JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

17 September 2003

Case T-233/02

Charis Aleandratos and Maria Panagiotou

v

Council of the European Union

‛Officials — Action for annulment — Open competition — Decision of the selection board refusing admission to the oral tests — Scope of the obligation to state reasons — Scope of judicial review — Compliance with the rules governing the deliberations of the selection board’

Full text in Greek   II-989

Application for:

annulment of the decision of the selection board in the Council's open competition A/393 (2000/C98 A/02) refusing to admit the applicants to the oral tests for that competition.

Held:

The action is dismissed. Each party is to bear its own costs.

Summary

1. Officials — Competitions — Selection board — Rejection of candidature — Obligation to state reasons — Scope — Observance of the secrecy of the board's proceedings

   (Staff Regulations, Art. 25; Annex III, Art. 6)

2. Officials — Competitions — Selection board — Observance of the secrecy of the board's proceedings — Scope — Criteria for marking — Included

   (Staff Regulations, Annex III, Art. 6)

3. Officials — Competitions — Assessment of candidates' abilities — Discretion of the selection board — Judicial review — Limits

   (Staff Regulations, Annex III)

4. Officials — Competitions — Arrangements for and content of the tests — Discretion of the selection board — Judicial review — Limits

   (Staff Regulations, Annex III)

1.  The requirement that a decision adversely affecting a person should state the reasons on which it is based is intended to provide the person concerned with sufficient details to allow him to ascertain whether or not the decision is well founded and make it possible for the decision to be the subject of judicial review.

   As far as concerns decisions taken by a selection board in a competition, the obligation to state reasons must be reconciled with observance of the secrecy surrounding the proceedings of selection boards by virtue of Article 6 of Annex III to the Staff Regulations.

   The task of a selection board involves as a rule at least two separate stages, the first being an examination of the applications in order to select the candidates admitted to the competition and the second being an examination of the abilities of the candidates for the posts to be filled in order to draw up a list of suitable candidates. The second stage of the selection board's proceedings involves tasks that are primarily comparative in character and is accordingly covered by the secrecy inherent in those proceedings. The comparative assessments made by the selection board are reflected in the marks it allocates to the candidates, which are the expression of the value judgments made concerning each of them. Therefore, having regard to the secrecy which must surround the proceedings of a selection board, communication of the marks obtained by each candidate in the various tests constitutes an adequate statement of the reasons on which the board's decisions are based. Such a statement of reasons is not prejudicial to the candidates' rights, inasmuch as it enables them to know the value set on their performance and to ascertain, if such is the case, that they have not in fact obtained the number of marks required by the notice of competition in order to be admitted to certain tests or to all the tests.

   (see paras 24-27)

   See: 44/71 Marcato v Commission [1972] ECR 427, paras 19 and 20; 37/72 Marcato v Commission [1973] ECR 361, paras 18 and 19; 31/75 Costacurta v Commission [1975] ECR 1563, paras 10 and 11; 195/80 Michel v Parliament [1981] ECR 2861, para. 22; C-254/95 P Parliament v Innamorati [1996] ECR I-3423, paras 24, 26, 31 and 32; C-156/98 Germany v Commission [2000] ECR I-6857, para. 96; T-157/96 Affatato v Commission [1998] ECRSC I-A-41 and II-97, paras 34 and 35

2.  The criteria for marking adopted by the selection board prior to the tests form an integral part of the comparative assessments which it makes of the candidates' respective merits. Where the selection board decides not to admit candidates to the oral tests in a competition, compliance with the obligation to state reasons does not entail communicating to the candidates concerned the criteria used for marking or the marked scripts on which the selection board's assessments are noted, or supplying further information about the value judgments made by the selection board concerning each of them. The communication of the mark obtained by each candidate disputing his elimination constitutes an adequate statement of reasons for the selection board's decision not to admit him to the oral tests. This conclusion is not affected by the fact that unsuccessful candidates can, in some circumstances, obtain from the institution organising the competition in question their marked scripts and/or the general marking criteria used by the selection board, either by means of the disclosure of documents during court proceedings between that institution and the candidates concerned, or under a practice adopted by the institution in order to ensure transparency in recruitment procedures while at the same time observing the secrecy of the selection board's proceedings as required under Article 6 of Annex III to the Staff Regulations.

   (see paras 30-31)

   See: Parliament v Innamorati, cited above, para. 29; T-289/94 Innamorati v Parliament [1995] ECRSC I-A-123 and II-393

3.  A selection board's assessment of candidates' knowledge and ability is primarily of a comparative nature; such an assessment, which constitutes a value judgment on the candidate's performance in the test, falls within the wide margin of discretion accorded to the board and the Community judicature has no jurisdiction to review it unless the rules which govern the proceedings of the selection board have clearly been infringed. It follows that where, in an application for annulment of the decision of a selection board declaring that the applicant has failed a test, the applicant does not allege an infringement of those rules or has not proved any such infringement, the Court has no jurisdiction to review the selection board's assessment of the candidate's performance in that test.

   (see para. 50)

   See: T-17/90, T-28/91 and T-17/92 Cantara Alloisio and Others v Commission [1993] ECR II-841, para. 90; T-46/93 Michaël-Chou v Commission [1994] ECR-SC I-A-297 and II-929, para. 49; T-153/95 Kaps v Court of Justice [1996] ECRSC I-A-233 and II-663, para. 49; T-146/99 Teixeira Neves v Court of Justice [2000] ECRSC I-A-159 and II-731, para. 41; T-72/01 Pyres v Commission [2003] ECRSC I-A-169 and II-861, para. 39

4.  The selection board has considerable discretion as regards the arrangements for and the detailed content of the tests provided for within the framework of a competition. It is likewise not for the Court to substitute its own judgment for that of the selection board as regards the degree of difficulty of the tests. The Court may therefore not review the arrangements for the conduct of a test except to the extent necessary to ensure that the candidates were treated equally and that the choice made from among them by the selection board was objective.

   (see para. 55)

   See: Teixeira Neves v Court of Justice, cited above, para. 37; T-189/99 Gerochristos v Commission [2001] ECRSC I-A-11 and II-53. para. 25