Provisional text
JUDGMENT OF THE GENERAL COURT (Ninth Chamber)
1 December 2021 (*)
(Access to documents – Regulation (EC) No 1049/2001 – Documents relating to the oral test in a competition – Partial refusal of access – Method for rounding scores – Weightings assigned to the different parts and sub-parts of the oral test – Secrecy of the selection board’s proceedings – Regulation (EU) 2018/1725 – No need to adjudicate in part)
In Case T‑265/20,
JR, represented by L. Levi and A. Champetier, lawyers,
applicant,
v
European Commission, represented by D. Milanowska, C. Ehrbar and H. Kranenborg, acting as Agents,
defendant,
APPLICATION under Article 263 TFEU seeking annulment of the Commission’s decisions of 28 February 2020 and 9 April 2020 refusing the applicant access to certain documents relating to the internal competition COM/03/AD/18 (AD 6) – 1 – Administrators,
THE GENERAL COURT (Ninth Chamber),
composed of M.J. Costeira, President, M. Kancheva and T. Perišin (Rapporteur), Judges,
Registrar: E. Coulon,
gives the following
Judgment
Background to the dispute
1 On 16 December 2018, the applicant, JR, applied for internal competition COM/03/AD/18 (AD 6) – 1 – Administrators, bearing the reference number 35-20/11/2018 (‘the competition’), organised by the European Commission.
2 On 6 June 2019, the applicant took the written test in the competition. She passed that test.
3 On 23 September 2019, the applicant took the oral test in the competition.
4 Title III, section 4 of the competition notice stated that the oral test for the AD function group consisted of two parts, described as follows:
‘1. an interview … to assess:
– the main duties [the candidate has] carried out and the skills … acquired in the course of [his/her] professional career and
– the [candidate’s] 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 [a] briefing on a subject related to a European Union policy …’
5 It was stated in that section that the overall mark for both parts of the oral test referred to above consisted of a mark out of 20, the pass mark being 10 points.
6 Section 5 of that title of the competition notice stated that the selection board would place on the reserve list the names of the candidates with the highest marks, and at least the pass mark, in the oral test, within the limit of the number of successful candidates sought.
7 By letter of 16 December 2019, the Commission informed the applicant that she was not included on the reserve list for the competition. In that letter, the Commission stated that the applicant had obtained a score of 13 points out of 20 in the oral examination, whereas the minimum score required for inclusion on that reserve list was 14 out of 20. The Commission informed the applicant that the selection board had concluded that the overall assessment for her oral examination was ‘good’ on the basis of three elements of assessment, namely, first, the correspondence between the experience and the attributes required by the internal competition, an element in respect of which the applicant had been assessed as ‘strong’, second, ability and motivation, an element in respect of which the applicant had been assessed as ‘strong’ and, third, a structured presentation on a theme, in respect of which the applicant had been assessed as ‘good’.
8 By email of 20 December 2019, the applicant submitted to the Commission a request for review of the decision of 16 December 2019 and a request for information and for access to documents.
9 As regards the final part of her request, the applicant informed the Commission that she wished to have access to the following information and documents:
– detailed explanations of the way in which the verbal assessments had been converted into numerical marks, with the marking grids enabling each verbal assessment to be linked to a mark expressed in figures;
– detailed assessments of her performance in each of the three elements appraised and marked in the oral test and the corresponding marking grid;
– all relevant information relating to the three marks awarded to her;
– any weighting method used;
– any method of rounding used;
– the record and evaluation grids relating to her oral test and the flip chart she used during the oral test to support her oral presentation (‘the flip chart’);
– any other relevant documents relating to her performance during that test.
10 On 10 January 2020, the Commission sent the applicant an initial reply, stating that her request for review had been forwarded to the selection board. The Commission also pointed out that the selection board’s proceedings were secret, and therefore, with the exception of the information communicated on the applicant’s ‘EPSO account’, it could not communicate to her either the evaluation grid or the selection board’s report, or the individual marks of the members of the selection board, even if they were made anonymous.
11 On 31 January 2020, the applicant sent the Commission an email entitled ‘Confirmatory application pursuant to Article 7(2) of Regulation (EC) No 1049/2001’, in which she reiterated her request for access to the documents and information referred to in paragraph 9 above. In support of that application, the applicant relied on, inter alia, recital 11 of 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) and Article 9(1)(b) of Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ 2018 L 295, p. 39). In addition, she submitted that the Commission had failed to set out the reasons why access to the documents and information that she had mentioned in that request would undermine the secrecy of the selection board’s proceedings, that the exceptions to the right of access to documents had to be interpreted restrictively and that she had proved the existence of a legitimate interest in obtaining access to those documents and that information, in particular with a view to understanding the overall mark awarded to her.
12 By email of 24 February 2020, the Commission stated that, since the applicant’s request of 20 December 2019 did not refer to Regulation No 1049/2001, the Commission had not treated it as an application falling within the scope of that regulation, but in accordance with the rules of sound administration. Thus, the Commission emphasised that its email of 10 January 2020 addressed to the applicant cannot be regarded as a reply falling within the scope of that regulation.
13 The Commission also informed the applicant that every application for access to documents, in accordance with Regulation No 1049/2001, was registered by that institution, noting the applicant’s name and address, in a database accessible to a relatively large number of staff and asked the applicant to confirm explicitly that she wanted her email of 20 December 2019 to be treated as such an application for access to documents.
14 On 28 February 2020, the Commission sent an email to the applicant entitled ‘access to your personal data’ (‘the decision of 28 February 2020’). In that email, the Commission invited the applicant to consult the flip chart at the Commission’s offices and to speak to the chairperson of the selection board for an oral report on her performance. In addition, the applicant was sent a grid showing the correspondence between the numerical marks from 1 to 10 awarded by the selection board and the verbal assessments ‘insufficient’, ‘good’, ‘strong’, ‘very strong’, ‘excellent’ and ‘outstanding’ (‘the conversion grid’). The Commission stated that the assessment of the applicant’s performance in all stages of the competition had been carried out in accordance with that grid.
15 On 4 March 2020, the applicant requested by email an appointment to consult the flip chart and to receive an assessment from the selection board of her performance during the oral test.
16 On 13 March 2020, the applicant sent an email to the Commission repeating her request for access to the flip chart and a meeting with the chairperson of the selection board. She also requested access to the weighting and rounding methods used by the selection board, taking the view that those methods formed part of her personal data since they were intrinsically linked to her final mark and the conversion grid that had been communicated to her. Furthermore, she pointed out that Regulation No 1049/2001 did not require an application for access to documents to be made in a specific way.
17 By email of 9 April 2020 (‘the decision of 9 April 2020’), the Commission informed the applicant that it considered that the weighting and rounding methods were covered by the secrecy of the selection board’s proceedings, in accordance with Article 6 of Annex III to the Staff Regulations of Officials of the European Union (‘the Staff Regulations’).
18 By decision of 15 April 2020, the selection board rejected the request for review of the decision of 16 December 2019 not to include the applicant on the reserve list for the competition, with the result that that decision had to be confirmed. The selection board stated that, before the oral test, it had defined the content of that test, the questions envisaged, the assessment criteria, the marking procedure and the weighting of each component of that test set out in the competition notice.
Events subsequent to the bringing of the action
19 On 16 July 2020, the Commission sent the applicant an electronic copy of the flip chart.
20 On 22 July 2020, a meeting was held by video conference between the applicant, the chairperson of the selection board and a representative of the Commission’s Directorate-General for Human Resources and Security. According to the minutes of that meeting, at the meeting the applicant received oral comments from the chairperson of the selection board with detailed assessments concerning her performance during her oral presentation and the interview. The chairperson of the selection board also informed the applicant that the components of the oral test had been assessed on the basis of a weighting which had been determined before the start of the competition and that there was a rounding of points which was fixed at 0.25 points.
Procedure and forms of order sought
21 By application lodged at the Registry of the General Court on 4 May 2020, the applicant brought the present action.
22 On 24 July 2020, the Commission lodged its defence at the Registry of the General Court.
23 On 5 October 2020, the applicant lodged her reply at the Registry of the General Court.
24 On 17 November 2020, the Commission lodged its rejoinder at the Registry of the General Court.
25 By a measure of organisation of procedure of 28 April 2021, the General Court invited the parties to submit their observations on the applicant’s possible loss of interest in bringing proceedings with respect to the Commission’s refusal to grant her access to the documents to which she was finally given access, in accordance with Article 131(1) of the Rules of Procedure of the General Court.
26 The Commission and the applicant complied with that measure within the prescribed period.
27 By order of 5 May 2021, the General Court ordered the Commission, on the basis of Article 91(c) of the Rules of Procedure, to produce the document containing the weighting method used by the selection board for each component of the oral test. The Commission complied with that request within the prescribed period. In accordance with Article 104 of the Rules of Procedure, that document was not communicated to the applicant.
28 By decision of 18 August 2021, following the death of Judge Berke on 1 August 2021, a new judge was designated in order to complete the formation of the Court.
29 The General Court (Ninth Chamber) decided, pursuant to Article 106(3) of the Rules of Procedure, to rule on the action without an oral part of the procedure.
30 The applicant claims that the Court should:
– annul the Commission’s decisions of 28 February 2020 and 9 April 2020;
– 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
The applicant’s partial loss of interest in bringing proceedings
32 In her reply to the measure of organisation of procedure of 28 April 2021, the applicant states that the Commission has not explained how her overall performance amounted to a verbal assessment of ‘good’, how that was converted into a numerical mark of 13 out of 20, or how the rounding method was applied in her specific case. She points out that, even though she has formally received the conversion grid, an electronic copy of the flip chart, oral comments from the chairperson of the selection board and the method of rounding the final mark, the documents or information thus communicated are incomplete, in so far as they do not include the instrument which is intrinsically linked to them, namely the weighting method used. Thus, the applicant considers that her request has not been complied with and that she still has an interest in bringing proceedings.
33 The Commission considers that the applicant no longer has an interest in bringing proceedings against the Commission’s acts which refused access to the information and documents mentioned in paragraph 32 above, to which she was finally given access. Therefore, according to the Commission, there is no longer any need to adjudicate on those documents, in accordance with Article 131(1) of the Rules of Procedure.
34 In that regard, it must be borne in mind that, according to settled case-law, an action for annulment brought by a natural or legal person is admissible only in so far as the applicant has an interest in the annulment of the contested measure. Such an interest, which is an essential and fundamental prerequisite for any legal proceedings, presupposes that the annulment of that measure must be liable, in itself, to give rise to legal consequences and that the action may therefore, if successful, procure an advantage for the party bringing it (see, to that effect, judgment of 21 January 2021, Leino-Sandberg v Parliament, C‑761/18 P, EU:C:2021:52, paragraph 32 and the case-law cited).
35 In order to ensure the proper administration of justice, any person bringing legal proceedings must have a vested and current interest in doing so. An applicant’s interest in bringing proceedings cannot concern a future and hypothetical situation (see, to that effect, judgments of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 56, and of 30 September 2009, Lior v Commission, T‑192/01 and T‑245/04, not published, EU:T:2009:365, paragraph 247).
36 An applicant’s interest in bringing proceedings must, in the light of the purpose of the action, exist at the stage of lodging the action, failing which the action will be inadmissible. The subject matter of the dispute, like the interest in bringing proceedings, must continue until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be liable, if successful, to procure an advantage for the party bringing it (see judgment of 30 April 2020, Izba Gospodarcza Producentów i Operatorów Urządzeń Rozrywkowych v Commission, C‑560/18 P, EU:C:2020:330, paragraph 38 and the case-law cited).
37 An applicant may, in certain cases, retain an interest in seeking annulment of the contested act in order to induce the author of that act to make suitable amendments in the future, and thereby avoid the risk that the unlawfulness alleged in respect of the act in question will be repeated. The continuation of that interest presupposes that that unlawfulness is liable to recur in the future, irrespective of the particular circumstances of the case in question (judgment of 4 September 2018, ClientEarth v Commission, C‑57/16 P, EU:C:2018:660, paragraph 48).
38 It also follows from the case-law of the Court of Justice that the question whether an applicant retains his interest in bringing proceedings must be assessed in the light of the specific circumstances, taking account, in particular, of the consequences of the alleged unlawfulness and of the nature of the damage claimed to have been sustained (judgment of 28 May 2013, Abdulrahim v Council and Commission, C‑239/12 P, EU:C:2013:331, paragraph 65).
39 In the present case, it is apparent from the documents before the Court that the Commission communicated to the applicant, first, by decision of 28 February 2020, the conversion grid (see paragraph 14 above), second, by email of 16 July 2020, an electronic copy of the flip chart (see paragraph 19 above), third, at the meeting by video conference on 22 July 2020, oral comments from the chairperson of the selection board with detailed assessments concerning her performance during her oral presentation and the interview (see paragraph 20 above) and, fourth, at the same meeting, the method for rounding scores used by the selection board (see paragraph 20 above).
40 Therefore, the applicant was provided with all of the documents she requested with the sole exception of the document containing the method for assigning the weightings to the components of the oral test (‘the weightings’). The applicant submits, in the reply, that she is still waiting to receive that document.
41 It follows that, contrary to what the applicant appears to claim, she no longer has an interest in bringing proceedings against the Commission’s decisions of 28 February 2020 and 9 April 2020 in so far as they refused access to the documents and information referred to in paragraph 39 above. The applicant submits that the documents and information communicated to her are incomplete in that they do not include the instrument which is intrinsically linked to them, namely the weightings used by the selection board. That argument shows precisely that her request for access to those documents and that information has been complied with and that she has an ongoing interest in bringing proceedings only in so far as the present action seeks annulment of the Commission’s decision of 9 April 2020 in so far as it refuses her access to the document containing the weightings.
42 Moreover, it is apparent from the applicant’s observations, referred to in paragraph 32 above, that she does not rely on any residual interest as referred to in the case-law mentioned in paragraph 36 above. In those observations, she does not argue that the unlawfulness relied upon is liable to recur in the future. By contrast, she seeks to challenge the adequacy of the selection board’s explanations as to the mark awarded to her, a matter that goes beyond the subject matter of the present dispute.
43 Accordingly, it must be held that the present action has become partially devoid of purpose, since the applicant has lost her interest in bringing proceedings in respect of the documents to which she had access (see, to that effect, judgment of 9 September 2011, LPN v Commission, T‑29/08, EU:T:2011:448, paragraph 57).
44 It follows that there is no longer any need to adjudicate on the form of order sought by the applicant in so far as, by the Commission’s decisions of 28 February 2020 and 9 April 2020, the Commission refused the applicant access to the rounding method used by the selection board.
45 Consequently, the subject matter of the present action is limited to the head of claim seeking annulment of the Commission’s decision of 9 April 2020 in so far as it refuses access to a document containing the weightings assigned to the components of the oral test set out in the competition notice (‘the contested decision’).
Substance
The applicable legal framework and the pleas in law in support of the action
46 As a preliminary point, it must be observed that, even though the applicant bases her main line of argument on her right of access to her personal data, she implicitly alleges infringement of the right of access to documents, as implemented by Regulation No 1049/2001.
47 In that regard, it must be observed that the fact that the Commission did not consider that the applicant’s application for access was based on Regulation No 1049/2001 is irrelevant for the purposes of determining the legal framework applicable to the present action, since the condition laid down in Article 6(1) thereof was satisfied by the request for information and for access to documents submitted by the applicant on 20 December 2019 (see paragraphs 8 and 9 above).
48 Under Article 6(1) of Regulation No 1049/2001, applications for access to a document are to be made in any written form, including electronic form, in one of the languages referred to in Article 314 of the EC Treaty and in a sufficiently precise manner to enable the institution to identify the document. Since the applicant’s request had been made in writing and in a sufficiently precise manner to enable the institution to identify the documents concerned, it had to be regarded as an application based on Regulation No 1049/2001, as could moreover be inferred from the confirmatory application made by the applicant on 31 January 2020.
49 Consequently, despite the headings of the pleas in law in the application, it is clear from the applicant’s arguments that, in the present action, she relies, in essence, on four pleas in law, the first two of which are raised explicitly and the last two implicitly.
50 The first plea alleges infringement of the right to good administration, enshrined in Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’), and of the right of access to personal data, laid down in Article 17 of Regulation 2018/1725. The second plea alleges breach of the principle of sound administration and of Article 14(1) and (2) and Article 17 of Regulation 2018/1725. The third plea alleges breach of the duty to state reasons. The fourth plea alleges infringement of the right of access to documents and an erroneous interpretation of Article 6 of Annex III to the Staff Regulations.
51 The General Court considers it appropriate to examine the first two pleas in law together, in view of the fact that the arguments put forward in the context of those two pleas overlap. Next, the third and fourth pleas in law must be examined separately.
The first and second pleas in law, alleging infringement of Regulation 2018/1725 and of the right to sound administration
52 By the first plea, the applicant submits, in essence, that the Commission’s refusal to grant her access to the weightings used by the selection board for each component of the oral test, on the ground that that weighting is covered by the secrecy of the selection board’s proceedings, entails an infringement of the right of access to personal data and the right to sound administration.
53 In that regard, the applicant considers that the correspondence grid communicated by the Commission by the decision of 28 February 2020 and the rounding and weighting methods used to award her final mark contained personal data.
54 According to the applicant, during the oral test of a competition, the selection board processes the candidate’s personal data by listening to the responses he or she gives to the questions for the purposes of assessing the merits of that candidate in the light of the requirements of the competition notice by taking into account the correspondence grid, the weightings and the method for rounding.
55 The applicant considers that, since her personal data have thus been the subject of processing by the Commission, within the meaning of Article 3(3) of Regulation 2018/1725, she has a right of access to those data unless one of the exceptions provided for in Article 25 of that regulation applies.
56 Finally, the applicant accuses the Commission of having infringed her right to sound administration, in so far as access to the file was necessary in order for the applicant to exercise her fundamental right of defence and to enable her to demonstrate that the decision not to include her on the reserve list was incorrect.
57 By the second plea, the applicant complains that the Commission failed to fulfil its obligation to facilitate the exercise of the right of access to personal data, in breach of Article 14(1) and (2) and Article 17 of Regulation 2018/1725 and of the principle of sound administration.
58 The Commission disputes the applicant’s arguments.
59 In the first place, with regard to the right of access to personal data, it should be recalled that the present action seeks annulment of the Commission’s decision of 9 April 2020 in so far as it refuses the applicant access to the document containing the weightings assigned to the components of the oral test (see paragraph 45 above).
60 As the Commission points out, the weighting of each component of the tests in a competition, which are determined by the selection board before the start of those tests and apply to all candidates, cannot be regarded as personal data relating to the applicant.
61 Under Article 3(1) of Regulation 2018/1725, the concept of personal data covers ‘any information relating to an identified or identifiable natural person …; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person’.
62 In the present case, the weightings determined for each component of the oral test cannot be regarded as information relating to an identified or identifiable natural person, and therefore cannot fall within the scope of personal data within the meaning of Article 3(1) of Regulation 2018/1725.
63 Consequently, Regulation 2018/1725 is not applicable to the applicant’s request for access to the document containing the weightings assigned to the components of the oral test, with the result that her argument that the Commission infringed the provisions of that regulation by refusing her access to that document must be dismissed.
64 In the second place, with regard to the right to sound administration, it should be recalled that EU institutions and bodies are required to respect the fundamental rights of the European Union, which include the right to good administration enshrined in Article 41 of the Charter (see judgment of 27 March 2019, August Wolff and Remedia v Commission, C‑680/16 P, EU:C:2019:257, paragraph 24 and the case-law cited).
65 Under Article 41(2)(b) of the Charter, the right to good administration includes the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy.
66 In the present case, first of all, it must be noted that the email exchanges between the parties, the communication of certain documents and the meeting held on 22 July 2020 demonstrate that the Commission was very open to the applicant and acted diligently in dealing with her request, despite the extraordinary circumstances linked to the COVID 19 pandemic.
67 Next, as the Commission points out, the applicant merely refers to her right to good administration, enshrined in Article 41 of the Charter, without, however, submitting in the application specific complaints or arguments relating to access to the file.
68 Lastly, it should be noted that the applicant’s argument that the Commission infringed her right to sound administration does not relate to the administrative procedure which led to the adoption of the contested decision, but seeks to challenge the adequacy of the selection board’s explanations as to the mark awarded to her and the decision not to include her on the reserve list. Such an argument must therefore be dismissed as being ineffective in the context of the present action.
69 It follows that the first and second pleas in law must be dismissed.
The third plea in law, alleging breach of the duty to state reasons
70 By the third plea, the applicant, in essence, accuses the Commission of having breached its duty to state reasons.
71 The applicant claims that the contested decision is vitiated by an inadequate statement of reasons. In particular, she complains that the Commission relied on the exception relating to the secrecy of the selection board’s proceedings to refuse her access to the data requested without explaining how such access would specifically and actually undermine the principle of the secrecy of the selection board’s proceedings.
72 In that regard, the applicant refers to paragraphs 110 and 111 of the judgment of 27 November 2018, VG v Commission (T‑314/16 and T‑435/16, EU:T:2018:841).
73 The Commission disputes the applicant’s arguments.
74 It must be borne in mind that, according to settled case-law, the statement of reasons required by the second paragraph of Article 296 TFEU must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to exercise its power of review (see judgment of 22 March 2001, France v Commission, C‑17/99, EU:C:2001:178, paragraph 35 and the case-law cited).
75 In the present case, it should be noted that, in the contested decision, the Commission justified the refusal to grant access with the following reasons:
‘Regarding your request to be given access to the weighting and rounding methods, Article 6 of Annex III of the Staff Regulations provides that “the proceedings of the Selection Board shall be secret”. Secrecy aims at guaranteeing the independence of selection boards and the objectivity of their proceedings, by protecting them from all external interference and pressures [whether from the administration itself,] the candidates concerned [or third parties]. Consequently, observance of this secrecy runs counter to divulging the attitudes adopted by individual members of selection boards and also to revealing all the factors relating to individual or comparative assessments of candidates. We consider that the weighting and rounding methods are covered by the secrecy of the proceedings [of the selection board] as factors relating to individual or comparative assessment’.
76 In that regard, it must be observed that the Commission based its refusal to grant access to the document containing the weightings assigned to the components of the oral test on the fact that those weightings were covered by the secrecy of the selection board’s proceedings as factors relating to individual or comparative assessment. Thus, in accordance with the case-law cited in paragraph 74, the contested decision discloses in a clear and unequivocal fashion the reasoning followed by the Commission in such a way as to enable the applicant to ascertain the reasons for the refusal of access and to enable the Court to exercise its power of review. It follows that the statement of reasons for the contested decision is adequate.
77 Therefore, the third plea in law must be dismissed.
The fourth plea in law, alleging infringement of the right of access to documents and an erroneous interpretation of Article 6 of Annex III to the Staff Regulations
78 By the fourth plea, the applicant, in essence, accuses the Commission of having infringed her right of access to documents by misinterpreting the principle of the secrecy of the selection board’s proceedings, set out in Article 6 of Annex III to the Staff Regulations, as covering the weightings assigned to each component of the oral test.
79 In that regard, the applicant submits that the conclusion that her overall performance was considered to be ‘good’ was inconsistent with the fact that she had received two ‘strong’ verbal assessments and one ‘good’ in respect of the three components of the oral test and amounted to arbitrarily downgrading her overall performance.
80 The applicant points out that she does not know whether one of the two ‘strong’ verbal assessments she received, or even both of them, carried more weight than the ‘good’ verbal assessment. She states that, assuming that the conversion grid was the only grid used by the selection board, she cannot fully assess whether her final mark was correct and, therefore, the lawfulness of the decision not to include her on the reserve list without also being provided with the weightings assigned to each component of the oral test, which affect the final mark she obtained.
81 According to the applicant, access to the weightings assigned to each component of the oral test is necessary in order for her to exercise her fundamental right of defence and to enable her to demonstrate that the decision not to include her on the reserve list was incorrect.
82 She also states that the position adopted by the Commission is inconsistent in that, in the case of multiple-choice question tests, it sets out, in the competition notice, the calculation method which will be used by explaining the pass marks, the tests which will be marked out of 10 or 20 points including a weighting and the results to be used to calculate the final mark.
83 Moreover, the applicant submits that the contested decision is vitiated by an incorrect statement of reasons as regards the application of the exception relating to the secrecy of the selection board’s proceedings to the weightings assigned to the components of the oral test. She points out that, even though the selection board is free to share the 20 points for the oral test between those three components, by attributing a specific weight to each of them, the importance of each component is not intended to change during or after the tests have taken place.
84 The applicant considers that disclosure of the weightings assigned to each component of the oral test before or after the competition cannot affect the independence of the selection board and, moreover, would help candidates to better prepare themselves by knowing the importance of each question.
85 The Commission disputes the applicant’s arguments.
86 First of all, it points out that, in the initial stages of competitions, the relative importance of the categories of questions which may be inferred from competition notices in the case of multiple-choice question tests is not the result of a comparative assessment of the candidates and, consequently, the prior disclosure of information in that regard cannot affect the discretion and independence of the selection board, unlike the introduction of weightings between the various parts of the competition with a view to adapting the selection criteria to the actual candidates, considered as a whole.
87 The Commission relies in that regard on the judgment of 16 September 2013, Höpcke v Commission (F‑46/12, EU:F:2013:131, paragraph 38).
88 In paragraph 39 of the defence, the Commission states that the decision on the weighting of each component of the oral test was taken during the competition on the basis of an initial assessment of the candidates resulting from the tests prior to the oral test. Subsequently, the weightings were applied to all candidates in order to ensure completely equal treatment. Accordingly, the Commission considers that the applicant’s argument that that weighting does not form part of the comparative assessments is unfounded. As a comparative element, the weighting of the various components of a competition, in the Commission’s view, falls wholly within the wide discretion which the case-law confers on the selection board.
89 In the rejoinder, the Commission corrects that statement by submitting that the weighting of each component of the oral test was not decided on the basis of an assessment of the candidates in the competition. It points out that there was in fact no link between the performance of candidates during the tests preceding the oral test (the pre-selection tests) and the setting of the weightings before the oral tests.
90 In that regard, the Commission states that the selection board decided on the weightings to be used to assess performance in the oral test before starting the proceedings relating to that stage of the competition and without having any information as to the identity of the candidates and their performance at the previous stage. Moreover, those weightings are said to have been applied uniformly to all candidates admitted to the oral test, thus respecting the principle of equal treatment.
91 The Commission also submits that the selection board enjoys a wide discretion in the organisation and detailed content of the tests and criteria for marking, and relies in that regard on the judgment of 19 February 2004, Konstantopoulou v Court of Justice (T‑19/03, EU:T:2004:49, paragraphs 48 and 60). It states that that case-law applies to the setting of weightings.
92 The Commission takes the view that if the participants in a competition had access to the weightings assigned to the different components of that competition, they could get to the very heart of the discretion enjoyed by the selection board when assessing the candidates, a discretion which is broad and subject to very limited monitoring as to its legitimacy, by referring to the judgments of 11 May 2005, de Stefano v Commission (T‑25/03, EU:T:2005:168, paragraph 34), and of 8 May 2019, Stamatopoulos v ENISA (T‑99/18, not published, EU:T:2019:305, paragraph 49). It considers that the competition candidates would therefore be able to draw conclusions as to the weightings chosen in order to challenge the outcome of the competition and could argue, for example, that those weightings were introduced in order to favour a particular category of participants.
93 In addition, the Commission points out that, for similar competitions, selection boards may decide to use the weightings which have already been applied in previous competitions. Therefore, if recurring weightings were disclosed, the participants in future similar competitions would know in advance which tests are the most important and would thus have an advantage over participants in previous competitions, which could artificially encourage selection boards to alter the weightings.
94 As a preliminary point, it must be recalled that, under Article 15(3) TFEU and Article 42 of the Charter, any citizen of the Union and any natural or legal person residing or having its registered office in a Member State has a right of access to documents of the institutions, bodies and agencies of the Union, subject to the principles and conditions established in accordance with Article 15(3) TFEU. Under the second subparagraph of Article 15(3) TFEU, those principles and conditions are to be determined by the Parliament and the Council, by means of regulations, acting in accordance with the ordinary legislative procedure.
95 Adopted on that basis, Regulation No 1049/2001 is designed to confer on the public as wide a right of access as possible to documents of the institutions, whilst being subject to certain limits based on reasons of public or private interest (see, to that effect, judgment of 27 February 2014, Commission v EnBW, C‑365/12 P, EU:C:2014:112, paragraph 61 and the case-law cited).
96 Thus, recital 11 of that regulation emphasises in particular that ‘the institutions [must] be entitled to protect their internal consultations and deliberations where necessary to safeguard their ability to carry out their tasks’.
97 The system of exceptions is defined in Article 4 of Regulation No 1049/2001. Under the exception provided for in the second subparagraph of Article 4(3) of that regulation, the institutions are to refuse access to a document where it contains opinions for internal use as part of deliberations and preliminary consultations within the institution concerned if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.
98 It thus follows from the second subparagraph of Article 4(3) of Regulation No 1049/2001 that the system for the exception for which it provides is based on a balancing of the opposing interests in a given situation, that is to say, first, the interests which would be favoured by the disclosure of the documents in question and, secondly, those which would be jeopardised by such disclosure. The decision taken on a request for access to documents depends on which interest must prevail in the particular case (see judgment of 12 November 2015, Alexandrou v Commission, T‑515/14 P and T‑516/14 P, EU:T:2015:844, paragraph 75).
99 In that regard, it should be borne in mind that, according to settled case-law, if an EU institution hearing a request for access to a document decides to refuse to grant that request on the basis of one of the exceptions laid down in Article 4 of Regulation No 1049/2001, it must, in principle, explain how access to that document could specifically and actually undermine the interest protected by that exception. Moreover, the risk of that undermining must be reasonably foreseeable and not purely hypothetical (see judgment of 4 September 2018, ClientEarth v Commission, C‑57/16 P, EU:C:2018:660, paragraph 51 and the case-law cited).
100 It also follows from the case-law that it is open to the institution concerned to base its decisions in that regard on general presumptions which apply to certain categories of documents, as considerations of a generally similar kind are likely to apply to requests for disclosure relating to documents of the same nature (see judgment of 12 November 2015, Alexandrou v Commission, T‑515/14 P and T‑516/14 P, EU:T:2015:844, paragraph 88 and the case-law cited).
101 When finding that such a presumption exists, the Court has relied on, in particular, the fact that the exceptions to the right of access to documents set out in Article 4 of Regulation No 1049/2001 cannot, where the documents covered by the application for disclosure fall within a particular area of EU law, be interpreted without taking account of the specific rules governing access to those documents (see judgment of 12 November 2015, Alexandrou v Commission, T‑515/14 P and T‑516/14 P, EU:T:2015:844, paragraph 90 and the case-law cited).
102 Where, as in the present case, the issues in dispute fall within a specific field of the civil service of the European Union, the exception relating to the protection of the decision-making process, provided for in Article 4(3) of Regulation No 1049/2001, must be interpreted having regard to the principle of the secrecy of the selection board’s proceedings, set out in Article 6 of Annex III to the Staff Regulations (see judgment of 12 November 2015, Alexandrou v Commission, T‑515/14 P and T‑516/14 P, EU:T:2015:844, paragraph 93).
103 On the basis of such an interpretation, in accordance with the objectives pursued by the principle of the protection of the secrecy of the selection board’s proceedings, the Commission is entitled to presume, without undertaking a specific and individual examination of the document to which access is requested, that the disclosure of that document would, in principle, seriously undermine 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).
104 It must, however, be observed that the general presumption referred to above does not exclude the possibility of demonstrating that a given document, the disclosure of which has been requested, is not covered by that presumption, or that there is an overriding public interest justifying the disclosure of that document by virtue of Article 4(2) of Regulation No 1049/2001 (see judgment of 12 November 2015, Alexandrou v Commission, T‑515/14 P and T‑516/14 P, EU:T:2015:844, paragraph 96 and the case-law cited).
105 Thus, it is necessary to determine whether the weightings assigned to the components of the oral test are covered by the secrecy of the selection board’s proceedings, set out in Article 6 of Annex III to the Staff Regulations and, if so, to assess the merits of the statement of reasons in the contested decision.
106 In that regard, it must be borne in mind that Article 6 of Annex III to the Staff Regulations provides that the proceedings of the selection board are to be secret.
107 According to the case-law, Article 6 of Annex III to the Staff Regulations, which relates specifically to the procedure for competitions, introduces the principle of the secrecy of the selection board’s proceedings 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. Consequently, observance of this secrecy runs counter to divulging the attitudes adopted by individual members of selection boards and also to revealing all the factors relating to individual or comparative assessments of candidates (judgment of 28 February 1980, Bonu v Council, 89/79, EU:C:1980:60, paragraph 5).
108 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 reserve list (see, to that effect, judgment of 4 July 1996, Parliament v Innamorati, C‑254/95 P, EU:C:1996:276, paragraph 26 and the case-law cited).
109 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 (see judgment of 4 July 1996, Parliament v Innamorati, C‑254/95 P, EU:C:1996:276, paragraphs 27 and 28 and the case-law cited).
110 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).
111 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 judgements made concerning each of them (judgment of 4 July 1996, Parliament v Innamorati, C‑254/95 P, EU:C:1996:276, paragraph 30).
112 It should also be borne in mind that, according to the case-law, the selection board in a competition enjoys a wide discretion in conducting its proceedings. Consequently, where the competition notice does not lay down criteria for marking, it may fix such criteria or, where the notice lays down such criteria but does not state their respective weighting, it may 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).
113 It follows that, where a competition notice does not specify the weighting of each assessment criterion applicable to a given test, the selection board is competent to determine the way in which the total number of points provided for in the notice for that test is to be divided between the various components of that test, according to the importance which it attributes to those components having regard to 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).
114 In the present case, it must be pointed out that the selection board considered, in accordance with the competition notice, that the oral test would be assessed on the basis of two parts (interview and structured presentation) and the part relating to the interview would be assessed on the basis of two sub-parts (professional experience and motivation). Thus, the three qualitative marks which the Commission communicated to the applicant consisted of three elements of assessment, two of which related to the first part of the oral test (interview) and one to the second part of the oral test (structured presentation).
115 The Commission has not disputed the fact that not all of the components of the oral test were given the same weighting by the selection board. In that regard, it must be held, as is apparent from paragraph 18 above, that the selection board adopted a weighting for each component of the oral test. The weightings in question were applied to the selection board’s assessments of the performance of the candidates for those components in order to obtain a weighted average of those assessments.
116 In order to assess whether the weightings in question are covered by the secrecy of the selection board’s proceedings laid down in Article 6 of Annex III to the Staff Regulations, it is necessary to ascertain whether, when it determined those weightings, the selection board made individual or comparative assessments, in accordance with the case-law recalled in paragraphs 108 to 111 above.
117 As is clear from paragraphs 89 and 90 above, the Commission stated that the weightings were not established on the basis of an assessment of the candidates in the competition. The selection board decided on those weightings before starting the proceedings relating to the oral test and without having any information as to the identity of the candidates and their performance at the previous stage. Moreover, those weightings were applied uniformly to all candidates admitted to the oral test, thus respecting the principle of equal treatment.
118 It follows that the weightings assigned to each component of the oral test are not part of the attitudes adopted by individual members of the selection board, since they were used after the disclosure of any factors relating to individual or comparative assessments of candidates in accordance with the case-law cited in paragraph 107 above, which are protected by the secrecy of the selection board’s proceedings.
119 Nor can the weightings be regarded as criteria for marking within the meaning of the case-law referred to in paragraph 110 above.
120 In that regard, it must be observed that the criteria for marking, as 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 the candidates’ performance in the tests of a competition and any components of each test. They are an instrument which is used by the selection board when it makes a value judgement on these performances, 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 comparative assessments which the selection board makes of the candidates’ respective merits and must therefore remain secret (see paragraph 110 above). In order to assess candidates with complete objectivity and freedom, a selection board must be able to structure its work, if necessary, by establishing criteria and sub-criteria which may be weighted.
121 By contrast, the coefficients established by a selection board to weight the components of a test set out in a competition notice do not fulfil the same function as the criteria for marking, as referred to in the judgment of 4 July 1996, Parliament v Innamorati (C‑254/95 P, EU:C:1996:276). Those weightings 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 order to express the relative importance it attaches to the different components of a test within the overall mark awarded to a candidate for the test as a whole.
122 It is true that, in accordance with the case-law cited in paragraph 112, the determination of the weighting of each part of a test falls within the wide discretion enjoyed by the selection board, as the Commission submits. Thus, it is at the selection board’s discretion to determine whether a certain part of the oral test carries more weight than another when calculating the candidates’ final mark for that test.
123 However, that does not mean that that weighting must be secret. It does not follow from the judgment of 4 July 1996, Parliament v Innamorati (C‑254/95 P, EU:C:1996:276), that the mere fact that the selection board enjoys broad discretion in its proceedings is sufficient to conclude that any factor relating to the method used to establish the overall mark determining success in a competition is covered by the secrecy of the selection board’s proceedings.
124 As was recalled in paragraph 107 above, the Court of Justice has held that that secrecy precluded the disclosure of the attitudes adopted by individual members of selection boards and the disclosure of any factors relating to individual or comparative assessments of candidates.
125 The decision by the selection board to weight the components of a test must be distinguished from the assessments it makes regarding the abilities of the candidates (see, to that effect, judgment of 20 July 2016, GY v Commission, F‑123/15, EU:F:2016:160, paragraph 51).
126 Such weighting is not a personal or comparative assessment of the candidates’ respective merits since its adoption does not entail any value judgement on the part of the selection board of their knowledge and abilities. On the contrary, the weighting of each component of the oral test is determined objectively, prior to that test, according to the importance which the selection board attributes to it in the light of the requirements attaching to the posts to be filled.
127 It follows from the foregoing considerations that the weightings cannot be covered by the secrecy of the selection board’s proceedings since they do not contain personal or comparative assessments. They are simply mathematical values reflecting the weighting attributed to the various components of the oral test in order to calculate the final mark for each candidate.
128 Moreover, it follows from the case-law that even though the selection board cannot be required, in giving the reasons for a candidate’s failure of a test, to identify the candidate’s answers which were considered unsatisfactory or to explain why they were considered unsatisfactory, the secrecy of the selection board’s proceedings and its broad discretion do not mean that candidates in a competition who so request may not, where appropriate, be informed of the marks obtained for each of the components of the oral test set out in a 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). In that regard, it should also be observed that it has already been held that there was no infringement of the obligation to state reasons since the applicant was able to obtain disclosure inter alia of the weighting attributed to the assessment criteria set out in a competition notice in respect of the oral test provided for in that notice (see, to that effect, judgment of 8 July 2010, Wybranowski v Commission, F‑17/08, EU:F:2010:83, paragraphs 104 and 106).
129 In the present case, an examination of the document sent to the General Court in the context of the measure of inquiry referred to in paragraph 27 above reveals that that document contains the weightings assigned to the two parts of the oral test (interview and structured presentation) and the weightings assigned to the two sub-parts of the interview which were also specified in the competition notice (professional experience and motivation). That document also contains information on the marking criteria used by the selection board to make a value judgement on the candidates’ performance in each part of the oral test and the weighting of each of those criteria.
130 In that regard, it must be held that the weightings assigned to the two parts of the oral test (interview and structured presentation) and the weightings assigned to the two sub-parts of the interview (professional experience and motivation) are not part of the individual or comparative assessments carried out by the selection board in order to make a value judgement on the candidates’ performances, in accordance with the case-law recalled in paragraphs 108 to 111 above. Therefore, they cannot be covered by the secrecy of the selection board’s proceedings laid down in Article 6 of Annex III to the Staff Regulations.
131 By contrast, the information on the marking criteria used by the selection board to make a value judgement on the candidates’ performance in each part of the oral test and the weighting of each of those criteria are covered by the secrecy of the selection board’s proceedings, in accordance with the case-law cited in paragraph 110 above, in so far as they form an integral part of the comparative assessments which the selection board makes of the candidates’ respective merits.
132 In accordance with Article 4(6) of Regulation No 1049/2001, if only parts of the requested document are covered by any of the exceptions, the remaining parts of the document are to be released.
133 According to the case-law, the examination of partial access to a document of the institutions must be carried out in the light of the principle of proportionality, which requires that derogations remain within the limits of what is appropriate and necessary for achieving the aim in view (see, to that effect and by analogy, judgment of 6 December 2001, Council v Hautala, C‑353/99 P, EU:C:2001:661, paragraphs 27 and 28).
134 It is clear from the very wording of Article 4(6) of Regulation No 1049/2001 that an institution is required to consider whether it is appropriate to grant partial access to requested documents and to confine any refusal solely to information covered by the relevant exceptions. The institution must grant partial access if the aim pursued by that institution in refusing access to a document may be achieved where all that is required of the institution is to blank out the passages which might harm the public interest to be protected (see judgment of 25 April 2007, WWF European Policy Programme v Council, T‑264/04, EU:T:2007:114, paragraph 50 and the case-law cited).
135 Consequently, the Commission should have granted partial access to the document containing the weightings assigned to the components of the oral test, which it refused to do on the ground that that document, in its entirety, fell within the scope of the secrecy of the selection board’s proceedings.
136 In the light of the foregoing considerations, the fourth plea in law must be upheld and the contested decision must be annulled in so far as it refused access to a document containing the weightings assigned to the two parts of the oral test specified in the competition notice (interview and structured presentation) and to the two sub-parts of the interview which were also specified in the competition notice (professional experience and motivation), without the information on the marking criteria used by the selection board for the oral test and the weighting of each of those criteria.
Costs
137 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 in the part seeking partial annulment of the decision of 9 April 2020, it must be ordered to pay the costs relating thereto, in accordance with the form of order sought by the applicant. Furthermore, under Article 137 of the Rules of Procedure, where a case does not proceed to judgment, the costs are to be in the discretion of the General Court. In the present case, in view of the considerations which led the General Court to find that there was no need to adjudicate in part, it considers it fair to decide that the Commission shall also bear the related costs.
On those grounds,
THE GENERAL COURT (Ninth Chamber),
hereby:
1. Rules that there is no longer any need to adjudicate on the form of order sought by the applicant seeking annulment of the European Commission’s decisions of 28 February 2020 and 9 April 2020 in so far as they refused the applicant access to the method for rounding scores used by the selection board in the internal competition COM/03/AD/18 (AD 6) – 1 – Administrators;
2. Annuls the Commission’s decision of 9 April 2020 in so far as it refuses access to a document containing the weightings assigned to the two parts of the oral test (interview and structured presentation) specified in the notice for the internal competition COM/03/AD/18 (AD 6) – 1 – Administrators, and the two sub-parts of the interview (professional experience and motivation) which were also specified in the notice for that competition;
3. Orders the Commission to pay the costs.
Delivered in open court in Luxembourg on 1 December 2021.
[Signatures]