in paragraph 71 above and the measures of organisation and of coordination of the proceedings of the selection board listed in paragraphs 72 and 73, the Tribunal considers that the principles of equal treatment and objectivity of marking were observed in the present case.
75 It is therefore necessary to reject as unfounded the complaints which the applicant bases on the selection board’s alleged lack of stability, namely that the selection board breached the applicant’s alleged right to be assessed by a significant number of selection board members, that the selection board carried out a very partial comparative assessment of the candidates as a body and that the alterations in the composition of the selection board were not offset by the permanent presence of the chairman or vice-chairman of the selection board.
76 As for the complaint concerning EPSO’s use of external examiners and their replacement each week, it should be noted that according to settled case-law selection boards may have recourse to the assistance of examiners whenever they consider necessary. In such cases there is no irregularity if the methods of marking do not differ from one candidate to another and the selection board retains the power to make the final assessment (judgment of 26 January 2005 in Case T‑267/03 Roccato v Commission, paragraph 67). In the present case, the applicant does not even claim that the methods of marking differed from one candidate to another and that the selection board did not retain the power to make the final assessment and there is no evidence on the file that that was the case.
77 Lastly, it should be noted that the applicant does not provide any evidence to support his assertion that the selection board was unable to ensure consistency of the marking since the appointing authority did not give it enough time to do so. In any event, it is apparent from the documents in the case that the selection board monitored the consistency of the marking, since, following the request for review submitted by the applicant, the selection board noted certain inconsistencies in the marking of his case study and therefore revised upwards the marks originally awarded for the general competencies ‘[c]ommunicating’ and ‘[p]rioritising and organising’ and the mark for the specific competencies.
78 It follows from all of the foregoing that the second part of the first plea, alleging the selection board’s lack of stability, must be rejected as unfounded, without its being necessary to determine whether that second part was admissible or effective.
79 The first plea must therefore be dismissed in its entirety.
Second plea: breach of the principle of the independence of the selection board
Arguments of the parties
80 The applicant states that the majority of the members of the selection board, including its chairman, were officials seconded to EPSO and therefore dependent on it, which is contrary to the principle of the independence of the selection board.
81 The Commission contends that the Tribunal should reject the present plea.
Findings of the Tribunal
82 It should be noted that, in view of the key role entrusted to the selection board, the legislature has provided a certain number of safeguards. Thus, Article 30 of the Staff Regulations and Article 3 of Annex III to the Staff Regulations provide, first, that for each competition a selection board is to be appointed by the appointing authority; second, that, apart from the chairman of the selection board, the members must be designated in equal numbers by the appointing authority and the Staff Committee; third, that the members of the selection board must be chosen from officials; fourth, that the members of the selection board must be of a function group and grade at least equal to that of the post to be filled; and, fifth, that if a selection board consists of more than four members it must comprise at least two members of each gender (judgment of 15 June 2010 in Case F‑35/08 Pachtitis v Commission, paragraphs 53 and 54).
83 There is no provision of the Staff Regulations, however, which precludes members of the selection board being officials seconded to EPSO specifically to act as members of a selection board.
84 Moreover, it cannot be inferred merely from the fact that the members of the selection board were officials seconded to EPSO to act as members of a competition selection board for a limited period that EPSO, through those officials, exerted any influence over the proceedings of the selection board.
85 It should be noted that, far from providing the Tribunal with evidence, or at least detailed and consistent indications, of the fact that EPSO exerted any influence over the selection board, the applicant confined himself to mere speculation in his application.
86 At the hearing, however, the applicant expanded on the present plea, stating that, with the new method it was possible to observe a sort of inversion of roles between the competition selection board and EPSO, the latter having more and more power to determine the nature of the tests and the way in which they should be carried out, despite the role of the selection board. In particular, the applicant highlighted the fact that, as the Commission itself acknowledged in its statement in defence, with the assessment centre methodology, the selection board has more limited room for manoeuvre than before and the measures adopted by the appointing authority in order to ensure the consistency of the marking are such that they have the effect of depriving the selection board of its powers.
87 However, the arguments put forward by the applicant are not such as to prove to the requisite legal standard that EPSO went beyond the role that Article 1(1)(a) and (b) of Annex III to the Staff Regulations confers on the appointing authority, namely that of establishing the nature of the competition and the rules governing it. In particular, there is no evidence on file demonstrating the existence of any interference by EPSO in the selection board’s assessment of candidates’ performance, nor in the candidates’ marking or in drawing up the reserve list. In that regard, it should be noted that, irrespective of the measures adopted by the appointing authority in order to ensure the consistency of the marking in accordance with Article 5 of Annex III to the Staff Regulations, it is the selection board and not the appointing authority which supervised the tests and drew up the list of suitable candidates.
88 Therefore the plea of breach of the principle of the independence of the selection board must be rejected.
Third plea: breach of the obligation to state reasons
Arguments of the parties
89 The applicant asserts, in essence, that EPSO infringed the obligation to state reasons, laid down in Article 25 of the Staff Regulations, in so far as it refused to provide him with several documents and pieces of information and, in particular, the questions on which he failed, the reasons why his answers were incorrect, and the assessment sheets used for the written and oral tests. In addition, he asked for a copy of the version of the subject on which he was examined in the case study, together with his marked answers. It was necessary for that information to be provided to him so that he could understand where he had made errors and the way in which his test had been corrected and so that he could assess whether there had been any breach of the rules applying to the selection board.
90 In addition, the applicant considers that, under Article 8 of the Charter of Fundamental Rights of the European Union and Article 13 of Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ 2001, L 8, p. 1), EPSO was required to transmit to him the documents mentioned in the preceding paragraph.
91 The Commission contends that this plea should be rejected.
Findings of the Tribunal
92 As a preliminary point, it should be noted that, although under the second paragraph of Article 25 of the Staff Regulations any decision taken under the Staff Regulations that might adversely affect the person to whom it is addressed must state the grounds on which it is based, as far as concerns decisions taken by a selection board in a competition, the obligation to state reasons must be reconciled with observance of the secrecy surrounding the proceedings of selection boards provided for in Article 6 of Annex III to the Staff Regulations of Officials (judgment of 4 July 1996 in Case C‑254/95 P Parliament v Innamorati, paragraph 24).
93 The secrecy surrounding the proceedings of the selection board was introduced with a view to guaranteeing the independence of competition selection boards and the objectivity of their proceedings, by protecting them from all external interference and pressures, whether these come from the administration itself or the candidates concerned or third parties. Observance of this secrecy therefore precludes both disclosure of the attitudes adopted by individual members of selection boards and disclosure of any factors relating to individual or comparative assessments of candidates (see, inter alia, Konstantopoulou v Court of Justice, paragraph 27).
94 Having regard to that secrecy, communication of the marks obtained in the various tests in a competition constitutes, in principle, an adequate statement of the reasons on which the selection board’s decisions are based (Parliament v Innamorati, paragraph 31, and Konstantopoulou v Court of Justice, paragraph 32; judgment of 28 March 2012 in Case F‑19/10 Marsili v Commission, paragraph 51).
95 Such a statement of reasons is not prejudicial to the rights of the candidates. It serves to apprise them of the value judgement made in regard to their performance and enables them to satisfy themselves, where appropriate, that they have not in fact obtained the number of points required by the notice of competition in order to be admitted to certain tests or to all the tests and enables the Tribunal to carry out a judicial review appropriate for that type of dispute (Konstantopoulou v Court of Justice, paragraph 33).
96 Moreover, a selection board cannot be required, in giving reasons for a decision not to admit a candidate to a test, to specify which of the candidate’s answers were judged inadequate or to explain why those answers were considered inadequate; such detailed reasons are not necessary to enable the candidate to determine whether or not it is appropriate to lodge a complaint or, if need be, to bring an action, or to enable the Court to exercise its power of review (judgments of 14 July 1995 in Case T‑291/94 Pimley-Smith v Commission, paragraphs 63 and 64, and Konstantopoulou v Court of Justice, paragraph 34).
97 In the present case, it appears from the documents in the case that, following his request, the applicant obtained, on 10 February 2011, an unmarked copy of his case study test paper and a copy of the language test, and also the assessment sheet used during that test. In addition, he was informed in the contested decision that the reason for the selection board’s decision to uphold the non-admission decision was the fact that he had obtained an overall mark that was below the lowest mark of the candidates who had been included on the reserve list. Lastly, he received his ‘competency passport’, which listed not only the marks obtained for each of the competencies assessed but also the analytical assessments given for each of the competencies measured.
98 It must therefore be concluded, in the light of the case-law recalled above, that the contested decision did contain a sufficient statement of reasons, without it being necessary for EPSO to transmit to the applicant the documents which the latter requested.
99 For the sake of completeness, the Tribunal considers that EPSO was not required, in order to comply with its obligation to state reasons, to transmit to the applicant the marked version of his papers, the reasons why his answers were incorrect, and the assessment sheets used for the written and oral tests, since those documents formed an integral part of the assessments of a comparative nature which the competition selection board makes and are covered by the secrecy surrounding the board’s proceedings.
100 Moreover, as regards the test paper for the version of the subject on which the applicant was examined in the case study, the Tribunal holds that, although according to case-law a document is covered by the secrecy surrounding the proceedings of the selection board where communication of the document is liable to disclose the attitudes adopted by individual members of the selection board or assessments of a personal and comparative nature with regard to the candidates (Konstantopoulou v Court of Justice, paragraph 27), the confidentiality surrounding the proceedings of the selection board does not preclude the confidentiality of a document in a competition procedure being justified on other grounds. In the present case, the Tribunal considers that EPSO’s refusal to transmit to the applicant the version of the subject on which he was examined is justified by the need to rule out the possibility, in the event of other candidates also asking to receive the version of the subject on which they were examined, of their being able, by comparing those different versions, to determine, and subsequently make public, the methodology used in order to draw up the different versions of the same subject and the indicators used to assess the candidates.
101 Lastly, those findings are not called into question by Article 8 of the Charter or by Regulation No 45/2001. It should be noted that, as stated in Article 2 of Regulation No 45/2001, ‘personal data’ means only information enabling a person to be identified. It follows that under the above-mentioned provisions the applicant is entitled to obtain access to data held by EPSO that enables him to be identified but not access to his marked test paper, the questions on which he failed, the reasons why his answers were incorrect or the assessment chart used. That is all the more so since, if it were to be considered that a candidate’s marked test paper constitutes personal data, he could, under Article 14 of Regulation No 45/2001, request that it be rectified, which would be absurd.
102 The present plea alleging breach of the obligation to state reasons must therefore be rejected.
103 As none of the pleas is well founded, the claim for annulment must be rejected and hence the action must be dismissed in its entirety.
Costs
104 Under Article 87(1) of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title 2 of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 87(2), the Tribunal may, if equity so requires, decide that an unsuccessful party is to pay only part of the costs or even that that party is not to be ordered to pay any.
105 It follows from the grounds set out in the present judgment that the applicant is the unsuccessful party. Furthermore, in its submissions the Commission has expressly claimed that the applicant should be ordered to pay the costs. Since the circumstances of the present case do not warrant application of Article 87(2) of the Rules of Procedure, the applicant must bear his own costs and be ordered to pay the costs incurred by the Commission.
On those grounds,
THE CIVIL SERVICE TRIBUNAL
(Full Court)
hereby:
1. Dismisses the action;
2. Declares that Mr de Mendoza Asensi is to bear his own costs and orders him to pay those incurred by the European Commission.
Van Raepenbusch | Rofes i Pujol | Perillo |
Delivered in open court in Luxembourg on 12 February 2014.
W. Hakenberg | | S. Van Raepenbusch |