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

JUDGMENT OF THE GENERAL COURT (Seventh Chamber)

19 October 2022 (*)

(Civil service – Officials – Recruitment – Notice of open competition EPSO/AD/364/19 (AD 7) – Decision of the Selection Board to exclude the applicant from the next stage of the competition – Competition eligibility requirements – Insufficient professional experience – Obligation to state reasons – Manifest error of assessment – Rules on languages – Equal treatment)

In Case T‑624/20,

MV, represented by G. Pandey, D. Rovetta and V. Villante, lawyers,

applicant,

v

European Commission, represented by T. Lilamand and M. Brauhoff, acting as Agents,

defendant,

supported by

Council of the European Union, represented by M. Bauer and M. Alver, acting as Agents,

intervener,

THE GENERAL COURT (Seventh Chamber),

composed, at the time of the deliberations, of R. da Silva Passos, President, I. Reine (Rapporteur) and M. Sampol Pucurull, Judges,

Registrar: P. Cullen, Administrator,

having regard to the written part of the procedure,

further to the hearing on 9 March 2022,

gives the following

Judgment

1        By his action based on Article 270 TFEU, the applicant, MV, seeks, first, annulment of the decision of the competition selection board of 29 October 2019 rejecting his request for review of the decision of 5 June 2019 not to admit him to the next stage of Open Competition EPSO/AD/364/19 – Security Officers (AD 7) (‘the contested decision’), the notice of competition and the draft list of officials selected to take part in the competition and, second, compensation for the damage allegedly suffered by him as a result of those acts.

 Background to the dispute

2        On 24 January 2019, notice of competition EPSO/AD/364/19 – Security Officers (AD 7) (‘the notice of competition’) was published. That notice related to the drawing up of reserve lists from which the EU institutions would recruit administrators in three fields, namely, security operations, technical security and information and document security.

3        General tasks were listed in the section of the notice of competition entitled ‘What tasks can I expect to perform’, while reference was made to Annex I for more information on the typical duties to be performed. That annex concerned the duties for each field of the competition.

4        In the section of the notice of competition entitled ‘Am I eligible to apply?’, the following was stated:

‘You must meet ALL of the following general and specific conditions on the closing date for online applications’.

5        In point 2 of that section of the notice of competition, relating to ‘Specific conditions – languages’, a command of ‘at least 2 official EU languages’ was required. Language 1 was used for three of the computer-based ‘Multiple-Choice Question (MCQ) tests’, whereas language 2 was used for ‘the field-related computer-based MCQ test, for the selection based on qualifications (Talent Screener), for the assessment centre tests and for communication between EPSO and the candidates who have submitted a valid application’.

6        In point 3 of that section of the notice of competition, which sets out the ‘Specific conditions – qualifications & work experience’, a requirement of, inter alia, ‘a level of education which corresponds to completed university studies of at least four years attested by a diploma, followed by at least six years’ professional experience in the area of security relevant to the duties concerned’ was laid down.

7        In accordance with point 1 of the ‘How will I be selected?’ section, language 1 could be selected from among any of the 24 official EU languages and language 2, which had to be different from language 1, from either English or French.

8        As regards the different stages of the selection of applications, first, candidates had to fill the application form and provide, inter alia, further information relevant to the competition and field, and select languages 1 and 2. It was stated that the candidates could choose one of the 24 official EU languages to complete the application form, except for the Talent Screener section which had to be completed in language 2.

9        Next, candidates were required to sit the computer-based MCQ tests.

10      As regards the candidates who were successful in those tests, the eligibility requirements set out in the ‘Am I eligible to apply?’ section had to be checked on the basis of the data provided in the candidates’ online applications. It was provided that the European Personnel Selection Office (EPSO) would check that the general conditions for admission were met, while the selection board would check compliance with the specific eligibility conditions under the sections headed ‘Education and Training’, ‘Professional Experience’ and ‘Language skills’ of online applications.

11      Candidates who were deemed eligible could be admitted to the selection stage based on qualifications (Talent Screener), in the context of which the selection board had to carry out an objective assessment of the comparative merits of all the candidates. The following was also stated:

‘The selection based on qualifications will be carried out … using solely the information provided in this Talent Screener section. You should therefore include all relevant information in your Talent Screener answers, even if already mentioned in other sections of your application form. The questions are based on the selection criteria included in this notice.

Please see ANNEX II for the list of criteria.’

12      Next, candidates who obtained the best overall marks in the selection based on qualifications were then invited to attend the assessment centre. Lastly, the reserve list was drawn up.

13      As regards the nature of the duties in field 3, which the applicant, an official in the European Commission’s Directorate-General (DG) for Taxation and Customs Union, applied for, Annex I to the notice of competition was worded as follows:

‘Field 3. Information and document security

The Institutions’ security services are looking for officials whose main duties will be to ensure the security of information and IT systems, capable also of coordinating teams.

Specific tasks may include:

–        drafting and maintaining the corporate information security policy, in compliance with assurance principles, defined standards and norms including for classified information,

–        defining and operating information security risk management processes aiming at classifying information, determining risks, defining security measures and reporting on those risks,

–        performing security review and evaluations, aiming at assessing the effectiveness of measures for protecting information (confidentiality, integrity and availability),

–        defining procedures in case of information security breaches, considering the information classification level, aiming at reporting and recovery,

–        managing and coordinating internal services aiming at handling EU Classified Information (EUCI) in paper and/or digital form,

–        project management: analysis, proposal, design, cost estimation, identification and acquisition of required resources, scheduling activities, follow-up of implementation, change management and reporting, for cybersecurity related projects,

–        monitoring the implementation of systems and products and of accompanying counter-measures in the area concerned,

–        [drawing up] recommendations for the Security and Accreditation Authority (SAA) with a view to accrediting Communication and Information Systems (CISs) for handling/processing classified information,

–        preparing security plans for information systems, including information security aspects,

–        carrying out forensics analysis in the context of cyber incidents.’

14      On 25 February 2019, the applicant applied for the information and documents security field. He chose Greek as language 1 and English as language 2.

15      The applicant was successful in the computer-based MCQ tests, including the MCQ tests relating to the chosen field.

16      By decision of 5 June 2019, the applicant was informed that, on the basis of the information in his online application form, the selection board had decided not to admit him to the next stage of the competition because he did not have at least six years’ professional experience in the area of security relevant to the duties concerned (‘the decision of 5 June 2019’).

17      On 12 June 2019, the applicant requested a review of the decision of 5 June 2019, claiming that he had relevant professional experience of more than six years.

18      By the contested decision, the selection board confirmed the decision of 5 June 2019, again basing its decision on the ground that the applicant did not have the requisite professional experience.

19      On 27 January 2020, the applicant lodged an administrative complaint pursuant to Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) against the contested decision. He claimed inter alia that he had 14 years of relevant professional experience. He also made a claim for damages.

20      By decision of 30 June 2020, the Director of EPSO rejected the complaint in full (‘the decision rejecting the complaint’).

 Forms of order sought

21      The applicant claims that the Court should:

–        annul the decision rejecting the complaint;

–        annul the contested decision;

–        annul the decision of 5 June 2019;

–        annul the notice of competition and the draft list of officials selected to take part in the competition;

–        order the Commission to pay him the sum of EUR 50 000 as compensation for the harm suffered;

–        order the Commission and the Council of the European Union to pay the costs.

22      The Commission contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

23      The Council contends that the Court should dismiss the action.

 Law

 The application for annulment of the notice of competition and the draft list of officials selected to take part in the competition

24      By his fourth head of claim, the applicant seeks annulment of the notice of competition and of the draft list of officials selected to take part in the competition.

25      In the first place, as regards the notice of competition, it should be borne in mind that, according to settled case-law, the time limit of three months for lodging a complaint against an act adversely affecting an official, laid down in Article 90 of the Staff Regulations, is a matter of public policy. It is not subject to the discretion of the parties or the Court, since it was established in order to ensure that legal positions are clear and certain and that there is legal certainty. It is therefore for the EU Courts to ascertain, of their own motion, whether that time limit has been observed. Even where an institution deals with the substance of an administrative complaint that is out of time and therefore inadmissible, that can neither have the effect of derogating from the system of mandatory time limits established by Articles 90 and 91 of the Staff Regulations nor of depriving the administration of the option of raising, at the stage of court proceedings, a plea of inadmissibility based on the fact that the complaint was out of time, nor a fortiori of relieving the General Court of its obligation to ascertain whether the time limits under the Staff Regulations have been complied with (see order of 7 September 2005, Krahl v Commission, T‑358/03, EU:T:2005:301, paragraphs 35 and 36 and the case-law cited).

26      In the present case, in accordance with Article 90(2) of the Staff Regulations, the applicant had three months from the date of publication of the notice of competition in the Official Journal of the European Union, namely 24 January 2019, to lodge an administrative complaint, that is to say, until 24 April 2019. Since such a complaint was lodged on 27 January 2020, it must be held that the complaint is out of time in so far as it concerns the notice of competition and that, therefore, the claim for annulment of that notice must be rejected as inadmissible.

27      In the second place, as regards the draft list of officials selected to take part in the competition, the applicant’s request must be interpreted as seeking annulment of the list of candidates who were invited to the stage of the competition which followed the eligibility checks, that is to say, the Talent Screener stage. That is the stage at which the competition stood when the applicant was excluded from it.

28      In that regard, it should be recalled that, according to the case-law, the annulment of all the results of a competition constitutes, in principle, an excessive penalty for the irregularity committed, irrespective of the nature of the irregularity and the extent to which it affects the results of the competition (judgment of 5 May 2010, Bouillez and Others v Council, F‑53/08, EU:F:2010:37, paragraph 83).

29      Therefore, forms of order seeking annulment of a competition’s reserve list are, in accordance with the case-law, in principle admissible only in so far as they concern the refusal by the competition selection board to place the name of the applicant on the reserve list in question (see, to that effect, judgment of 25 May 2000, Elkaïm and Mazuel v Commission, T‑173/99, EU:T:2000:142, paragraph 23 and the case-law cited). Where, in an open competition organised for the purpose of constituting a reserve for future recruitment, unlawfulness is found, an applicant’s rights will be adequately protected if the selection board and the appointing authority reconsider the decision adversely affecting that applicant and seek a fair solution for that candidate. There is therefore no reason to call into question the entire results of the competition or to annul the appointments made as a result thereof (see judgment of 6 July 1993, Commission v Albani and Others, C‑242/90 P, EU:C:1993:284, paragraph 13 and the case-law cited).

30      It must be held that that reasoning, developed in relation to a claim for annulment of a reserve list of a competition, may be applied, by analogy, to the list of candidates invited to the next stage of a competition.

31      Thus, the application for annulment of the draft list of officials selected to take part in the competition must be rejected as inadmissible.

 The application for annulment of the decision of 5 June 2019, the contested decision and the decision rejecting the complaint

 The subject matter of the application for annulment

32      In the first place, by the third head of claim, the applicant asks the Court to annul the decision of 5 June 2019.

33      According to the case-law, where a candidate in a competition seeks review of a decision taken by a selection board, the decision taken by the latter after the review of the candidate’s situation replaces the initial decision of the selection board (judgments of 5 September 2018, Villeneuve v Commission, T‑671/16, EU:T:2018:519, paragraph 24, and of 16 May 2019, Nerantzaki v Commission, T‑813/17, not published, EU:T:2019:335, paragraph 25).

34      It follows that the contested decision replaced the decision of 5 June 2019 and therefore constitutes the act adversely affecting the applicant in the present case.

35      In the second place, by his first head of claim, the applicant seeks annulment of the decision rejecting the complaint.

36      It is settled case-law that claims directed against the rejection of a complaint have the effect of bringing before the Court the act against which the complaint was submitted and as such lack any independent content (judgment of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 8; see, also, judgments of 16 May 2019, Nerantzaki v Commission, T‑813/17, not published, EU:T:2019:335, paragraph 26 and the case-law cited, and of 27 October 2021, WM v Commission, T‑411/18, not published, EU:T:2021:742, paragraph 29 and the case-law cited). That may, in particular, be the case where the decision rejecting the complaint is purely confirmatory of the decision which is the subject of the complaint and that, therefore, the annulment of the rejection of the complaint would have no effect on the legal position of the person concerned distinct from that which follows from the annulment of the act adversely affecting the applicant against which the complaint was submitted (judgments of 21 September 2011, Adjemian and Others v Commission, T‑325/09 P, EU:T:2011:506, paragraph 33, and of 16 October 2018, OY v Commission, T‑605/16, not published, EU:T:2018:687, paragraph 37).

37      Furthermore, in view of the evolving nature of the pre-litigation procedure, an express decision rejecting a complaint which contains only further particulars and thus merely reveals, in a detailed manner, the grounds for confirming the earlier decision does not constitute an act adversely affecting the person concerned. Nevertheless, that evolving nature of the pre-litigation procedure means that those further particulars must be taken into consideration in assessing the legality of the contested act (judgment of 12 December 2018, Colin v Commission, T‑614/16, not published, EU:T:2018:914, paragraph 29; see also, to that effect, judgment of 27 October 2021, WM v Commission, T‑411/18, not published, EU:T:2021:742, paragraph 30).

38      In the present case, the decision rejecting the complaint confirmed the contested decision as regards the applicant’s non-admission to the next stage of the competition, while providing additional information. In particular, in that decision, the Director of EPSO set out the criteria used by the selection board for the admission of applications (‘the eligibility criteria’) and specified, in the light of those criteria, the experience of the applicant which had been taken into account for each entry of his application form. Next, the Director of EPSO concluded that, even though the applicant had the required level of education, in view of the information provided in his application form, he did not have the relevant professional experience in the light of the predetermined criteria which the selection board had applied correctly.

39      It follows that the decision rejecting the complaint, while providing additional information, confirmed the contested decision not to admit the applicant to the next stage of the competition, on the ground, already set out in that latter decision, that the applicant did not meet the conditions relating to professional experience laid down in the notice of competition.

40      Therefore, the decision rejecting the complaint does not constitute an act adversely affecting an official, even though, in accordance with the case-law referred to in paragraph 37 above, its statement of reasons must be taken into consideration in the examination of the lawfulness of the contested decision.

41      In the light of the foregoing, it must be concluded that there is no need to adjudicate separately on the first and third heads of claim, seeking annulment of the decision rejecting the complaint and the decision of 5 June 2019, respectively.

 Substance

42      The applicant relies, in essence, on four pleas in law, alleging (i) infringement of the obligation to state reasons, (ii) a manifest error of assessment, (iii) unlawfulness of the notice of competition and (iv) unlawfulness of the notice of competition, point 2.4 of the General rules governing Open Competitions and Article 5 of Annex III to the Staff Regulations.

–       The first plea in law, alleging infringement of the obligation to state reasons

43      The applicant claims that the selection board and EPSO infringed their obligation to state reasons in so far as they did not explain whether they had taken account of any professional experience or whether they had considered that all of his professional experience was irrelevant. It was only at the complaint stage that the applicant was informed of the relevant elements concerning the selection board’s doubts.

44      Similarly, the eligibility criteria attached to the defence were not provided to the applicant at the stage of the reply to his request for review.

45      In addition, the applicant submits that the reply included in the decision rejecting the complaint was generic in that it did not specify to what extent his professional experience had been recognised as relevant or why that experience could not be covered by the criteria set out in the notice of competition.

46      The Commission disputes that line of argument.

47      In accordance with settled case-law, the statement of reasons required under Article 296 TFEU for measures adopted by EU institutions must be appropriate to the measure at issue and must disclose clearly and unequivocally the reasoning followed by the institution which adopted that measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent court to review its legality. The requirements to be satisfied by the statement of reasons depend on all the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 11 June 2020, Commission v Di Bernardo, C‑114/19 P, EU:C:2020:457, paragraph 29 and the case-law cited).

48      It must also be borne in mind that, in view of the evolving nature of the pre-litigation procedure, the statement of reasons contained in the decision rejecting the complaint must also be taken into account in the review of the lawfulness of the contested decision (see judgment of 29 April 2020, CV and Others v Commission, T‑496/19, not published, EU:T:2020:163, paragraph 41 and the case-law cited; judgment of 29 April 2020, CZ and Others v EEAS, T‑497/19, not published, EU:T:2020:165, paragraph 41). An EU institution may remedy a possible lack of a statement of reasons by appropriate reasoning provided at the stage of the response to the complaint, as the reasons for that decision are deemed to coincide with the reasons for the decision against which the complaint was made (see judgment of 8 September 2021, AH v Eurofound, T‑630/19, not published, EU:T:2021:538, paragraph 76 and the case-law cited).

49      Furthermore, the duty to state reasons in decisions is an essential procedural requirement which must be distinguished from the question whether the reasoning is well founded, which is concerned with the substantive legality of the measure at issue (see judgment of 13 November 2018, Szentes v Commission, T‑830/17, not published, EU:T:2018:777, paragraph 26 and the case-law cited). The reasoning of a measure consists in a formal statement of the grounds on which that decision is based. If those grounds contain errors, those errors will affect the substantive legality of the measure in question, but not the statement of reasons in it, which may be adequate even though it sets out reasons which are incorrect (judgment of 17 December 2015, Italy v Commission, T‑295/13, not published, EU:T:2015:997, paragraph 122; see, also, judgment of 14 July 2021, BG v Parliament, T‑253/19, not published, EU:T:2021:459, paragraph 60 and the case-law cited).

50      Lastly, as regards decisions taken in respect of competitions, it is apparent from the case-law that the eligibility criteria for applications relied on by the selection board constitute a minimum of information which must in any event be provided to candidates, at the latest at the same time as the results of the competition concerned (see, to that effect, judgment of 11 June 2020, Commission v Di Bernardo, C‑114/19 P, EU:C:2020:457, paragraph 35).

51      The first plea should be considered in the light of those principles.

52      In the contested decision, the selection board stated that, in accordance with the notice of competition, only the candidates who fulfilled all the eligibility criteria on the basis of the information given in their application could be admitted to the competition. Accordingly, in the exercise of its broad discretion, and despite the applicant’s belief to the contrary, the selection board decided that his professional experience, as presented by the applicant, was not sufficient in the light of the eligibility conditions since that experience did not sufficiently cover the scope of the duties previously set out in the notice of competition.

53      It is true that the contested decision does not provide any specific statement of reasons as regards the relevance of the applicant’s professional experience and the question whether that experience was taken into account and, if so, to what extent. Nor does that decision provide any information on the selection board’s choice of eligibility criteria for assessing applications.

54      However, in accordance with the case-law cited in paragraph 48 above, any infringement of the obligation to state reasons must also be assessed in the light of the statement of reasons provided to the applicant in the decision rejecting the complaint.

55      In that regard, in the decision rejecting the complaint, the Director of EPSO provided the applicant with information concerning the eligibility criteria, according to which, inter alia, certain professional experience was considered relevant, partly relevant or irrelevant. Thus, the applicant is wrong to claim that the failure to communicate those criteria, in the contested decision, is such as to vitiate the legality of that decision on account of an infringement of the obligation to state reasons. The Director of EPSO provided explanations relating to the various entries completed by the applicant in the section of the application form dedicated to his professional experience.

56      First, as the applicant acknowledges, as regards entry 1 of the application form, his professional experience was partially recognised in the decision rejecting the complaint. It is clearly stated therein that the professional experience set out in that entry was taken into account at the rate of 50% since it concerned more IT project management than the protection of information and handling of information security incidents.

57      The applicant’s arguments that that experience should be taken into account in full seek to call into question the merits of the statement of reasons and, therefore, must be rejected on the basis of the case-law cited in paragraph 49 above.

58      The same is true of entries 4 to 7 of the application form, in relation to which, without challenge from the applicant, it is expressly stated in the decision rejecting the complaint that the professional experience contained therein was not linked to the relevant duties since none of the tasks mentioned under those entries were linked to the protection of information or to the handling of computer security incidents. For the reasons set out in paragraph 57 above, the challenges to the merits of that finding cannot be upheld for the purposes of examining the present plea either.

59      Second, as regards entry 3 of the application form, in the decision rejecting the complaint, it is clearly explained that the duties described in entry 3 are related to IT project and programme management and the duties linked to IT security are not in any way elaborated in that section.

60      It follows that the applicant’s detailed professional experience in entry 3 of the application form was considered to be irrelevant in its entirety on the ground that the applicant did not at all elaborate on the duties relevant for field 3 of the notice of competition, namely, information and document security.

61      Third, as regards entry 2 of the application form, it must be noted that, in the decision rejecting the complaint, the Director of EPSO stated that only a small part of the tasks, as mentioned by the applicant, could be linked to drafting security policies and procedures concerning the protection of information, without any details being provided by the applicant. It is apparent from that explanation that the applicant had not substantiated that specific experience so that it could be taken into account.

62      In any event, even if the applicant had not been in a position to understand that the experience mentioned in entry 2 of the application form had been rejected in its entirety, it must be noted that the professional experience mentioned therein concerned a 46-month period, that is to say, a period of 3 years and 10 months. Such a duration, and all the more so a small part of that experience, cannot satisfy the condition laid down in the notice of competition requiring at least six years’ relevant professional experience; this is true even if the period appearing in entry 1, accounted for at the rate of 50% of a total duration of 3 months and 9 days, which was accepted as relevant, were to be included. Accordingly, the applicant was able to understand the reasons why his professional experience, as presented in his application form, was considered insufficient in the light of the eligibility conditions.

63      Consequently, the applicant is not justified in claiming that the contested decision  infringes the obligation to state reasons since he was able, in accordance with the case-law cited in paragraph 47, to understand the reasons justifying the contested decision and the rejection of his application.

64      Lastly, as regards the applicant’s professional experience within the Commission’s DG for Taxation and Customs Union, which ought to, in his view, constitute sufficient experience, it must be held that that argument relates to the merits of the contested decision and must therefore be rejected on the basis of the case-law cited in paragraph 49 above.

65      It follows that the statement of reasons for the contested decision, rejecting the applicant’s application on the ground that his professional experience was inadequate in the light of the nature of the duties concerned, as supplemented by the decision rejecting the complaint, was sufficient to enable the applicant to challenge its validity before the Courts of the European Union, which is also apparent from the arguments put forward by the applicant in the second plea in law, and the Court to exercise its review.

66      In the light of all of the foregoing, the first plea in law must be rejected.

–       The second plea in law, alleging a manifest error of assessment

67      The applicant claims that, by excluding him from the stages of the competition subsequent to the selection of applications, the selection board committed a manifest error of assessment. The applicant gained professional experience in various areas of information and document security for over 14 years, which the selection board and EPSO failed to take into account.

68      The applicant claims that, in entries 1 to 7 of the section of his application form relating to his professional experience, he provided an overview of the relevant duties which he had performed for over 14 years.

69      In particular, as regards entries 2 and 3 of the application form, the applicant maintains that he clearly specified the duties which he had performed and which, in his view, were relevant, in particular in the light of the selection criteria mentioned in Annex II to the notice of competition, setting out in detail the tasks performed in the course of his work experience.

70      The applicant also considers that the information which he provided in the Talent Screener section of his application form had to be taken into account especially since there was no clear distinction between the section relating to the assessment of eligibility conditions and the Talent Screener section. In that context, he challenges the fact that the answers provided in the section relating to eligibility criteria were separate from those provided in the Talent Screener section, which required candidates to make ‘double entries’ and may lead to applications being rejected on the basis of technicalities.

71      Nor did the selection board take account of the applicant’s success in the MCQ type tests, even though that clearly illustrates, together with the professional qualifications obtained in the field of information and security, recognised by the selection board, the fact that he had both the relevant knowledge and professional experience to serve as an administrator in the field of information and document security.

72      In addition, the applicant puts forward, in the reply, an argument alleging that the selection board could not assess the candidates on the exclusive basis of eligibility criteria which had not been published or disclosed to candidates. According to the applicant, such an argument is admissible since the eligibility criteria were disclosed to him for the first time in the defence.

73      Finally, the applicant claims to have been discriminated against, since the selection board did not observe the principle of equal treatment laid down in Articles 1d and 4 of the Staff Regulations.

74      The Commission disputes that argument.

75      In that regard, it must first be noted that the competition selection board is bound by the wording of the notice of competition as published. The essential function of the notice of competition is to inform the persons concerned in as precise a way as possible of the nature of the conditions required to fill the post in question, in order to enable them to judge, first, whether they should apply and, second, what supporting documents are required by the selection board and must, consequently, be attached to the application (judgment of 5 September 2018, Villeneuve v Commission, T‑671/16, EU:T:2018:519, paragraph 96).

76      Moreover, according to the case-law, the competition selection board enjoys discretion, under the provisions of the Staff Regulations concerning competition procedures, when assessing the nature and duration of previous professional experience of candidates and how closely they relate to the requirements of the post to be filled (see judgment of 14 December 2017, PB v Commission, T‑609/16, EU:T:2017:910, paragraph 44 and the case-law cited).

77      Therefore, in reviewing the lawfulness of the assessment of candidates’ previous professional experience, the General Court must confine itself to examining whether the exercise of the selection board’s discretion is vitiated by a manifest error (see judgment of 14 December 2017, PB v Commission, T‑609/16, EU:T:2017:910, paragraph 45 and the case-law cited).

78      In this regard, it should be observed that an error is manifest where it can be readily detected, in the light of the criteria which the legislature intended to apply to the exercise by the administration of its broad discretion. In view of that broad discretion granted to the selection board, in order to establish that it committed a manifest error in assessing the facts such as to justify the annulment of the decision taken, the evidence, which it is for the applicant to adduce, must be sufficient to make the findings of the selection board in question implausible. In particular, there can be no manifest error if the contested assessment may be accepted as true or valid (see, to that effect, judgments of 5 September 2018, Villeneuve v Commission, T‑671/16, EU:T:2018:519, paragraph 100 and the case-law cited; of 13 November 2018, Szentes v Commission, T‑830/17, not published, EU:T:2018:777, paragraph 41; and of 12 December 2018, Colin v Commission, T‑614/16, not published, EU:T:2018:914, paragraph 74).

79      The second plea must be examined in the light of those principles.

80      In the first place, the applicant claims, in essence, that, in assessing his professional experience, the selection board should have taken into account the information which he had provided in the Talent Screener section of his application form and the selection criteria set out in Annex II to the notice of competition. The applicant also challenges the fact that the answers provided in the part relating to the conditions for admission are separate from those provided in the Talent Screener section, which required candidates to make ‘double entries’ and could lead to applications being rejected on the basis of technicalities.

81      In the present case, the selection board took the view that the applicant did not meet the eligibility conditions because he had failed to demonstrate in his application form that he had at least six years’ relevant professional experience. Consequently, the applicant was not admitted to the next stage of the selection procedure, namely that of the Talent Screener.

82      As regards the stage of the competition relating to eligibility checks, the detailed rules for those checks were described in the notice of competition in the terms set out in paragraph 10 above.

83      It is apparent that the eligibility conditions, in particular those relating to the required professional experience, were included in the ‘Am I eligible to apply?’ section and were assessed in the light of the information provided by the applicant in the ‘Professional Experience’ section.

84      As noted in paragraph 6 above, the condition relating to professional experience consisted in an experience of at least six years’ relevant to the duties concerned. The nature of the duties to be performed for each field was set out in Annex I.

85      By contrast, it should be noted that Annex II to the notice of competition expressly provided that ‘the selection board considers the … criteria [listed therein] for the selection based on qualifications’. As regards that stage of the selection, which relates to the Talent Screener, in the ‘How will I be selected?’ section, as is apparent from paragraph 11 above, that stage was open only to those candidates deemed eligible, using solely the information provided in the Talent Screener section. In that context, candidates were invited to include all relevant information even if it was already mentioned in other sections of the application form. It was also stated that the relevant selection criteria were set out in Annex II to the notice of competition.

86      It follows, first, that, in accordance with the requirements of the notice of competition, the Talent Screener stage and the eligibility checks stage were two distinct stages of the selection procedure in relation to which the notice of competition provided for separate sections in the application forms, which had to be completed as fully as possible. In addition, that notice expressly stated that ‘the selection based on qualifications will be carried out only for those candidates deemed eligible’.

87      Consequently, the selection board could not take into consideration the information provided by the applicant in the Talent Screener section for the purposes of the prior eligibility checks stage, or the selection criteria set out in Annex II to the notice of competition.

88      Furthermore, the selection board could not take that information into account at the stage of checking the eligibility of the applicant’s application without giving him an advantage to the detriment of all candidates who, on reading that notice alone, had understood that they had to provide all the information relevant for those checks in the sections ‘Education and Training’, ‘Professional Experience’ and ‘Language Skills’ of the online application form.

89      Second, as regards the applicant’s argument that it was not justified for candidates to have to, where appropriate, make ‘double entries’, it should be noted that that possibility was clearly foreseen in the notice of competition (see paragraph 85 above).

90      As follows in particular from the first paragraph of Article 1 and Article 4 of Annex III to the Staff Regulations, it is therefore the appointing authority’s task to draw up the notice of competition and, for that purpose, to decide on the most suitable method for selecting candidates, in the light of the requirements attaching to the posts to be filled and, more generally, of the interests of the service (see judgment of 5 September 2018, Villeneuve v Commission, T‑671/16, EU:T:2018:519, paragraph 61 and the case-law cited).

91      Therefore, it is not for the applicant to determine the method of selecting candidates in the competition.

92      However, it must be noted that the exercise by the appointing authority of that discretion is necessarily circumscribed by the need to observe the rules in force and general principles of law. It follows that the method chosen by the appointing authority must, first, aim to recruit persons of the highest standard of ability and efficiency, in accordance with Article 27 of the Staff Regulations, second, in accordance with Article 5 of Annex III to the Staff Regulations, reserve for an independent selection board the task of determining, case by case, whether the diplomas submitted or the professional experience presented by each candidate correspond to the level required by the Staff Regulations and the notice of competition and, third, result in the consistent and objective selection of candidates (see judgment of 5 September 2018, Villeneuve v Commission, T‑671/16, EU:T:2018:519, paragraph 62 and the case-law cited).

93      In that regard, the applicant criticises the risk that applications be rejected on the basis of technicalities to the detriment of the most qualified candidates.

94      However, the requirement that candidates comply with clear, precise and unequivocal instructions in the notice of competition cannot compromise the objective of recruiting persons of the highest standard of ability and efficiency, particularly since it is not unreasonable to expect candidates who wish to become administrators to show sufficient rigour and attention when submitting their applications. In addition, the balance of the reciprocal rights and obligations between the administration and the candidate requires that the latter read attentively and carefully the provisions in a notice of competition which is perfectly clear, precise and unconditional (judgments of 20 June 1990, Burban v Parliament, T‑133/89, EU:T:1990:36, paragraph 33, and of 3 March 2021, Barata v Parliament, T‑723/18, EU:T:2021:113, paragraph 82).

95      In the light of the foregoing, the applicant’s arguments set out in paragraph 80 above must be rejected.

96      In the second place, whether the selection board’s assessment was vitiated by a manifest error must be ascertained in the light of the information in the ‘Professional Experience’ section of the applicant’s application form.

97      The applicant disputes the assessment of his professional experience as it is set out in the section of his application form dedicated to professional experience.

98      In that regard, it should be noted at the outset that it is apparent both from the contested decision and from the decision rejecting the complaint, and as the Commission maintains, that the applicant’s application was not rejected because his experience was insufficient per se, but because, in the section of his application form relating to professional experience, he had not demonstrated that he had relevant professional experience of a sufficient duration.

99      As regards entry 1 of his application form, the applicant merely claims that the professional experience mentioned therein was entirely relevant, even though it was accounted for only at the rate of 50%.

100    It must be held that such unsubstantiated claims cannot constitute sufficient evidence to render implausible the assessments made by the selection board.

101    The same applies to the assessment of the applicant’s professional experience in entries 4 to 7 of his application form, considered to be irrelevant by the selection board, since the applicant merely expresses his disagreement without putting forward any specific supporting evidence.

102    As regards entry 3 of his application form, it should be noted that only two posts as they are listed by the applicant are related to IT security, namely those of ‘IT Security Policy Officer’ and ‘IT Security auditor testing for spectrum frequency zones bidding platform and general authorisation on-line request platform’.

103    As regards the first post, its title alone, namely ‘IT Security Policy Officer’, does not make it possible to identify the specific tasks which the applicant was required to perform. Were that job title, which essentially corresponds to the title of the notice of competition, sufficient in itself, the notice of competition, aimed at recruiting security officers, would not have included, in Annex I thereto, a list of the nature of the specific duties which the successful security officers would be required to perform.

104    As regards the second post, the title of which suggests that it relates to projects relating to telecommunications, it must be noted that, as stated in the decision rejecting the complaint, the applicant did not elaborate on that post for the purpose of demonstrating that he carried out duties described in Annex I to the notice of competition, which is not apparent from the mere reading of that title.

105    Moreover, the selection board cannot be criticised for having assessed the applicant’s professional experience solely in the light of the information which he had submitted in the ‘Professional Experience’ section of his application form. The selection board is obliged to take into account only the information provided and documents submitted by a candidate in support of his or her application form when assessing his or her professional experience in the light of the requirements laid down for the competition and it is under no obligation to ask the candidate concerned to provide additional documents or to make enquiries itself in order to ascertain whether the person concerned fulfils all of the conditions in the notice of competition (judgment of 12 December 2018, Colin v Commission, T‑614/16, not published, EU:T:2018:914, paragraph 76; see also, to that effect, judgment of 13 November 2018, Szentes v Commission, T‑830/17, not published, EU:T:2018:777, paragraph 39).

106    In those circumstances, the additional information adduced by the applicant before the Court concerning the tasks which he allegedly performed which did not appear in entry 3 of the application form relating to his professional experience cannot be taken into account in order to establish that the selection board made a manifest error of assessment.

107    Accordingly, the selection board did not commit a manifest error of assessment in disregarding the applicant’s professional experience set out in entry 3 of his application form.

108    As regards entry 2, it must be stated that, even if the selection board may have made a manifest error in assessing the relevance of the applicant’s professional experience, the contested decision in so far as it finds that the total duration of the applicant’s relevant experience was less than six years cannot be called into question.

109    Even if the selection board had taken into account the applicant’s professional experience set out in entry 2 of his application form in full, such a period, together with the duration of the experience set out in entry 1, accounted for by the selection board at the rate of 50%, would not have made it possible to satisfy the eligibility condition that candidates have six years’ relevant professional experience.

110    In the third place, in the reply, the applicant puts forward, for the first time before the Court, a complaint alleging, inter alia, late disclosure of the eligibility criteria, after the competition procedure, at the stage of the defence.

111    It must be observed that under Article 84(1) of the Rules of Procedure of the General Court ‘no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure’.

112    It is clear that the eligibility criteria had already been disclosed before these proceedings were brought, in the decision rejecting the complaint.

113    At the hearing, the applicant submitted that, even if it were accepted that the eligibility criteria had been disclosed in the decision rejecting the complaint, the whole of the relevant document, containing three pages supplementing the criteria relating to the instructions intended for the selection board, was produced by the Commission only in the defence.

114    However, the applicant’s arguments in the reply are based essentially on the eligibility criteria themselves and not on those instructions to the selection board.

115    Similarly, while the applicant claims that, contrary to those instructions, the selection board, by failing to take account of his professional experience, departed from what a candidate could reasonably assume after a careful reading of the eligibility criteria, it should be pointed out that, in support of that argument, the applicant reiterates his comments set out in the application. Moreover, such an argument amounts to finding that the selection board breached those criteria. It follows that the instructions to the selection board concerning the eligibility criteria do not constitute evidence which prevented the applicant from challenging those criteria at the stage of the application.

116    As to the remainder, the other instructions intended for the selection board merely recall principles identified in the case-law relating inter alia to the obligation to state reasons and to the binding force of the notice of competition on the selection board.

117    It follows from the foregoing that the complaint alleging late disclosure of the eligibility criteria is inadmissible.

118    In the fourth place, the applicant cannot rely on his success in the MCQ tests since, in the notice of competition, that stage of the selection procedure merely amounted to a step which preceded the eligibility checks stage, from which it was therefore distinct.

119    In the fifth place, as regards the alleged discrimination against the applicant, it should be noted that that complaint, which is not substantiated by the applicant in the present plea, is the subject of the third plea in law, in the context of which it should therefore be examined.

120    In the light of all the foregoing, it must be concluded that the selection board was entitled to decide, without making a manifest error of assessment, that the applicant did not satisfy the condition of admission to the competition relating to the length of relevant professional experience and that his application should be rejected.

121    The second plea in law should therefore be rejected.

–       The third plea in law, alleging unlawfulness of the notice of competition

122    First, the applicant claims that the notice of competition is unlawful in so far as it obliged him to choose English or French as language 2. According to the applicant, if he had been authorised to submit his application for the competition in his mother tongue, he would have given a more complete and precise description of his relevant professional experience, thereby increasing his chances of being admitted to the next stage of the competition.

123    Second, the applicant submits that the selection criteria set out in Annex II to the notice of competition concern only activities which may be carried out by officials working at the Commission in the specific field referred to in the notice of competition, since experience gained in the private sector is not recognised as relevant. Thus, those officials are given an advantage and the notice of competition is unlawful in that it is discriminatory. The applicant claims that he has an interest in the annulment of the notice of competition, including Annex II thereto, since his professional experience was assessed as insufficient as a direct consequence, in particular because it had been gained outside the EU institutions.

124    The Commission disputes that argument.

125    It should be recalled, first of all, that, although an applicant is entitled to lodge a direct action, within the prescribed period, against a notice of competition where it constitutes a decision by the appointing authority adversely affecting him or her within the meaning of Articles 90 and 91 of the Staff Regulations, he or she is not barred from bringing an action directed against the decision not to admit him or her to the competition solely on the grounds that he or she did not challenge the notice of competition in due time. A candidate in a competition must not be deprived of the right to challenge all the elements, including those defined in the notice of competition, comprising the justification for the individual decision concerning him or her taken on the basis of the conditions laid down in the notice, inasmuch as only the decision applying them affects his or her legal position individually and enables him or her to ascertain with certainty how and to what extent his or her personal interests are affected. As long as the applicant’s application has not been rejected by the selection board, he or she cannot be sure whether he or she has an interest in bringing proceedings against the notice of competition, so that he or she cannot be criticised for not having contested the notice of competition within the time limits provided for in Articles 90 and 91 of the Staff Regulations. An applicant may therefore, in the event of an action brought against subsequent measures, plead the irregularity of previous measures which are closely connected with them (judgment of 5 September 2018, Villeneuve v Commission, T‑671/16, EU:T:2018:519, paragraph 54; see also, to that effect, judgment of 14 December 2017, PB v Commission, T‑609/16, EU:T:2017:910, paragraphs 26 to 28).

126    In that regard, it is clear from the case-law that, where there is no close connection between the statement of reasons for the contested decision and the plea alleging irregularities in the notice of competition, which has not been challenged in good time, the plea must be declared inadmissible, in accordance with the mandatory rules governing time limits for bringing proceedings, which cannot be derogated from in such a case without offending against the principle of legal certainty (judgments of 14 December 2017, PB v Commission, T‑609/16, EU:T:2017:910, paragraph 29, and of 5 September 2018, Villeneuve v Commission, T‑671/16, EU:T:2018:519, paragraph 55).

127    It is therefore necessary to examine whether there is a close link between, on the one hand, the statement of reasons for the contested decision and, on the other, the alleged unlawfulness of the notice of competition relied on by the applicant.

128    In the first place, as regards the restriction on language 2, it should be noted, as the Commission did, that, in paragraph 1 of the ‘How will I be selected?’ section in the notice of competition, it was expressly stated that candidates could choose one of the 24 official languages of the European Union to complete their application form, with the exception of the Talent Screener section which had to be completed in language 2 (see paragraph 8 above).

129    It is common ground that the applicant was excluded from the competition before the Talent Screener stage and that, as was concluded in paragraphs 87 and 96 above, the eligibility condition relating to the applicant’s professional experience had to be assessed in the light of the information in the ‘Professional Experience’ section of his application form without the selection board having been able to take into consideration the information in the Talent Screener section.

130    Consequently, while the applicant chose to complete the ‘Professional Experience’ section of the application form in English, on the basis of which his professional experience was assessed, the use of that language was his own choice and was not imposed on him by the requirements of the notice of competition.

131    Therefore, the applicant is not justified in claiming that his exclusion from the competition in the contested decision was linked to the restriction on language 2 in the notice of competition.

132    Consequently, the language regime provided for in the notice of competition has no close link with the statement of reasons for the contested decision. The complaint alleging that such a scheme is unlawful must therefore be rejected as inadmissible, in accordance with the case-law cited in paragraph 126 above.

133    In the second place, as regards the applicant’s argument that Annex II to the notice of competition was unlawful, it should be pointed out that that annex related to the Talent Screener, with the result that, as is apparent from paragraph 87 above, the selection board could not take it into consideration for the purposes of the prior eligibility checks stage.

134    The applicant was excluded from the competition at the eligibility checks stage. Therefore, his application was not examined in the context of the Talent Screener stage.

135    Consequently, there is no close link between the applicant’s criticisms of Annex II to the notice of competition in the present plea and the statement of reasons for the contested decision. The complaint alleging the unlawfulness of such an annex must therefore be rejected as inadmissible, in accordance with the case-law cited in paragraph 126 above.

136    It follows from the foregoing that the third plea in law must be rejected as inadmissible.

–       The fourth plea in law, alleging unlawfulness of the Talent Screener, point 2.4 of the General rules governing Open Competitions and Article 5 of Annex III to the Staff Regulations

137    The applicant claims that, in view of Articles 1d, 4, 7 and 29 of the Staff Regulations, the Talent Screener stage is unlawful. In particular, the Talent Screener stage is inadequate as a system for assessing transferable skills when applied to candidates in EU open competitions, but not to EU officials who are already employed in its institutions and who may move from one DG of the Commission to another on a rotation system, on the basis of Article 4 of the Staff Regulations. The applicant states that he is not concerned by the Talent Screener section per se, but rather by the combination of the application form’s section relating to the eligibility of candidates to the competition and the Talent Screener section as a whole. The section relating to the eligibility of the applicant’s application should be read in conjunction with the information provided in the Talent Screener. The artificial separation between those two sections of the application form is devoid of any purpose and runs counter to the principle of sound administration.

138    The Commission, supported by the Council, disputes those arguments.

139    First of all, it must be noted that, as the applicant stated at the hearing, he does not put forward any arguments specific to the plea of illegality relating to point 2.4 of the General rules governing Open Competitions and Article 5 of Annex III to the Staff Regulations, with the result that it must be examined together with that raised against the Talent Screener section.

140    Next, it should be noted that the applicant was excluded from the competition at the eligibility checks stage, that is to say, at a stage in the competition which comes before the Talent Screener stage.

141    Lastly, as was found in paragraph 87 above, the selection board could not take into consideration the information provided by the applicant in the Talent Screener section for the purposes of the eligibility checks stage.

142    Consequently, there is no close link between the criticisms made by the applicant in the context of the present plea and the statement of reasons for the contested decision, according to which, on the basis of the information which he had provided in his application form, the applicant did not have sufficient relevant professional experience. The fourth plea in law must therefore be rejected as inadmissible, in accordance with the case-law cited in paragraph 126 above.

143    Since all the pleas in law relied on by the applicant have been rejected, the application for annulment of the contested decision must be dismissed in its entirety.

 The claim for damages

144    The applicant claims the sum of EUR 50 000 by way of compensation for the damage suffered as a result of loss of time, resources and money in order to prepare for the competition and of the disruption to his career caused by his exclusion from that competition.

145    According to settled case-law, claims for compensation of material or non-material damage must be rejected where, as in the present case, they are closely linked with the claims seeking annulment, which themselves have been rejected as inadmissible or unfounded (see order of 18 November 2019, Dickmanns v EUIPO, T‑181/19, not published, EU:T:2019:796, paragraph 56 and the case-law cited).

146    In the present case, it is apparent from the application that the claim for damages is closely linked to the claims for annulment. The material damage for which the applicant seeks compensation arises from the unlawfulness vitiating the contested decision and the notice of competition.

147    Therefore, since the applications for annulment of the contested decision and of the notice of competition have been rejected as partly unfounded and partly inadmissible, the claim for compensation for damage must also be rejected.

148    It follows from all the foregoing considerations that the action must be dismissed in its entirety without there being any need to have recourse to the measures of inquiry and organisation of procedure requested by the applicant, which it is for the General Court, in accordance with Article 90(1) and Article 92(1) of the Rules of Procedure, to prescribe if it considers it appropriate.

 Costs

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

150    Since the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

151    Furthermore, in accordance with Article 138(1) of the Rules of Procedure, the institutions which have intervened in the proceedings are to bear their own costs. Therefore, the Council is to bear its own costs.

On those grounds,

THE GENERAL COURT (Seventh Chamber)

hereby:

1.      Dismisses the action;

2.      Orders MV to bear his own costs and to pay those incurred by the European Commission;

3.      Orders the Council of the European Union to bear its own costs.

Delivered in open court in Luxembourg on 19 October 2022.

*      Language of the case: English.

© European Union
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