JUDGMENT OF THE COURT OF FIRST INSTANCE (Single Judge)

25 March 2004

Case T-145/02

Armin Petrich

v

Commission of the European Communities

(Open competition – Non-admission to tests – Competition notice – Prescribed relevant experience – Obligation to state reasons – Principle of sound administration and duty to have regard for the interests of officials)

Full text in French II - 0000

Application:         for, first, annulment of the decision of 11 February 2002 of the selection board in competition COM/A/7/01 refusing to mark the applicant’s written test and rejecting his candidature, and of all subsequent steps and measures taken in that competition, and, second, compensation for the material and non-material damage allegedly suffered as a result of that decision.

Held:         The application is dismissed. The claim in the alternative that the applicant should be allowed to produce evidence showing that the functions of a ‘Sonderschulrektor’ fall within the scope of the relevant experience called for by the competition notice is dismissed. The parties are ordered to bear their own costs.

Summary

1.     Officials – Competitions – Competition based on qualifications and tests – Notice of competition – Purpose

(Staff Regulations, Annex III, Art. 1(1))

2.     Officials – Competitions – Competition based on qualifications and tests – Conditions of admission – Definition in notice of competition – Assessment by the selection board of the professional experience of the candidates – Judicial review – Limits

(Staff Regulations, Annex III, Art. 2)

3.     Officials – Competitions – Competition based on qualifications and tests – Conditions of admission – Production of supporting documents for the purpose of admission to the tests – Obligation on candidates as laid down in the notice of competition – Scope

(Staff Regulations, Annex III, Arts 2 and 5)

4.     Officials – Competitions – Selection board – Refusal of admission to tests – Obligation to state reasons – Scope

(Staff Regulations, Art. 25, second para.)

5.     Officials – Competitions – Competition based on qualifications and tests – Conditions of admission – Supporting documents – Request by selection board for additional information – Merely optional – No obligation to request submission of all documents required

(Staff Regulations, Annex III, Art. 2, second para.)

6.     Officials – Actions – Action for compensation – No illegal act committed by the administration – Dismissal

(Staff Regulations, Art. 91)

1.     The selection board in a competition is bound by the wording and, in particular, by the conditions of admission laid down in the notice of competition. The basic function of a notice of competition, according to the Staff Regulations, is to give those interested the most accurate information possible about the conditions of eligibility for the post, in order to enable them to judge, first, whether they should apply for it and, second, what supporting documents are important for the proceedings of the selection board and must therefore be enclosed with the application.

(see para. 34)

See: T-386/00 Gonçalves v Parliament [2002] ECR-SC I-A-13 and II-55, para. 73

2.     It is for the selection board in a competition to assess in each case whether the experience of each candidate corresponds to the level required by the notice of competition. It enjoys a discretion, under the provisions of the Staff Regulations concerning competition procedures, when assessing the nature and duration of the previous experience of candidates and its relevance to the post to be filled. In its review of legality the Court of First Instance must confine itself to ascertaining whether the selection board’s decisions were free from manifest errors of assessment

(see para. 37)

See: T-115/89 González Holguera v Parliament [1990] ECR II-831, para. 54; T-158/89 Van Hecken v ESC [1991] ECR II-1341, para. 22; T-214/99 Carrasco Benítez v Commission [2000] ECR-SC I-A-257 and II-1169, paras 69 and 71

3.     In order to ascertain whether the conditions of admission have been satisfied, the selection board is entitled to take account only of the information provided by candidates in their application and of the documents which they are required to produce in support of it. A selection board cannot be required to make enquiries itself in order to ensure that candidates satisfy all the conditions laid down in the notice of competition. When clear provisions in a notice of competition lay down the unequivocal requirement that candidates attach to their application form all necessary supporting documents, a candidate’s failure to comply with that obligation cannot enable or, a fortiori, oblige the selection board or the appointing authority to act contrary to that notice of competition.

(see paras 45, 49)

See: C-255/90 P Burban v Parliament [1992] ECR I-2253, para. 12; Gonçalves v Parliament, para. 74, and the case-law cited; Carrasco Benítez v Parliament, para. 77

4.     The obligation to state the grounds for a decision adversely affecting an official is intended both to provide the person concerned with sufficient details to allow him to ascertain whether or not the decision is well founded and to enable the Court to review the legality of the decision. Such an obligation is intended, inter alia, to enable the official concerned to know why a decision was adopted in regard to him in order that he may take the legal steps necessary to defend his rights and interests. With respect, in particular, to decisions refusing admission to competition, the competition selection board is required to indicate precisely which conditions in the notice of competition are considered not to have been satisfied by the candidate.

(see para. 54)

See: 69/83 Lux v Court of Auditors [1984] ECR 2447, para. 36; T-133/89 Burban v Parliament [1990] ECR II-245, para. 43; Gonçalves v Parliament, paras 61 and 62; Carrasco Benítez v Commission, para. 173

5.     A selection board is under no obligation to ask candidates to produce additional documents to those enclosed with their application in order to assess their professional experience in the light of the requirements set out in the competition notice. It is clear from the second paragraph of Article 2 of Annex III to the Staff Regulations that it merely enables a selection board to request additional information from candidates if it is in doubt as to the exact significance of a document submitted. There can be no question of transforming into an obligation that which the Community legislature viewed as a mere possibility open to the selection board in a competition.

(see para. 76)

See: Burban v Parliament, paras 16 and 20; T-54/91 Almeida Antunes v Parliament [1992] ECR II-1739, para. 40; T-215/97 Jouhki v Commission [1998] ECR-SC I-A-503 and II-1513, para. 58; Carrasco Benítez v Commission, para. 78

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

A claim by a candidate in a competition for compensation for the damage he has allegedly been caused by a decision of the selection board refusing to mark his written test and rejecting his candidature must be rejected if that act has not been shown to be unlawful.

(see paras 87-88)

See: 111/86 Delauche v Commission [1987] ECR 5345, para. 30; T-330/00 and T-114/01 Cocchi and Hainz v Commission [2002] ECR-SC I-A-193 and II-987, para. 97; T-81/02 Wagemann-Reuter v Court of Auditors [2003] ECR-SC I-A-185 and II-933, para. 40