BX v Commission (Judgment) [2015] EUECJ T-352/13 (23 April 2015)

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(Appeal - Civil service - Recruitment - Notice of competition - Open competition - Constitution of a reserve pool of Administrators (AD 5) of Bulgarian and Romanian citizenship in the field of Law - Selection board’s decision not to include the appellant on the reserve list - Burden of proof - Comparative assessment - Equal treatment - Stability in the composition of the selection board - Fifth paragraph of Article 3 of Annex III to the Staff Regulations - Distortion of the facts and evidence - Action for damages - Decision as to costs)

APPEAL against the judgment of the European Union Civil Service Tribunal (First Chamber) of 24 April 2013, in BX v Commission (F-88/11, ECR-SC, EU:F:2013:51), seeking to have that judgment set aside,

BX, residing in Washington, DC (United States), represented by R. Rata, lawyer,

European Commission, represented by J. Currall and B. Eggers, acting as Agents,

1 By his appeal lodged pursuant to Article 9 of Annex I to the Statute of the Court of Justice of the European Union, the appellant, BX, seeks to have set aside the judgment of the European Union Civil Service Tribunal (First Chamber) of 24 April 2013 in BX v Commission (F-88/11, ECR-SC, EU:F:2013:51, ‘the judgment under appeal’) by which the Tribunal dismissed his action.

2 The appellant was a candidate in Open Competition EPSO/AD/148/09, to constitute a reserve pool of Administrators (AD 5) of Bulgarian and Romanian citizenship in the field of Law, the notice of which was published by the European Personnel Selection Office (EPSO) in the Official Journal of the European Union on 21 January 2009 (OJ C 14 A, p.1).

3 The further background to the dispute is set out in paragraphs 8 to 24 of the judgment under appeal, as follows:

‘8 The applicant was successful in the written test and, on 22 March 2010, received an invitation to the oral test to be held on 15 April 2010, that is to say, the third day the oral tests were taking place.

9 At the oral test of 15 April 2010, the selection board consisted of its three full members. Two alternate members were also present on that day.

10 On 14 July 2010, EPSO informed the applicant, through his electronic EPSO account, that he had obtained only 23.5 points out of 50 points in the oral test, that mark not being sufficient, in so far as the pass mark was 25 points, and that, consequently, he could not be included in the reserve list of the competition.

11 By an e-mail and a letter of 20 July 2010, the applicant requested that his oral test be re-examined, and also requested additional information concerning his participation in that test.

12 The same day, 20 July 2010, EPSO sent the applicant an e-mail containing the final evaluation sheet of the oral test, dated 15 April 2010, accompanied by information stating that that was the only documentation that could be sent, all the other documents being covered by the confidential nature of the selection board proceedings.

13 On 28 July 2010, EPSO informed the applicant that his request for re-examination would be processed as soon as possible, his file being temporarily unavailable due to the fact that EPSO was moving offices.

14 On 3 August 2010, the applicant supplemented his request for re-examination by requesting a non-confidential version of the list of questions corresponding to the four criteria of the final evaluation sheet and the scale of grading for the interview.

15 On 24 August 2010, EPSO reiterated to the applicant that he had only the right to receive the final evaluation sheet, which had already been sent, and his original tests.

16 On 13 September 2010, the applicant sent an e-mail to EPSO seeking, first, confirmation that the final evaluation sheet for his oral test which had been sent to him by e-mail was the only document which he could receive and, secondly, to ascertain whether that evaluation sheet too was going to be sent to him by post, given that, on 28 July 2010, EPSO had informed him that information would be sent to him as soon as possible.

17 On the same day, 13 September 2010, EPSO confirmed to the applicant that the final evaluation sheet had been correctly sent to him, according to the department’s practice, and that it was not usually sent by post.

18 On 15 September 2010, the applicant supplemented his request for re-examination of his oral test by setting out, in four pleas, the explanations and arguments relating to the breaches of procedure by which he claimed his interview with the selection board was adversely affected, and the related case-law.

19 On 8 October 2010, the applicant sent a new e-mail to EPSO containing the same arguments as those developed in his letter of 15 September 2010 and argued that there was another breach of procedure, relating to the composition of the selection board. In that e-mail, he also stated that EPSO had published the reserve list of the competition before the results of its re-examination procedure were communicated.

20 On 13 October 2010, EPSO replied to the applicant that, if the re-examination of his oral test were to culminate in the finding that the number of points he had received was above the pass mark, there was nothing to prevent his name being added to the reserve list for the competition. EPSO added, concerning the composition of the selection board, that both the quorum and the same number of members of each gender (in this case, two) had indeed been respected.

21 By an e-mail of 5 November 2010, the applicant requested that EPSO and the selection board act promptly in order to ensure that his oral test be re-examined in a fair manner.

22 By a letter of 9 November 2010, EPSO replied to the applicant that the selection board, after the re-examination of his oral test and his various claims, rejected all the arguments put forward and confirmed its initial decision not to include him in the reserve list ...

23 On 7 February 2011 the applicant lodged a complaint against the contested decision under Article 90(2) of the Staff Regulations.

24 The Director of EPSO, acting as the appointing authority …, rejected the applicant’s complaint by decision of 16 June 2011.’

4 The relevant legal framework is set out in paragraphs 2 to 6 of the judgment under appeal.

5 By application lodged at the Registry of the Civil Service Tribunal on 16 September 2011, the appellant requested (i) that the decision of the selection board not to include him in the reserve list of successful candidates for competition EPSO/AD/148/09-RO (‘the contested decision’) be annulled, (ii) that the decision of the appointing authority of 16 June 2011, rejecting his complaint of 7 February 2011, be annulled, (iii) that the reserve list be amended in order to include his name or that a new list be published containing his name and, (iv) that compensation be paid for the non-material damage he suffered, assessed at EUR 7 000.

6 The action for annulment consisted of six pleas, alleging (i) infringement, by the selection board, of its duty to make a comparative assessment of the candidates, (ii) infringement of the principle of equal treatment, (iii) infringement of the procedural requirements relating to the composition of the selection board, (iv) infringement of the notice of competition, (v) improper conduct of the oral test and (vi) infringement of the principle of sound administration.

7 By the judgment under appeal, the Civil Service Tribunal dismissed the action, holding (i) that the claims for the reserve list to be amended, or for publication of a new reserve list including his name, were inadmissible, (ii) that the claim for annulment directed against the decision of the appointing authority of 16 June 2011, as that decision was devoid of any independent content, had to be regarded as directed only against the contested decision, (iii) that the appellant’s pleas in support of annulment were unfounded and (iv) that his claim for damages also had to be dismissed as a consequence of the dismissal of his claim for annulment.

8 By document lodged at the Court Registry on 2 July 2013, the appellant brought the present appeal.

11 By letter lodged at the Court Registry on 26 July 2013, the appellant requested that he be granted anonymity, which the President of the Appeal Chamber allowed by decision of 19 August 2013. His name was replaced by the two capital letters ‘BX’ for the purposes of the present proceedings.

12 Acting on a report from the Judge-Rapporteur, the General Court (Appeal Chamber) held that no application for a hearing to be arranged had been submitted by the parties within the period of one month from notification of the closure of the written procedure and decided to give a ruling without an oral procedure, in accordance with Article 146 of the Rules of Procedure of the General Court.

13 In support of his appeal, the appellant relies on six grounds of appeal, alleging, in essence, that the Civil Service Tribunal (i) misconstrued the requirements as to the standard of proof, (ii) erred in law in stating that a candidate whose initial mark was below the pass mark in accordance with pre-established criteria is not entitled to a comparative assessment, (iii) erred in law in holding that the principle of equal treatment had not been infringed, (iv), misconstrued the rules concerning the composition of the selection board, (iv) wrongly made an order for costs against him and (vi) erred in law in rejecting the claim for compensation for non-material damage.

The first ground of appeal alleging, in essence, that the Civil Service Tribunal was wrong to find that the appellant had not met the requirements regarding the standard of proof

14 By his first ground of appeal, the appellant contests the general finding of the Civil Service Tribunal, at paragraph 33 of the judgment under appeal, that an administrative act is presumed to be lawful and it is for the appellant to provide at the very least sufficiently precise, objective and consistent information to corroborate the truth or likelihood of the facts in support of his claim.

15 The appellant claims that the judgment of 4 February 2010 in Wiame v Commission (F-15/08, ECR-SC, EU:F:2010:7), referred to by the Civil Service Tribunal in paragraph 33 of the judgment under appeal in support of that finding, is not relevant in the present case since the appellant provided precise, objective and consistent information concerning the facts adduced.

16 According to the appellant, the Civil Service Tribunal should have relied instead on the judgment of 6 March 2001 in Connolly v Commission (C-274/99 P, ECR, EU:C:2001:127), in which the Court of Justice held that, in order to satisfy the court as to a party’s claims or, at the very least, as to the need for the court itself to take evidence, it is not sufficient merely to refer to certain facts in support of the claim, but there must also be adduced sufficiently precise, objective and consistent information concerning their truth or probability. The appellant claims, without further explanation, to have met those requirements in the present case, so that the burden of proof should have been reversed.

17 It should be pointed out that, as the Commission observed, such a ground of appeal is ineffective in so far as the appellant merely calls into question a general quotation, without seeking to demonstrate how it constituted an error of law that could affect the operative part of the judgment under appeal (see, to that effect, judgment of 18 March 1993 in Parliament v Frederiksen, C-35/92 P, ECR, EU:C:1993:104, paragraph 31).

18 However, in so far as the appellant submits that ground of appeal, relating to the required standard of proof and the reversal of the burden of proof, in a general way as affecting the legality of the judgment of the Civil Service Tribunal at a number of points in the appeal, the arguments put forward in that regard will be examined in the context of the other grounds of appeal, where they have been raised specifically.

The second ground of appeal, alleging that the Civil Service Tribunal erred in law in stating that a candidate whose initial mark was below the pass mark in accordance with pre-established criteria is not entitled to a comparative assessment

20 By this second ground of appeal, the appellant alleges, in essence, that the Civil Service Tribunal erred in law in paragraph 41 of the judgment under appeal by finding, first, that ‘the applicant did not meet the minimum requirements stipulated in respect of the oral test, with the result that the comparison of the evaluation of the applicant’s oral test with that of the other candidates, with a view to classification in the reserve list of the competition, was no longer necessary’, and, secondly, that ‘it matters little whether the final evaluation sheet for the applicant’s oral test was signed on 15 April 2010 or on 9 July 2010, since it is not disputed that, during the meeting for the purposes of the final comparative evaluation, the selection board did not alter its initial assessment of the applicant’s oral test’.

21 According to the appellant, the evaluation sheet concerning his oral test, dated 15 April 2010, was signed on the same day that he sat the oral test of the competition and not during the final harmonisation meeting on 9 July 2010. That document was entitled ‘Final evaluation sheet - oral test’, which was not taken into account by the Civil Service Tribunal in its analysis. The appellant considers that, in such a case, the burden of proof should have been transferred to the Commission, which was therefore obliged to produce official documents in support of its claim that the duty to conduct a comparative assessment had been duly fulfilled in the present case.

22 This ground of appeal is divided into three parts, alleging (i) that the Civil Service Tribunal infringed the appellant’s right to a comparative assessment, (ii) that it also infringed the right of all the other candidates to a comparative assessment and (iii) that it did not take sufficient account of the evidence produced before it.

The first part, alleging that all candidates are entitled to a comparative assessment

23 In the first part, the appellant argues that, according to settled case-law, every candidate is entitled to a comparative assessment, whether or not his initial result was above or below the pass mark. The Civil Service Tribunal erred in law in finding, in paragraph 41 of the judgment under appeal, that the obligation to carry out a comparative assessment must be met ‘with a view to classification in the reserve list’ whereas, according to the appellant, that obligation should already have been met in order to determine the final mark of every candidate. The objective of such a comparative assessment, it is claimed, is to allow the selection board to decide that a candidate whose performance at the beginning of the test period was not considered very good to nevertheless be placed on the reserve list after the examination of other candidates with less convincing performances. However, by signing a final evaluation sheet on 15 April 2010, the date of the appellant’s oral test, and not at the final harmonisation meeting of 9 July 2010, the Commission expressly ruled out any subsequent comparative assessment with regard to him.

24 It must be pointed out, first, that a selection board’s assessment of a candidate’s knowledge and ability is of a comparative nature (see, to that effect, judgments of 9 October 1974 in Campogrande and Others v Commission, 112/73, 144/73 and 145/73, ECR, EU:C:1974:97, paragraph 53, and of 19 February 2004, Konstantopoulou v Court of Justice, T-19/03, ECR-SC, EU:T:2004:49, paragraph 23).

25 It is apparent from the case-law that those assessments, and the decisions whereby a selection board determines that a candidate has failed a test, constitute the expression of a value judgment of the candidate’s performance in the test, falling within the wide margin of discretion accorded to the selection board, and the Courts of the European Union have no jurisdiction to review them unless the rules which govern the proceedings of the selection board have been infringed (see judgment in Konstantopoulou v Court of Justice, paragraph 24 above, EU:T:2004:49, paragraph 43 and the case-law cited).

26 Moreover, the selection board is required to ascertain whether the candidates possess the knowledge and the professional experience necessary to perform the duties of the post to be filled, in each of the areas mentioned in the notice of competition. It is also required to conduct a comparative examination of the knowledge and skills of the candidates in order to select the most suitable with regard to the duties to be performed. It follows that every competition has the aim of selecting the candidates who are best suited for the post to be filled. It is therefore inevitable that competition selection boards review the respective merits of the candidates and conduct the tests in such a way that only the most deserving are selected (see, to that effect, order of 9 September 2003 in Vranckx v Commission, T-293/02, ECR-SC, EU:T:2003:224, paragraphs 52 and 53 and the case-law cited).

27 Accordingly, a candidate who is eliminated in the oral test of a competition because he did not obtain the pass mark in that test cannot claim that his non-inclusion results from a comparison between several candidates, as the assessment criteria are, in that test - as in the other tests - objective criteria fixed in advance and applicable to all candidates (see, to that effect, order in Vranckx v Commission, paragraph 26 above, EU:T:2003:224, paragraph 54).

28 Moreover, as the Commission points out in connection with such comparative competitions, the selection board can concentrate, during the final harmonisation meeting, on the marks of candidates for whom it was more difficult to reach unanimity, such a power falling within the scope of the broad discretion enjoyed by the selection board when considering the comparative merits of the candidates (judgment of 5 April 2005 in Christensen v Commission, T-336/02, ECR-SC, EU:T:2005:115, paragraph 61).

29 Thus, the obligation to make a comparative assessment of the candidates admitted to the oral tests of a competition cannot compel the selection board to suspend its assessment until it has seen all the candidates. Furthermore, as the Commission contends, the concept of comparative assessment must be interpreted in the light of Article 27 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), which requires the selection board to compare the performance of candidates in order to select those with the highest standard of ability, efficiency and integrity.

30 Similarly, the notice of competition in the present case provided only, in section III ‘Open Competition’, point 3, that ‘the selection board will place on the reserve lists the names of the candidates … with the highest aggregate marks in the written and oral tests and a pass mark in each’. That pass mark was determined for the oral test at point 2 of section III of the notice of competition, which provides that the test is marked out of 50, with a pass mark of 25 points. In that regard, the appellant did not identify any specific provision of the competition notice that was infringed by the selection board in the present case and that was the subject of an error of law or a distortion of the facts by the Civil Service Tribunal in the judgment under appeal.

31 The appellant relies nevertheless on the judgment of 5 March 2003 in Staelen v Parliament (T-24/01, ECR-SC, EU:T:2003:52) in order to establish that every candidate is entitled to a comparative assessment, including those whose mark was initially less than the pass mark.

32 It should be noted however that, in that case, the General Court found that the selection board had committed a breach of procedure by changing the minimum pass marks set in the competition notice. Such a modification had the direct effect of significantly increasing the number of candidates taking part in the subsequent comparative tests, which was likely to invalidate the conduct of those tests (Staelen v Parliament, paragraph 31 above, EU:T:2003:52, paragraph 54). Thus, in paragraph 57 of that judgment, upon which the appellant relies, the General Court simply pointed out that tests of a comparative nature are, by definition, tests in which each candidate’s performance is assessed in relation to that of the other candidates, so that the number of candidates admitted to those tests is likely to affect the selection board’s assessments of the candidates. Those assessments reflect a value judgment of a candidate’s performance compared with that of the other candidates.

33 That case-law, however, does not deal with the question of whether each candidate, including those whose mark is below the pass mark, is entitled to a comparative assessment in the sense which the appellant suggests, namely, a reassessment of his mark by the selection board, even in non-problematic cases that do not involve any discussion among members of the selection board and in which all the candidates have been assessed according to the same pre-established criteria.

34 The Civil Service Tribunal did not make an error, therefore, in finding, in paragraph 41 of the judgment under appeal, that since the appellant did not meet the minimum requirements in respect of the oral test, the comparison of the assessment of the appellant’s oral test with that of the other candidates, with a view to classification in the reserve list of the competition, was no longer necessary.

The second part, alleging that the selection board breached its duty to conduct a comparative assessment not only with regard to the appellant, but also with regard to all the other candidates in the oral test

36 In this second part, the appellant argues that the selection board breached its duty to conduct a comparative assessment not only with regard to himself, but also with regard to all the other candidates in the oral test. The selection board spent, it is claimed, only about one minute (or one minute and thirty seconds, depending on whether the candidates had obtained the pass mark or not) on average per candidate during its final assessment meeting, which was insufficient to make a comparative assessment of all the candidates. The selection board thus based its assessment, it is claimed, solely on pre-established criteria, without conducting a comparative assessment which is, it is claimed, contrary to the case-law and the notice of competition.

37 It must be stated at the outset that this second part is inadmissible. The appellant has not identified any error of law or distortion of the facts allegedly committed by the Civil Service Tribunal in the judgment under appeal. Moreover, as the Commission has argued, by that complaint the appellant in reality seeks a reassessment of the facts by the General Court, which is not within its competence in the context of an appeal (see judgment of 26 June 2014 in Marcuccio v Commission, T-20/13 P, ECR-SC, EU:T:2014:582, paragraph 50 and the case-law cited).

38 It follows that the second part of the second ground of appeal must also be rejected.

The third part, alleging that insufficient account was taken of the evidence and arguments adduced

39 In the third part of the second ground of appeal, the appellant challenges the finding of fact made by the Civil Service Tribunal that there was no breach, by the selection board, of its duty to conduct a comparative assessment and considers that it ‘ignored the evidence in the file’ and did not take into account the blatant inconsistencies in the Commission’s arguments.

40 In that regard, the appellant claims that the Civil Service Tribunal did not take into account his written observations to the effect that the Commission’s reasoning contained blatant inconsistencies, since, in the context of the complaints procedure, the appointing authority had, in its reply, informed him that his final evaluation sheet had in fact been signed on 9 July 2010, and not on 15 April 2010, whereas the Commission had argued to the contrary in its defence before that Tribunal. Therefore, it is claimed, the Civil Service Tribunal did not address the appellant’s argument that a final evaluation sheet is a definitive document that can no longer be reviewed, which would imply, consequently, that the appellant had not been the subject of a comparative assessment.

42 Contrary to what the appellant argues, the fact that that document was entitled ‘Final Evaluation Sheet’ and may have been signed on the day of his oral test does not allow the conclusion to be drawn that his mark for the oral test could not have been the subject of a comparative assessment within the meaning of the relevant case-law (see paragraph 28 above).

43 The Civil Service Tribunal was also right to find, therefore, in paragraph 41 of the judgment under appeal, that it was irrelevant whether the final evaluation sheet of the appellant’s oral test was signed on 15 April 2010 or 9 July 2010.

44 Furthermore, if it were necessary to interpret the third part as questioning the reasons stated for the judgment under appeal on this point, it should be noted that judgments of the Civil Service Tribunal must contain an adequate statement of reasons to enable the General Court to exercise its power of review. However, that obligation cannot be interpreted as meaning that the Civil Service Tribunal was required to respond in detail to every single argument on which the appellant relies, particularly if the argument is not sufficiently clear and precise and is not adequately supported by evidence. The reasoning may be implicit on condition that it enables the party concerned to know why the court of first instance has not upheld his arguments and provides the appeal court with sufficient material for it to exercise its power of review (see judgment of 16 December 2010 in Lebedef v Commission, T-52/10 P, ECR-SC, EU:T:2010:543, paragraphs 83 and 84 and the case-law cited).

45 In the present case, the Civil Service Tribunal expressly addressed the appellant’s arguments by finding, in paragraph 41 of the judgment under appeal, that it was irrelevant whether the appellant’s evaluation sheet was signed on 15 April 2010 or on 9 July 2010, since it was not disputed that, during the meeting for the purposes of the final comparative assessment of 9 July 2010, the selection board had not altered its initial assessment of the appellant’s oral test.

46 Such a statement of reasons is sufficient, moreover, to allow the appellant to exercise his right of appeal and to enable the General Court to exercise its power of review, as is apparent from the foregoing arguments.

47 It is appropriate, therefore, to reject also the third part of the second ground of appeal and, therefore, that ground of appeal in its entirety.

The third ground of appeal, alleging that the Civil Service Tribunal erred in law in finding that the principle of equal treatment was not infringed

48 The appellant presents this ground of appeal as being related to the second, to the extent that the alleged breach of the rules relating to EPSO competitions also led to an infringement of the principle of equal treatment. According to the appellant, since all the candidates are entitled to a comparative assessment and such a comparative assessment was not carried out in relation to him, there was an infringement of the principle of equal treatment, contrary to what the Civil Service Tribunal held in paragraph 45 of the judgment under appeal. To enable the appellant to benefit from the same conditions as those enjoyed by the other candidates, his comparative assessment should have been conducted by the selection board at the end of the oral tests period, when all candidates had undergone them.

49 As the appellant himself admits, this ground of appeal is closely related to the second, to the extent that paragraph 45 of the judgment under appeal refers to paragraph 41 of that judgment, which is the subject of the appellant’s second ground of appeal. Accordingly, since no error of law or distortion of the facts was found in the context of the second ground of appeal, the third ground of appeal must, as a result, also be rejected.

The fourth ground of appeal, alleging an infringement concerning the composition of the selection board

50 By this ground of appeal, the appellant argues (i) that the Civil Service Tribunal erred in law in holding that the composition of the selection board did not infringe the rules regarding the principle of balanced representation of women and men, (ii) that the Civil Service Tribunal failed to take into account the evidence in the case-file when it decided that the principle of stable composition of the selection board had not been infringed, and (iii) that the Civil Service Tribunal should have held that there had been an infringement of the principle of stability of the selection board.

51 The Commission contends that the three parts of that fourth ground of appeal are all inadmissible in so far as the appellant is seeking in reality to obtain a simple re-examination of the application submitted to the Civil Service Tribunal, or is inviting the General Court to make a new assessment of the facts, which the General Court does not have jurisdiction to undertake.

52 It is therefore necessary, at the outset, to consider the admissibility of the fourth ground of appeal in its entirety.

53 As regards the first part, the Commission relies on the case-law according to which an appeal which, without even including an argument specifically identifying the error of law allegedly vitiating the judgment under appeal, confines itself to reproducing the pleas in law and arguments previously submitted to the Civil Service Tribunal is inadmissible, given that the General Court does not have jurisdiction to undertake a simple re-examination of the application at first instance (see, to that effect, judgment of 8 October 2013 in Council v AY, T-167/12 P, ECR-SC, EU:T:2013:524, paragraph 27 and the case-law cited).

54 In the present case, it must nevertheless be noted that, by the first part of this ground, the appellant did not request a simple re-examination of the application submitted to the Civil Service Tribunal, but specifically argued that there was an error of law and a distortion of the evidence that vitiated the finding in paragraph 49 of the judgment under appeal. It suffices to note, in that regard, that the appellant claims, inter alia, that the Civil Service Tribunal wrongly relied on or misinterpreted the judgment of 23 November 2010 in Bartha v Commission (F-50/08, ECR-SC, EU:F:2010:148), in paragraph 49 of the judgment under appeal.

55 Furthermore, it is worth recalling the case-law according to which, if a party could not base his appeal on pleas in law and arguments already relied on before the Civil Service Tribunal, an appeal would be deprived of part of its purpose (see, by analogy, judgments of 21 September 2010 in Sweden and Others v API and Commission, C-514/07 P, C-528/07 P and C-532/07 P, EU:C:2010:541, paragraph 116, and Council v AY, paragraph 53 above, EU:T:2013:524, paragraph 27).

56 It must be held, therefore, that the first part of the fourth ground of appeal is admissible.

57 With regard to the second and third parts, it should be recalled that, according to the case-law, an appeal, by virtue of Article 256 TFEU and Article 11 of Annex I to the Statute of the Court of Justice, may be based only on grounds relating to the infringement of rules of law, to the exclusion of any appraisal of the facts, the Civil Service Tribunal having exclusive jurisdiction, first, to find the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and, second, to assess those facts, save where the clear sense of the evidence has been distorted (see, to that effect, judgment of 5 June 2014 in Brune v Commission, T-269/13 P, ECR-SC, EU:T:2014:424, paragraph 71 and the case-law cited).

58 By the second part, the appellant merely repeats his own interpretation of the facts regarding the composition of the selection board throughout the entire procedure, but does not plead a distortion of the facts by the Civil Service Tribunal and does not clearly identify the error of law allegedly committed by the latter. The second part must, therefore, in accordance with the above-mentioned case-law, be declared inadmissible.

59 In any event, if this part is to be interpreted as seeking to challenge the validity of the Civil Service Tribunal’s finding, in paragraph 50 of the judgment under appeal, that ‘the simultaneous presence of full members and alternate members in the selection board at the oral tests in a competition does not render the proceedings and composition of the selection board unlawful, as long as, in such circumstances, the alternate member does not have a vote’, it should be noted that that argument is very much the same as the one presented in the context of the first part, which, since it is admissible, will be examined below.

60 Finally, as regards the admissibility of the third part of this ground, the Commission also argues that the appellant is seeking a reassessment of the facts by the General Court. However, it should be noted that the appellant identified precisely enough the distortion of the facts allegedly committed by the Civil Service Tribunal in paragraph 51 of the judgment under appeal in finding that ‘the applicant merely stated that he had legitimate reasons to presume that the selection board responsible for assessing his request for re-examination of his oral test was not composed of the same persons as that with which he had sat his oral test, without however having adduced the slightest evidence in that regard’. The appellant claims that it is sufficient to note that the first decision rejecting his request for re-examination, of 14 September 2010, was signed only by the alternate members, even though, according to the Civil Service Tribunal, they had no role and were not members of the selection board for the purposes of the application of the fifth paragraph of Article 3 of Annex III to the Staff Regulations, which should have led the Civil Service Tribunal to conclude that the principle of stability of the selection board had been infringed in the present case.

61 The third part, therefore, must also be considered admissible. In the light of the above, it is appropriate to examine the substance of the first and third parts of the fourth ground of appeal.

- The first part, alleging an unbalanced composition of the selection board, in accordance with the fifth paragraph of Article 3 of Annex III to the Staff Regulations

62 The fifth paragraph of Article 3 of Annex III to the Staff Regulations provides that ‘a selection board consist[ing] of more than four members [shall] comprise at least two members of each gender’.

63 In the context of this first part, the appellant considers, first, that the Civil Service Tribunal wrongly found it appropriate to take into account only the full members in order to determine whether the composition of the selection board was balanced and complied with that provision.

64 The appellant refers to the various items of evidence adduced before the Civil Service Tribunal in that regard. First of all, he refers to the signed attendance charts provided by the Commission prior to the hearing before the Civil Service Tribunal which show, in particular, that the alternate chairman had a very active role, with an attendance rate of 100% at the oral tests. He also relies on an e-mail from an EPSO member of staff, of 13 October 2010, in which it was noted that the quorum had been observed, as only one member was absent, so that the selection board was actually composed of five members and not three, as the Civil Service Tribunal found in paragraph 49 of the judgment under appeal. Next, according to the appellant, the final decision of the appointing authority and the solemn declaration of one of the members of the selection board confirm that the alternate chairman was actively involved in the interview, asking questions and permitting the appellant to take notes, and that he was therefore a full member of the selection board. Furthermore, according to the appellant, the purpose of the fifth paragraph of Article 3 of Annex III to the Staff Regulations would never be achieved in practice if alternate members participated actively in the interview of a candidate without the principle of gender balance in the selection board being observed. Finally, the Civil Service Tribunal itself noted, in paragraph 20 of the judgment under appeal, EPSO’s finding concerning the composition of the selection board, that both the quorum and the same number of members of each gender (in that case, two) had indeed been observed. That would imply that EPSO’s response indeed referred to all the members of the selection board and not to the full members only.

65 The appellant claims, secondly, that the Civil Service Tribunal was wrong to rely on the judgment in Bartha v Commission, paragraph 54 above (EU:F:2010:148), in paragraph 49 of the judgment under appeal in order to declare that the principle of balanced representation of men and women in the composition of the selection board had not been infringed in the present case. First of all, that judgment was not fully applicable in the present case since the alternate members had a very high presence rate and did not replace the full members, conducting the oral tests together with those full members.

66 It must also be borne in mind that the judgment in Bartha v Commission, paragraph 54 above (EU:F:2010:148), establishes the principle that the purpose of the fifth paragraph of Article 3 of Annex III to the Staff Regulations must be ‘ultimately entirely fulfilled’ (paragraph 44 of that judgment). The Civil Service Tribunal held that, even if, in the present case, the official composition of the selection board did not comply with the abovementioned rule, the fact that the de facto composition complied with that rule ensured that the purpose of that rule was fully observed. Therefore, in any event, when the composition of the selection board is officially compliant, but in practice the rule of balanced representation between men and women is not observed in the actual conduct of the tests, it should be held that the purpose of that rule is ultimately not fulfilled.

67 For all those reasons, the appellant considers that the Civil Service Tribunal’s finding, in paragraph 49 of the judgment under appeal, that ‘[i]t is not disputed that the selection board consisted of three full members’ and ‘the composition of the selection board did not infringe that provision’ constitutes an error of law and a distortion of the facts or evidence that should lead to the setting aside of the judgment under appeal by the General Court.

69 It is necessary to examine, first, whether the Civil Service Tribunal was entitled to find, without distorting the evidence, in paragraph 49 of the judgment under appeal, that the selection board was composed of three full members.

70 In that regard, the appellant does not dispute that the selection board was indeed composed of three full members, but considers that the alternate members, who were also present during his examination and who played an active role in it, should have been considered to be ‘members of the selection board’ for the purposes of the provision in the fifth paragraph of Article 3 of Annex III to the Staff Regulations.

71 However, the Civil Service Tribunal did not err in law when it pointed out, in paragraph 50 of the judgment under appeal, that, according to settled case-law, the simultaneous presence of full members and alternate members in the selection board at the oral tests in a competition does not render the proceedings and composition of the selection board unlawful, as long as, in such circumstances, the alternate members do not have a vote (see judgment of 13 October 2008 in Neophytou v Commission, T-43/07 P, ECR-SC, EU:T:2008:432, paragraph 53 and the case-law cited).

72 The Civil Service Tribunal was entitled to find, without distorting the clear sense of the evidence adduced by the appellant, that that evidence did not establish that the alternate members, although present during his oral test, had a vote. The fact that the alternate chairman permitted him to write during his oral test is not conclusive in that regard, since it is apparent from the evidence adduced that it was the full chairman who asked him to stop writing and to start speaking. With regard to the replies from the administration, such as the letter from EPSO of 9 November 2010, while they might have given the impression that the selection board was actually composed of more than three members, those replies have been corrected in the decision rejecting the appellant’s complaint of 16 June 2011, which unequivocally states that the selection board was composed of three full members.

73 Therefore, the Civil Service Tribunal did not err or distort the evidence in finding that the selection board was composed of three full members in the present case and that the appellant had not demonstrated that other members present during his oral test had a vote.

74 It is also necessary to examine, secondly, whether the Civil Service Tribunal was right to find that the fifth paragraph of Article 3 of Annex III to the Staff Regulations, which provides that a selection board of more than four members should comprise at least two members of each gender, must be understood as referring only to selection boards composed of more than four full members.

75 The Civil Service Tribunal took inspiration, in that regard, from the solution adopted in the judgment in Bartha v Commission, paragraph 54 above (EU:F:2010:148), in which it was held that, in order to determine whether the rule set out in the fifth paragraph of Article 3 of Annex III to the Staff Regulations has been satisfied, only the full members of the selection board should, in principle, be taken into consideration, since they are usually the ones who are called upon to take part in the actual conduct of the tests (judgment in Bartha v Commission, paragraph 54 above, EU:F:2010:148, paragraph 41).

77 Indeed, if that provision were to be understood as referring to all the members of the selection board, whether full members or alternates, the legislature would not have seen the need to specify that it is only applicable when the selection board consists of more than four members, since a competition selection board comprises, in principle, at least three full members and the same number of alternates.

78 Furthermore, as the Civil Service Tribunal noted in paragraph 42 of the judgment in Bartha v Commission, paragraph 54 above (EU:F:2010:148), if the fifth paragraph of Article 3 of Annex III to the Staff Regulations were to be interpreted as requiring all members of the selection board, whether full or alternate, to be taken into consideration in order to assess the conformity of the selection board’s composition, that interpretation would deprive the provision of much of its scope. The requirement that a selection board with more than four members must include at least two members of each gender was laid down by the legislature so that the composition of selection boards would have a more or less balanced representation of both genders. That objective would not be attained if, in a selection board with at least eight members, including alternates, it was sufficient for either gender to be represented by only two alternate members.

79 Therefore, when a selection board formally consists of more than four members, which is not the case here, it should be ensured that not only the full members, but also alternate members, include at least two members of each gender, so that any full member of the under-represented gender is always replaced by an alternate member of the same gender, in order to ensure the effectiveness of the fifth paragraph of Article 3 of Annex III to the Staff Regulations.

80 Accordingly, the Civil Service Tribunal did not err in law in finding that the fifth paragraph of Article 3 of Annex III to the Staff Regulations is applicable only when the selection board is composed of more than four full members and, consequently, that the composition of the selection board did not ‘infringe’ the abovementioned provision in the present case. While the wording ‘infringe that provision’ is regrettable because of its lack of clarity, the fact remains that the fifth paragraph of Article 3 of Annex III to the Staff Regulations was not applicable in the present case, which necessarily implies that the composition of the selection board could not infringe that provision. The first part of the fourth ground must therefore be rejected.

- The third part, alleging, in essence, infringement of the principle of stability of the selection board at the stage of re-examining the appellant’s file

81 By the third part of this ground of appeal, the appellant claims that it is apparent from the annexes provided by the Commission prior to the hearing before the Civil Service Tribunal that, during the re-examination procedure, the rejection decision of 14 September 2010 was taken by the three alternate members only although, according to the Civil Service Tribunal’s finding in paragraph 49 of the judgment under appeal, none of them was a member of the selection board during the appellant’s oral test. Likewise, the rejection decision of 29 October 2010 was also signed by two alternate members and by the full chairman, the latter being, according to the judgment under appeal, the only ‘official’ member of the selection board present during the appellant’s oral test.

82 Therefore, according to the appellant, if the Civil Service Tribunal’s finding that the selection board was composed of three members, that is to say, the full members only, were to be accepted, that would demonstrate that the principle of stability of the selection board was not observed in the present case, contrary to what the Civil Service Tribunal held, failing to take that evidence into account, in paragraph 51 of the judgment under appeal.

83 It should be noted that, in the present case, the appellant’s request for re-examination was the subject of two successive decisions and that the second decision, of 29 October 2010, signed by the full chairman following an exchange of e-mails with one of the other full members, expressly confirms the rejection decision signed by the selection board consisting of three alternate members. It is apparent from the documents in the file before both the General Court and the Civil Service Tribunal, however, that one of the full members, then on maternity leave, did not in any way participate at any stage of the appellant’s request for re-examination.

84 In those circumstances, the Civil Service Tribunal should have taken into account the late evidence adduced before it, even if that evidence did not come from the appellant himself, in order to find that the selection board responsible for assessing his request for re-examination was not composed of the same persons as that with which he had sat his oral test. Therefore, the Civil Service Tribunal was not entitled to find, in paragraph 51 of the judgment under appeal, that ‘the applicant merely stated that he had legitimate reasons to presume that the selection board responsible for assessing his request for re-examination of his oral test was not composed of the same persons as that with which he had sat his oral test, without however having adduced the slightest evidence in that regard’, and particularly as the appellant had responded in writing to those late documents, provided by the Commission a few days before the hearing, which written responses were not, however, included in the file.

85 However, the Courts of the European Union may dismiss a plea or complaint as ineffective where it finds that that plea or complaint is not capable, in the event that it is well founded, of leading to the annulment sought (see, to that effect, judgment of 19 November 2009 in Michail v Commission, T-50/08 P, ECR-SC, EU:T:2009:457, paragraph 59 and the case-law cited).

86 As the Commission argues, the principle of stability of the selection board does not apply to the re-examination request stage, as that simply involves a re-examination of the file (see, to that effect, judgment of 12 March 2008 in Giannini v Commission, T-100/04, ECR-SC, EU:T:2008:68, paragraph 316). It is irrelevant, therefore, that the members of the selection board who were present at the appellant’s oral test were not exactly the same as those who decided on his request for re-examination.

87 Consequently, the third part of the appellant’s fourth ground of appeal must be regarded as ineffective.

88 It follows that the fourth ground of appeal must be rejected in its entirety.

89 By the sixth ground of appeal, the appellant considers that the conduct of the Commission during the procedure for his oral test and the administrative phase was clearly contrary to the principles of good administration and of an effective procedure. In light of the evidence contained in the case-file, the appellant considers that, if the Court finds that the present appeal is well founded, the acts of the Commission would entitle him to compensation for non-material damage.

91 In that regard, as the grounds of appeal relating to the Civil Service Tribunal’s dismissal of the appellant’s application for annulment were rejected, it suffices to note that the Civil Service Tribunal did not err in law in rejecting the claim for damages, on the basis of the case-law according to which, where an application for damages is closely linked with an application for annulment, the rejection of the latter also results in the rejection of the application for damages (judgment of 30 September 2003 in Martínez Valls v Parliament, T-214/02, ECR-SC, EU:T:2003:254, paragraph 43).

92 In any event, assuming that this ground should be interpreted as inviting the General Court to rule directly on the applicant’s compensation claim in the event that it finds that the appeal is well founded, it also follows from the rejection of those grounds of appeal that the present ground must be rejected.

The fifth ground of appeal, alleging that the Civil Service Tribunal was wrong to order the applicant to pay the costs, where the decisions to reject his previous administrative complaints were based on erroneous grounds

94 By this ground of appeal, the appellant submits that, under Article 87(2) of the Rules of Procedure of the Civil Service Tribunal, the Tribunal should have ordered the Commission to pay the costs or, at least, a part of them, on grounds of equity, since the Commission itself conceded that the re-assessment decision of the selection board of 9 November 2010 and the appointing authority’s decision of 16 June 2011 were incorrect, as regards the ground relating to the duty of comparative assessment of the candidates, irrespective of whether that ground of appeal is successful or not.

95 The Commission disputes the arguments of the appellant and considers that that ground is inadmissible.

96 It must be noted that, under Article 11(2) of Annex I to the Statute of the Court of Justice, an appeal before the General Court is limited to points of law and no appeal may lie regarding only the amount of the costs or the party ordered to pay them. Therefore, as the Commission contends, since all the other grounds of appeal have been rejected, any plea challenging the decision of the Civil Service Tribunal on costs must be rejected as inadmissible by virtue of that provision (see, to that effect, order of 16 December 2010 in Meister v OHIM, T-48/10 P, ECR-SC, EU:T:2010:542, paragraph 53 and the case-law cited).

97 Accordingly, the fifth ground of appeal must be rejected as inadmissible and the appeal must be dismissed in its entirety, including the appellant’s second head of claim seeking the annulment of the contested decision.

98 In accordance with the first paragraph of Article 148 of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the General Court is to make a decision as to costs.

99 Under the first subparagraph of Article 87(2) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 144 thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

100 Since the appellant has been unsuccessful in his claims on the appeal and the Commission has applied for costs, the appellant must bear his own costs and those incurred by the Commission in the present proceedings.

2. Orders Mr BX to bear his own costs and to pay those incurred by the European Commission in the course of the present proceedings.

The first ground of appeal alleging, in essence, that the Civil Service Tribunal was wrong to find that the appellant had not met the requirements regarding the standard of proof

The first part, alleging that all candidates are entitled to a comparative assessment

The third part, alleging that insufficient account was taken of the evidence and arguments adduced

The third ground of appeal, alleging that the Civil Service Tribunal erred in law in finding that the principle of equal treatment was not infringed

The fourth ground of appeal, alleging an infringement concerning the composition of the selection board

- The first part, alleging an unbalanced composition of the selection board, in accordance with the fifth paragraph of Article 3 of Annex III to the Staff Regulations

- The third part, alleging, in essence, infringement of the principle of stability of the selection board at the stage of re-examining the appellant’s file

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> BX v Commission (Judgment) [2015] EUECJ T-352/13 (23 April 2015) URL: http://www.bailii.org/eu/cases/EUECJ/2015/T35213.html Cite as: EU:T:2015:225, [2015] EUECJ T-352/13, ECLI:EU:T:2015:225

Court of Justice of the European Communities (including Court of First Instance Decisions)