JUDGMENT OF THE COURT OF FIRST INSTANCE (Single Judge)

20 January 2004

Case T-195/02

Anselmo Briganti

v

Commission of the European Communities

(Officials – Open competition – Action for annulment – Pre-selection procedure – Conduct of the tests – Retroactive annulment of a number of multiple-choice questions – Principle of equal treatment – Principle of legitimate expectations)

Full text in Italian II – 0000

Application:         principally, for annulment of the decision of the selection board in open competition COM/A/11/01 not to admit the applicant to the tests subsequent to the pre-selection tests.

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

Summary

1.     Officials – Competitions – Competition based on qualifications and tests – Content of the tests – Irregularities or errors occurring during the conduct of an open competition – Discretion of the selection board – Judicial review – Limits

2.     Community law – Principles – Equal treatment – Meaning

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

4.     Officials – Legal nature of the relationship between a candidate and the institution organising an open competition

5.     Officials – Principles – Protection of legitimate expectations – Conditions

1.     In accordance with the conditions and requirements stated in the competition notice, selection boards are accorded a wide discretion regarding the arrangements for the conduct of a competition and the detailed content of the tests. The Community judicature may therefore review the procedures for the tests only in so far as is necessary to ensure equal treatment of the candidates and objectivity in the choice made between them. That wide discretion must, subject to the same limits, be afforded to the selection board in a competition where it is confronted with irregularities or errors which have occurred in the course of an open competition involving a large number of candidates and which cannot, under the principles of proportionality and sound administration, be rectified by a repetition of the tests in the competition.

(see para. 31)

See: T-153/95 Kaps v Court of Justice [1996] ECR-SC I-A-233 and II-663, para. 37; T-167/99 and T-174/99 Giulietti and Others v Commission [2001] ECR-SC I‑A-93 and II-441, upheld by C-263/01 P Giulietti v Commission, not published in the ECR

2.     There is a breach of the principle of equal treatment where two classes of persons whose factual and legal situations are not essentially different are treated differently or where different situations are treated in an identical manner.

(see para. 41)

See: T-173/99 Elkaïm and Mazuel v Commission [2000] ECR-SC I-A-101 and II-433, para. 64; T-100/92 La Pietra v Commission [1994] ECR-SC I-A-83 and II-275, para. 50

3.     The Community judicature may not review the detailed content of a test 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. 50)

See: 228/86 Goossens and Others v Commission [1988] ECR 1819, para. 14; Kaps v Court of Justice, para. 37

4.     There is no contract between a candidate and the selection board in a competition. The legal ties between officials, including candidates for the Community civil service, and the institution in question are governed by the Staff Regulations and are not of a contractual nature.

(see para. 60)

See: T-74/98 Mammarella v Commission [1999] ECR-SC I-A-151 and II-797, para. 25

5.     The right to claim protection of legitimate expectations extends to any individual who is in a situation in which it appears that the Community administration has, by giving him precise assurances, led him to entertain reasonable expectations.

(see para. 63)

See: T-207/95 Ibarra Gil v Commission [1997] ECR-SC I-A-13 and II-31, para. 25