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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Luis GarcÃa DomÃnguez v European Commission [2014] EUECJ F-155/12 [2014] EUECJ C (25 February 2014) URL: https://www.bailii.org/eu/cases/EUECJ/2014/F15512.html Cite as: [2014] EUECJ F-155/12 [2014] EUECJ C |
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ORDER OF THE EUROPEAN UNION CIVIL
SERVICE TRIBUNAL (
First
Chamber)
class="C19Centre">25
February
2014Â (*)
(Civil service - Competitions
-
Competition
notice EPSO/AD/215/11 - Not included on the reserve list - Statement of reasons
for
a
decision
rejecting an application - Principle of equal treatment -
Conflict
of interests)
class="C02AlineaAltA">ACTION
brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof,
Luis GarcÃa DomÃnguez,
residing in Brussels (Belgium), represented by S. Rodrigues and A. Tymen, lawyers,
applicant,
v
European Commission,
represented by B. Eggers and G. Gattinara, acting as Agents,
defendant,
THE CIVIL
SERVICE TRIBUNAL (
First
Chamber)
class="C02AlineaAltA">composed
of H. Kreppel (Rapporteur), President, E. Perillo and R. Barents, Judges,
Registrar: W.Â
Hakenberg,
makes the following
class="C75Debutdesmotifs">Order
class="C01PointnumeroteAltN">
NAME="point1">1Â Â Â Â Â Â Â Â By application lodged at the Registry of the Tribunal on 19
December
2012, Mr GarcÃa
DomÃnguez
seeks the annulment of the
decision
by
which
the selection board of Open
Competition
EPSO/AD/215/11
decided
not to include him on the reserve list
for
that
competition,
and an order that the European
Commission
pay him
damages.
 Factual
background to the
dispute
class="C01PointnumeroteAltN">
NAME="point2">2Â Â Â Â Â Â Â Â On 25 May 2011, the European Personnel Selection Office (EPSO) published in the Official Journal of the European Union the notice of Open
Competition
EPSO/AD/215/11 to
constitute
a reserve list
for
the recruitment of administrators of Grade AD5 in the
field
of
communication
having as their native language
Dutch,
English, Estonian,
French,
Polish, Portuguese, Slovak, Slovenian, Spanish or Swedish (OJ
C
155 A, p. 1, ‘the
competition
notice’).
3Â Â Â Â Â Â Â Â The applicant applied for
Open
Competition
EPSO/AD/215/11 and
chose
Spanish as the language of the
competition
(‘the
competition’).
4Â Â Â Â Â Â Â Â After having passed the admission tests provided for
by the
competition
notice, the applicant sat tests (
d),
(e), (
f),
(g) and (h), those tests being referred to as ‘parts’ by the
competition
notice.
5Â Â Â Â Â Â Â Â Tests (d)
and (e),
which
were
intended to assess the specific
competencies
of
candidates
in the
field
of
communication,
consisted,
first,
in
drafting
a note relating to the
duties
in question and, second, in a structured interview.
6Â Â Â Â Â Â Â Â Tests (f),
(g) and (h),
which
were
intended to assess eight general
competencies
(analysis and problem-solving,
communication,
delivering
quality and results, learning and
development,
prioritising and organising, resilience,
working
with
others and leadership),
consisted
in a
case
study, a group exercise and an interview respectively.
7Â Â Â Â Â Â Â Â In addition, the competition
notice provided that tests (
d)
and (e)
were
each to be marked
from
0 to 50 points and that the pass mark
for
each of those tests
was
25 points. The marks obtained in the two tests (
d)
and (e)
were
to
count
for
50% of the overall mark. The eight general
competencies,
for
their part,
were
to be marked
from
0 to 80 points, that is to say, 10 points per
competency,
the pass mark being 3 points per
competency
and 40 points
for
all eight general
competencies.
The mark thus obtained in the assessment of the general
competencies
was
also to
count
for
50% of the overall mark.
8Â Â Â Â Â Â Â Â By email of 28 June 2012, EPSO informed the applicant that his name could
not be included on the reserve list
for
the
competition
(‘the
decision
of 28 June 2012’). In the ‘
Competency
Passport’, accessible by means of a hypertext link in the email, it
was
indicated, as regards the assessment of the specific
competencies,
that the selection board
for
Open
Competition
EPSO/AD/215/11 (‘the selection board’) had awarded the applicant 17 points out of 50 in test (
d),
that is,
fewer
points than the pass mark of 25 points, and 45 points out of 50 in test (e). It
was
also stated that the applicant had been awarded a total of 52 points out of 80 in the assessment of the general
competencies
and the ‘
Competency
Passport’ specified the mark obtained
for
each of the eight general
competencies.
9Â Â Â Â Â Â Â Â By email of 29 June 2012, supplemented by another email of 3 July 2012, the applicant sought the review of the decision
of 28 June 2012.
10Â Â Â Â Â Â By letter of 19 September 2012, the Chairman
of the selection board informed the applicant that his application
for
review had been refused (‘the
decision
of 19 September 2012’). He explained that the selection board
confirmed
the marks awarded to the applicant, in particular that of 17/50
for
test (
d).
11Â Â Â Â Â Â By email of 5 October 2012, the applicant asked to be sent the questions and background information provided for
test (
d),
the script
which
he had
written
in that test and the
corrections
of the assessors.
Following
that request, EPSO sent him a
copy
of test (
d).
12Â Â Â Â Â Â By email of 11 October 2012, the applicant requested from
EPSO his marked scripts and the general marking
criteria.
There
was
no reply to that request.
 Procedure and forms
of order sought
13Â Â Â Â Â Â The present action was
brought on 19Â
December
2012.
14Â Â Â Â Â Â The applicant claims
that the Tribunal should:
-Â Â Â Â Â Â Â Â annul the decision
of 19 September 2012;
-Â Â Â Â Â Â Â Â if necessary, annul the decision
of 28 June 2012;
-Â Â Â Â Â Â Â Â in the alternative, order that he be paid compensation
for
the harm suffered;
-Â Â Â Â Â Â Â Â order the Commission
to pay the
costs.
15Â Â Â Â Â Â The Commission
contends
that the
Court
should:
-Â Â Â Â Â Â Â Â dismiss
the action;
-Â Â Â Â Â Â Â Â order the applicant to pay the costs.
 Law
16Â Â Â Â Â Â Under Article 76 of the Rules of Procedure, where
an action is, in
whole
or in part, manifestly inadmissible or manifestly lacking any
foundation
in law, the Tribunal may, by reasoned order, give a
decision
on the action
without
taking
further
steps in the proceedings.
17Â Â Â Â Â Â In the present case,
the Tribunal
considers
that there is sufficient information in the
documents
before it and has
decided,
pursuant to Article 76 of the Rules of Procedure, to give a
decision
on the action
without
taking
further
steps in the proceedings.
1.     The claims
seeking annulment of the
decision
of 28 June 2012 and, if necessary, of the
decision
of 19 September 2012
18Â Â Â Â Â Â According to case-law,
where
a
candidate
in a
competition
seeks review of a
decision
taken by a selection board, it is the
decision
taken by the latter after the review of the
candidate’s
situation that
constitutes
the act adversely affecting him (judgment of 13
December
2006 in
CaseÂ
T-173/05 Heus v
Commission,
paragraph 19). It
follows
that, in the present
case,
it is only the
claims
for
annulment
directed
against the
decision
of 19 September 2012 that must be examined (‘the
contested
decision’).
19Â Â Â Â Â Â In support of the claims
seeking annulment of the
decision
of 19Â September 2012, the applicant raises 3 pleas in law alleging,
first,
infringement of the principle of equal treatment, the principle of sound administration and the
duty
to have regard
for
the
welfare
of
candidates,
second, infringement of the obligation to state reasons and the principle of sound administration and, third, a manifest error of assessment.
 The first
plea, alleging infringement of the principle of equal treatment, the principle of sound administration and the
duty
to have regard
for
the
welfare
of
candidates
class="C24Niveau5titre4">Â
Arguments of the parties
20Â Â Â Â Â Â In the first
part of the plea, the applicant
claims
that two of the
candidates
in the
competition
had an advantage in test (
d)
because of their previous experience in the Parliament press
department,
given that that test
consisted
in
drafting,
inter alia, a
fictitious
press release
concerning
the adoption of Regulation (EU) No 211/2011 of the European Parliament and of the
Council
of 16Â
February
2011 on the
citizens’
initiative.
21Â Â Â Â Â Â In the second part of the plea, the applicant submits that several members of the selection board had direct
links, before the
competition
tests,
with
certain
candidates
and should therefore have refused to sit on that board.
22Â Â Â Â Â Â The Commission
contends
that both parts of the applicant’s plea should be rejected.
 Findings
of the Tribunal
-Â Â Â Â Â Â Â The first
branch of the
first
plea
23Â Â Â Â Â Â It is settled case-law
that the principle of non-
discrimination
or equal treatment requires that
comparable
situations are not treated
differently
unless
differentiation
is objectively justified (see, to that effect, judgment of 26 September 1990 in
Case
T-48/89 Beltrante and Others v
Council,
paragraph 34). There is therefore an infringement of the principle of non-
discrimination
where
two
classes
of persons
whose
factual
and legal situations are not essentially
different
are treated
differently
or
where
different
situations are treated in an identical manner (judgment of 16 April 1997 in
Case
T-66/95 Kuchlenz-
Winter
v
Commission,
paragraph 55).
24Â Â Â Â Â Â The principle of equal treatment is a fundamental
principle of European Union law, and the selection board of a
competition
therefore has a
duty
to ensure that it is strictly observed between
candidates
in the
course
of that
competition.
While
the board enjoys a
wide
discretion
in the organisation and
detailed
content
of the tests, it is nevertheless
for
the European Union judicature to exercise its review as
far
as is necessary to ensure that
candidates
are treated equally and that the board is objective in selecting
from
them (judgment of 12 March 2008 in
Case
T-100/04 Giannini v
Commission,
paragraph 132).
25Â Â Â Â Â Â Lastly, in a competition
procedure, any examination generally and inherently involves a risk of unequal treatment given the necessarily limited number of questions that
can
reasonably be asked in an examination on a particular subject. It is, therefore, accepted that the principle of equal treatment may be
deemed
to have been breached only if the board has
failed,
when
choosing
the tests, to
confine
the risk of inequality of opportunity to that
which
is generally inherent in any examination (Giannini v
Commission,
paragraph 133).
26Â Â Â Â Â Â In the present case,
it is apparent
from
the
documents
in the
file
that test (
d)
consisted
in
drafting
a note
divided
into three parts (a press release, bullet points
for
a radio interview and a tweet),
concerning
the adoption of Regulation No 211/2011.
27Â Â Â Â Â Â Among the candidates
who
participated in the
competition
were
two persons
who,
at the
date
when
the
draft
Regulation No 211/2011
was
voted in by the Parliament, that is, 15
December
2010,
were
employed
within
the Spanish team of the Parliament’s press service. In addition, even though it is not proven that those two
candidates
were
themselves associated
with
the
drafting
of the press release issued on that occasion by the Parliament, it is not
disputed
that their names
were
mentioned as ‘media
contacts’
in the Spanish version of that press release.
28Â Â Â Â Â Â However, even if the choice
of Regulation No 211/2011 as the subject-matter
for
test (
d)
might have placed those two
candidates
at an advantage, such a
fact,
which
is part of the risk
which
is generally inherent in any
competition,
did
not
confer
on those
candidates
an advantage such as to infringe the principle of equal treatment.
29Â Â Â Â Â Â The subject-matter of test (d)
was
chosen
in order to prevent
candidates
who,
as a result of their previous professional experience, had acquired a
degree
of
familiarity
with
that subject
from
having a
decisive
advantage. In that regard, the theme of the
citizen’s
initiative
was
a subject of general interest about
which
there
was
wide
media
coverage
when
Regulation No 211/2011
was
adopted, and
which
did
not present any particular technical
difficulty.
Furthermore,
since the objective of test (
d)
was
to evaluate
competencies
rather than knowledge, all of the
candidates
were
provided
with
documents
enabling them to understand the
context
behind the adoption of Regulation No 211/2011. Lastly, it is apparent
from
the
documents
in the
file
that the subject had been
chosen
by the selection board
for
all of the 213
candidates
in Open
Competition
EPSO/AD/215/11 admitted to sit the tests, regardless of their linguistic group, and that that
choice
had been made before the
date
on
which
the results of the access tests and,
consequently,
the names of the
candidates
admitted to participate in the tests in that
competition,
were
known.
30Â Â Â Â Â Â The applicant cannot
call
that
finding
into question by relying on the authority of the judgment of 13
February
1979 in
Case
24/78 Martin v
Commission.
31Â Â Â Â Â Â Admittedly, in Martin v Commission,
the
Court
held that the
fact
that a
candidate
is placed at an unfair advantage by the
choice
of the subject
for
the
written
test of a
competition
constitutes
an infringement of the principle of equal treatment of
candidates,
such as to vitiate the subsequent procedure of the
competition
in question, and added that that is the
case
where
the
concrete
way
in
which
that subject is
defined
enables a
candidate
to profit
from
the special experience acquired in the performance, as a member of the temporary staff, of
duties
relating to the post put up
for
competition
(paragraphs 20 and 21).
32Â Â Â Â Â Â However, the factual
background to the present
case
differs
clearly
from
that of the
case
which
gave rise to Martin v
Commission.
In the latter
case,
besides the
fact
that only two
candidates
were
admitted to the
written
test, the subject-matter of that test required
detailed
knowledge and
was
therefore such as to place one of the two
candidates,
namely the
candidate
who
had
carried
out his professional activity in a
field
closely
related to the subject in question, at a
clear
advantage. Lastly, that subject had been
chosen
by the
competition
selection board at a
date
when
the board knew the identity of those two
candidates.
33Â Â Â Â Â Â In those circumstances,
the
first
part of the
first
plea must be rejected
without
it being necessary to rule on the admissibility of the
complaint
by the applicant,
who
did
not attain the minimum required in test (
d),
that other
candidates
were
placed at an advantage by the
choice
of the subject-matter of that test.
-Â Â Â Â Â Â Â The second part of the first
plea
34Â Â Â Â Â Â According to case-law,
in the assessment of a
conflict
of interests, the existence of professional relations between an official and a third party
cannot,
in principle, mean that the official’s independence is or appears to be impaired
when
that official is
called
upon to
decide
on a matter in
which
that third party is involved (judgments of 3
February
2005 in
CaseÂ
T-137/03 Mancini v
Commission,
paragraph 33, and of 12 July 2005 in
Case
T-157/04
De
Bry v
Commission,
paragraph 35). In addition, it has been held that the principle that the selection board must be impartial requires a member of the board to refrain
from
taking part in the assessment of a
candidate
where
there is a
direct
link between the board member and the
candidate
(Giannini v
Commission,
paragraph 224).
35Â Â Â Â Â Â In the present case,
the applicant
claims
that, because of the professional links
which
they had
with
certain
candidates,
three members of the selection board ought to have abstained and refused to participate in the
deliberations
concerning
those
candidates.
36Â Â Â Â Â Â In this connection,
admittedly, one of the members of the selection board
was
the head of the Spanish team of the Parliament’s press service
when
the two
candidates
mentioned in paragraph 27 above
were
employed there. However, it
cannot
be inferred
from
this
fact
that that member of the selection board had a
direct
link,
within
the meaning of Giannini v
Commission,
with
those two
candidates.
Furthermore,
that member of the selection board
confirmed,
in a sworn statement, the
credibility
of
which
is not
called
into question by any
document
in the
file,
that he
was
not responsible
for
the
choice
of the theme of the
citizen’s
initiative
for
test (
d).
Lastly, it must be pointed out that all the
candidates
in test (
d)
were
anonymised
for
the purposes of the marking of the test.
37Â Â Â Â Â Â Moreover, although several candidates
in the
competition
appear as ‘
friends’
on the ‘
Facebook’
account of two other members of the selection board, that status alone
does
not show that there are
direct
links between the members and those
candidates.
‘
Facebook’
is a social network on the internet
which
enables
certain
information to be published on it and shared
with
persons
categorised
as ‘
friends’.
The
fact
that two persons are ‘
friends’
on that network
does
not necessarily mean that there is a
friendship,
in the usual sense of the
word,
between those persons, but may merely be
due
to the
wish
of both those persons to exchange information on topics of general or professional interest. In addition, a person
who
is a ‘
friend’
of another person
does
not necessarily have access to all the information published by that person, since each
Facebook
user may
customise
the settings
for
the access
which
he
wishes
to grant to his personal
data.
38Â Â Â Â Â Â In those circumstances,
the second part of the
first
plea
cannot
be upheld.
39Â Â Â Â Â Â It follows
that the
first
plea must be rejected as manifestly lacking any
foundation
in law.
 The second plea, alleging the infringement of the obligation to state reasons and the principle of sound administration
 Arguments of the parties
40Â Â Â Â Â Â The applicant claims
that the selection board
did
not meet its obligation to state reasons so
far
as
concerns
test (
d).
Since test (
d)
was
made up of three separate exercises, he should have been informed of the ‘intermediate marks’
which
he
was
awarded
for
each of those exercises to enable him to understand his overall mark.
41Â Â Â Â Â Â The applicant also points out that the competition
notice stipulated that the eight general
competencies
would
be assessed by means of three tests, namely a
case
study (test (
f)),
a group exercise (test (g)) and an interview (test (h)). In the applicant’s opinion, the selection board should not have restricted itself to informing him of the marks obtained
for
those eight general
competencies.
The selection board
was
also required to inform him of the ‘intermediate marks’ awarded
for
each general
competency
in tests (
f),
(g) and (h) respectively.
42Â Â Â Â Â Â The Commission
contends
that the plea should be
dismissed.
 Findings
of the Tribunal
43Â Â Â Â Â Â The requirement that a decision
adversely affecting a person, such as that taken by a
competition
selection board
with
regard to a
candidate,
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 (judgments of 26 November 1981 in
Case
195/80 Michel v Parliament, paragraph 22, and of 4 July 1996 in
Case
C-254/95
P Parliament v Innamorati, paragraph 23).
44Â Â Â Â Â Â As regards decisions
taken by a
competition
selection board, 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 of Officials of the European Union. 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 European Union administration itself or the
candidates
concerned
or third parties. Observance of that secrecy therefore precludes both
disclosure
of the attitudes adopted by individual members of selection boards and
disclosure
of any
factors
relating to individual assessments of
candidates
(Parliament v Innamorati, paragraph 24).
45Â Â Â Â Â Â Having regard to the need to reconcile the obligation to state the reasons for
a
decision
adversely affecting a person
with
the observance of the secrecy surrounding 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 (Parliament v Innamorati, paragraph 31; judgment of 28 March 2012 in
Case
F-19/10
Marsili v
Commission,
paragraph 51).
46Â Â Â Â Â Â In the present case,
as regards the assessment of the specific
competencies
in the
field
of
communication,
it is apparent
from
the
documents
in the
file
that the selection board informed the applicant, through the ‘
Competency
Passport’, of the marks
which
he had obtained in tests (
d)
and (e), that is 17 out of 50 and 45 out of 50 respectively. As regards the assessment of the eight general
competencies,
the selection board also
communicated
to the applicant the marks awarded in respect of each of those
competencies.
47Â Â Â Â Â Â Thus, in the light of the case-law
referred to in the preceding paragraphs, the selection board
fulfilled
the obligation on it to state reasons
for
its
decision.
class="C01PointnumeroteAltN">
NAME="point48">48Â Â Â Â Â Â It must be added that the selection board
went
beyond
what
was
required by the
case-law,
since it
communicated
to the applicant its
written
assessments of the quality of his performance.
49Â Â Â Â Â Â The applicant cannot
criticise
the selection board, by relying in particular on the judgment of 28 April 2004 in
Case
T-277/02 Pascall v
Council,
for
not having
communicated
to him the ‘intermediate marks’
which
he submits
were
awarded
for
each of the three exercises
constituting
test (
d).
50Â Â Â Â Â Â Admittedly, at paragraph 28 of Pascall v Council,
the
Court
of
First
Instance held that,
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.
51Â Â Â Â Â Â However, it must be observed that, in the present case,
the
competition
notice,
which
constituted
the legal
framework
for
the
competition,
merely stated that test (
d),
consisting
in the
drafting
of a note relating to the
duties
in question,
would
be marked
from
0 to 50 points and
did
not provide
for
the award of any ‘intermediate marks’.
Furthermore,
in its pleadings, the
Commission
expressly
denied
that the selection board awarded such ‘intermediate marks’.
52Â Â Â Â Â Â Likewise, given that the competition
notice obliged the selection board only to award a mark in respect of each of the eight general
competencies,
the
Commission
has
formally
disputed
- and there is no
document
in the
file
such as to
cast
any
doubt
on its assertions - that ‘intermediate marks’
were
granted
for
each general
competency
in tests (
f),
(g) and (h) respectively.
53Â Â Â Â Â Â In any event, even if the selection board were
to have awarded such intermediate marks in tests (
f),
(g) and (h), the applicant
would
have no legitimate interest in alleging that those marks
were
not
communicated
to him, since he
was
allocated a mark below the pass mark in test (
d)
and has not been able to
demonstrate,
as it
will
be seen in paragraphs 58 to 60 below, that that mark is vitiated by a manifest error of assessment.
54Â Â Â Â Â Â Lastly, the fact
that the selection board
delayed
in answering emails sent by the applicant after the
contested
decision
has no effect on the legality of that
decision.
55Â Â Â Â Â Â It follows
that the second plea must be rejected as manifestly lacking any
foundation
in law.
 The third plea, alleging a manifest error of assessment
 Arguments of the parties
56Â Â Â Â Â Â The applicant claims
that the selection board
committed
a manifest error of assessment in awarding him only 17 points in test (
d).
He points out in particular that that mark is
consistent
neither
with
the mark
which
he obtained in test (e) nor
with
his previous professional experience. He adds that the press release
which
he
drafted
in test (
d)
met all the requirements of a good press release and,
consequently,
deserved
a higher mark.
57Â Â Â Â Â Â The Commission
contends
that the plea should be
dismissed.
 Findings
of the Tribunal
58Â Â Â Â Â Â First
of all, it is settled
case-law
that the assessments made by a selection board in a
competition
when
it evaluates the knowledge and abilities of
candidates
and also the
decisions
whereby
the selection board
determines
that a
candidate
has
failed
a test
constitute
the expression of a value judgment. They
fall
within
the
wide
discretion
enjoyed by the selection board and are amenable to review by the European Union judicature only
where
there has been a
flagrant
breach of the rules governing the selection board’s
work
(judgment of 5 April 2005 in
Case
T-336/02
Christensen
v
Commission,
paragraph 25).
59Â Â Â Â Â Â In the present case,
none of the arguments put
forward
by the applicant is such as to establish that the selection board
committed
a manifest error of assessment in awarding him only 17 points
for
test (
d).
While
the applicant
claims
that that mark is inconsistent
with
the high mark
which
he obtained
for
test (e), that
fact
does
not suggest that there is such an error, since the performance of a
candidate
in successive tests may vary
from
one test to another (judgment of 13
December
2012 in
Case
F-101/11
Mileva v
Commission,
paragraph 45).
Furthermore,
it has been held that a selection board, in its evaluation of the
candidates’
professional knowledge and of their abilities and motivation, must
decide,
exclusively and independently, solely on the basis of the
candidates’
performance, in accordance
with
the requirements of the notice of
competition
(judgment of 14 July 2000 in
Case
T-146/99 Teixeira Neves v
Court
of Justice, paragraph 41). Thus, the applicant
cannot
profitably rely on his lengthy previous professional experience in order to
challenge
the mark awarded to him in test (
d).
Lastly, nor
does
the applicant’s personal belief that he
drafted
a note meeting all the requirements of a good press release
constitute
proof of a manifest error of assessment.
60Â Â Â Â Â Â Consequently,
the plea alleging a manifest error of assessment must be
dismissed
as manifestly lacking any
foundation
in law.
61Â Â Â Â Â Â Since none of the pleas raised against the contested
decision
have been upheld, the
claims
for
annulment of that
decision
must be
dismissed
as manifestly lacking any
foundation
in law.
2.     The claims
for
damages
class="C01PointnumeroteAltN">
NAME="point62">62Â Â Â Â Â Â The applicant
claims
that, should the Tribunal
decide
not to annul the
contested
decision,
he has nevertheless suffered loss by losing a
chance
to be included on a reserve list. He submits that his loss,
for
which
the
Commission
should be ordered to pay
compensation,
amounts to EURÂ 30Â 000.
63Â Â Â Â Â Â However, the European Union can
be held non-
contractually
liable
for
the unlawful
conduct
of its institutions only if three
conditions
are satisfied, namely that the allegedly
wrongful
act
committed
by the institutions
was
illegal, actual harm
was
suffered and there is a
causal
link between the act of
which
the institution is accused and the
damage
alleged to have been suffered (judgment of 9 September 1999 in
CaseÂ
C-257/98
P Lucaccioni v
Commission,
paragraph 11).
64Â Â Â Â Â Â However, in the present case,
since all the applicant’s pleas have been rejected, he
cannot
claim
to have been the victim of an illegal act on the part of the
Commission.
65Â Â Â Â Â Â Consequently,
the
claims
for
damages
must be
dismissed
as manifestly lacking any
foundation
in law.
66Â Â Â Â Â Â It follows
from
the
foregoing
that the action must be
dismissed
as manifestly lacking any
foundation
in law.
 Costs
class="C01PointnumeroteAltN">
NAME="point67">67Â Â Â Â Â Â Under Article 87(1) of the Rules of Procedure,
without
prejudice to the other provisions of
Chapter
8 of Title II of those rules, the unsuccessful party is to be ordered to pay the
costs
if they have been applied
for
in the successful party’s pleadings. Under Article 87(2), the Tribunal may, if equity so requires,
decide
that an unsuccessful party is to pay only part of the
costs
or even that that party is not to be ordered to pay any.
68Â Â Â Â Â Â It follows
from
the grounds of the present order that the applicant is the unsuccessful party.
Furthermore,
the
Commission
expressly
claimed
in its pleadings that the applicant should be ordered to pay the
costs.
Since the
circumstances
of the present
case
do
not
warrant
application of Article 87(2) of the Rules of Procedure, the applicant must bear his own
costs
and be ordered to pay the
costs
incurred by the
Commission.
On those grounds,
THE CIVIL
SERVICE TRIBUNAL (
First
Chamber)
class="C02AlineaAltA">hereby
orders:
1.      The action is dismissed
as manifestly lacking any
foundation
in law;
2.      Mr. GarcÃa DomÃnguez
is to bear his own
costs
and shall pay the
costs
incurred by the European
Commission.
Luxembourg, 25 February
2014.
|  |       H. Kreppel |
Registrar | Â | Â Â Â Â Â Â President |
The texts of the present decision
and the texts of the
decisions
of the
Courts
of the European Union
cited
in it are available on the internet site
www.curia.europa.eu.
class="C49FootnoteLangue">
HREF="#
Footref*"
NAME="
Footnote*">*Â
Language of the
case: English.