JUDGMENT OF THE GENERAL COURT (Tenth Chamber)
20 March 2024 (*)
(Civil service – Officials – Recruitment – Notice of competition – Open competitions EPSO/AD/323/16 and EPSO/AD/324/16 – Decision not to include the applicant on the reserve list – Language arrangements – Annulment of the competition notice – Consequences – Interest in bringing proceedings – Non-material damage)
In Case T‑623/18,
EO, represented by E. Metodieva and V. Panayotov, lawyers,
applicant,
v
European Commission, represented by D. Milanowska, L. Vernier and G. Gattinara, acting as Agents,
defendant,
THE GENERAL COURT (Tenth Chamber),
composed of O. Porchia (Rapporteur), President, M. Jaeger and L. Madise, Judges,
Registrar: V. Di Bucci,
having regard to the written part of the procedure, and in particular:
– the decision of 7 January 2019 to stay the proceedings pending the final decision in the case that gave rise to the judgment of 26 March 2019, Commission v Italy (C‑621/16 P, EU:C:2019:251);
– the decision of 20 December 2019 to stay the proceedings pending the final decision in the case that gave rise to the judgment of 9 September 2020, Spain and Italy v Commission (T‑401/16 and T‑443/16, not published, EU:T:2020:409);
– the decision of 12 January 2021 to stay the proceedings pending the final decision in the case that gave rise to the judgment of 16 February 2023, Commission v Italy and Spain (C‑635/20 P, EU:C:2023:98);
having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,
gives the following
Judgment
1 By her action based on Article 270 TFEU, the applicant, EO, seeks, first, the annulment of (i) the decision of 12 December 2017 by which the selection board for competition EPSO/AD/323/16 did not include her name on the reserve list drawn up at the end of the selection procedure (‘the decision not to include her on the reserve list’), (ii) the decision of 9 July 2018 rejecting her complaint against that decision (‘the decision rejecting the complaint’) and (iii) the ‘results’ of that reserve list and, secondly, compensation for the material and non-material damage which she claims to have suffered as a result of the non-inclusion of her name on that reserve list.
Background to the dispute and events subsequent to the bringing of the action
2 On 26 May 2016, the European Personnel Selection Office (EPSO) published in the Official Journal of the European Union the notice of open competitions EPSO/AD/323/16 for the constitution of reserve lists of administrators entrusted with the duties of investigators (AD 7) in the fields ‘1 – Investigators: EU expenditure, anti-corruption; 2 – Investigators: Customs and trade, tobacco and counterfeit goods’, and EPSO/AD/324/16, for the constitution of a reserve list of administrators performing the following duties: ‘Investigators (AD 9): Team leaders’ (OJ 2016 C 187 A, p. 1; ‘the competition notice’). The European Commission, ‘mainly the European Anti-Fraud Office [(OLAF)]’, would recruit new members of the European Union civil service from the lists in question.
3 In the section of the competition notice entitled ‘am I eligible to apply?’, which sets out the conditions that must be met by the persons concerned when they validate their applications, the specific conditions for eligibility include the requirements of a ‘minimum level – C1 in 1 of the 24 official EU languages’ designated as ‘language 1’ of the competition, and a ‘minimum level – B2 in English, French or German’. That second language, designated as ‘language 2’ of the competition, must be different from the language chosen by the candidate as language 1. Under the same heading, it is indicated, in essence, that those second languages are the main working languages of the Commission and that they were determined in the interests of the service, which requires that new recruits must be immediately able to work and communicate effectively in their daily work. Furthermore, Annex II to the competition notice stated that the restriction of the choice of second language was also justified by the nature of the selection procedure and by budgetary and operational constraints.
4 In the same section, the competition notice states that ‘a good understanding of English (written and spoken) is required for recruitment in these two competitions’.
5 It is also stated that ‘you must fill in your application form in English, French, or German’.
6 In the section of the competition notice entitled ‘how will I be selected?’, it is indicated, in point 1, that three eliminatory computer-based ‘multiple-choice question’ (MCQ) tests, namely verbal reasoning, numerical reasoning and abstract reasoning, would constitute the first step in the selection procedures concerned. Those tests would be organised in the language chosen by each candidate as the first language.
7 Point 2 of that part, concerning the ‘selection based on qualifications’, which constitutes the second stage of the competitions concerned, stated that eligibility requirements would be verified, first, on the basis of the information provided in the online application form and, secondly, for eligible candidates only, on the basis of the information provided in the application form’s ‘Talent Screener’ tab.
8 Furthermore, according to point 3 of that part, following the ‘selection based on qualifications’, the candidates who have obtained the highest total marks will be invited to sit, in the language they have chosen as their second language of the competition, the assessment centre tests, the last stage of the competition, designed to assess eight ‘general competencies’ and the ‘specific competencies’ required for each competition and each profile through five tests.
9 According to the competition notice, during that stage and for the reasons set out in the part of the competition notice entitled ‘am I eligible to apply?’ (see paragraph 4 above), candidates will also be required to sit an English language comprehension test. According to the competition notice, that language comprehension test ‘is eliminatory, but the mark will not be taken into account in the calculation of the overall marks for the assessment centre’.
10 On 27 June 2016, the applicant [confidential] (1) applied to take part in Competition EPSO/AD/323/16 in the field of EU expenditure and anti-corruption (‘the competition’). She chose [confidential] as her first language and English as her second language.
11 The applicant passed the computer-based MCQ tests, was admitted to the competition and, after passing the selection based on qualifications, was invited to sit the tests at the assessment centre.
12 The applicant therefore took part in the tests held in Brussels (Belgium) on 10 May 2017 as regards the first part, namely the case study and the language comprehension test, and on 6 June 2017 as regards the second part, namely the group exercise and the general and specific competency-based interview.
13 By the decision not to include her name on the reserve list, sent to the applicant in her EPSO account, she was informed of her results in the assessment centre tests and of the fact that the selection board had decided not to place her name on the reserve list for the competition on the ground that she had not obtained the necessary pass mark in one or more tests relating to the general or specific competencies at the assessment centre. Annexed to that letter was a document called a ‘competency passport’, which effectively indicated that the applicant had achieved a total score of 93.5 points out of 200. It is also apparent from that document that the applicant had obtained for the eight general competencies 33.5 points out of 80 and for the specific competencies 60 points out of 120. In addition, it was stated that the applicant had obtained a score of 6.667 points out of 10 in the English language comprehension test and a score of 5.5 points out of 10 for the general competency ‘communication’.
14 By letter of 21 December 2017, the applicant requested a review of the decision not to include her on the reserve list.
15 By letter of 1 February 2018, addressed to the applicant on her EPSO account, she was informed that the selection board had decided to confirm the decision not to include her on the reserve list (‘the review decision’).
16 On 11 March 2018, the applicant lodged a complaint, under Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), against the decision not to include her on the reserve list. In that complaint, she claimed that she had been treated unequally and unfairly by comparison with the other candidates in the competition because of the inadequate conduct of one of the members of the selection board. In addition, she alleged a lack of impartiality on the part of one of her assessors and a lack of competence on the part of those assessors. She also alleged irregularities vitiating the case study and a breach of the principle of equal treatment on the ground that candidates who took the tests later could obtain useful information about those tests. Finally, the applicant claimed that the reasons given for her results were inadequate and maintained that the restriction of the second language to English, French and German constituted unequal treatment.
17 By the decision rejecting the complaint, EPSO, acting in its capacity as appointing authority, rejected that complaint.
18 The applicant brought the present action on 13 October 2018.
19 On 9 September 2020, the General Court delivered the judgment in Spain and Italy v Commission (T‑401/16 and T‑443/16, not published, EU:T:2020:409). By that judgment, the Court annulled the competition notice on the ground, in essence, that the Commission had not established that the restriction, first, of the choice of the second language of the competition and, secondly, of the languages of communication between candidates and EPSO to English, French and German was objectively and reasonably justified in the light of a legitimate objective of general interest in the framework of staff policy.
20 On 20 November 2020, the Commission brought an appeal against the judgment of 9 September 2020, Spain and Italy v Commission (T‑401/16 and T‑443/16, not published, EU:T:2020:409). The appeal was registered at the Registry of the Court of Justice as Case C‑635/20 P.
21 On 16 February 2023, the Court of Justice delivered the judgment in Commission v Italy and Spain (C‑635/20 P, EU:C:2023:98), by which it dismissed the appeal brought by the Commission.
Forms of order sought
22 The applicant claims that the Court should:
– annul the decision not to include the applicant on the reserve list;
– annul the decision rejecting the complaint;
– annul the ‘results of the approved reserve list of [the] competition’;
– adjudicate to her damages that are equivalent to the difference between the remuneration that she would have received if she had been included on the reserve list following the competition and if she had been recruited and the remuneration that she actually received for the period until the date of ‘annulment of the procedure’;
– adjudicate to her the expenses for legal assistance and legal representation before and during the proceedings.
23 The Commission contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
The admissibility of new documents submitted by the applicant
24 By letter of 27 July 2023, the applicant produced six new documents seeking, in essence, to show that she would have had a strong chance of being recruited by the Commission if her name had been included on the reserve list of the competition.
25 By letter of 26 September 2023, the Commission contends that the documents produced by the applicant are inadmissible, since, in essence, they could have been submitted at the stage of the application and the reply. Furthermore, the applicant does not claim that those documents are necessary in order to respond to the arguments or evidence put forward in the rejoinder.
26 It should be recalled that, according to Article 85(1) and (3) of the Rules of Procedure of the General Court, evidence produced or offered is to be submitted in the first exchange of pleadings, the main parties exceptionally having the opportunity to produce or offer further evidence before the oral part of the procedure is closed, provided that the delay in the submission of such evidence is justified.
27 In the present case, the applicant submitted, by letter of 27 July 2023, the following six documents:
– in Annex 1, a document dated 6 February 2017 setting out the applicant’s assignments at the Commission between 2014 and 2017;
– in Annex 2, a document dated 14 April 2014 containing a certificate relating to her secondment to the Commission as a seconded national expert from 2014 to 2016;
– in Annex 3, a document dated 8 April 2016 containing a certificate relating to her secondment to the Commission as a seconded national expert from 2014 to 2018 and the decision not to extend that secondment for two additional years;
– in Annex 4, a document dated 6 February 2017 containing a description of her job at OLAF;
– in Annex 5, a document dated 2 June 2017 containing the list of training courses she attended at the Commission;
– in Annex 6, a document printed on 4 July 2019 containing her evaluation form drawn up by the Council of Europe.
28 In that regard, it should be noted that Annexes 1 to 5 produced by the applicant date from before the present action was brought (see paragraph 18 above). As regards Annex 6, it is apparent from that document that it was printed on 4 July 2019, that is to say, before 10 September 2019, the date on which the reply was lodged.
29 The applicant claims that those documents concern events subsequent to the lodging of the complaint under Article 90 of the Staff Regulations and that she was unable to submit them at an early stage in the procedure.
30 It should be pointed out, as the Commission submitted, that that argument is irrelevant in so far as, as is apparent from paragraph 28 above, the applicant could, in any event, have produced Annexes 1 to 5 at the stage of the application and Annex 6 at the reply stage. Furthermore, the applicant does not explain why Annexes 1 to 6 were submitted out of time.
31 Accordingly, Annexes 1 to 6 produced by the applicant on 27 July 2023 must be rejected as inadmissible.
The application for annulment of the decision not to include the applicant on the reserve list and of the decision rejecting the complaint
The subject matter of the application
32 As regards the head of claim seeking annulment of the decision not to include the applicant on the reserve list, it must be borne in mind that, according to settled case-law, where a person whose application for admission to a competition has been rejected seeks review of that decision on the basis of a specific provision which is binding on the administration, it is the decision taken by the selection board, after review, which constitutes the act adversely affecting that person within the meaning of Article 90(2) of the Staff Regulations or, as the case may be, Article 91(1) of those regulations (see, to that effect, order of 7 July 2017, GX v Commission, T‑556/16, not published, EU:T:2017:509, paragraph 21 and the case-law cited). The decision taken after review therefore replaces the initial decision of the selection board (see judgment of 5 September 2018, Villeneuve v Commission, T‑671/16, EU:T:2018:519, paragraph 24 and the case-law cited). It follows that, given that the applicant requested a review of the decision not to include her on the reserve list, it is the review decision which constitutes the act adversely affecting the applicant in the present case.
33 In that context, it must be observed that, by her second head of claim, the applicant seeks annulment of the decision rejecting the complaint. In that regard, it should be recalled that, according to settled case-law applicable to EU civil service law, the action before the judicature, even if formally directed against the rejection of the complaint, has the effect of bringing before the judicature the act adversely affecting the applicant against which the complaint was submitted, except where the scope of the rejection of the complaint differs from that of the measure against which that complaint was made (see judgment of 9 June 2021, Calhau Correia de Paiva v Commission, T‑202/17, EU:T:2021:323, paragraph 34 and the case-law cited).
34 In the present case, the decision rejecting the complaint merely confirms the review decision. The fact that the authority authorised to decide on the applicant’s complaint has been led, in response to the complaint, to supplement or amend the grounds for the review decision cannot justify the rejection of that complaint being regarded as an autonomous act adversely affecting the applicant, the statement of grounds for that rejection being deemed to be incorporated in the contested decision against which that complaint was directed (see judgment of 9 June 2021, Calhau Correia de Paiva v Commission, T‑202/17, EU:T:2021:323, paragraph 35 and the case-law cited).
35 Consequently, in accordance with the case-law cited in paragraphs 32 and 33 above, it must be held that the act adversely affecting the applicant is the review decision (‘the contested decision’), the legality of which must be examined also taking into account the statement of reasons contained in the decision rejecting the complaint.
The consequences of the annulment of the competition notice
– Preliminary observations
36 First, it should be noted that, according to settled case-law, a judgment annulling a measure takes effect ex tunc and thus has the effect of retroactively eliminating the annulled measure from the legal system (see, to that effect, judgments of 26 April 1988, Asteris and Others v Commission, 97/86, 99/86, 193/86 and 215/86, EU:C:1988:199, paragraph 30, and of 23 October 2018, McCoy v Committee of the Regions, T‑567/16, EU:T:2018:708, paragraph 154 and the case-law cited).
37 Secondly, it should be noted that the annulment of a measure of general application, such as the competition notice in the present case, does not automatically entail the annulment of individual decisions adopted on the basis of that measure, such as, in the present case, the decision not to include a candidate’s name on the reserve list adopted following the competition or the reserve list itself (see, to that effect, judgment of 6 July 1993, Commission v Albani and Others, C‑242/90 P, EU:C:1993:284, paragraph 17 and the operative part).
38 Thirdly, it should be borne in mind that, under Article 266 TFEU, the institution, body, office or entity whose act has been declared void is required to take the necessary measures to comply with the judgment of the EU judicature and, in particular, to adopt, in compliance with the principle of legality, all measures liable to provide due compensation for the damage which the applicant has suffered as a result of the act which has been declared void without prejudice to the possibility the applicant has of subsequently bringing an action against the measures adopted by the Commission in order to comply with the judgment (see judgment of 9 June 2021, Calhau Correia de Paiva v Commission, T‑202/17, EU:T:2021:323, paragraph 131 and the case-law cited).
39 In the present case, it should be noted that, following the judgment of 9 September 2020, Spain and Italy v Commission (T‑401/16 and T‑443/16, not published, EU:T:2020:409), confirmed by the judgment of 16 February 2023, Commission v Italy and Spain (C‑635/20 P, EU:C:2023:98), the Commission has not, to date, repealed or withdrawn the contested decision. More specifically, in its observations on the inferences to be drawn, for the present case, from the judgment of 9 September 2020, Spain and Italy v Commission (T‑401/16 and T‑443/16, not published, EU:T:2020:409), the Commission submits that the annulment of the contested decision on the basis of the grounds put forward by the Court in that judgment for the annulment of the competition notice would not allow EPSO to invite the applicant to repeat the assessment centre tests in [confidential] without infringing the principle of equal treatment. All candidates had to sit those tests in the second language chosen to sit the competition. In the applicant’s case, [confidential] was her first language.
40 It is in the light of the foregoing considerations that the effects of the annulment of the competition notice must be examined.
– The consequences of the annulment of the competition notice on the applicant’s interest in bringing proceedings
41 In its observations on the inferences to be drawn, for the present case, from the judgment of 16 February 2023, Commission v Italy and Spain (C‑635/20 P, EU:C:2023:98), the Commission, relying on the judgment of 20 September 2019, Barata v Parliament (T‑467/17, not published, EU:T:2019:646), submits that, following the annulment of the competition notice, the contested decision has become void and that the applicant no longer has an interest in bringing proceedings. Furthermore, relying on paragraphs 54 and 55 of that judgment, the Commission states that an interest in bringing a possible future action for damages cannot justify the persistence of an interest on the part of the applicant in seeking the annulment of the contested decision. Accordingly, in the light of the judgment of 16 February 2023, Commission v Italy and Spain (C‑635/20 P, EU:C:2023:98), the annulment of that decision would be superfluous and there is no longer any need to adjudicate.
42 In her observations on the inferences to be drawn, for the present case, from the judgment of 16 February 2023, Commission v Italy and Spain (C‑635/20 P, EU:C:2023:98), the applicant acknowledged that the first two heads of claim might be difficult, not to say impossible, to pursue, though without suggesting that she was withdrawing those heads of claim. The desired outcome of those heads of claim – that is to say to allow the applicant to continue the competition from the stage at which the alleged irregularities occurred and eventually be placed on the reserve list for that competition – might not be achieved. The applicant therefore argues that it would be fair for the Commission to compensate her for the material and non-material damage suffered.
43 In that regard, it is settled case-law that, in order to be able to pursue an action for annulment of a decision, the applicant must retain a personal interest in the annulment of the contested act and that, in the absence of a present interest in bringing proceedings, there is no longer any need to adjudicate on the dispute (see judgment of 20 September 2019, Barata v Parliament, T‑467/17, not published, EU:T:2019:646, paragraph 32 and the case-law cited).
44 It is also apparent from the case-law that the question whether an applicant retains an interest in bringing proceedings must be assessed in the light of the specific circumstances, taking account, in particular, of the consequences of the alleged unlawfulness and of the nature of the damage claimed to have been sustained (judgments of 28 May 2013, Abdulrahim v Council and Commission, C‑239/12 P, EU:C:2013:331, paragraph 65, and of 7 November 2018, BPC Lux 2 and Others v Commission, C‑544/17 P, EU:C:2018:880, paragraph 45).
45 In the present case, it is necessary to examine whether, following the judgment of 9 September 2020, Spain and Italy v Commission (T‑401/16 and T‑443/16, not published, EU:T:2020:409), confirmed by the judgment of 16 February 2023, Commission v Italy and Spain (C‑635/20 P, EU:C:2023:98), annulment of the contested decision would be capable of procuring an advantage for the applicant.
46 First, it should be noted that – unlike the case that gave rise to the judgment of 20 September 2019, Barata v Parliament (T‑467/17, not published, EU:T:2019:646), relied on by the Commission – in the present case, by the judgment of 9 September 2020, Spain and Italy v Commission (T‑401/16 and T‑443/16, not published, EU:T:2020:409), confirmed by the judgment of 16 February 2023, Commission v Italy and Spain (C‑635/20 P, EU:C:2023:98), the competition notice was annulled, but not the reserve list.
47 Secondly, it must be pointed out that, as stated in paragraph 39 above, the Commission has not, to date, repealed or withdrawn the contested decision.
48 In those circumstances, it must be held that the applicant retains an interest in bringing an action for annulment of the contested decision. It is true that the annulment of the contested decision would not directly entail her recruitment. However, that annulment would be likely to procure an advantage for her. At the stage of assessing whether she has an interest in bringing proceedings, it cannot be ruled out that, in the event of annulment, the Commission may offer the applicant the opportunity to resit the assessment centre tests. In that case, it cannot be ruled out that annulment of the contested decision may be capable of altering the applicant’s legal position as a candidate in the competition and of procuring an advantage for her.
49 Furthermore, in that regard, it should be noted that to rule out the existence of an interest on the part of the applicant in bringing proceedings against the contested decision adopted following the competition whose notice was annulled would risk legitimising the Commission’s failure to adopt measures to comply with the annulling judgment with regard to the applicant and, as the case may be, allow that institution to repeat in the future the same infringement which vitiated the annulled competition notice (see, to that effect, judgment of 7 June 2007, Wunenburger v Commission, C‑362/05 P, EU:C:2007:322, paragraphs 50 to 52 and the case-law cited).
50 In the light of the foregoing, it must be held that the applicant retains an interest in bringing proceedings.
– The consequences of the annulment of the competition notice on the legality of the contested decision
51 In support of her action, the applicant relies on eight pleas in law, alleging (i) inadequate conduct on the part of one of the members of the selection board, (ii) a lack of impartiality on the part of one of the members of the selection board, (iii) lack of competence on the part of the assessors, (iv) infringement of the language arrangements, (v) irregularities affecting the case study, (vi) infringement of the principle of equal treatment and fair treatment, (vii) an insufficient statement of reasons and, (viii) that EPSO, acting as the appointing authority, did not respond to all the arguments raised in the complaint lodged on 11 March 2018.
52 In that regard, it should be noted that, in the context of the fourth plea, the applicant raises a plea of illegality in respect of the competition notice on account of the language arrangements laid down in that notice.
53 The Commission disputes both the merits of all those pleas and the admissibility of the plea of illegality raised by the applicant in the context of the fourth plea in law.
54 In that regard, since the competition notice was annulled by the judgment of 9 September 2020, Spain and Italy v Commission (T‑401/16 and T‑443/16, not published, EU:T:2020:409), confirmed by the judgment of 16 February 2023, Commission v Italy and Spain (C‑635/20 P, EU:C:2023:98), on account of the unlawfulness of the language arrangements, it must be held that it is not necessary to rule on the plea of inadmissibility directed against the plea of illegality in respect of the competition notice.
55 Therefore, it is necessary to determine the inferences to be drawn from the annulment of the competition notice as regards the legality of the contested decision.
56 In that regard, it is necessary to make the following observations.
57 First, it follows from the judgment of 9 September 2020, Spain and Italy v Commission (T‑401/16 and T‑443/16, not published, EU:T:2020:409), confirmed by the judgment of 16 February 2023, Commission v Italy and Spain (C‑635/20 P, EU:C:2023:98), inter alia, that the selection procedure at issue was vitiated by illegality in so far as, in essence, the Commission has not established that the restriction of the choice of the second language of that procedure and the languages of communication between candidates and EPSO to English, French and German was objectively and reasonably justified in the light of a legitimate objective of general interest in the framework of staff policy.
58 Secondly, the illegalities found in the judgment of 9 September 2020, Spain and Italy v Commission (T‑401/16 and T‑443/16, not published, EU:T:2020:409), confirmed by the judgment of 16 February 2023, Commission v Italy and Spain (C‑635/20 P, EU:C:2023:98), as regards the language arrangements of the competition notice affecting the selection procedure at issue as a whole (judgment of 9 September 2020, Spain and Italy v Commission, T‑401/16 and T‑443/16, not published, EU:T:2020:409, paragraph 236) affected all the tests carried out by the candidates in the context of that recruitment procedure, including the written and oral tests taken at the assessment centre, which were to be conducted in English, French or German (see paragraph 8 above).
59 It must therefore be held that the contested decision, containing the assessment of the written and oral tests carried out by the applicant at the assessment centre, is unlawful.
60 Accordingly, the fourth plea must be accepted and the contested decision must be annulled, without there being any need to examine the other pleas raised by the applicant.
The application for annulment of the ‘results of the approved reserve list’
61 By the third head of claim, the applicant seeks annulment of the ‘results of the approved reserve list’.
62 In that regard, it should be emphasised that, as noted in paragraph 38 above, under Article 266 TFEU, the institution, agency or body whose act has been annulled is required to take the necessary measures to comply with the judgment annulling that act (see, to that effect, judgment of 14 December 2022, SU v EIOPA, T‑296/21, EU:T:2022:808, paragraph 92 and the case-law cited).
63 Furthermore, according to the case-law, the institution, body, office or agency whose act has been annulled may not plead practical difficulties which might be involved in restoring the applicant to the legal position he or she was in before the adoption of the annulled act in order to avoid that obligation. It is only as an alternative, where it encounters major obstacles in complying with an annulling judgment, that the institution, body, office or agency concerned may fulfil its obligations by taking a decision capable of providing fair compensation for the detriment to the party concerned resulting from the decision which has been annulled (see, to that effect, judgment of 18 October 2023, BZ v ECB, T‑162/21, not published, EU:T:2023:647, paragraphs 119 and 120 and the case-law cited).
64 In addition, it follows from the case-law of the Court of Justice that, when deciding on the consequences arising from the annulment of a measure relating to the selection procedures for EU staff, the EU Courts must seek to reconcile the interests of candidates disadvantaged by an irregularity which occurred during that procedure with the interests of other candidates, as a result of which it must take into account not only the need to restore the injured candidates’ rights, but also the legitimate expectations of the candidates already selected (see judgment of 9 June 2021, Calhau Correia de Paiva v Commission, T‑202/17, EU:T:2021:323, paragraph 132 and the case-law cited).
65 In order to do so, the EU Courts must take into consideration the nature and effects of the irregularity in question and the various possible measures to reconcile the need to restore the rights of the injured applicant with the situation of third parties and the interests of the service. In that respect, the number of persons affected by the irregularity of the selection procedure and the number of successful candidates may be relevant factors in such an assessment (see judgment of 9 June 2021, Calhau Correia de Paiva v Commission, T‑202/17, EU:T:2021:323, paragraph 133 and the case-law cited).
66 It is apparent from that case-law that the consequences of the annulment of a measure relating to the selection procedures for EU staff must be established taking into account the specific circumstances of each particular situation (see judgment of 9 June 2021, Calhau Correia de Paiva v Commission, T‑202/17, EU:T:2021:323, paragraph 134 and the case-law cited).
67 In the present case, it should be noted that the illegalities found in the judgment of 9 September 2020, Spain and Italy v Commission (T‑401/16 and T‑443/16, not published, EU:T:2020:409), confirmed by the judgment of 16 February 2023, Commission v Italy and Spain (C‑635/20 P, EU:C:2023:98), as regards the language arrangements of the competition notice, affect the selection procedure at issue as a whole (see, to that effect, judgment of 9 September 2020, Spain and Italy v Commission, T‑401/16 and T‑443/16, not published, EU:T:2020:409, paragraph 236).
68 However, in view of the size of the competition at issue in the present case and the particularly long time which has elapsed since the publication of the reserve list, it is not appropriate to call into question the results of the reserve list in their entirety (see, to that effect, judgment of 9 June 2021, Calhau Correia de Paiva v Commission, T‑202/17, EU:T:2021:323, paragraph 135 and 137).
69 Accordingly, the application for annulment of the ‘results of the approved reserve list’ must be rejected, while leaving it to the Commission, in accordance with the case-law referred to in paragraphs 62 and 63 above, to take the necessary measures to comply with the present judgment annulling the contested decision with regard to the applicant.
Claim for damages
70 The applicants seeks damages equivalent to the difference between the remuneration that she would have received if she had been included on the reserve list following the competition and if she had been recruited and the remuneration that she actually received for the period until the date of ‘annulment of the procedure’.
71 Furthermore, in her observations on the inferences to be drawn, for the present case, from the judgment of 16 February 2023, Commission v Italy and Spain (C‑635/20 P, EU:C:2023:98), the applicant considers that it would be fair for the Commission to compensate her for the material and non-material damage suffered because the result sought by the present proceedings could not be achieved (see paragraph 42 above). In that regard, the applicant states that she invested time and money to prepare for the competition. In addition, the stress associated with the competition and legal proceedings also had a number of negative repercussions on her health and personal life. The applicant requests that the calculation of the damage be based on the benefits (salaries and other entitlements) for the profile mentioned in the competition notice from the date of adoption of the decision not to include her on the reserve list and that, in any event, in view of the impact of the judgment of 16 February 2023, Commission v Italy and Spain (C‑635/20 P, EU:C:2023:98), on the competition and the duration of the contentious proceedings, the amount should not be less than EUR 50 000.
72 The Commission submits that the inclusion of a candidate’s name in a selection procedure on the reserve list does not constitute a guarantee of recruitment, with the result that the applicant cannot claim compensation on the basis of such an inclusion.
73 Moreover, the Commission notes that, according to settled case-law, a claim for compensation for damage must be rejected where it is closely related to a claim for annulment which has itself been rejected either as inadmissible or as unfounded. In the light of that case-law and taking account of the fact that the contested decision is lawful, the Commission submits that the claim for compensation for damage should be rejected on the ground that it is linked to the alleged unlawfulness of that decision.
74 According to settled case-law regarding claims for compensation in staff cases, the European Union may incur non-contractual liability only if a number of conditions are fulfilled, namely: (i) the institution’s conduct must be unlawful, (ii) actual damage must have been suffered, and (iii) there must be a causal link between the conduct and the damage alleged. Those three conditions are cumulative, which means that if one of them is not satisfied, the European Union cannot be held liable (see, to that effect, judgment of 25 June 2020, XH v Commission, T‑511/18, EU:T:2020:291, paragraph 161 and the case-law cited).
75 Since the contested decision is vitiated by illegality, as was held in the context of the examination of the inferences to be drawn from the annulment of the competition notice as regards the legality of that decision (see paragraphs 51 to 60 above), it is necessary to examine whether the applicant suffered damage caused by that decision.
76 In the present case, first, the applicant asks the Commission to award her damages equivalent to the difference between the remuneration she would have received if her name had been included on the reserve list following the competition and if she had been recruited and the remuneration she actually received until the date of ‘annulment of the procedure’.
77 It should be noted that, by that request, the applicant seeks compensation for material damage resulting from the loss of an opportunity to be recruited to a vacant post.
78 In that regard, it should be noted that, as the Commission submits (see paragraph 72 above), being included on a reserve list does not confer an acquired right to be appointed as an official. The selection board’s decision adopting the reserve list does not confer on successful candidates a right to be appointed, but only eligibility to be appointed. Furthermore, eligibility to be recruited becomes an opportunity to be recruited only from the date when a post, for which the successful candidate might reasonably be expected to be recruited, becomes vacant (see, to that effect, judgment of 13 June 2019, CC v Parliament, T‑248/17 RENV, not published, EU:T:2019:418, paragraph 70 and the case-law cited).
79 The applicant does not put forward any argument to show that, even if her name had been included on the reserve list, a post corresponding to her profile would have been vacant.
80 Accordingly, the applicant has not adduced proof of actual and certain damage, so that her claim to be awarded the difference between the remuneration which she would have received if her name had been included on the reserve list following the competition and if she had been recruited and the remuneration she received up to the date of ‘annulment of the procedure’ must be rejected as unfounded.
81 Secondly, on the assumption that the result sought by the present action cannot be achieved, the applicant seeks at least EUR 50 000 by way of compensation for both material and non-material damage which she claims to have suffered.
82 As regards the material damage resulting from the loss of money for the purposes of preparing for the competition, it should be noted that the applicant has not produced any document to substantiate such damage.
83 As regards the non-material damage resulting from the loss of time for the purposes of preparing for the competition and the stress associated with it and with the legal proceedings which have had numerous negative repercussions on the applicant’s health and personal life, it should be noted that the annulment of an unlawful act may constitute, in itself, adequate and, in principle, sufficient compensation for any non-material damage which that act may have caused (see, to that effect, order of 3 September 2019, FV v Council, C‑188/19 P, not published, EU:C:2019:690, paragraph 4, and judgment of 28 April 2021, Correia v EESC, T‑843/19, EU:T:2021:221, paragraph 86).
84 However, in view of the circumstances of the case referred to in paragraph 39 above and, in particular, the difficulties envisaged as regards restoring the applicant to the legal position she was in before the adoption of the contested decision, making use of the Court’s power to assess the damage ex aequo et bono, fair compensation for the non-material damage suffered by the applicant will be made by ordering the Commission to pay her a lump sum of EUR 6 000.
The request for the production of documents, the request for the appointment of a graphology expert and the request for a hearing made by the applicant
85 The applicant requests, first, that the Court order the Commission to produce certain documents and a video recording of her interview, secondly, that the Court appoint a graphology expert to identify the author of the handwriting in the documents where the selection board’s assessment marks appear and, thirdly, to hear witnesses.
86 The Commission contends, in essence, that the request that it produce certain documents must be rejected as inadmissible on the ground that the applicant did not provide sufficient evidence of the utility of those documents for the purposes of the proceedings.
87 It must be borne in mind, in that regard, that the General Court is the sole judge of any need to supplement the information available to it concerning the cases before it (order of 10 June 2010, Thomson Sales Europe v Commission, C‑498/09 P, not published, EU:C:2010:338, paragraph 138) and that it is for the General Court to assess the relevance of a request for a measure of organisation of procedure or of a request for a measure of inquiry to the subject matter of the dispute and the need to do so (see, to that effect, judgment of 24 September 2009, Erste Group Bank and Others v Commission, C‑125/07 P, C‑133/07 P, C‑135/07 P and C‑137/07 P, EU:C:2009:576, paragraph 320).
88 In the circumstances of the present case, the Court considers that the documents requested by the applicant, the appointment of a graphology expert and the hearing of witnesses do not appear to be useful for resolving the dispute, since the Court has been able to give a proper ruling on the application on the basis of the forms of order sought, the pleas in law and arguments put forward during the proceedings and in the light of the documents lodged by the parties (see, to that effect, judgment of 1 February 2023, TJ v EEAS, T‑365/21, not published, EU:T:2023:25, paragraph 88 and the case-law cited).
89 Accordingly, the request for the production of documents, the request for the appointment of a graphology expert and the request for a hearing submitted by the applicant must be rejected.
Costs
90 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.
91 Since the Commission has 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 (Tenth Chamber)
hereby:
1. Annuls the decision of the selection board for competition EPSO/AD/323/16 of 1 February 2018 rejecting EO’s request for review;
2. Orders the European Commission to pay EO the sum of EUR 6000;
3. Dismisses the action as to the remainder;
4. Orders the Commission to pay the costs.
Delivered in open court in Luxembourg on 20 March 2024.
V. Di Bucci | | S. Papasavvas |