JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(First Chamber)

6 October 2015

FE

v

European Commission

‛Civil service — Recruitment — Open competition — Inclusion on the reserve list — Decision of the appointing authority not to recruit a successful candidate — Respective competences of the selection board and the appointing authority — Conditions of admission to the competition — Minimum duration of professional experience — Rules for calculation — Manifest error of assessment by the selection board — None — Loss of a chance of recruitment — Compensation’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, by which FE seeks annulment of the decision of the appointing authority of the European Commission, of 17 December 2013, refusing to recruit her to the Directorate-General (DG) Justice from the reserve list for competition EPSO/AD/42/05, together with compensation for material and non-material damage claimed to have been suffered as a result of that decision.

Held:

The decision of 17 December 2013 by which the European Commission refused to recruit FE is annulled. The European Commission is ordered to pay FE the sum of EUR 10,000. The action is dismissed as to the remainder. The European Commission shall bear its own costs and is ordered to pay the costs incurred by FE.

Summary

1. Officials — Recruitment — Competitions — Selection Board — Independence — Limits — Adoption of unlawful decisions — Obligations of the appointing authority

   (Staff Regulations, Art. 30 and Annex III)

2. Officials — Competitions — Organisation and conduct of competition tests — Division of competences between the appointing authority and the selection board — Fixing by the competition notice

   (Staff Regulations, Annex III)

3. Officials — Competitions — Conditions for eligibility — Fixing by the competition notice — Minimum duration of professional experience — Competition notice not containing any express indication of the method for calculating that duration — Assessment by the selection board — Review of lawfulness by the appointing authority — Substitution of another method of calculation — Unlawful

   (Staff Regulations, Art. 5(3))

4. Actions brought by officials — Actions for damages — Annulment of the contested measure not ensuring adequate compensation for material damage — Loss of a chance of recruitment — Criteria

   (Art. 340 TFEU; Staff Regulations, Art. 91(1))

1.  In the area of recruitment of staff of the European institutions by means of open competitions, by reason of the principle of the independence of competition selection boards, the appointing authority does not have the power to annul or amend a decision taken by such a board within its sphere of competence, as defined, in particular, by Article 30 of the Staff Regulations and Article 5 of Annex III to those regulations.

   However, since the appointing authority is required to take decisions free of irregularities, it cannot be bound by the decision of a selection board the illegality of which decision is liable to vitiate its own decisions. It is for that reason that the appointing authority is obliged to verify, before appointing an official, that the candidate satisfies the conditions laid down by the Staff Regulations (in default of which the recruitment decision is invalid) in order for the recruitment of that official into the service of the European Union to be regular.

   Where, for example, it is evident that the selection board’s decision to allow a candidate to take the competition tests is unlawful, because it is vitiated by a manifest error, the appointing authority to which the selection board has sent the reserve list on which the candidate’s name appears (the candidate having passed the tests in the meantime) must thus refuse to appoint that successful candidate.

   (see paras 39, 40)

   See:

   Judgments of 23 October 1986 in Schwiering v Court of Auditors, 142/85, EU:C:1986:405, paragraphs 19 and 20, and 20 February 1992 in Parliament v Hanning, C‑345/90 P, EU:C:1992:79, paragraph 22

   Judgment of 23 October 2012 in Eklund v Commission, F‑57/11, EU:F:2012:145, paragraph 49, and order of 10 July 2014 in Mészáros v Commission, F‑22/13, EU:F:2014:189, paragraph 48

2.  The competition notice constitutes the legal framework for any selection procedure to fill a post within the EU institutions, in that, subject to the relevant higher-ranking provisions of the Staff Regulations, including Annex III to those regulations, it governs the division of competences between the appointing authority and the selection board with regard to the organisation and conduct of the competition tests, as well as laying down the conditions relating to the participation of candidates, in particular their profile and their specific rights and obligations.

   Accordingly, the competition notice would be deprived of its purpose if the appointing authority were able to exclude a successful candidate from the reserve list on the basis of eligibility conditions or arrangements which were not stated in that notice or in the Staff Regulations, or in any case, which had not been published, prior to the adoption of the competition notice, in such a way as to be accessible or necessarily known to both the selection board and the candidates concerned.

   The competition notice left it to the jury alone to draw up, in the performance of its functions and in the exercise of its broad discretion, the list of applicants who were admitted to the competition tests.

   (see paras 42, 43, 48)

   See:

   Judgments of 14 April 2011 in Šimonis v Commission, F‑113/07, EU:F:2011:44, paragraph 74, and 15 October 2014 in Moschonaki v Commission, F‑55/10 RENV, EU:F:2014:235, paragraph 42

3.  As regards the method for calculating the minimum duration of professional experience, the selection board, which is not bound by any specific provision in the competition notice as to the calculation of the minimum duration of professional experience required for admission to the competition, may reasonably consider, on the basis of its broad discretion in the area, that it is not appropriate to follow the specific method of calculation of any particular institution.

   Consequently, the fact that the competition selection board did not adopt the method of calculation that is used by the institution concerned, in order to calculate the minimum duration to be ascribed to a period of professional experience which is to be credited on the basis of full-time work experience, does not automatically mean that the selection board has erred in assessing the condition requiring the applicant to demonstrate a minimum duration of professional experience in order to be admitted to the competition tests.

   In this connection, where, in relation to the prior professional experience required, a competition notice requires, as a specific condition of eligibility for the tests, at least two years of professional experience, the appointing authority cannot, when it is on the point of recruiting a successful candidate selected as such by the selection board, remove that successful candidate from the reserve list in reliance on methods of assessment and calculation of the requisite professional experience which the appointing authority itself did not set out in the competition notice, or which do not appear in a measure which is binding on the members of the selection board and on any candidate in the competition.

   The principle of legal certainty, which is one of the governing principles of any competition procedure, would otherwise be irremediably undermined. In addition to infringement of the principle of legal certainty there would also be infringement of the principle of equal treatment.

   (see paras 57, 61-64)

4.  The administration can be held liable for damages only if a number of conditions are satisfied: the illegality of the allegedly wrongful act committed by the institutions, actual harm suffered, and the existence of a causal link between the act and the damage alleged to have been suffered.

   The fact that the applicant has definitively lost the chance to be employed as an administrator in grade AD 7 gives rise to a right, provided that the other legal conditions are met, to compensation. However, the material damage in respect of which the applicant is entitled to compensation does not relate to lost benefits, but to the loss of a chance of being employed as an official in the post to which the recruitment procedure in question related.

   Accordingly, in the exercise of the Civil Service Tribunal’s power to assess damages on an equitable basis, the material damage suffered by the applicant can be fairly and fully compensated having regard amongst other things to the monthly salary attaching to the post to be filled, the real nature of the lost chance, the earliest possible date for recruitment and the applicant’s employment situation during the reference period.

   (see paras 120, 123, 129, 130)

   See:

   Judgments of 1 June 1994 in Commission v Brazzelli Lualdi and Others, C‑136/92 P, EU:C:1994:211, paragraph 42, and 21 February 2008 in Commission v Girardot, C‑348/06 P, EU:C:2008:107, paragraph 52

   Judgment of 13 September 2011 in AA v Commission, F‑101/09, EU:F:2011:133, paragraphs 79 to 82