JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
23 September 2020 (*)
(Civil service – Recruitment – Notice of competition – Decision not to place the applicant’s name on the reserve list for the competition – Obligation to state reasons – Rejection of the request for access to the multiple-choice questions asked in the admission tests – Secrecy of the selection board’s proceedings)
In Case T‑596/18,
ZL, represented by H. Tettenborn, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by A. Lukošiūtė and K. Tóth, acting as Agents, assisted by B. Wägenbaur, lawyer,
defendant,
APPLICATION under Article 270 TFEU seeking annulment, first, of the decision of 7 March 2018 of the selection board for competition EUIPO/AD/01/17 – Administrators (AD 6) in the field of intellectual property rejecting the applicant’s request for review of that selection board’s decision of 1 December 2017 not to place her name on the reserve list drawn up with a view to the recruitment of administrators by EUIPO and, secondly, of EUIPO’s decision of 27 June 2018 rejecting her complaints,
THE GENERAL COURT (Fourth Chamber),
composed of S. Gervasoni, President, P. Nihoul (Rapporteur) and J. Martín y Pérez de Nanclares, Judges,
Registrar: E. Coulon,
gives the following
Judgment
Background to the dispute
1 On 12 January 2017, the European Personnel Selection Office (EPSO) published in the Official Journal of the European Union the notice of open competition EUIPO/AD/01/17 – Administrators (AD 6) in the field of intellectual property (OJ 2017 C 9A, p. 1; ‘the notice of competition’). The purpose of that competition, organised by EPSO, was to draw up a reserve list with a view to the recruitment of administrators by the European Union Intellectual Property Office (EUIPO).
2 The notice of competition stated, under the heading ‘How will I be selected?’, that candidates who satisfied the eligibility requirements and obtained one of the highest marks in the pre-selection based on qualifications would be invited to attend EPSO’s assessment centre where they would be assessed, by means of a series of ‘multiple choice questions’, on their verbal, numerical and abstract reasoning skills and, by means of two interviews, an e-tray exercise, a group exercise and a written test, on their specific competencies in the field covered by the competition and also on eight general competencies, namely analysis and problem-solving; communication; delivering quality and results; learning and development; prioritising and organising; resilience; working with others; and leadership.
3 The notice of competition also stated that the verbal reasoning test, in the form of ‘multiple choice questions’, would be held in the language chosen as ‘language 1’ by the candidate, consisted of 20 questions and lasted 35 minutes. It was stated that that test was eliminatory and that the pass mark was 10 out of 20.
4 As regards the possibilities for complaints, the notice of competition stated, in particular, in Annex III, setting out the ‘General rules governing open competitions’, under point 6.3, entitled ‘Error in the computer-based multiple choice questions (MCQs)’, the following:
‘The MCQ database is subject to permanent in-depth quality control by EPSO and selection boards.
If you believe that an error in one or more of the MCQs affected your ability to answer, you are entitled to ask for the question(s) to be reviewed by the selection board (under the “neutralisation” procedure).
The selection board may decide to cancel the question containing the error and to redistribute the points among the remaining questions of the test. Only those candidates who received that question will be affected by the recalculation. The marking of the tests remains as indicated in the notice of competition.
Arrangements for complaints are as follows:
– procedure: please contact EPSO … only via the online contact form;
– deadline: within 10 calendar days of the date of your computer-based tests;
– reference: “complaints”;
– additional information: describe what the question was about (content) in order to identify the question(s) concerned, and explain the nature of the alleged error as clearly as possible.
Any complaints merely pointing out alleged issues of translation, for example, without any further details will not be accepted.
Requests received after the deadline or that do not clearly describe the contested question(s) and alleged error will not be taken into account.’
5 The applicant, ZL, applied to take part in the competition at issue and was informed by EPSO, on 12 July 2017, that she had been invited to the assessment centre. She took part in the assessment centre tests on 18 and 19 September 2017 in Brussels (Belgium). The tests consisted of ‘multiple choice question’ verbal, numerical and abstract reasoning tests in the first language chosen by the applicant, namely Spanish, and another series of tests described in paragraph 2 above in the second language chosen by the applicant, namely English.
6 On 1 December 2017, EPSO informed the applicant that the selection board had decided not to place her name on the reserve list of successful candidates in the competition (‘the initial decision of the selection board’). The selection board stated, by way of reasons for its decision, that the applicant, having obtained a mark of 9 out of 20 in the verbal reasoning test, had not obtained the pass mark of 10 out of 20. A table stating, for each of the 20 questions in that test, the answer given by the applicant, identified by a letter, the correct answer, also identified by a letter, and the time devoted to that question, measured in seconds, was included as an annex. It is apparent from that table that the applicant answered 11 questions incorrectly, namely those numbered 1 to 5, 7, 8, 10, 15, 17 and 20 (‘the questions at issue’). In the initial decision of the selection board, it was also stated that EPSO was not able to disclose the questions, as they would be used in other competitions.
7 On 10 December 2017, the applicant submitted a request for review of the initial decision of the selection board. In her request, she sought access to the questions at issue.
8 On 28 February 2018, the applicant lodged with the appointing authority of EUIPO (‘the appointing authority’) a complaint pursuant to Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) against the initial decision of the selection board. In so doing, she made clear that she reserved the right to lodge an additional complaint if her request for review of that decision was rejected.
9 By letter of 7 March 2018, EPSO informed the applicant that the selection board for the competition had reviewed her file in response to her request and that it confirmed its initial decision not to place her name on the reserve list (‘the decision taken after review’). In that regard, the selection board observed that the applicant had not obtained the pass mark in the verbal reasoning test. It also stated that it had ascertained from EPSO, first, that no error had occurred in the computer system and, secondly, that the applicant had not, by following the neutralisation procedure, requested that the selection board review one or more questions. It concluded that there had been no error in the scoring process, that the results provided were correct and that the procedure had been complied with. Lastly, the applicant was informed that she would receive an answer to her request for access to the questions at issue.
10 By electronic communication of 21 March 2018, the applicant asked EPSO when and by what means she would receive the questions at issue.
11 By electronic communication of 22 March 2018, EUIPO suggested to the applicant that she should supplement the complaint which she had lodged against the initial decision of the selection board, taking into account the decision taken after review which she had received in the meantime, and direct that complaint, this time, against the decision taken after review.
12 By electronic communication of 26 April 2018, EPSO sent the applicant a copy of her written test and of the ‘source text’.
13 By electronic communication of 1 May 2018, the applicant explained that she had not requested a copy of her written test and of the source text in her request for review, but a copy of the questions at issue, in Spanish and in the original language.
14 On 7 June 2018, the applicant submitted a supplement to her earlier complaint against the initial decision of the selection board and the decision taken after review.
15 By decision of 27 June 2018, communicated to the applicant on 28 June 2018, the appointing authority rejected the applicant’s complaints (‘the decision rejecting the complaints’).
Procedure and forms of order sought
16 By application lodged at the Court Registry on 28 September 2018, the applicant brought the present action.
17 The applicant claims that the Court should:
– annul the initial decision of the selection board;
– in the alternative, annul the decision taken after review;
– also in the alternative, annul the decision rejecting the complaints;
– grant her access to the text of the questions and answers at issue, in Spanish and in the source language;
– order EUIPO to pay the costs.
18 EUIPO contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
The subject matter of the action
19 Before analysing the substance of the dispute, it is necessary to ascertain the subject matter of the action in the light of the various heads of claim put forward by the applicant.
The applicant’s claims, in so far as they relate to the decisions taken by the selection board
20 By the first head of claim, the applicant requests that the Court annul the initial decision of the selection board.
21 In that regard, it must be pointed out that, under point 6.4 of the general rules governing open competitions, which is set out in Annex III to the notice of competition, a candidate can request a review of any decision taken by the selection board or EPSO that establishes his or her results or determines whether he or she can proceed to the next stage of the competition or is excluded.
22 The applicant submitted a request for review on 10 December 2017.
23 By the decision taken after review, the selection board confirmed its initial decision.
24 By her second head of claim, the applicant requests that the decision taken after review be annulled.
25 According to the 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, for the purposes of Article 90(2) of the Staff Regulations (judgment of 12 December 2018, Colin v Commission, T‑614/16, not published, EU:T:2018:914, paragraph 26; see, also, to that effect, order of 3 March 2017, GX v Commission, T‑556/16, not published, EU:T:2017:139, paragraphs 21 and 22).
26 The decision taken after review therefore replaces the initial decision of the selection board (see judgment of 16 May 2019, Nerantzaki v Commission, T‑813/17, not published, EU:T:2019:335, paragraph 25 and the case-law cited).
27 It follows that it must be held that the first and second heads of claim seek the annulment of the decision taken after review, which constitutes the act adversely affecting the applicant in the present case (‘the contested decision’).
The applicant’s claim as regards the decision rejecting the complaints
28 By the third head of claim, the applicant requests, in the alternative, that the decision rejecting the complaints be annulled.
29 In that regard, it must be pointed out that, according to the case-law, the action, even if formally directed against the rejection of the complaint, has the effect of bringing before the court the act adversely affecting the person concerned against which the complaint was lodged, except where the rejection of the complaint has a different scope from that of the act against which that complaint was lodged (judgment of 21 May 2014, Mocová v Commission, T‑347/12 P, EU:T:2014:268, paragraph 34).
30 Furthermore, in view of the evolving nature of the pre-litigation procedure, an express decision rejecting a complaint which contains only further particulars and thus merely reveals, in a detailed manner, the grounds for confirming the earlier decision does not constitute an act adversely affecting the person concerned (see, to that effect, judgment of 7 June 2005, Cavallaro v Commission, T‑375/02, EU:T:2005:199, paragraphs 65 and 66).
31 Nevertheless, that evolving nature of the pre-litigation procedure means that those further particulars must be taken into consideration in assessing the legality of the contested act (judgment of 12 December 2018, Colin v Commission, T‑614/16, not published, EU:T:2018:914, paragraph 29).
32 In that regard, it must be pointed out that, first, the decision rejecting the complaints confirmed the decision taken after review on the ground, which had already been set out in that decision, that the applicant had not obtained the pass mark of 10 out of 20 in the verbal reasoning test. In so far as it covers that subject matter, that decision is confirmatory in scope and, since it is devoid of any independent content, does not have to be examined, in the context of the third head of claim, separately from the decision taken after review.
33 Secondly, the decision rejecting the complaints rejected, for the first time, the request for access to the questions at issue. In that regard, it has independent content and, since it cannot be regarded as confirmatory, it must specifically be examined in response to the third head of claim.
The request for access to certain documents
34 By the fourth head of claim, the applicant requests access to a copy of the text of the questions and answers at issue in Spanish and in the source language.
35 In the present case, that claim is capable of being understood in two different ways. Consequently, it is capable of being interpreted as requesting that the Court issue a direction to EUIPO to provide the questions at issue. To the extent that it might contain such a request for directions to be issued, the fourth head of claim must be held to be inadmissible. According to the case-law, the Court does not have jurisdiction to issue directions to the administration. Under Article 266 TFEU the administration whose act has been declared void is required to take the necessary measures to comply with the judgment declaring that that act is void (see, to that effect, judgment of 1 September 2010, Skareby v Commission, T‑91/09 P, EU:T:2010:338, paragraph 70, and order of 13 September 2018, WH v EUIPO, T‑819/17, not published, EU:T:2018:566, paragraph 22).
36 In addition, the fourth head of claim could also be understood not as requesting that directions be issued, but as requesting a measure of organisation of procedure. Under Article 89 et seq. of the Rules of Procedure of the General Court, such a measure can be adopted by the Court, which has jurisdiction in that regard. Consequently, the fourth head of claim will have to be examined, and cannot be declared inadmissible, in so far as it might contain a request of that nature.
Substance
37 In support of her action, the applicant puts forward four pleas in law, alleging, respectively:
– failure to comply with the obligation to state reasons and infringement of the principles of legal certainty and transparency and of the rights of the defence;
– infringement of the rights of the defence, of the principle of sound administration and of the right of access to documents;
– that unlawful acts were committed in the competition procedure;
– the existence of a manifest error of assessment vitiating the competition procedure.
38 The Court considers it appropriate to begin by examining the second plea.
The second plea, alleging infringement of the rights of the defence, of the principle of sound administration and of the right of access to documents
39 In the context of the second plea, the applicant submits that she should have been granted access to the multiple-choice questions that she was asked during the verbal reasoning test.
– The first complaint, regarding the refusal to disclose the questions asked during the verbal reasoning test
40 In the context of the first complaint, the applicant submits that European Union law confers on her the right of access to the multiple-choice questions which she was asked during the verbal reasoning test that was included in the competition in which she took part, and that that right was infringed because she was refused the requested access.
41 In that regard, it must be pointed out that the public’s right of access to documents of the European Union’s institutions and bodies is laid down in Article 15(3) TFEU and by Article 42 of the Charter of Fundamental Rights of the European Union.
42 According to Article 15(3) TFEU, general principles and limits on grounds of public or private interest governing this right of access are to be determined by the European Parliament and the Council of the European Union, by means of regulations, acting in accordance with the ordinary legislative procedure.
43 Pursuant to that provision, Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43) was adopted in order, first, to confer on the public the widest possible access to documents of the institutions and, secondly, to organise the situations in which limits have to be imposed on account, inter alia, of the need to protect the internal consultations and deliberations of the institutions (see, to that effect, judgment of 12 November 2015, Alexandrou v Commission, T‑515/14 P and T‑516/14 P, EU:T:2015:844, paragraph 73).
44 In the present case, the regime governing those limits is defined in Article 4 of Regulation No 1049/2001 and is based, in essence, on a balance between, on the one hand, the interests which would be favoured by disclosure of the documents in question and, on the other hand, those which would be jeopardised by such disclosure (see, to that effect, judgment of 12 November 2015, Alexandrou v Commission, T‑515/14 P and T‑516/14 P, EU:T:2015:844, paragraph 75).
45 Pursuant to the second subparagraph of Article 4(3) of Regulation No 1049/2001, the view taken in the case-law is that questions set by selection boards in competitions organised by EPSO must be protected as internal documents covered by the exception relating to the protection of the decision-making process (see, to that effect, judgment of 12 November 2015, Alexandrou v Commission, T‑515/14 P and T‑516/14 P, EU:T:2015:844, paragraph 86).
46 In that context, the administration is entitled to presume, without carrying out a specific and individual examination of the documents to which access is sought, that the disclosure of questions in principle seriously undermines its decision-making process (see, to that effect, judgment of 12 November 2015, Alexandrou v Commission, T‑515/14 P and T‑516/14 P, EU:T:2015:844, paragraph 94).
47 The proceedings of selection boards which are established for competition procedures must remain secret so as to guarantee the independence of those bodies and the objectivity of their proceedings by protecting them from all external interference or pressures which may come from the administration, the candidates concerned or third parties (see, to that effect, judgments of 28 February 1980, Bonu v Council, 89/79, EU:C:1980:60, paragraph 5, and of 12 November 2015, Alexandrou v Commission, T‑515/14 P and T‑516/14 P, EU:T:2015:844, paragraph 80).
48 To that effect, Annex III to the Staff Regulations, which relates to the organisation of competitions, provides, in Article 6 that ‘the proceedings of the Selection Board shall be secret’.
49 In that regard, the European Union Civil Service Tribunal has held that, in the absence of special circumstances, an administration which organises recruitment tests in the form of multiple-choice questions can confine itself to communicating to the candidates who have failed those tests, first, the proportion, as a percentage, of correct answers and, secondly, upon request, the answer which should have been given to each of the questions asked (see, to that effect, judgment of 29 June 2011, Angioi v Commission, F‑7/07, EU:F:2011:97, paragraph 138).
50 Subsequently, the Court itself made clear, on appeal, that in order for candidates to be properly informed, it is sufficient, as a general rule, to communicate to them after the test a grid stating, with regard to the number corresponding to each question, the answer given (in the form of a letter), the correct answer (also in the form of a letter) and the time which the candidate devoted to answering the question (see, to that effect, judgment of 12 November 2015, Alexandrou v Commission, T‑515/14 P and T‑516/14 P, EU:T:2015:844, paragraph 84).
51 In the present case, it is apparent from the initial decision of the selection board that the information referred to in paragraph 50 above was sent to the applicant and that, consequently, the applicant’s request for access was correctly rejected by the decision rejecting the complaints.
52 That finding is criticised by the applicant, for whom multiple-choice questions need not be protected by the secrecy that has to surround the proceedings of the selection board, because such questions, on account of their objective nature, cannot, in themselves, involve a judgment or an assessment which requires protection.
53 In that regard, it must be pointed out that the secrecy of the selection board’s proceedings, which has been laid down by the legislature itself, is, in accordance with the case-law, subject to a presumption that allows the European Union’s bodies and institutions to refuse access to documents which are associated with those proceedings without having to carry out a specific examination by document or by category of document in order to ascertain whether their communication would undermine the protected interest (see respectively paragraph 46 and paragraph 48 above).
54 That case-law forms part of a body of case-law that seeks to ensure that candidates are protected by rules regarding the composition of selection boards, in order to ensure, inter alia, that the persons sitting on those selection boards are qualified, and to ensure that procedures are carried out, including the adoption of marking criteria that are common to the candidates (see, in particular, judgments of 10 November 2004, Vonier v Commission, T‑165/03, EU:T:2004:331; of 29 September 2010, Brune v Commission, F‑5/08, EU:F:2010:111; of 29 September 2010, Honnefelder v Commission, F‑41/08, EU:F:2010:112; and of 12 February 2014, De Mendoza Asensi v Commission, F‑127/11, EU:F:2014:14).
55 Beyond those safeguards, the case-law makes it possible, by way of exception, to communicate multiple-choice questions where two conditions are cumulatively satisfied:
– first, the applicant must, in his or her complaint, have specifically disputed the relevance of certain questions or the validity of the answer adopted as correct; and
– secondly, the difference between his or her results and the pass threshold must be such that, assuming that his or her complaint is well founded, the applicant could be among the candidates who passed the tests in question (see, to that effect, judgment of 12 November 2015, Alexandrou v Commission, T‑515/14 P and T‑516/14 P, EU:T:2015:844, paragraph 98).
56 In the present case, it must be held, without it being necessary to examine the second of those conditions, that the first one is not satisfied, since the applicant confined herself to criticising the questions in a general manner without specifically identifying how they could give rise to a particular problem or, as is, however, required by the case-law, casting doubt on their relevance.
57 It is true that the notice of competition also envisaged the possibility of the source texts or test assignments being published.
58 That possibility was, however, subject, under point 5.5 of Annex III to the notice of competition, to a requirement which is also not met in the present case, namely the condition that the questions concerned are not intended for re-use in a future competition.
59 The multiple-choice questions which are used during competitions are put in a database from which some of them are extracted, by computer, in a random manner, in order to be asked during future competitions or, if a competition lasts for several days, during tests which take place on the days which follow (see, to that effect, judgment of 12 November 2015, Alexandrou v Commission, T‑515/14 P and T‑516/14 P, EU:T:2015:844, paragraph 81).
60 In order to avoid upsetting the equality between the participants, the case-law prohibits, in such a situation, the communication of the questions, even if many questions are concerned and only some of them will be used, so as to avoid the possibility of some candidates having knowledge of questions that might be asked and preparing them when not all of the candidates might have that opportunity (see, to that effect, judgment of 12 November 2015, Alexandrou v Commission, T‑515/14 P and T‑516/14 P, EU:T:2015:844, paragraph 82).
61 Consequently, it must be held, on all of the above grounds, that, contrary to what the applicant submits, she did not have a right to obtain the questions at issue.
62 For that reason, the complaint must be rejected. Furthermore, it is necessary to reject the fourth head of claim in so far as it is capable of being interpreted as containing a request for a measure of organisation of procedure, in particular on the grounds set out in paragraph 56 above.
– The second complaint, regarding infringement of the principle of transparency, of the rights of the defence and of certain decisions given by the Ombudsman
63 By her second complaint, the applicant criticises the contested decision by relying on the principle of transparency, the rights of the defence and various decisions given by the European Ombudsman.
64 In the first place, it is sufficient to state that, as has been explained in paragraphs 48 to 51 above, the principle of transparency was not infringed by the contested decision, in which a grid stating, with regard to the number of each question, the answer given (in the form of a letter), the correct answer (also in the form of a letter) and the time devoted to answering was, in accordance with the case-law, communicated to the applicant. The argument cannot therefore be accepted.
65 In the second place, the applicant submits that her rights of defence have been infringed, because she was requested to adduce evidence which it was impossible to provide. She argues that she has been refused access to the questions at issue although it is precisely that access that would enable her to establish the existence of errors.
66 In that regard, it should be noted that observance of the rights of the defence is a fundamental principle of European Union law (see, to that effect, judgment of 3 July 2014, Kamino International Logistics and Datema Hellmann Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:2041, paragraph 28), the importance of which has been recognised by its inclusion in Article 48 of the Charter of Fundamental Rights.
67 That principle includes the obligation to provide in the contested act the relevant and necessary information to enable the persons concerned to dispute that information and to give the Court the opportunity to exercise its power of review (see, to that effect, judgment of 12 November 2015, Alexandrou v Commission, T‑515/14 P and T‑516/14 P, EU:T:2015:844, paragraph 175).
68 According to the case-law, in the absence of any indicia calling into question their legality, acts adopted by the institutions are presumed to be lawful (see, to that effect, judgments of 19 November 1996, Brulant v Parliament, T‑272/94, EU:T:1996:167, paragraph 35; of 13 July 2000, Griesel v Council, T‑157/99, EU:T:2000:192, paragraph 25; and of 5 December 2000, Gooch v Commission, T‑197/99, EU:T:2000:282, paragraph 51).
69 In that context, it is for the applicant to provide, at the very least, indicia of the truth or probability of the facts in support of his or her claim, indicia which must be sufficiently precise, objective and consistent (see, to that effect, judgments of 6 March 2001, Connolly v Commission, C‑274/99 P, EU:C:2001:127, paragraph 113, and of 4 February 2010, Wiame v Commission, F‑15/08, EU:F:2010:7, paragraph 21).
70 It is apparent from her written pleadings that, in the present case, the applicant confined herself to making claims, by stating for example that ‘the opposing statement’s lack of proof ma[de] the statement true’, although she could have provided various particulars required by the case-law by combining, first, the recollection which she may have had of the questions which she regarded as problematic, a recollection which she could have made a note of on leaving the examination, and, secondly, the information which the administration provided her with when it announced her results.
71 The argument must therefore be rejected.
72 In the third place, the applicant relies on decisions of the Ombudsman stating that the communication of questions or a copy thereof to unsuccessful candidates who request them complies with the principle of transparency which must, according to the applicant, guide the actions of the institutions.
73 In that regard, it must be pointed out that, as the applicant maintains, the Ombudsman stated, in Decision 2097/2002/GG of 4 September 2003, that, in his view, the secrecy of the selection board’s proceedings could not be invoked against candidates wishing to obtain a marked copy of their written examination and, in Decision 1312/2007/IP of 5 February 2008, that the possibility of multiple-choice questions being reused did not justify a refusal to communicate them.
74 However, such definitions of a position on the part of the Ombudsman cannot bind the Courts of the European Union, which alone have jurisdiction, under the treaties, to assess whether acts which are called into question before it are lawful (see, to that effect, judgments of 25 October 2007, Komninou and Others v Commission, C‑167/06 P, not published, EU:C:2007:633, paragraph 44, and of 8 May 2019, Stamatopoulos v ENISA, T‑99/18, not published, EU:T:2019:305, paragraph 33).
75 In the present case, it must be pointed out that, in reconciling the principle of transparency with the protection of the deliberative process, the Courts of the European Union have held that the secrecy of the selection board’s proceedings has to be ensured, but that it is, however, possible for candidates wishing to do so, to obtain the communication of the questions where the conditions referred to in paragraph 55 above are satisfied.
76 However, it must be stated in that regard that the applicant has failed to provide the indicia which are required by the case-law in order to satisfy those conditions and, in particular, that requiring her to provide the Court with specific particulars regarding the irrelevance of the questions at issue or the validity of the answer.
77 The argument must therefore be rejected and, accordingly, in view of the considerations set out above, the second complaint and the second plea must be rejected in their entirety.
The first plea, alleging insufficient reasoning
78 By her first plea, the applicant submits that the obligation to state reasons has not been complied with.
79 In that regard, it must be borne in mind that, according to the second paragraph of Article 25 of the Staff Regulations, any decision adversely affecting a particular person must state the grounds on which it is based and that the obligation laid down in that provision reproduces the more general obligation laid down in the second paragraph of Article 296 TFEU (see, to that effect, judgment of 12 February 2019, TV v Council, T‑453/17, not published, EU:T:2019:83, paragraph 101).
80 The applicant puts forward two complaints.
81 In the first place, she submits that the grounds relied on in order to justify the decisions adopted with regard to her were not sufficient to meet the standard required by the case-law relating to the obligation to state reasons.
82 In that regard, it must be pointed out that the adequacy of the statement of reasons must be assessed in relation to the specific circumstances of the case, in particular the content of the act, the nature of the reasons given and the interest which the addressee may have in receiving explanations (judgment of 8 December 2005, Reynolds v Parliament, T‑237/00, EU:T:2005:437, paragraph 93).
83 In the present case, it is sufficient to state that the statement of reasons with which the applicant was provided corresponds to that required by the case-law in that type of situation, namely the communication of a grid relating to the questions in the test at issue, stating the number of the questions, the answers given and correct answers in the form of letters, and the time taken to answer (see paragraph 50 above).
84 According to the case-law, that information is as a general rule sufficient to enable the Court to exercise its power to review the legality of decisions which adversely affected those concerned and to provide those concerned with information that enables them to assess whether those decisions are well founded or subject to a defect allowing their legality to be challenged (see, to that effect, judgment of 12 November 2015, Alexandrou v Commission, T‑515/14 P and T‑516/14 P, EU:T:2015:844, paragraph 84).
85 The complaint must therefore be rejected.
86 In the second place, the applicant criticises the lack of any reference to the relevant case-law and the lack of communication of documents justifying the position adopted in the contested decision.
87 In that regard, it must be pointed out that the lack of any reference to the relevant case-law does not prevent the applicant from understanding the basis of the contested decision, since the selection board and, thereafter, EUIPO sufficiently set out the legal considerations having decisive importance in the context of that decision.
88 Furthermore, the Court holds that the selection board and the appointing authority sufficiently set out the facts and considerations on which the contested decision was based, having regard to the arguments put forward by the applicant, and that no documents were necessary in order to understand those particulars.
89 The present complaint must therefore be rejected and, accordingly, the first plea must be rejected in its entirety.
The third plea, alleging that unlawful acts were committed in the competition procedure
90 By her third plea, the applicant disputes various aspects of the competition during which her application was rejected. In that context, she makes four complaints.
91 By her first complaint, she submits that the possibility of taking issue with the questions could not be confined to the ‘neutralisation’ procedure established in the notice of competition.
92 In that regard, it must be stated that, according to point 6.3 of Annex III to the notice of competition, it was possible for candidates to submit requests seeking the ‘neutralisation’ of the questions, which, in their opinion, should not, for various reasons, be taken into account in the assessment.
93 As stated in that provision, requests of that nature had to be submitted within 10 days of the date on which the test took place and it was made clear that requests received after the deadline would not be taken into account and that the questions which were ‘neutralised’ at the end of that procedure would be cancelled with regard to all the candidates.
94 Moreover, it is apparent from the case-law that it is not necessary, for the purpose of disputing information which appears in a notice of competition, to submit a complaint in order to bring an action against an act adopted by a selection board before the Courts of the European Union (see, to that effect, judgment of 21 March 2013, Taghani v Commission, F‑93/11, EU:F:2013:40, paragraph 40).
95 It follows that the applicant was in a position to dispute, before the Courts of the European Union, within the limits established by the case-law, the questions which had been asked during the competition in which she had participated, without having to take any prior action, such as submitting a request for ‘neutralisation’.
96 However, the purpose of point 6.3 of Annex III to the notice of competition is not to restrict access to the Courts in the case of difficulties connected with the questions, but to make it possible for candidates to express their doubts regarding questions which seem to them to be inadequate, by explaining the procedure to be followed in order to make use of that possibility.
97 In that regard, it is lawful, for a body which is responsible for organising a competition, to request that candidates communicate any complaints that they might have within a relatively short period of time, so that reactions are received as soon as possible and the process of marking can be started without delay.
98 In any event, the applicant’s access to the Courts of the European Union has not been obstructed because it has been possible for her to bring the present action and submit, in the context of that action, all the criticisms which she wished to have the Court examine.
99 The complaint must therefore be rejected.
100 By her second complaint, the applicant submits that the selection board should have checked the clarity of the questions at issue, the translation of those questions and, generally, the proper conduct of computer-based tests.
101 In that regard, it must be pointed out that the selection board for a competition has a wide discretion as regards the arrangements for and detailed content of the tests (see, to that effect, judgments of 17 January 2001, Gerochristos v Commission, T‑189/99, EU:T:2001:12, paragraph 25, and of 15 April 2010, Matos Martins v Commission, F‑2/07, EU:F:2010:22, paragraph 161).
102 It is evident that, in the present case, the applicant has not submitted any information or indicia that make it possible to ascertain or even suspect that there were problems with regard to clarity or translation or technical difficulties which were capable of affecting the legality of the competition or certain aspects thereof.
103 In any event, it is useful to point out that the questions at issue, which other candidates were asked during the same competition and which they have been asked in other similar procedures, have not caused any specific difficulties in that context and, at the very least, no difficulties which could have justified, with regard to those questions, any additional vigilance on the part of the selection board.
104 Accordingly, it is apparent from the data with which the Court has been provided that, in the competitions in which the questions at issue were asked in Spanish, the rate of correct answers varied, depending on the question, between 57% and 95%, which suggests that, in those competitions, the majority of the candidates who had to answer those questions were able to provide a satisfactory answer to them and therefore that the questions were comprehensible and satisfactory.
105 Furthermore, in the competition at issue, only two candidates, one of whom was the applicant, did not obtain the pass mark of 10 out of 20 in the test which included those questions, although 47 candidates sat that test in Spanish.
106 Likewise, the rate of correct answers given by candidates in Spanish to the questions at issue was substantially higher than 50% in all the competitions in which they were asked.
107 Lastly, the average mark obtained in Spanish (14.45) in the test concerned proved to be higher than the marks allocated to the candidates who had chosen to sit that test in French (10.86), in German (14.3) or in English (12.81), which tends to show that the Spanish version of the questions did not give rise to any particular difficulty.
108 In the light of the data provided by EUIPO, it must be held that the selection board did not fail to comply with its obligations as regards the checking of the questions at issue, the scrutiny of their translation into Spanish and, generally, the proper conduct of the tests.
109 For that reason, the complaint must be rejected.
110 By her third complaint, the applicant submits that she had to spend a significant amount of her time on the last question, which did not allow her to check her answers to the other questions.
111 In that regard, it must be pointed out that, in making that complaint, the applicant describes a factual situation without providing any information or setting out any criticism of the question at issue that is capable of affecting the legality of the competition or of some of the aspects thereof, particularly because, as has been stated in response to the preceding complaints, the examination of the results obtained by the candidates, in particular the candidates who chose Spanish, does not make it possible to detect the existence of any error or irregularity.
112 For that reason, the complaint must therefore be rejected.
113 By her fourth complaint, the applicant submits that the selection board erred in delegating to EPSO the power to review the results obtained by the candidates.
114 In that regard, it must be pointed out that, according to the first paragraph of Article 30 of the Staff Regulations and the first paragraph of Article 5 of Annex III to those Staff Regulations, it is for the selection board to draw up a list of suitable candidates and to draw up a list of those who meet the requirements set out in the notice of competition.
115 Those provisions were complied with in the present case, because the notice of competition stated in point 3.2 of Annex III thereto that the selection board was the body responsible for deciding on the difficulty of the ‘multiple-choice question’ tests and for approving their content on the basis of proposals made by EPSO.
116 Furthermore, according to the case-law, both the choice and the assessment of the subjects of the questions set during a competition fall outside the remit of EPSO (see, to that effect, judgment of 14 December 2011, Commission v Pachtitis, T‑361/10 P, EU:T:2011:742, paragraph 52).
117 Furthermore, it is not apparent from the decision taken after review that the selection board delegated any powers to EPSO. Indeed, it was the selection board that took the decision not to put the applicant on the reserve list, since the applicant had not obtained the pass mark for the verbal reasoning test in the ‘multiple choice question’ tests. It was only at the request of the selection board that EPSO checked the functioning of the computer system, since no complaint in that regard had been filed in a neutralisation procedure. EPSO therefore merely carried out, on behalf of the selection board, technical checks connected with the procedure and the marking. Those tasks of an organisational nature are not equivalent to those which would be carried out in the event of a delegation of powers and are therefore in accordance with what is allowed by the case-law (see, to that effect, judgment of 14 December 2011, Commission v Vicente Carbajosa and Others, T‑6/11 P, EU:T:2011:747, paragraph 67).
118 The present complaint must therefore be rejected and, accordingly, the third plea must be rejected in its entirety.
The fourth plea, alleging the existence of a manifest error of assessment vitiating the competition procedure
119 By her fourth plea, the applicant submits that the appointing authority erred in considering that it was bound by the incorrect assessments which the selection board made in its initial decision.
120 In that regard, it must be pointed out that, according to the case-law, the appointing authority must respect the discretion conferred on selection boards and cannot therefore, on the pretext that it would have made a different choice, annul or amend a decision taken by a selection board. At the same time, the appointing authority cannot, in exercising its own powers, take decisions which would be vitiated by illegality (see, to that effect, judgment of 20 February 1992, Parliament v Hanning, C‑345/90 P, EU:C:1992:79, paragraph 22).
121 For that reason, it cannot be bound by decisions of selection boards the unlawfulness of which would be liable, as a consequence, to vitiate its own decisions.
122 Consequently, the appointing authority, in order to avoid adopting decisions which would be unlawful on account of a defect affecting a decision taken by a selection board, is required to verify the legality of decisions taken by the selection board (see, to that effect, judgment of 23 October 1986, Schwiering v Court of Auditors, 142/85, EU:C:1986:405, paragraph 20).
123 In that context, it must ascertain, in particular, whether the selection board’s exercise of its discretion was free from manifest errors, since such defects are unlawful (judgment of 23 October 2012, Eklund v Commission, F‑57/11, EU:F:2012:145, paragraph 50).
124 In the present case, the applicant confined herself to relying, in essence, on the existence of a probatio diabolica, that is to say, of proof which it is impossible to provide, on account of the refusal of access to the questions, which did not allow her to dispute them in a detailed manner.
125 In that regard, is must be borne in mind that, as stated in paragraph 68 above, in the absence of any indicia calling into question their legality, acts adopted by the institutions are presumed to be lawful.
126 As was already pointed out in the decision rejecting the complaints, the applicant did not in any way adduce evidence of an error on the part of the selection board, and even less so of a manifest error. As has been stated in paragraph 56 above, she confined herself to criticising the questions in a general manner without specifically identifying how they could give rise to a particular problem or, as is, however, required by the case-law, casting doubt on their relevance.
127 Consequently, the fourth plea must be rejected as unfounded and, since all the pleas put forward by the applicant have been rejected, the action must be dismissed in its entirety.
Costs
128 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.
129 Since the applicant has been unsuccessful, she must be ordered to bear her own costs and to pay those incurred by EUIPO, in accordance with the form of order sought by EUIPO.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1. Dismisses the action;
2. Orders ZL to pay the costs.
Gervasoni | Nihoul | Martín y Pérez de Nanclares |
Delivered in open court in Luxembourg on 23 September 2020.