JUDGMENT OF THE COURT OF FIRST INSTANCE (Single Judge)

28 April 2004

Case T-277/02

Athanacia-Nancy Pascall

v

Council of the European Union

(Officials – Open competition – Oral test – Omission from the reserve list – Action for annulment)

Full text in French II - 0000

Application:         for annulment of the decision of the selection board for competition Council/A/393 for the drawing-up of a reserve list of administrators of Greek mother tongue to award the applicant lower marks than the minimum required for her oral test and not to place her on the reserve list.

Held:         The application is dismissed. The Council is ordered to bear its own costs and to pay a quarter of the applicant’s costs. The applicant is ordered to bear three quarters of her own costs.

Summary

1.     Officials – Competitions – Selection board – Decision not to include a candidate on the reserve list – Obligation to state reasons – Scope – Observance of the secrecy of the selection board’s proceedings – Selection board’s use of intermediate marking – Communication of intermediate marks – Compatibility with observance of secrecy of proceedings

(Staff Regulations, Art. 25, second para.; Annex III, Art. 6)

2.     Procedure – Measures of organisation of procedure – Court’s request to communicate to a candidate in a competition the intermediate marks awarded to him by the selection board

(Rules of Procedure of the Court of First Instance, Arts 64 and 65)

3.     Officials – Decision adversely affecting an official – Rejection of candidature – Obligation to give a statement of reasons at the latest when rejecting a complaint – Insufficient statement of reasons – Regularisation during the course of the proceedings before the Court

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

4.     Officials – Competitions – Assessment of candidates’ abilities – Discretion of the selection board – Judicial review – Limits

5.     Officials – Competitions – Assessment of candidates’ knowledge of languages by the selection board – Comparative assessment – Language certificates or staff reports not relevant

1.     As regards decisions taken by a selection board in a competition, the obligation to state reasons must be reconciled with observance of the secrecy surrounding the proceedings of selection boards by virtue of Article 6 of Annex III to the Staff Regulations. That secrecy was introduced 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.

At the stage of the examination of the candidates’ suitability, the selection board’s proceedings involve tasks that are primarily comparative in character and are accordingly covered by the secrecy inherent in such proceedings. Communication of the marks obtained in the various tests therefore constitutes an adequate statement of the reasons on which the board’s decisions are based.

Such a statement of reasons is not prejudicial to the rights of the unsuccessful candidates and it enables the Community judicature to carry out a judicial review appropriate for that type of dispute. The selection board enjoys a wide discretion, and its assessments are subject to review by the Community judicature only where there is a flagrant breach of the rules governing the selection board’s work.

However, where a selection board has awarded intermediate marks for the candidates’ knowledge, the obligation to provide a statement of reasons entails the communication, at a candidate’s request, of the intermediate marks and the method used by the selection board to determine the final mark. The communication of that information does not entail either disclosure of the attitudes adopted by individual members of the selection board or disclosure of any factors relating to individual or comparative assessments of candidates. It is therefore not incompatible with observance of the secrecy of the selection board’s proceedings.

(see paras 20-22, 27-28)

See: 89/79 Bonu v Council [1980] ECR 553, para. 5; C-254/95 P Parliament v Innamorati [1996] ECR I‑3423, paras 24, 28, 31 and 32; T‑167/99 and T‑174/99 Giulietti and Others v Commission [2001] ECR-SC I‑A‑93 and II‑441, para. 81; T‑53/00 Angioli v Commission [2003] ECR-SC I-A-13 and II‑73, paras 68 and 70, and the case-law cited therein

2.     If the intermediate mark awarded by a selection board to an unsuccessful candidate was not communicated to him notwithstanding his request, it is for the Court to ask for further details through measures of organisation of procedure. Because of the inadequate statement of reasons provided, that situation is different from one in which an unsuccessful candidate, without putting forward any evidence suggesting that the selection board has not followed the rules governing its proceedings, asks the Community judicature to take measures of organisation of procedure or measures of inquiry in order to obtain detailed information on the conduct of those proceedings; in such a situation there is no need, as a rule, to order such measures.

(see para. 29)

See: T-118/99 Bonaiti Brighina v Commission [2001] ECR-SC I‑A‑25 and II‑97, para. 51

3.     Although the total absence of a statement of reasons for a decision cannot be rectified by explanations provided following the bringing of an action, since at that stage such explanations no longer fulfil their function, it is permissible in the case of an insufficient statement of reasons for further explanations to be provided in the course of the proceedings, thereby rendering a plea that the statement of reasons has been defective nugatory and thus no longer justifying the annulment of the decision in question.

(see para. 31)

See: T-71/96 Berlingieri Vinzek v Commission [1997] ECR-SC I‑A‑339 and II‑921, para. 79

4.     The assessments made by a selection board in a competition when examining the candidates’ knowledge and abilities are comparative in nature. Those assessments are the expression of value judgments as to a candidate’s performance in the test. They fall within the wide margin of discretion accorded to the board and the Community judicature has no jurisdiction to review them unless the rules which govern the proceedings of the selection board have been infringed.

(see para. 57)

See: Angioli v Commission, cited above, para. 91

5.     Neither a periodic report nor a language certificate constitute absolute proof of a given level of competence in a language. The assessment of candidates’ knowledge of languages in a competition is comparative in nature, so that documents such as a language certificate or a periodic report cannot be regarded as relevant for demonstrating that the applicant’s level of knowledge has not been correctly assessed in relation to that of the other candidates.

(see para. 59)

See: T-153/95 Kaps v Court of Justice [1996] ECR-SC I‑A‑233 and II‑663, para. 54