JUDGMENT OF THE GENERAL COURT (Seventh Chamber, Extended Composition)
22 September 2021 (*)
(Civil service – Officials – Recruitment – Internal competition COM/03/AD/18 (AD 6) – Decision not to include the applicant’s name on the reserve list for the competition – Obligation to state reasons – Secrecy of the selection board’s proceedings – Weighting of the elements of a test specified in the competition notice)
In Case T‑435/20,
JR, represented by L. Levi and A. Champetier, lawyers,
applicant,
v
European Commission, represented by D. Milanowska and I. Melo Sampaio, acting as Agents,
defendant,
APPLICATION under Article 270 TFEU for annulment of the decision of the selection board in internal competition COM/03/AD/18 (AD 6) – Administrators, of 15 April 2020, refusing the applicant’s request for review of the decision of that selection board of 16 December 2019 not to include her name on the reserve list for that competition and, so far as necessary, to annul the latter decision,
THE GENERAL COURT (Seventh Chamber, Extended Composition),
composed of R. da Silva Passos, President, V. Valančius, I. Reine, L. Truchot (Rapporteur) and M. Sampol Pucurull, Judges,
Registrar: E. Coulon,
gives the following
Judgment
Background to the dispute
1 On 16 December 2018, the applicant, JR, applied to take part in internal competition COM/03/AD/18 (AD 6) – Administrators (‘the competition at issue’).
2 According to the notice of the competition at issue, the purpose of the competition was to draw up a reserve list of successful candidates for each of the following three areas: (i) European public administration (ii) development cooperation and neighbourhood policy, and (iii) research.
3 The applicant chose the field of European public administration, in which 30 successful candidates were sought.
4 According to Title III of the notice of the competition at issue, candidates were required, first, to submit an application form and to confirm, on submission, that they fulfilled the specified eligibility requirements. In a second stage, eligible candidates would be invited to sit a series of tests in the form of multiple-choice questionnaires. In a third stage, candidates who passed those tests would be invited to the oral test.
5 Section 4 of Title III of the notice of the competition at issue states that the oral test for function group AD consists of two parts, described as follows:
‘1. an interview … to assess:
– the main duties [the candidate has] carried out and the skills [the candidate has] acquired in the course of [his or her] professional career
– the ability and motivation to perform the required duties of the posts to which the competition gives access;
2. a structured presentation [which] will consist of an oral briefing on a subject related to a European Union policy …’
6 Section 4 of Title III of the notice of the competition at issue adds that the overall mark for those two parts consists of a mark between 0 and 20 points, the pass mark being 10 points.
7 Section 5 of that title states that the selection board is to include on the reserve list the names of candidates who have obtained the highest marks in the oral test and the pass mark for that test, until the number of successful candidates sought is reached.
8 After passing the written stage of the competition at issue on 23 September 2019, the applicant took the oral test.
9 By letter of 16 December 2019, the selection board in the competition at issue informed the applicant of its decision (‘the decision of 16 December 2019’) not to include her name on the reserve list for the competition. The selection board stated that, for the oral test, the applicant had received a mark of 13/20, which, although above the pass mark of 10/20 specified in the notice of the competition at issue, was, however, below the threshold of 14/20 which was to be reached if the applicant were to be among the best candidates whose names would be included on the reserve list. It also stated that the applicant’s overall performance in the oral test had been awarded the verbal rating of ‘good’. More specifically, the selection board explained that the applicant had received the verbal rating of ‘strong’ for ‘the fit between her past experience and the required skills’ and ‘the demonstration of her general competencies and her motivation to perform the required duties’, while she had received the verbal rating of ‘good’ for her ability to deliver a presentation on a subject related to the field of the competition at issue.
10 By email of 20 December 2019 (‘the request for review’), the applicant submitted to the European Personnel Selection Office (EPSO) a request for review of the decision of 16 December 2019, in accordance with point 6.3 of Annex III to the notice of the competition at issue. She claimed that there was a ‘manifest inconsistency’ between, on the one hand, the verbal rating which had been awarded to her overall performance during the oral test and, on the other hand, the verbal ratings which she had received for the three elements of that test assessed by the selection board. According to the applicant, the selection board had arbitrarily underestimated her overall performance in that it had described it as ‘good’ even though two of those elements had received the verbal rating of ‘strong’. She added that the decision of 16 December 2019 did not enable her to understand how the overall rating of ‘good’ had been converted into a numerical mark of 13/20. That email contained a ‘request for information and access to documents’, by which the applicant requested that she be provided with the following information:
– detailed explanations of the way in which verbal ratings had been converted into numerical marks, with the marking grids linking each verbal rating to a numerical mark;
– the detailed marks that she had received for each of the three elements assessed and marked, together with the corresponding marking grid;
– any relevant details of the marks awarded to her;
– any weighting method used;
– any rounding method used;
– the minutes and the evaluation grids relating to her oral test, the flipchart which she had used during the oral test (‘the flipchart’) and any other relevant documents concerning her performance in that test.
11 On 28 February 2020, after the applicant had exchanged a number of emails with the Directorate-General for Human Resources and Security of the European Commission, the latter sent her a grid showing the relation between, on the one hand, numerical marks between 1 and 10 and, on the other, the verbal ratings of ‘unsatisfactory’, ‘satisfactory’, ‘good’, ‘strong’, ‘very strong’, ‘excellent’ and ‘outstanding’ (‘the first conversion grid’), it being stated that numerical marks between one and four all corresponded to the rating of ‘unsatisfactory’. She was also invited to consult the flipchart at the Commission’s offices and to meet the chair of the selection board for the competition at issue to receive oral feedback on her performance. The Commission’s email of 28 February 2020 did not mention the weighting and rounding methods referred to in the request for review.
12 By email of 9 April 2020, the Commission informed the applicant that the abovementioned methods were covered by the secrecy of the proceedings of selection boards provided for in Article 6 of Annex III to the Staff Regulations of Officials of the European Union (‘the Staff Regulations’).
13 By decision of 15 April 2020 (‘the decision of 15 April 2020’), the selection board of the competition at issue refused the request for review.
14 In that connection, first, the selection board pointed out that, prior to hearing the candidates invited to the oral test, it had determined the content of the test, the questions envisaged, the evaluation criteria, the marking procedure and the weighting for each element set out in the notice of competition in respect of that test.
15 Secondly, the selection board stated that it had provided comments to each candidate relating to the specific elements set out in that notice (see paragraph 5 above) and that its comments included an overall appraisal of the candidates’ performance ‘summing up the assessment of the individual elements’.
16 Thirdly, the selection board observed that its assessments of the candidates’ experience and skills were of a comparative nature.
17 Fourthly, it noted that the review of the decision of 16 December 2019 had not identified any errors affecting the processing of data relating to the applicant’s oral test, and accordingly the decision not to include her name on the reserve list for the competition at issue had to be upheld.
18 By application lodged at the Court Registry on 4 May 2020, the applicant brought an action for annulment of the Commission’s decisions contained in the emails of 28 February and 9 April 2020 (see paragraphs 11 and 12 above) refusing access to allegedly personal data. That action was registered as Case T‑265/20.
Events subsequent to the bringing of the action
19 On 16 July 2020, the Commission sent the applicant a copy of the flipchart, together with the notes which she had written for her presentation during the oral test.
20 On 22 July 2020, during a telephone interview with the chair of the selection board in the competition at issue, the applicant received feedback on her performance during the oral test and the information that the numerical marks had been rounded to 0.25.
Procedure and forms of order sought
21 By application lodged at the Court Registry on 7 July 2020, the applicant brought the present action.
22 By separate document lodged at the Court Registry on the same date, pursuant to Article 66 of the Rules of Procedure of the General Court, the applicant applied for anonymity. By decision of 21 September 2020, the Court (Seventh Chamber) granted that application.
23 By document lodged at the Court Registry on 22 July 2020, in Case T‑265/20, JR v Commission, the applicant applied for that case and the present case to be joined, pursuant to Article 68 of the Rules of Procedure. In its observations on that application, lodged at the Court Registry on 31 August 2020, the Commission contended that the Court should reject that application. By decision of 30 September 2020, the President of the Seventh Chamber of the Court dismissed the application for joinder.
24 The written part of the procedure was closed on 13 January 2021.
25 On 20 April 2021, by way of measures of organisation of procedure provided for in Article 89 of the Rules of Procedure, the Court (Seventh Chamber) decided to invite the Commission to indicate what tool had enabled the selection board in the competition at issue to link, in the decision of 16 December 2019, the verbal rating of ‘good’ with the overall numerical mark of 13/20 awarded to the applicant, given that the first conversion grid contained marks of between 1 and 10.
26 On 28 April 2021, on a proposal from the Seventh Chamber, the Court decided to refer the case to a chamber sitting in extended composition, pursuant to Article 28 of the Rules of Procedure.
27 By letter of 6 May 2021, the Commission answered the Court’s question referred to in paragraph 25 above by producing a grid showing the relation between, on the one hand, numerical marks or ranges of numerical marks ‘up to 9.5’, ‘10-11.5’, ‘12-13’, ‘13.5’, ‘14-15.5’, ‘16-17’, ‘17.5-19’ and ‘19.5-20’ and, on the other, the verbal ratings ‘unsatisfactory’, ‘satisfactory’, ‘good’, ‘good to strong’, ‘strong’, ‘very strong’, ‘excellent’ and ‘outstanding’ (‘the second conversion grid’).
28 By letter of 26 May 2021, the applicant submitted observations on the Commission’s reply to the Court’s abovementioned question.
29 Under Article 106(3) of the Rules of Procedure, if no request for a hearing has been submitted by the main parties within three weeks after service of notification of the close of the written part of the procedure, the Court may decide to rule on the action without an oral part of the procedure. In the present case, since the Court (Seventh Chamber, Extended Composition) considers that it has sufficient information available to it from the documents in the file, it has decided, in the absence of such a request, to rule on the action without an oral part of the procedure.
30 The applicant claims that the Court should:
– annul the decision of 15 April 2020 and, so far as necessary, the decision of 16 December 2019;
– order the Commission to pay the costs.
31 The Commission contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
Subject matter of the dispute
32 The applicant seeks the annulment of the decision of 15 April 2020 and, so far as necessary, the decision of 16 December 2019.
33 In the defence, the Commission raises a plea of inadmissibility against the application for annulment of the decision of 16 December 2019, which was replaced by the decision of 15 April 2020.
34 It should be borne in mind that, in accordance with settled case-law, where a candidate in a competition seeks review of a decision taken by a selection board, it is the decision taken by the latter after the review of the candidate’s situation that constitutes the act adversely affecting him or her within the meaning of Article 90(2) or, where applicable, Article 91(1) of the Staff Regulations. The decision taken after the review therefore replaces the selection board’s original decision (see judgment of 5 September 2018, Villeneuve v Commission, T‑671/16, EU:T:2018:519, paragraph 24 and the case-law cited; see also, to that effect, judgment of 11 March 1986, Sorani and Others v Commission, 293/84, EU:C:1986:111, paragraph 12).
35 Consequently, it must be held that, in the present case, the only act adversely affecting the applicant is the decision of 15 April 2020.
36 Therefore, and in so far as the applicant sought annulment of the decision of 16 December 2019 only ‘so far as necessary’, it is appropriate to examine the application for annulment of the decision of 15 April 2020 first of all.
Substance
37 In support of the action, the applicant relies on two pleas in law, alleging, first, a manifest error of assessment and breach of the rules governing the proceedings of the selection board and, secondly, infringement of the obligation to state reasons and breach of the principle of good administration, laid down in Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
38 The second plea in law must be examined first of all, since it relates to the preliminary question of the statement of reasons for the decision of 15 April 2020.
39 The applicant submits that, even after receiving the first conversion grid (see paragraph 11 above) and the explanations in respect of the rounding method used by the selection board (see paragraph 20 above), the statement of reasons for the decision of 15 April 2020 does not suffice to allow her to understand the manner in which the verbal ratings of ‘strong’, ‘strong’ and ‘good’ awarded for the three different elements of the oral test enabled the selection board in the competition at issue to award her overall performance in that test the verbal rating of ‘good’ and to convert that rating into the numerical mark of 13/20.
40 The applicant adds that the selection board must have applied a weighting method and contends that defining that method does not fall within the scope of the proceedings of selection boards, which, because they are of a comparative nature, must remain secret, in accordance with the case-law relating to Article 6 of Annex III to the Staff Regulations. In her view, objective factors such as the weighting of the marks, which are set by the selection board before the tests begin in order to guide its proceedings and ensure, in principle, that they are conducted in a proper, objective manner, do not cover the evaluation of the candidates’ merits or the comparison of their respective merits.
41 In her observations on the Commission’s response to the Court’s question (see paragraphs 27 and 28 above), the applicant states that, even having seen the second conversion grid, she is not in a position to understand why she was awarded the numerical mark of 13/20. According to her, that grid merely underscores the importance of knowing exactly when the selection board rounded the marks and what weighting method was used.
42 The Commission replies that, in view of the secrecy of the proceedings of selection boards concerning the expression of a value judgment and the broad discretion that they enjoy, disclosure of the marks awarded in the various tests constitutes an adequate statement of the reasons on which their decisions are based. Since the applicant was informed that, for her oral test, she had received the mark of 13/20 and that only candidates who obtained a mark of at least 14/20 would have their names included on the reserve list, the decision of 15 April 2020 contains an adequate statement of reasons. According to the Commission, it was only for the sake of completeness that, in accordance with the principle of good administration, the selection board informed the applicant of the verbal ratings which it had awarded her for each of the elements of the oral test and the overall verbal rating received in that regard and, subsequently, sent her the conversion grid and the flipchart, before allowing her to speak by telephone to its chair, who, in particular, informed her what rounding method had been used.
43 Furthermore, while the Commission accepts that the overall numerical mark awarded to the applicant by the selection board for the oral test is the result of weighting the three elements of that test, it submits that the definition of the weighting method was central to the broad discretion which the competition notice, by failing to specify any particulars in that regard, had granted the selection board, in accordance with the case-law. Disclosure of that method would seriously undermine the secrecy of the selection board’s proceedings and its independence, since unsuccessful candidates could claim that the method chosen favoured a particular category of candidates.
44 It should be noted, in the first place, that under the second sentence of the second paragraph of Article 25 of the Staff Regulations, any decision adversely affecting an official must state the reasons on which it is based. That obligation corresponds to the obligation laid down, more generally, in the second paragraph of Article 296 TFEU and in Article 41 of the Charter, concerning the principle of good administration, in particular paragraph 2(c) thereof.
45 In the second place, Article 6 of Annex III to the Staff Regulations states that ‘the proceedings of the Selection Board shall be secret’.
46 Under settled case-law, the requirement to give a statement of reasons is intended, first, to provide the person concerned with sufficient details to determine whether the act adversely affecting him or her was well founded and whether it is appropriate to bring proceedings before an EU Court, and, secondly, to enable that court to review the legality of the act (see judgment of 13 September 2016, Pohjanmäki v Council, T‑410/15 P, not published, EU:T:2016:465, paragraph 77 and the case-law cited; see also, to that effect, judgment of 11 June 2020, Commission v Di Bernardo, C‑114/19 P, EU:C:2020:457, paragraph 51).
47 It should also be noted that the right to good administration provided for in Article 41 of the Charter places the administration under a duty to state the reasons for its decisions, and that statement of reasons does not constitute, in general terms, a mere expression of transparency of the administration’s action, but must also enable the individual to decide, in full knowledge of the facts, whether there is any point in bringing proceedings before a court. There is therefore a close relationship between, on the one hand, the obligation to state reasons and, on the other, the fundamental right to effective judicial protection and the right to an effective remedy guaranteed by Article 47 of the Charter (judgment of 10 October 2012, Sviluppo Globale v Commission, T‑183/10, not published, EU:T:2012:534, paragraph 40; see also, to that effect, judgment of 8 September 2009, ETF v Landgren, T‑404/06 P, EU:T:2009:313, paragraph 148 and the case-law cited).
48 The statement of reasons must, in principle, be communicated to the person concerned at the same time as the decision adversely affecting him or her. A failure to state reasons cannot be remedied by the fact that the person concerned learns of the reasons for the decision during the proceedings before the EU Courts. However, where there is not an absence but an inadequacy of reasoning, explanations given in the course of the procedure may, in exceptional cases, remedy that inadequacy, so that the plea in law based on that inadequacy no longer justifies the annulment of the decision in question (see judgment of 11 June 2020, Commission v Di Bernardo, C‑114/19 P, EU:C:2020:457, paragraphs 51 and 52 and the case-law cited).
49 According to the Court of Justice, there is neither a right of the EU institutions to remedy before the EU Courts their insufficiently reasoned decisions, nor an obligation on the part of the latter to take into account additional explanations provided by the author of the measure in question only during the proceedings in order to assess whether the obligation to state reasons has been satisfied. Such a state of law would risk blurring the division of powers between the administration and the EU Courts, weakening the review of legality and jeopardising the exercise of the right of appeal. It is only in exceptional cases, in which it is established that it was impossible in practice for the EU institution concerned to state to the requisite legal standard the reasons for the disputed decision, that the statement of reasons may be supplemented by explanations provided by the author of the act during the proceedings (see, to that effect, judgment of 11 June 2020, Commission v Di Bernardo, C‑114/19 P, EU:C:2020:457, paragraphs 58 and 59).
50 As far as concerns decisions taken by a selection board in a competition, as the Court of Justice held in the judgment of 4 July 1996, Parliament v Innamorati (C‑254/95 P, EU:C:1996:276), the obligation 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 to 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 EU administration itself or the candidates concerned or third parties. Observance of this secrecy therefore precludes both disclosure of the attitudes adopted by individual members of selection boards and disclosure of any factors relating to individual or comparative assessments of candidates (judgment of 4 July 1996, Parliament v Innamorati, C‑254/95 P, EU:C:1996:276, paragraph 24).
51 That being so, the obligation to state the reasons on which decisions of a selection board in a competition are based must take account of the nature of the proceedings concerned (judgment of 4 July 1996, Parliament v Innamorati, C‑254/95 P, EU:C:1996:276, paragraph 25).
52 The task of a selection board involves as a rule at least two separate stages, the first being an examination of the applications in order to select the candidates admitted 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 (judgment of 4 July 1996, Parliament v Innamorati, C‑254/95 P, EU:C:1996:276, paragraph 26).
53 The first stage, particularly where the competition is based on formal qualifications, consists in comparing the diplomas or other certificates of qualifications provided by the candidates with the qualifications required by the notice of competition. Since that comparison is made on the basis of objective factors which are moreover known to each candidate in his or her own case, observance of the secrecy surrounding the proceedings of the selection board does not preclude communication of those objective factors and in particular of the criteria for assessment upon which the selection made at the stage of the preliminary proceedings in the competition was based, a selection which enables those whose applications have been rejected even before any individual test to ascertain the possible reasons for their elimination (judgment of 4 July 1996, Parliament v Innamorati, C‑254/95 P, EU:C:1996:276, paragraph 27).
54 By contrast, the second stage of the selection board’s proceedings involves tasks that are primarily comparative in character and is accordingly covered by the secrecy inherent in those proceedings (judgment of 4 July 1996, Parliament v Innamorati, C‑254/95 P, EU:C:1996:276, paragraph 28).
55 The criteria for marking adopted by the selection board prior to the tests form an integral part of the comparative assessments which it makes of the candidates’ respective merits. They are designed to guarantee, in the candidates’ own interests, a certain consistency in the board’s assessments, especially where there is a large number of candidates. Those criteria are therefore covered by the secrecy of the proceedings in the same way as the selection board’s assessments (judgment of 4 July 1996, Parliament v Innamorati, C‑254/95 P, EU:C:1996:276, paragraph 29).
56 The comparative assessments made by the selection board are reflected in the marks it allocates to the candidates. The marks are the expression of the value judgments made concerning each of them (judgment of 4 July 1996, Parliament v Innamorati, C‑254/95 P, EU:C:1996:276, paragraph 30).
57 On the basis of those principles, in paragraphs 31 and 32 of the judgment of 4 July 1996, Parliament v Innamorati (C‑254/95 P, EU:C:1996:276), the Court of Justice held that, having regard to the secrecy which must surround the proceedings of a selection board, communication of the marks obtained in the various tests constitutes an adequate statement of the reasons on which the board’s decisions are based and such a statement of reasons is not prejudicial to the candidates’ rights since it enables them to know the value set on their performance and to ascertain, if such is the case, that they have not in fact obtained the number of marks required by the notice of competition.
58 It is in the light of those principles that it should be considered whether the decision of 15 April 2020 contains an adequate statement of reasons.
59 In the first place, it should be noted that the decision of 15 April 2020 does not concern the first stage referred to in the case-law of the Court of Justice, relating to the admission of candidates to the competition once it has been ascertained that they meet the requirements specified to that end in the competition notice. It concerns the second stage, given that the selection board in the competition at issue had to assess the applicant’s performance during the oral test with the aim not only of considering whether she could be awarded the pass mark of 10/20 set by the competition notice, but also of evaluating that performance in relation to that of the other candidates. The competition notice provided that, in the field chosen by the applicant, only the 30 candidates who received the highest marks in the oral test could be included on the reserve list (see paragraphs 3, 6 and 7 above).
60 In the second place, the information already provided to the applicant in the decision of 16 December 2019, confirmed by the decision of 15 April 2020, must be borne in mind. In that decision, as stated in paragraph 9 above, the selection board first of all stated that the applicant’s performance in the oral test in the competition at issue had resulted in her being awarded the overall mark of 13/20, whereas the comparison of the performance of the candidates invited to that test had led the selection board to include on the reserve list only the names of those who had obtained a minimum overall mark of 14/20.
61 Next, the selection board stated that the applicant’s overall performance during the oral test could be described as ‘good’.
62 Lastly, the selection board disclosed the verbal ratings which it had awarded to the applicant for each of the three elements of the oral test specified in Section 4 of Title III of the notice of the competition at issue (see paragraph 5 above), according to which that test was composed of two parts, of which the first comprised two sub-parts.
63 In the third place, as pointed out in paragraph 11 above, the Commission subsequently sent to the applicant the first conversion grid, which showed the relation between the verbal ratings used by the selection board and the numerical marks between 1 and 10. That grid shows that the verbal ratings ‘good’ and ‘strong’ are equivalent to the numerical marks of 6/10 and 7/10, respectively.
64 In the fourth place, before the Court the Commission produced the second conversion grid, referred to in paragraph 27 above, which showed the relation between numerical marks of between 1 and 20 and the verbal ratings disclosed to the candidates after the oral test.
65 In the fifth place, it should be noted that, as is apparent from the decision of 15 April 2020, the selection board adopted a weighting method applicable to the three elements of the oral test set out in the notice of the competition at issue. In the defence, the Commission confirms that the overall mark of 13/20 received by the applicant is not the arithmetical average of the assessments relating to those three elements, but results from a weighted average of those elements.
66 Consequently, it should be noted that the selection board in the competition at issue adopted a weighting factor for each element of the oral test specified in the notice of that competition (‘the weighting factors at issue’). The weighting factors at issue were applied to the selection board’s assessments of the candidates’ performance in those elements in order to obtain a weighted average of those three assessments. Those weighting factors therefore contribute substantially to the understanding which the applicant may have of the way in which her performance, after having been assessed in those three elements, was converted into an overall numerical mark out of 20, in accordance with the notice of the competition at issue (see paragraph 6 above). The applicant now has the first and second conversion grids. However, without knowing the weighting factors at issue, the applicant is not in a position to understand how the verbal ratings of ‘strong’, ‘strong’ and ‘good’ awarded to her for the three elements of the oral test and which, according to the first conversion grid, correspond to numerical marks of 7, 7 and 6, could have resulted in an overall mark of 13/20 corresponding, according to the second conversion grid, to the verbal rating of ‘good’. It must be pointed out that, depending on the size of each of those factors, it is possible that the weighted average of those numerical marks might result in an overall numerical mark, rounded and converted into a mark out of 20, reaching the 14/20 threshold required for a candidate to be included among the successful candidates in the competition at issue (see paragraph 9 above).
67 It must, however, be determined whether the disclosure of the weighting factors at issue is compatible with the secrecy of the proceedings of the selection board provided for in Article 6 of Annex III to the Staff Regulations, as interpreted by the Court of Justice.
68 It is true that, as noted in paragraph 57 above, in the judgment of 4 July 1996, Parliament v Innamorati (C‑254/95 P, EU:C:1996:276, paragraphs 31 and 32), the Court of Justice, following a balancing of the requirements arising from, first, the obligation to state reasons and, secondly, the secrecy of the proceedings of the selection board, held that communication of the marks obtained in the various tests constituted an adequate statement of the reasons on which the selection board’s decisions were based and that such a statement of reasons was not prejudicial to the candidates’ rights.
69 However, in the case which gave rise to the judgment of 4 July 1996, Parliament v Innamorati (C‑254/95 P, EU:C:1996:276), the applicant had not been invited to the tests in a competition which followed a written test in which he had obtained a mark lower than the minimum required by the competition notice. That notice did not state that that written test consisted of several elements. Consequently, the reference made by the Court of Justice to the ‘marks obtained in the various tests’ cannot be interpreted as referring solely to individual eliminatory marks as opposed to intermediate assessments relating to the various elements of a test set out in the competition notice. It does not therefore follow from that case-law that communication to a candidate of a single individual eliminatory mark constitutes, in all circumstances, an adequate statement of reasons, irrespective of the specific features of each competition.
70 In addition, it cannot be inferred from the judgment of 4 July 1996, Parliament v Innamorati (C‑254/95 P, EU:C:1996:276), that the concept of ‘criteria for marking’, which the Court of Justice held were protected by the secrecy of the selection board’s proceedings, includes considerations such as the weighting factors at issue.
71 It should be noted that the ‘criteria for marking’ referred to in the judgment of 4 July 1996, Parliament v Innamorati (C‑254/95 P, EU:C:1996:276), guide the selection board in assessing candidates’ performance during the tests in a competition and any elements of each test. They constitute a tool which the selection board uses in reaching a value judgement on that performance in order to ensure that its assessments are consistent. To that effect, as the Court of Justice held in that judgment, those criteria form an integral part of the selection board’s assessments of the comparative merits of the candidates and must therefore remain secret (see paragraph 55 above). In order to assess candidates with complete objectivity and freedom, a selection board must be able to structure its proceedings by establishing, where necessary, criteria and sub-criteria, which may, as appropriate, be weighted against each other.
72 By contrast, the factors established by a selection board with a view to weighting the elements of a test specified in the competition notice do not fulfil the same function as that of the criteria for marking referred to in the judgment of 4 July 1996, Parliament v Innamorati (C‑254/95 P, EU:C:1996:276). Those factors are not intended to contribute to the comparative assessment of the candidates’ performance in the test in question. They are set by the selection board, in the exercise of its discretion, so as to express the relative importance which it attaches to the various elements of the test, specified in the competition notice, within the overall mark awarded to a candidate in respect of that test as a whole. The prior determination of the relative value of the various elements of a test specified in the competition notice must therefore be distinguished from the assessment of the candidates’ performance in each of those elements.
73 Therefore, the judgment of 4 July 1996, Parliament v Innamorati (C‑254/95 P, EU:C:1996:276), cannot be interpreted as meaning that the balancing of the requirements referred to in paragraph 68 above dictates that, where a competition notice provides that a test consists of several elements, the factors previously allocated by the selection board to each of those elements for the purposes of their weighting are covered by the secrecy surrounding the proceedings of the selection board. It does not therefore follow from that judgment that those factors are excluded from the information, which, in accordance with the obligation to state reasons, must be communicated to candidates eliminated from the competition.
74 In addition, it should be borne in mind that the Court has previously held, with regard to an oral test for assessing the linguistic knowledge of competition candidates of French, English and any other languages of the European Union which those candidates had stated in their applications that they knew, that where a selection board had awarded intermediate marks for the candidates’ knowledge of each of those languages, the obligation to provide a statement of reasons entailed the communication, at a candidate’s request, of the intermediate marks which had been awarded to him or her in respect of the various languages tested and the method used by the selection board to determine the final mark. The Court observed that disclosure of that information did not involve disclosure of the attitudes adopted by individual members of the selection board or disclosure of any factors relating to individual or comparative assessments of candidates. It was therefore compatible with observance of the secrecy of the proceedings of the selection board (judgment of 28 April 2004, Pascall v Council, T‑277/02, EU:T:2004:117, paragraphs 2 and 28).
75 Furthermore, it follows from the case-law of the Civil Service Tribunal that, having regard to the secrecy which is to surround the proceedings of a selection board and the broad discretion enjoyed by that board in assessing the results of the tests in a competition, the board cannot be required, when stating the reasons why a candidate failed a test, to specify which of the candidate’s answers were considered unsatisfactory or to explain why they were considered unsatisfactory. However, that secrecy and broad discretion do not mean that candidates in a competition who so request may not, where relevant, obtain communication of the marks awarded in each element of the oral test specified in the competition notice (see, to that effect, judgment of 8 July 2010, Wybranowski v Commission, F‑17/08, EU:F:2010:83, paragraphs 98 and 99 and the case-law cited). According to the Civil Service Tribunal, in order to satisfy the obligation to state reasons, such communication, where requested by a candidate, must, as a rule, take place before the expiry of the period laid down in Articles 90 and 91 of the Staff Regulations (see, to that effect, judgment of 8 July 2010, Wybranowski v Commission, F‑17/08, EU:F:2010:83, paragraph 100). It should be added that, when dismissing a complaint alleging infringement of the obligation to state reasons, the Civil Service Tribunal found that the applicant had been able to obtain communication, inter alia, of the weighting of the four ‘evaluation criteria’ referred to in the competition notice in respect of the oral test (see, to that effect, judgment of 8 July 2010, Wybranowski v Commission, F‑17/08, EU:F:2010:83, paragraphs 8, 50, 104 and 106).
76 That case-law of the General Court and of the Civil Service Tribunal is consistent with the close relationship which exists, as recalled in paragraph 47 above, between, on the one hand, the obligation to state reasons and, on the other, effective judicial protection and the restriction to exceptional cases, as is evident from the case-law of the Court of Justice referred to in paragraph 49 above, of the right to supplement an inadequate statement of reasons with information provided during the proceedings. Unless the candidate knows in good time the method used by the selection board to determine the overall eliminatory mark awarded to a candidate for a test, on the basis of the selection board’s assessments of that candidate’s performance in the various elements of that test specified in the competition notice, he or she is not in a position to understand whether the selection board erred not in performing those assessments, which is protected by the secrecy of the proceedings of the selection board, but in calculating the overall eliminatory mark. That candidate is therefore not in a position to assess whether it is appropriate to bring an action before the General Court.
77 Furthermore, the obligation to state reasons and the right to effective judicial protection are general principles of EU law now enshrined in the Charter, whereas the secrecy of the selection board’s proceedings is laid down in an act of secondary legislation. Consequently, Article 6 of Annex III to the Staff Regulations must be interpreted in the light of the Charter.
78 In the light of the foregoing considerations, it must be found that, since the weighting factors at issue are not tools used by the selection board in the competition at issue to make a value judgement of the candidates’ performance in the three elements of the oral test specified in the competition notice, those factors are not covered by the secrecy provided for in Article 6 of Annex III to the Staff Regulations.
79 That finding is not affected by the Commission’s arguments based on the broad discretion enjoyed by the selection board in a competition (see paragraph 43 above).
80 In accordance with the case-law, the selection board enjoys a broad discretion in conducting its proceedings. Consequently, it is open to the selection board, where the competition notice does not lay down criteria for marking, to fix such criteria or, where the notice lays down such criteria but does not mention their respective weighting, to determine that weighting (see judgment of 11 December 2012, Mata Blanco v Commission, F‑65/10, EU:F:2012:178, paragraph 55 and the case-law cited; see also, to that effect, judgments of 24 March 1988, Goossens and Others v Commission, 228/86, EU:C:1988:172, paragraphs 11, 13 and 14, and of 19 April 1988, Santarelli v Commission, 149/86, EU:C:1988:179, paragraph 10).
81 It follows that, where a competition notice does not specify the weighting of each assessment criterion referred to in the competition notice for a given test, the selection board may determine how the total number of points specified in the notice for that test is to be divided among the various elements of that test, according to the importance which it attaches to those elements in the light of the posts to be filled (see, to that effect, judgment of 11 December 2012, Mata Blanco v Commission, F‑65/10, EU:F:2012:178, paragraph 56 and the case-law cited).
82 In the present case, the notice of the competition at issue described the elements comprising the oral test (see paragraph 5 above) without, however, specifying the weighting applied to each of those elements when determining the overall mark.
83 The selection board in the competition at issue was therefore entitled to set the three weighting factors at issue.
84 However, it does not follow from the foregoing that the weighting factors at issue are excluded from the information to be communicated to eliminated candidates with a view to complying with the obligation to state reasons.
85 In accordance with the case-law, where an institution has a broad discretion, the review of observance of guarantees conferred by the EU legal order in administrative procedures is of fundamental importance. Those guarantees include, in particular, for the competent institution, the obligations to examine carefully and impartially all the relevant elements of the individual case and to give an adequate statement of the reasons for its decision (judgments of 21 November 1991, Technische Universität München, C‑269/90, EU:C:1991:438, paragraph 14, and of 8 September 2009, ETF v Landgren, T‑404/06 P, EU:T:2009:313, paragraph 163).
86 Furthermore, under the case-law referred to in paragraphs 46 and 47 above, the obligation to state reasons is specifically intended to enable the persons concerned to exercise their right to an effective remedy and the EU Courts to review the lawfulness of decisions of the administration.
87 It must be observed that since competition selection boards enjoy a broad discretion, judicial review of the lawfulness of their decisions consists in ascertaining whether that discretion has been exercised on the basis of objective criteria, whether a manifest error or misuse of powers has occurred in the exercise of that discretion or whether the limits of that discretion have been manifestly exceeded (see, to that effect, judgment of 11 February 1999, Jiménez v OHIM, T‑200/97, EU:T:1999:26, paragraph 40 and the case-law cited). Thus, in the present case, although the Court cannot substitute its own assessment for that of the selection board, it must nonetheless be in a position to check, in the light of the obligation to state reasons, that the board assessed the applicant’s performance in the oral test on the basis of the three elements thereof specified in the notice of the competition at issue and that no error was made in calculating the overall mark on the basis of the selection board’s assessment of each of those three elements.
88 In the light of all the foregoing considerations, it must be concluded that, in so far as the applicant was not aware of the weighting factors at issue, the decision of 15 April 2020 does not contain an adequate statement of reasons, despite the information provided to the applicant by the Commission after the adoption of that decision, assuming that it can be taken into account under the case-law referred to in paragraphs 48 and 49 above.
89 Consequently, the second plea must be upheld and the decision of 15 April 2020 annulled, without there being any need to examine the first plea (see paragraph 38 above), or to rule on the Commission’s plea of inadmissibility in respect of the application for the annulment, so far as necessary, of the decision of 16 December 2019 (see paragraphs 30 and 33 above).
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. 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 (Seventh Chamber, Extended Composition)
hereby:
1. Annuls the decision of the selection board in internal competition COM/03/AD/18 (AD 6) – Administrators, of 15 April 2020, not to include JR on the reserve list for the recruitment of administrators at grade AD 6 in the field of European public administration;
2. Orders the European Commission to pay the costs.
da Silva Passos | Valančius | Reine |
Delivered in open court in Luxembourg on 22 September 2021.
[Signatures]