Provisional text
ORDER OF THE GENERAL COURT (Third Chamber)
3 March 2017(*)
(Civil service — Recruitment — Notice of competition — Open Competition EPSO/AD/248/13 — Decision not to include the applicant on the reserve list — Action manifestly lacking any foundation in law)
In Case T‑556/16,
GX, residing in Bucharest (Romania), represented by G.-M. Enache, lawyer,
applicant,
v
European Commission, represented by G. Gattinara and F. Simonetti, acting as Agents,
defendant,
APPLICATION under Article 270 TFEU seeking, first, annulment of the decision of the selection board in Open Competition EPSO/AD/248/13 of 20 August 2014 not to include the applicant on the reserve list and, secondly, compensation in respect of the material and non-material harm allegedly suffered by the applicant on account of that decision,
THE GENERAL COURT (Third Chamber)
composed of S. Frimodt Nielsen, President, I.S. Forrester and E. Perillo (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 The applicant, GX, registered on 5 March 2013 for Open Competition EPSO/AD/248/13 (‘the competition’ or ‘the competition at issue’), organised by the European Personnel Selection Office (EPSO), in accordance with the notice of competition published in the Official Journal of the European Union on 31 January 2013 (OJ 2013 C 29 A, p. 1) for the recruitment of administrators of Grade A6 in the ‘Security of buildings’ field, selected by the applicant, and the ‘Building Services Engineering’ field (‘the notice of competition’).
2 The notice of competition was the subject of a corrigendum published in the Official Journal on 3 April 2013 (OJ 2013 C 94A, p. 1) (‘the corrigendum’), according to which admission tests were to be organised prior to the examination of the eligibility conditions if the number of candidates registered exceeded, not 1 000, as was initially provided for, but ‘a certain threshold’, to be determined by the Director of EPSO. The corrigendum stated, in addition, that the candidates were to be informed of that threshold via their EPSO account. It is however not disputed that, following the procedure for the competition at issue, such tests were not organised.
3 In accordance with points V and VI of the notice of competition, the competition essentially included three stages, namely verifying the general and specific eligibility conditions, then the examination of the candidates’ professional experience and university diplomas on the basis of the candidates’ qualifications and, lastly, tests organised in an assessment centre to which only the candidates selected following the first two stages of the competition were invited. The tests organised in the assessment centre included reasoning ability tests, a ‘structured’ interview based on the candidates competencies in the field — in the applicant’s case, security of buildings — and, lastly, three tests designed to assess general competencies, namely a case study, a group exercise and a ‘structured’ interview on those competencies.
4 On 10 July 2013, the applicant was informed that he satisfied the eligibility conditions and that the marks obtained in the examination of his qualifications enabled him to be admitted to the next stage of the competition, namely to the tests organised at the assessment centre.
5 The applicant sat the case study test on 1 October 2013, the reasoning tests on 7 October 2013 and the interviews and the group exercise on 5 November 2013.
6 On 26 February 2014, EPSO informed the applicant that the selection board had not included him on the reserve list for the competition on the ground that he had not obtained the minimum number of points required in the tests organised at the assessment centre and referred, in this connection, to point VI of the notice of competition (‘the initial decision not to include the applicant’ or ‘the initial decision not to include him’). The document attached to the letter of 26 February 2014 stated, inter alia, that the applicant had obtained a score of 38 points out of 80 in the assessment tests for the general competencies whereas the minimum required was 40 points (‘the applicant’s competency passport’).
7 On 5 March 2014, the applicant, in accordance with point 6.4 of the Guide to Open Competitions, published in the Official Journal of 7 September 2012 (OJ 2012 C 270 A, p.1) (‘the Guide to Open Competitions’), submitted a request for review of the initial decision not to include him. In his request for review, he also requested access to a number of documents relating to the competition, namely the copy of his case study test, together with the information for the assessors, and a copy of his evaluation sheet, requesting in this connection a number of ‘clarifications’.
8 The applicant was informed by a letter from EPSO dated 20 August 2014 that the selection board had reviewed his file, following his request of 5 March 2014, but that it confirmed the initial decision not to include him (‘the review decision of 20 August 2014’ or ‘the contested decision’). In that letter, EPSO moreover rejected his request for disclosure of the documents sought, with the exception of the uncorrected copy of his case study test, which was attached to the letter.
9 On 18 November 2014, the applicant submitted a complaint within the meaning of Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), against the review decision of 20 August 2014. The complaint was rejected by a decision of the appointing authority of 18 March 2015 (‘the decision rejecting the complaint’).
Procedure and forms of order sought
10 By application lodged at the Registry of the Civil Service Tribunal on 18 June 2015, the applicant brought the present action. The case was registered under number F‑89/15.
11 The written procedure was closed on 27 November 2015.
12 Pursuant to Article 3 of Regulation (EU, Euratom) 2016/1192 of the European Parliament and of the Council of 6 July 2016 on the transfer to the General Court of jurisdiction at first instance in disputes between the European Union and its servants (OJ 2016 L 200, p. 137), the present case was transferred to the Registry of the General Court as it stood on 31 August 2016. It was registered under number T‑556/16 and assigned to the Third Chamber.
13 The applicant claims that the Court should:
– before ruling, order the [European] Commission to ‘produce all documentation concerning his application and all the proceedings of the selection board, all reports of the meetings of the EPSO Heads of Unit in relation to [the contested] competition ... and all the minutes of the selection board’s meetings in relation to the Assessment Centre in [that] competition ...’ ; ... prescribe measures of organisation of procedure or ‘measures of inquiry’ aimed at obtaining a copy of the ‘administrative file related to the competition’ and hear the chairman of the selection board and the official in charge of his file at EPSO;
– annul the decision rejecting the complaint;
– annul the review decision of 20 August 2014;
– annul the initial decision not to include the applicant;
– order the Commission to ‘submit ... certain documents mentioned [in the] application, that would [help him in] his effort of making a value judgment in relation to his performance and merits [in] the competition’;
– order the Commission to pay him the sum of EUR 50 000 by way of compensation for the material harm suffered and the same sum by way of compensation for the non-material harm suffered;
– order the Commission to pay the costs.
14 The Commission contends that the Court should:
– dismiss the application;
– order the applicant to pay the costs.
Law
15 Under Article 126 of the Rules of Procedure of the General Court, where an action is manifestly lacking any foundation in law, the Court may, by reasoned order and without taking further steps in the proceedings, give a decision on the action.
16 In the present case, the Court considers that it has sufficient information from the documents in the file and has decided to give a decision without taking further steps in the proceedings.
1. Admissibility of the action
17 Although it has not formally raised an objection of inadmissibility, the Commission submits, in essence, that, since it does not contain a clear and precise statement of the facts in support of the applicant’s arguments, the application should be dismissed as inadmissible.
18 Article 50(1)(e) of the Rules of Procedure of the Civil Service Tribunal, in force at the time the present action was brought, provides that the application must contain ‘a clear summary of the relevant facts presented in chronological order, and a separate, precise and structured summary of the pleas in law and arguments of law relied on’.
19 Those conditions regarding clarity and coherency, both in the summary of the facts and in that of the arguments, are essentially designed to meet the requirement, in connection with a specific branch of litigation such as that relating to the European Union civil service, of the proper and efficient administration of justice. In the present case, the application has a clear and structured layout, reproduces the factual background to the dispute in chronological order, distinguishes sufficiently between each plea and states the form of order sought. Moreover, the Commission, in producing a pleading of 20 pages, was capable of effectively preparing its defence notwithstanding the alleged inadequacies. Lastly, the applicant’s failure, as alleged by the Commission, to ‘clearly give evidence’ of the facts on which his application is based cannot lead, contrary to the Commission’s claims, to the dismissal of the application on grounds of inadmissibility, but only, providing it is established, to dismissal of the application on substantive grounds, in so far as the applicant may not be able, in the absence of precise information on which he may rely, to establish the substance of his claims.
20 The action must therefore be declared to be inadmissible.
2. The claims for annulment
The subject matter of the claims for annulment
21 As a preliminary point it must be recalled that, according to case-law, when a candidate in a competition requests, in accordance with a rule laid down by the notice of that competition, review of a decision taken by a selection board, it is the decision taken by the selection board after review of the candidate’s situation which is substituted for the selection board’s initial decision and which therefore must be regarded as the act adversely affecting that candidate (judgments of 16 December 1987, Beiten v Commission, 206/85, EU:C:1987:559, paragraph 8; of 31 January 2006, Giulietti v Commission, T‑293/03, EU:T:2006:37, paragraph 27; of 13 December 2006, Heus v Commission, T‑173/05, EU:T:2006:392, paragraph 19; and of 5 December 2012, BA v Commission, F‑29/11, EU:F:2012:172, paragraph 29).
22 In the present case, the review decision of 20 August 2014, taken in response to the applicant’s request submitted in accordance with the Guide to Open Competitions, which is an integral part of the notice of competition, has been substituted for the initial decision not to include the applicant and thus constitutes the act adversely affecting the applicant.
23 Next, it must be noted that the action before the judicature, even if formally directed against the rejection of the complaint, has the effect of bringing before the judicature the act adversely affecting the applicant against which the complaint was submitted (judgments of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraphs 7 and 8, and of 6 October 2015, FE v Commission, F‑119/14, EU:F:2015:116, paragraph 23), except where the scope of the rejection of the complaint differs from that of the measure against which that complaint was made (judgment of 25 October 2006, Staboli v Commission, T‑281/04, EU:T:2006:334, paragraph 26).
24 In the present case, the decision rejecting the complaint submitted by the applicant as a candidate in the competition at issue, even if it provides supplementary details in response to the arguments put forward by the applicant, merely confirms the review decision of 20 August 2014 without undertaking a fresh examination of the situation based on new factual or legal information.
25 In those circumstances, since the decision rejecting the complaint lacks any independent content, the claims for annulment must be regarded as directed only against the review decision of 20 August 2014.
The claim for annulment of the review decision of 20 August 2014
26 The applicant raises four pleas in law in support of his action, alleging in essence (i) the illegality of the notice of competition and of the corrigendum, (ii) procedural irregularities, (iii) a breach of the obligation to state reasons, and, lastly, (iv) manifest error of assessment.
The first plea, alleging the illegality of the notice of competition and of the corrigendum
27 There are two parts to the first plea. The applicant claims, first, that the notice of competition infringes Article 5(1) and (3) of Annex III to the Staff Regulations in so far as that notice provides that the selection stage based on qualifications is carried out exclusively on the basis of the candidates’ statements without the selection board actually examining the relevance of the qualifications claimed.
28 In that regard, it is settled case-law that, in the context of a recruitment procedure, which is a complex administrative operation consisting of a series of decisions, a candidate in a competition may, in an action challenging steps in such procedure, contest the legality of earlier steps which are closely linked to them (see judgment of 11 August 1995, Commission v Noonan, C‑448/93 P, EU:C:1995:264, paragraph 17 and the case-law cited), and plead, in particular, the illegality of the notice of competition on the basis of which the step in question was taken (see, to that effect, judgments of 16 September 1993, Noonan v Commission, T‑60/92, EU:T:1993:74, paragraph 23, and of 5 December 2012, BA v Commission, F‑29/11, EU:F:2012:172, paragraph 39).
29 In the present case, it must be noted that the contested decision was adopted on the ground that the applicant had not obtained the minimum marks required in the tests organised at the assessment centre, and not on the ground that his application had not been accepted following the selection on the basis of qualifications, with which the provisions of the notice of competition whose illegality is alleged are concerned. In addition, as provided in Part VII, point 1, of that notice of competition, inclusion on the reserve list is not to take into account the marks obtained in the selection based on qualifications, those marks being taken into account only in the selection procedure for candidates admitted to the assessment centre. Only the results obtained in the assessment centre tests can result in inclusion on the reserve list, after satisfaction of the eligibility conditions has actually been checked in the light of the supporting documents. The applicant, who in any event passed the selection based on qualifications, cannot therefore effectively rely on the illegality of the provisions of that notice regarding selection based on qualifications.
30 In the second part of that plea, the applicant submits that the corrigendum could not, without infringing the principles of legal certainty, the protection of legitimate expectations, sound administration and proportionality and the duty to have regard for the interests of officials, alter the threshold for candidate numbers above which admission tests are to be organised prior to selection on the basis of qualifications and tests. That is, he claims, true, in particular because that corrigendum merely referred to a ‘certain threshold’ above which the Directive of EPSO was authorised to organise admission tests, but did not precisely determine that threshold.
31 It is sufficient to point out in this connection that no admission tests were organised before the examination of the eligibility conditions for the competition (see paragraph 2 above). Even if the corrigendum could not have lawfully altered the threshold above which admission tests could be organised, such a fact has no effect on the legality of the contested decision, since even in the absence of any such illegality, the applicant’s name could not, on any view, have been included on the competition reserve list (see, to that effect, judgment of 9 November 2004, Vega Rodríguez v Commission, T‑285/02 and T‑395/02, EU:T:2004:324, paragraph 25).
32 Having regard to the foregoing, the first plea must be rejected in its entirety as manifestly unfounded.
The second plea, alleging procedural irregularities
33 There are four parts to the second plea.
– The first part, alleging procedural irregularities which occurred prior to the tests at the assessment centre
34 The applicant essentially submits that, before taking the tests at the assessment centre, he received contradictory messages on his EPSO account, so that he was not able to know whether to expect to take admission tests carried out on a computer and based on multiple-choice questionnaires or tests aimed at assessing his reasoning capabilities, as organised in principle at the assessment centre. He claims this had a negative impact on his performance on the day of the tests.
35 In this connection, it is sufficient to recall that according to settled case-law, a procedural irregularity can entail annulment of the act adversely affecting the applicant only if, were it not for that irregularity, the procedure could have led to a different result (judgments of 25 October 2005, Germany and Denmark v Commission, C‑465/02 and C‑466/02, EU:C:2005:636, paragraph 37; of 13 December 2013, Hungary v Commission, T‑240/10, EU:T:2013:645, paragraph 84 and the case-law cited; and of 13 December 2012, BW v Commission, F‑2/11, EU:F:2012:194, paragraph 143). As regards a competition procedure, while the European Union institutions have a duty to all candidates, under the principles of diligence and equal treatment, to ensure that the tests are conducted in as impartial and regular a manner as possible (judgment of 24 April 2001, Torre and Others v Commission, T‑159/98, EU:T:2001:121, paragraph 46), an irregularity which has occurred in the course of the tests in a competition nevertheless affects the legality of those tests only if it is of a substantive nature or the applicant establishes that the irregularity concerned is such as to distort the results of the tests.
36 On any view, the mere fact that the applicant received a message prior to sitting the ‘reasoning tests’ welcoming him to the ‘admission tests’ cannot be regarded as of a substantive nature, whereas it is clear from Part VI, point 2 of the notice of competition that both sets of tests in any event concern the assessment of the same skills, namely reasoning skills.
37 The applicant also claims that he was requested by EPSO to follow the instructions contained in certain ‘obsolete ... documents’ and in particular to consult general guides which were not applicable to the competition. However, it is not disputed that the applicant knew of the guide applicable to the competition at issue and that the notice of competition specified that candidates ‘should read carefully’ that guide ‘before applying’, giving the publication references for that guide and also referring to EPSO’s internet site. In those circumstances, the applicant cannot reasonably claim that such events, assuming them to be established, would have vitiated the procedure to such an extent, as he claims, that they would have breached the principles of legal certainty, the protection of legitimate expectations and proportionality and the duty to have regard to the interest of officials.
38 Having regard to the above considerations, the first part of the second plea must be rejected as manifestly unfounded.
– The second part, alleging procedural irregularities vitiating the tests at the assessment centre
39 The applicant essentially submits that there were ‘logistic [and] organisational’ irregularities which affected the case study and group exercise.
40 As regards, first, the case study, the applicant alleges that EPSO gave him contradictory information in requesting him to ‘write a “Note” ... as a “Briefing note”’, so rendering the task ‘impractical’: whereas a ‘note’ consists in a short informative letter, a ‘briefing note’, according to the applicant, involves more extensive reflection and drafting and is more demanding.
41 Having thus summarised that plea, it must be stated that the wording of the test in question clearly shows that the note expected is a briefing note, there being no possible ambiguity in that respect. Moreover, such wording does not fail to have regard to the requirements of the competition, as described in point 5.3 of the Guide to open competitions, which provides only, in general terms, that the case study consists in ‘a written test based on a scenario to do with the [European Union], in which [candidates] are faced with various problems that [they] are asked to solve or to which [they] must react, relying solely on the material provided’.
42 The applicant adds however, that the computer put at his disposal for the case study ‘did not function accurately with respect to its automatic saving function of the ... “last screen”’, which prevented him, in particular, from saving some corrections on the final document. It must first be observed that the applicant has not submitted any evidence on this point capable of supporting those claims, even in part. In any event, the poor functioning of a computer made available to a candidate is not a plea which may warrant, as such, a test in a competition being found to be illegal. It is at the most an instance of the poor functioning of a tool in the competition. In that case, it is for any candidate concerned with the proper conduct of his test to point out such a problem at the time at which it occurs. That plea must therefore be rejected as clearly ineffective.
43 Further concerning the case study, the applicant claims that the principle of equal treatment between the candidates was not observed on the ground that, contrary to its own instructions, EPSO allowed ‘extra time’ to some candidates who arrived late for the test. In support of his arguments, he refers inter alia to the case of Mr M., who ‘arrived at the ... test centre about 10 minutes after the test [had] already started’, but who was not ‘penalised’ for his late arrival. He also asserts that some candidates were given ‘full hours ... to finish their test’.
44 However, once again the applicant has adduced no probative evidence in support of his arguments and does not state how such unequal treatment, assuming it to be established, has adversely affected the subsequent progress of his participation in the competition. Even if it were to be found that EPSO had authorised candidates arriving late to sit the case study test, that fact does not in itself imply that such candidates also enjoyed ‘extra’ time in relation to other candidates within which to sit that test.
45 Having regard to the foregoing, the complaint alleging that the case study was vitiated by procedural irregularities must be rejected.
46 In the second place, so far as the conduct of the group exercise is concerned, the applicant first states that he received inaccurate and contradictory information. Specifically, he claims that whereas before that test the candidates were instructed by EPSO to ‘discuss [their] findings together and come to a collective decision’, the day of the test they were requested by the selection board not to reach a collective decision but to participate in a ‘meeting [that] will take the form of an oral discussion exercise’. The applicant maintains that such a contradiction ultimately penalised him in so far as he participated in that exercise with the aim of reaching ‘a collective decision’ with the other candidates but those candidates did not do the same, or even opposed such a ‘collective decision’, simply carrying out an oral discussion exercise. He claims that the principle of legitimate expectations, the principle of legal certainty and the duty to have regard to the interests of officials were infringed on account of that contradiction.
47 However, the applicant by such arguments merely gives his personal view of the conduct of the test in question, without adducing any objective evidence capable of establishing that the instructions given to candidates the day of the test concerning the way in which it would take place contradicted the Guide to open competitions. In any event, such a contradiction between point 5.3 of that guide and the information in point 4.4 of the instructions given to candidates must be ruled out, since those texts are identical in so far as they both provide that in the group exercise ‘[the candidates] are put in a group with [the] other participants to discuss [their] conclusions and reach a collective decision’.
48 The applicant next claims that the principle of equal treatment was not observed either during the group exercise. He puts forward two arguments in support of that complaint: first, that the ‘internal’ candidates were put in a more advantageous position in so far as during training courses organised by the institutions they learned of the assessment method used by the selection board, including the criteria, sub-criteria and marking grids, even though such information should be covered by the secrecy of the selection board’s proceedings; secondly, that by authorising one of the candidates to monopolise for his demonstration the flip chart in the examination room, the selection board put the other candidates at a disadvantage.
49 The first argument is not based on any concrete information such as to substantiate it. The applicant merely asserts that that is an ‘opinion circulated among the ... staff’, ‘widely disseminated for a fact in Brussels’, whereas, in order to find that there has been a breach of the principle of equal treatment, a court adjudicating on lawfulness must base its decision on objective, clear and relevant evidence. In the same way, the statements made by one of the trainers at a training session organised by a union on 28 and 29 August 2015 cannot substantiate the applicant’s claims either, since there is no witness evidence for such claims and they are ultimately intended merely to set out the applicant’s view of the presentation of the group exercise by that trainer.
50 As regards the second argument, the applicant cannot reasonably claim that he was put at a disadvantage ‘due to the [seat] allocation’, which allegedly deprived him of access to the ‘flip chart’. The mere fact that the ‘flip chart’ was ‘at the other end of the ... table’ clearly did not prevent the applicant, were he to have considered it useful, from deciding to use it in the group exercise. The applicant confines himself to making claims about bias on the part of the selection board without putting forward any prima facie evidence that the selection board put one candidate at an advantage in relation to the others by refusing to allow them to use the ‘flip chart’ used by the former candidate during that group exercise.
51 Lastly, the applicant claims that, contrary to the provisions of the Guide to open competitions, which provides that participants in the group exercise are to meet the other candidates only after having been able to absorb the necessary information on their own, he only acquainted himself with that information after meeting the other candidates, not beforehand. Even if, by such arguments, the applicant intended to claim that, unlike the other candidates, he was deprived of the necessary time to prepare for the test and was thereby discriminated against, it is sufficient to state here again that the applicant is merely submitting before the court his view of events without adducing any prima facie, objective, clear and relevant evidence such as to establish the irregularity alleged.
52 Having regard to the foregoing, the complaint alleging infringement of the principle of equal treatment during the group exercise must therefore be rejected as manifestly unfounded.
53 In addition, the applicant’s claim, which moreover has not been proven, that the security standards normally observed during reasoning tests — such as screening with metal detectors or pat downs — were not complied with in the competition at issue cannot have any effect on the lawfulness of the contested decision, which does not concern the material organisation of the examination centre. The purely hypothetical claim that the measures ‘aiming to prevent the unauthorised recording and disclosure of the tests’ were not implemented is ineffective, since it is neither proven nor even claimed that any cheating actually took place on the date when the applicant sat the tests and furthermore the applicant’s results in those tests were not in any event taken into account in the contested decision.
54 Having regard to all the foregoing, the second part of the second plea must therefore be rejected.
– The third part of the second plea, alleging failure to carry out an appropriate review of the initial decision not to include the applicant
55 The applicant claims that EPSO did not take into account all the ‘evidence’ which he sent to it in support of his request for review. The contested decision is thus vitiated by a failure to carry out an appropriate review, which is discriminatory and for which reasons have not been given. EPSO is also alleged to have postponed the review of his request ‘from [the] end of April, into May, then into June, July, August, September, etc.’ without any justification.
56 First of all, it must be observed that on the basis of point 6.4 of the Guide to open competitions, which is an integral part of the notice of competition, requests for review must be submitted ‘within 10 calendar days from the date when the letter from EPSO is sent to [the candidate] ...’. It is not disputed that the ‘additional evidence’ relied upon by the applicant was, in the present case, sent after the time limit laid down in that provision. In those circumstances, even assuming that EPSO did not in its review of the initial decision not to include the applicant take that ‘additional evidence’ into account, such a fact cannot constitute a procedural irregularity capable of rendering the contested decision unlawful.
57 As regards the time taken to process the request for review, it must first be observed that the contested decision was adopted on 20 August 2014 and not in September or even afterwards as the applicant claims (see paragraph 8 above). In any event, it is apparent from the information in the file that the Guide to open competitions does not stipulate that such a review must be conducted within any fixed period. Lastly, although it must be noted that the request for review submitted by the applicant on 5 March 2014 took a little over five months to be rejected by EPSO, the Commission is nevertheless justified in arguing that the applicant, ‘well after having filed a request for review’ continued to submit ‘further arguments and issues’ to the selection board in support of his request. In any case, it is neither proven nor even claimed that the time taken to process the request had any effect on the outcome of the dispute, so that such a complaint cannot in itself lead to the annulment of the contested decision (see, to that effect, order of 3 February 2009, Giannini v Commission, C‑231/08 P, EU:C:2009:50, paragraph 30).
58 Having regard to the foregoing, the third part of the second plea in law must be rejected as manifestly unfounded.
– The fourth part of the second plea, alleging errors of communication by EPSO with respect to the applicant throughout the competition procedure
59 The applicant points out that EPSO incorrectly informed him that he had not been admitted to the competition before informing him ‘one hour [later]’ of his admission and of the fact that he had to attend a case study test in the Building Services Engineering field, even though he had selected the Security of Buildings field. He also alleges that EPSO congratulated him on his success just after he had submitted a request for review of the initial decision not to include him and published ‘his test’s confirmation with the Assessment Centre’ on his account late. Lastly, he claims that it was impossible for him to open his competency passport.
60 It is sufficient to note with regard to those complaints that those circumstances as a whole, even assuming they were all proven, could not, regrettable as they might have been, have had any effect on the lawfulness of the results obtained by the applicant in the tests assessing general competencies. In particular, it is common ground that the applicant, despite the information he claims to have received, participated in the case study test in the field he had selected.
61 Having regard to the foregoing, the fourth part of the second plea must be rejected, as must accordingly the second plea in its entirety.
The third plea, alleging infringement of the obligation to state reasons
62 The applicant claims that inadequate reasons were given for the contested decision on the ground, essentially, that his competency passport attached to that decision did not reproduce the ‘model of an adequate statement of ... reasons’ such as may be found in other competency passports drawn up in the context of other competitions for the recruitment of administrators and relating to other candidates.
63 However, such a circumstance is irrelevant in the context of the present proceedings. The statement of reasons for the applicant’s competency passport, reproducing the results he obtained in the competition at issue, cannot be assessed in the light of the statement of reasons for other competency passports drawn up in the context of other competitions and concerning candidates other than the applicant himself.
64 Furthermore, it is settled case-law that while the requirement that a decision adversely affecting a person should state the reasons on which it is based is intended to provide the person concerned with sufficient details to allow him to ascertain whether or not the decision is well founded and make it possible for the decision to be the subject of judicial review, such an obligation, so far as decisions taken by a selection board in a competition are concerned, must be reconciled with observance of the secrecy surrounding the proceedings of selection boards by virtue of Article 6 of Annex III to the Staff Regulations. Observance of that secrecy therefore precludes both disclosure of the attitudes adopted by individual members of selection boards and disclosure of any factors relating to individual or comparative assessments of candidates (judgment of 4 July 1996, Parliament v Innamorati, C‑254/95 P, EU:C:1996:276, paragraphs 23 and 24).
65 As regards, in particular, the examination of the candidates’ competency to fill the post available, that examination being based on assessments which are both personal and comparative in character and being therefore covered by the secrecy inherent in the selection board’s proceedings, the communication of the marks obtained in the various tests in such an examination constitutes an adequate statement of reasons (see, to that effect, judgment of 4 July 1996, Parliament v Innamorati, C‑254/95 P, EU:C:1996:276, paragraphs 28 to 31).
66 In the present case, the applicant’s competency passport reproduces the results he obtained in the various assessment tests for general and specific competencies which he sat at the assessment centre, in the case study, group exercise and individual interview. Those results are furthermore provided with a note of the minimum mark required in each field concerned and with specific remarks, inter alia on the applicant’s weak points with scope for improvement. In addition, since that competency passport clearly stated that the applicant had obtained a mark of 38 out of 80 in the tests on the assessment of his general competencies, each competence being the subject of a numerical and verbal assessment, and noted that the minimum mark ultimately required was 40 points, the applicant was indeed placed in a position to understand the reasons for the selection board’s decision not to include him on the reserve list for the competition.
67 In those circumstances, the applicant’s arguments that he was unable to understand the reasons for the decision not to include his name on the competition reserve list due to the refusal of his request for access to certain documents must also be rejected. In this connection, it is sufficient to point out that the communication of the marks obtained in the tests enabled the applicant, as noted in paragraph 66 above, to learn of the value judgment which had been made of his performance and to ascertain that he had failed to obtain the number of points required by the notice of competition, thereby allowing him to assess the lawfulness of the contested decision and whether it was appropriate to bring an action against it (see, to that effect, judgments of 19 February 2004, Konstantopoulou v Court of Justice, T‑19/03, EU:T:2004:49, paragraph 33, and of 12 November 2015, Alexandrou v Commission, T‑515/14 P and T‑516/14 P, EU:T:2015:844, paragraph 142).
68 Having regard to the foregoing, the third plea must be rejected as manifestly unfounded.
The fourth plea, alleging manifest error of assessment
69 The applicant submits that the assessment of his competencies was, in essence, vitiated by manifest error on the ground that the selection board in a ‘discriminating’ manner applied sub-criteria different from those used to assess the performance of other candidates, in particular that of Mr D. Furthermore, in his view those sub-criteria were neither ‘reliable’ nor ‘stable’.
70 In this connection, it is first appropriate to observe that a selection board’s assessment of candidates’ knowledge and ability constitutes a value judgement and falls within the wide margin of discretion accorded to the board, which the EU judicature has no jurisdiction to review unless the rules which govern the proceedings of the selection board have clearly been infringed (judgment of 12 March 2008, Giannini v Commission, T‑100/04, EU:T:2008:68, paragraph 275).
71 In the present case, it can be seen from simply reading the competency passport of the applicant, on one hand, and that of Mr D., on the other hand, as the Commission correctly points out, that the sub-criteria used to assess the general and specific competencies of each of those two candidates are strictly identical. The applicant’s complaint alleging that the assessment made of him was discriminatory therefore has no factual basis.
72 Secondly, as regards the argument relating to the ‘reliability’ of the assessment criteria, the applicant does not specify anywhere the ‘sub-criteria’ whose relevance he is calling into question and, on the contrary, simply claims, without any detailed supporting evidence, that he was subject to an assessment which was not ‘reliable’.
73 Accordingly, given that there has been no clear infringement of the rules governing the proceedings of the selection board, the fourth plea must be rejected as manifestly unfounded.
74 Having regard to all the foregoing, the claim for annulment must be dismissed as devoid of any legal basis, without it being necessary to order the measures requested by the applicant set out in paragraph 13 above, first and fifth indent, seeking essentially that certain documents relating to the competition at issue or referred to in the application be included in the file and that the chairman of the selection board for that competition be heard.
The claims for damages
75 The applicant claims that he has suffered material and non-material harm on account of the illegality of the contested decision. He assesses each of those types of harm as valued at EUR 50 000.
76 In that regard, it is settled case-law in the civil service field that claims for compensation in respect of harm must be dismissed in so far as they are closely linked to claims for annulment which have themselves been dismissed as inadmissible or unfounded (judgments of 10 June 2004, Liakoura v Council, T‑330/03, EU:T:2004:182, paragraph 69, and of 18 May 2015, Pohjanmäki v Council, F‑44/14, EU:F:2015:46, paragraph 93).
77 In the present case, since the claims for annulment have been dismissed as manifestly unfounded, it is therefore necessary to dismiss the claims for damages.
78 In view of all the foregoing, the action must be dismissed in its entirety.
Costs
79 Under Article 134 of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 135 of those Rules, exceptionally, if equity so requires, the General Court may decide that an unsuccessful party is to pay only a proportion of the costs of the other party in addition to bearing his own costs, or even that he is not to be ordered to pay any costs.
80 The applicant seeks in this connection that the Commission be ordered to pay the costs on the grounds that he would not have brought an action if EPSO ‘had given him [the] clarifications requested’. However, if EPSO had provided him with such clarifications, that would not have led it to withdraw the contested decision taken by the competition selection board, which does not concern the applicant’s request for access to documents. Such an argument therefore cannot in any event lead to the Commission being ordered to pay the costs of the proceedings, if the general rules on the allocation of costs as laid down in the Rules of Procedure are not to be infringed.
81 It is apparent from the reasons set out in the present order that the applicant has been unsuccessful. Furthermore, in its submissions the Commission has expressly claimed that the applicant should be ordered to pay the costs. Since the circumstances of the present case do not warrant application of Article 135 of the Rules of Procedure, the applicant must bear his own costs and be ordered to pay the costs incurred by the Commission.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby orders:
1. The action is dismissed.
2. GX shall pay the costs.
Luxembourg, 3 March 2017.
E. Coulon | | S. Frimodt Nielsen |