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

JUDGMENT OF THE GENERAL COURT (First Chamber)

14 December 2022 (*)

(Civil service – ECB staff – Recruitment – Vacancy notice – Procedure for filling a post of [confidential] 1 Confidential information redacted.  – Selection criteria – Professional experience – Rejection of application – Appointment of another candidate – Obligation to state reasons – Manifest error of assessment – Misuse of powers – Interests of the service – Liability – Material and non-material damage)

In Case T‑440/21,

TM, represented by L. Levi and A. Champetier, lawyers,

applicant,

v

European Central Bank (ECB), represented by B. Ehlers and D. Nessaf, acting as Agents, and by B. Wägenbaur, lawyer,

defendant,

THE GENERAL COURT (First Chamber),

composed, at the time of the deliberations, of H. Kanninen, President, M. Jaeger and O. Porchia (Rapporteur), Judges,

Registrar: L. Ramette, Administrator,

having regard to the written part of the procedure,

further to the hearing on 12 July 2022,

gives the following

Judgment

1        By his action under Article 270 TFEU and Article 50a of the Statute of the Court of Justice of the European Union, the applicant, TM, seeks (i) annulment of the decision of the European Central Bank (ECB) of 15 December 2020 not to appoint him to the position of [confidential] (‘[confidential]’) but to appoint [confidential] (‘the selected candidate’) to that position, and (ii) compensation for the material and non-material damage which he claims to have suffered as a result of that decision.

I.      Background to the dispute

2        The applicant, who holds a degree in [confidential] science, was employed by the ECB in 2005 as a senior manager in [confidential]. In 2011 he was promoted to the post of Deputy [confidential] of [confidential].

3        In September 2018, [confidential] was informed that the incumbent of the position of [confidential] of that DG would be leaving the ECB on 30 September 2019. The position thus became vacant as of 1 October 2019. Initially, the ECB considered the possibility of filling the position internally, by direct appointment, but subsequently decided against that approach.

4        Then, in October 2018, the ECB launched an external recruitment procedure that was open to all internal and external candidates (‘the first recruitment procedure’), for which it published a vacancy notice (‘the first vacancy notice’). The applicant submitted his application. In December 2018, the ECB suspended the first recruitment procedure before any tests had been held. That decision has not been challenged.

5        In 2019, another external recruitment procedure to which internal candidates were admitted (‘the second recruitment procedure’) was launched with the publication of a second vacancy notice (‘the second vacancy notice’) relating to the same position. The candidates who had applied in response to the first vacancy notice were automatically treated as candidates in the new procedure.

6        On 3 December 2019, the Chief Services Officer (‘CSO’) informed the staff of [confidential] that the second recruitment procedure had been closed, but that he was not in a position to announce the name of the new [confidential] of that DG.

7        By letter of 20 January 2020, the Executive Board informed the applicant that the second recruitment procedure had been closed without any list of suitable candidates having been drawn up. That decision has not been challenged.

8        In November 2020, the ECB published a further vacancy notice for the position of [confidential] (‘the third vacancy notice’), to which the applicant again responded (‘the third recruitment procedure’).

9        The essential selection criteria set out in the third vacancy notice included the following:

–        ‘at least 10 years’ [confidential] experience with demonstrated success as a technology executive in roles of increasing responsibility within an organisation on a scale commensurate to that of the ECB’ (‘the second requirement’);

–        ‘cross-functional team leadership: at least five years’ experience in leading and motivating a team of highly qualified managers and staff (50+ people) from diverse, preferably multinational backgrounds, to high levels of performance and engagement as well as a track record in creating environments in which teams are willing and able to innovate’ (‘the third requirement’);

–        ‘in-depth knowledge of next-generation technology innovation and understanding how these can be leveraged for the ECB’s purpose and strategy, as well as proven experience with software as a service (SAAS) and [confidential]-based, outsourced solutions through third-party providers’ (‘the tenth requirement’);

–        ‘professional experience in project and vendor management including large outsourcing partnerships’ (‘the eleventh requirement’).

10      On 14 December 2020, the applicant was interviewed by the selection committee.

11      On 15 December 2020, the Executive Board adopted the list of suitable candidates as proposed by the selection committee, which included the name of the applicant. On the same day, the Executive Board decided to appoint the selected candidate (‘the decision of 15 December 2020’).

12      On the same day, the CSO informed the applicant orally of the outcome of the selection procedure, indicating to him that there had been better candidates, based on the scoring.

13      On 8 January 2021, staff were informed, by means of an announcement published on the ECB’s intranet site, of the appointment of the selected candidate as [confidential] with effect from 1 July 2021.

14      On 11 January 2021, the applicant was informed by letter sent via the computerised recruitment system of the inclusion of his name on the list of suitable candidates and of the appointment of the selected candidate.

15      On 18 January 2021, the applicant received his application feedback report, the substance of which was repeated to him in an informal exchange with the Deputy Director-General of DG Human Resources on 26 January 2021.

16      On 12 February 2021, the applicant lodged a special appeal, within the meaning of Article 41 of the ECB’s Conditions of Employment (‘the Conditions of Employment’), challenging the decision of 15 December 2020.

17      On 11 May 2021, the Executive Board rejected the applicant’s special appeal (‘the decision of 11 May 2021’). That decision was communicated to the applicant by letter from the President of the ECB of 18 May 2021, which was sent by email on the same day and receipt of which was acknowledged by the applicant on 21 May 2021.

II.    Forms of order sought

18      The applicant claims that the Court should:

–        annul the decision of 15 December 2020;

–        annul, if need be, the decision of 11 May 2021;

–        order the ECB to compensate him for material damage in the amount of EUR 73 679.47;

–        order the ECB to compensate him for non-material damage by the payment of one symbolic euro;

–        order the ECB to pay all the costs, even if the action is dismissed.

19      The ECB contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

III. Law

A.      Subject matter of the action

20      By the present action, the applicant claims that the Court should annul the decision of 15 December 2020 and, if necessary, the decision of 11 May 2021.

21      In that regard, it should be recalled that, according to settled case-law, the administrative complaint such as referred to in Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), and its rejection, whether express or implied, constitute an integral part of a complex procedure and are no more than a precondition for bringing the matter before the Courts of the European Union. Consequently, the action before those courts, even if formally directed against the rejection of the complaint, has the effect of bringing before the Courts of the European Union the act adversely affecting the applicant and against which the complaint was submitted, except where the scope of the rejection of the complaint differs from that of the measure against which that complaint was made (see judgment of 28 May 2020, Cerafogli v ECB, T‑483/16 RENV, not published, EU:T:2020:225, paragraph 70 and the case-law cited).

22      Furthermore, it should be noted that, pursuant to Article 9(c) of the Conditions of Employment, ‘in interpreting the rights and obligations under the … Conditions of Employment, due regard shall be shown for the authoritative principles of the regulations, rules and case-law which apply to the staff of other [EU] institutions’.

23      It should also be noted that Article 41 of the Conditions of Employment and Article 8.1 of the ECB Staff Rules (‘the Staff Rules’) provide for a pre-contentious procedure the observance of which is a precondition for bringing legal proceedings against the decisions or acts of the ECB. In accordance with Article 8.1 of the Staff Rules, the pre-contentious procedure comprises two stages: first, an administrative review procedure and, secondly, a grievance procedure or a special appeals procedure depending on the body of the ECB which has adopted the contested decision (judgment of 28 May 2020, Cerafogli v ECB, T‑483/16 RENV, not published, EU:T:2020:225, paragraph 74).

24      Accordingly, inasmuch as the conditions governing admissibility of actions brought before the Court of Justice of the European Union against the decisions or acts of the ECB, provided for in the body of rules applicable to ECB staff, are similar to those provided for in Article 90(1) and (2) of the Staff Regulations, the case-law referred to in paragraph 21 above should be applied by analogy (see, to that effect, judgment of 28 May 2020, Cerafogli v ECB, T‑483/16 RENV, not published, EU:T:2020:225, paragraph 75 and the case-law cited).

25      In the present case, the decision of 11 May 2021 rejecting the applicant’s special appeal merely confirms the decision of 15 December 2020. The fact that the authority authorised to determine the special appeal has been led, in response to that appeal, to supplement or amend the grounds of the decision of 15 December 2020 cannot justify the rejection of that appeal being regarded as an autonomous act adversely affecting the applicant, since the reasons for that rejection are deemed to be incorporated in the contested decision against which that appeal was brought (see, to that effect, judgment of 9 December 2009, Commission v Birkhoff, T‑377/08 P, EU:T:2009:485, paragraph 55 and the case-law cited).

26      Accordingly, it must be held that the act adversely affecting the applicant is the decision of 15 December 2020 (‘the contested decision’), the legality of which must be examined while also taking into consideration the statement of reasons contained in the decision of 11 May 2021.

B.      Claim for annulment

27      In support of the claim for annulment, the applicant puts forward three pleas in law, alleging, respectively (i) a manifest error of assessment, infringement of Article 8a(c) of the Conditions of Employment, infringement of Article 1a.1.1(b), Article 1a.2.1.1 and Article 1a.2.6.1 of the Staff Rules, infringement of the third vacancy notice and infringement of the interests of the service; (ii) illegality of the third recruitment procedure because of the infringement of the fourth paragraph of Article 1a.3.1.2 of the Staff Rules and misuse of powers; and (iii) infringement of Articles 1a.2.7.9 to 1a.2.7.11 of the Staff Rules, a failure to state reasons and breach of the principle of good administration.

28      The Court considers it appropriate to assess the third plea first, then the second plea, and finally the first plea.

1.      Third plea in law, alleging infringement of Articles 1a.2.7.9 to 1a.2.7.11 of the Staff Rules, a failure to state reasons and breach of the principle of good administration

29      In the context of the third plea in law, first, the applicant submits that, contrary to Article 1a.2.7.11 of the Staff Rules, according to which the ECB ‘shall inform the candidates of the outcome of the selection procedure’, he never received any individual notification informing him that his application had been rejected and that the selected candidate had been appointed. It was only in a telephone conversation that he was first informed that his application had been rejected. The decision to appoint the selected candidate was then announced via the ECB’s intranet. There was therefore no ‘document giving notice of the decision’, which infringed his right to a clear statement of reasons.

30      Secondly, the applicant expresses doubts as to whether the selection committee provided the appointing authority with the documents mentioned in Article 1a.2.7.9 of the Staff Rules on the basis of which the appointing authority is to draw up, in accordance with Article 1a.2.7.10 of those rules, a list of suitable candidates for the position to be filled. The applicant also recalls having asked DG Human Resources for those documents and for the comparison list of the shortlisted candidates, but never received them.

31      Thirdly and lastly, the applicant maintains that, in the light of these points, he is not able to understand the rationale for the contested decision, as his application feedback report, which he received on 18 January 2021 (see paragraph 15 above), contains no information about the scoring. At the hearing, the applicant explained that he had not understood why the selection committee considered his application less suitable than that of the selected candidate.

32      The ECB disputes the applicant’s arguments.

33      As a preliminary point, it should be stated that, in response to a question put by the Court at the hearing, the applicant indicated that all the arguments put forward in support of the third plea were to be understood as seeking, in essence, to argue that the contested decision was vitiated by a failure to state reasons in that it did not explain the reasons that led the ECB to consider him less suitable for the position to be filled than the selected candidate. In particular, it is precisely because of that alleged failure to state reasons that the applicant expresses doubts as to whether the selection committee provided the appointing authority with the documents referred to in Articles 1a.2.7.9 and 1a.2.7.10 of the Staff Rules; accordingly those doubts cannot be interpreted as a complaint which is independent in scope and concerns the infringement of those provisions or the obtaining of access to those documents.

34      In the first place, it should be recalled that, according to settled case-law, the obligation to state reasons is intended, on the one hand, to provide the person concerned with sufficient information to determine whether the act adversely affecting that person was well founded and whether it is appropriate to bring proceedings before the Court, and, on the other, to enable the Court to carry out its review. The extent of the obligation must be considered in the light of the specific circumstances of the case, in particular the content of the act, the nature of the grounds relied upon and the interest which the addressee might have in receiving an explanation (see judgment of 5 July 2005, Wunenburger v Commission, T‑370/03, EU:T:2005:271, paragraph 28 and the case-law cited).

35      It is also apparent from the case-law that, in order to determine whether a statement of reasons is sufficient, it must be considered in the context in which the contested act was adopted (see judgment of 5 July 2005, Wunenburger v Commission, T‑370/03, EU:T:2005:271, paragraph 29 and the case-law cited).

36      The appointing authority is not required to state reasons for a decision not to accept an application. On the other hand, the appointing authority is required to give reasons for its decision rejecting the special appeal brought under Article 41 of the Conditions of Employment and Article 8.1 of the Staff Rules by an unsuccessful applicant (see, by analogy, judgment of 5 July 2005, Wunenburger v Commission, T‑370/03, EU:T:2005:271, paragraph 30 and the case-law cited).

37      Similarly, since the filling of vacant posts is by selection, the appointing authority is not required to disclose to the unsuccessful candidate details of its comparison of his or her merits and those of the successful candidate nor to set out in detail in what way it considered that the candidate appointed fulfilled the conditions in the vacancy notice. It is sufficient that the statement of reasons deals with the satisfaction of the legal conditions which, under the Staff Rules, govern the regularity of the procedure (see, by analogy, judgment of 5 July 2005, Wunenburger v Commission, T‑370/03, EU:T:2005:271, paragraph 31 and the case-law cited).

38      In the second place, it should be noted first of all that, in the present case, on 15 December 2020, the Executive Board took the decision by which it adopted the list of suitable candidates as proposed by the selection committee, and decided to appoint the selected candidate to the post of [confidential] (see paragraph 11 above). On the same day, that decision was communicated orally to the applicant. As the applicant confirms in the application, on 15 December 2020, he received a telephone call from the CSO informing him that there had been better candidates, based on the scoring (see paragraph 12 above).

39      Next, it is apparent from the file that, on 11 January 2021, the applicant received a letter through the computerised recruitment system notifying him of the decision of 15 December 2020 (see paragraph 14 above). In particular, it is apparent from that letter, the existence of which and the fact that it constituted formal notification were confirmed by the applicant at the hearing, that the selection committee had completed its assessment and that the Executive Board had decided to appoint another candidate. That letter also makes clear that, even though he had not obtained the highest score, the applicant had been considered suitable for the position that was to be filled and had therefore been placed on the list of suitable candidates, which, moreover, was subsequently confirmed to him on 26 January 2021 in an informal exchange with the Deputy Director-General of DG Human Resources.

40      Lastly, as the applicant confirmed at the hearing, on 18 January 2021 he received the feedback report providing him with detailed information about his performance in the presentation and the tests conducted at the interview.

41      Therefore, it appears that the ECB informed the applicant of the outcome of the selection procedure by means of both an oral and a written individual communication. Furthermore, in that regard, it should be noted that the first paragraph of Article 1a.2.7.11 of the Staff Rules does not specify the form in which the ECB must inform the candidates for a post of the outcome of the selection procedure. Consequently, the ECB cannot be accused of having infringed the first paragraph of Article 1a.2.7.11 of the Staff Rules.

42      In the third place, it must be stated that, by the decision of 15 December 2020 and the documents referred to in paragraphs 39 and 40 above, the ECB provided the applicant with all the information necessary to understand the reasons why he had not been appointed.

43      Furthermore, it is apparent from the decision of 11 May 2021 that the appointing authority appointed the selected candidate to the position that was to be filled because, ‘following the outcome of the selection procedure [she] had demonstrated superior merits’. That statement of reasons makes it possible to understand the basis of the contested decision. Moreover, the reasons given for the decision of 11 May 2021 were sufficient to enable the applicant to assess whether the conditions to which, under the Staff Rules, the lawfulness of the recruitment procedure in question was subject had been satisfied. In particular, the appointing authority explains, in the section headed ‘Salient facts’, the various steps leading to the appointment of the selected candidate and the rejection of the applicant’s application.

44      In so far as, as the applicant made clear at the hearing, he is seeking by the third plea to ascertain the selected candidate’s score, it should be noted that, in accordance with the second paragraph of Article 1a.2.7.11 of the Staff Rules, ‘the proceedings of the selection committee are and remain confidential’, and that, ‘notwithstanding the confidentiality of the selection procedure, candidates shall be entitled to have access to their respective submissions in the selection procedure and the parts of the assessment relating to them including any reference information’.

45      As is apparent from the decision of 11 May 2021, that provision reflects the principle of the secrecy of the deliberations of the selection board recognised by the case-law, which was introduced with a view to guaranteeing the independence of selection committees and the objectivity of their proceedings, by protecting them from all external interference and pressures, whether from the EU administration itself, the candidates concerned or third parties. In particular, it is apparent from that case-law that observance of that 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 (see, to that effect, judgment of 7 February 2019, Duym v Council, T‑549/17, not published, EU:T:2019:72, paragraph 41 and the case-law cited).

46      It follows from this that the applicant, who received his feedback report, the substance of which was repeated to him orally on 26 January 2021, cannot reasonably claim to be entitled to know all aspects of the comparative assessment which the appointing authority made of the other candidates, in particular of the selected candidate, or her scoring.

47      Accordingly, contrary to what the applicant maintains, the obligation to state reasons was not infringed in the circumstances of the present case. The third plea in law must therefore be rejected as being unfounded.

2.      Second plea in law, alleging that the third recruitment procedure was unlawful

(a)    First part of the second plea in law, alleging infringement of the fourth paragraph of Article 1a.3.1.2 of the Staff Rules

48      The applicant argues that, having published the third vacancy notice in the context of an external recruitment procedure, the ECB infringed the fourth paragraph of Article 1a.3.1.2 of the Staff Rules. In particular, the ECB failed to observe the criteria for external recruitment to be permissible that are laid down in points (b) and (c) of the fourth paragraph of that article.

49      As regards the criterion laid down in point (b) of the fourth paragraph of Article 1a.3.1.2 of the Staff Rules, the applicant submits that this was not fulfilled since his application met all the requirements for the post and, therefore, that the required competencies were available within the ECB.

50      In the reply, the applicant states that the ECB’s proposed interpretation of the criterion in (b), according to which ‘availability’ requires a choice for the appointing authority of more than one candidate, is not supported by the wording of the provision concerned. Moreover, even if the ECB’s interpretation were correct, the ECB had failed to prove or to show how the appointing authority came to the conclusion that there was only a limited number of internal candidates available, or how it had weighed this against its own recruitment strategy.

51      As regards the criterion in point (c) of the fourth paragraph of Article 1a.3.1.2 of the Staff Rules, the applicant submits that, after the former [confidential] left his post, there was an attempt to recruit internally and the two individuals who applied were men. Gender, therefore, was not an issue. Moreover, the nationality of the selected candidate was already over-represented within the ECB, so that her appointment would not have served any diversity goal.

52      The applicant also notes that the decision of 11 May 2021 states that ‘the Executive Board took a formal decision on 27 October 2020 as to determine whether and which internal or external means could be used for launching the said selection procedure’. In particular, he maintains, it is apparent from that decision that the Executive Board concluded that it was necessary to launch an external recruitment procedure, inter alia, to accelerate the ongoing transformation of [confidential] which was aimed at enhancing the ECB’s [confidential] capabilities.

53      In that regard, first, the applicant claims that he has never been provided with that decision of 27 October 2020. Secondly, he maintains that it is not clear to him why opening an external recruitment procedure would have been the only way to enhance the ECB’s [confidential] capabilities. Furthermore, according to the applicant, that decision is contrary to the ECB’s new hiring provisions outlined in the human resources announcement published on the intranet on 11 July 2019, under the heading ‘Recognition of internal talent’ (‘the communication of 11 July 2019’), a presentation of which was annexed to the reply.

54      Furthermore, the applicant contends that he had far better chances of being appointed in an internal recruitment procedure than in an external one.

55      Therefore, according to the applicant, the recruitment procedure should have been conducted internally first. Even though it would be possible to extend a recruitment procedure and to publish a vacancy notice for a position that is open to external candidates, that cannot justify a modification of the criteria of the vacancy notice, as had occurred in this case with the removal from the second vacancy notice of all the criteria relating to professional experience in [confidential].

56      The ECB disputes the applicant’s arguments.

57      As a preliminary point, it should be recalled that the second to fourth paragraphs of Article 1a.3.1.2 of the Staff Rules provide as follows:

‘Before filling a position that is available for one year or longer using external means, the appointing authority shall first consider whether the position can be filled by internal horizontal mobility, or by appointing a member of staff who has been placed on a valid list of suitable candidates resulting from an internal selection procedure in accordance with Article 1a.3.3. Only thereafter shall the appointing authority launch an internal selection procedure.

When a position that is available for one year or longer is to be filled using external means, the appointing authority shall first consider whether the position can be filled by appointing a short-term contract employee in accordance with the Rules for Short-term Employment … or by appointing a candidate who has been placed on a valid list of suitable candidates resulting from an external selection procedure in accordance with Article 1a.3.3. Only then shall the appointing authority launch an external selection procedure.

The appointing authority may decide to fill a position available for one year or longer by external means without prior use of the internal means of filling the position based in particular on: (a) the specific requirements of the position to be filled; (b) the availability of the required qualifications, experience, skills and competencies within the ECB; and (c) diversity aspects.’

58      As the parties submit, the provisions in the second and third paragraphs of Article 1a.3.1.2 of the Staff Rules are the rule, while the provision in the fourth paragraph of that article is the exception.

59      In the present case, the applicant claims, in essence, that the criteria in points (b) and (c) of the fourth paragraph of Article 1a.3.1.2 of the Staff Rules were not fulfilled.

60      In that regard, it should be noted, first, that in the present case, as the applicant confirmed at the hearing, before an external recruitment procedure was launched to fill the position in question, an attempt was made to recruit using internal means. Indeed, as early as October 2018, the ECB contacted two senior ECB managers, who declined, however, to participate in that internal recruitment procedure.

61      Secondly, as regards the criterion in point (b) of the fourth paragraph of Article 1a.3.1.2 of the Staff Rules, it must be noted that the mere assertion by the applicant that his competencies corresponded to the profile of the position to be filled and were already available within the ECB is not sufficient to prove that that criterion was not fulfilled in the present case. That assertion does not take into consideration the comparative analysis which the appointing authority may wish to carry out in order to fill a position.

62      Furthermore, the fact that the applicant was an internal candidate who was suitable for the position to be filled – which, moreover, is not disputed by the ECB – cannot preclude the appointing authority from initiating an external recruitment procedure. As the ECB correctly contends, the criterion in point (b) of the fourth paragraph of Article 1a.3.1.2 of the Staff Rules must be interpreted in the logic of a selection procedure, which, in accordance with Article 1a.1.1(b) of those rules, is a competitive procedure involving the participation, at the very least, of more than just one candidate. Furthermore, subject to the application of the relevant provisions of the Staff Rules, it is apparent from the case-law that, in view of the wide discretion enjoyed by the appointing authority in the matter, even when valid applications meet all the requirements and conditions laid down in a particular vacancy notice, the appointing authority is not obliged to organise an internal recruitment procedure, but has a discretionary power to extend its field of choice in the interests of the service (see, to that effect, judgment of 16 January 2001, Chamier and O’Hannrachain v Parliament, T‑97/99 and T‑99/99, EU:T:2001:8, paragraph 34 and the case-law cited).

63      In the present case, the Executive Board considered it necessary to extend the recruitment procedure to external candidates for the service reasons specified in the Executive Board’s decision of 27 October 2020, which was adopted, pursuant to the fourth paragraph of Article 1a.3.1.2 of the Staff Rules, in accordance with the memorandum of 26 October 2020 from the ECB’s DG Human Resources, those two documents having been produced by the ECB in response to a measure of organisation of procedure adopted by the Court. In particular, it is apparent from reading those documents together that, in view of the desire, in particular, to accelerate the ongoing transformation of [confidential] which was aimed at enhancing the ECB’s [confidential] capabilities and establishing an ambitious strategy in that field for future years, and the unsuccessful outcome of the second recruitment procedure, in which the skills of both external and internal candidates had been assessed, the Executive Board decided to launch an external recruitment procedure in order to extend the pool of potential applicants.

64      In that regard, it should be pointed out that the applicant has not proved that the Executive Board’s assessment of the need to extend the choice of possible candidates in this way was vitiated by an error of law or of fact.

65      The applicant merely refers to doubts as to whether the Executive Board’s decision of 27 October 2020 was compatible with the ECB’s new hiring rules set out in the communication of 11 July 2019, and to difficulties in understanding why opening the recruitment procedure externally was the only way to enhance the ECB’s [confidential] capabilities. In addition, at the hearing, the applicant disputed the notion that the failure of the second recruitment procedure could have justified the use of an external recruitment procedure, given that 11 months had elapsed between the second and third recruitment procedures, and maintained that, therefore, the ECB should have checked, by means of an internal recruitment procedure, whether other internal candidates had in the meantime acquired the requisite experience for the position to be filled.

66      In that regard, it should be noted, first, that, as stated in paragraph 63 above, the Executive Board’s decision of 27 October 2020 was adopted pursuant to the fourth paragraph of Article 1a.3.1.2 of the Staff Rules, the content of which reflects the new hiring rules set out in the communication of 11 July 2019. Those rules allowed for the possibility of publishing vacancy notices externally if there was a justified business case. In particular, that possibility could depend on the ‘requirements of the position and the availability of internal talent with the necessary qualifications, experience, skills and competencies, as well as diversity aspects’. Consequently, the applicant cannot reasonably claim that the decision to use an external recruitment procedure infringed the new rules on recruitment referred to in the communication of 11 July 2019.

67      Secondly, as the ECB correctly pointed out at the hearing, the opening of an external recruitment procedure does not preclude the possibility that internal candidates who have in the meantime acquired the professional experience required by the vacancy notice may participate in that procedure, which, moreover, is consistent with the broad logic and effectiveness of such a procedure.

68      Thirdly, as regards the alleged infringement of the criterion in point (c) of the fourth paragraph of Article 1a.3.1.2 of the Staff Rules (see paragraph 51 above), it should be noted at the outset that the arguments put forward by the applicant are merely unsubstantiated assertions.

69      Furthermore, by his arguments, the applicant reduces that criterion to questions of nationality and gender only. However, as the ECB correctly noted, other considerations may be taken into account in assessing diversity, namely, in particular, considerations relating to socio-economic or geographic background as well as to educational background and professional experience.

70      The applicant does not dispute that considerations other than those relating to nationality and gender may have led the ECB to opt for an external recruitment procedure. Accordingly, he cannot reasonably claim that the criterion in point (c) of the fourth paragraph of Article 1a.3.1.2 of the Staff Rules is not fulfilled in the present case.

71      Fourthly and lastly, as regards the argument that, even if it is possible to extend a recruitment procedure and to publish a vacancy notice for a post that is open to external candidates, that does not justify modifying the vacancy notice criteria (see paragraph 55 above), it should be borne in mind that, according to the case-law, the appointing authority has a wide discretion in determining the skills required for the posts to be filled. The choice allowed under that wide discretion must always be made with reference to the requirements of the posts to be filled and, more generally, to the interests of the service (see, to that effect, judgment of 12 December 2013, BV v Commission, F‑133/11, EU:F:2013:199, paragraph 50 and the case-law cited).

72      In the present case, it should be noted at the outset that the first vacancy notice did not include, in the essential criteria, a criterion relating to professional experience in [confidential]. It included only ‘[confidential]’ among the desired criteria. In addition, the second and third vacancy notices merely stated a desire that the person selected should have ‘experience [confidential]’.

73      Although it is true that the criterion concerning [confidential] was deleted in both the second and the third vacancy notice, that deletion falls within the wide discretion which the appointing authority has in determining, in the interests of the service, the requisite criteria for the posts to be filled.

74      Furthermore, in the present case, that deletion is justified in the light of the ECB’s decision to extend the recruitment procedure to a greater number of candidates for the service reasons specified in the Executive Board’s decision of 27 October 2020 (see paragraph 63 above), in view of the fact that, as the applicant acknowledges, he was, in principle, the only candidate available within the ECB and it was the post of [confidential] that needed to be filled.

75      In the light of all of the foregoing, it must be held that the third recruitment procedure was not vitiated by an infringement of the fourth paragraph of Article 1a.3.1.2 of the Staff Rules.

76      Consequently, the first part of the second plea in law must be rejected as being unfounded.

(b)    Second part of the second plea in law, alleging misuse of powers

77      In the second part of the second plea in law, the applicant claims, in essence, that the contested decision is the result of a misuse of powers. In his submission, there is objective, relevant and consistent evidence that that decision was taken for purposes other than those declared, namely to appoint the best candidate, and with the aim of avoiding the regular recruitment procedure. In particular, that evidence is indicated by the following facts:

–        first, the external publication of the third vacancy notice was contrary to the fourth paragraph of Article 1a.3.1.2 of the Staff Rules and did not comply with the ECB’s recruitment strategy of filling positions with internal candidates as a priority;

–        secondly, following the negative outcome of the second recruitment procedure, the CSO explained to the applicant that his preference was for an external person who did not have experience in the [confidential] and asked the applicant to remain in his position in order to support the CSO’s preferred candidate. The CSO gave the applicant a description of the profile of his preferred candidate which matched the profile of the selected candidate. Furthermore, the chair of the selection committee confirmed that information to the applicant, informing him that the CSO’s preferred candidate was working in the [confidential], exactly like the selected candidate;

–        thirdly, in the context of the meeting held on 3 December 2019 (see paragraph 6 above), the CSO explained that there was a difference of opinion within the selection committee and that his preferred candidate had not been appointed because a member of the panel considered that it was not proper to appoint a person who did not meet the requirement in the vacancy notice of professional experience in [confidential] and the [confidential]. In that regard, the applicant produces as evidence of what was said at that meeting on 3 December 2019 the written statements of certain colleagues who participated in that meeting, and asks the Court to hear them as witnesses;

–        fourthly, the third recruitment procedure was not concluded until after the member of the Executive Board who had participated in the second recruitment procedure and who had challenged the CSO’s bias towards the selected candidate had left the ECB;

–        fifthly, the applicant was never properly informed of the reasons for which he was not appointed to the position in question, despite the fact that, in this instance, there were three recruitment procedures for the same position and that, for each of them, he fulfilled the criteria specified in the vacancy notice and was even classed as suitable for the position in the second and third procedures;

–        sixthly, the third recruitment procedure was extremely short and did not allow sufficient time for the Executive Board, as appointing authority, to review the selection material;

–        seventhly, the selected candidate was appointed after the criteria relating to professional experience in [confidential] and [confidential] had been omitted from the third vacancy notice, although those criteria were included in the earlier vacancy notices;

–        eighthly and lastly, the Director-General of DG Human Resources, who had been on the selection committee for the last two recruitment procedures, explicitly voiced her understanding for the step taken by the applicant in launching a special appeal.

78      Therefore, according to the applicant, the third recruitment procedure was unlawful.

79      In the reply, the applicant adds that the filling of the vacant position in this case took place after a long-winded and irregular process. First of all, the first recruitment procedure was terminated without any explanation, then the second vacancy notice was published at least eight months after the first recruitment procedure was closed and, lastly, the second recruitment procedure continued for more than three months and one week after the deadline for the submission of applications.

80      In this context, the applicant asks the Court, as a measure of inquiry, to hear as witnesses the members of the selection committee for the second recruitment procedure and, by way of a measure of organisation of the procedure, to request the ECB to produce the documentation and files relating to the entire recruitment process.

81      The ECB disputes the applicant’s arguments.

82      As a preliminary point, it should be borne in mind that, according to settled case-law, the concept of misuse of powers has a very precise meaning and encompasses the use by an administrative authority of its powers for a purpose other than that for which they were conferred upon it. A decision is vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent evidence, to have been taken for purposes other than those stated (see order of 19 December 2013, da Silva Tenreiro v Commission, T‑32/13 P, EU:T:2013:721, paragraph 31 and the case-law cited).

83      In that regard, it is not sufficient to refer to certain facts in support of claims; evidence of a sufficiently specific, objective and consistent nature must also be adduced to support their truth or, at the very least, their probability, failing which the material accuracy of the statements of the institution concerned cannot be challenged (see order of 19 December 2013, da Silva Tenreiro v Commission, T‑32/13 P, EU:T:2013:721, paragraph 32 and the case-law cited).

84      Thus, the overall assessment of evidence of misuse of powers cannot be based on mere assertions or on evidence that is insufficiently specific or is neither objective nor relevant (order of 19 December 2013, da Silva Tenreiro v Commission, T‑32/13 P, EU:T:2013:721, paragraph 33).

85      In the present case, the applicant claims, in essence, that the contested decision was adopted with the exclusive or main purpose of achieving an end other than the appointment of the best candidate and of evading the regular recruitment procedure.

86      However, the information put forward by the applicant does not constitute objective, relevant and consistent evidence sufficient to support a finding that the contested decision is vitiated by misuse of powers.

87      The first indicium is unfounded in the light of the finding previously made in the context of the examination of the first part of the present plea (see paragraphs 60 to 75 above).

88      The second indicium is merely an unsubstantiated allegation, whereas the third, concerning the assertions allegedly made by the CSO at the meeting on 3 December 2019, is based only on an extract from a declaration by the applicant annexed to the application. Furthermore, it must be noted that the statements of certain colleagues which the applicant produced in an annex to the reply, assuming they are admissible, do not reinforce the probative value of the applicant’s declaration. They contain no reference to the fact that, at that meeting, the CSO expressed a preference for a candidate who had not been appointed because a member of the panel considered that it was ‘not proper’ to appoint a person who did not meet the requirements of the vacancy notice. For that reason, the applicant’s request that his colleagues who participated in the meeting on 3 December 2019 be heard as witnesses must be rejected (see third indent of paragraph 77 above).

89      As regards the fourth indicium, it is based on nothing more than speculation by the applicant regarding the personal opinions allegedly held by a member of the selection committee. As has been pointed out in paragraphs 44 and 45 above, such opinions are secret and the deliberations of that committee are confidential. In addition, when questioned in that regard at the hearing, the ECB pointed out that, in accordance with the last paragraph of Article 1a.2.6.1 of the Staff Rules, the selection committee is to deliberate by simple majority.

90      In the case of the fifth indicium, it is apparent from the examination of the third plea in law (see paragraphs 42 and 43 above) that, in the present case, the applicant was adequately informed of the reason why he had not been appointed to the position of [confidential]. In addition, the mere fact that an application has displayed certain merits does not preclude the possibility that, in the context of consideration of the comparative merits of candidates, other candidates may have been recognised as having greater merits (see, to that effect, judgment of 8 May 2019, Stamatopoulos v ENISA, T‑99/18, not published, EU:T:2019:305, paragraph 42 and the case-law cited).

91      As regards the sixth indicium, it should be noted that the short duration of the third recruitment procedure may be explained by the fact that, as the applicant himself admits (see paragraph 79 above), the post to be filled had been vacant for a long time. The vacancy of that post in 2019 had already been announced in 2018. In any event, it must be stated that that indicium is based on a mere assertion by the applicant, which fails to take account of the fact that the Staff Rules do not provide for a recruitment procedure to be of a specific duration. Furthermore, the selection committee and the Executive Board proceeded in accordance with the various phases of the selection procedure as provided for in Article 1a.2.7 of the Staff Rules and, as the ECB points out, only six candidates were shortlisted and interviewed. In that context, the applicant has not adduced proof that the duration of the third procedure was unreasonably short given the objective of filling the post with the best candidate.

92      As regards the seventh indicium, this is based on a misreading of the vacancy notices and must be rejected on the basis of the considerations set out in relation to the examination of the first part of this plea (see paragraphs 72 to 74 above).

93      Lastly, as to the eighth indicium, it must be held that the mere assertion that a director-general ‘shared her understanding’ for the applicant’s decision to file a special appeal is insufficiently precise or objective to support the likelihood of a misuse of powers.

94      Accordingly, it must be held that the evidence relied on by the applicant, taken individually or as a whole, does not enable the applicant to demonstrate that the contested decision is vitiated by a misuse of powers.

95      That conclusion cannot be called into question by the argument that the appointment to the vacant position in this case occurred after a long-winded and irregular process (see paragraph 79 above). It must be noted that that argument effectively calls into question the first and second recruitment procedures even though they are not the subject of the present action, since the applicant is not claiming that the procedure initiated by the third vacancy notice was, in itself, long-winded and irregular.

96      Therefore, the request for a measure of inquiry pursuant to which members of the selection committee in the second recruitment procedure would be heard must be rejected.

97      Similarly, the request for a measure of organisation of procedure must be rejected in so far as it seeks to obtain documents concerning the internal recruitment procedure and the first and second recruitment procedures, which are not the subject of the action. Moreover, as regards the documents relating to the internal recruitment procedure, it should be noted that the applicant produced proof of the fact that the ECB had granted him partial access to those documents.

98      In so far as the request for a measure of organisation of procedure relates to the documents concerning the third recruitment procedure, it must be noted that, by that request, the applicant is, in essence, seeking access to the documents previously requested from the human resources department, whose decision to reject his request has not been challenged by the applicant. Accordingly, that request for a measure of organisation of procedure must be rejected.

99      In the light of all the foregoing, the second part of the second plea in law must be rejected as being unfounded, as must, therefore, the second plea in law in its entirety.

3.      First plea in law, alleging a manifest error of assessment, infringement of Article 8a(c) of the Conditions of Employment, infringement of Article 1a.1.1(b) and of Articles 1a.2.1.1 and 1a.2.6.1 of the Staff Rules, infringement of the third vacancy notice and infringement of the interests of the service

100    The first plea in law is in two parts. By the first part, the applicant argues, in essence, that the contested decision infringes the third vacancy notice, Article 8a(c) of the Conditions of Employment, and Article 1a.1.1(b) and Article 1a.2.1.1 of the Staff Rules.

101    By the second part, the applicant submits that the contested decision is vitiated by a manifest error of assessment and that it was adopted in breach of Article 8a(c) of the Conditions of Employment, Article 1a.1.1(b), Articles 1a.2.1.1 and 1a.2.6.1 of the Staff Rules and the third vacancy notice.

(a)    First part of the first plea in law

102    In the context of the first part of the first plea in law the applicant puts forward, in essence, three complaints. By the first complaint, he submits that, at the time when the selected candidate submitted her application, she did not meet either the second or the third requirement (see paragraph 9 above), whereas he clearly did meet those requirements.

103    On the basis of information available from professional profiles posted on publicly accessible career networks, the applicant maintains, in essence, that the selected candidate did not meet the second requirement, notably because of the differences between [confidential], a company in which the selected candidate had worked for a little over 9 years, and the ECB in terms of the number of employees, the size of the [confidential] team, the budget, the number of business areas, the [confidential] offered to users and the [confidential] offered to countries. The selected candidate’s professional career with that company should not, therefore, have been taken into account for the purposes of assessing whether the second requirement was met.

104    In that regard, first, the applicant adds that the words ‘within an organisation on a scale commensurate to that of the ECB’ in the second requirement must be interpreted as referring to the organisation in which candidates had worked prior to submitting their application, rather than to the scale of roles and experiences within the ECB. In particular, the applicant argues that that interpretation has been confirmed by two language experts whom the applicant consulted and also by the ECB’s own interpretation, as it appears from the decision of 11 May 2021. Moreover, that interpretation is not invalidated by the argument put forward by the ECB in that decision that the selected candidate was notably responsible for ‘different [confidential] projects’ or that ‘the company [in which she worked] operated with employees from 16 nations in Germany and Switzerland’.

105    Secondly, according to the applicant, the documents which the selected candidate produced in support of her application do not prove that she had acquired ‘at least 10 years’ [confidential] experience’. While the role of [confidential] of [confidential], carried out for three years and ten months, and the role of ‘[confidential]’ within [confidential], carried out for one year and one month, qualify as [confidential] roles, the role of ‘[confidential]’ which she carried out between 1 March 2008 and 31 December 2012 was not an [confidential] role within an organisation on a scale commensurate to that of the ECB. Similarly, the role of ‘[confidential]’ within [confidential] carried out between August 2011 and December 2012 and the role of [confidential], carried out for [confidential] (now [confidential]) were not [confidential] roles.

106    Thirdly, the applicant submits that the selected candidate’s career does not show clearly, if at all, a continuous increase in responsibilities.

107    As regards the third requirement, the applicant argues that, according to the information which the selected candidate has made publicly available, she worked from April 2015 to January 2017 as [confidential] in [confidential]. In that regard, the applicant argues that, from the mere description of that function, it is apparent that it does not comply with the criteria required by the vacancy notice. The tasks were not diverse or cross-functional and, given the size of [confidential], it must be assumed that the team in question had fewer than 50 members. More generally, the ECB does not provide any explanation, let alone evidence, that the selected candidate had managed teams of more than 50 staff and had led managers and members of staff with the diversity required by the third requirement.

108    In that regard, the applicant underlines the fact that the selected candidate’s entire professional experience was acquired in companies based in Germany, all of them located in the same geographical region. They are companies that are governed by German law and that are predominantly active in Germany. The applicant therefore questions whether the teams led by the selected candidate showed the ‘diversity’ in terms of nationalities, professional backgrounds and duties performed that was required by the third vacancy notice.

109    As regards his own profile and expertise, the applicant submits that they match the requirements of the third vacancy notice perfectly. In that regard, he states that he has been working since 1 January 2005 for the ECB’s [confidential] as a ‘[confidential]’. In his appraisals he has regularly received very positive feedback on his work. He was classified as a suitable candidate for the position in two recruitment procedures. The applicant also points out that he was [confidential] from 2005 to 2009 and then became [confidential] of [confidential] in 2010, and that he had worked from 1995 to 2004 for [confidential], where he acquired solid experience of [confidential] in the [confidential]. The applicant claims that he was, therefore, manifestly far more qualified for the position in question than the selected candidate, since he clearly met the requirements of the third vacancy notice. Moreover, the fact that he was proposed by the selection committee to the Executive Board as a suitable candidate after the second recruitment procedure confirmed the merits he had attained throughout his career.

110    By the second complaint, the applicant challenges the adequacy, transparency and objectivity of the process used to assess the candidates. In particular, he maintains that, during the interview and the presentation, the selection committee asked several questions that did not correspond and could not be mapped one-to-one to the competencies under assessment, leading to a manifest error of assessment that vitiated the contested decision.

111    By the third complaint, put forward in the reply, the applicant maintains that the selected candidate’s application form, which the ECB annexed to the defence, contains no information about compliance with a number of other essential requirements set out in the third vacancy notice, in particular the tenth and eleventh requirements (see paragraph 9 above).

112    The ECB disputes the applicant’s arguments.

(1)    First complaint

113    As a preliminary point, it should be borne in mind that, according to settled case-law, the appointing authority has, particularly where the post to be filled is at a high grade, a wide discretion when comparing the merits of candidates for such a post (see, to that effect, judgment of 9 July 2002, Tilgenkamp v Commission, T‑158/01, EU:T:2002:180, paragraph 50 and the case-law cited). In exercising that wide discretion with regard to appointment, the appointing authority must carefully and impartially examine the candidates’ files and have meticulous regard to the requirements laid down in the vacancy notice, so that it is required to reject any candidate who does not meet those requirements. The vacancy notice constitutes a legal framework which the appointing authority imposes on itself and which it must observe meticulously (see judgment of 7 February 2019, Duym v Council, T‑549/17, not published, EU:T:2019:72, paragraph 56 and the case-law cited).

114    In order to determine whether the appointing authority exceeded the bounds of the legal framework, it is incumbent on the Court to examine first of all what conditions were laid down in the vacancy notice and then to ascertain whether the candidate selected by the appointing authority to fill the vacant post did indeed satisfy those conditions. Lastly, the Court must examine whether or not, as regards the applicant’s capabilities, the appointing authority made a manifest error of assessment in preferring another candidate to the applicant (see judgment of 7 February 2019, Duym v Council, T‑549/17, not published, EU:T:2019:72, paragraph 57 and the case-law cited).

115    Such a review must be limited to the question whether, in the light of the considerations which led the administration to arrive at its assessment, the administration kept within reasonable limits and did not use its power in a manifestly erroneous manner. The Court cannot therefore substitute its assessment of candidates’ qualifications for that of the appointing authority (see judgment of 7 February 2019, Duym v Council, T‑549/17, not published, EU:T:2019:72, paragraph 58 and the case-law cited).

116    In the present case, in the light of the arguments put forward by the applicant, it is necessary to examine whether manifest errors were made (i) when interpreting the requirements set out in the third vacancy notice and in assessing the suitability of the selected candidate’s profile for those requirements, and (ii) at the time when the applicant’s application was eliminated.

117    First, it is necessary to determine the meaning and scope of the second requirement and to ascertain whether, in taking the view that the selected candidate met that requirement, the ECB complied with the requirement as set out in the third vacancy notice and did not make a manifest error of assessment.

118    As regards, first of all, the meaning and scope of the second requirement, the parties disagree as to the interpretation of the words ‘within an organisation on a scale commensurate to that of the ECB’. While the ECB contends that those words must be interpreted as meaning that, in the organisations in which he or she worked, the candidate must have acquired 10 years’ experience and exercised increasing responsibilities on a scale commensurate to that of the ECB, the applicant is of the view, in essence, that those words must be interpreted as meaning that the candidate sought had to have acquired at least 10 years’ experience in an organisation comparable in scale to that of the ECB.

119    Thus, interpreting the second requirement by focusing on the size of the organisation in which 10 years’ experience had to have been acquired, the applicant submits that [confidential] is not comparable in terms of size to the ECB, so that the experience acquired by the selected candidate in that undertaking could not be taken into account.

120    In that regard, in the first place, it should be borne in mind that it is for the appointing authority, having a wide discretion, as recalled in paragraph 113 above, to define the skills required for the posts to be filled (see, to that effect, judgment of 7 February 2019, Duym v Council, T‑549/17, not published, EU:T:2019:72, paragraph 90 and the case-law cited).

121    In the second place, it should be noted that the applicant’s interpretation does not take account of the fact that the objective of the second requirement is to select a candidate whose level of experience is commensurate with the role and responsibilities required by the position to be filled, as described in the third vacancy notice.

122    In the third place, as the ECB correctly stated at the hearing, although, in certain situations, the size of an undertaking may be indicative of the quality and level of professional experience acquired by a candidate, there is no necessary and direct correlation between that size and the importance of that experience. The size of an undertaking is only one indirect indicator, among others, of the quality and substance of the experience acquired by a candidate. The finding thus made would tend to support the interpretation of the second requirement advocated by the ECB.

123    In the fourth place, the expression ‘within an organisation on a scale commensurate to that of the ECB’ must be interpreted in the light of the second requirement read as a whole. That requirement is also intended to seek candidates who have been ‘in roles of increasing responsibility’, that is to say, candidates whose responsibility within their role has evolved over at least 10 years. Moreover, in that regard, it should be emphasised that the size of an undertaking is not necessarily linked either to the nature of the responsibilities or to the size of the team led.

124    Accordingly, the selection committee observed the second requirement and did not make a manifest error in interpreting the second requirement as meaning that the candidate had to have acquired 10 years’ [confidential] leadership experience in roles of increasing responsibility of a nature comparable to those that would have to be performed in the position to be filled as described in the third vacancy notice.

125    That interpretation is confirmed by the decision of 11 May 2021. It can be inferred from that decision that, as regards the selected candidate’s experience in [confidential], the selection committee considered that that experience and the responsibilities associated with it were of a level equivalent to those of the position to be filled within the ECB. In making that assessment, the selection committee took into account, inter alia, the various [confidential] projects for which the selected candidate was responsible as well as the type and level of experience which she had acquired while working for that undertaking.

126    Moreover, by referring to the interpretation suggested by certain lawyer-linguists whom he had consulted, the applicant appears himself to support the interpretation of the second requirement set out in paragraph 124 above. According to one of those lawyer-linguists, ‘a “common sense” view of the text [of the second requirement] could be that persons are sought with a certain experience [which] is evidenced by the nature and level of their work elsewhere’. In addition, according to the same lawyer-linguist, ‘it is wished for the nature and level of work within the previous organisation to be comparable to those of the ECB’.

127    It follows that the selection committee did not disregard the second requirement and did not exceed its discretion as regards the second requirement by assessing the eligibility of the candidates in the light of that second requirement as interpreted in paragraph 124 above.

128    Next, it is necessary to ascertain whether the selection committee made a manifest error of assessment in taking the view that the selected candidate had met that second requirement.

129    In that regard, it should be borne in mind that, according to settled case-law, the selection committee enjoys, in principle, a wide discretion when assessing, as a condition of admission, the previous professional experience of candidates, both as regards the nature and duration of that experience and as regards its relevance to the requirements of the post to be filled (see, to that effect, judgment of 10 November 2021, Di Bernardo v Commission (T‑41/20, not published, EU:T:2021:778, paragraph 74 and the case-law cited).

130    In the present case, the ECB correctly pointed out that, as is apparent from her application, the selected candidate had, since 2007, held posts in which she had acquired [confidential] experience, in particular when she was [confidential] (between January 2007 and February 2008), [confidential] at [confidential] (between 1 March 2008 and 31 December 2012), [confidential] in [confidential] (now [confidential]) (between 1 August 2013 and 31 March 2015), [confidential] at [confidential] (between 1 April 2015 and 31 January 2017) and [confidential] (between 1 February 2017 and 15 December 2020).

131    Furthermore, as the ECB correctly contends, the roles which she carried out in the various positions held, as detailed in the application form, show the value of the selected candidate and the increasing level of responsibility assumed since 2007. Her profile as an [confidential] executive at [confidential] gradually evolved until she became [confidential], that is to say, [confidential], a company which, in 2019, had 5 100 employees.

132    Therefore, it must be held that the selection committee did not make a manifest error of assessment.

133    Moreover, that conclusion cannot be called into question by the arguments which the applicant raised at the stage of the reply.

134    In the first place, as regards the argument that certain roles carried out by the selected candidate are not [confidential] roles, the following should be noted.

135    First of all, as is apparent from the selected candidate’s application form, the tasks which she performed as [confidential], a role she carried out within [confidential] between 1 March 2008 and 31 December 2012, included [confidential] and [confidential] to support the new production processes and growth objectives of that department. Moreover, the fact, even if it were established, that the same role exists in other companies and at the ECB, but with responsibilities other than those which that role entailed within [confidential], cannot call into question the selection committee’s assessment in so far as it classified that role as being an [confidential] role.

136    Next, as regards the post of [confidential], it is apparent from the selected candidate’s application form that that post entailed the performance of duties involving the implementation of [confidential] in [confidential], competencies which, as the ECB correctly stated at the hearing, are necessary in all areas, including [confidential].

137    Lastly, as regards the [confidential] [confidential] [confidential] held by the selected candidate in [confidential] between 1 April 2015 and 31 January 2017, it must be noted that the applicant’s claim that, in that role, the selected candidate cannot have acquired [confidential] experience in [confidential] or have demonstrated success as a ‘[confidential]’ is merely an unsubstantiated assumption.

138    In the second place, the argument that the selected candidate’s career does not show a ‘continuous’ increase in responsibilities must be rejected in view of what was correctly stated by the ECB (see paragraphs 130 and 131 above), which has, moreover, not been contradicted by the applicant in that respect.

139    Secondly, it is necessary to determine the meaning and scope of the third requirement (see paragraph 9 above) and to ascertain whether the ECB made a manifest error of assessment in taking the view that the selected candidate met that requirement.

140    As regards the meaning and scope of the third requirement, the applicant expresses doubts as to whether, since the selected candidate had acquired all her professional experience in Germany, the teams she led had the diversity required by the vacancy notice.

141    In that regard, it should be noted that it cannot be ruled out, merely because the selected candidate acquired her professional experience exclusively in Germany, that the members of the teams she led had diverse backgrounds. First, the fact that a company is based in Germany does not mean that its employees are only German nationals and, secondly, as the ECB rightly points out, ‘diverse backgrounds’ cannot be reduced to a mere diversity of nationalities, since that criterion refers to the diversity of managers and staff on the basis of multiple criteria, such as gender, beliefs, ethnicity, education and cultural background, in departments and disciplines within an organisation. Moreover, even if, by his first argument, the applicant is referring not only to a lack of diversity in terms of nationality, but also to a lack of diversity in terms of professional backgrounds and functions of the members of the teams led by the selected candidate, it must be noted that he has not adduced any evidence capable of substantiating his claims.

142    As regards the claim that the selected candidate’s experience does not match the third requirement, the applicant puts forward, in essence, two arguments. First, he submits that, in the light of the description of the duties performed by the selected candidate within [confidential] as [confidential][confidential], the team which she managed had fewer than 50 members and was neither diverse nor cross-functional. Secondly, he submits that, because of the lack of information in the selected candidate’s application form concerning the number of employees in the teams which she had led, it was impossible for the selection committee to verify whether that requirement was met. The information available was such that the criteria covered by the third requirement could not be considered to have been fulfilled by the selected candidate for a period of at least five years as required.

143    As regards the first argument, it must be stated that it is merely a claim, since it is not supported by any evidence.

144    As regards the second argument, it is apparent from the selected candidate’s application form that she has been entrusted, throughout her career, with many tasks and duties, the importance of which does not give rise to any doubt that she can have been responsible for more than 50 individuals, all highly qualified managers and members of staff. In particular, that was the case when she worked for [confidential], first as [confidential][confidential], between 1 April 2015 and 31 January 2017, and then as [confidential], [confidential] in three areas, from 1 February 2017 until the date of her appointment to the ECB. Therefore, the applicant cannot reasonably claim that, when she submitted her application, the selected candidate did not meet the third requirement.

145    It follows from the foregoing that none of the arguments put forward by the applicant supports a finding that there was a manifest error of assessment on the part of the selection committee in so far as it concluded that the selected candidate met the third requirement.

146    Thirdly, it is necessary to establish whether the selection committee made a manifest error of assessment in rejecting the applicant’s application.

147    In that regard, it must be noted that, as has already been stated in paragraph 39 above, the applicant was informed, by the letter of 11 January 2021, of the Executive Board’s decision to appoint another candidate and that his name would be included on the reserve list. That letter also indicated that the applicant had not obtained the highest score, confirming the comparative nature of the selection procedure. It follows that the applicant’s application was rejected not on the ground that he did not meet the second or the third requirement, but following the assessment of the comparative merits of the candidates that was carried out in the light of his interview which was held on 14 December 2020 (see paragraph 10 above) and of the finding that other applications were better than his own.

148    However, it must be noted that the applicant does not claim that the selection committee made a manifest error of assessment in the comparison of his merits and those, in particular, of the selected candidate.

149    The applicant merely claims, in the first place, that his profile and experience matched the requirements of the vacancy notice perfectly. In particular, in that regard, he refers to the professional experience mentioned in his application form and infers from this that he would clearly have been far more qualified for the position in question than the selected candidate. Such claims are based not on concrete evidence, but solely on the applicant’s assessment of the merits of his own application, that is to say, on his personal conviction, which cannot be regarded as proof of a manifest error of assessment (see, to that effect, judgments of 23 January 2003, Angioli v Commission, T‑53/00, EU:T:2003:12, paragraph 94 and the case-law cited, and of 8 May 2019, Stamatopoulos v ENISA, T‑99/18, not published, EU:T:2019:305, paragraph 39).

150    In the second place, the applicant states that he was classified as a suitable candidate in the second and third recruitment procedures, which is not disputed by the ECB. However, as the ECB contends, the fact that a candidate has obvious and acknowledged merits does not exclude the possibility, in the context of consideration of the comparative merits of candidates, that other candidates may have greater merits (see, to that effect, judgment of 6 May 2009, Campos Valls v Council, F‑39/07, EU:F:2009:45, paragraph 66 and the case-law cited).

151    It follows from the foregoing that the applicant cannot reasonably claim that, by rejecting his application, the selection committee made a manifest error of assessment, infringed the third vacancy notice and infringed Article 8a(c) of the Conditions of Employment as well as Article 1a.1.1(b) and Article 1a.2.1.1 of the Staff Rules.

152    It follows that the first complaint in the first part of the first plea in law must be rejected as being unfounded.

(2)    Second complaint

153    By the second complaint, the applicant challenges the adequacy, transparency and objectivity of the process used to assess the candidates, and the lack of objective information enabling a fair comparison of the candidates to be made. In particular, he maintains that, during the interview and the presentation, the selection committee asked several questions that did not correspond and could not be mapped one-to-one to the competencies under assessment, but does not specify the questions to which he refers.

154    In that regard, it is sufficient to note that, according to settled case-law, the selection board enjoys a wide discretion with regard to the procedure for and detailed content of the tests in a competition. In accordance with that case-law, the Courts of the European Union 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 Courts of the European Union 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 (see judgment of 7 February 2002, Felix v Commission, T‑193/00, EU:T:2002:29, paragraph 35 and the case-law cited).

155    In the light of that case-law, which is applicable by analogy in the context of the present case, in the absence of any information that would make it possible to discern the specific scope of the argument put forward by the applicant, particularly as regards questions that allegedly do not correspond and cannot be mapped to the competencies under assessment, the second complaint in the first part of the first plea in law must be rejected as being unfounded.

(3)    Third complaint

156    As regards the third complaint, alleging that the selected candidate’s application did not meet the tenth and eleventh requirements, assuming it to be admissible, it must be noted that the applicant merely produces in support of that complaint a table drawn up by the applicant himself. In that table, he confines himself to arguing that the selected candidate’s application form does not contain references to certain knowledge and skills required by the tenth and eleventh requirements, or any evidence that would explain how the selection committee assessed whether the selected candidate met those requirements. As the ECB correctly observes, that table reflects only the applicant’s personal assessment of the professional experience of the selected candidate, an assessment which, in itself, has no probative value, as is apparent from the case-law referred to in paragraph 149 above, applicable by analogy.

157    It follows from this that the third complaint in the first part of the first plea in law must be rejected as being unfounded, as must the first part of the first plea in law in its entirety.

(b)    Second part of the first plea in law

158    In the context of the second part of the first plea in law, the applicant argues, in essence, that, by appointing the selected candidate, the ECB did not act in the best interests of the service, and so infringed Article 1a.2.6.1 of the Staff Rules and Article 8a(c) of the Conditions of Employment.

159    In response to the ECB’s objection that that part of the plea is inadmissible, the applicant contends that, in the first place, the infringement of Article 8a(c) of the Conditions of Employment was expressly raised in the special appeal and that, in the second place, Article 1a.2.6.1 of the Staff Rules enshrines the need for the ECB to act in the interests of the service, including through its selection committees.

160    The ECB disputes both the admissibility and the merits of the second part of the first plea in law.

161    In that regard, it must be stated at the outset that the second part of the first plea is based on the unsubstantiated premiss that the selected candidate did not meet the essential requirements of the third vacancy notice and that she was less qualified than the applicant to hold the post that was to be filled.

162    It is apparent from the examination of the first part of the first plea that the applicant has not proved that the selected candidate did not meet the second, third, tenth and eleventh requirements of the third vacancy notice. Furthermore, the applicant’s claims concerning the comparative assessment of the respective merits of his application and that of the selected candidate are not substantiated.

163    Accordingly, the second part of the first plea in law must be rejected as being unfounded and there is no need to rule on its admissibility.

164    Since both parts of the first plea in law have been rejected, the first plea in law must also be rejected in its entirety and, consequently, the claim for annulment must be dismissed.

C.      Claim for compensation

165    In support of his claim for compensation, the applicant submits that he has suffered material and non-material damage as a result of the unlawfulness of the contested decision.

166    As regards material damage, the applicant maintains that he lost a serious chance of being recruited to the position of [confidential]. He was on the list of suitable candidates and his profile and competences fully matched the requirements of the position. Consequently, he claims compensation in the amount of EUR 73 679.47.

167    As regards non-material damage, which, according to the applicant, cannot be compensated merely by the annulment of the contested decision, the applicant argues that the ECB’s conduct was incorrect and caused him harm by cancelling without any valid reason the first recruitment procedure and launching further procedures that finally enabled the selected candidate to be appointed, even though he had a better profile and better matched the requirements of the vacancy notice. The applicant assesses the non-material harm at one symbolic euro. Moreover, when questioned by the Court at the hearing, the applicant stated that the reference to the first and second recruitment procedures was to be interpreted as a contextual factor, and not as an intention to call into question the lawfulness of those procedures, which, moreover, are not the subject of the action.

168    The ECB disputes the applicant’s arguments.

169    In that regard, it must be recalled that, according to settled case-law, the European Union can be held liable for damages only if a number of conditions are satisfied as regards the illegality of the allegedly wrongful act committed by the institutions, the actual harm suffered and the existence of a causal link between the act and the damage alleged to have been suffered. It is sufficient that any one of those conditions is not satisfied for the action for damages to have to be dismissed in its entirety without there being any need for examination of the other conditions for such liability (see order of 13 December 2018, Bowles v ECB, T‑447/17, not published, EU:T:2018:993, paragraph 102 and the case-law cited).

170    In addition, in accordance with settled case-law in civil service matters, where an application for compensation is closely related to an application for annulment, the rejection of the latter, either as inadmissible or as unfounded, also results in the rejection of the application for compensation (see order of 13 December 2018, Bowles v ECB, T‑447/17, not published, EU:T:2018:993, paragraph 103 and the case-law cited).

171    In the present case, the application for compensation is closely related to the claim for annulment, since the damage allegedly suffered by the applicant arose from the procedure leading to the appointment of the selected candidate to the position of [confidential], the lawfulness of which has been unsuccessfully challenged by the applicant in the context of the claim for annulment.

172    In those circumstances, in accordance with the case-law cited in paragraphs 169 and 170 above, the claim for compensation must be rejected, since examination of the pleas in law put forward in support of the claim for annulment has not revealed that the ECB acted unlawfully or, therefore, that there was any misconduct capable of incurring its liability.

173    Therefore, the claim for compensation must be rejected and, accordingly, the action must be dismissed in its entirety.

IV.    Costs

174    Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

175    In the present case, although the applicant has been unsuccessful, he nevertheless requests that the Court order the ECB to pay the costs, even if the action is dismissed (see paragraph 18 above). In essence, the applicant asserts that the ECB’s conduct caused the escalation of procedures and left him with no other choice than to bring an action before the Court.

176    Under Article 135(2) of the Rules of Procedure, the Court may order a party, even if successful, to pay costs which he or she has made the opposite party incur through his or her conduct, in particular where the Court holds those costs to be unreasonable or vexatious.

177    According to the case-law, that provision should be applied where the dispute is in part attributable to the conduct of an EU institution (see judgment of 8 February 2018, POA v Commission, T‑74/16, not published, EU:T:2018:75, paragraph 112 and the case-law cited).

178    In the present case, it must be held that the bringing of the present action by the applicant was not attributable to the conduct of the ECB.

179    Consequently, the applicant must be ordered to pay the costs pursuant to Article 134(1) of the Rules of Procedure, in accordance with the form of order sought by the ECB.

On those grounds,

THE GENERAL COURT (First Chamber)

hereby:

1.      Dismisses the action;

2.      Orders TM to pay the costs.

Delivered in open court in Luxembourg on 14 December 2022.

Table of contents

I. Background to the dispute

II. Forms of order sought

III. Law

A. Subject matter of the action

B. Claim for annulment

1. Third plea in law, alleging infringement of Articles 1a.2.7.9 to 1a.2.7.11 of the Staff Rules, a failure to state reasons and breach of the principle of good administration

2. Second plea in law, alleging that the third recruitment procedure was unlawful

(a) First part of the second plea in law, alleging infringement of the fourth paragraph of Article 1a.3.1.2 of the Staff Rules

(b) Second part of the second plea in law, alleging misuse of powers

3. First plea in law, alleging a manifest error of assessment, infringement of Article 8a(c) of the Conditions of Employment, infringement of Article 1a.1.1(b) and of Articles 1a.2.1.1 and 1a.2.6.1 of the Staff Rules, infringement of the third vacancy notice and infringement of the interests of the service

(a) First part of the first plea in law

(1) First complaint

(2) Second complaint

(3) Third complaint

(b) Second part of the first plea in law

C. Claim for compensation

IV. Costs

*      Language of the case: English.

© European Union
The source of this judgment is the Europa web site. The information on this site is subject to a information found here: Important legal notice. This electronic version is not authentic and is subject to amendment.