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

OPINION OF ADVOCATE GENERAL

MEDINA

delivered on 22 September 2022(1)

Case C‑613/21 P

European Parliament

v

Fernando Carbajo Ferrero

(Appeal – Civil service – Officials – Procedure for appointment to a post of director – Vacancy notice – Rejection of the candidate’s application and appointment of another candidate – Irregularity of the recruitment procedure – Manifest error of assessment – Transparency – Equal treatment – Rejection of the application – Action for annulment and damages)

I.      Introduction

1.        The recruitment of senior officials is governed by the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) (2) and, where applicable, by an institution’s specific internal acts. In general, the aim of recruitment procedures is to allow the administration to make an informed choice as to which candidate is best suited to the post concerned and to ensure transparency in the recruitment process and equal treatment of all candidates. The present appeal, by which the European Parliament challenges the General Court’s judgment of 14 July 2021, Carbajo Ferrero v Parliament (T‑670/19, not published, EU:T:2021:435; the ‘judgment under appeal’), relates to specific aspects of the procedure for recruiting senior officials of the EU institutions, and more particularly the interrelationship of the criteria applied in the course of such a procedure in the comparative analysis of the merits of the candidates. This is an important matter as it determines the discretion enjoyed by the administration in the course of the selection procedure.

II.    Background to the dispute

2.        The background to the dispute is set out in paragraphs 1 to 18 of the judgment under appeal and may, for the purposes of the present proceedings, be summarised as follows.

3.        Mr Carbajo Ferrero is an official who entered the service of the European Parliament on 21 April 1986. He performed various duties within the Parliament in the fields of press, information, culture and media.

4.        With a view to filling a post of Director in the Directorate-General for Communication – Directorate for Media (‘the Director for Media’), the Parliament published, on 27 February 2018, a vacancy notice under Article 29(1)(a) of the Staff Regulations (the ‘vacancy notice’). The deadline for the submission of applications was 23 March 2018. Mr Carbajo Ferrero responded to the vacancy notice on 22 March 2018.

5.        The Parliament received three applications in response to the vacancy notice published. However, in order to be given a wider choice of candidates for the post of Director for Media, the Parliament published, on 27 March 2018, a transfer notice under Article 29(1)(b) of the Staff Regulations (‘the transfer notice’). Furthermore, on 13 April 2018, the Parliament published, in the Official Journal of the European Union, a recruitment notice under Article 29(2) of the Staff Regulations (OJ 2018 C 132 A, p. 1) (‘the recruitment notice’).

6.        The deadline for applications, as indicated in the recruitment notice, was 27 April 2018. In total, 16 candidates applied, 3 of which in response to the vacancy notice, 1 in response to the transfer notice and 12 further to the recruitment notice. Among those candidates, A submitted his or her application in response to the recruitment notice on 26 April 2018.

7.        As of June 2018, as a Director for Media had yet to be appointed, Mr Carbajo Ferrero was allocated interim responsibilities associated with that post with a view to ensuring continuity of service within the Directorate for Media.

8.        In the context of appointing a Director for Media, an advisory committee on the appointment of senior officials (‘the Advisory committee’) was set up, in accordance with the decision of the Bureau of the Parliament (‘the Bureau’) of 16 May 2000 laying down the steps in the procedure for appointing senior officials, as amended by the Bureau decision of 18 February 2008 (‘the decision laying down the steps in the procedure’).

9.        At its meeting on 4 October 2018, the Advisory committee adopted criteria for the comparative analysis of the merits of the candidates (the ‘comparative assessment criteria’). On the basis of those criteria, the Advisory committee drew up a list of candidates and made a recommendation to the Bureau as to who should be called for interview. The Bureau unanimously approved that recommendation. Mr Carbajo Ferrero, who had applied in response to the vacancy notice, A, who had applied in response to the recruitment notice, and B, the only candidate who had applied in response to the transfer notice, were amongst the candidates invited to the interview.

10.      Before meeting the candidates, the Advisory committee adopted seven topics or themes as the basis of the interviews, in order to analyse the applications and rank the applicants following those interviews.

11.      The interviews were conducted on 19 November 2018.

12.      On the basis of the interviews conducted with the shortlisted applicants, the Advisory committee submitted a reasoned report to the Bureau for a decision. That report ranked the candidates in order of merit and annexed a recommendation on the candidates most qualified to occupy the post of Director for Media. The Bureau discussed that report at a meeting held on 10 December 2018. The minutes of that meeting stated that the Advisory committee had proposed three candidates to fill the vacant post in order of precedence, whereby A ranked first, Mr Carbajo Ferrero second and B third. The Bureau, in its capacity as appointing authority, decided to follow the Advisory committee’s recommendation and appointed A to the post in question.

13.      On 11 December 2018, the Director-General of DG Communication informed the staff thereof that the recruitment procedure had been completed and thanked Mr Carbajo Ferrero for the interim responsibilities that he had assumed, as of June 2018, in that Directorate.

14.      By email of 12 December 2018, the Secretary-General notified Mr Carbajo Ferrero of the decision to reject his application and to appoint A to the post of Director for Media (‘the contested decision’).

15.      On 8 March 2019, the applicant lodged a complaint against the contested decision under Article 90(2) of the Staff Regulations. That complaint was rejected.

III. The procedure before the General Court and the judgment under appeal

16.      On 1 October 2019, Mr Carbajo Ferrero brought an action before the General Court based on Article 270 TFEU by which he sought, first, annulment of the contested decision and, second, compensation in respect of the harm he claimed to have suffered.

17.      By the judgment under appeal, the General Court annulled the contested decision and ordered the Parliament to pay the applicant, by way of compensation for material harm, the sum of EUR 40 000.

18.      Mr Carbajo Ferrero put forward five pleas in law in support of his action. In its defence, the Parliament asked the General Court to dismiss the action as in part inadmissible and in part unfounded or, in the alternative, dismiss the action as unfounded.

19.      In paragraph 43 of the judgment under appeal, the General Court rejected, at the outset, the objection raised by the Parliament to the admissibility of the second plea in law put forward by Mr Carbajo Ferrero. It then rejected, in paragraph 74 of the judgment under appeal, the first part of the second plea raised by Mr Carbajo Ferrero, alleging unlawfulness of the decision laying down the steps in the procedure and of Article 6 of the recruitment notice. The General Court also rejected, in paragraph 106 of the judgment under appeal, the first plea put forward by Mr Carbajo Ferrero, alleging infringement of the obligation to state reasons.

20.      The General Court then examined the second part of the second plea raised by Mr Carbajo Ferrero, alleging that the selection procedure infringed Article 27 of the Staff Regulations and the principles of legal certainty, transparency, sound administration and equal treatment.

21.      The General Court began by recalling, first, in paragraph 111 of the judgment under appeal, that respect for the principle of equal treatment in the course of the selection procedure of officials requires that the comparative assessment criteria be established before the recruitment procedure concerned. (3)

22.      Second, the General Court held, in paragraph 112 of the judgment under appeal, that the criteria for the comparative analysis of the merits of the candidates should not change in the course of the selection procedure, so as to prevent the risk that those criteria be adapted according to the applications received.

23.      Third, the General Court held, in paragraph 113 of the judgment under appeal, that the comparative assessment criteria must be notified to the appointing authority, so that the latter is aware of the manner in which those merits were assessed at the stage of the short-listing of candidates for interview as well as at the interview stage itself.

24.      Fourth, the General Court held, in paragraph 114 of the judgment under appeal, that even if the administration enjoys a broad discretion as regards the organisation of the selection procedure, it is for the Courts of the European Union to ensure that the candidates were treated equally by the administration. (4)

25.      Further to those findings, the General Court held, in paragraph 117 of the judgment under appeal, that the assessment of the candidates’ answers to the questions put by the Advisory committee on the basis of the list of seven topics or themes during the interviews did not take into account the three comparative assessment criteria set out on the basis of the vacancy, transfer and recruitment notices in the first phase of the selection procedure.

26.      The General Court then held, in paragraph 118 of the judgment under appeal, that even if it is possible to put questions to the candidates, those questions should not become new comparative assessment criteria.

27.      Furthermore, the General Court found, in paragraph 123 of the judgment under appeal, that the Bureau, in its capacity as appointing authority, was not informed that the comparative assessment criteria were replaced by the seven topics or themes used during the interviews.

28.      In the light of those considerations, the General Court upheld, in paragraph 125 of the judgment under appeal, the second part of the second plea in support of Mr Carbajo Ferrero’s action and found that the contested decision was adopted following an irregular recruitment procedure.

29.      The General Court then upheld, in paragraph 145 of the judgment under appeal, the second part of the third plea in law raised by Mr Carbajo Ferrero and, consequently, that plea in its entirety, in so far as it alleged that the contested decision was vitiated by a manifest error of assessment. According to the General Court, the appointing authority appointed A to the post without having been properly informed of Mr Carbajo Ferrero’s professional experience.

30.      In the light of those considerations, the General Court decided, in paragraph 146 of the judgment under appeal, to annul the contested decision, without examining the remaining pleas in law raised by the applicant.

31.      Lastly, the General Court upheld in part, in paragraphs 173 and 174 of the judgment under appeal, Mr Carbajo Ferrero’s claim for compensation in so far as it related to material harm suffered as a result of the contested decision and ordered the Parliament to pay him the sum of EUR 40 000.

IV.    Forms of order sought by the parties before the Court of Justice

32.      By its appeal, the Parliament asks the Court to set aside the judgment under appeal, refer the judgment back to the General Court and reserve the costs.

33.      In the alternative, the Parliament asks the Court to set aside the judgment under appeal, dismiss the application of Mr Carbajo Ferrero and order him to pay the costs in their entirety.

34.      The respondent contends that the Court should dismiss the appeal and order the Parliament to pay the costs in their entirety.

V.      Targeted examination of the appeal

35.      In support of the forms of order sought, the Parliament relies on two grounds of appeal. The first ground alleges errors of law and distortion of the facts concerning the finding of irregularity in the selection procedure. The second ground purports to show that the General Court erred in law and distorted the facts and evidence with regard to the finding that the contested decision is vitiated by a manifest error of assessment. In the alternative, the Parliament submits that the General Court failed to state reasons and breached the principle of proportionality by failing to examine the consequences of the annulment of the contested decision.

36.      In accordance with the Court’s request, this Opinion will be confined to an analysis of the first ground of appeal and of the alternative ground of appeal.

A.      The first ground of appeal: errors of law and distortion of facts in relation to the finding of irregularity of the selection procedure

37.      The first ground of appeal is subdivided into four parts. I shall analyse them together since they are interconnected.

38.      By the first part of the first ground of appeal, the Parliament submits that the General Court erred in law in relation to the interpretation of the decision laying down the steps in the procedure, and that the grounds relied on are contradictory. First, the Parliament submits that the comparative assessment criteria are only used during the first stage of the selection procedure. In the context of the selection procedure at issue, the Advisory Committee adopted three comparative assessment criteria (5) and then seven topics for discussion during the interviews. (6) It argues that the General Court was therefore wrong to criticise the Advisory committee, in paragraphs 118 and 119 of the judgment under appeal, for altering the comparative assessment criteria at the interview stage. Second, the Parliament submits that the decision laying down the steps in the procedure does not require that any information be given by the Advisory committee to the Bureau in the second stage of the procedure. The General Court therefore erred in law in criticising the Advisory committee, in paragraphs 120 to 124 of the judgment under appeal, for failing to inform the Bureau of the change in the comparative assessment criteria at the interview stage. Third, with regard to that error in law, the Parliament submits that the reasoning of the judgment under appeal is contradictory.

39.      By the second part of the first ground of appeal, the Parliament submits that the General Court erred in law when interpreting and applying the principle of equal treatment. First, it challenges the relevance of the judgment in Booss and Fischer v Commission (7) upon which the General Court relied in order to find, in paragraphs 111 and 112 of the judgment under appeal, that the comparative assessment criteria should not change in the course of the selection procedure. The Parliament further submits that a general prohibition on altering the comparative assessment criteria in the course of the selection procedure is not compatible with the first and third sentences of Article 5 under Annex III to the Staff Regulations. Second, the Parliament submits that the General Court failed to examine whether the topics discussed during the interview were connected to the conditions set out in the recruitment notice and whether some candidates were given an advantage over others.

40.      By the third part of the first ground of appeal, the Parliament takes issue with the interpretation and application, by the General Court, of the principle of transparency. It challenges the General Court’s finding, in paragraphs 120 to 124 of the judgment under appeal, that the Advisory committee failed to inform the Bureau of the change of the comparative assessment criteria at the interview stage. Moreover, the Parliament submits that the General Court ruled ultra petita since the applicant alleged breach of the principle of transparency towards the candidates and not towards the Bureau.

41.      By the fourth part of the first ground of appeal, the Parliament submits that the General Court distorted the facts. It takes issue with the finding, in paragraph 119 of the judgment under appeal, whereby the General Court ruled that the classification in order of merit may not rely ‘solely’ on the responses given by the candidates to the seven topics or themes discussed during the interview. It claims that even if the comparative assessment criteria were not used in the second stage of the procedure, there is nothing in the information before the Court to suggest that those criteria were not taken into account for the purposes of classifying the candidates in order of merit.

42.      In his response, with regard to the interpretation by the General Court of the decision laying down the steps in the procedure, Mr Carbajo Ferrero contends that while the administration enjoys broad discretion with regard to the organisation of the selection procedure, it must respect the principle of equal treatment of all candidates. He argues that the decision laying down the steps in the procedure does not allow the use of different comparative assessment criteria depending on the stage of the procedure. With regard to the principle of transparency, he observes that Article 4(c) of that decision requires the Advisory committee to submit the comparative assessment criteria to the Bureau. Therefore, the Parliament is wrong to claim that that decision does not provide for an obligation to inform the appointing authority in the event of any change to those criteria during the course of the procedure.

43.      With regard to the interpretation of the principle of equal treatment, Mr Carbajo Ferrero takes the view that the General Court was right to rely, in paragraph 111 of the judgment under appeal, on the judgment in Booss and Fischer v Commission. (8) Conversely, he considers that the judgments in Mavridis v Parliament (9) and in Verros v Parliament, (10) cited by the Parliament in its appeal, are irrelevant. He also submits that the General Court’s interpretation did not infringe Annex III to the Staff Regulations. Lastly, Mr Carbajo Ferrero submits that the Parliament failed to raise before the General Court the issue of whether the new comparative assessment criteria adopted at the interview stage were likely to favour some candidates.

44.      With regard to the interpretation of the principle of transparency, Mr Carbajo Ferrero recalls that in his action before the General Court, he raised a plea in law relating to the alleged breach of the principle of sound administration. Therefore, the General Court did not rule ultra petita.

45.      With regard to the complaint relating to the distortion of facts, Mr Carbajo Ferrero contends that this is unfounded. He submits, in that regard, that it follows from the minutes of the meeting of 10 December 2018 that the Advisory committee proposed the appointment to the post in question of three candidates ‘in order of preference’ and not ‘in relation to matching skills and competencies to the post to be filled’.

46.      The essence of the dispute between the parties is whether the General Court correctly interpreted the decision laying down the steps in the procedure when it found, in paragraph 112 of the judgment under appeal, that the comparative assessment criteria should not be altered in the course of the selection procedure. The starting point of the analysis of that question is dictated by the wording of Articles 4 and 5 of the decision laying down the steps in the procedure with regard to high‑level posts. (11) The first step consists in the establishment by the Advisory committee, on the basis of the vacancy notice, (12) of the comparative assessment criteria. The second step consists in the comparative analysis of the merits of the candidates by the Advisory committee and in the establishment, by that committee, of the list of the candidates, which it recommends for interview. The third step consists in the notification to the Bureau, in its capacity as appointing authority, of the list drawn up by the Advisory committee as well as of the comparative assessment criteria adopted by the Advisory committee. The fourth step consists in the adoption, by the Bureau, of the list of the candidates to be invited for interview. The fifth step consists in the Advisory committee conducting those interviews and drafting a report thereon. The sixth step consists in the notification of that report by the Secretary-General, accompanied by a recommendation, to the President of the Parliament and to the Bureau. The seventh and final step of the procedure consists in the Bureau adopting a decision as to the candidate to be appointed further to the proposal made by the President.

47.      The Parliament submits that it follows from the wording of that decision that the procedure for selecting senior officials primarily consists of two stages. The first of these is the comparative analysis of the merits of the candidates and the approval of the list of the candidates to be invited for interview by the Bureau. The second one consists in conducting interviews with the candidates included in that list. The Parliament argues that the comparative assessment criteria are used in the first stage of the procedure only whereas, in the second stage, there is nothing to impose the use of the same criteria or, in other words, there is nothing to prohibit the use of new criteria for the interview. Therefore, in its submission, the General Court was wrong to conclude that the selection procedure was vitiated by an irregularity.

48.      In that regard, I note that the decision laying down the steps in the procedure is made up of a sequence of steps, described in point 46 above. That decision does not divide the steps into specific or separate stages. On the contrary, all the steps are interlinked and together they make up one single selection process which is framed by the vacancy notice (or, as the case may be, by the recruitment notice). The ultimate aim of those steps is the same as in every recruitment procedure. More specifically, Article 27(1) of the Staff Regulations states that recruitment is to be directed to securing for the institution the services of officials of the highest standard of ability, efficiency and integrity, recruited on the broadest possible geographical basis from among nationals of Member States of the Union. (13)

49.      A close examination of the steps of the procedure demonstrates that the first step is a pillar for the entire procedure culminating in the appointment of the most suitable candidate to the post at issue. Indeed, in that first step the comparative assessment criteria are drawn up by the Advisory committee on the basis of the vacancy notice (or, as the case may be, the recruitment notice). The vacancy notice and the comparative assessment criteria are necessary elements for the Bureau to adopt the list of candidates to be invited for interview. The interview is conducted only after the Bureau has adopted the list of candidates on the basis of the aforementioned criteria. There is clearly a link between the short-listing of the candidates and their respective interviews. If those steps are linked, then the assessment criteria applied at each step must also be linked. Hence, in my view, the Parliament draws an artificial division between the different steps of the selection procedure.

50.      Contrary to what the Parliament submits, the understanding of the selection procedure as a continuum does not render the interviewing of the candidates useless or deprive the administration of a method of organisation of the selection procedure. The administration enjoys broad discretion with regard to the methods it employs during the various steps of the selection procedure in order to assess the merits of the candidates. That is all the more so with regard to high-level posts. It is not disputed that the Advisory committee may ask all the questions it considers necessary when interviewing the candidates. It is also possible to structure those questions around different topics or themes. An appointing authority cannot be criticised for asking applicants for such high-level posts to set out, for example, their understanding of the post in question (14) or their vision of the directorate.

51.      However, it must be recalled, on the one hand, that the Court has consistently held that although the appointing authority has broad discretion in comparing the candidates’ merits, especially with a view to the post to be filled, it must exercise that discretion within the self-imposed limits contained in the vacancy notice. (15) Moreover, the administration’s broad discretion must be exercised taking full account of all relevant applicable rules, including any internal procedural rules it has enacted. (16) In the present case, the relevant act is the decision laying down the steps in the procedure.

52.      On the other hand, any topics or themes used in the interview must follow from the comparative assessment criteria. In other words, such topics or themes do not alter the original criteria but guide the Advisory committee during the interview in assessing the suitability of the candidates with respect to each criterion. Therefore, the General Court was right to point out, in paragraph 118 of the judgment under appeal, that the questions asked at the interview should not become ‘new criteria’ for the comparative assessment of the merits of the candidates adopted in the course of the selection procedure after the short-listing of the candidates to be invited for interview.

53.      The General Court was right to seek guidance in that regard in the judgment in Booss and Fischer v Commission, (17) which relies, in turn, on the judgments in Culin v Commission (18) and in Grassi v Council. (19) On the basis of that case-law, the General Court ruled, in paragraphs 111 and 112 of the judgment under appeal, that the principle of equal treatment of candidates requires that the comparative assessment criteria should be established before the recruitment procedure begins and that those criteria should not be adapted or altered in the course of the selection procedure.

54.      The Parliament disputes the relevance of that case-law, submitting that it concerned a vacancy notice published under Article 29(1)(a) of the Staff Regulations while in the present case, the Bureau decided to cast its net wider and published a recruitment notice on the basis of Article 29(2) of the Staff Regulations. The Parliament argues that that provision sets out a special procedure in the context of which the appointing authority can apply, in the course of the procedure, criteria which were not stated in the vacancy notice. It relies, in that regard, on the judgments in Mavridis v Parliament (20) and in Verros v Parliament. (21)

55.      In my view, the latter two judgments do not support the conclusion reached by the Parliament that it is possible to change the comparative assessment criteria during the course of the procedure. It follows from that case-law that, within the context of the special procedure provided for in Article 29(2) of the Staff Regulations, the appointing authority is not required to apply the provisions of Annex III to the Staff Regulations relating to notices of competition. It may therefore apply, in the course of the procedure, criteria which are not expressly set out in the vacancy notice. That applies equally to a selection committee to which the appointing authority has delegated its power of selection.

56.      However, in the present case, the General Court did not criticise the Advisory committee for exercising its power to establish comparative assessment criteria. (22) The General Court also did not criticise the setting of topics or themes to guide the Advisory committee during the interview. Since the Parliament decided to apply the decision laying down the steps in the procedure, the Advisory committee was obliged only to set the criteria on the basis of the wording of the recruitment notice. Furthermore, any topics or themes for the purposes of the interviews to be conducted would have to draw their ‘legitimacy’ from those criteria and, ultimately, from the recruitment notice. In the context of the selection procedure at issue, governed by Article 29(2) of the Staff Regulations and by internal rules of conduct, the recruitment notice constitutes the outer limits of the entire selection procedure and the criteria are the specific expression of those outer limits. Therefore, any topics or themes for discussion at the interview cannot be completely distinct from the comparative assessment criteria set out at the beginning of the recruitment procedure. They are the amplification or the concretisation of those criteria. It is for the Advisory committee to establish the necessary connection between the criteria and the topics used in the interview.

57.      I therefore consider that the General Court was right to rule, in paragraph 119 of the judgment under appeal, that the ranking of candidates in order of merit could not be based solely on the answers provided on the seven topics or themes discussed at the interview, as such an approach would not satisfy the requirement that the comparative assessment criteria must not change in the course of the selection procedure.

58.      With regard to the Parliament’s submission that the General Court erred in law by finding, in paragraphs 120 to 124 of the judgment under appeal, that the selection procedure was irregular because the Bureau was not informed by the Advisory Committee of the change in the selection criteria, I note that that argument is based on an incorrect premiss. As demonstrated above, the incorrect premiss is that the comparative assessment criteria may be altered during the selection procedure. The Advisory committee may establish questions that follow from the criteria set out in the first step. In its report to the Bureau, the Advisory committee must then show how the answers to the questions demonstrate the suitability of the candidates taking due account of those criteria.

59.      Moreover, the Parliament is wrong to claim that the General Court ruled ultra petita, in paragraphs 120 to 124 of the judgment under appeal, with regard to the breach of the principle of transparency. The Court found there to be a breach of that principle in the context of the infringement of the obligation of information towards the Bureau of the themes or topics for discussion at the interview and of the connection between those topics and the comparative assessment criteria.

60.      Therefore, the Parliament’s submission that the General Court erred in law in paragraphs 120 to 124 of the judgment under appeal must be rejected.

61.      I am not convinced either by the Parliament’s complaint that the grounds of the judgment under appeal in those paragraphs are contradictory. It seems to me that that complaint is based on an erroneous reading of the judgment under appeal. In paragraphs 66 to 73 thereof, the General Court ruled that the institutions enjoy broad discretion where they adopt internal rules laying down the procedure for selecting candidates for high-level posts, and that the decision laying down the steps in the procedure serves as a broad framework for the selection procedure. The General Court therefore found that it is not appropriate to establish the comparative assessment criteria in the body of that decision. At that stage in its reasoning, the General Court did not address the question of the consistency of the criteria applied in the course of the selection procedure or of the requirement to inform the Bureau. Hence, the rejection of the plea of illegality of the decision laying down the steps in the procedure, in paragraph 74 of the judgment under appeal, does not call into question the finding made, in points 120 to 124 of the judgment under appeal, of the irregularity of the procedure followed in the course of the specific selection procedure.

62.      Next, the Parliament criticises the General Court for concluding that there was breach of the principle of equal treatment without examining whether or not the topics or themes discussed during the interviews were connected to the conditions set out in the recruitment notice. (23) In that regard, I note that the Parliament does not seek to establish a connection between the topics or themes raised at the interview, the criteria set out at the beginning of the procedure and the recruitment notice. The Parliament did not allege, for instance, that the topics or themes used at the interview stage were a concretisation of the criteria set out in the first step and of the recruitment notice. Instead, it submits, in its appeal, that at the interview stage the Advisory committee was no longer bound by the criteria it had originally adopted. The Parliament is therefore wrong to complain that the General Court should have examined the existence of a connection which the Parliament itself deems unnecessary.

63.      I consider that the General Court was right to rule, in paragraph 112 of the judgment under appeal, that the change to the comparative assessment criteria during the selection procedure entails the risk of those criteria being adapted having regard to the applicants for the post to be filled. The Parliament claims, in essence, that the risk is insufficient and that the General Court should have examined whether the topics or themes adopted for use at the interview favoured some candidates. In support of its submission, the Parliament refers to the judgments in Vlachou v Court of Auditors (24) and in Caturla-Poch and de la Fuente Pascual v Parliament. (25) It follows from those two judgments that the system or method for the assessment of the candidates’ qualifications should not objectively be of such nature as to treat certain candidates favourably and others unfavourably. (26) However, in my view, that case-law does not bear out the conclusion that the finding of a breach of the principle of equal treatment in a selection procedure requires, in each specific case, the examination of whether some candidates were treated favourably and others unfavourably. What is more, the situation in the present case raises a different issue, namely the relationship between the criteria and topics or themes for discussion at the interview established for the purposes of selecting the most suitable candidate.

64.      Finally, it seems to me that the Parliament’s claim that the General Court distorted the facts, in paragraph 119 of the judgment under appeal, in ruling that the classification of the candidates in order of merit should not be based solely on the answers given by the candidates on the seven topics or themes for discussion at the interview, is based on a misinterpretation of the judgment under appeal. First, the use by the General Court of the term ‘solely’ (in French, ‘uniquement’) can be explained by the finding, in paragraph 118 of the judgment under appeal, that the questions asked at the interview should not become new comparative assessment criteria. It can also be explained by the General Court’s finding, in paragraph 123 of the judgment under appeal, that the comparative assessment criteria were not used at the interview. Second, it is for the Parliament to demonstrate that the criteria and the topics or themes used throughout the procedure were connected and that they were taken into account as a whole by the appointing authority.

65.      In the light of the foregoing, I propose that the Court reject the first ground of appeal.

B.      The alternative ground of appeal: error in law in interpreting the principle of proportionality with regard to the consequences of annulling the contested decision

66.      In the alternative, the Parliament submits that the annulment of the decision to appoint A to the post of Director for Media is vitiated by an error of law consisting in a failure to state reasons and breach of the principle of proportionality. It observes that the General Court annulled a decision adopted to the benefit of a third party, namely A. Relying on the judgment of the General Court in Spadafora v Commission, (27) the Parliament argues that the General Court should have examined, by weighing all the opposing interests, whether the sanction of annulment was excessive.

67.      Mr Carbajo Ferrero observes that A could not rely on the principle of legitimate expectations given that the decision appointing him or her to the post at issue was challenged, and argues in any event that the annulment of the decision was not an excessive penalty with regard to the irregularity in question.

68.      I consider that the Parliament rightly claims that the General Court, in paragraph 146 of the judgment under appeal, annulled the contested decision without examining whether such annulment was proportionate. The judgment of the General Court in Spadafora v Commission (28) sets out a line of reasoning which is clearly relevant to the present dispute. That judgment found that, in principle, the applicant has to be restored to the situation he or she was before the irregularity in the selection procedure arose. However, where restoring the previous situation involves the annulment of acts which are addressed to third parties and favourable to those parties, it must be examined whether the annulment constitutes an excessive penalty with regard to the irregularity in question. In that context, it is necessary to take into account the nature of the unlawful act committed, the interest of the applicant, the interest of third parties and the interests of the service.

69.      In this instance, the annulment of the contested decision is clearly liable to affect A who has been appointed to the post in question. Under such circumstances, the annulment of his or her appointment requires a prior assessment of the proportionality of such annulment, which involves the weighing of all interests concerned. Accordingly, the General Court erred in law in deciding, in paragraph 146 of the judgment under appeal, to annul the contested decision without making such an assessment.

70.      It must be borne in mind, however, that, if the grounds of a decision of the General Court reveal an infringement of EU law, but the operative part of the judgment under appeal can be seen to be well founded on other legal grounds, that infringement is not capable of leading to the annulment of that decision and a substitution of grounds must be made. (29)

71.      That is the situation in this case. Indeed, the weighing of all interests concerned should lead to the annulment of the contested decision without prejudice to the obligation of the administration to find an equitable solution for A. More specifically, the recruitment procedure is vitiated by a significant irregularity. As I have explained above in the context of the analysis of the first ground of appeal, the Advisory committee should not change the comparative assessment criteria during the course of the selection procedure. With regard to Mr Carbajo Ferrero, his interest consists in the annulment of the contested decision so that he can draw benefit from his action. With regard to the administration, I see no harm to the interests of the service. The annulment of the contested decision is no substitute for the assessment of the administration as to which candidate to appoint to the post in question. The Parliament will have to reopen the procedure omitting the irregularities found by the judgment under appeal. At the end of that new selection procedure, it is free to choose the candidate most suitable for the post concerned. With regard to A, his or her situation is different. The annulment of the contested decision creates a risk for A of losing the post to which he or she was appointed. What is more, A is not responsible for that irregularity. Even if, as Mr Carbajo Ferrero contends, A could not ignore the fact that his or her nomination was not definitive while an action was pending before the General Court against the decision of his or her nomination, the fact remains that A did nothing wrong.

72.      Yet the fact that A’s interests are affected does not mean that the Court should abstain from upholding the annulment of the contested decision in view of the irregularity at issue. The administration is required, however, to seek an equitable solution to the situation with regard to the third party affected. In more specific terms, if at the end of the new selection procedure another person is appointed to the post in question, the Parliament is obliged to safeguard A’s interests.

73.      In the light of all of the foregoing considerations, I consider that the alternative ground of appeal must be rejected as ineffective.

VI.    Conclusion

74.      In the light of the foregoing considerations, I propose that the Court should reject the first ground of appeal and the alternative ground of appeal.

1      Original language: English.

2      Regulation No 31 (EEC), 11 (EAEC), laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Economic Community and the European Atomic Energy Community (OJ, English Special Edition, Series I, Volume 1959-1962, p. 135).

3      See, to that effect, judgment of 3 March 1993, Booss and Fischer v Commission (T‑58/91, EU:T:1993:15, paragraph 67).

4      See, to that effect, judgment of 12 March 2008, Giannini v Commission (T‑100/04, EU:T:2008:68, paragraphs 132 and 133 and the case-law cited).

5      The criteria were the following: ‘(1) specific experience in the fields mentioned in the vacancy or the recruitment notice: direction of a major unit in the field of media, press and telecommunications; (2) administration or management: experience in management (in fields such as human resources, management, budget, finance, etc.); (3) international experience: working experience in an EU and/or international environment’ (Free translation of the appellant’s submissions from the original French).

6      Those topics were the following: ‘(1) reasons for applying for the post and the strategic vision and business plan for the Directorate; (2) how to ensure that all communication channels are used to convey a coherent message, in line with the Strategic Execution Framework (SEF); (3) communication priorities for the next election year; (4) how to increase the impact of high level visits, important legislative dossiers and plenary sessions from a media perspective; (5) promoting gender equality policy; (6) the challenges of the discontinuation of activities and the determination of negative priorities; (7) how to make the best use of possibilities of upgrading AST posts to AD posts in a context of higher-level tasks and scarcity of resources’ (Free translation of the appellant’s submissions from the original French).

7      Judgment of 3 March 1993, T‑58/91, EU:T:1993:15.

8      Judgment of 3 March 1993, T‑58/91, EU:T:1993:15.

9      Judgment of 19 May 1983, 289/81, EU:C:1983:142.

10      Judgment of 19 May 1983, 306/81, EU:C:1983:143.

11      The text of that decision is cited in paragraph 47 of the judgment under appeal.

12      The text of the decision laying down the steps in the procedure refers to the vacancy notice only. However, in the present case, as it follows from paragraph 50 of the judgment under appeal, that decision was also applicable with regard to the recruitment procedure conducted on the basis of the recruitment notice.

13      See paragraph 67 of the judgment under appeal.

14      See, to that effect, judgment of 13 December 1990, Kalavros v Court of Justice (T‑160/89 and T‑161/89, EU:T:1990:86, paragraph 37).

15      See, to that effect, judgment of 7 February 1990, Culin v Commission (C‑343/87, EU:C:1990:49, paragraph 19).

16      See judgment of 28 September 2017, Hristov v Commission and EMA (T‑495/16 RENV I and T‑495/16 RENV II, not published, EU:T:2017:676, paragraph 139 and the case-law cited).

17      Judgment of 3 March 1993, T‑58/91, EU:T:1993:15, paragraph 67.

18      Judgment of 7 February 1990, C‑343/87, EU:C:1990:49, paragraph 19.

19      Judgment of 30 October 1974, 188/73, EU:C:1974:112.

20      Judgment of 19 May 1983, 289/81, EU:C:1983:142, paragraph 16.

21      Judgment of 19 May 1983, 306/81, EU:C:1983:143, paragraph 16.

22      On the contrary, under paragraph 69 of the judgment under appeal, the General Court confirmed the broad discretion of the institutions in the context of a recruitment procedure based on Article 29(2) of the Staff Regulations.

23      The Parliament cites a number of points of its defence and rejoinder at first instance. However, those points do not seek to establish a connection between the various criteria and those topics in the course of the selection procedure. There is one argument in the rejoinder which might be relevant, in which the Parliament states that ‘professional experience’ can be linked to various elements set out in points 4 and 5 of the recruitment notice. Yet it fails to enlarge upon that argument in its pleadings and does not argue that the topics discussed at the interview are connected to the criteria set out at the beginning of the recruitment procedure.

24      Judgment of 6 February 1986, 143/84, EU:C:1986:55.

25      Judgment of 13 July 1989, 361/87 and 362/87, EU:C:1989:317.

26      Judgment of 6 February 1986, Vlachou v Court of Auditors (143/84, EU:C:1986:55, paragraphs 17 and 19).

27      Judgment of 5 December 2017, T‑250/16 P, not published, EU:T:2017:866, paragraph 110.

28      Ibid.

29      Judgment of 10 February 2021, RFA International v Commission (C‑56/19 P, EU:C:2021:102, paragraph 61).

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