(Officials – Open competition – Multiple-choice questions – Accuracy of the answers in the marking sheet – Judicial review – Limits)

Full text in French II - 0000

Application: primarily, for annulment of the decision of the selection board in competition COM/A/10/01 excluding the applicant and awarding an insufficient number of marks for her to continue in the competition and of the decision rejecting her complaint and, in the alternative, for damages.

Held: The action is dismissed. Each party is to bear its own costs.

Summary

1. Officials – Actions – Act adversely affecting an official – Decision taken after re-examination of an earlier decision – Decision adopted by a competition selection board after re-examination of the situation of the candidate

(Staff Regulations, Arts 90(2) and 91(1))

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

(Staff Regulations, Art. 91)

(Staff Regulations, Annex III)

1. When a candidate in a competition seeks re-examination of a decision taken by the selection board, it is the decision taken by the selection board after re-examination of the situation which must be regarded as the act adversely affecting him. It is also that decision, taken after re-examination, which causes the periods for lodging a complaint and bringing an action to start to run, without there being any need to ascertain whether, in such a situation, that decision may be regarded as a purely confirmatory act.

(see para. 18)

See: T‑386/00 Gonçalves v Parliament [2002] ECR-SC I‑A‑13 and II‑55, para. 39, and the case-law cited therein

(see para. 24)

See: T‑34/91 Whitehead v Commission [1992] ECR II‑1723, para. 19; T‑128/96 Lebedef v Commission [1996] ECR-SC I‑A‑629 and II‑1679, para. 25

(see para. 25)

In the case of tests made up of multiple-choice questions, it is not for the Court to substitute its own correction for that of the selection board in the competition. Criticism of a question is called for, possibly in the light of the answers it proposes, only if it appears that the question was manifestly inappropriate in view of the purpose of the competition in question. That would be the case, inter alia, if it were clear from the explanations of the competition selection board that the various answers proposed for a question did not allow the sole correct answer to be determined, contrary to the specific instructions to do so given to the candidates. In that connection, the great difficulty of a question cannot constitute an indication of its inappropriate nature. A competition selection board is entitled to choose questions from a wide range of difficulty in order to achieve the primary objective of a competition which is to recruit officials of the highest standard of ability.

(see paras 35-36)

See: 64/86, 71/86 to 73/86 and 76/86 Sergio and Others v Commission [1988] ECR 1399, para. 22; T‑153/95 Kaps v Court of Justice [1996] ECR-SC I‑A‑233 and II‑663, para. 37