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

ORDER OF THE GENERAL COURT (Eighth Chamber)

11 February 2022 (*)

(Civil service – Officials – Recruitment – Open Competition EPSO/AST/147/19 – Decision not to include the applicant’s name on the reserve list for the competition – Obligation to state reasons – Equal treatment)

In Case T‑736/20,

OP, represented by S. Pappas, lawyer,

applicant,

v

European Commission, represented by I. Melo Sampaio and L. Vernier, acting as Agents,

defendant,

APPLICATION pursuant to Article 270 TFEU seeking annulment of the decision of the selection board of Open Competition EPSO/AST/147/19 of 5 February 2020 not to include the applicant’s name on the reserve list of that competition,

THE GENERAL COURT (Eighth Chamber),

composed of J. Svenningsen, President, C. Mac Eochaidh and T. Pynnä (Rapporteur), Judges,

Registrar: E. Coulon,

makes the following

Order

 Background to the dispute

1        On 24 January 2019, the notice of competition EPSO/AST/147/19, based on qualifications and tests, organised for the purpose of drawing up a reserve list from which assistants (AST 3) could be recruited in the fields of security operations, technical security and information and document security (‘the competition’) was published in the Official Journal of the European Union (OJ 2019 C 30 A, p. 1; ‘the competition notice’).

2        Point 5, entitled ‘Assessment centre’, stated as follows under the heading ‘How will I be selected?’:

‘…

Seven general competencies for the AST competition and eight general competencies for the AD competition, as well as the field-related competencies required for each competition, will be tested at the assessment centre.

The tests for EPSO/AD/364/19 and EPSO/AST/147/19 will be comprised of 4 tests (general competency-based interview, field-related interview, group exercise and case study) as described in the following matrices:

…

Pass marks for EPSO/AST/147/19: 3/10 per competency and 35/70 in total

…’

3        Point 6, entitled ‘Reserve list’, stated, also under the heading ‘How will I be selected?’:

‘After checking candidates’ supporting documents and qualifications (Talent Screener), the selection board will draw up a reserve list for each competition and field – until the number of successful candidates sought is reached – of those eligible candidates who have obtained all pass marks as well as the highest overall marks following the assessment centre. …

…’

4        On 26 February 2019, the applicant, OP, submitted his application in the field of security operations. In his application, he declared that he had worked at the European Parliament from 1 July 2014 to 22 February 2019 as an accredited parliamentary assistant and head of office.

5        By letter of 23 August 2019, the applicant was informed that he had been awarded a score of 40 points in the ‘Talent Screener’ phase of the competition, exceeding the threshold of 32 points, and was therefore invited to the next phase of the competition at the assessment centre.

6        By decision of 5 February 2020, the selection board of the competition (‘the selection board’) informed the applicant that his name had not been included on the reserve list, since he was not among the candidates who had scored the highest aggregate marks at the assessment centre (‘the decision of 5 February 2020’). According to the selection board, the applicant’s aggregate mark, that is, 88 points out of 170, was insufficient for his name to be included on the reserve list, the threshold for which had been set at 102 points.

7        On 6 April 2020, the reserve list was published on the website of the European Personnel Selection Office (EPSO). Forty-two candidates were included on the reserve list, of whom only 39 agreed to have their names published.

8        On 15 April 2020, the applicant filed a complaint under Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), in which he argued that the competition was vitiated by the unequal treatment of the candidates, favouring those who were already working in the institutions or agencies of the European Union.

9        On 3 September 2020, the appointing authority of the European Commission (‘the appointing authority’) rejected the applicant’s complaint (‘the decision rejecting the complaint’). It found that the applicant had not provided sufficient evidence to give rise to a presumption of breach of the principle of equal treatment of the candidates of the competition and, in any event, the administration had carried out checks and had not found any irregularity in the competition.

 Procedure and forms of order sought

10      By application lodged at the Court Registry on 11 December 2020, the applicant brought the present action.

11      By letter of 21 December 2020, the applicant applied for anonymity under Article 66 of the Rules of Procedure of the General Court, which was granted to him.

12      The Commission lodged its defence on 6 April 2021.

13      By letter of 14 April 2021, the Court Registry informed the applicant that the Court had decided, pursuant to Article 83(1) of the Rules of Procedure, that there was no need for a second exchange of pleadings.

14      By letter of 10 May 2021, the applicant applied for leave to lodge a reply. The Court granted that leave.

15      On 8 July 2021, the applicant lodged the reply.

16      On 27 August 2021, the Commission lodged the rejoinder.

17      By document lodged at the Court Registry on 4 October 2021, the applicant asked that a hearing be held.

18      The applicant claims that the Court should:

–        annul the decision of 5 February 2020 and the decision rejecting the complaint;

–        order the Commission to pay the costs.

19      The Commission contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

20      As a preliminary point, the reference in the application to Article 263 TFEU notwithstanding, it is appropriate to consider that the present action has been brought under Article 270 TFEU and to reclassify it accordingly.

21      Moreover, under Article 126 of the Rules of Procedure, where it is clear that the Court has no jurisdiction to hear and determine an action or where an action is manifestly inadmissible or manifestly lacking any foundation in law, the Court may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings.

22      In the present case, the Court considers that it has sufficient information from the documents in the file and therefore has decided to give a decision without taking further steps in the proceedings.

 Subject matter of the action

23      According to settled case-law, claims for annulment formally directed against the decision rejecting a complaint have the effect of bringing before the Court the act against which the complaint was submitted, where those claims, in themselves, have no independent content (see judgment of 26 March 2020, Teeäär v ECB, T‑547/18, EU:T:2020:119, paragraph 24 and the case-law cited).

24      In the present case, given that the decision rejecting the complaint merely confirms the decision of 5 February 2020, it must be held that the claim for annulment of the decision rejecting the complaint has no independent content and that there is therefore no need to rule specifically on that claim, even though, in examining the lawfulness of the decision of 5 February 2020, account should be taken of the statement of reasons provided in the decision rejecting the complaint, since that statement of reasons is deemed to be the same as that contained in the decision of 5 February 2020 (see, to that effect, judgment of 26 March 2020, Teeäär v ECB, T‑547/18, EU:T:2020:119, paragraph 25 and the case-law cited).

 Substance

25      In support of the action, the applicant raises four pleas alleging (i) breach of the principles of equal treatment, transparency, objectivity and Article 1d(5) of the Staff Regulations, (ii) breach of the principle of good administration, (iii) infringement of the obligation to state reasons and (iv) infringement of Article 27 of the Staff Regulations.

26      The Court considers it appropriate to examine the third plea before the first, second and fourth pleas.

 The third plea, alleging infringement of the obligation to state reasons

27      The applicant submits that in the decision rejecting the complaint, the appointing authority failed to disclose, in a clear and unambiguous manner, the reasoning followed in such a way as to make it possible for him to be aware of the reasons which led to the finding that the final selection was not vitiated by unequal treatment. According to the applicant, it also did not make it possible for him to ascertain whether the exercise of remedies would be necessary in order to safeguard his rights.

28      The Commission disputes those arguments.

29      At the outset, it should be borne in mind that, according to settled case-law, the obligation to state reasons provided for in the second paragraph of Article 25 of the Staff Regulations and, more generally, by Article 41(2) of the Charter of Fundamental Rights of the European Union is intended, on the one hand, to provide the person concerned with sufficient details to determine whether the act adversely affecting him or her was well founded and whether it is appropriate to bring proceedings before the Court and, on the other, to enable that court to review the legality of the act (see, to that effect, judgments of 26 November 1981, Michel v Parliament, 195/80, EU:C:1981:284, paragraph 22, and of 22 November 2018, Brahma v Court of Justice of the European Union, T‑603/16, EU:T:2018:820, paragraph 165 (not published)).

30      In the present case, it is apparent from the decision of 5 February 2020 that the applicant was informed of the reason why his name was not included on the reserve list, namely that his aggregate mark, that is, 88 points, fell below the required threshold, namely 102 points. A document, entitled ‘Competency passport’, containing information on his marks and performance in relation to the competences assessed during the tests at the assessment centre, was attached to that decision.

31      In addition, it is apparent from the decision rejecting the complaint that the Commission rejected the arguments set out by the applicant in his complaint on the ground that, according to the Commission, he had not provided sufficient evidence to give rise to a presumption that the principle of equal treatment had been breached during the competition. That finding and the reasons for that finding were set out sufficiently clearly to make it possible for the applicant to ascertain whether the decision of 5 February 2020 was well founded and whether it was appropriate to bring an action before the Court, and to allow the Court to review the lawfulness of that decision.

32      In so far as the applicant disputes, through his arguments, the fact that the appointing authority failed to demonstrate that the principle of equal treatment had been respected, which relates rather to whether the Commission’s reasoning was well founded, those arguments must be rejected as ineffective in so far as they are made in support of the present plea. It is settled case-law that the obligation to state the reasons for decisions is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure (see judgment of 5 September 2018, Villeneuve v Commission, T‑671/16, EU:T:2018:519, paragraph 31 and the case-law cited).

33      Having regard to the foregoing, the third plea alleging infringement of the obligation to state reasons must be rejected as manifestly unfounded.

 The first plea, alleging infringement of the principles of equal treatment, transparency, objectivity and of Article 1d(5) of the Staff Regulations

–       The subject matter and admissibility of the first plea

34      Regarding the first plea, it must be stated that, even though the applicant refers to Article 1d of the Staff Regulations, he does not base his arguments on the claim that he has been discriminated against on one of the grounds set out in paragraph 1 of that provision or another comparable factor such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age, or sexual orientation. Rather, he alleges infringement of the principle of equal treatment arising from the fact that the selection board treated more favourably the candidates who were still working for an EU institution, body, office or agency after their application was lodged and specifically at the time of the tests at the assessment centre.

35      In addition, the Commission calls into question the admissibility of the first plea, in so far as the applicant had declared in his application that he had worked at the European Parliament from 1 July 2014 to 22 February 2019 and where he, according to the Commission, continued in all likelihood to work until the end of the parliamentary term in June 2019. The Commission submits – assuming that such an advantage had existed – that the applicant himself was thus treated more favourably as a candidate working for the EU institutions or agencies during the competition period, namely from 26 February 2019 to 6 April 2020. For that reason, it claims that the Court should make an order for a measure of inquiry asking the applicant to state whether he was employed at an EU institution or agency during that period.

36      In that connection, it must be borne in mind that the EU judicature is entitled to assess, in the circumstances of the case, whether the proper administration of justice justifies dismissal of the action on the merits without first ruling on its admissibility (see, to that effect, judgment of 26 February 2002, Council v Boehringer, C‑23/00 P, EU:C:2002:118, paragraph 52). In the present case, for reasons of procedural economy, it is appropriate to examine the first plea without first ruling on the plea of inadmissibility raised by the Commission, without there being any need to order the measure of inquiry sought by the Commission.

–       The merits of the first plea in law

37      The applicant claims that the decision of 5 February 2020 is vitiated by a breach of the principle of equal treatment, in so far as the candidates employed by the EU institutions, bodies, offices or agencies were treated more favourably during the tests at the assessment centre, without objective reasons. He observes that at least 61.5% of the candidates whose names were included on the reserve list were already employed by those institutions as members of the contract or temporary staff, a number at which he arrived after examining the professional email addresses of the successful candidates, the lists on the websites of the institutions and professional social media and through his professional and personal network. In addition, he submits that the procedure described in the competition notice was not safeguarded against manipulation, in the context of the mainly oral tests at the assessment centre in particular, during which the selection board has a wide discretion.

38      According to the applicant, the approximate figure of 60% of ‘internal’ candidates whose names were included on the reserve list is sufficient to establish a presumption of discrimination, meaning that it is for the Commission to prove that the decision of 5 February 2020 is not vitiated by a breach of the principle of equal treatment. He submits that this is particularly the case here, as the situation in which he finds himself is one of a complete lack of transparency. In the decision rejecting the complaint, the appointing authority merely declared that the procedural requirements had been complied with, without providing statistics or specific evidence to rebut that presumption.

39      The Commission disputes those arguments.

40      At the outset, it must be stated that the applicant does not put forward any arguments regarding the selection board’s assessment or grading of his own performance in the tests. However, he claims that candidates who were already employed by the EU institutions, bodies, offices or agencies were treated more favourably during the tests and the decision of 5 February 2020 is thus vitiated by a breach of the principle of equal treatment.

41      In that connection, it must be borne in mind that, according to settled case-law, a breach of the principle of equal treatment, applicable to the law relating to the employment of EU officials, occurs when two categories of person whose factual and legal circumstances disclose no essential difference are treated differently at the time of their recruitment and that difference in treatment is not objectively justified (see judgment of 4 March 2010, Angé Serrano and Others v Parliament, C‑496/08 P, EU:C:2010:116, paragraph 99 and the case-law cited).

42      In addition, it must be borne in mind that, according to settled case-law, first, an administrative act is presumed to be lawful and, second, the burden of proof lies, in principle, with the person claiming it to be unlawful, so that it is for an applicant to provide at the very least sufficiently precise, objective and consistent information to corroborate the truth or likelihood of the facts in support of his or her claim (see judgment of 12 May 2021, Alba Aguilera and Others v EEAS, T‑119/17 RENV, EU:T:2021:254, paragraph 105 and the case-law cited).

43      It must be stated from the outset that the applicant’s claims regarding the proportion of successful candidates whose names were included on the reserve list and who are allegedly already employed by the European Union or regarding the lack of ‘safeguarding against manipulation’ are not borne out by any evidence to corroborate the truth or likelihood of the facts in support of the first plea.

44      In the first place, according to the case-law, failing any firm evidence, statistical indications alone relating to a list of successful candidates are not sufficient to prove that the selection board applied a discriminatory criterion in the course of the competition or acted in breach of the principle of impartiality (see, to that effect, judgment of 5 April 2005, Christensen v Commission, T‑336/02, EU:T:2005:115, paragraph 55 and the case-law cited, and of 14 July 2005, Le Voci v Council, T‑371/03, EU:T:2005:290, paragraph 89).

45      Thus, it cannot be accepted that the number referred to by the applicant – that at least 61.5% of the successful candidates were working for the EU institutions at the time of the tests – or the statistics submitted by the Commission relating to a larger group of candidates – that 71% of successful candidates have prior experience in the EU institutions – can establish a presumption of a difference in treatment during the competition without more concrete evidence relating to the treatment of candidates.

46      In the second place, regarding the claim that the selection procedure described in the competition notice is not transparent and does not make it possible to avoid procedural ‘manipulation’ by the selection board, it is sufficient to note that that claim is imprecise and is not supported by any evidence. The applicant did not refer to any incident during the tests at the assessment centre that could support his reasoning or call into question the explanations provided in that respect by the appointing authority in the decision rejecting the complaint. Moreover, even assuming that the selection board was aware of the employment situation of the candidates after they submitted their applications, which the applicant has not established, the mere fact that the selection board has a wide discretion is not an indication of unequal treatment or lack of objectivity on its part.

47      In those circumstances, as the applicant has not provided any evidence to corroborate the truth or likelihood of the facts in support of his plea alleging breach of the principle of equal treatment, breach of the principle of transparency and breach of the principle of objectivity, the first plea must be rejected as manifestly unfounded.

 The second plea, alleging breach of the principle of good administration

48      The applicant submits that, even assuming that the burden of proof lies with him to demonstrate that there has been a breach of the principle of equal treatment, where doubts are raised regarding the credibility of the administration, particularly where those doubts relate to its ethics, a good administration is expected to be as transparent and explicit as possible in removing any suspicion raised against it. It is not enough to observe that ‘no trace of any anomaly could be detected’, as, according to the applicant, a good administration is required to verify the number of candidates already working for the EU institutions and to compare their written tests with the oral results and the file of each candidate.

49      The Commission disputes those arguments.

50      As observed in paragraph 47 above, the applicant has not provided any evidence to corroborate the truth or likelihood of the facts in support of his claim that the candidates who were employed by the EU institutions, bodies, offices or agencies at the time of the tests in the assessment centre were treated more favourably without objective reasons. Accordingly, it is not for the Commission to prove that there has not been a breach of the principle of equal treatment in that regard.

51      That finding is not called into question by the applicant’s arguments regarding the principle of good administration. He was, at the very least, required to produce evidence to support his case before the question of the qualification of the burden of proof could be raised (see, to that effect, judgment of 8 September 2021, JA v Parliament, T‑156/20, not published, EU:T:2021:551, paragraph 124). In those circumstances, the appointing authority was not required to provide explanations or statistical data on the candidates in the competition.

52      Having regard to the foregoing, the second plea must be rejected as manifestly unfounded.

 The fourth plea, alleging infringement of Article 27 of the Staff Regulations

53      The applicant claims that the decision of 5 February 2020 infringes Article 27 of the Staff Regulations. According to the applicant, by treating more favourably the candidates who were already employed in the EU institutions, the selection board applied, in practice, the arbitrary criterion of employment within those institutions and thus failed to conduct a comparative examination of the candidates’ knowledge and abilities, solely on the basis of the requirements of the posts to be filled, of the interest of the service and in accordance with that article.

54      The Commission disputes those arguments.

55      In that connection, it suffices to note that the applicant’s claim that the candidates who were employed by the EU institutions, bodies, offices or agencies at the time of the tests in the assessment centre were treated more favourably without objective reasons was rejected in the context of the first plea, as the applicant has not provided any evidence to corroborate the truth or likelihood of the facts in support of his plea alleging breach of the principle of equal treatment, breach of the principle of transparency and breach of the principle of objectivity.

56      Having regard to the foregoing, the fourth plea must be rejected as manifestly unfounded and, as a result, the action in its entirety must be dismissed as manifestly lacking any foundation in law.

 Costs

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

On those grounds,

THE GENERAL COURT (Eighth Chamber)

hereby orders:

1.      The action is dismissed as manifestly lacking any foundation in law.

2.      OP shall pay the costs.

Luxembourg, 11 February 2022.

*      Language of the case: English.

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