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Cite as: [2005] EUECJ T-294/3, [2005] EUECJ T-294/03

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JUDGMENT OF THE COURT OF FIRST INSTANCE (First Chamber)

31 May 2005 (*)

(Open competition - Non-inclusion on the list of successful candidates - Lack of a statement of reasons - Discrimination on grounds of nationality)

In Case T-294/03,

Jean-Louis Gibault, residing in Wattrelos (France), represented by F. Tuytschaever, lawyer,

applicant,

Commission of the European Communities, represented by J. Currall, acting as Agent, with an address for service in Luxembourg,

defendant,

APPLICATION for annulment of the decision of the selection board for open competition COM/A/6/01 not to include the applicant on the list of successful candidates,

THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES (First Chamber),

composed of J.D. Cooke, President, I. Labucka and V. Trstenjak, Judges,

Registrar: I. Natsinas, Administrator,

having regard to the written procedure and further to the hearing on 2 March 2005,

gives the following

Judgment

Background to the dispute

1 On 11 April 2001, the Commission published Notice of Open Competition COM/A/6/01 to establish a reserve of administrators (A7/A6) in the fields of external relations and management of aid to non-member countries (-�the competition notice-�), its aim being, for external relations, to establish a reserve of 80 successful candidates. The applicant took part in that competition, choosing the field of external relations. Having passed the written tests, he was admitted to the oral tests.

2 Paragraph VI.C(f) of the competition notice deals with the conduct of the oral test in the following terms:

-�(f) Interview with the selection board to enable it to complete its assessment of your suitability to carry out the duties described in section II, based on your chosen field. The interview will also focus on your specialised knowledge, knowledge of languages required by the competition notice (see section III (B)(4)), suitability to serve outside the European Union and ability to adjust to working in a multicultural environment.

This test will be marked out of 40 (pass mark: 20).-�

3 Paragraph VI.D of the competition notice, concerning admission to subsequent stages of the competition, is worded as follows:

-�If you obtain a mark lower than the pass mark in any of the tests, you will be eliminated.-�

4 Paragraph VII of the competition notice, entitled -�Reserve lists-�, states that at the end of the competition the selection board will draw up an alphabetical reserve list of the candidates for external relations who have obtained the 80 highest combined scores for tests (e) and (f) and that candidates will be informed personally by letter of the selection board-�s decision concerning them.

5 Paragraph VIII of the competition notice deals with requests for reconsideration and appeals, and refers to Annex II to the competition notice; the latter provides that, at any stage of the competition, candidates who consider that a decision adversely affects them may apply for their case to be reconsidered, launch one of the appeal procedures, or make a complaint to the European Ombudsman. Provision is also made for an application for reconsideration to be submitted to the Commission. It is stated that the selection board will reconsider the candidate-�s case and reply as soon as possible.

6 Similarly, the annex to the competition notice also provides for appeals: either a complaint under Article 90(2) of the Staff Regulations of Officials of the European Communities (-�the Staff Regulations-�) or an application to the Court of First Instance.

7 According to the same annex, the period within which appeals must be brought starts to run from the date of the notification of the original decision adversely affecting the candidate.

8 By letter of 30 July 2002, received by the applicant on 5 August 2002, the chairman of selection board informed him that the board had not included his name on the reserve list, as the mark of 19.5/40 awarded to him for the oral test fell short of the prescribed minimum of 20/40.

9 By letter of 6 August 2002 to the chairman of the selection board, the applicant objected to the result notified to him with regard to the difference of 0.5/40 and asked him to reconsider his case.

10 By letter of 17 September 2002 (-�the contested decision-�), the chairman of the selection board stated, in reply to the request for reconsideration, that the 80 successful candidates had obtained higher marks for the tests as a whole. He also explained that the selection board could not reconsider the applicant-�s application since it had been dealt with in accordance with the rules applied to all the candidates.

11 By letter of 15 December 2002, the applicant lodged a complaint under Article 90(2) of the Staff Regulations against the contested decision.

12 By decision of 20 May 2003, the appointing authority rejected the applicant-�s complaint.

Procedure and forms of order sought

13 By application lodged at the Registry of the Court of First Instance on 27 August 2003, the applicant brought the present action.

14 Upon hearing the report of the Judge-Rapporteur, the Court of First Instance (First Chamber) decided to open the oral procedure.

15 The parties presented oral argument and answered questions put to them by the Court at the hearing on 2 March 2005.

16 The applicant claims that the Court of First Instance should:

- declare the application admissible;

- annul competition COM/A/6/01;

- in the alternative, annul the selection board-�s decision not to include him on the list of successful candidates;

- order the Commission to pay the costs.

17 The Commission contends that the Court of First Instance should:

- dismiss the application;

- make an appropriate order as to costs.

18 At the hearing, the applicant stated that he withdrew his claim that competition COM/A/6/01 should be annulled in its entirety. After hearing the views of the Commission, the Court took formal note of that statement.

The admissibility of the application

19 The Commission considers the application to be inadmissible. It contends that the application was lodged out of time and that the applicant has not made out any interest in bringing the proceedings.

The plea of inadmissibility based on lateness of the complaint

Arguments of the parties

20 According to the Commission, the decision adversely affecting the applicant is that of 30 July 2002, which was notified to him on 5 August 2002. However, the complaint was not lodged until 15 December 2002. It is therefore time-barred. The decision of 17 September 2002 merely confirms the previous decision which excluded the applicant from the list of successful candidates (see paragraph 10 above).

21 The applicant replies that the application was brought within the prescribed period. He considers that a distinction must be drawn between the admissibility of the complaint under Article 90(2) of the Staff Regulations and the admissibility of the present application to the Court of First Instance under Article 91 of the Staff Regulations. Moreover, the letter of 17 September 2002 is an autonomous decision. It is therefore a measure against which an action may be brought and not a mere confirmation of the previous decision excluding the applicant from the list of successful candidates.

Findings of the Court

22 It is settled case-law that it is the decision adopted by a competition selection board after it has reconsidered the candidate-�s situation that constitutes the act adversely affecting the candidate. It is also that decision, adopted after the reconsideration, which starts time running for the purposes of the time-limits for the complaint and the action, without there being any need to determine whether, in such circumstances, that decision might possibly be regarded as a purely confirmatory measure (Case T-386/00 Gonçalves v Parliament [2002] ECR-SC I-A-13 and II-55, paragraph 39, and Joined Cases T-285/02 and T-395/02 Vega Rodriguez v Commission [2004] ECR-SC II-0000, paragraph 17). The legal remedy available regarding decisions of a selection board normally consists of a direct application to the Community Court. However, if the person concerned, instead of making an application direct to the Court, invokes the Staff Regulations and submits an administrative complaint to the appointing authority, the admissibility of the action brought subsequently will depend on his compliance with all the procedural requirements applicable to the prior complaint (Case T-215/97 Jouhki v Commission [1998] ECR-SC I-A-503 and II-1513, paragraph 22).

23 Paragraph VIII of the competition notice contains information concerning legal remedies, providing for a request for reconsideration, a complaint under Article 90(2) of the Staff Regulations and proceedings before the Court of First Instance.

24 On 6 August 2002, the applicant submitted a request for reconsideration of the selection board-�s decision, as notified to him on 5 August 2002, to exclude him from the list of successful candidates. By letter of 17 September 2002, that request was rejected. The applicant then, on 15 December 2002, lodged a complaint against that letter under Article 90 of the Staff Regulations. The time-limit of three months laid down in Article 90(2) of the Staff Regulations was accordingly complied with.

25 The complaint was rejected, by express decision, on 20 May 2003. That decision was notified to the applicant on 26 May 2003. The applicant brought proceedings for annulment on 25 August 2003. The period of three months prescribed in Article 91(3) of the Staff Regulations was thus also complied with.

26 Accordingly, the Commission-�s plea of inadmissibility based on lateness of the application must be rejected.

The plea of inadmissibility based on lack of any interest in bringing proceedings

Arguments of the parties

27 The Commission contends that, even if the decision excluding the applicant from the list of successful candidates were to be annulled, his personal situation would not be in any way affected because his results, although higher than the average required for a pass, were not such as to place him among the 80 best candidates who were included on the list of successful candidates in accordance with paragraph VII of the competition notice. Therefore, he has no interest in bringing proceedings.

28 The applicant replies that annulment of the decision not to include him on the list of successful candidates would affect his personal situation. His interest in securing annulment of the decision should be assessed in relation not just to the marks awarded to him but also to the lack of a statement of reasons by which that decision is vitiated. According to the applicant, it is the lack of a statement of reasons that is the issue in these proceedings and not the marks themselves. He states that the lack of a statement of reasons for a decision must be examined by the Court of First Instance on its merits.

Findings of the Court

29 The obligation to state reasons referred to in Article 253 EC and Article 25 of the Staff Regulations is intended to apply in general to all decisions adversely affecting candidates adopted by selection boards in competitions and by the appointing authority in connection with competition procedures. The purpose of that obligation is, in particular, to provide the person concerned with sufficient details to ascertain whether or not the administration-�s decision is well founded and whether it is appropriate to bring proceedings before the Court of First Instance (see, to that effect Case T-372/00 Campolargo v Commission [2002] ECR-SC I-A-49 and II-223, paragraph 49).

30 If a decision adversely affecting the applicant does not state the reasons on which it is based or does not do so sufficiently, the applicant has, in principle, an interest in bringing proceedings, particularly against decisions adopted by Community institutions in the exercise of a discretionary power.

31 It follows that the applicant has shown that he has an interest in bringing proceedings in this case and that the action should be declared admissible.

Substance

32 The applicant puts forward two pleas in law. The first alleges breach of the obligation to state reasons. The second alleges breach of the principle of non-discrimination on grounds of nationality.

The first plea: breach of the obligation to state reasons

Arguments of the parties

33 The applicant alleges infringement of Article 253 EC and Article 25 of the Staff Regulations. He criticises the decision of 20 May 2003 rejecting his complaint in so far as it merely draws attention to the broad discretion enjoyed by selection boards when evaluating the performance of candidates and refers to settled case-law concerning the conduct of competitions, according to which the procedure followed can be investigated only to the extent necessary to ensure equal treatment for candidates and objectivity in the selection of successful candidates. He also criticises, first, the statement of reasons given by the appointing authority in that decision, referring to Article 6 of Annex III to the Staff Regulations, and, second, the interpretation of that article adopted in the case-law of the Court of Justice in Case C-254/95 P Parliament v Innamorati [1996] ECR I-3423, paragraphs 23 to 31. That case-law, in his view, negates the obligation to state reasons in the context of recruitment procedures and, consequently, does not meet the requirements imposed by the obligation to state the reasons for legal measures. The selection board-�s evaluation is final and a candidate who has failed has in reality no opportunity of contesting it. In that context, the applicant refers to the Draft recommendation of the European Ombudsman to the European Commission in the own initiative inquiry 1004/97/PD of 8 March 1999 (p. 6, point 4.2).

34 The applicant maintains that circumstances have evolved as compared with the situation that gave rise to the judgment in Parliament v Innamorati. He suggests that the Court of First Instance should depart from the case-law of the Court of Justice laid down in that judgment and should return to its initial position (Case T-289/94 Innamorati v Parliament [1995] ECR-SC I-A-123 and II-393, paragraphs 28 to 32).

35 According to the applicant, the fact that the selection board is under no obligation to give reasons for its decision concerning the merits of candidates means that there is almost no review by the Court of matters of substance. That opens the way to arbitrary decisions by the selection board and therefore allows candidates to be excluded for irrelevant reasons. Moreover, that runs counter to the candidate-�s fundamental interest in being informed of any errors he may have made. To enable the applicant better to prepare himself for future competitions, it is necessary for the selection board to give reasons for its decision by reference to the evaluation criteria laid down in the competition notice.

36 The Commission replies that the applicant did not achieve the minimum required for inclusion on the list. It refers to the settled case-law of the Community judicature (Parliament v Innamorati, paragraphs 23 to 31; Case T-157/96 Affatato v Commission [1998] ECR-SC I-A-41 and II-97, paragraphs 33 to 35, and Case T-118/99 Brighina v Commission [2001] ECR-SC I-A-25 and II-97, paragraph 48) and contends that the communication of marks to the candidate constitutes a sufficient statement of reasons. The selection board cannot be compelled, when stating the reasons for its decision not to include a candidate on a list of successful candidates on completion of a competition, to give details of those of the candidate-�s answers that were considered inadequate or to explain why those answers were considered inadequate.

37 At the hearing, the Commission added that Opinions of the European Ombudsman cannot be taken into account in connection with proceedings concerning the legality of competitions based on tests.

Findings of the Court

38 It is clear from Article 253 EC and from the second paragraph of Article 25 of the Staff Regulations that every individual decision adopted in implementation of the Staff Regulations which adversely affects a candidate must state the reasons on which it is based. According to settled case-law, the obligation to state reasons is an essential principle of Community law whose purpose is, first, to enable the Court to exercise its review of the legality of the decision and, second, to provide the person concerned with the details needed to ascertain whether or not the decision is well founded (Case T-583/93 P v Commission [1995] ECR-SC I-A-137 and II-433, paragraph 26, and Case T-291/94 Pimley-Smith v Commission [1995] ECR-SC I-A-209 and II-637, paragraph 60).

39 It is settled case-law that the obligation to state reasons must without fail be reconciled with observance of the secrecy which applies to the proceedings of selection boards by virtue of Article 6 of Annex III to the Staff Regulations. Observance of such secrecy precludes disclosure of the attitudes adopted by individual members of selection boards and disclosure of any details relating to personal or comparative assessments of the candidates. When the suitability of candidates is considered, the proceedings of the selection board are above all of a comparative nature and, accordingly, are covered by the secrecy surrounding such proceedings. Consequently, communication of the marks obtained in the various tests constitutes a sufficient statement of reasons for decisions of selection boards (Parliament v Innamorati, paragraph 23, and Case T-53/00 Angioli v Commission [2003] ECR-SC I-A-13 and II-73, paragraphs 67 to 69) and enables the Court of First Instance to carry out a judicial review appropriate to disputes of that kind (Joined Cases T-167/99 and T-'174/99 Giulietti and Others v Commission [2001] ECR-SC I-A-93 and II-441, paragraph 81).

40 In this case, it is not contested that, by letter of 30 July 2002, the selection board informed the applicant of the marks he had obtained. However, the applicant considers that such disclosure does not meet the requirements imposed by Article 253 EC and submits that the selection board was required to set out the reasons for which he obtained insufficient marks in the oral test. Mere communication of the marks obtained is not in his view sufficient in that connection.

41 A decision by which a selection board records a candidate-�s failure to pass a test is the expression of a value judgment regarding the candidate-�s performance in the test. The selection board enjoys a broad discretion in evaluating competition test results and the well-foundedness of its value judgments can be reviewed by the Community judicature only in clear cases of infringement of the rules governing its proceedings (Case 195/80 Michel v Parliament [1981] ECR 2861, paragraphs 24 and 25; Case T-115/89 González Hoguera v Parliament [1990] ECR II-831, and Case T-55/91 Fascilla v Parliament [1992] ECR II-1757), manifest error or misuse of powers, or if it has manifestly exceeded the bounds of its discretion (Case 30/86 Kolivas v Commission [1987] ECR 2643, paragraph 11).

42 Therefore, a selection board cannot be required, in giving reasons for a candidate-�s failure in 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 Court to exercise its power of review and, consequently, to enable the candidate to determine whether or not it is appropriate to lodge a complaint or, if need be, to bring an action (Pimley-Smith v Commission, paragraph 64).

43 Furthermore, the applicant recognises that the principles concerning the giving of reasons for decisions of selection boards recording a candidate-�s failure in a test were laid down by the Court of Justice in Parliament v Innamorati. He also states, in paragraphs 26 and 27 of his application, that an attempt to relax those principles was rejected (Innamorati v Parliament, paragraphs 28 to 32, and Parliament v Innamorati, paragraphs 23 to 31). Finally, he accepts that the selection board communicated his marks to him in conformity with that case-law.

44 Contrary to the applicant-�s assertion, there is no reason for the Court of First Instance to depart from the case-law laid down in Parliament v Innamorati.

45 The argument that the applicant bases on the inquiry undertaken by the European Ombudsman is irrelevant. Under Article 195 EC, the Ombudsman is empowered only to investigate and give his views in cases of maladministration, which cannot include infringement of a legal provision or of a general principle amenable to review by the Community judicature (Joined Cases T-219/02 and T-337/02 Lutz Herrera v Commission [2004] ECR-SC II-0000, paragraph 101).

46 It follows that the first plea in law must be rejected as unfounded.

The second plea: breach of the principle of equal treatment and, in particular, of the principle of non-discrimination on grounds of nationality

Arguments of the parties

47 The applicant claims that he was discriminated against as compared with the German candidates. Statistics show imbalances as between Germany and the other Member States regarding the nationalities of candidates. The candidates who had a contract with the Commission were also given preferential treatment and the principle of non-discrimination on grounds of nationality was not observed. He refers to a number of questions put by Members of the European Parliament to the Commission, and to the answers given by the latter. In particular, he claims that it is clear from the written reply from the Commission of 11 February 2003 to the question asked on 22 October 2002 by Jens Peter Bonde, a Member of the European Parliament, that 75% of the candidates under contract to the Commission had succeeded in the competition at issue in the field of external relations. Of those candidates, 50% were German. The applicant infers from those statistics that there were excessive imbalances between candidates from Germany and those from the other Member States.

48 Referring to Article 27 of the Staff Regulations, which prohibits discrimination on grounds of nationality in recruitment and refers to recruitment on the broadest possible geographical basis, the applicant considers that the selection board is under an obligation to ensure strict observance of the principle of equal treatment in conducting competitions and that that principle was not observed in this case. In a competition based solely on the merits of candidates, the combined results of the tests passed would comply with the abovementioned provisions or, at least, would not display any excessive imbalance as between nationalities, if the number of candidates from each State were proportional.

49 At the hearing, the applicant argued, for the first time, that the members of the selection board were Germans and that they had favoured German candidates.

50 The Commission replies that the applicant has produced no evidence to support his argument. He merely notes the results and concludes that there was discrimination on the part of the selection board against French nationals in general, or against him in particular, and mistakenly considers that the result of the competition must reflect equality between candidates in terms of nationality. The Commission considers that to impose a share-out based on nationality by manipulating the results would be contrary to the aim of recruiting the best candidates and, consequently, would infringe Article 27 of the Staff Regulations.

Findings of the Court

51 By this plea, the applicant submits, in effect, that he was subjected to discriminatory treatment as compared with the German nationals who took part in the competition in question and that his nationality was the real reason for his failure in the oral test.

52 It must be pointed out that, in competitions based on tests, such as the competition at issue here, each candidate competes with all the others, including those of his own nationality, for a limited number of posts, as fixed in the competition notice. Under paragraph VII of the competition notice in this case, the list of successful candidates, representing the final result of the competition, was to be based solely on the marks obtained by the candidates in all the tests. In the case of candidates who chose the field of external relations, only those who obtained the 80 best marks for the tests as a whole were entered on that list.

53 Moreover, no presumption of discrimination against candidates of other nationalities can be inferred merely from the fact that they were outnumbered by successful candidates of a particular nationality, the aim of the competition in question being to draw up a list of successful candidates comprising the best 80 candidates. The only evidence which the applicant puts forward in support of his allegation of breach of the principle of non-discrimination comprises statistics for the competition at issue obtained by a Member of the European Parliament in response to a question put to the Commission (see paragraph 47 above). Those figures show that the German candidates had a better success rate in the competition than the candidates of other nationalities. It does not, however, follow that the German candidates received better treatment than the others. Other factors may explain that higher success rate, such as, for example, better preparation for the tests. Accordingly, there is no evidence to show that the list of successful candidates in the field of external relations in the competition in question was not drawn up in accordance with the criterion that the candidates who achieved the best marks should be selected.

54 In those circumstances, the plea alleging discrimination against the applicant as compared with the German candidates cannot be upheld.

55 It follows that the application must be dismissed as unfounded.

Costs

56 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party-�s pleadings. However, under Article 88 of those rules, in proceedings between the Communities and their servants, the institutions are to bear their own costs. Since the applicant has been unsuccessful, the parties should be ordered to bear their own costs, as requested by the Commission in its pleadings.

On those grounds,

THE COURT OF FIRST INSTANCE (First Chamber)

hereby:

1. Dismisses the application as unfounded;

2. Orders the parties to bear their own costs.

Cooke

Labucka

Trstenjak

Delivered in open court in Luxembourg on 31 May 2005.

H. Jung

J.D. Cooke

Registrar

President

* Language of the case: English.