JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

20 May 2003

Case T-80/01

Barbara Diehl-Leistner

v

Commission of the European Communities

‛Officials — Open competitions — Oral test — Exclusion from the list of successful candidates — Knowledge of languages of the members of the selection board — Equal treatment’

Full text in German   II-709

Application for:

annulment of the decision of 17 April 2000 of the selection board for open competition COM/A/12/98 not to include the applicant on the list of successful candidates in that competition.

Held:

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

Summary

1. Officials — Competitions — Selection board — Composition — Qualification of members to assess oral tests objectively — Grade A open competition — Requirements concerning knowledge of languages — Need for the selection board to include a member with the same main language as the candidates — None — Breach of the principle of equal treatment — None

   (Staff Regulations, Annex III, Art. 3)

2. Procedure — Introduction of new pleas in law in the course of proceedings — Conditions — New matter — Concept

   (Rules of Procedure of the Court of First Instance, Art. 48(2))

3. Officials — Competitions — Selection board — Composition — Status as official optional

   (Staff Regulations, Annex III, Art. 3)

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

   (Staff Regulations, Annex III)

1.  In order to be properly constituted for the purposes of the Staff Regulations and Article 3 of Annex III thereto, a selection board must be composed in such a way as to ensure an objective assessment of candidates' performance in the tests. The requirements which the abilities of the members of the selection board must satisfy vary, however, according to the circumstances of each particular competition. It follows that the requirements regarding the linguistic knowledge of the members of a selection board vary according to the importance which a perfect command of a language has for the post to be filled.

   In the case of a Grade A open competition to recruit Grade A7/A6 administrators in the field of European public administration, where the aim of the oral test is not to examine a candidate's linguistic knowledge in his main language, but his ability to communicate in that language in a multicultural environment, the selection board need not necessarily, for that test, include a member or examiner with the same main language as the candidates, since any problems of comprehension can easily be resolved by recourse to interpreters.

   The mere fact that, because the candidates in a competition were of a number of different nationalities, other candidates appeared before a selection board which included a member with the same main language as their own is entirely fortuitous and does not reflect any desire to give an advantage to those candidates. It follows that that fact does not constitute a breach of the principle of equal treatment. If a selection board had to include a member or examiner with the same main language as the candidates for an oral test as part of a Grade A open competition, it would risk compromising the stability of the composition of the selection board, the consistent application of the assessment criteria for all the candidates concerned, and even the principle of equal treatment for candidates.

   (see paras 28-31, 33-35)

   See: T-32/89and T-39/89 Marcopoulos v Court of Justice [1990] ECR II-281, para 37; T-156/89 Valverde Moult v Court of Justice [1991] ECR II-407, paras 105 and 106; T-113/01 Sabbag v Commission, not published in the ECR, paras 41 to 43

2.  In accordance with Article 48(2) of the Rules of Procedure of the Court of First Instance, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or fact which come to light in the course of the procedure. A judgment of the Community judicature which merely confirms the law which was in principle known to the applicant when it brought its action cannot be regarded as a new matter allowing a fresh plea to be raised.

   (see paras 37-38)

   See: 11/81 Dürbeck v Commission [1982] ECR 1251, para. 17; T-106/95 FFSA and Others v Commission [1997] ECR II-229, para. 57

3.  The fact that one of the members of a selection board is a retired official is not such as to render the composition of the selection board irregular. Article 3 of Annex III to the Staff Regulations does not require that the members of a selection board must necessarily be officials in active service.

   (see para. 44)

   See: 90/74 Deboeck v Commission [1975] ECR 1123, para. 35; 64/86, 71/86 to 73/86 and 78/86 Sergio and Others v Commission [1988] ECR 1399, para. 17

4.  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 selection boards have been infringed.

   (see para. 63)

   See: T-17/90, T-28/91 and T-17/92 Cámara Alloisio and Others v Commission [1993] ECR II-841, para. 90; T-225/95 Chiou v Commission [1997] ECRSC I-A-423 and II-1135, para. 93