JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

25 June 2003

Case T-72/01

Norman Pyres

v

Commission of the European Communities

‛Officials — Internal competition — Exclusion from the oral test’

Full text in French   II-861

Application for:

annulment of the decision of the selection board in competition COM/TA/99 excluding the applicant from the oral test in the competition and of all subsequent operations and acts in the competition and, additionally, a claim for damages for the loss allegedly suffered by the applicant.

Held:

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

Summary

1. Officials — Competitions — Assessment of the merits of candidates — Discretion of the selection board — Judicial review — Limits

   (Staff Regulations, Annex III)

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

   (Staff Regulations, Annex III, Art. 6)

3. Officials — Competitions — Selection board — Observance of the secrecy of the board's proceedings — Scope — Marking criteria — Included — Disclosure nevertheless conceivable either by virtue of a practice adopted by the institution in question, or by virtue of measures adopted to ensure public access to documents

   (Art. 255(1) EC; Staff Regulations, Art. 25; Annex III, Art. 6)

4. Officials — Duty of the administration to have regard for the welfare of officials — Scope — Observance by the selection boards for competitions — Principle of sound administration

   (Staff Regulations, Art. 28; Annex III)

1.  The selection board of a competition enjoys a wide discretion, and the Community judicature has no jurisdiction to review its value judgments unless the rules which govern the proceedings of that selection board have manifestly been infringed. It follows that where, in an application for annulment of the decision of a selection board declaring that the applicant has failed the eliminatory tests, the applicant does not allege an infringement of those rules or does not provide proof of such an infringement, the Court has no jurisdiction to review the validity of the selection board's appraisal.

   (see para. 30)

   See: T-17/90, T-28/91 and T-17/92 Camara Alloisio and Others v Commission [1993] ECR II-841, para 90; T-6/93 Pérez Jiménez v Commission [1994] ECRSC I-A-155 and II-497, para 42; T-46/93 Michaël-Chiou v Commission [1994] ECRSC I-A-297 and II-929. paras 48 and 49

2.  The secrecy surrounding the proceedings of selection boards in competitions was introduced by Article 6 of Annex III to the Staff Regulations with a view to guaranteeing the independence of selection boards and the objectivity of their proceedings, by protecting them from all external interference and pressures, whether these come from the Community administration itself or the candidates concerned or third parties. Observance of this secrecy therefore precludes both disclosure of the attitudes adopted by individual members of selection boards and disclosure of any factors relating to individual or comparative assessments of candidates. That being so, the obligation to state the reasons for decisions of a selection board must take account of the nature of the proceedings concerned.

   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, unlike the first, is 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. Having regard to the secrecy which must surround the proceedings of a selection board, therefore, 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.

   (see paras 63-66)

   See: C-254/95 Parliament v Innamorati [1996] ECR I-3423, paras 24, 25, 30 and 31; 44/71 Marcato v Commission [1972] ECR 427, para. 20; 37/72 Marcato v Commission [1973] ECR 361, para.. 19; 31/75 Costacurta v Commission [1973] ECR 1563, para. 28; T-157/96 Affatato v Commission [1998] ECRSC I-A-41 and II-97, paras 33 to 35

3.  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, and are therefore covered by the secrecy of the proceedings in the same way as the selection board's assessments. This conclusion does not mean that candidates in a competition cannot, upon request, obtain details of the general criteria used to mark the tests together with their marked scripts, where appropriate, in accordance with a practice intended to allow access to such documents which the institution organising the competition has adopted in order to reconcile the need for transparency in recruitment procedures with the secrecy of the proceedings of selection boards required under Article 6 of Annex III to the Staff Regulations.

   Likewise, it is conceivable that, where the disclosure of such documents is compatible with observance of the secrecy of the proceedings of selection boards and with the compelling requirements of public policy which underlie the need for secrecy, the Community institutions may be under an obligation to do so not pursuant to Article 25 of the Staff Regulations and their duty to state reasons, but in accordance with the measures taken to put into effect the public's right of access to documents under Article 255(1) EC.

   (see paras 69-71)

   See: Parliament v Innamorati, cited above, para. 29

4.  Although it is not mentioned in the Staff Regulations, the administration's duty to have regard to the welfare of officials, which is also incumbent on the selection board for a competition, reflects the balance of reciprocal rights and obligations established by the Staff Regulations in the relationship between the official authority and the civil servants. That duty and the principle of sound administration mean, in particular, that when the competent authority takes a decision concerning the situation of an official it should take into consideration all the factors which may affect its decision and that when doing so it should take into account not only the interests of the service but also those of the official concerned.

   A member of staff may not, however, rely on that to claim that he should have been admitted to the oral test in an internal competition even though he failed the written tests, or that he should have been retained in the service of the institution, contrary to Article 28 of the Staff Regulations.

   (see paras 77, 79-80)

   See: 321 /85 Schwier ing v Court of Auditors [1986] ECR 3199, para. 18; C-298/93 Klinke v Court of Justice [1994] ECR I-3009, para 38; T-133/89 Burban v Parliament [1990] ECR II-245. para 27; T-14/91 Weyricli v Commission [1991] ECR II-235, para 50; T-100/92 La Pietra v Commission [1994] ECRSC l-A-83 and II-275, para. 58; T-102/98 Papadeas v Committee oj the Regions [1999] ECRSC I-A-211 and II-1091, para. 56