ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Second Chamber)
10 July 2014 (*)
(Civil service — Competitions — Notice of competition EPSO/AD/207/11 — Successful candidate included on the reserve list — Verification by the appointing authority of the conditions for taking part in an AD 7 grade competition — Professional experience of a shorter duration than the minimum duration required — Manifest error of assessment by the selection board — Withdrawal by the appointing authority of the offer of employment — Mandatory duty of the appointing authority)
In Case F‑22/13,
ACTION brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof,
Mátyás Tamás Mészáros, residing in Kraków (Poland), represented by M. Pecyna, lawyer,
applicant,
v
European Commission, represented by B. Eggers and G. Gattinara, acting as Agents,
defendant,
THE CIVIL SERVICE TRIBUNAL (Second Chamber)
composed of M.I. Rofes i Pujol, President, K. Bradley and J. Svenningsen (Rapporteur), Judges,
Registrar: W. Hakenberg,
makes the following
Order
1 By application lodged at the Registry of the Tribunal on 11 July 2013, Mr Mészáros seeks the annulment of the decision of the appointing authority of the European Commission (‘the appointing authority’) of 26 September 2012, refusing his recruitment by the Statistical Office of the European Union (Eurostat) from the reserve list of competition EPSO/AD/207/11, and informing him of its intention to seek the insertion of a comment, in the database of the European Personnel Selection Office (EPSO), to inform the institutions of the European Union that he did not satisfy the condition as to the minimum duration of professional experience required by that competition to be eligible to be recruited as an administrator (AD) at grade AD 7 on the basis of that competition.
Legal context
Notice of competitions EPSO/AD/206/11 and EPSO/AD/207/11
2 EPSO organised open competitions based on tests to constitute a reserve from which to recruit administrators in six fields, including in the field of statistics. For that field, two separate but related competitions were organised, under the references EPSO/AD/206/11 (AD 5) (‘the grade AD 5 competition’) and EPSO/AD/207/11 (AD 7) (‘the grade AD 7 competition’ or ‘the competition at issue’). In the annex to the notice of competitions published in the Official Journal of the European Union of 16 March 2011 (OJ 2011 C 82 A, p. 1, ‘the notice of competitions’), it was stated that, for admission to the grade AD 7 competition — ‘Statistics’ field, inter alia, the following was required:
‘At least 6 years’ graduate-level professional experience relevant to the duties involved.
Such professional experience is relevant only if acquired after the diploma giving access to the competition was obtained.’
3 In addition, under section I of the notice of competitions, entitled ‘[G]eneral Background’, point 2, entitled ‘Remarks’, stated:
‘This notice relates to two competitions, each comprising a number of fields. You may apply for only one competition and only one field.
You must make your choice when you apply online and you will not be able to change it after you have confirmed and validated your online application form.
However, if you obtain one of the highest aggregate marks in the admission tests for the AD 7 competition but do not meet the conditions for admission to that competition, the selection board may, with your consent, reassign your application to the AD 5 competition in the same field, provided that you meet the conditions for admission to the AD 5 competition.
Any reassignment will take place before you are invited to the assessment centre and will be based solely on the information given in your online application form.
In this case, your results will be compared with the results of the candidates for the AD 5 competition and, if you are one of the candidates with the highest marks in the admission tests for this competition (in the selected field), you will be invited to the assessment centre.’
4 Section II of the notice of competitions, relating to duties, stated that grade AD 5 was the grade at which graduates enter an administrator’s career in the European institutions and that administrators recruited at that grade could undertake, under supervision, three main types of work, namely, policy formulation, operational delivery and resource management. As regards grade AD 7, it was stated that ‘[a]dministrators recruited at this grade may, in addition to the type of work required at grade AD 5, be required to coordinate teams and supervise work’.
5 As set out in point 1 of section VI of the notice of competitions, concerning reserve lists, the selection board places on the reserve list for each competition, drawn up by field, by merit group and in alphabetical order within each merit group, the names of those candidates who have obtained the specified pass marks and the highest aggregate marks in the assessment centre tests and who, having regard to the supporting documents provided by them, meet all the eligibility requirements.
Guide to open competitions
6 The ‘Guide to open competitions’ (OJ 2010 C 184 A, p. 1, ‘the guide’), referred to in the text of the notice of competitions, states that the guide ‘is an integral part of the competition notice and [that] candidates must read it carefully’.
7 Under the heading ‘A[pplication procedure]’, point 2.1.3.1 of the guide states:
‘…
[Candidates are invited to] [n]ote, too, that the application procedure itself can take quite some time because of the amount of information [they] have to fill in. The information requested mainly concerns:
– [the candidate’s] diplomas/qualifications: the field, the periods of study, the level of [the candidate’s] studies, and the date(s) when [the candidate] obtained the diploma(s),
– [the candidate’s] professional experience (if required): name and address of [the candidate’s] employer, the nature of the duties performed, and their starting and ending dates,
…
We must also stress the crucial importance of [candidates’] filling in this information with great care and ensuring that it is correct, since it will be verified against the supporting documents, as specified in the competition notice. If it is found at any stage in the procedure that the information given in [the] application is false or not evidenced by the appropriate supporting documents (see 2.2.4 below), [the candidate] will be disqualified from the competition.
…’
8 Under the heading ‘S[upporting documents relating to the specific conditions]’, point 2.2.4.3 of the guide states:
‘It is [the candidate’s] responsibility to provide the selection board with all the information and documents it needs in order to verify that [the candidate] fulfil[s] the conditions laid down by the competition notice on the date specified in it.
…
2. Professional experience (if required by the competition notice)
It is important that [the candidate] specif[ies] the nature of the duties [the candidate] performed in as much detail as possible so that the selection board can assess how relevant [the candidate’s] experience is to the duties for which [the candidate is] applying. All the periods of professional activity in question must be covered by the following supporting documents:
– references from former employers and [the candidate’s] current employer attesting that [the candidate has] the professional experience required for admission to the competition; the references must state the nature of the duties performed, their starting and ending dates, and their level,
– if [the candidate] cannot enclose references from employers, photocopies of [the candidate’s] employment contract(s) and [the candidate’s] first and last pay slips may be supplied in place of employers’ references, but they must be accompanied by a detailed description of the duties performed,
– in the case of non-salaried work (e.g. self-employed, liberal professions), invoices or order forms detailing the work performed or any other relevant official supporting documents may be accepted as evidence,
– …’
Background to the dispute
9 It is apparent from his application form that the applicant applied for competition ‘EPSO/AD/206-207/11 — AD 5/AD 7 — Administrators’, having selected, in the ‘Grade’ section, the option ‘I apply for grade AD 7 and I [do] accept a possible reassignment to Grade AD 5’.
10 In the ‘Professional experience’ section of his application form, the applicant filled in four professional experience entries which, according to the automatic breakdown generated in that application form, amounted to professional experience of a total of 74.5 months. The professional experience was broken down into four periods: the first, from 1 September 2004 to 30 June 2006, that is, 21 months and 29 days, in the service of the Western Michigan University in Kalamazoo (United States) (‘the WMU’); the second, from 1 December 2006 to 31 August 2007, that is, 8 months and 30 days, in the service of an oil company in Poland; the third, from 1 September 2007 to 31 August 2009, that is, 23 months and 30 days, also in the service of the WMU; and the fourth, from 1 September 2009 to 14 April 2011, that is, 19 months and 13 days, in the service of the Directorate-General (DG) for ‘Maritime Affairs and Fisheries’ of the Commission.
11 As regards his university education, the applicant stated that he had obtained the ‘Egyetemi oklevél’, a Hungarian university degree listed in the guide, attesting in his case to a course taken from 1 September 1997 to 15 July 2003.
12 From 1 September 2003 to 30 June 2004, the applicant attended classes at the Central European University in Budapest (Hungary) (‘the CEU’) and obtained the ‘Mesterfokozat’, a master’s degree in economics (‘M.A.’)
13 He stated, lastly, that he had obtained a doctorate in economics from the WMU at the end of his studies at that university, from 1 September 2004 to 31 August 2009.
14 The applicant passed the admission tests and was admitted to the assessment centre. By letter of 2 February 2012 sent to the applicant electronically, the applicant was informed that, ‘[o]n the basis of [his] performance in the Assessment Centre phase and verification of [his] application against all conditions and selection criteria, the Selection Board for the … selection procedure EPSO/AD/206-207/11 — AD 5/AD 7 has placed [his] name on the “reserve list”‘.
15 The applicant applied for a post as a policy officer, under the Ypsilon programme, at Eurostat and was invited to interviews to that end. By email of 25 June 2012, the applicant was informed by Eurostat that, following his interview, the selection panel of the Ypsilon programme and unit F4 of Eurostat had agreed that it would be in Eurostat’s best interest to recruit him to fill a vacant post in that unit. Eurostat accordingly informed the applicant that it would initiate the administrative steps with a view to his recruitment, the main reason for his recruitment being the fact that the applicant already had some professional experience and experience of work in statistics at the Commission.
16 By email of 4 July 2012, the applicant asked Eurostat whether the recruitment procedure had already been initiated, with a view, if so, to his starting to look for accommodation in Luxembourg. The same day, he was informed that the procedure would be initiated in the following days and he was invited to state whether he had a preference as to the date on which he would take up his duties.
17 By emails of 8 and 13 August 2012, the ‘Recruitment and End of Service’ unit of DG Human Resources and Security (‘DG Human Resources’) asked the applicant for clarifications of the periods he had spent working at the WMU. By email of 14 August 2012, he was also asked to clarify the reasons why he had stated that his activities had been part-time when the employment contracts concluded with the WMU referred to full-time appointments.
18 By emails of 10, 14 and 20 August 2012, the applicant provided the information requested, stating, inter alia, that the reference to a full-time appointment in his employment contracts with the WMU simply meant that he was to work for the full 20 hours per week which his student visa entitled him to work on American territory.
19 By email of 3 September 2012, Eurostat informed the applicant that DG Human Resources had refused his recruitment on the ground that, on the closing date for applications for the competition at issue, he did not have sufficient professional experience, namely, the six years required by the notice of competitions, to be eligible to be appointed to a post at grade AD 7. In that email, he was also asked to confirm whether, in his application form for the competition, he had selected the option providing for candidates who had applied for the grade AD 7 competition to be reassigned to the grade AD 5 competition where they did not satisfy the conditions for admission to the grade AD 7 competition. In his reply that same day, the applicant requested more information about that refusal by DG Human Resources. He confirmed, moreover, that he had selected the option providing for redirection to the grade AD 5 competition and also asked whether, since he had experience of a longer duration than that required to be appointed to a post at grade AD 5 but, according to DG Human Resources, experience of an insufficient duration to be appointed to a post at grade AD 7, it would be possible for him to be appointed to a post at grade AD 6.
20 By email of 4 September 2012, Eurostat informed the applicant that it had only been informed orally of the refusal by DG Human Resources to recruit him. Further, Eurostat stated that it was willing to ask that directorate general to consider whether the applicant could be recruited at a lower grade than grade AD 7, in this instance at grade AD 5, since he had applied for both competitions.
21 By letter of 26 September 2012, the appointing authority informed the applicant of its decision not to grant the request for recruitment made by Eurostat. After examining the documents provided, the appointing authority had come to the conclusion that, on the closing date for applications for the competition, he had only 63 months of professional experience, in contrast to the 72 months required by the notice of competitions. Pointing out that, according to the case-law, it could not, in its capacity as the appointing authority, amend or annul a decision of a selection board of a competition, but had to refuse to employ a successful candidate who did not satisfy the eligibility conditions of that competition, the Commission stated that, in the circumstances of the case, the applicant’s recruitment could not take place. Furthermore, the appointing authority informed the applicant that it would be asking EPSO to add a comment to that effect next to the applicant’s name in the EPSO database (‘the contested decision’).
22 On 29 October 2012, the applicant filed a complaint, while also providing additional supporting documents, namely, his ‘full Fellowship contract’ with the CEU for the 2003/2004 university year and a list of his publications. In that complaint, he wrote, inter alia, the following: ‘The period between my graduation (October 3, 2003) and the closing date of the competition (April 14, 2011) amounts [to] 90 months. During all this time I was professionally active (I was never unemployed). 63 months I was working under employment contract ([European Commission], [oil company], WMU). During the remaining time I was working as a liberal professional: scientist/researcher.’
23 By decision of 25 February 2013, the appointing authority rejected the complaint while acknowledging that it was regrettable that the error made in the calculation of the duration of the applicant’s professional experience had not been detected at an earlier stage by the selection board of the competition (‘the decision rejecting the complaint’). It observed that, even by calculating the duration of professional experience acquired by the applicant at the WMU in the most advantageous way for him, that is, by treating this as full-time experience even though the applicant had worked only part-time, it had come to the conclusion that the applicant had professional experience of only 63 months on the closing date for applications for the competition.
24 As regards the list of publications submitted by the applicant, the appointing authority pointed out that the applicant had not mentioned those articles in his application form, nor in the additional information that he had provided by email to the unit of DG Human Resources in charge of recruitment. Moreover, as regards the professional experience claimed in respect of activities pursued in a self-employed or liberal professional capacity, the appointing authority took the view that the applicant had not provided any factual evidence of those activities, the list of publications being insufficient in this connection.
25 The appointing authority also stated that the fact that the applicant had completed more than 10 university modules in the field of statistics could not be taken into account in the calculation of the duration of his professional experience and that, lastly, the document concerning his study grant from the CEU for the preparation of the M.A. in respect of the 2003/2004 university year did not prove professional experience over that period.
26 On 26 February 2013, by means of an email headed ‘Reassignment to AD 5’, the applicant contacted EPSO to explain his situation and the fact that the appointing authority had refused his recruitment on the ground that, since his professional experience was of a shorter duration than the minimum duration required, the selection board of the competition had erred in placing his name on the reserve list of the grade AD 7 competition. The applicant also asked EPSO to indicate the steps he had to take in order to request his reassignment to the grade AD 5 competition, an option that he had selected in his application form.
27 By email of 1 March 2013, EPSO informed the applicant that, irrespective of recruitment policy, which falls within the prerogative of each institution, the decision by the selection board of the competition to place his name on the reserve list implied that he satisfied the conditions laid down in the notice of competitions. EPSO pointed out that the contested decision had been adopted by the Commission and that, accordingly, it applied to that institution only. Therefore, it would be possible for the applicant to be offered a post by a different European body should that body take the view, conversely, that his professional experience was of a sufficient duration. EPSO advised the applicant to contact the Commission again and also informed him that he was entitled to file a complaint against that decision under Article 90 of the Staff Regulations of Officials of the European Union, without, however, indicating clearly to which decision EPSO intended to refer.
28 By email of 3 March 2013, the applicant asked EPSO to explain the procedure for filing a complaint against the EPSO decision. Although calling in question, in an email of 4 March 2013, the existence of a legal basis for filing a complaint against EPSO when the file had been rejected not by EPSO but by the Commission, in a subsequent email of 4 March 2013, EPSO stated that a complaint or a request ‘w[ould] immediately be rejected by EPSO as the selection board [had not] take[n] any decision that limit[ed] [the applicant’s] rights as a successful candidate’. EPSO added that ‘[i]t [was] DG [Human Resources] who took the decision [n]ot to recruit [him] following their conclusion that [the applicant] [did not] meet the requirements with regards to prof[essional] exp[erience]’. EPSO reiterated its advice to the applicant to contact DG Human Resources again and, if no solution could be found, to file a complaint.
29 By application lodged at the Tribunal Registry on 12 March 2013, the applicant applied for legal aid, under Article 95 of the Rules of Procedure, with a view to bringing the present action. By order of the President of the Tribunal of 24 April 2013, that application was rejected.
Forms of order sought
30 The applicant claims that the Tribunal should:
– annul the contested decision;
– if necessary, annul the decision rejecting the complaint;
– order the Commission to pay the costs.
31 The Commission contends that the Tribunal should:
– dismiss the action;
– order the applicant to pay the costs.
Developments subsequent to the bringing of the action
32 By email of 25 October 2013, DG Human Resources informed the applicant that the Commission had decided to offer him a post as a probationary official at DG ‘Enterprise and Industry’, as an administrator at grade AD 7. That letter stated that the decision of the appointing authority was attached, that the applicant had a period of 15 days to inform the Commission whether he intended to accept that offer and, if so, to indicate the date on which he would be free from any other professional commitments. The Commission stated that it would appreciate the applicant’s taking up his duties as soon as possible and that the date on which he intended to take up his duties ought not to exceed by more than one month the date of the end of the period of notice to be given by the applicant of resignation from his then current post. Lastly, the Commission reserved the right to withdraw that offer should the applicant not be able to comply with that timetable or should he fail to reply within the period indicated.
33 Following that offer, by letter of 4 November 2013, the applicant informed the Tribunal that, in accordance with Article 74 of the Rules of Procedure, he wished to discontinue his action and that the discontinuance was warranted by the fact that he had received a second offer of recruitment from the Commission for another post, he had accepted that offer and he was to take up his duties on 1 December 2013.
34 In its observations, sent on 25 November 2013, on the application for discontinuance, the Commission informed the Tribunal that the offer of employment, on which the applicant’s discontinuance had been based, had ultimately been withdrawn by letter sent to the applicant on 19 November 2013. The Commission stated that the offer had been sent as a result of an irregularity due, inter alia, to certain differences between the data relating to professional experience provided by the applicant in his application form for that post in August 2013, and that which had previously been provided to the Commission. Consequently, according to that institution, the applicant still had an interest in continuing the present action.
35 By letter of 5 December 2013, the Tribunal asked the applicant whether, in so far as the Commission took the view that he still had an interest in continuing the proceedings, he maintained his application for discontinuance.
36 By letter of 13 December 2013, the applicant did not confirm his wish to discontinue the proceedings. He did, on the other hand, ask the Tribunal to stay the proceedings in the present case since he had filed a complaint against the decision of the appointing authority withdrawing the second offer of employment and intended to refer the matter to the European Ombudsman. By letter of 7 February 2014, the Tribunal informed the applicant that, inter alia, it had decided not to stay the present proceedings.
Law
37 In support of his action, the applicant raises two pleas in law, the first alleging breach of the conditions laid down in the notice of competitions and, the second, an abuse of procedure.
The Tribunal’s decision to give its ruling by way of reasoned order
38 Under Article 76 of the Rules of Procedure, where an action is, in whole or in part, manifestly inadmissible or manifestly lacking any foundation in law, the Tribunal may, without taking further steps in the proceedings, give a decision by reasoned order.
39 In particular, in accordance with settled case-law, the dismissal of an action by reasoned order made on the basis of Article 76 of the Rules of Procedure not only benefits procedural economy, but also saves the parties the costs entailed by the holding of a hearing, if, upon reading the case-file, the Tribunal, provided that it considers itself to be sufficiently informed by the documents before it, is entirely convinced of the manifest inadmissibility of the application or that it is manifestly lacking any foundation in law and further considers that the holding of a hearing would be unlikely to provide new evidence capable of affecting that belief (order in Debaty v Council, F‑47/13, EU:F:2013:215, paragraph 8 and the case-law cited).
40 That applies in the present case. The Tribunal considers that there is sufficient information in the documents before it for the Tribunal to give a ruling and has therefore decided that it is appropriate to make use of the relevant provision in its Rules of Procedure.
The subject-matter of the action
41 So far as concerns the claims directed against the decision rejecting the complaint, it should be recalled that, according to settled case-law, claims for annulment formally directed against the decision rejecting the complaint have the effect of bringing before the Tribunal the measure against which the complaint was filed, except where the scope of the decision rejecting the complaint differs from that of the measure against which that complaint was made, inter alia where it amends the initial decision or where it contains a re-examination of the applicant’s situation in the light of new elements of law and/or fact which, had the competent authority been aware of them or had they only arisen before the adoption of the initial decision, would have been taken into consideration (Adjemian and Others v Commission, T‑325/09 P, EU:T:2011:506, paragraph 32, and Camacho-Fernandes v Commission, F‑16/13, EU:F:2014:51, paragraph 58).
42 In the present case, the decision rejecting the complaint, of which the applicant is also seeking annulment if necessary, contains a re-examination of his situation in the light of elements of fact put forward by him in his complaint as well as detailed reasoning as compared with the contested decision, so that it is appropriate to examine the claims for annulment as relating to those two decisions.
The first plea in law, alleging breach of the conditions laid down in the notice of competitions
Arguments of the parties
43 In support of his first plea in law, the applicant argues that the appointing authority misconstrued the condition in the notice of competitions as to the minimum of six years’ appropriate professional experience required and assessed incorrectly the duration of his professional experience, inter alia by not taking into account, in its assessment, first, the probative nature of the attestation drawn up by Ms B. certifying that he had worked for the WMU from 27 September 2004 to 4 May 2009 (‘Ms B.’s attestation’); secondly, the period covered by the Fellowship contract concluded with the CEU where he carried out research work, which was given concrete expression by the writing of his M.A. thesis; and, thirdly, his experience acquired through the pursuit of activities as a liberal professional during the period between 3 October 2003, the date he obtained the diploma required for the competition at issue, and 14 April 2011, the closing date for applications for that competition.
44 The applicant submits in addition that the appointing authority was not entitled to reverse the definitive assessments of the selection board of the competition that he satisfied the condition as to professional experience. Those assessments of the selection board were not vitiated by manifest errors. Consequently, the appointing authority was not entitled to refuse to recruit him on the ground that he did not satisfy the professional experience condition of the competition in respect of which he had been included on the reserve list as a successful candidate. In fact, in the present case, the appointing authority unlawfully substituted its assessment for that of the selection board.
45 The Commission contends that the decision of the selection board of the competition at issue is vitiated by a manifest error of assessment. None the less, in this connection, it notes that the information provided by the applicant in his application form for the competition did not necessarily enable that selection board to realise immediately that the applicant manifestly did not possess the professional experience of a minimum duration of six years required in the notice of competitions. That might explain why the selection board of that competition wrongly placed the applicant’s name on the reserve list.
46 According to the Commission, it was the applicant’s subsequent statements in the recruitment procedure that made it clear that the information in his application form was manifestly incorrect, inter alia, those attesting to the pursuit of activities on a part-time basis and the absence of professional activities during certain months of July and August included in the periods declared under professional experience. As regards the professional experience acquired at the WMU and even leaving aside the fact that, in reality, the applicant worked part-time, that experience would not have exceeded 16 months over the period 2004/2006 and 18 months over the period 2007/2009, that is, 34 months in total. By adding the 9 months spent at an oil company in Poland and the 20 months at the Commission, the Commission submits that the applicant had built up not more than 63 months of professional experience on the closing date for applications for the competition.
47 Even while acknowledging that, because of a drafting error in one of the attestations of the WMU provided by the applicant, the Commission wrongly disregarded, in the decision rejecting the complaint, the four months of professional experience completed between January and April 2005 inclusive, the Commission states that, in any event, even taking those four additional months into account, the overall result thereby obtained, namely, 67 months, still remained less than the minimum duration required for the competition at issue. As regards the applicant’s claimed experience as a researcher, the Commission observes that this was not mentioned in the application form and that the applicant provides no evidence in this connection. Lastly, as regards the document submitted as being a Fellowship contract with the CEU, the Commission states that this is merely a form confirming the applicant’s enrolment on the CEU’s M.A. programme. However, a university course cannot be equated with relevant professional experience.
Findings of the Tribunal
48 According to settled case-law based on the principle of the independence of competition selection boards, the appointing authority does not have the power to annul or amend a decision taken by such a board. However, it is required, in exercising its own powers, to take decisions free of irregularities. It cannot therefore be bound by the decision of a selection board the illegality of which decision is liable to vitiate its own decisions (Parliament v Hanning, C‑345/90 P, EU:C:1992:79, paragraph 22). That is the reason why the appointing authority is required to verify, before appointing a person as an official, whether that person satisfies the conditions required for that purpose. Where the selection board wrongly allows a candidate to take part in a competition and subsequently places him on the reserve list, the appointing authority must express its refusal to appoint that candidate by way of a reasoned decision from which the Tribunal can judge whether the refusal is well-founded (Schwiering v Court of Auditors, 142/85, EU:C:1986:405, paragraphs 19 and 20, and Eklund v Commission, F‑57/11, EU:F:2012:145, paragraph 49).
49 However, account should also be taken of the fact that, subject to the provisions of the notice of competition in question, the selection board of a competition enjoys broad discretion for the purposes of determining whether candidates’ previous professional experience enables them to meet the conditions for admission, both as regards the nature and duration thereof and as regards its relevance to the requirements of the post to be filled. Consequently, in the context of the review it carries out of the lawfulness of decisions of a selection board, the appointing authority must confine itself to ascertaining that the selection board’s exercise of discretion was not vitiated by a manifest error (Pascual García v Commission, F‑145/06, EU:F:2008:65, paragraph 55, and Eklund v Commission, EU:F:2012:145, paragraph 50).
50 Thus, in accordance with that case-law, if it considers a candidate’s admission to a competition to be unlawful, the appointing authority must refuse to appoint as a probationary official a person whose name is placed on the reserve list of a competition as a result of a manifest error of assessment; it is not, however, able to request that the selection board amend that list, for that would constitute interference by the administration in the work of a selection board incompatible with the independence of that selection board (see, to that effect, Luxem v Commission, T‑306/04, EU:T:2005:326, paragraphs 22 and 24).
51 Those principles must be held to be applicable also to the review carried out by the European Union judicature of the decisions of a selection board and of the appointing authority when the appointing authority examines, before appointing a person as an official, whether that person satisfies the conditions required for that purpose. It is therefore for the Tribunal to verify whether as the appointing authority found in the present case, the selection board made a manifest error of assessment when it placed the applicant’s name on the reserve list and in so doing took the view that the applicant had the professional experience required in the notice of competitions. That review is, at the same time, designed to assess whether the contested decisions are well founded, for the administration may depart from the decision of the selection board only where that decision proves to be vitiated by such a manifest error (see Eklund v Commission, EU:F:2012:145, paragraph 52).
52 In this connection, an error may be said to be manifest only where it may easily be detected in the light of the criteria to which the legislature intended the exercise by the administration of its broad discretion to be subject. Consequently, in order to establish that a manifest error was made in the assessment of the facts such as to justify the annulment of a decision, it is necessary to demonstrate that the findings made in the decision at issue are implausible. In other words, there cannot be manifest error if the contested assessment may be accepted as true or valid (Eklund v Commission, EU:F:2012:145, paragraph 51).
53 In the present case, it must be stated, in the first place, that the applicant did not in fact have, on the closing date for applications for the competition at issue, the appropriate experience of a minimum of six years’ duration.
54 It is common ground between the parties that the applicant could, on the closing date for applications for the competition, claim professional experience of 20 months in the service of the Commission and experience of 9 months at an oil company.
55 As regards the other two periods, the duration of which is disputed by the parties, the Tribunal finds that, as the Commission contends, it is apparent from the documents before it that, first, taking into account only the periods in respect of which the applicant has adduced evidence, the applicant could claim, on the closing date for applications to the competition at issue, experience of a maximum of 38 months only in the service of the WMU, as indeed the applicant expressly confirmed in his application for annulment and, albeit at a later stage, in a letter of 21 June 2013 sent to the appointing authority. Yet, in his application form for the competition, the applicant declared, in this connection, that he had worked for the WMU for 23 months and 30 days and 21 months and 29 days, respectively, that is, almost 46 months in total. Furthermore, contrary to what he stated in his application form for the competition at issue, he did not carry out salaried work for the WMU during the months of July and August 2005 or during the months of July and August 2008, nor from 1 to 26 September 2004 or 4 May to 31 August 2009.
56 Secondly, as regards the period of 10 months relating to the CEU, apart from the fact that this was not mentioned by the applicant in his application form, it is clear that the documents provided by him to the appointing authority in support of his complaint merely show that, during the year 2003/2004, he was attending a M.A. preparation programme at that university and was required to meet certain obligations as to attendance at classes and diligence in order to obtain an exemption from tuition fees (‘Tuition waiver’) of USD 11 300 (at the time, approximately EUR 8 974) and a monthly grant (‘Monthly stipend’) of HUF 105 000 (approximately EUR 341). None of those documents refers, however, to the carrying out of professional activities in the service of that university.
57 As it is, unless a notice of competition provides otherwise, which is not the case in the present proceedings, periods of studies do not constitute periods that may be taken into account as professional experience acquired after the diploma, irrespective of the level of those studies, since studies lead to the acquisition of knowledge and not of skills (see, to that effect, Wolf v Commission, T‑101/96, EU:T:1997:171, paragraph 71).
58 It is true that it has been held that periods during which a candidate has been studying at the same time as working may be taken into account, but it must be pointed out that, in such a situation, it is the work carried out which counts as professional experience, the studies pursued at the same time, on a marginal and incidental basis, not precluding those professional services being taken into account (see, as regards work carried out in a research laboratory, Pascual García v Commission, EU:F:2008:65, paragraph 66, and Eklund v Commission, EU:F:2012:145, paragraph 54). However, it must be stated that, in the present case, the applicant has not provided any document showing that he carried out such a professional activity at the same time as his studies at the CEU.
59 Lastly, as regards the activities that the applicant claims to have pursued in a self‑employed capacity or in the framework of a liberal profession, the Tribunal finds that a mere reference to publications of an academic nature does not in any way establish actual professional experience. The Tribunal points out, moreover, that point 2.2.4.3 of the guide states in this regard that, in the case of such non‑salaried work, ‘invoices or order forms detailing the work performed or any other relevant official supporting documents may be accepted as evidence’. In any event, the applicant’s claimed experience was not declared in the application form for the competition at issue.
60 The appointing authority was therefore entitled to take the view that the applicant did not satisfy the condition relating to professional experience to qualify as a successful candidate in the grade AD 7 competition. However, as a matter of law, the appointing authority could adopt the contested decision only if, in the selection board’s decision to place the applicant’s name on the reserve list, the selection board of the competition had made a manifest error of assessment, a matter which it is appropriate to examine in the second place.
61 In this connection, from a reading of the application form for the grade AD 7 competition and the documents provided by the applicant to the selection board, the Tribunal notes that, apart from the fact that the duration of the professional experience stated in that form exceeded the minimum duration required to enter that competition by only two and a half months, which ought to have attracted the attention of that selection board, the applicant claimed, for the period from 1 September 2004 to 31 August 2009, both university education and continuous professional experience in the service of the WMU.
62 That professional experience was certified, as regards the specific dates given in the application form, by various documents which refer to periods designated as university semesters without precise dates. Therefore, only Ms B.’s attestation, which did not however specify, contrary to the requirements of the guide, the nature of the duties performed or the periods of employment, referred to specific dates.
63 It must be stated that that attestation covered a continuous period, from 27 September 2004 to 4 May 2009, whereas the applicant referred in his application form to two separate periods, namely, the periods from 1 September 2004 to 30 June 2006 and from 1 September 2007 to 31 August 2009. It is thus clear that, in fact, the experience declared by the applicant for the months of September 2004 and from May to August 2009 inclusive were not covered by the attestation, which meant that almost 5 months of professional experience of the 74.5 months declared by the applicant had to be excluded, reducing the stated professional experience to less than the minimum duration of 72 months required in the notice of competitions.
64 The Tribunal points out in addition that, first, under the case-law (Giulietti v Commission, T‑293/03, EU:T:2006:37, paragraph 71; order in Klopfer v Commission, F‑118/05, EU:F:2006:137, paragraph 35), as it is, the selection board of the competition ought to have considered the period served at the WMU only in terms of actual full-time work, which would have led it to admit only the pro rata periods of 11 months and 30 days and 11 months, respectively, for the periods stated by the applicant from 1 September 2007 to 31 August 2009 and from 1 September 2004 to 30 June 2006, respectively, and not 23 months and 30 days and 21 months and 29 days as per the computer-generated calculation in the applicant’s application form. Moreover and in any event, as established above, the professional experience declared for the months of September 2004 and from May to August 2009 was not covered by Ms B.’s attestation, nor was it covered by any other attestation.
65 Secondly, the applicant also claimed, for the 2004/2009 period covered by Ms B.’s attestation, experience of nine months in the service of an oil company in Poland from 1 December 2006 to 31 August 2007. Yet the applicant’s stated experience is inconsistent with the probative nature of Ms B.’s declaration regarding the continuous nature of the applicant’s professional activities at the WMU over that 2004/2009 period.
66 It follows from the foregoing that, as the Commission contends, the selection board of the competition did in fact make a manifest error of assessment in its evaluation of the duration of the applicant’s professional experience so that it ought to have, or, with the applicant’s consent, could have, reassigned his application to the grade AD 5 competition in the same field, an option expressly provided for in the notice of competitions and to which the applicant had agreed.
67 Therefore, the Commission was entitled to refuse Eurostat’s request that the applicant be recruited as a probationary official at grade AD 7 and, in the light of the foregoing, the first plea in law must therefore be rejected as being manifestly unfounded.
The second plea in law, alleging an abuse of procedure and breach of the principle of the protection of legitimate expectations
68 By his second plea in law, the applicant complains, in essence, that the appointing authority did not inform him of the criteria applied in order to assess his professional experience or of the reasons why it took the view that the selection board of the competition had made, in his case, a manifest error of assessment. He also complains that the appointing authority did not give him the opportunity to submit explanations and/or additional documents. He argues, in addition, that he had a legitimate expectation of recruitment, in the light of the ‘optimistic’ information he had received by emails.
69 The Commission contends that that plea in law should be rejected.
70 In this connection, the Tribunal notes that, as regards the appointing authority, the applicant was contacted on several occasions by email, in August 2012, with a view to clarifying the duration and scope of his professional experience at the WMU. He cannot reasonably maintain, therefore, that he was not informed of the appointing authority’s doubts about that professional experience.
71 As regards the criteria applied, the applicant has failed to explain which criteria, other than those consisting simply in calculating his periods of professional experience attested to by supporting documents, as indeed is provided for in the guide, the appointing authority is alleged to have applied unlawfully in his case. In the decision rejecting the complaint, the grounds for which are deemed to be the same as those in the contested decision (see, to that effect, López Cejudo v Commission, F‑28/13, EU:F:2014:55, paragraph 36 and the case-law cited), the appointing authority explained, in any event, in detail, the periods which had been taken into account and those which had been excluded in the absence of probative evidence provided by the applicant. Moreover, in filing his complaint, the applicant had the opportunity to produce additional documents in order to persuade the appointing authority to reverse the contested decision.
72 As regards, next, the alleged breach of the principle of the protection of legitimate expectations, the Tribunal points out that, in Eurostat’s various communications with the applicant, Eurostat was careful to state that the invitations to the applicant were only a step in the recruitment process. In any event, while it is true that that office informed the applicant that it had initiated the recruitment procedure, that information nevertheless cannot be regarded, in the absence of the consent of DG Human Resources, as a firm offer capable of giving rise to a legitimate expectation on the part of the applicant.
73 In the present case, the applicant did not receive any information that could be regarded as equivalent to a firm offer of employment and, even if he had received such information, according to settled case-law, an offer of employment addressed to a candidate with a view to his appointment as a probationary official is a preparatory measure, that is, a statement of intent which, depending on the circumstances, may be coupled with requests for information, and it therefore does not create rights (Eklund v Commission, EU:F:2012:145, paragraph 66).
74 Lastly, it is apparent from the applicant’s pleadings that he also takes issue with the appointing authority for not having envisaged recruiting him, as a successful candidate in the grade AD 7 competition who did not have the minimum of six years’ appropriate professional experience required for that competition, pursuant to the grade AD 5 competition, an option, he claims, provided for in the notice of competitions and which he had selected when he entered the competition at issue.
75 In this connection, where the appointing authority established that the applicant did not satisfy one of the conditions required for admission to the grade AD 7 competition and that the assessment of that condition by the selection board of the competition was vitiated by a manifest error, in accordance with the case-law referred to above, the appointing authority was obliged to refuse to recruit the applicant and, since it is not empowered to annul or amend a decision adopted by the selection board of a competition, nor to request that the board amend the reserve lists, the appointing authority could not, where, as in the present case, the applicant was not lawfully included on the reserve list of the grade AD 7 competition, decide to appoint him at a lower grade, in this instance AD 5, provided for by another competition conducted at the same time as the competition at issue, that is, competition EPSO/AD/206/11.
76 Lastly, it should be recalled that the Tribunal has already held, in the very case of competitions EPSO/AD/206/11 and EPSO/AD/207/11, that the content of the tests organised at the assessment centre necessarily depends on the grade of the competition entered by the candidate, so that it cannot be assumed, without infringing the principle of equal treatment, that a candidate who has passed the tests of a competition for the recruitment of officials of a higher grade would necessarily have passed the tests of another competition for the recruitment of officials of a lower grade. The Tribunal has held that, in those circumstances, the reassignment of a candidate from one competition to another can lawfully take place only before the tests corresponding to the competition to which the candidate has been reassigned. The administration does not, therefore, err in law in taking the view that a candidate who has passed the tests of the grade AD 7 competition cannot automatically be reassigned to the grade AD 5 competition, even though that competition corresponds to a lower grade, since such a candidate has not in fact passed the tests specific to the grade AD 5 competition (Demeneix v Commission, F‑96/12, EU:F:2013:52, paragraph 64).
77 The second plea in law must therefore be rejected as being manifestly unfounded.
78 Having regard to all the foregoing considerations, the action must be dismissed as manifestly unfounded.
Costs
79 Under Article 87(1) of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title II of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. However, under Article 88 of the Rules of Procedure of the Civil Service Tribunal, a party, even if successful, may be ordered to pay some or all of the costs, if this appears justified by the conduct of that party, including before the proceedings were brought, especially if he has made the other party incur costs which are held to be unreasonable or vexatious.
80 It follows from the grounds set out in the present order that the applicant has been unsuccessful in his action. Furthermore, the Commission has expressly requested in its pleadings that the applicant should be ordered to pay the costs. None the less, the circumstances of the present case, in particular, the fact that the applicant’s situation is in part attributable to a manifest error of assessment by the selection board and that, at a later stage, the Commission sent him in error a second offer of employment which it subsequently withdrew, thereby causing him to incur additional costs, are such as to warrant that, in accordance with Article 88 of the Rules of Procedure, the Commission bear its own costs and be ordered to pay the costs incurred by the applicant.
On those grounds,
THE CIVIL SERVICE TRIBUNAL (Second Chamber)
hereby orders:
1. The action is dismissed as manifestly unfounded.
2. The European Commission is to bear its own costs and shall pay the costs incurred by Mr Mészáros.
Luxembourg, 10 July 2014.
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