Appeal brought on 19 December 2008 by the Commission of the European Communities against the judgment of the Civil Service Tribunal delivered on 14 October 2008 in Case F-74/07, Meierhofer v Commission

(Case T-560/08 P)

Language of the case: German

Parties

Appellant: Commission of the European Communities (represented by J. Currall and B. Eggers, acting as Agents)

Other party to the proceedings: S. Meierhofer (Munich, Germany)

Form of order sought by the appellant

Set aside the judgment of the Civil Service Tribunal of 14 October 2008 in Case F-74/07 Meierhofer v Commission;

Each party to bear its own costs.

Pleas in law and main arguments

The appeal is brought against the judgment of the Civil Service Tribunal of the European Union of 14 October 2008 in Case F-74/07 Meierhofer v Commission, in which the Tribunal set aside the decision of the selection board in Competition EPSO/AD/26/05 of 19 June 2007 for infringement of the duty to state reasons.

By the contested decision, the candidate's request for review of the selection board's decision that the candidate had not passed the oral test of the competition was dismissed. The candidate had fallen short of the required minimum mark in the oral test by half a point. According to the competition notice, the oral test was assessed by a single overall mark.

The appeal is directed against the requirements of the duty to state reasons on a selection board and the review criteria of the Community judicature. The Commission challenges in particular the conclusion of the Civil Service Tribunal that in "particular circumstances", for example in the case of a mark just under the minimum number of points, the duty to state reasons was not satisfied by communicating to the candidate excluded at the oral stage only a single mark leading to exclusion.

The Commission argues that that approach leads to legal uncertainty:

First, the duty to state reasons must, in accordance with consistent case-law, be reconciled with the preservation of confidentiality which applies to the work of a selection board pursuant to Article 6 of Annex III to the Staff Regulations, and which forbids the dissemination of the opinions of individual members of the selection board and the disclosure of details in relation to the assessment of the applicants personally or in comparison with others.

Second, the comparison drawn by the Tribunal with cases concerning access to documents is inappropriate, since Article 6 of Annex III makes no provision for exceptional cases or the balancing of interests.

Third, the Tribunal overlooked the case-law according to which the duty to state reasons must stand in a proportionate relationship to the measure in question, and is simply designed to enable the Tribunal to review the legality of the decision. Since subsequent review of an oral test by the Community judicature is impossible in the nature of things, the latter has hitherto essentially confined its review to compliance with the competition regulations and the advertising of the competition.

The judgment creates further legal uncertainty in relation to the distinction between various types of procedural measures, concerning requests for the production of confidential documents by an entity and the circumstances in which such requests may be refused (measures of organisation of procedure and orders for evidence to be taken). In the present case, the Tribunal also fundamentally misinterpreted the Commission's position, as the latter did not in any way refuse such production. The Commission merely explained that it could not produce the relevant documents on the basis of the measures of organisation of procedure ordered by the Tribunal, but was awaiting an order (for the production of evidence) of the Tribunal.

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