This article was first published on the Online EU Training blog

The EU Civil Service Tribunal recently handed down its decision in the Pachtitis v. European Commission case – brought by an unsuccessful candidate in a previous EPSO pre-selection. Although details are not yet clear, the decision may have far-reaching consequences with regards to how EPSO organises it selection procedures and may even force EPSO to offer a second chance to candidates who were not pre-selected in the recent AD competition.

Highlights:
– Pre-Selection is part of the competition
– EPSO is not competent to make selection decisions – the Selection Board is
– Legality of recent pre-selection results are called into question
– Civil Service Tribunal decision may yet be appealed

The case originally involved a complaint by a candidate of an open competition wishing to contest the decision of EPSO not to admit him to the competition based on his score in the admission (pre-selection) test. The complaint was rejected by EPSO.

When the candidate sued, he requested that the decision to exclude him from the competition based on his score in the admission test be cancelled. After the Tribunal analysed the legal context and the background of the case, something more significant came to light. Traditionally, before the establishment of EPSO, the selection of successful candidates from all those candidates fulfilling other legal requirements was the sole responsibility of a kind of jury referred to as the Selection Board. The Selection Board still exists today and is responsible for selecting candidates for the reserve list in competitions, but, ever since its establishment, EPSO is responsible for organising the admission (or pre-selection) tests and the Selection Board has no role in determining the questions asked or the candidates allowed to go forward at this stage.

The Commission argued that this is normal, since the admission test is not part of the competition, therefore it does not fall under the jurisdiction of the Selection Board – it is merely designed to determine who will have access to the competition itself.

The Tribunal, however, concluded that the admission test, simply by virtue of the fact that it is designed to deny access to the competition to sometimes more than 90% of all otherwise eligible candidates, is part of the competition. Now that it is established that the admission test is part of the competition, it naturally follows that selection decisions should be made by the Selection Board. This has, unfortunately, not been the case, as the scoring of the admission tests and the selection of the top candidates have, since its establishment, been performed by EPSO. Based on the decision of the Tribunal, EPSO, according to current law, is simply not competent to be involved in such decisions.

In the particular case, the Tribunal annulled the EPSO decision that excluded the candidate from the competition, yet this decision, if confirmed on appeal, may call into question the legality of all pre-selection tests that have been conducted recently or will be organised in the future.

We do not yet have more information on how this problem will be rectified, but EPSO may very well be forced to offer candidates who were not ‘pre-selected’ in the most recent AD competition a second chance – this time in an admission test that is properly supervised by the Selection Board, as intended by law.

As for future competitions, we do not believe that this decision will change the selection procedure significantly, as by simply changing the rules governing personnel selection, the law can be adjusted to reflect the reality that 90% of candidates (those who do not succeed at the admission test) will bedisqualified by EPSO, and not by the Selection Board.

We will keep a close watch on any developments and keep you informed.

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