JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(First Chamber)

20 November 2012

Case F‑1/11

Zdenek Soukup

v

European Commission

(Civil service — Open competition — Non-inclusion on the reserve list — Evaluation of the oral test)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, in which Mr Soukup seeks, first, annulment (i) of the decision of the selection board of competition EPSO/AD/144/09 not to enter him on the reserve list for the competition, (ii) of the decision of the same selection board to enter another candidate on that list, (iii) of ‘all the operations carried out by the selection board as from the stage at which the irregularities complained of occurred’ and, secondly, an order for the Commission to pay the sum of EUR 25 000 by way of compensation for the damage allegedly suffered.

Held: The action is dismissed. The applicant is to bear his own costs and those incurred by the Commission.

Summary

1.      Officials — Acts of the administration — Presumption of validity — Contention — Burden of proof — Obligation to provide evidence to challenge the legality of the act

2.      Officials — Competitions — Principle of the impartiality of the selection board — Acquaintanceship between a member of a selection board and a candidate

(Staff Regulations, Art. 11a)

1.      An administrative act is presumed to be lawful and the burden of proof lies, in principle, with the person claiming it to be unlawful, so that it is for the applicant to provide at the very least sufficiently precise, objective and consistent information to corroborate the truth or likelihood of the facts in support of his claim.

Consequently, in the case of a competition, a person concerned who has provided neither evidence nor even a body of indicia must accept that decisions adopted by the selection board are presumed to be lawful, and he cannot expect the Tribunal itself to examine the candidatures of the successful candidates in order to ascertain whether some successful candidates were unlawfully admitted to the competition.

(see para. 34)

See:

4 February 2010, F‑15/08 Wiame v Commission, para. 21

2.      An acquaintanceship between a member of a selection board and a candidate is not in itself sufficient to prove that that member has a personal interest, within the meaning of Article 11a of the Staff Regulations, capable of calling his impartiality into question. The fact that a member of the selection board is personally acquainted with one of the candidates does not necessarily mean that that member will be prejudiced in favour of that candidate’s performance. Furthermore, since an oral test cannot, by its very nature, be anonymous, the fact that one or more candidates work for the same institution as that from which one or two members of the selection board come is not in itself a circumstance that could give the selection board any information that it was not entitled to know.

(see para. 38)

See:

30 April 2008, F‑16/07 Dragoman v Commission, para. 44