OPINION OF ADVOCATE GENERAL
BOBEK
delivered on 29 January 2019(1)
Case C‑243/18 P
European Joint Undertaking for ITER and the Development of Fusion Energy (Fusion for Energy Joint Undertaking)
v
Yosu Galocha
(Appeal — EU civil service — Contract staff — Selection procedure for the Fusion for Energy Joint Undertaking — Irregularity in the selection procedure — No written test — Annulment of subsequent acts relating to and favourable to third parties — Annulment of a reserve list and effect on recruitment of persons from a reserve list — Proportionality — Balance of interests — Legitimate expectations)
I. Introduction
1. The European Joint Undertaking for ITER and the Development of Fusion Energy (‘F4E’ or ‘the Appellant’) organised a selection procedure to recruit contractual agents. The guide for applicants attached to the vacancy notice stated that both oral and written tests would be held. F4E only organised an oral test. Following that oral test, it made a selection of candidates who were placed on reserve lists, and then employed two candidates from those lists.
2. Mr Yosu Galocha took part in that selection procedure. His name was not however included on the reserve lists. He commenced legal proceedings before the General Court against F4E, seeking annulment of the Selection Committee’s decision not to include him. The General Court not only annulled that decision but also the reserve lists in their entirety and the decisions to appoint successful candidates from those lists.
3. F4E now appeals against that judgment, claiming that the General Court has breached the principle of proportionality by annulling measures that were favourable to third parties, namely the reserve lists and the recruitment decisions.
4. By the present appeal, the Court is called upon to examine whether the balance reached in the General Court’s judgment was justified on the facts of the present case. More broadly, in what circumstances may an irregularity committed in a selection procedure lead to the annulment of all subsequent measures emanating from that selection procedure, including those favourable to third parties, such as reserve lists, individual recruitment decisions, or employment contracts?
II. Facts and proceedings
A. Background to the dispute
5. The facts, as stated in the judgment under appeal, (2) can be summarised as follows.
6. F4E is a joint undertaking according to Article 45 of the Euratom Treaty. It was established by Council Decision 2007/198/Euratom of 27 March 2007. (3) Mr Galocha worked at F4E’s Barcelona premises (Spain) from 23 April 2014 as a temporary worker. He then remained there from 5 May 2015 as an external subcontractor pursuant to a contract between F4E and another company. In February 2016, that latter contract also came to an end.
7. On 5 February 2015, F4E published a vacancy notice (F4E/CA/ST/FGIV/2015/001) on its website in order to create two reserve lists. The aim was to recruit Cost Control Support Officers, with one list of four names for its site in Barcelona, and another, also with four names, for its site at Cadarache (France). The successful candidates were to be recruited as short-term contractual agents under Article 3a of the Conditions of Employment of Other Servants of the European Union (‘the Conditions of Employment’) for a maximum and non-renewable period of three years.
8. Section 3 of the vacancy notice in question made reference to a ‘Guide for Applicants’ for more information on the selection process for contract staff. That guide was available on F4E’s website, along with the Conditions of Employment.
9. Section 5 of the Guide for Applicants was headed ‘Overview of Selection Procedure’. It provided for the creation of a Selection Committee. The third paragraph of Section 5, subsection 1, of the Guide for Applicants, headed ‘Assessment of applications’, stated that eligible candidates who had the best profiles would be invited to take oral and written tests. The fifth paragraph provided that further details of the date, time and address of the written and oral tests would be specified in invitation letters to the eligible candidates. Finally, the sixth paragraph made it clear that they might be invited to take the oral and written tests on the same day or on a number of consecutive days, depending on the number of candidates.
10. Section 5, subsection 2, of the Guide for Applicants, entitled ‘Selection’, contained the headings ‘Oral test’ followed by ‘Written test’ and ‘Procedural aspect of the tests’.
11. Under ‘Oral test’, it was stated that the test was designed to help the members of the Selection Committee to assess the candidate’s general presentation and motivation, his suitability to carry out the duties described under the ‘Responsibilities’ section of the vacancy notice, his specialist knowledge in the field of expertise, his capacity for expression in the working languages of F4E and his ability to adjust to working in a multicultural environment.
12. Under ‘Written test’ it was stated that, in the test, account would be taken of specific competencies for the vacant post to which the selection procedure related, the quality of the candidate’s writing style and presentation, and his general aptitudes and language abilities to the extent necessary for the performance of his duties.
13. Under ‘Procedural aspect of the tests’, the second paragraph stated that the assessment of applicants would be completed only after all candidates had taken both the written and oral tests, and would be based on the score achieved in both tests.
14. On 26 February 2015, Mr Galocha submitted an application for the vacancy. By an email of 17 April 2015, the Human Resources Unit of F4E invited him for an interview. In a letter attached to that email, he was informed that the interview would last approximately 45 minutes and would be carried out mainly in English. The aim of the interview was to assess his general presentation and motivation, his suitability to carry out the duties described under the ‘Responsibilities’ section of the vacancy notice in question, his specialist knowledge in the field of expertise, his capacity for expression in the working languages of F4E and his ability to adjust to working in a multicultural environment. The letter made no reference to a written test.
15. On 11 May 2015, Mr Galocha took part in the oral test. Neither he nor the other candidates were sent an invitation to a written test.
16. By an email of 4 June 2015, the Head of the Human Resources Unit of F4E informed him, on behalf of the Selection Committee, that in the light of the oral and written tests which he had taken, the Selection Committee had decided not to place his name on the reserve list.
17. On the same date, Mr Galocha submitted a request to the Selection Committee to review that decision. He pointed out that no written test had been held. He asked that the outcome of the selection made solely on the basis of the oral test be annulled and that a written test be held before the Selection Committee took a final decision. On the same date, Mr Galocha lodged a similarly worded complaint under Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), with the authority empowered to conclude contracts of employment, namely the Director of F4E.
18. By an email of 3 July 2015, the Selection Committee rejected the request for review.
19. The reserve lists drawn up on the basis of the outcome of the selection procedure at issue each contained the names of four successful candidates. Mr Galocha was not among them. On 25 June 2015, one of the successful candidates on those lists received an offer of employment from F4E and employment commenced on 1 August 2015 at Cadarache. On 10 July 2015, another successful candidate was offered employment by F4E, and his employment started on 1 November 2015 at Cadarache.
20. On 18 August 2015, Mr Galocha filed an action before the European Union Civil Service Tribunal, which transferred the case to the General Court on 31 August 2016. In that action, he claimed that the selection procedure was irregular. Mr Galocha sought the annulment of the selection procedure, of the reserve lists and of the decisions to appoint successful candidates from those lists. He also sought the organisation of a new selection procedure, including a written test.
21. F4E argued in response that the reference to a written test was an inadvertent administrative error. It never intended to hold such a test for fixed-term posts that needed to be filled urgently. Furthermore, none of the candidates sat the written test in issue, so there was no breach of the principle of equal treatment.
B. The judgment under appeal and the proceedings before the Court
22. In its judgment of 25 January 2018 (‘the judgment under appeal’), (4) the General Court held that Mr Galocha was right to claim that the selection procedure at issue was flawed. It is clear that a written test should have been organised in view of the binding nature of the vacancy notice at issue. As a result of this irregularity, the General Court annulled the Selection Committee’s decision not to include Mr Galocha’s name on the reserve list. (5)
23. The General Court also upheld the heads of claim relating to the alleged illegality of the reserve lists and of the decision appointing successful candidates from those lists. (6) In this respect, it recalled its own case-law, (7) under which the annulment of those subsequent acts relating to third parties, which are favourable to those third parties, shall be ordered only if it does not appear to be excessive, particularly in the light of the unlawful act committed, the interests of the third parties and the interests of the service. In particular, when evaluating the interests of third parties, the General Court found that account must be taken of the legitimate expectations at stake, which may relate to the inclusion of a candidate’s name on the reserve list and appointment to the post to be filled.
24. Considering the circumstances of the case, the General Court held that the successful candidates whose names were on the reserve lists, including those who received offers of employment from F4E, could not rely on legitimate expectations. Furthermore, given the nature of the irregularity, the annulment of the reserve lists and of the decisions appointing successful candidates from those lists was not excessive in the light of the interests of the service. (8)
25. The General Court dismissed the remainder of the action and ordered F4E, as the unsuccessful party, to pay the costs. (9)
26. In the present appeal, F4E, as the Appellant, asks the Court to set aside that part of the judgment which annuls the reserve lists in issue and the decision to appoint the successful candidates. The Appellant also requests the Court to order Mr Galocha to pay the costs.
27. In support of its appeal, the Appellant raises a single ground, divided into three pleas.
28. First, the Appellant claims that the annulment of the results of a selection procedure as far as third parties are concerned is excessive in relation to the illegality in question.
29. Second, the Appellant argues that the General Court did not take into account the nature of the illegality committed by the Appellant when assessing the consequences of that illegality. The error made by the administration did not exclude anyone from the selection procedure and affected all candidates in the same manner. The lack of written test had no impact on the substantive requirements but only on the manner in which those requirements were assessed (solely on the basis of an oral test). Thus, the administration merely committed a procedural error that cannot justify the annulment of subsequent decisions affecting third parties.
30. Third, the Appellant maintains that the General Court has not properly balanced the interests of Mr Galocha, those of third parties and those of the service. According to the Appellant, the judgment under appeal has no effect on Mr Galocha’s interests and legal position since the latter has not sought damages, and the General Court has not ordered F4E to rerun the selection procedure and organise written tests. By contrast, the judgment under appeal affects the successful candidates in a negative manner: the latter would, as a result of that judgment, be removed from the reserve lists and/or could have their employment contracts terminated.
31. Mr Galocha has not filed a response
III. Assessment
32. This Opinion is structured as follows. First, I will set out the broader issues underpinning this appeal, inherent when adjudicating on an action seeking the annulment of the results of a selection procedure in which an irregularity has occurred: how far down the road should, in principle, that irregularity extend? (A). Second, I will set out considerations guiding the decision-making process on whether or not decisions favourable to third parties, such as decisions to add successful candidates to a reserve list or to hire them, ought to be annulled (because of the prior irregularity) or maintained (despite that irregularity) (B). Third, I will apply those considerations to the present appeal and suggest to the Court that the decisions to employ two successful candidates should not have been annulled (C).
A. The overall approach: ‘fruits of a poisonous tree’ or ‘balancing each branch’?
33. Selection procedures for EU institutions and bodies tend to be complex administrative exercises aimed at creating an appropriate pool of suitably qualified persons. Such procedures consist of many different steps, each of them giving rise to a variety of (administrative) acts that can be of a general nature (relating to the broader organisation of the procedure, such as, for example, vacancy notices, rules for applicants or acts defining the selection criteria), or of an individual nature (such as decisions establishing a reserve list, acts rejecting an application, or decisions appointing successful candidates to the vacant positions).
34. These different acts are closely interrelated. That has an impact on the scope of the judicial review of those acts under Article 270 TFEU. It is established case-law that only those acts that affect the applicant’s interests by bringing about a distinct change in his legal position can be challenged directly. By contrast, preparatory acts forming part of the selection procedure as a whole can only be contested indirectly, in the context of an action against the decision taken on completion of that procedure. (10)
35. In the context of selection procedures, in which a fair number of acts and decisions adopted along the way would be considered as preparatory to the final selection decisions, it inevitably occurs that the results of such procedures will be challenged on the basis of prior irregularities. Unless there is an irregularity that is either swiftly remedied or simply cannot have any decisive effect on further stages, (11) the issue arises as to what impact an irregularity in the selection procedure (‘the original sin’) should have on subsequent decisions in, and following, a given selection procedure, such as individual decisions to recruit the successful candidates, or even their later promotion.
36. Broadly speaking, two approaches are imaginable.
37. First, there is the ‘fruits of the poisonous tree’ logic. (12) The tree trunk in the form of the main selection procedure was infected. The same must then be true of all its branches and fruits. Thus, all the branches of that tree must be chopped off: not only (negative) decisions not to include candidates on reserve lists or not to hire them, but also their (positive) counterparts, namely decisions to create a reserve list with certain individuals listed on it, or decisions to recruit people from that list.
38. Second, there is the ‘assess each branch individually’ approach. In this scenario, an infection of the trunk does not necessarily mean that it must all be for the chop. Instead, what ought to be carried out is a careful balancing exercise: what kind of infection is there on the trunk and how extensive is it (how serious is the irregularity)? Who is sitting on each branch of the tree (who could eventually be affected by annulment and how)? Implicitly or explicitly, trunks with a minor infection can still grow healthy branches. Moreover, with the passage of time, a tree might heal.
39. It is worth underlining at the outset that in spite of the occasional rhetoric of restitution and the need to restore the rights of the aggrieved candidates, as well as the fact that what will typically be sought by those allegedly aggrieved candidates in terms of remedies is annulment of (all) the decisions of the appointing authority, the overall approach of the EU Courts (13) has always been the latter one. It is settled case-law that when an irregularity has occurred in the course of a competition, an applicant’s rights will be adequately protected if the board and the appointing authority reconsider their decisions and seek a fair solution in his case, without it being necessary to call into question the entire results of the competition or to annul the appointments made as a result thereof. (14) The annulment of all the results of a competition constitutes, in principle, an excessive penalty for the irregularity committed. (15) At any rate, the EU Courts have acknowledged that where the act that should be annulled benefits a third party (which is the case when there is a decision to promote an individual, an entry on a reserve list or a decision to recruit a candidate), it must first determine whether the annulment would be an excessive penalty for the irregularity in question. (16)
B. The considerations
40. There is thus certainly no ‘annulment automaticity’ that would require that all the consequences of a tainted selection procedure be mechanically undone. Instead, the various interests at stake (1) are to be weighed against each other within the specific context and factors of each case (2), in order to find an equitable solution with regard to the specific remedy/set of remedies sought in each individual case (3).
1. The interests
41. The individual interests at stake are not difficult to discern. They will typically include the interests of the adversely affected candidates (mostly the unsuccessful candidates); the interests of third parties (mostly the successful candidates); the interests of the service; and the overarching ‘interest’ in lawfulness (legality). (17)
42. The Court has, in various contexts, acknowledged the interests of each of the ‘individual’ parties. It has stressed the ‘need to reconcile the interests of candidates who are put at a disadvantage by an irregularity committed in the course of a competition and the interests of the other candidates. The Court is required to take account not only of the need to restore the rights of the candidates who have been adversely affected but also of the legitimate expectations of the candidates already selected’. (18)
43. The exact content of each of those individual interests is rather obvious. The situation is nonetheless slightly more complex when seeking to define the interests of the service and the interest in lawfulness.
44. EU Courts sometimes consider that respect for legality is encompassed within the interests of the service. (19) However, it is also acknowledged that the interests of the service not only include respect for the law, but also ‘the budgetary consequences of the failure to annul illegal decisions …, possible difficulties in complying with the judgment to be delivered, any adverse effects on the continuity of the service, and the danger of a deterioration in the social atmosphere within the institution’. (20)
45. Thus, as much as one would wish to subscribe to the vision of an institutional selfless interest in legality, a nagging voice belonging to reality might whisper otherwise. It is not inconceivable that sometimes, an institution or agency made up of humans might see it as ‘in the interests of the service’ to proceed despite the illegality, for example for the sake of continuity and proper functioning of the administration, or for whatever other reason. Put differently, the objective interest of the service might indeed be to ensure that the administrative action generally complies with the law, but its subjective interest in the individual case might nonetheless consist in validating the outcome of a selection procedure and maintaining the appointments made despite the illegality committed.
46. On the other hand, the interest in the institution acting lawfully and thus playing by the rules (of the selection game) is likely to be shared by the candidates as well. (21) For that reason, and also as the nature of the illegality is likely to translate into the severity of the ‘sanction’ against the results of a competition, it is perhaps better to acknowledge that there is a difference between the ‘interests of the service’ and the ‘overall interest in legality’. The two notions are best kept apart.
2. The factors
(a) Type of selection procedure
47. There are cases in which a distinction is made between, on the one hand, open competitions and, on the other hand, internal competitions and promotions. Where in an open competition a step in the selection procedure is annulled, the rights of unsuccessful candidates are regarded as adequately protected if the board and the appointing authority reconsider their decisions and seek a fair solution in their cases, without it being necessary to call into question the entire results of the competition, or to annul the appointments made as a result thereof, irrespective of the nature of the irregularity and the extent to which it affects the results of the competition. By contrast, where internal competitions and promotions are concerned, the Courts undertake a case-by-case examination, which does take into account the nature of the irregularity. (22)
48. I do not think that such occasional differentiation could be seen as setting any formal rules in terms of approach. I would rather understand that occasional difference in approach as a proxy for a different variable: the size and the type of the selection procedure in question are likely to have an impact on the knowledge that is to be expected from a reasonably informed candidate. Two elements are of note: first, knowledge of all the rules and procedure applicable to the selection procedure; and second, knowledge of the fact that one or several of those rules would have been breached during that procedure.
49. In cases of open competitions with hundreds or up to tens of thousands of ‘anonymous’ candidates, it may be expected that those candidates should have basic knowledge of the selection procedure. But it is unlikely (and rather unrealistic to expect) that they would be well versed in the complexities of EU civil service law. Moreover, in view of the number of candidates, their anonymity, and the considerable information asymmetry that exists between such candidates and the administration, it is rather unlikely that such candidates would be able to detect the occurrence of a potential irregularity.
50. By contrast, the smaller and more restricted the competition, the more reasonable it is to expect more in terms of information and knowledge from the candidates. It can be presumed that ‘insider candidates’, such as for example, five candidates for an internal competition, would have a more detailed knowledge of the applicable rules and/or may have acquired knowledge about a potential irregularity in the process.
(b) Nature of the irregularity
51. The nature and the gravity of the illegality committed matters. When assessing promotion procedures, the EU Courts take into account the nature of the irregularity. If the irregularity found is merely a procedural defect affecting the situation of just one official, the EU Courts consider a priori that such an irregularity does not justify invalidation of promotion decisions, as such annulment constitutes an excessive penalty. By contrast, where there is a substantive defect, such as an error of law which vitiates the entire consideration of comparative merits, the EU Courts generally weigh up the interests involved. (23)
52. In my view, those considerations should not be limited solely to the case of promotions, but should be of relevance generally, when it comes to the assessment of the consequences of prior irregularities on measures favourable to third parties in any type of selection procedure.
53. There can of course be no exhaustive taxonomy or categorisation in this regard. Life is too colourful for that. However, as a rule of thumb, I would suggest that there be a continuum of severity.
54. At one end of the spectrum, there are minor irregularities. They should not, in themselves, have any impact on the outcome of the selection procedure, nor at any rate on decisions favourable to successful candidates. Examples under this heading would include clerical mistakes in the selection procedure, such as a mistake in form? or other procedural mistakes that do not substantively affect the content of the decision.
55. At the other end of the spectrum are serious irregularities that will certainly carry greater weight in the balance of interests, within the ‘interest’ in lawfulness, compared in particular with the interests of third parties. At least three different types of serious irregularities may be contemplated: fraud and corruption; an affront to basic EU values; or consistent disregard for rules pertaining to the selection procedure.
56. First, proven instances of fraud or corruption in selection procedures are serious enough to justify the annulment of the whole selection procedure. Accordingly, decisions favourable to third parties would also need to be annulled. In such an extreme scenario, the existence of third parties’ legitimate expectations, if any, could hardly play a role in order to save a measure that is tainted by a gross irregularity of that sort. Going back to the initial metaphor, that tree trunk cannot heal.
57. Second, an affront to basic EU values by the administration can also be characterised as a serious irregularity. That would, for example, be the case if the selection procedure were to discriminate between candidates on the grounds laid down in Article 21 of the Charter of Fundamental Rights of the European Union. Like fraud, such a gross inequality of treatment could be said to vitiate the entire selection procedure, including all of its results. (24)
58. Third, there is the special category of ‘repeat offenders’. In cases in which an EU institution or body fails to organise a lawful selection procedure despite previous Court judgments regarding the same type of selection, more severe measures might be called for. (25) Furthermore, consistent disregard for the applicable rules might also turn recurring minor irregularities into a serious irregularity that could, in certain circumstances and, again, after a proper balancing of interests, also vitiate the entire procedure and the subsequent results.
(c) Legitimate expectations of the successful candidates
59. It is established case-law that the right to rely on the principle of the protection of legitimate expectations applies to any individual in a situation in which an institution of the European Union, by giving that person precise assurances, has led him to entertain properly founded expectations. Such assurances, in whatever form they are given, must constitute precise, unconditional and consistent information. (26)
60. The factual framework of a given selection procedure, in particular its type, size, and the nature of the illegality committed therein, then translate into third parties having or not having any legitimate expectations as to its outcome. There will thus be a relationship of reverse proportions when one has knowledge of a potential irregularity and legitimate expectations: the greater the knowledge, the smaller or even non-existent the legitimate expectations. That knowledge is to be assessed on the basis of the standard of the reasonably informed candidate: (27) did such a candidate know, or should he have reasonably known, that that decision was flawed?
61. First, an external candidate is less likely, compared to an ‘insider’, to know all the rules applicable to a selection procedure and, accordingly, about the potential existence of an irregularity. (28) Such a candidate can thus have stronger legitimate expectations vis-à-vis the maintaining of a decision, albeit illegal, that created rights for him.
62. Second, the more serious the irregularity, the more likely it is that a reasonably informed candidate knew or must have known about it. (29) Certainly, the seriousness of the illegality does not mean in itself that the candidates were bound to know about that illegality. However, if the irregularity in issue could not reasonably have escaped the attention of a candidate, (30) the expectations of a successful candidate will then appear to be less legitimate or even non-existent. A fortiori, if a successful candidate has shown bad faith or himself contributed to the irregularity, he could certainly not entertain any legitimate expectations towards the maintaining of the (unlawful) decision favourable to him. (31)
63. Third, according to the EU Courts, the knowledge that successful candidates may have of a pending lawsuit against certain acts of the selection procedure, including against those favourable to those candidates, is also relevant in the present context. That type of knowledge may prevent them from relying on the legitimate expectation that their favourable status would not be affected, as those acts were challenged within the prescribed periods. In particular, successful candidates who have been appointed to a position could not be unaware that their employment status would only be definitive further to the Court deciding to reject the action for annulment lodged by other candidates. (32)
64. Certainly, if it is shown on the facts of an individual case that there was indeed such knowledge, that ought to be taken into account. I would, however, caution against such a presumption of such knowledge. In practice, it might not be immediately apparent how a successful candidate, again particularly in larger and open competitions, would actually know about the existence of a pending action, if he is not a party to those proceedings and if the EU institution or body in question is not under an obligation to inform him about that action. It is one thing to have simply overheard rumours in the corridor that an annulment action is ongoing. It is quite another to have been notified that such an action was pending and that it could moreover have repercussions on the successful candidates.
65. Successful candidates should certainly not, helplessly - without any recourse - bear the (fateful) consequences of a potential annulment of decisions concerning them, especially when the annulment was actually ordered years after the action was lodged. (33) Thus, even if the action has been lodged within the time limits, legitimate expectations might still remain intact, unless and until it is established that the candidates in question knew of the problems arising under the selection procedure in question.
66. In sum, all of these factors and considerations must be balanced on the facts of an individual case. What has been cautioned against in this section is a certain mechanical application of rather categorical statements such as ‘no legitimate expectation can ever arise out of an illegality committed by the institution’ and/or ‘since a decision was challenged in due time, nobody could have had any legitimate expectations’. Such statements, often finding their proper use in areas of law in which business professionals are active, can hardly be fully transposed into an area of law which is simply different. Instead, a pinch of empathy and realism might be called for, also taking into account the huge information and power asymmetry that will always exist, again particularly in open competitions, between the institutions and their potential agents. This in no way excuses or condones potential illegalities committed by institutions. Rather the suggestion is that unless there is an exceptional set of facts, successful candidates can hardly be held accountable, along with the administration, for the irregularity. (34)
3. The remedies
67. Article 270 TFEU aims at restoring the rights of applicants (unsuccessful candidates) where an illegality has occurred. According to the EU Courts, restoring the rights of the unsuccessful candidates entails that the administration find a ‘just solution’ for the case. (35) Such a just solution ranges from the annulment of the decisions concerning the unsuccessful candidates, (36) to the reopening of the procedure for the aggrieved candidate. (37) In this context, it has also been consistently stated that damages, which can be awarded ex officio, (38) constitute the form of compensation which best meets both the applicant’s interests and the requirements of the service. (39)
68. Concerning measures favourable to third parties specifically, such as reserve lists or appointments, the — by definition retroactive — annulment of such decisions appears to be, rightly so, an ultima ratio where there is no other apparent suitable remedy to reinstate the rights of the aggrieved candidates. (40)
69. As indeed succinctly captured by Advocate General Van Gerven in Albani, there is a need, in such cases, ‘to find a solution which strikes a balance between the interests of the candidates placed at a disadvantage by an irregularity committed in a competition and the interests of the other candidates. This need to deal carefully with the various interests involved is a general principle of sound administration, and in this case good judicial practice, which is upheld by Community law. That principle requires the Court not only to make efforts, for reasons of legal certainty, to ensure fair reinstatement of the rights of aggrieved candidates but also to take account of the legitimate expectations of the candidates already selected and/or appointed. That means that in this case, in seeking a solution in relation to an irregular recruitment procedure, the Court must weigh two types of damage suffered by the aggrieved candidates, which must be fairly redressed, and the potential damage that the other candidates would suffer as a result of the measures envisaged to secure such redress’. (41)
70. It might be worth adding that in its subsequent judgment, the Court of Justice decided to set aside the judgment of the General Court which, by annulling the reserve lists, did not limit the consequences of the annulment of subsequent acts in the selection procedure to reinstatement of the rights of the four original applicants. (42)
71. Prima facie, it is indeed arguable that the reinstatement of the rights of applicants — unsuccessful candidates — always involves the annulment of decisions concerning successful candidates, unless the whole selection procedure is to be rerun, which is rather rare and cannot be ordered by the Court anyway. As alternative remedies, damages or, where possible, the rerun of the selection procedure solely for the aggrieved candidates indeed appears to be the most suitable solution in order to sanction a (prior) illegality in that procedure, without interfering with the legitimate expectations of successful candidates.
72. Again, as already outlined above, (43) third parties should not bear, in principle, the consequences of a prior irregularity that they were not aware of or could not have been aware of. Those parties might have no knowledge of irregularities or pending actions against the selection procedure and consequently they will not be able to defend themselves. This fact, previously discussed in the context of knowledge and the corresponding legitimate expectations of such parties, acquires an additional dimension in the context of remedies. The successful candidates are unlikely to be parties in such a case, and yet still be profoundly affected by its results. Sooner or later, the issue of the right to a defence will arise.
C. Application to the present case
73. In the judgment under appeal, the General Court has annulled three different types of decisions relating to the results of the selection procedure: (i) the decision not to put Mr Galocha on the reserve lists (‘the negative decision’); (ii) the decision creating the reserve lists (‘the reserve lists’); (iii) the employment decisions appointing successful candidates from the reserve lists (‘the recruitment decisions’).
74. By the present appeal, the Appellant challenges only that part of the judgment under appeal which concerns the reserve lists (ii), and the recruitment decisions (iii). The fact that the General Court annulled the specific negative decision concerning Mr Galocha (namely not to put his name on the reserve lists) is not disputed. Nor does the Appellant dispute the existence of the underlying, prior irregularity caused by the fact there was no written test during the selection procedure.
75. The subject matter of this appeal thus relates exclusively to the conclusions that the General Court drew from that irregularity as far as third parties are concerned, namely decisions (ii) and (iii). In justifying its decision with regard to those two annulment measures, the General Court stated:
‘68. In the circumstances of the present case, the successful candidates whose names were included on the reserve lists, including those who received offers of employment from [F4E], cannot rely on legitimate expectations. The vacancy notice at issue provided that a written test would be held. The reserve lists were drawn up and the offers of employment sent out without those candidates having sat such a test.
69. Furthermore, given the nature of the irregularity, it also cannot be considered that annulment of the reserve lists and of the decisions appointing successful candidates from those lists would be excessive in the light of the interests of the service. First of all, the irregularity affected the assessment of all the candidates and cannot therefore be remedied by measures concerning only the applicant. Secondly, the present selection was only small in scale.’ (44)
76. According to the Appellant, by extending the consequences of the irregularity in issue to the successful candidates — be it at the level of the reserve lists, or of the appointments — the General Court imposed an excessive penalty on third parties.
77. Applying the previously outlined considerations to the present appeal leads me to agree with the Appellant regarding the annulment of the recruitment decisions (iii), but not necessarily with regard to the reserve lists (ii).
78. First, when looking at the type of selection procedure in issue, it appears to be an open competition. Second, regarding the nature of the irregularity committed within the selection procedure, it is rather clear that the failure to organise a written test as mentioned in the Guide for Applicants is constitutive of an illegality committed by the administration. It is established case-law that ‘the vacancy notice constitute[s] the legal framework which the appointing authority imposed on itself and [which it] must, therefore, observe meticulously’. (45) Accordingly, since the vacancy notice made reference to the Guide for Applicants, the Appellant should have organised a written test.
79. However, it would be rather surprising to categorise that error as a serious and grave one. The General Court stated that the lack of a written test affected all the participants to the selection procedure equally. (46) Therefore, further reasoning would be necessary to arrive at the conclusion that this amounted to a serious, substantive irregularity that would result in unequal treatment. Thus, it would appear that the lack of a written test was rather the result of the negligence of the administration, which did not update documents relevant for the selection procedure, such as the Guide for Applicants and template letters that were sent to the candidates. (47)
80. Third, regarding the successful candidates’ actual or potential knowledge of the irregularity committed by the Appellant, it could be assumed that the candidates should have known that the selection procedure consisted in both oral and written tests, as that was mentioned in the Guide for Applicants. However, whether the lack of a written test would have necessarily come as a surprise for the successful candidates when they received the results of the selection procedure is an issue that is open to discussion. It depends on how a reasonably informed candidate might have understood the sixth paragraph of Section 5, subsection 1 of the Guide for Applicants, which provided that eligible candidates might be invited to take oral and written tests on the same day or on a number of consecutive days, depending on the number of candidates.
81. Within such a factual context, would it indeed have been unreasonable for the candidates to have thought, also in view of the fact that the letter inviting them to the oral test did not refer to a written test, that the administration could have merged the oral test with the written one? Or that it had decided to discard the written test as part of the procedure, presumably because the oral test was sufficient for the administration to assess the candidates’ suitability as fixed-term contractual agents, and also perhaps because there were not so many candidates?
82. For these reasons, in contrast to the General Court, I do not see why the successful candidates could not rely on legitimate expectations with regard to the maintaining of the effects of decisions that are favourable to them, despite the (unlawful) failure to organise a written test.
83. I wish to add that in view of the considerations and the balancing exercise to be carried out in similar cases, I am not certain that I could follow the second argument of the General Court: that the selection procedure ‘was only small in scale’. I agree that the size in the sense of the scope and nature of the competition is relevant for the potential assessment of knowledge and ensuing legitimate expectations. (48) I would, however, disagree if that argument were to be made in order to suggest that legitimate expectations will be of a ‘lesser value’ and more easily outweighed in the balancing exercise if it benefits only two individuals rather than 200. The value-balancing that is supposed to be carried out is about the quality of expectations and the worthiness of their protection. It is not a head count.
84. Thus, with the successful candidates not per se precluded from having legitimate expectations that the outcome of the selection procedure will not be changed as far as they are concerned, the further balancing exercise takes place when weighing those expectations with other interests — in view of the exact type of remedy sought. The outcome of that balancing exercise differs, in my view with regard to (ii) the reserve lists, and (iii) the recruitment decisions.
85. On the one hand, concerning the reserve lists (ii), the outcome reached by the General Court is perhaps not the only possible one, but it remains within the realm of the conceivable.
86. First, the candidates on the reserve lists have weaker legitimate expectations compared to those who have been selected for employment. The General Court has touched upon this: ‘the inclusion of successful candidates in open competitions on the lists of suitable candidates drawn up as a result of selection processes merely renders those concerned eligible to be appointed probationary officials’. (49) According to that ruling, candidates on reserve lists do not have a right to be appointed, even if in the present case the reserve list was for short-term contracts. They only have legitimate expectations to be duly considered in the case the need to fill a vacancy arises.
87. Second, by its nature, the annulment of a reserve list is essentially prospective in its practical effects, although it is retrospective in its legal effects. On the one hand, the administration must rerun a selection procedure and establish a new reserve list, if it still wishes to fill a vacancy. However, this is the price to be paid for the irregularity in the competition procedure that cannot be remedied otherwise. Thus, the interests of the service can hardly be a valid argument against the annulment of reserve lists. On the other hand, those successful candidates who were chosen from the reserve list and appointed before the potential annulment of that list will be protected individually, but on a different basis: they would already not only have legitimate expectations, but also the acquired right of having been appointed.
88. Third, seen in this light, the interests of the applicant (unsuccessful candidate) reach a similar level with those of successful candidates still on, but not selected from, the reserve list, for the future. They can indeed expect that the administration will rerun the procedure in full compliance with the law so that they may now have a chance to be selected. But the same chance, for the future, is just as open to those candidates who were on the — now annulled — list. Put simply: a fresh set of cards is to be dealt and a new game played, in which everyone can again participate.
89. For these additional reasons, in the circumstances of the present case, the decision of the General Court to annul the reserve lists does not appear to be an excessive penalty breaching the principle of proportionality.
90. On the other hand, the situation is, in my view, different regarding the recruitment decisions (iii). The annulment of those decisions amounts to an excessive penalty on at least three grounds.
91. First, it is rather clear that the appointed persons have not only accrued legitimate expectations, but have moved much further on the scale of legal certainty: they have acquired rights in the form of signed and binding (fixed-term) contracts. Such legal rights, the creation of which has naturally also had considerable impact in personal terms, by definition have greater weight within the balancing exercise.
92. Second, against those (indeed) heavy entitlements comes the obvious fact that, as aptly suggested by the Appellant, it is not entirely clear how exactly the annulment of the recruitment decisions would serve the interests of the applicant in the selection procedure. Because the positions in question concern fixed-term contractual agents, for whom the agreed term of work has already been completed, an applicant could not expect to take up those positions. Such an annulment can hardly contribute to restoration of the aggrieved candidate’s rights. At the same time, the nature of the illegality committed by F4E was hardly so serious that the need for restoring objective legality (or, depending on the point of view, the need to ‘punish’ the administration for it) should outweigh all the other considerations.
93. Third and on a rather ancillary but still relevant note, there are questionable practical consequences for both the recruited candidates and the administration that such an ex tunc removal of any legal basis for the recruitment (and fixed-term contract) would entail. As an annulment has retroactive effects, all the subsequent measures concerning recruited candidates must be deemed invalid. What would then happen to the salaries, social benefits, taxes, as well as possible decisions/administrative acts adopted by those recruited candidates in their capacity as contractual agents for F4E? With regard to, for example, their salaries, would all the payments to them by the F4E be deemed to be unjustified enrichment (payments received without a valid legal basis)? Provided that all of this is not set off amicably and quietly, would each private party then have to sue the other?
94. It therefore appears clear that, to the extent that the recruitment decisions in the present case are concerned, the ‘interest’ in lawfulness and the interests of the applicant in such a selection procedure clearly cannot outweigh the interests of the recruited candidates. It follows that the annulment by the General Court of the recruitment decisions was an excessive penalty. Accordingly, the judgment under appeal must be set aside with regard to the third section of the operative part.
95. Two closing remarks are called for.
96. First, it is to be underlined that such a balancing in terms of the appropriate remedies is always case-dependent. In the present case, there is no evidence whatsoever that the failure on the part of the administration was intentional or a repeated failure. Moreover, a different outcome, also with regard to the balance of interests concerning the recruitment decisions, could hypothetically be called for if any bad faith were to be found on the part of the administration. That might include for example the administration intentionally rushing to appoint candidates from the reserve lists, before a judicial review can even take place, knowing that those appointments will never be touched. Any such hypothetical scenario could certainly make the balance of interests tilt in another direction. However, there is nothing to suggest that that could be the case here.
97. Second, in circumstances where candidates do have legitimate expectations, they are entitled to seek compensation, should they wish to. They can do so even if the balancing of interests leads to annulment of the reserve lists, as in the present case. (50)
D. Costs
98. According to Article 138(1) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Pursuant to Article 138(3), where each party succeeds on some and fails on other heads, the parties shall bear their own costs.
99. In the present appeal, the Appellant was only partially successful within the meaning of Article 138(1) of the Rules of Procedure. Therefore, in accordance with Article 138(3) of the Rules of Procedure, the Appellant shall bear its own costs.
IV. Conclusion
100. In the light of the aforementioned considerations, I propose that the Court:
– Set aside the judgment of the General Court of 25 January 2018, Galocha v Fusion for Energy Joint Undertaking (T‑561/16, EU:T:2018:29) in so far as it annulled the decisions of the European Joint Undertaking for ITER and the Development of Fusion Energy to recruit successful candidates from the reserve lists of selection procedure F4E/CA/ST/FGIV/2015/001;
– Order the European Joint Undertaking for ITER and the Development of Fusion Energy to bear its own costs.