JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

7 February 2002

Case T-193/00

Bernard Felix

v

Commission of the European Communities

‛Officials — Open competition — Oral test — Non-inclusion in the reserve list — Stability of the composition of the selection board — Knowledge of languages’

Full text in French   II-101

Application for:

annulment of the decision of the selection board in competition COM/A/12/98 awarding the applicant a lower mark than the minimum required for the oral test and excluding him from the reserve list.

Held:

The decision of the selection board in competition COM/A/12/98 is annulled in so far as it concerns the mark awarded to the applicant for the oral test. The Commission is order to pay the costs.

Summary

1. Officials — Competitions — Competition based on qualifications and tests — Test procedures and content — Discretion of the selection board — Judicial review — Limits

   (Staff Regulations, Annex III)

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

   (Staff Regulations, Annex III)

3. Officials — Competitions — Selection Board — Composition — Sufficient stability to ensure the consistent marking of candidates — Deputy chairman acting as chairman of the selection board — Conditions

   (Staff Regulations, Annex III, Art. 3)

4. Officials — Competitions — Duty of the Community institutions to all candidates to ensure that tests are conducted in an impartial and regular manner — Breach — Effect on the legality of the tests — Conditions — Burden of proof

5. Officials — Competitions — Competition based on qualifications and tests — Content of the tests — Oral test — Knowledge of languages — Meaning

1.  The selection board enjoys wide discretion with regard to the procedure for and detailed content of the tests in a competition. The Community judicature may review the procedures for the conduct of a test only to the extent necessary to ensure that the candidates are treated equally and that the choice of candidates is objective. Similarly, 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. 35)

   See: 228/86 Goossens v Commission [1988] ECR 1819, para. 14; T-291/94 Pimley-Smith v Commission [1995] ECRSC I-A-209 and II-637, para. 26; T-153/95 Kaps v Court of Justice [1996] ECRSC I-A-233 and II-663, para. 37

2.  The assessments made by a selection board in a competition when evaluating the abilities of candidates and the decisions whereby it finds that a candidate has failed a test are the expression of a value judgment. They fall within the wide discretion enjoyed by the selection board and are subject to review by the Community judicature only where there is a flagrant breach of the rules governing the selection board's work.

   (see para. 36)

   See: T-102/98 Papadeas v Committee of the Regions [1999] ECRSC I-A-211 and II-1091. para. 54; T-95/98 Gogos v Commission [2000] ECRSC I-A-51 and II-219, para. 36

3.  In order to be able to ensure that the selection board's assessments of all the candidates examined in the oral tests are made under conditions of equality and objectivity, it is important that the marking criteria should be uniform and applied in a consistent manner to those candidates. That presupposes inter alia that, as far as possible, the composition of the selection board remains stable. In particular, the deputy chairman may not act as chairman unless the chairman has resigned or it appears that, as a result of events beyond the control of the administration, the chairman is unable to sit.

   (see para. 37)

   See: T-44/91 Smets v Commission [1994] ECRSC I-A-97 and II-319, para. 58; Gogos v Commission, cited above, para. 43

4.  Under the principles of sound administration and equal treatment, the Community institutions have a duty to all candidates in a competition to ensure that the tests are conducted in as impartial and regular a manner as possible. However, an irregularity which occurs during the course of the tests in a competition affects the legality of those tests only if it is of a substantive nature such as to distort the results of the tests. Where such an irregularity occurs, it is for the defendant institution to prove that it did not affect the results of the tests.

   (see para. 45)

   See: T-200/97 Jiménez v OHM [1999] ECRSC I-A-19 and II-73, para. 55; T-159/98 Torre and Others v Commission [2001] ECRSC I-A-83 and II-395, paras 46 and 47

5.  The term ‘knowledge of languages’ contained in the description of the oral test in the competition must be construed as including all the languages mentioned by the candidates in their applications and not as a reference only to the knowledge of languages required as conditions of admission to the competition.

   (see para. 55)