JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

19 February 2004

Case T-19/03

Spyridoula Konstantopoulou

v

Court of Justice of the European Communities

(Officials – Open competitions – Non-admission to the oral tests)

Full text in French II - 0000

Application:         for annulment of the decision of 23 October 2002 of the selection board in open competition CJ/LA/14 not to admit the applicant to the oral test in that competition.

Held:         The action is dismissed. The parties are ordered to bear their own costs.

Summary

1.     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)

2.     Officials – Competitions – Assessment of the merits of candidates – Discretion of the selection board – Non-inclusion on the list of suitable candidates – Obligation to state reasons – Scope

(Staff Regulations, Annex III)

3.     Officials – Competitions – Assessment of the merits of candidates – Discretion of the selection board – Judicial review – Limits

(Staff Regulations, Annex III, Art. 5)

4.     Officials – Competitions – Competitions based on qualifications and tests – Test procedures and content – Marking methods – Discretion of the selection board – Judicial review – Limits

(Staff Regulations, Annex III)

1.     The requirement that a decision adversely affecting a person should state the reasons on which it is based is intended to provide the person concerned with sufficient details to allow him to ascertain whether or not the decision is well founded and make it possible for the decision to be the subject of judicial review.

As far as concerns 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. Observance of this secrecy 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 on which decisions of a selection board in a competition are based 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 involves tasks that are primarily comparative in character and is accordingly covered by the secrecy inherent in those proceedings.

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. They are designed to guarantee, in the candidates’ own interests, a certain consistency in the board’s assessments, especially where there is a large number of candidates. Those criteria are therefore covered by the secrecy of the proceedings in the same way as the selection board’s assessments.

The comparative assessments made by the selection board are reflected in the marks it allocates to the candidates. The marks 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, communication of the marks obtained in the various tests 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 candidates’ rights. It enables them to know the value set on their performance and to ascertain, if such is the case, that they have not in fact obtained the number of marks required by the notice of competition in order to be admitted to certain tests or to all the tests.

(see paras 26-33)

See: 195/80 Michel v Parliament [1981] ECR 2861, para. 22; C-254/95 P Parliament v Innamorati [1996] ECR I-3423, paras 23 to 25 and 28 to 32; T‑72/01 Pyres v Commission [2003] ECR-SC I-A-169 and II-861, paras 63, 65 and 66

2.     In view of the wide discretion enjoyed by selection boards in evaluating the results of tests in a competition, a selection board cannot be required, when giving reasons for a candidate’s failure of a test, to identify the answers which were considered unsatisfactory or to explain why they were considered unsatisfactory. It is not necessary to enter into such detail in the statement of reasons.

(see para. 34)

See: T-291/94 Pimley-Smith v Commission [1995] ECR-SC I-A-209 and II-637, paras 63 and 64; T-33/00 Martínez Páramo and Others v Commission [2003] ECR-SC I-A-105 and II-541, para. 52

3.     A selection board’s assessment of candidates’ knowledge and ability is primarily of a comparative nature. Such an assessment, and the selection board’s decision that a candidate has failed a test, constitute a value judgment on the candidate’s performance in the test and fall within the wide margin of discretion accorded to the board, and the Community judicature has no jurisdiction to review it unless the rules which govern the proceedings of the selection board have clearly been infringed.

(see para. 43)

See: Pimley-Smith v Commission, para. 63; T-233/02 Alexandratos and Panagiotou v Council [2003] ECR-SC I-A-201 and II-989, para. 50, and the case-law cited

4.     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.

The same is true of the marking methods used by the selection board. Consequently, they may be reviewed only to the extent necessary to ensure that the candidates are treated equally and that the choice of candidates is objective.

(see paras 48, 60)

See: 228/86 Goossens v Commission [1988] ECR 1819, para. 14; T-193/00 Felix v Commission [2002] ECR-SC I-A-23 and II-101, para. 35; T-214/02 Martínez Valls v Parliament [2003] ECR-SC I-A-229 and II-1117, para. 35, and the case-law cited