JUDGMENT OF THE GENERAL COURT (Ninth Chamber)
8 May 2019 (*)
(Civil service — Members of the temporary staff — Recruitment — Vacancy notice — Appointment to a post of head of unit — Rejection of application — Duty to state reasons — Manifest error of assessment — Equal treatment — Transparency — Liability)
In Case T‑99/18,
Grigorios Stamatopoulos, residing in Athens (Greece), represented by S. Pappas, lawyer,
applicant,
v
European Union Agency for Network and Information Security (ENISA), represented by A. Ryan, acting as Agent, and by D. Waelbroeck and A. Duron, lawyers,
defendant,
ACTION brought under Article 270 TFEU, first, for annulment of ENISA’s decision of 25 July 2017 rejecting the applicant’s application for the position of Head of Finance and Procurement and, second, for compensation for the harm allegedly suffered as a result of that decision,
THE GENERAL COURT (Ninth Chamber),
composed of S. Gervasoni (Rapporteur), President, L. Madise and R. da Silva Passos, Judges,
Registrar: E. Coulon,
gives the following
Judgment
Background to the dispute
1 The European Union Agency for Network and Information Security (ENISA) published, on 31 March 2017, vacancy notice ENISA-TA 16-AD-2017-03 with a view to drawing up a reserve list for the position of Head of Finance and Procurement (‘the vacancy notice’). It was intended that the successful candidate would be recruited as a member of the temporary staff at grade AD 9 for a period of three years, renewable for a period of five years.
2 The vacancy notice set out eligibility criteria which the candidates had to fulfil in order to be considered eligible and selection criteria on the basis of which the applications of the eligible candidates had to be evaluated by a selection committee.
3 The selection criteria set by the vacancy notice were as follows:
‘High Scoring Criteria (5 points per criterion)
– At least 12 years of proven professional experience in Finances, 6 of which in a managing position;
– Proven experience in procurement/public procurement;
– Very good knowledge of the Financial Regulations and implementing rules applicable to the general budget of the [European Union] and of the financial IT tools/methodology used ...;
– High degree of organisational skills, accuracy and ability to analyse, compile and summarise complex financial information;
– Excellent negotiation and problem-solving skills;
– Strong ability to manage people and conflicts;
– Strong communication skills in English both orally and in writing;
– Ability to work effectively and inclusively with a range of internal and external stakeholders;
– Ability to remain effective under a heavy workload and to meet programmatic deadlines consistently regardless of working environment’s changes.
Low Scoring Criteria (2 points per criterion)
– University degree in Finance, Auditing, Business Administration, Accounting, Economics and/or any relevant university diploma;
– Familiarity and/or experience in a position related to the aforementioned Job, preferably in a European [Union] Institution, Agency, Body, [or] International Organisation.’
4 Point 4 of the vacancy notice described the selection procedure as follows:
‘The [successful] candidate will be appointed to a post according to the needs of [ENISA] on the basis of the reserve list of candidates proposed by the Selection Committee and established following an open selection process involving interviews and tests.
More specifically, the Selection Committee [will decide] on those candidates who are [to be] admitted to the selection procedure in accordance with the requirements as specified in the vacancy notice. The applications of the candidates admitted to the selection procedure [will be] reviewed and the Selection Committee [will decide] on those candidates who are [to be] invited to attend an interview. The Selection Committee adheres strictly to the conditions of admission laid down in the vacancy notice when deciding whether or not candidates are to be admitted ...
…
[To the extent possible,] it is intended to ... invite a maximum of 8 candidates to the selection interview and [written] test. Shortlisted candidates may be required to undergo a personality test.’
5 On 11 May 2017, the applicant, Mr Grigorios Stamatopoulos, submitted his application for the head of unit position in question.
6 The selection committee referred to in the vacancy notice was created by decision No 31/2007 of the Executive Director of ENISA of 17 May 2017 (‘the selection committee’). The guidelines for the members of the selection committee were sent to them on 31 May 2017.
7 By email of 14 June 2017, the applicant asked ENISA for information on the state of progress of the selection procedure for the position covered by the vacancy notice. By email of the same date, ENISA first replied to him stating that the selection procedure was still ongoing and that the invitations for the interview had not yet been sent out and, secondly, set out a time frame of the selection procedure.
8 After two preliminary meetings on 16 and 22 June 2017, the Chair of the selection committee informed the ENISA human resources officer by email of 22 June 2017 that the selection committee had agreed, inter alia, on the threshold for being called for the interview phase (70% of the total selection criteria score, that is to say, 34.3 points out of 49).
9 On 28 June and 3 July 2017, the members of the selection committee examined the candidates’ eligibility and then evaluated them on the basis of the selection criteria laid down in the vacancy notice.
10 On 3 July 2017, the Chair of the selection committee circulated the names of the eight candidates selected for interview. The applicant was not among those candidates.
11 By email of 25 July 2017, ENISA informed the applicant that he had not been selected to attend an interview with the selection committee (‘the contested decision’).
12 On 1 August 2017, the applicant lodged a complaint against the contested decision.
13 By decision of 9 November 2017, ENISA dismissed that complaint. In that decision dismissing the complaint, ENISA disclosed to the applicant the score which he received for each of the selection criterion and informed him that his total score, that is to say 32 points, was below the threshold of 34.3 points out of 49 set by the selection committee for being invited to attend an interview. ENISA also stated that the selection procedure was comparative in nature and that only the 8 highest ranked candidates were invited for an interview.
Procedure and forms of order sought
14 The applicant brought the present action by document lodged at the Court Registry on 19 February 2018.
15 Since the parties had not requested a hearing under Article 106(1) of the Rules of Procedure of the General Court, the Ninth Chamber, considering that it had sufficient information available to it from the material in the file, decided to rule on the action without an oral part of the procedure, in accordance with Article 106(3) of the Rules of Procedure.
16 The applicant claims that the Court should:
– annul the contested decision;
– order ENISA to pay him at least EUR 5 000 for the non-material harm suffered as a result of the instances of illegality vitiating the contested decision;
– order ENISA to pay the costs.
17 ENISA contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
The claim for annulment
18 In support of his application for annulment, the applicant relies on three pleas in law, the first alleging a lack of adequate reasoning for the contested decision, the second, manifest errors of assessment and the third, infringement of the principles of equal treatment and transparency.
First plea in law: inadequate reasons for the contested decision
19 The applicant claims that, by not indicating, in either the contested decision or in the decision dismissing the complaint, the reasons justifying the number of points awarded for each selection criterion by setting out the comparative advantages of other candidates who were invited for an interview, ENISA failed to fulfil its duty to state reasons. The limited space allowed for candidates to complete the application form and the nature of some of the selection criteria, in particular oral and written linguistic knowledge, gave the selection committee such a broad discretion that a more tangible and specific rationale of the points awarded is all the more necessary in order to prevent abuse of that discretion. The applicant states that the case-law according to which, in view of the secrecy surrounding the proceedings of the selection board, communication of the scores obtained in the various tests constitutes, in principle, an adequate statement of the reasons on which the selection board’s decisions are based, may apply only where the scores communicated reflect the value of the individual’s own abilities in their own right, objectively with regard to the requirements of the vacancy notice and irrespective of the abilities of other candidates, which was not the situation in the present case. Relying on Decision No 2111/2014/ANA of the European Ombudsman (‘the Ombudsman’s decision’), he adds that ENISA has already been criticised for lacking transparency in its recruitment practices.
20 In his reply, the applicant disputes the interpretation of the case-law on the secrecy of the selection board’s proceedings provided by ENISA, stating that it would result in the administration being given an unfettered discretion which would not be subject to any control, whereas the prohibition on the disclosure of the positions adopted by individual members of the selection board and of individual or comparative assessments of the candidates arising from that case-law could be respected by way of a statement of reasons which specifies the standard of quality required for each selection criterion. Furthermore, he submits that the information which allegedly goes beyond the case-law requirements, which ENISA communicated to him, did not enable him to understand the scores received for each of the selection criteria. The applicant also states that he clearly asked for further information regarding the reasons why his application was rejected. Finally, he rejects the additional reasoning provided by ENISA in its defence, which cannot be taken into account and which is, moreover, not relevant in the present case.
21 It is clear from settled case-law that the duty to state reasons laid down in the second paragraph of Article 25 of the Staff Regulations of Officials of the European Union (‘the staff regulations’) and, more generally, in Article 41(2)(c) of the Charter of Fundamental Rights of the European Union, is intended, first, to provide the person concerned with details sufficient to allow him to ascertain whether the act adversely affecting him is well founded and whether it is appropriate to bring proceedings before the General Court and, secondly, to enable that Court to review the legality of the act (see, to that effect, judgments of 4 July 1996, Parliament v Innamorati, C‑254/95 P, EU:C:1996:276, paragraph 23; of 23 January 2003, Angioli v Commission, T‑53/00, EU:T:2003:12, paragraph 67; and of 11 December 2012, Trentea v FRA, F‑112/10, EU:F:2012:179, paragraph 89).
22 In the present case, it is common ground that ENISA informed the applicant, in the contested decision, that, following a detailed evaluation, he had not been placed on the list of candidates invited for interview (see paragraph 11 above) and that it informed him, in the decision rejecting his complaint, of the points awarded for each selection criterion set by the vacancy notice and of the total score received (32/49), which was lower than the threshold for being invited to an interview (34.3/49) (see paragraph 13 above).
23 It is apparent specifically from the case-law on decisions taken by a selection board, which was, moreover, referred to by the applicant and which is applicable by analogy to selection procedures for a position as a member of the temporary staff (see, to that effect, judgments of 28 February 2008, Neirinck v Commission, C‑17/07 P, EU:C:2008:134, paragraph 52, and of 5 March 2015, Gyarmathy v FRA, F‑97/13, EU:F:2015:7, paragraphs 48 and 49), that, in view of the need to reconcile the obligation to state the reasons on which a decision adversely affecting a person is based with observance of the secrecy surrounding the proceedings of the selection board, communication of the scores obtained in the various tests constitutes an adequate statement of the reasons on which the selection board’s decisions are based (judgments of 4 July 1996, Parliament v Innamorati, C‑254/95 P, EU:C:1996:276, paragraph 31; of 27 March 2003, Martínez Páramo and Others v Commission, T‑33/00, EU:T:2003:84, paragraph 50; and of 28 March 2012, Marsili v Commission, F‑19/10, EU:F:2012:47, paragraph 51).
24 With regard to decisions taken by a selection board and, by analogy, those taken by a selection committee created to fill a position for a member of the temporary staff (judgment of 11 December 2012, Trentea v FRA, F‑112/10, EU:F:2012:179, paragraph 90, and order of 9 July 2015, De Almeida Pereira v Eurojust, F‑142/14, EU:F:2015:83, paragraph 38), the duty to state reasons must be reconciled with observance of the secrecy surrounding the proceedings of selection boards by virtue of Article 6 of Annex III of the Staff Regulations. That secrecy was introduced with a view to guaranteeing the independence of selection boards and the objectivity of their proceedings, by protecting them from all external interference and pressures, whether these come from the European Union administration itself or the candidates concerned or third parties. Observance of that secrecy therefore precludes both disclosure of the attitudes adopted by individual members of selection boards and disclosure of any factors relating to individual assessments of candidates (judgments of 4 July 1996, Parliament v Innamorati, C‑254/95 P, EU:C:1996:276, paragraph 24; of 27 March 2003, Martínez Páramo and Others v Commission, T‑33/00, EU:T:2003:84, paragraph 44; and of 28 March 2012, Marsili v Commission, F‑19/10, EU:F:2012:47, paragraphs 48 and 49).
25 It should be pointed out in that respect that the secrecy of the proceedings of the selection board and, by analogy, those of a selection committee created to fill a position for a member of the temporary staff cover the examination of the abilities of the candidates which is carried out in a comparative way and is thus capable of disclosing factors relating to individual assessments of other candidates (judgments of 4 July 1996, Parliament v Innamorati, C‑254/95 P, EU:C:1996:276, paragraph 28; of 27 March 2003, Martínez Páramo and Others v Commission, T‑33/00, EU:T:2003:84, paragraph 47; and of 28 March 2012, Marsili v Commission, F‑19/10, EU:F:2012:47, paragraph 50). The proceedings of a selection board involve as a rule at least two separate stages, the first being an examination of the applications in order to select the eligible candidates to the competition and the second being an examination of the abilities of the candidates for the posts to be filled in order to draw up a list of suitable candidates (see judgment of 27 March 2003, Martínez Páramo and Others v Commission, T‑33/00, EU:T:2003:84, paragraph 46 and the case-law cited).
26 In the present case, the alleged inadequate reasoning relates to the failure to communicate the reasons given for the points awarded for the selection criteria, which fall within the second stage of the selection committee’s proceedings, following the first stage of those proceedings which consisted of ensuring that the eligibility criteria had been satisfied (see paragraph 2 above).
27 Contrary to what the applicant claims in the reply, it is irrelevant, in that respect, that his application was rejected after the points were awarded for the different selection criteria, before being invited to the interview and potentially to the written test set out in the vacancy notice.
28 Admittedly, it is clear from the case-law recalled in paragraphs 23 to 25 above that the statement of reasons has been found to be sufficient in relation to written or oral tests merely by the communication of the scores obtained, whereas, in the present case, the scores communicated to the applicant come from the assessment of criteria on the basis of his application. However, the comparison of diplomas provided by the candidates with the qualifications required by the vacancy notice may also give rise to a comparative assessment (see, to that effect, order of 9 July 2015, De Almeida Pereira v Eurojust, F‑142/14, EU:F:2015:83, paragraph 33). It should be noted that, under the case-law, a competition phase is of a comparative nature where it is not enough just to obtain the average in the test in question but where it is necessary to be among a predetermined number of candidates who obtained the highest marks in that test (see, to that effect, judgment of 14 December 2011, Commission v Pachtitis, T‑361/10 P, EU:T:2011:742, paragraph 34). In the present case, only eight candidates were to be invited to the interview following the evaluation of the selection criteria (see paragraph 4 above).
29 In addition, it is expressly stated in ENISA’s recruitment guidelines, sent to the Court by the applicant, and which ENISA does not dispute were in force in the present case, that ‘selection members make a comparative review of qualifications and professional experience against the ... [selection] criteria stated in the vacancy notice’. Moreover, in order to preclude the case-law recalled in paragraphs 23 to 25 above, the applicant himself states in the application that the scores awarded for the selection criteria had been awarded on the basis of a comparative evaluation of his job application against those of the other candidates.
30 Secondly, it must be stated that, contrary to what the applicant claims, allowing a statement of reasons limited to the communication of the scores obtained does not mean that the selection committee’s assessment is not subject to any control or any limitation.
31 It is clear from settled case-law that such a statement of reasons is not prejudicial to the candidates’ rights, since, first, it enables them to know how their performance was evaluated and to ascertain that they have not in fact obtained the number of marks required in order to be admitted to certain tests and, therefore, to assess whether it is appropriate to bring a legal action and, secondly, it enables the General Court to carry out a judicial review appropriate for that type of dispute (see, to that effect, judgments of 4 July 1996, Parliament v Innamorati, C‑254/95 P, EU:C:1996:276, paragraph 32; of 23 January 2003, Angioli v Commission, T‑53/00, EU:T:2003:12, paragraph 70; and of 28 March 2012, Marsili v Commission, F‑19/10, EU:F:2012:47, paragraph 52). Thus, that statement of reasons limited to the communication of the marks awarded does not lead to a complete absence of control of the selection committee’s assessments. It meets the requirements of the judicial review which those assessments are subject to, which is confined to declaring unlawful any manifest errors of assessment, having regard to the wide discretion enjoyed by the administration in that respect (see, to that effect, judgments of 27 March 2003, Martínez Páramo and Others v Commission, T‑33/00, EU:T:2003:84, paragraph 52, and of 12 February 2014, De Mendoza Asensi v Commission, F‑127/11, EU:F:2014:14, paragraph 96), and which will be conducted in the present action in the examination of the second plea in law, alleging manifest errors of assessment vitiating the assessments of the applicant’s knowledge and skills by the selection committee (see paragraphs 36 to 43 below).
32 It follows from the foregoing that, even though the information given in the decision rejecting the claim is succinct, ENISA complied with its duty to state reasons by communicating to the applicant the marks for each of the selection criteria laid down in the vacancy notice. It is true that, in order to make the contested decision more acceptable to the applicant, ENISA could have provided him with more information on the reasons which led to his application being rejected. However, the duty to state reasons cannot extend to requiring ENISA, as the applicant suggested in the reply, also to communicate the standard required to obtain the maximum mark for each selection criterion, which is based on qualifications considered to be more complete and of better quality than the applicant’s. Such standards form an integral part of the comparative assessments which the selection committee makes of the candidates’ respective merits and are therefore, despite the lack of direct and immediate disclosure of the candidates’ names, covered by the secrecy of the selection committee’s proceedings on the same basis as the assessments made by that committee (see, by analogy with the marking criteria of the selection boards, judgments of 27 March 2003, Martínez Páramo and Others v Commission, T‑33/00, EU:T:2003:84, paragraph 48, and of 18 September 2012, Cuallado Martorell v Commission, F‑96/09, EU:F:2012:129, paragraph 88).
33 That conclusion cannot be called into question by the applicant’s argument based on the Ombudsman’s decision. It is settled case-law that the conclusions of the Ombudsman do not bind the European Union Courts and may constitute only a mere indication of an infringement, by the institution concerned, of the principle of sound administration (judgments of 25 October 2007, Komninou and Others v Commission, C‑167/06 P, not published, EU:C:2007:633, paragraph 44, and of 11 April 2006, Angeletti v Commission, T‑394/03, EU:T:2006:111, paragraph 157). In any event, it should be pointed out that, in the Ombudsman’s decision, ENISA’s recommendation to provide the rejected candidates with relevant information in due course came about in a different factual context, in which ENISA communicated its marks to the complainant only after the latter had lodged a complaint before the Ombudsman and following the Ombudsman’s intervention, whereas, in the present case, it communicated its marks to the applicant regardless of any intervention on the part of the Ombudsman.
34 Consequently, the first plea must be rejected.
Second plea in law: manifest errors of assessment
35 The applicant claims that ENISA committed manifest errors of assessment of his knowledge and his skills in its examination of the following selection criteria: ‘High degree of organisational skills, accuracy and ability to analyse, compile and summarise complex financial information’, ‘Excellent negotiation and problem-solving skills’, ‘Strong ability to manage people and conflicts’, ‘Strong communication skills in English both orally and in writing’ (‘the linguistic criterion’) and ‘Ability to remain effective under a heavy workload and to meet programmatic deadlines consistently regardless of working environment’s changes’ (‘the effectiveness criterion’). He submits that for each of those criteria his skills were manifestly underestimated by the selection committee. The applicant states in his reply that his allegation of manifest errors of assessment is not based on his own assessment of the merits of his application, but stems from the objective inconsistency between the qualifications which he adduced and the marks awarded for each of the criteria concerned.
36 It should be observed, as ENISA did, that, according to settled case-law, in exercising the discretion available to it regarding an appointment or engagement, the administration must examine carefully and impartially all the relevant parts of each application and meticulously observe the requirements laid down in the vacancy notice, thus being required to reject any candidate who does not meet those requirements. The vacancy notice constitutes a legal framework which the administration imposes on itself and to which it must adhere strictly (see, to that effect, judgments of 30 October 1974, Grassi v Council, 188/73, EU:C:1974:112, paragraphs 26, 38 and 41, and of 18 September 2003, Pappas v Committee of the Regions, T‑73/01, EU:T:2003:237, paragraph 54 and the case-law cited).
37 In view of the wide discretion enjoyed, within the legal framework laid down in the vacancy notice, by the administration in comparing the merits of candidates and in assessing the interests of the service, review by the Court must be confined to the question whether, having regard to the considerations which influenced the administration in making its assessment, the latter remained within reasonable bounds and did not use its power in a manifestly incorrect way (judgments of 12 May 1998, Wenk v Commission, T‑159/96, EU:T:1998:86, paragraph 64, and of 4 July 2006, Tzirani v Commission, T‑45/04, EU:T:2006:185, paragraph 49).
38 In carrying out its review of legality, the Court cannot, therefore, substitute its assessment of the merits and qualifications of the candidates for that of the administration where there is nothing in the file to suggest that, in assessing those merits and qualifications, the administration committed a manifest error (judgments of 4 February 1987, Bouteiller v Commission, 324/85, EU:C:1987:59, paragraph 6, and of 4 May 2005 Sena v EASA, T‑30/04, EU:T:2005:161, paragraph 81). In relation to recruitment, it is for the unsuccessful candidate to prove, by means of specific evidence, that the administration has committed a manifest error of assessment (order of 9 July 2015, De Almeida Pereira v Eurojust, F‑142/14, EU:F:2015:83, paragraph 32).
39 In the present case, the applicant, in support of his arguments, in essence, merely repeats the professional experience set out in his application form and the replies which he gave to the questions concerning the selection criteria (pages 10 and 11 of his application form) in order to infer that his skills were manifestly underestimated. Such claims are not based on specific evidence, but only on the applicant’s assessment of the merits of his application, that is to say, on his personal conviction which cannot be regarded as evidence of a manifest error of assessment (see, to that effect, judgment of 23 January 2003, Angioli v Commission, T‑53/00, EU:T:2003:12, paragraph 94 and the case-law cited, and order of 25 February 2014, García Dominguez v Commission, F‑155/12, EU:F:2014:24, paragraph 59). In particular, with regard to the linguistic criterion, it has been held that the level claimed by an unsuccessful applicant of his knowledge of a language does not amount to conclusive evidence of a manifest error of assessment (judgment of 23 January 2003, Angioli v Commission, T‑53/00, EU:T:2003:12, paragraph 94).
40 With regard to applicant’s arguments before the Court, which may be regarded as complementing the answers given to the above questions — that is to say, essentially, the fact that he lived in the United Kingdom, which complements the linguistic criterion, and the detailing of his past professional experience, which complements the effectiveness criterion — it should be recalled that, in accordance with the case-law (see, to that effect, judgments of 20 June 1990, Burban v Parliament, T‑133/89, EU:T:1990:36, paragraphs 31 and 34, and of 28 November 2002, Pujals Gomis v Commission, T‑332/01, EU:T:2002:289, paragraphs 41 to 44), it is for the candidate in a competition to provide the selection board with all the information and documents which he regards as necessary for the purposes of examining his application. That case-law, applicable by analogy to the present case, means that the applicant cannot rely on the arguments at issue in order to establish that ENISA’s assessments are vitiated by a manifest error.
41 That is all the more so since it is specified in footnote No 7 under point 4 of the vacancy notice, regarding the evaluation of the selection criteria, that ‘candidates are recommended to give evidence of their knowledge by specific examples and/or detailed professional experience in the application form in order to be evaluated in the best possible way’ and that ‘to that purpose [they] are requested to be as detailed and as clear as possible in the description of their professional experience and specific skills and competences’. In addition, bearing in mind the fact that the applicant, for the criteria at issue for which he was awarded the mark of 3/5, essentially referred in a general way to his past professional experience, contrary to the above requirements to be precise and specific, it follows that the evaluations for the above mark are not implausible.
42 In any event, even if it can be demonstrated that the applicant actually possesses the qualities required by the selection criteria, which must be at an ‘excellent’, ‘high’ or ‘strong’ level for four out of the five selection criteria at issue, that does not establish, in itself, manifest errors invalidating the selection committee’s assessments. The mere fact that the applicant’s application showed the alleged merits does not exclude the possibility that, in the context of consideration of the comparative merits of candidates, other candidates may have greater merits (see, to that effect, judgment of 28 March 2012, Marsili v Commission, F‑19/10, EU:F:2012:47, paragraph 42, and order of 9 July 2015, De Almeida Pereira v Eurojust, F‑142/14, EU:F:2015:83, paragraph 33).
43 It follows from all the foregoing that the second ground of appeal must be rejected.
Third plea in law: infringement of the principles of equal treatment and of transparency
44 The applicant claims that, in view of the lack of any specification in the vacancy notice and of the fact that the threshold and the reasoning for setting it at 34.3 points was not published before the submission of the applications or, in any case, before the candidates’ applications were examined, the selection committee set that threshold in an arbitrary and unlawful way. It follows therefore that, when the selection committee relied on that threshold in order not to invite the applicant to an interview, it infringed the principles of equal treatment and transparency. The applicant adds that that conduct is reminiscent of the instance of maladministration found in the Ombudsman’s decision.
45 The applicant claims in his reply that the required points threshold should have been established by the selection committee before the applications were submitted, in such a way that the candidates knew the conditions for advancing to the next stage of the selection procedure before submitting their applications.
46 It is common ground that the threshold of 34.3 points (or 70% of 49 points) was not set by the vacancy notice. However, the vacancy notice contained a statement that the selection committee would subsequently set a points threshold which had to be exceeded before a candidate would be admitted to take the selection test (footnote No 7 under point 4 of the vacancy notice) and set out the maximum number of candidates invited to those tests, that is to say, eight candidates (point 4 of the vacancy notice). It is also common ground that the above threshold was set by the selection committee after the closing date for the submission of applications (see paragraph 8 above) and before the examination of those applications, and that it was communicated to the applicant in the decision rejecting his complaint.
47 It is clear from the applicant’s pleadings, in particular the reply which acknowledged that the minimal points threshold for being invited to an interview was fixed before the examination of the applications, that the applicant criticises ENISA for not having informed the candidates of that minimal threshold before lodging their applications so that they could be aware of that condition before taking part in the procedure, that is to say, in essence, for not having set that threshold in the vacancy notice.
48 It is indeed settled case-law that the function of the vacancy notice is, first, to give those interested the most accurate information possible on the nature of the conditions of eligibility for the post to be filled, in order to enable them to decide whether they should apply for it and, second, to establish the legal framework within which the comparative assessment of the merits of the candidates will be carried out. The latter function implies that sufficiently precise requirements must be set out to enable that comparison to be carried out and to justify the choices made (see, to that effect, judgments of 7 February 1990, Müllers v ESC, C‑81/88, EU:C:1990:50, paragraph 20; of 19 February 1998, Campogrande v Commission, T‑3/97, EU:T:1998:43, paragraph 100; and of 11 December 2012, Trentea v FRA, F‑112/10, EU:F:2012:179, paragraph 57).
49 However, the points threshold for being invited to an interview did not have to be established in advance and set down in the vacancy notice. It does not come under the conditions of eligibility for the post to be filled, enabling prospective candidates to assess whether it is appropriate to apply, nor is it part of a presentation of the different stages of the procedure which are sufficiently described in the vacancy notice; that presentation distinguishes the examination on the basis of the eligibility criteria, the examination on the basis of the selection criteria and the examination consisting of an interview and possibly a written test. On the contrary, setting such a threshold falls within the broad discretion and organisational power enjoyed by the administration when comparing the merits of candidates for a post as a member of the temporary staff (see, to that effect, judgment of 11 December 2012, Trentea v FRA, F‑112/10, EU:F:2012:179, paragraph 58). Such discretion makes it possible, inter alia, to accommodate a situation in which a large number of applications has been filed, by setting a points threshold limiting the number of candidates admitted to the final phase of the procedure.
50 In addition, as is apparent not only from point 9A of the guidelines for the members of the selection committee (see paragraph 6 above), according to which the selection committee must, at its first meeting, set the threshold for being invited to an interview or the maximum number of candidates invited, but also the vacancy notice itself setting that maximum number (point 4 of the vacancy notice and footnote No 7 under point 4), the threshold of 70% was established in the present case in order to limit, to the extent possible, the number of candidates invited to attend an interview to eight.
51 It follows therefore that ENISA did not set the points threshold to be exceeded before being invited to an interview in either an arbitrary or an unlawful way. It also follows that neither the ‘principle of transparency’, as claimed by the applicant, nor the principle of equal treatment were infringed, since ENISA states, without being contradicted, that it applied the threshold in question to all of the candidates for the post at issue.
52 That conclusion is not called into question by the applicant’s argument based on the Ombudsman’s decision for the same reasons as those invoked in paragraph 33 above, to which it may be added that, in the present case, contrary to what it was criticised for in that decision, ENISA applied its internal rules, in the present case the guidelines for the members of the selection committee (see paragraph 50 above).
53 It follows that the third plea in law must be rejected and that, therefore, the claim for annulment of the contested decision must be dismissed.
The claim for damages
54 The applicant submits that, because of the instances of illegality vitiating the contested decision, he suffered significant non-material harm. In particular, the inadequate reasoning and the other irregularities which vitiated the selection procedure, and the resulting loss of confidence in ENISA severely affected him and showed a clear lack of respect for him. The applicant concludes that the annulment of the contested decision is not sufficient to compensate for that harm and defers to the wisdom of the Court to determine the appropriate amount of damages which should not be lower than EUR 5 000.
55 It must be noted that, in a claim for damages brought by an official or other staff member, for an EU institution, body, office or agency to incur non-contractual liability for unlawful conduct, a series of conditions must be met, namely, the conduct of which the institution is accused must have been unlawful, the damage must be real and a causal connection must exist between that conduct and the damage in question. If one of those conditions is not met, the action must be dismissed in its entirety, without there being any need to consider the other conditions for incurring non-contractual liability (see, to that effect, judgments of 1 June 1994, Commission v Brazzelli Lualdi and Others, C‑136/92 P, EU:C:1994:211, paragraph 42, and of 17 May 2017, PG v Frontex, T‑583/16, not published, EU:T:2017:344, paragraph 97).
56 It must be pointed out, as ENISA did, that the claim for compensation is based solely on the acts that would be ruled unlawful should the three pleas in support of the claims for annulment be upheld. Since those pleas have been rejected, the condition that the conduct of which the institution is accused must have been unlawful is not met, so that the claim for compensation must be dismissed.
57 It follows that the present action must be dismissed in its entirety.
Costs
58 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by ENISA.
On those grounds,
THE GENERAL COURT (Ninth Chamber)
hereby:
1. Dismisses the action;
2. Orders Mr Grigorios Stamatopoulos to pay the costs.
Gervasoni | Madise | da Silva Passos |
Delivered in open court in Luxembourg on 8 May 2019.