JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber)

26 October 2004

Case T-207/02

Nicoletta Falcone

v

Commission of the European Communities

(Officials – Open competition – Non-admission to the written tests as a result of the marks obtained in the preselection tests – Alleged unlawfulness of the notice of competition)

Full text in Italian II - 0000

Application:         for annulment of the decision of 2 May 2002 of the selection board in competition COM/A/10/01 to exclude the applicant from the written tests on the ground that she did not obtain sufficient marks to be included among the 400 best candidates.

Held:         The application is dismissed. The parties are ordered to bear their own costs, including those relating to the application for interim measures.

Summary

1.     Officials – Actions – Action against a decision by a competition selection board to refuse admission – Whether unlawfulness of the competition notice may be relied upon to challenge refusal to admit the official to the competition – Conditions

(Staff Regulations, Art. 91)

2.     Officials – Competition – Competition based on qualifications and tests – Conditions for admission and arrangements – Discretion of the appointing authority – Arrangements for and content of the tests – Discretion of the selection board – Limits

(Staff Regulations, Annex III)

3.     Officials – Competition – Organisation – Discretion of the appointing authority – Competition with many entrants – Recourse to preselection tests – Fixing of a quota for successful candidates in preselection tests regardless of whether the candidates thus selected were actually admitted to the tests, after verifying that the conditions for admission to the competition were met by them – Whether permissible

(Staff Regulations, Annex III, Arts 4 and 5)

1.     Candidates in a competition may only bring an action against certain provisions of the competition notice when those provisions adversely affect them. Moreover, those candidates may, in any event, plead the unlawfulness of the competition notice in support of an action against an individual decision not to admit them taken by the competition selection board provided that they establish that there is a direct link between the alleged unlawfulness of the competition notice and the decision not to admit them. That possibility is not open to them only when the existence of such a link is not established.

(see paras 21-22)

See: 79/74 Küster v Parliament [1975] ECR 725, paras 5 to 8; 294/84 Adams v Commission [1986] ECR 977, para. 17; 64/86, 71/86 to 73/86 and 78/86 Sergio and Others v Commission [1988] ECR 1399, para. 15; 164/87 Simonella v Commission [1988] ECR 3807, para. 19; Opinion of Advocate General Léger in C-448/93 P Commission v Noonan [1995] ECR I-2323, point 22; T-132/89 Gallone v Council [1990] ECR II-549, para. 20; T-60/92 Noonan v Commission [1993] ECR II-911, paras 21 to 29, upheld on appeal in Commission v Noonan, cited above, paras 17 to 19; T-225/95 Chiou v Commission [1997] ECR-SC I‑A‑423 and II-1135, para. 62

2.     The basic function of a competition notice is to give those interested the most accurate information possible on the conditions of eligibility for the post to be filled, in order to enable them to determine whether they should apply for it. The institutions have a wide discretion in deciding upon the criteria and in determining, in the light of those criteria and in the interests of the service, the conditions for admission to the tests of the competition and the arrangements for organisation of the competition. The selection board, which has considerable discretion as regards the arrangements for and the detailed content of the tests provided for within the framework of a competition, is none the less bound by the wording of that notice.

(see para. 31)

See: T-132/89 Gallone v Council [1990] ECR II-549, para. 27; T-216/95 Moles García Ortúzar v Commission [1997] ECR-SC I-A-403 and II-1083, paras 44 and 45

3.     The appointing authority enjoys a wide discretion in deciding upon the rules and conditions under which a competition is organised. It is for the Court to censure its choice only if the limits of that discretion have not been observed.

In the exercise of that discretion the appointing authority may, when it organises an open competition, provide in the competition notice for an initial phase of preselection by the selection board so as to retain only those candidates who, in the appropriate field, possess the qualifications required for admission to the competition, in order to meet the requirements of rational organisation of the competition, in accordance with the principle of sound administration. In that connection, a procedure consisting, in particular in competition procedures involving a large number of candidates, in ascertaining only after the preselection tests whether candidates meet the specific conditions for admission to the competition, is consistent with Articles 4 and 5 of Annex III to the Staff Regulations and the institution’s interest in ensuring that only candidates meeting those conditions take part in the tests of the competition, and with the principle of sound administration.

Thus, the appointing authority does not exceed the limits of its discretion where it finds it appropriate, in order to establish a reserve list of 150 successful candidates of the highest standard of ability, efficiency and integrity, in accordance with Article 27 of the Staff Regulations, to lay down, for admission to the tests of the competition, a twofold condition of inclusion amongst the 400 candidates who have obtained the best results in the preselection tests and fulfilment of all the conditions for admission to the competition and not the condition of inclusion amongst the 400 candidates meeting those conditions and obtaining the best results in the preselection tests.

(see paras 38-40, 44, 46)

See: T-167/99 and T-174/99 Giuliettiand Others v Commission [2001] ECR-SC I-A-93 and II-441, para. 77; T-332/01 Pujals Gomis v Commission [2002] ECR‑SC I-A-233 and II-1155, paras 84 to 86