Provisional text
JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
21 November 2018(*)
(Civil service – Officials – Recruitment – Competition notice EPSO/AST-SC/03/15 – Refusal to allow participation in the assessment tests – Request for review – Refusal to forward that request to the selection board for the open competition on the grounds that it was out of time – Division of competences between EPSO and the competition selection board)
In Case T‑587/16,
HM, represented by H. Tettenborn, lawyer,
applicant,
v
European Commission, represented by T. Bohr and G. Gattinara, acting as Agents,
defendant,
APPLICATION on the basis of Article 270 TFEU for the annulment, first, of the decision of the European Personnel Selection Office (EPSO) of 17 August 2015 not to take into account the request for review of the decision of the selection board not to allow the applicant to participate in the next stage of Competition EPSO/AST-SC/03/15-3 and, secondly, of the ‘implied decision’ of the selection board not to grant that request,
THE GENERAL COURT (Fourth Chamber),
composed of H. Kanninen, President, J. Schwarcz (Rapporteur) and C. Iliopoulos, Judges,
Registrar: E. Coulon,
gives the following
Judgment
Background to the dispute
1 On 8 January 2015, the European Personnel Selection Office (EPSO) published in the Official Journal of the European Union a notice of open competition, based on tests, EPSO/AST-SC/03/15-3, to draw up reserve lists of secretaries and clerks (grades SC 1 and SC 2) in several fields (‘the open competition’) (OJ 2015 C 3A, p. 1).
2 On 12 February 2015, the applicant, HM, submitted an application for the open competition. She chose the field of ‘secretary’ at grade SC 2, but accepted the possibility of her application being reassigned, if necessary, to grade SC 1.
3 Paragraph 2 of Annex III to the notice of open competition lists three separate requirements under the specific admission criteria in relation to qualifications, of which only the last is relevant in the present case. That requirement is worded as follows:
‘Professional training (equivalent to European Qualification Framework Level 4) of at least one year, followed by a minimum of three years’ professional experience. Both the training and experience must be mostly related to the nature of the duties.’
4 The applicant took the admission tests on 25 March 2015. By letter of 11 June 2015, she was informed by EPSO that she had been successful in those tests, having obtained the minimum mark required in each. In that same letter, EPSO stated that the next stage would be for the selection board for the open competition (‘the selection board’) to examine candidates’ electronic applications in order to verify their eligibility.
5 There is disagreement between the parties as to whether it was on 30 July 2015, or on a later date, that the applicant was informed via an electronic communication on her EPSO account that the selection board had examined her online application and had decided not to admit her to the next stage of the open competition. The selection board based its decision (‘the decision rejecting the application’) on the fact that the applicant did not have the required qualifications, namely that although she had provided evidence of professional training of at least one year, that training was not mostly related to the nature of the duties to which the open competition related.
6 There is further disagreement between the parties as to the dates on which the applicant consulted her EPSO account. While the applicant maintains that she had checked her account regularly and, most recently, on 29 July and 4 August 2015, but had found no new messages or communications there, the European Commission submits that the electronic log files of the IT system managing EPSO accounts showed that it was not until 8 August 2015, at 20:41, that the applicant checked her account, to which the selection board’s decision had been uploaded nine days earlier.
7 On 7 August 2015, the applicant received from EPSO an automatic electronic message reading as follows:
‘Date: Friday 7 August 2015, 15:26 […]
Subject: You have a new message in your EPSO account. …
This an automatically generated email. Please do not reply to this message.
Dear candidate,
This notification is related to your application to an EU Careers competition or selection procedure organised by [EPSO].
A new message has been published in your EPSO Account.
You can access your account directly by visiting: …
Kind regards,
NB: You are reminded that you must check your EPSO account at least twice a week as indicated in the Guide to Open Competitions or in the Call for expression of interest. All official communication is sent via the EPSO account and only the dates of the letters published there are legally binding.
This email notification is an additional service from EPSO from which you can not derive any rights.
Email notifications are sent at the same time as new messages are posted in your EPSO account. For reasons beyond our control, delivery of email notifications may in some cases be delayed. Complaints citing late delivery of an email notification will not be taken into account.
Your EPSO Team.’
8 On 13 August 2015, the applicant made a request under Section 3.4.3 of the general rules governing open competitions (OJ 2014 C 60 A, p. 1) (‘the General Rules’) for a review of the selection board’s decision rejecting the application (‘the request for review’). She maintained, in essence, that the electronic notification via her EPSO account of the decision rejecting the application did not contain sufficient grounds, in that it merely repeated the wording of the notice of open competition. In addition, she stated, first, that she had been authorised by a selection board in a previous competition to sit the assessment tests in that competition which, she said, also related to secretarial duties and which required a higher level of qualifications than those required under the open competition. Secondly, the applicant claimed that, in a situation such as this, specific reasons needed to be given to explain why the selection board had not followed the assessment made in the previous competition.
9 By email of 17 August 2015, EPSO, acting through Ms NH, team leader for candidates’ relations, informed the applicant that her request for review could not be taken into consideration as it had not been made within the time limit of 10 calendar days laid down by the General Rules (‘the EPSO decision of 17 August 2015’). EPSO informed the applicant that the time limit had started to run on 30 July 2015, following the electronic communication via her EPSO account.
10 On 1 September 2015, the applicant sent an email to EPSO asking that her request for review be forwarded immediately to the selection board. She relied, in that regard, on Section 3.4.3 of the General Rules, according to which requests for review will be ‘submitted for consideration to the same body that adopted the contested decision (either the selection board or EPSO).’ She maintained that, since the request for review related to the selection board’s decision rejecting the application, it should, in any event, have been submitted to the selection board.
11 On 16 September 2015, EPSO informed the applicant that her request for review, referred to in paragraph 10 above, would not be taken into consideration as it had been made out of time. By email of 20 September 2015, the applicant asked once more whether her request for review had been forwarded to the selection board.
12 On 25 September 2015, the applicant received the following reply from EPSO:
‘as already explained in my previous letters, we (EPSO), acting within our remit, only forward to the selection board those complaints [Beschwerden] which have been made within the relevant time limit. Since that is not the case with your complaint [Beschwerde], it has not been forwarded to the selection board.’
13 On 4 November 2015, the applicant lodged a written complaint against the ‘decisions’ of 17 August, 16 September and 25 September 2015, by which EPSO had informed her that her request for review would not be taken into consideration.
14 By decision of 17 March 2016, the applicant’s complaint was rejected. The German translation of that decision was sent to her on 18 April 2016.
Procedure and forms of order sought
15 By application lodged at the Registry of the Civil Service Tribunal of the European Union on 23 March 2016, the applicant brought the present action. The case was registered under number F‑17/16.
16 By letter lodged at the Registry of the Civil Service Tribunal on 6 April 2016, the applicant requested anonymity under Article 48(1) of the Rules of Procedure of the Civil Service Tribunal. By letter of 28 April 2016, the Registry of the Civil Service Tribunal informed the applicant that that request had been granted.
17 Pursuant to Article 3 of Regulation (EU, Euratom) 2016/1192 of the European Parliament and of the Council of 6 July 2016 on the transfer to the General Court of jurisdiction at first instance in disputes between the European Union and its servants (OJ 2016 L 200, p. 137), the present case was transferred to the General Court as it stood on 31 August 2016. The case was accordingly registered under number T‑587/16 and assigned to the Fourth Chamber.
18 Since the parties had not requested a hearing under Article 106(1) of the Rules of Procedure of the General Court, the Court (Fourth 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.
19 On 5 February 2018, the Court put written questions to the Commission. The Commission’s replies were lodged at the Court Registry within the prescribed period. On 13 March 2018, the applicant submitted her observations in that regard.
20 The applicant claims that the Court should:
– annul the EPSO decision of 17 August 2015;
– annul the ‘implied decision’ of the selection board not to grant the request for review;
– order the Commission to pay the costs.
21 The Commission contends that the Court should:
– dismiss the application;
– order the applicant to pay the costs.
Law
Admissibility of the action
22 The Commission submits, in essence, that the action against the EPSO decision of 17 August 2015 is inadmissible, since it relates neither to the decision rejecting the application nor to the selection board’s response to the request for review. According to the Commission, only the decision rejecting the application adversely affects the applicant, in that it changed her legal situation and directly and immediately adversely affected her interests. The EPSO decision of 17 August 2015 does not alter this contention, since it relates only to a refusal to take the request for review into consideration for the formal reason of being out of time. The Commission claims that the decision by EPSO is ‘merely confirmative’, that it has no autonomous content and that it does not replace the decision rejecting the application. Therefore, according to the Commission, that decision cannot be the object either of a complaint or of proceedings before the Court.
23 The Commission submits that the applicant had a clear means of legal protection available to her. The Commission considers that the applicant had the option either of challenging the decision rejecting the application directly before the EU Courts under Article 270 TFEU, without the need to first file a complaint, or of filing a complaint against it. According to the Commission, it was not, however, permissible for the applicant to choose a ‘third way’ and bring proceedings against an act that did not adversely affect her. The Commission adds that the applicant had also had the legal possibility of a review by the selection board of the decision rejecting the application.
24 The Commission claims that, even if the EPSO decision of 17 August 2015 amounted to an act which adversely affected her, the applicant did not, in any event, have a real and current interest in bringing proceedings in the present case. It is clear that any annulment of the EPSO decision of 17 August 2015 would not be of any benefit to the applicant as she had not challenged the decision rejecting the application. Accordingly, the Commission claims that, even if the EPSO decision of 17 August 2015 were to be annulled, the selection board would be unable to comment on the content of the decision rejecting the application. In addition, the Commission does not consider the reference to the order of 3 April 2001, Zaur-Gora and Dubigh v Commission (T‑95/00 and T‑96/00, EU:T:2001:114) to be relevant since, in the present case, there was no new decision of the selection board based on the request for review, meaning that no new time limit could start to run.
25 Finally, the Commission submits that the applicant’s claim that the so-called ‘implied decision’ of the selection board should be annulled is inadmissible as it infringes the principle of consistency between the complaint and the application. In any event, that claim by the applicant must be rejected since Article 90(1) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) does not provide that a request for review of the decision of a selection board can be impliedly rejected. Since the selection board does not form part of the administration and is independent of it, its silence cannot be interpreted as an ‘implied negative decision’. What the consequences would be in the absence of a reply from a selection board to a request for review is, in the Commission’s view, a purely hypothetical question.
26 The applicant disputes the Commission’s arguments.
27 The Court considers it appropriate to examine, in the first place, the admissibility of the second head of claim and, in the second place, the admissibility of the first head of claim.
Admissibility of the second head of claim
28 As a preliminary point, it should be noted that the applicant’s action is directed against, first, the EPSO decision of 17 August 2015 and, second, a so-called ‘implied decision’ by the selection board not to grant the request for review.
29 In that regard, it should be recalled that, according to settled case-law, when a candidate in a competition requests the review of a decision taken by a selection board, it is the decision taken by that selection board after reviewing the candidate’s circumstances which constitutes the act adversely affecting the candidate within the meaning of Article 90(2) or, as appropriate, Article 91(1) of the Staff Regulations (see, to that effect, order of 3 April 2001, Zaur-Gora and Dubigh v Commission, T‑95/00 and T‑96/00, EU:T:2001:114, paragraph 26, and judgment of 13 December 2006, Heus v Commission, T‑173/05, EU:T:2006:392, paragraph 19).
30 In the present case, it is common ground that it was EPSO that adopted the decision of 17 August 2015. It is clear from the Commission’s written statements and its replies to the questions put by the Court that the selection board was unaware of the existence of the applicant’s request for review. In that regard, the Commission expressly admitted that the request for review made by the applicant was not among the requests for review forwarded to the selection board. It is also common ground that the selection board was not specifically informed retrospectively of the EPSO decision of 17 August 2015 not to take the request into consideration. At the very most it was informed ‘generally’ of EPSO’s refusal to allow requests for review submitted out of time.
31 In those circumstances, it must be concluded that, since the selection board was unaware of the existence of the applicant’s request for review, it cannot be deemed to have taken an ‘implied decision’ to reject it.
32 The second head of claim is thus devoid of purpose and must, therefore, be rejected as inadmissible.
Admissibility of the first head of claim
33 As regards the Commission’s contentions that the EPSO decision of 17 August 2015 did not constitute an act adversely affecting the applicant, that it was merely confirmative, that it had no autonomous content and that it did not replace the decision rejecting the application, it must be stated that, by the decision of 17 August 2015, EPSO rejected the applicant’s request for review. However, it follows from the case-law cited in paragraph 29 above that, had a decision rejecting a request for review been made by the selection board, it would have adversely affected the applicant and would, accordingly, have been open to challenge.
34 If, as in the present case, a request for review made by a candidate is rejected by EPSO for being out of time, that candidate has every interest in having the lawfulness of that rejection reviewed by the EU courts. Such a rejection prevents the selection board from examining the request for review itself, but its annulment by the Court would lead to a new decision being taken in relation to the request.
35 It should be recalled that Section 3.4.3 of the General Rules expressly provides that, if a request for review receives a positive response, the individual concerned will be reintegrated into the competition at the step where he or she was excluded, regardless of how far the competition has progressed. The fact that the open competition process may have been finalised in the meantime does not affect that situation since the applicant may also retain an interest in obtaining a decision on the lawfulness of the selection procedure at issue to prevent its alleged unlawfulness recurring in the future in the event of a similar selection procedure to that at issue (see, to that effect, judgment of 7 June 2007, Wunenburger v Commission, C‑362/05 P, EU:C:2007:322, paragraph 50). It is not impossible that EPSO might play a similar role in a comparable selection procedure in future. In those circumstances, the Commission cannot rely on the inadmissibility of the action on the grounds that the open competition procedure had been finalised in the meantime.
36 In the light of the foregoing, it must be concluded that the EPSO decision of 17 August 2015 constitutes an act adversely affecting the applicant and that the applicant has a sufficiently clear, real and current interest in having that decision annulled (see, to that effect, judgment of 18 September 2008, Angé Serrano and Others v Parliament, T‑47/05, EU:T:2008:384, paragraph 65).
Substance
37 In support of the action, the applicant relies on four pleas in law, the first alleging that EPSO lacked competence to adopt the decision of 17 August 2015, the second alleging the infringement of the principle of legal certainty, the third alleging an error in the classification of the request for review and the fourth alleging an error in the assessment of compliance with the time limit in which the request for review had to be made.
38 By her first plea in law, the applicant submits, in essence, that, since her request for review was made in relation to the decision rejecting the application, it should have been forwarded to the selection board that had adopted that decision, in accordance with the clear wording of the General Rules. More specifically, she takes the view that EPSO lacks competence to assess whether a request for review has been made out of time since its only role is to provide ‘administrative support’ to selection boards for open competitions. At the very most, it has the authority to report to the selection board that a time limit has been exceeded. According to the applicant, there is no legal act that allows EPSO to take the decision in question in the place of the selection board. Neither can such an approach be seen in the previous practice of the administration. A different interpretation would not be consistent with the role of EPSO in open competitions. The applicant submits that it is a general principle of administrative law that appeals against decisions of an authority are to be ruled on by that authority itself or by a higher authority. Finally, the applicant claims that EPSO was unable to provide reasons for the decision of 17 August 2015. It follows that EPSO was not able to assume the role of the selection board in that respect.
39 The Commission asserts, in essence, that EPSO and the selection board are bound by the wording of the notice of open competition in question and by the General Rules. The Commission also notes that EPSO and the selection board cannot derogate from those provisions without infringing the lawfulness of the competition and, in particular, the principle of equal treatment of candidates. According to the Commission, the wording of the General Rules expressly provides that, in accordance with the division of competences, it is for either the selection board or for EPSO to decide how to respond to a request for internal review. It follows that EPSO is also competent to take a decision about a request for review.
40 The Commission submits that, pursuant to Article 7(1) of Annex III to the Staff Regulations, as well as to Decision 2002/620/EC of the European Parliament, the Council, the Commission, the Court of Justice, the Court of Auditors, the Economic and Social Committee, the Committee of the Regions and the European Ombudsman of 25 July 2002 establishing [EPSO] (OJ 2002 L 197, p. 53), and to Decision 2002/621/EC of the Secretaries-General of the European Parliament, the Council and the Commission, the Registrar of the Court of Justice, the Secretaries-General of the Court of Auditors, the Economic and Social Committee and the Committee of the Regions, and the Representative of the European Ombudsman of 25 July 2002 on the organisation and operation of [EPSO] (OJ 2002 L 197, p. 56), it is for EPSO to organise competitions to meet the personnel needs of the EU institutions and to ensure that uniform standards are applied in those competitions.
41 The Commission notes in that regard that EPSO’s role is to provide administrative support to the selection board, which includes monitoring compliance by candidates with deadlines in the context of the review procedure. The judgment of 14 December 2011, Commission v Pachtitis (T‑361/10 P, EU:T:2011:742) confirms that division of competences. The Commission maintains that EPSO was therefore authorised to reject requests for internal review which did not comply with deadlines. Such a role accords with both the spirit and the purpose of the standards mentioned above, since it lightens the workload placed on the selection board. According to the Commission, Section 3.4.3 of the General Rules should be interpreted to mean that ‘the same body is to adjudicate on the content of the decision for review (that is to say, on the admissibility on the substance of requests for review)’. In the present case, there is no question of a ‘review’ of the content of the decision rejecting the application, only of the formal aspects. There is no reason to think that that principle also applies to the formal aspects such as compliance with deadlines. Finally, according to the Commission, EPSO’s competences cannot be dependent on the way in which its decisions are reasoned.
42 In response to the Court’s written questions referred to in paragraph 19 above, the Commission also submitted, in essence, that the selection board had been informed ‘generally’ of EPSO’s refusal to grant those requests for review submitted out of time. According to the Commission, under EPSO’s standard procedure the selection board for a competition is not informed individually of requests made out of time. That is due, in particular, to the fact that such requests sometimes arrive long after the meeting at which the selection board for the competition has adjudicated on those requests submitted within the time limit. In addition, the Commission referred to the legal bases and the arguments already set out in paragraph 40 above relating to the division of competences between EPSO and the selection board. That division of competences is, according to the Commission, implemented in Section 3.4.3 of the General Rules, EPSO being authorised to declare requests for review submitted outside the time limit inadmissible without the need to forward them to the selection board. Finally, the Commission refers to the principle of good administration, to the interest of the service and to the requirement to meet reasonable deadlines.
43 In her observations, the applicant disputes the Commission’s allegations.
44 The Court notes that Section 3.4.3 of the General Rules, entitled ‘Internal review procedure’, is worded as follows:
‘You can request a review of any decision of the selection board or EPSO that directly and immediately affects your legal status in the competition (that is to say, that establishes your results and/or determines if you can proceed to the next stage of the competition or are excluded therefrom).
Requests for review may be based on one or more of the following reasons:
– a material irregularity in the competition process,
– non-compliance, by the selection board or EPSO, with the rules governing the competition procedure as laid down by the Staff Regulations, the notice of competition, these general rules, and case-law.
Please note that you are not allowed to challenge the validity of the selection board’s assessment concerning the quality of your performance in a test. …
Procedure
Submit your request [for review] within 10 calendar days from the date when the decision you wish to contest is uploaded in your EPSO account:
– either via the contact form on EPSO’s website,
– or by post to [EPSO].
…
You must clearly indicate the decision you wish to contest, and you must state the grounds on which your request is based.
The internal review procedure is managed by the legal team of EPSO.
Upon receipt of your request we will send you an acknowledgment of receipt within 15 working days.
Your request will then be analysed and submitted for consideration to the same body that adopted the contested decision (either the selection board or EPSO). The selection board or EPSO will then take a decision based on your request. After a decision is taken, a reasoned reply addressing your arguments will be prepared by the legal team.
We will examine your request thoroughly, fairly and objectively. The procedure may take several weeks. We will send you a reasoned decision as swiftly as possible, via your EPSO account.
If your request for review receives a positive response, you will be reintegrated into the competition at the step where you have been excluded regardless of how far the competition has progressed in the meantime, so that your rights may be safeguarded.’
45 The statement ‘your request will then be analysed and submitted for consideration to the same body that adopted the contested decision (either the selection board or EPSO)’ is accompanied by a footnote that reads as follows: ‘This is due to the division of competences imposed by the Staff Regulations’.
46 In that regard, it is common ground that the body that took the ‘contested decision’, in the words of the abovementioned provision, namely the decision rejecting the application, was the selection board and not EPSO. Pursuant to Section 3.4.3 of the General Rules, it was therefore for the selection board and not EPSO to adjudicate on the applicant’s request for review.
47 The fact that the applicant’s request for review was rejected for purely formal reasons is of no consequence in that respect. The General Rules make no distinction between a rejection based on substance and a rejection based on form. On the contrary, it is apparent from Section 3.4.3 of the General Rules that the scope of the competences of the EPSO legal team is limited to the management of the internal review procedure. In that context, the only function of the EPSO legal team was to send the applicant ‘an acknowledgment of receipt within 15 working days’ of receiving the request for review.
48 It must therefore be held that there was no legal basis for EPSO, acting through Ms H, to reject the request for review made by the applicant.
49 That finding is unaffected by the Commission’s other arguments.
50 First, the Commission itself asserts that EPSO and the selection board are bound by the wording of the notice of open competition and by the General Rules. However, as has been noted in paragraphs 44 to 48 above, it is clear from the General Rules that the selection board was the only body competent to take a decision concerning the applicant’s request for review. Therefore, despite the Commission’s claims to the contrary (see paragraph 39 above), the present case is not concerned with a derogation from the provisions of the General Rules and a consequential infringement of the lawfulness of the competition and, in particular, of the principle of equal treatment of candidates.
51 Secondly, in relation to the Commission’s arguments set out in paragraphs 40 to 42 above that it is EPSO’s role to organise competitions to meet the personnel needs of the EU institutions and to ensure that uniform standards are applied in those competitions and, within that context, to provide administrative support to the selection board, it is not possible to infer from that that EPSO could decide by itself to refuse to take the applicant’s request for review into consideration notwithstanding the clear wording of the General Rules attributing that competence to the selection board.
52 First of all, there is nothing in the wording of Article 7(1) of Annex III to the Staff Regulations, which governs the procedure for competitions, that would lead to the conclusion that EPSO has such a competence in cases where the decision to which the request for review relates was adopted by the selection board. Even though it follows from that article that the EU institutions entrust EPSO with responsibility for taking the necessary measures to ensure that uniform standards are applied in the selection procedures for officials of the Union and in certain assessment and examination procedures, it cannot be inferred that EPSO could, in that context, arrogate the power to adjudicate on a request for the review of a decision of the selection board.
53 Similarly, it should be noted that, in accordance with Article 7(2) of Annex III to the Staff Regulations, read in the light of the decisions cited by the Commission (see paragraph 40 above), the responsibilities allocated to EPSO fall within the areas of organising open competitions, providing technical support to institutions for internal competitions, determining the contents of examinations organised by the institutions and defining and organising the assessment of linguistic ability. Despite the Commission’s assertions to the contrary, the decision adopted by EPSO refusing to take into consideration a request for the review of a decision adopted by the selection board cannot be considered as a mere matter of technical support or assistance given to the selection board nor as falling within one of EPSO’s other responsibilities referred to above.
54 It should also be noted in that regard, as the applicant rightly submits, that the circumstances of the present case differ fundamentally from a situation where, for example, EPSO had merely informed the selection board that the time limit fixed for lodging a request for review had been exceeded, but had left it up to the selection board to choose the approach to be taken in each case submitted to it. Moreover, it must be noted that, in a situation such as the one in the present case, whether a request for review has been made out of time is not necessarily a simple procedural decision, as the Commission seems to imply, but can turn out to be complex, as it may depend on an assessment of technical matters such as those needed to determine the exact date when the candidate concerned was informed of the selection board’s decision.
55 Next, it must be held that the judgment of 14 December 2011, Commission v Pachtitis (T‑361/10 P, EU:T:2011:742, paragraphs 52 et seq.), on which the Commission relies, does not support the argument that EPSO could itself refuse to take the applicant’s request for review into consideration. In that regard, first, it should be noted that the factual situation which gave rise to that judgment differed from that in the present case since it did not concern the response to a request for review made pursuant to the General Rules but the determination of who was competent to define the content of preselection tests within the context of an open competition.
56 Secondly, it is apparent from the judgment of 14 December 2011, Commission v Pachtitis (T‑361/10 P, EU:T:2011:742), that EPSO did not have the alleged competence referred to above. On the contrary, it was held, in paragraph 52 of that judgment, in essence, that both the choice and the assessment of the subjects of the questions set during a competition fell outside the remit of EPSO and, in paragraph 54 of the same judgment, that the relevant provisions conferred on EPSO the role of assisting the selection board in the conduct of a competition, in that it was responsible for developing the selection methods and techniques.
57 Finally, for the sake of completeness, it must be observed that the Commission has not, in the present case, cited the specific provisions of the decisions to which it refers as being the basis for its claims relating to EPSO’s competence to refuse to take the applicant’s request for review into consideration (see paragraph 40 above). In any event, it should be noted that those same decisions rank below the provisions of the Staff Regulations (see, to that effect, judgment of 14 December 2011, Commission v Pachtitis, T‑361/10 P, EU:T:2011:742, paragraph 53). Therefore, the general references put forward by the Commission do not affect the conclusion that the competence referred to above fell outside the remit of EPSO.
58 In those circumstances, the Commission has failed to show that EPSO was competent to reject the applicant’s request for review itself on the ground that the request was, in its view, made out of time. EPSO’s decision cannot be said to accord with the spirit or the purpose of the standards cited by the Commission, on the ground that the decision supposedly ‘lightened the workload placed on the selection board’. In that regard, it is sufficient to note that such considerations cannot prevail over the clear wording of the provision for the division of competences, in this case, Section 3.4.3 of the General Rules.
59 What is more, the various other arguments put forward by the Commission referring to factors such as the need to meet reasonable deadlines and to act in the interest of the service or, more broadly speaking, in accordance with the principle of good administration enshrined in Article 41(1) of the Charter of Fundamental Rights of the European Union, must also be rejected as ineffective in the present case.
60 First of all, as the applicant asserts in her observations on the Commission’s replies to the questions put by the Court, the Commission has not confirmed, and still less proven, that, in the present case, the applicant’s request for review was sent to EPSO long after the meeting at which the selection board adjudicated on those requests for review submitted within the time limit. In relation to the Commission’s claim concerning the selection board’s workload had it been expected to attend further meetings in order to examine requests that had clearly been made out of time, first, it must be noted that, for some of those requests, the examination would not be particularly time-consuming. Secondly, and in any event, for the selection board to form an opinion in that regard falls within the remit of good administration.
61 Furthermore, the wording of Section 3.4.3 of the General Rules expressly provides that examination of requests for review should be made thoroughly, fairly and objectively and that the procedure ‘may take several weeks’. It also states expressly that, if a request for review receives a positive response, the individual concerned will be reintegrated into the competition at the step where he or she was excluded ‘regardless of how far the competition has progressed in the meantime’. This is linked to the need to safeguard the rights of the individuals concerned. All these elements lead to the conclusion that, in the present case, Article 41(1) of the Charter of Fundamental Rights cannot be interpreted as requiring, for reasons of good administration, a departure from the General Rules in relation to the competence of the selection board to form an opinion on the request for review.
62 Finally, as regards the Commission’s argument that the selection board had been informed ‘generally’ of EPSO’s refusal to grant requests for review submitted out of time, it must be held that, as the applicant maintains in her observations on the Commission’s replies to the Court’s questions, this argument is not supported by any evidence, direct or indirect. In any event, even assuming that the selection board was actually informed, generally, that EPSO was going to proceed in that manner, it remains the case that a general notification was not sufficient to allow the selection board to exercise the competence conferred upon it by Section 3.4.3 of the General Rules.
63 Having regard to all of the foregoing, the applicant’s first plea must be upheld. Therefore, the EPSO decision of 17 August 2015 must be annulled for lack of competence, without there being any need to rule on the applicant’s other pleas or on the admissibility of the documents which do not relate to EPSO’s competences and which were presented by the Commission for the first time in the annex to the rejoinder or at the time of the replies to the Court’s questions.
Costs
64 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 Commission has, in the main, been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1. Annuls the decision of the European Personnel Selection Office (EPSO) dated 17 August 2015 not to take into account the request for review of the decision of the selection board not to allow HM to participate in the next stage of Competition EPSO/AST-SC/03/15-3;
2. Dismisses the action as to the remainder;
3. Orders the European Commission to pay the costs.
Kanninen | Schwarcz | Iliopoulos |
Delivered in open court in Luxembourg on 21 November 2018.
[Signatures]