JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

10 November 2004

Case T-165/03

Eduard Vonier

v

Commission of the European Communities

(Officials – Competition – Non-inclusion on the reserve list – National seminar – Composition of the selection board – Oral test – Private life – Knowledge of languages)

Full text in German II - 0000

Application:         first, for annulment of the decision of 30 July 2002, by which the selection board in competition COM/A/6/01 decided not to include the applicant on the reserve list of administrators in the field of foreign relations, and, second, for damages in compensation for the loss and damage allegedly incurred.

Held:         The action is dismissed. The parties are ordered to bear their own costs.

Summary

1.     Officials – Competitions – Selection board – Composition – Replacement of chairman – Conditions – Failure to fulfil – Consequences

(Staff Regulations, Annex III, Art. 3)

2.     Officials – Competitions – Selection board – Composition – Sufficient stability to ensure the consistent marking of candidates – Absence – Breach of essential procedural requirements – Consequences

(Staff Regulations, Annex III, Art. 3)

3.      Officials – Competitions – Competition based on qualifications and tests – Content of the tests – Judicial review – Limits

4.              Community law – Principles – Fundamental rights – Respect for private and family life – Restrictions on the exercise of fundamental rights justified in the general interest

5.     Procedure – Application initiating proceedings – Procedural requirements – Subject-matter of the dispute to be indicated – Pleas in law relied upon to be briefly stated – Application claiming compensation for damage caused by a Community institution

(Statute of the Court of Justice, Art. 21, first para.; Rules of Procedure of the Court of First Instance, Art. 44(1)(c))

6.     Officials – Non-contractual liability of the institutions – Conditions – Unlawfulness – Damage – Causal link – Cumulative conditions

1.     The deputy chairman of a competition selection board may not act as chairman unless the chairman has resigned or it appears that, as a result of events beyond the control of the administration, the chairman is unable to sit.

However, save where it constitutes a breach of essential procedural rules, breach of that rule does not make the decisions adopted by a selection board unlawful if it does not lead to a breach of the principle of equal treatment of candidates, inter alia where the selection board of a competition involving a large number of candidates and covering two fields for the purpose of establishing two separate reserve lists is divided into two teams for the oral tests, the first interviewing the candidates in one field and the second those in the other.

(see paras 37-38, 40-41)

See: T-44/91 Smets v Commission [1994] ECR-SC I-A-97 and II-319, para. 58; T-193/00 Félix v Commission [2002] ECR-SC I-A-23 and II-101, para. 37

2.     In order to be able to ensure that the selection board’s assessments of the candidates examined in the oral tests are made under conditions of equality and objectivity, the composition of the selection board must remain stable so that the marking criteria are uniform and applied in a consistent manner.

In that regard, in view of the importance of the principle of equal treatment in recruitment procedures, a selection board’s failure to respect the requirement of stability of composition may be characterised as a breach of essential procedural requirements. Consequently, a decision vitiated by such a defect must be annulled without its being necessary for the person concerned to prove that there has been any particular adverse effect on his subjective rights or to show that the results of the competition might have been different if the essential procedural requirements in question had been complied with.

(see para. 39)

See: T-95/98 Gogos v Commission [2000] ECR-SC I-A-51 and II-219, para. 41; Félix v Commission, cited above, para. 37

3.     The Court may not review the detailed content of a test in a competition unless such content goes beyond the limits laid down in the competition notice or is not consonant with the purposes of the test or competition.

(see para. 51)

See: T-195/02 Briganti v Commission [2004] ECR-SC I-A-1 and II-1, para. 50

4.     The right to respect for private and family life, which is embodied in Article 8 of the European Convention on Human Rights and in Article 7 of the Charter of Fundamental Rights of the European Union, forms an integral part of the general principles of law, the observance of which the Community judicature ensures. However, it does not constitute an unfettered prerogative and may be restricted, provided that the restrictions in fact correspond to objectives of general interest pursued by the Community and that they do not constitute, with regard to the objectives pursued, a disproportionate and intolerable interference which encroaches upon the very substance of the rights guaranteed.

(see para. 56)

See: C-404/92 P X v Commission [1994] ECR I-4737, para. 18; T-273/94 N v Commission [1997] ECR-SC I-A-97 and II-289, para. 73

5.     Under the first paragraph of Article 21 of the Statute of the Court of Justice and Article 44(1)(c) of the Rules of Procedure of the Court of First Instance, all applications are to indicate the subject-matter of the dispute and briefly state the pleas in law relied upon. This must be done with clarity and precision so that the defendant is able to prepare its defence and the Court can rule on the application, if necessary, without any further information. Accordingly, in order to guarantee legal certainty and sound administration of justice, it is necessary, for an action to be admissible, that the basic legal and factual particulars relied on be indicated, at least in summary form, coherently and intelligibly in the application itself.

To satisfy those requirements, an application seeking compensation for damage allegedly caused by a Community institution must state the evidence from which the conduct which the applicant alleges against the institution can be identified, the reasons for which the applicant considers that there is a causal link between the conduct and the damage it claims to have suffered, and the nature and extent of that damage.

(see paras 74-75)

See: T-157/96 Affatato v Commission [1998] ECR-SC I-A-41 and II-97, paras 44 and 45

6.     Since non-contractual liability on the part of the Community is subject to a number of conditions relating to the illegality of the conduct alleged against the Community institutions, actual damage and the existence of a causal link between the conduct of the institution and the damage complained of, if any one of those conditions is not satisfied, the entire action must be dismissed and it is unnecessary to consider the other conditions for such liability.

(see para. 78)

See: C-104/97 P Atlanta v European Community [1999] ECR I-6983, para. 65