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Language of document : ECLI:EU:F:2009:120

JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Third Chamber)

23 September 2009

Case F-22/05 RENV

Neophytos Neophytou

Commission of the European Communities

(Civil service – Referral back to the Tribunal after setting aside – Open competition – Not included on the reserve list – Selection board – Appointment)

Application: brought under Articles 236 EC and 152 EA, in which Mr Neophytou seeks, in essence, the annulment of the decision of 24 September 2004 of the selection board for open competition EPSO/A/1/03 not to include his name on the reserve list published in the Official Journal of the European Union (OJ 2004 C 285 A, p. 3).

Held: The action is dismissed. The Commission is to pay, in addition to all its own costs relating to the proceedings before the Tribunal and the Court of First Instance, half of the costs incurred by the applicant relating to those proceedings. The applicant is ordered to bear half of his own costs relating to the proceedings before the Tribunal and the Court of First Instance.

Summary

1. Procedure – Actions – Plea alleging infringement of the scope of the law’s application – Finding made by the Tribunal of its own motion

2. European Personnel Selection Office (EPSO) – Definition of the responsibilities of the Management Board and Head of EPSO – Appointment of members of a selection board – Responsibilities of the Head of EPSO

(Decision 2002/621 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, Arts 6 and 8)

3. European Personnel Selection Office (EPSO) – Appointment of members of a selection board – Appointment by the Director of EPSO – Interference with the powers of the appointing authority – None

4. Officials – Recruitment – Competitions – Selection board – Composition

(Staff Regulations, Annex III, Art. 3, second para.)

1. A plea relating to the scope of the law’s application raises a matter of public policy and it is for the Community judicature to consider such a plea of its own motion. The Community judicature would be neglecting its function as the arbiter of legality if, even in the absence of a challenge by the parties in this regard, it failed to make a finding that the contested decision before it had been adopted on the basis of a rule that was not applicable to the circumstances of the case and if, as a consequence, it was led to adjudicate on the dispute before it by itself applying such a rule. In that respect, the ‘law’ is not to be understood as meaning the law in the formal sense of the word but as referring to any provision of a general and impersonal nature that is applicable to the dispute.

(see paras 56-58)

See:

T-576/93 to T-582/93 Browet and Others v Commission [1994] ECR II‑677, para. 35

F‑31/07 Putterie-De-Beukelaer v Commission [2008] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, para. 51, on appeal before the Court of First Instance, Case T‑160/08 P

2. The areas of responsibility of the Management Board of the European Personnel Selection Office (EPSO) are not defined in a provision of a general nature but in a list of the series of tasks conferred on the board, which is set out in Article 6 of Decision 2002/621 on the organisation and operation of EPSO. That list, which is necessarily exhaustive, should not be broadly construed.

By contrast, the areas of responsibility of the Head of EPSO are defined in a provision of a general nature. Under the terms of Article 8(1) of Decision 2002/621, the Head is responsible for the smooth running of EPSO. Within the area of responsibility of the Management Board, the Head of EPSO is to act under the authority of the latter. He or she is to provide secretarial services for the Management Board, report to it on the performance of his or her duties and submit to it any suggestion for the smooth running of EPSO.

The areas of responsibility of the Management Board thus relate to the running and organisation of EPSO, its general policy and its budget, whereas the Head is responsible for the day‑to‑day management of EPSO.

It follows that, since the appointment of the members of a competition selection board lies outside the area of responsibility of the Management Board set out in Article 6 of Decision 2002/621, the decision appointing those members is a task which must be regarded as forming part of the day‑to‑day management of EPSO and which, accordingly, falls within the responsibility of its Head.

(see paras 92-97)

3. The fact that the Head of the European Personnel Selection Office (EPSO) appointed the members of a selection board by countersigning a document prepared by EPSO’s staff summarising the proposals communicated by the institutions does not mean that as appointing authority he did not properly exercise his powers. First, when the appointing authority is to make a decision on the basis of a proposal, the fact that the decision taken is in line with the proposal submitted cannot of itself mean that the appointing authority has failed to exercise its powers. To argue otherwise would be to deny the appointing authority the freedom ever to adopt a decision consonant with a proposal that has been put to it. Second, subject to compliance with the procedure laid down by the applicable texts, the administration is free to determine the practical measures for the adoption of decisions and a decision cannot be called in question merely on the ground that it became effective by means of the apposition to the written statement of its contents of the dated signature of the person vested with the decision-making power.

(see paras 107-109)

4. The second paragraph of Article 3 of Annex III to the Staff Regulations provides that ‘[f]or open competitions common to two or more institutions, the Selection Board shall consist of a chairman appointed by the appointing authority … and of members appointed by the appointing authority … on a proposal from the institutions, as well as of members appointed by agreement between the Staff Committees of the institutions, in such a way as to ensure equal representation’. The phrase ‘in such a way as to ensure equal representation’ is to be understood to refer to the appointment by the appointing authority and the Staff Committees of the ‘members’ other than the chairman. That meaning is confirmed when the provision is construed in its context. This provision is to be read in the light of the first paragraph of Article 3 of Annex III to the Staff Regulations, which provides, in relation to competitions organised by a single institution, that the selection board is to consist of a chairman designated by the appointing authority and members designated in equal numbers by the appointing authority and the Staff Committee.

Accordingly, the second paragraph of Article 3 of Annex III to the Staff Regulations has to be understood as providing that, in the case of an open competition common to two or more institutions, the selection board is to be composed of a chairman appointed by the appointing authority and of members appointed in equal numbers, on the one hand, by the appointing authority on a proposal from the institutions and, on the other, by the Staff Committees of the institutions by agreement between them.

(see paras 112-114, 116)