JUDGMENT OF THE GENERAL COURT (Fifth Chamber)
18 October 2023 (*)
(Civil service – Officials – Recruitment – Internal competition COM/1/AD 10/18 – Decision not to include the applicant on the reserve list – Equal treatment – Stability in the composition of the selection board – Unlimited jurisdiction – Non-material damage)
In Case T‑535/22,
NZ, represented by H. Tagaras, lawyer,
applicant,
v
European Commission, represented by M. Brauhoff, T. Lilamand, I. Melo Sampaio and L. Vernier, acting as Agents,
defendant,
THE GENERAL COURT (Fifth Chamber),
composed of J. Svenningsen (Rapporteur), President, C. Mac Eochaidh and J. Martín y Pérez de Nanclares, Judges,
Registrar: H. Eriksson, Administrator,
having regard to the written part of the procedure,
further to the hearing on 11 July 2023,
gives the following
Judgment
1 By her action on the basis of Article 270 TFEU, the applicant, NZ, seeks annulment of the decision of the selection board of 10 February 2022 rejecting her request for review of the decision of the selection board of 6 February 2020 not to include her name on the reserve list for internal competition COM/1/AD 10/18 (‘the decision of 10 February 2022’).
I. Background to the dispute
2 On 20 November 2018, the European Commission, under Article 29(1)(d) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), published a notice for an internal competition on the basis of qualifications and tests in order to draw up a reserve list for the recruitment of administrators at grades AD 10 (COM/1/AD 10/18) and AD 12 (COM/2/AD 12/18) in five fields.
3 The applicant and 217 other persons applied for internal competition COM/1/AD 10/18, in the field of ‘Coordination, communication, human resources and budget management, audit’ (‘the field at issue’), for which the Appointing Authority (‘the Appointing Authority’) wished to draw up a reserve list of 16 successful candidates.
4 By letter of 10 October 2019, the applicant was informed that she had scored one of the highest marks in the selection based on qualifications and that she satisfied the conditions to be asked to take part in the oral test.
5 She took the oral test on 28 November 2019. A total of 43 candidates took the oral test between 28 November and 13 December 2019.
6 By letter of 6 February 2020, the selection board decided not to include the applicant on the reserve list on the ground that she had obtained an overall mark of 15.5/20 in the oral test, which was below the threshold of 16/20 which had to be achieved in order to be ranked among the 16 best candidates (‘the decision of 6 February 2020’).
7 By letter of 14 February 2020, the applicant requested a review of the decision of 6 February 2020. That request for a review was rejected by decision of the selection board of 29 April 2020, against which the applicant brought an action on the basis of Article 270 TFEU.
8 By judgment of 6 October 2021, NZ v Commission (T‑668/20, not published, EU:T:2021:667), the General Court annulled the decision of 29 April 2020 on the ground that it lacked a sufficient statement of reasons.
9 In compliance with the judgment of 6 October 2021, NZ v Commission (T‑668/20, not published, EU:T:2021:667), the selection board, by the decision of 10 February 2022, adopted by means of a written procedure, informed the applicant that it had decided to dismiss her request for review of 14 February 2020 on the ground that the mark she had obtained in the oral test (15.742/20, rounded to 15.5/20) was less than the minimum mark required for being placed on the reserve list (15.75/20, rounded to 16/20).
10 On 16 March 2022, the applicant lodged a complaint under Article 90(2) of the Staff Regulations against the decision of 10 February 2022, which was rejected by decision of the Appointing Authority of 19 July 2022 (‘the decision rejecting the complaint’).
II. Forms of order sought
11 The applicant claims that the Court should:
– annul the decision of 10 February 2022 and the decision rejecting the complaint and also, in the alternative, the decision of 6 February 2020;
– in any event, order the Commission to pay the costs.
12 The Commission contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
III. Law
A. Subject matter of the dispute
13 It should be borne in mind that, in accordance with settled case-law, where a candidate in a competition seeks the review of a decision taken by a selection board, it is the decision taken by the latter after the review of the candidate’s situation that constitutes the act adversely affecting him or her within the meaning of Article 90(2) or, where applicable, Article 91(1), of the Staff Regulations. The decision taken after review therefore replaces the selection board’s original decision (see judgment of 6 October 2021, NZ v Commission, T‑668/20, not published, EU:T:2021:667, paragraph 24 and the case-law cited).
14 In the present case, it is therefore necessary to consider that the act adversely affecting the applicant is the decision of 10 February 2022 (‘the contested decision’).
15 As to the claim directed against the decision rejecting the complaint, it should be observed that an administrative complaint, as provided for in Article 90(2) of the Staff Regulations, and its rejection, whether express or implied, constitute an integral part of a complex procedure and are no more than a precondition for bringing the matter before the Courts. In those circumstances, an action before the Courts, even if formally directed against the rejection of the complaint, has the effect of bringing before the Courts the act adversely affecting the applicant against which the complaint was submitted, except where the scope of the rejection of the complaint differs from that of the measure against which that complaint was made (see judgment of 21 May 2014, Mocová v Commission, T‑347/12 P, EU:T:2014:268, paragraph 34 and the case-law cited).
16 Any decision rejecting a complaint, whether express or implied, if it is straightforward, merely confirms the act or failure to act complained of and, when taken in isolation, does not constitute a challengeable act (see judgment of 12 September 2019, XI v Commission, T‑528/18, not published, EU:T:2019:594, paragraph 20 and the case-law cited), so that the claims made against that decision, which has no autonomous content in relation to the initial decision, must be regarded as being directed against the initial act.
17 In that regard, contrary to what is argued by the applicant, the scope of the decision rejecting the complaint does not differ from that of the contested decision since the Appointing Authority upholds the decision of the selection board not to include her name on the reserve list. The mere fact that the Appointing Authority has been led, in response to the complaint, to supplement or amend the grounds for the contested decision cannot justify the rejection of that complaint being regarded as an autonomous act adversely affecting the applicant. The statement of grounds for that rejection is deemed to be incorporated in the contested decision against which that complaint was directed (see, to that effect, judgment of 6 July 2022, VI v Commission, T‑20/21, not published, EU:T:2022:427, paragraph 17 and the case-law cited).
18 Consequently, this action must be considered as being directed against the contested decision, the lawfulness of which must be examined by taking into account the statement of grounds in the decision rejecting the complaint.
B. Substance
1. The claims for annulment
19 The applicant raises seven pleas in law in support of her action.
20 By her third plea, she submits that the contested decision is vitiated by an infringement of the principle of equal treatment since the composition of the selection board did not remain sufficiently stable during the oral test and that the coordination measures adopted by the board, assuming them to be established, were inadequate and insufficient.
21 The Commission disputes those arguments.
22 It argues that the selection board functioned in a stable manner during the oral tests, with an alternate chairperson carrying out coordination duties and a core team of examiners who attended regularly.
23 That stability on the part of the selection board means there is no call for coordination measures of the same rigour as that applicable to the open competitions with the use of assessment centres that have been organised since 2010. In that regard, the Commission argues that the selection board adopted sufficient coordination measures to ensure compliance with the principle of equal treatment of the candidates.
24 In any event, the applicant has not established how variation in the composition of the selection board, were it to be established, might have affected her rights.
(a) Preliminary observations
25 As a preliminary point, it should be observed that the obligation to recruit officials of the highest standard of ability, efficiency and integrity, imposed by Article 27 of the Staff Regulations, means that the Appointing Authority and the selection board must each ensure, when exercising its powers, that competitions take place in such a way that the principles of equal treatment of the candidates and of objectivity in the marking are observed (see judgment of 6 July 2022, VI v Commission, T‑20/21, not published, EU:T:2022:427, paragraph 29 and the case-law cited).
26 In order to ensure that the assessments of the selection board in respect of all the candidates examined during the tests are conducted under conditions of equality and objectivity, it is important for the marking criteria to be uniform and to be applied consistently to those candidates. That requires, inter alia, so far as is possible, that the composition of the selection board should remain stable when the competition’s tests take place (see judgment of 7 February 2002, Felix v Commission, T‑193/00, EU:T:2002:29, paragraph 37 and the case-law cited; see, also, to that effect, judgment of 6 July 2022, VI v Commission, T‑20/21, not published, EU:T:2022:427, paragraph 31 and the case-law cited).
27 That requirement is particularly necessary in the oral tests, such as those at issue in the present dispute, since those tests are by their nature less uniform than the written tests (see judgment of 13 January 2021, Helbert v EUIPO, T‑548/18, EU:T:2021:4, paragraph 33 and the case-law cited).
28 However, it has been held that maintaining the stability of the composition of the selection board during the tests is not a requirement in itself but a means of ensuring compliance with the principle of equal treatment, consistent marking and the objectivity of the assessment (see, to that effect, judgment of 6 July 2022, VI v Commission, T‑20/21, not published, EU:T:2022:427, paragraph 35 and the case-law cited).
29 Accordingly, the selection board may effectively ensure consistent marking and objectivity of the assessment by other means. In particular, in the light of the way the tests in a competition and the proceedings of the selection board are organised, it may be sufficient that the selection board’s composition is kept stable only during certain key stages of the competition (see, to that effect, judgment of 6 July 2022, VI v Commission, T‑20/21, not published, EU:T:2022:427, paragraph 34 and the case-law cited). In addition, even if the composition of the selection board has not remained stable during the tests, equal treatment of the candidates may be ensured if the selection board puts in place the coordination necessary in order to ensure the consistent application of the marking criteria (see, to that effect, judgment of 12 March 2008, Giannini v Commission, T‑100/04, EU:T:2008:68, paragraphs 208 to 216).
30 In the present case, by deciding that the competition would consist of five fields and five separate reserve lists, each with a different number of successful candidates, and, in addition, by specifying that the candidates could apply for only one field, the Appointing Authority precluded any possibility of comparing the candidates for the five fields of the internal competition concerned. It is therefore only with respect to the candidates who chose the field at issue that the Court must assess whether the principle of equal treatment has been complied with.
(b) Whether the composition of the selection board varied during the oral tests
31 It is necessary first of all to examine whether the selection board functioned in a stable manner during the oral tests.
32 In the present case, the Commission stated at the hearing that following the retirement of one of the selection board’s members, that board was finally composed of 10 members at the time of the oral tests. Those tests took place over nine days, between 28 November and 13 December 2019, during which 43 candidates were interviewed.
33 It is important to point out at the outset that, by decision of the selection board of 5 September 2019, the position of chairperson of the selection board for the field at issue was assigned to A, one of the two alternate chairpersons. In addition, it is apparent from the table showing the day-to-day composition of the formation of the selection board that the alternate members played a larger role than usual since they took part in the vast majority of the oral tests.
34 In that regard, while it is the case that an alternate chairperson may, as a rule, act as chair of the selection board only where the full chairperson has resigned or is unable to sit, following events that are beyond the administration’s control, the fact that the selection board may have decided that one of the fields in the competition is to be chaired consistently by the alternate chairperson, whose ability to conduct the proceedings of the selection board is not contested by the applicant, does not in itself put the equality and objectivity of the competition at risk. The same reasoning applies to the other alternate members of the selection board whose ability to carry out their duties has not been questioned. Indeed, opting to put a formation in place that has a stable composition of qualified members can but enhance the conditions that favour equal treatment for all the candidates concerning the same field (see, by analogy, judgment of 10 November 2004, Vonier v Commission, T‑165/03, EU:T:2004:331, paragraphs 37 to 41).
35 That being said, it is apparent from the table showing the day-to-day composition of the selection board that, over only nine days of tests, the selection board sat in 10 different formations of three members. Furthermore, no member, whether full or alternate, took part in all the tests.
36 It is thus apparent that even though the competition involved a limited number of participants and took place over a short period of time, the composition of the selection board varied greatly.
37 It is true, as the Commission argues, that a certain amount of variation in the composition of the selection board is accepted in open competitions with a large number of participants, given the practical difficulties associated with organising those competitions. However, the competition in the present case was an internal competition that involved, by its nature, at that stage of the competition, a more limited level of participation.
38 Consequently, it is permissible, in such an internal competition, to require a greater degree of stability in the composition of the selection board than in an open competition with a large number of participants (see, to that effect, judgment of 29 September 2010, Brune v Commission, F‑5/08, EU:F:2010:111, paragraph 62).
39 Taking account of that significant variation in the composition of the selection board, it is necessary, in the light of his predominant role on the selection board, to take into consideration the attendance rate of A, the alternate chairperson who was appointed to chair the selection board for the field at issue.
40 That person is obliged, in principle, to attend all the tests in order to coordinate the proceedings of the selection board and to ensure that it applies uniformly the same marking criteria and carries out a comparative assessment of all the candidates (see judgment of 29 September 2010, Brune v Commission, F‑5/08, EU:F:2010:111, paragraph 46 and the case-law cited).
41 In the present case, A was not present at the tests on 6 and 13 December 2019 owing either to conflicts of interest or because he was not available. He thus chaired 33 of the 43 interviews.
42 It is true that one absence is not liable, by itself, to entail an infringement of the principle of equal treatment (see, to that effect, judgment of 29 September 2010, Brune v Commission, F‑5/08, EU:F:2010:111, paragraph 51). Indeed, absences on the part of the chairperson of the selection board do not affect the consistency of the marking and the objectivity of the assessment if his or her alternate, who replaces the chairperson during those absences, was also present for part of the tests that he or she chaired in order to become acquainted with the selection board’s assessment guidelines, as put into effect by the full chairperson (see, to that effect, judgment of 12 March 2008, Giannini v Commission, T‑100/04, EU:T:2008:68, paragraph 211).
43 However, owing to the fact that the selection board chose to appoint an alternate chairperson to chair the selection board for the field at issue, that person could not himself be replaced by his alternate.
44 Furthermore, on the two days he was absent, A was replaced on each occasion by two different people, namely by B, the full chairperson, and then by C, the other alternate chair, one in the morning and the other in the afternoon. In addition, those two individuals did not attend any test chaired by A in order to become acquainted with the assessment guidelines and thus ensure continuity in the assessments made by the selection board and guarantee the consistent and objective application of the marking criteria.
45 In that regard, the Court observes that it was possible to plan for A’s absences, at least as regards those occasioned by a conflict of interests, such that the selection board could have organised its proceedings in a different manner in order to ensure continuity in the selection board’s assessments and the uniform application of the marking criteria.
46 Lastly, irrespective of the attendance of the selection board chairperson at the tests, a high level of attendance by a sufficient number of examiners is necessary in order to ensure consistent marking and a comparative assessment of the candidates (judgment of 29 September 2010, Honnefelder v Commission, F‑41/08, EU:F:2010:112, paragraph 48.)
47 In that regard, it is apparent from the table showing the day-to-day composition of the selection board that the two members who attended most regularly were present, respectively, on only six days (27 out of 43 interviews) and four days (22 out of 43 interviews) of testing. For an internal competition, which, by its very nature, involves the participation of a limited number of candidates, that rate of attendance is insufficient.
48 It is apparent from an overall assessment of the way in which the oral tests of that competition, with a limited number of participants, was organised that, first of all, the selection board sat in 10 different formations over nine days; next, that A was absent for two days of the tests, without being replaced by another chairperson who had attended part of the interviews which A had chaired in order to become acquainted with the assessment guidelines; and, lastly, that the attendance rate of the two selection board members who constituted the ‘core team of examiners’ is not very high in respect of a competition with a limited number of participants, such as the one at issue.
49 In those circumstances, the Court finds, contrary to what is argued by the Commission, that the selection board did not function in a sufficiently stable manner during the oral tests.
50 However, in accordance with the case-law referred to in paragraphs 28 and 29 above, that finding is not capable, by itself, of entailing the annulment of the contested decision.
(c) Maintaining the stability of the composition of the selection board during the key stages of the competition and the coordination measures adopted by the selection board
51 It is necessary to examine whether the selection board maintained the stability of its composition during the key stages of the competition and took the coordination measures needed for carrying out its proceedings, in compliance with the principle of equal treatment of the candidates.
52 In that regard, it should be observed that the coordination measures to which the Commission refers differ from those put in place for the purpose of the oral tests organised in open competitions with the use of an assessment centre. Those competitions, inter alia, provide for several measures intended to overcome various types of cognitive bias generally found in examiners and thus to ensure consistent marking (see, to that effect, judgment of 12 February 2014, De Mendoza Asensi v Commission, F‑127/11, EU:F:2014:14, paragraphs 24 to 26), which are not present in this case.
53 In the case at hand, the Commission relies solely on the fact that the selection board met at regular intervals, before, during and after the oral tests. In that regard, the Appointing Authority stated in the decision rejecting the complaint that the stability and objectivity of the assessment had been ensured by the use of the same material, defined by consensus, and that the entire selection board had met in order to decide on the procedure for the oral tests, to share the individual marks and to approve the reserve list.
54 In that respect, the Court has held that the Commission must show that the planned coordination meetings took place and that all the members of the selection board, namely the chair, the alternate chairs and the assessors, actually attended those meetings, which it is appropriate to examine on the basis of the documents produced by the Commission and the attendance sheets of those meetings (judgment of 6 July 2022, VI v Commission, T‑20/21, not published, EU:T:2022:427, paragraph 58).
(1) The meetings that took place before the oral tests
55 It is necessary to point out from the outset that the composition of the selection board changed during the competition procedure. In particular, the Commission confirmed at the hearing that three selection board members, including A, had been appointed on 5 September 2019 or thereafter. They therefore did not attend the coordination meetings of the selection board that were organised before that date.
56 As regards the meetings that took place before the oral tests, first, it is apparent from the file that the selection board met on 13 March 2019 to take part in training provided by the European Personnel Selection Office (EPSO) that included a great deal of practical information on carrying out the procedure of a competition. No coordination measure was adopted at that meeting.
57 Second, the selection board met on 11 and 29 April 2019 in order to attend training on interview techniques and best practices and to prepare the material for the oral test and the weighting of the various elements of that test. It is also apparent from the minutes of those two meetings that the selection board began to develop the material for the oral test, in particular the weighting of the various elements of that test and the questions that would be put to the candidates. It was also envisaged that the final versions of the weighting, the interview and the subjects for the presentation were to be approved at a plenary meeting to be held in May 2019.
58 However, apart from the three members of the selection board who had not yet been appointed to take part in the selection board’s proceedings, one alternate member was absent from the meeting of 29 April 2019. In addition, the Commission confirmed at the hearing that no meeting took place in May 2019.
59 Third, at a meeting on 5 September 2019, the selection board met to appoint a new alternate chairperson who was to be responsible for the selection board’s proceedings in the field at issue. No other decision concerning the oral tests for that field was taken at that meeting, from which four members of the selection board, as finally composed, were absent.
60 Fourth, the selection board met again on 27 September and 4 October 2019. However, contrary to what is claimed by the Commission, the minutes of those meetings make it apparent that there was no discussion about the material for the oral tests.
61 Fifth, the Commission states that the selection board met on 13 November 2019 to approve the material for the oral tests. However, it is apparent from the email serving as the minutes of that meeting, sent to EPSO by B, the full chairperson of the selection board, that the members of the selection board merely agreed on the ‘timing’ of the oral tests for the field at issue. Furthermore, four members of the selection board, as finally composed, were absent from that meeting.
62 Sixth, the Commission states that the selection board met on 18 November 2019 to finalise and approve the material for the oral test. However, while the attendance sheet for that meeting shows that certain members of the selection board did meet on that date, the claim that the material for the oral test was approved and finalised at that meeting is not substantiated by any minutes from that meeting.
63 In addition, it is apparent from the selection board attendance sheet that six members of that board did not take part in that meeting. However, according to the minutes of the meeting of 29 April 2019, the selection board had itself planned to approve the final version of the weighting, interview and subjects for the oral presentation at the next ‘plenary’ meeting. Consequently, even assuming that the purpose of the meeting of 18 November 2019 was to approve such a final version, it must be found that such approval did not occur during a ‘plenary’ meeting.
64 In that regard, the argument based on the fact that the number of selection board members present at that meeting was sufficient to reach a quorum cannot be accepted. It is apparent from the case-law that the exchanges among all the selection board members which occur before the tests are particularly important for the purpose of ensuring equal treatment of candidates, consistent marking and objectivity of the assessment (see, to that effect, judgment of 13 January 2021, ZR v EUIPO, T‑610/18, not published, EU:T:2021:5, paragraph 79 and the case-law cited). Furthermore, as the Commission acknowledged at the hearing, the quorum rule adopted by the selection board at its meeting of 13 March 2019 was intended to enable it to take ‘urgent necessary and unforeseen decisions with limited impact’, which is not the case with respect to coordination measures adopted with a view to ensuring equal treatment during the oral tests.
65 Seventh, the selection board met on 19 and 22 November 2019. However, the Court has no information on the content of those meetings, from which six and four selection board members respectively were absent.
66 It is apparent from the foregoing that, contrary what to the Appointing Authority asserted, inter alia, in the decision rejecting the complaint, the selection board, as finally composed, never met in its full composition before the beginning of the oral tests. In particular, several members of the selection board were absent from the meetings of 11 and 29 April 2019 and from that of 18 November 2019, which discussed and then approved the specific material for the oral tests.
67 In addition, D, one of the members of the selection board who was present during the applicant’s oral test, was appointed on 20 September 2019, in anticipation of the retirement of another member of the selection board on 30 November 2019. The Commission stated at the hearing that D had, at the latest, taken up his duties by the time the oral tests had begun, namely 28 November 2019. Accordingly, he did not attend a single coordination meeting before those tests.
68 It follows that the Commission has not succeeded in establishing that the measures adopted at the meetings that took place before the oral tests could by themselves ensure consistency of the marking and the objectivity of the assessments of all the candidates during the tests.
(2) The exchanges between the members of the selection board during the oral tests
69 The Commission asserts that during the oral tests the selection board held exchanges of views at the end of each test and at the end of each day in order to compare the merits of the candidates examined that day. In that regard, it adduced sworn statements by the chairperson and the alternate chairperson.
70 While it may indeed be assumed that the members of the selection board who questioned the candidates doubtlessly discussed their performance at the end of each test and at the end of each day, the Court nevertheless considers that those exchanges, given the number of formations in which the selection board sat, at most allowed the selection board to acquire a partial comparative knowledge of the merits of each candidate.
71 Furthermore, as regards the exchanges of views between the chairperson and the alternate chairperson appointed to head the competition selection board for the field at issue, it should be observed that the Commission acknowledged at the hearing that the statement made by the alternate chair lacked precision. In those circumstances, it is not possible to conclude, in the absence of other evidence from the Commission, that the chairperson and the two alternate chairs did indeed communicate with each other throughout the oral tests in order to ensure a consistent assessment of the candidates.
72 However, the exchanges between A, B and C during the tests were all the more important since, as is clear from paragraph 44 above, A was replaced by either B or C on two of the test days, while those latter individuals never attended tests chaired by A.
(3) The deliberations of the selection board and the adoption of the reserve list after the oral tests
73 After the oral tests, the selection board met twice, on 17 December 2019 and 31 January 2020, in order to draw up and approve the reserve list for the field at issue. According to the sworn statements of B and A, those meetings gave the selection board members the possibility to discuss the performance of certain candidates, including the applicant, in order to assess whether they had equivalent merits to the candidates who had obtained the minimum mark of 16/20, which would have justified placing them on the reserve list.
74 In that regard, it is apparent from the attendance sheets that, not including the selection board member who had retired before the beginning of the oral tests, four members of the selection board were absent from the meeting of 17 December 2019 and that three members of the selection board did not attend the meeting of 31 January 2020.
75 Furthermore, D did not take part in either of those two meetings. On that issue, while the Commission does not acknowledge that that member of the selection board was absent from all the meetings, the signature of that individual does not appear on any attendance sheet. In that regard, the explanation provided by the Commission, that the failure to mention that member of the selection board was connected to the ‘lack of updated attendance lists’ or to the fact that ‘there was no line to sign’ on those sheets, is neither convincing nor credible, particularly in view of the fact that that member of the selection board was appointed on 20 September 2019, namely well before the meetings on the final deliberations. In any event, there was nothing to prevent that member of the selection board from adding his name and signature by hand to the attendance sheets.
76 Accordingly, contrary to what the Appointing Authority asserted, inter alia, in the decision rejecting the complaint, the selection board did not meet in its full composition in order to discuss the comparative assessments of the candidates and to confirm their final marks on the basis of the results of the tests. In addition, two members of the selection board who took part in interviewing the candidates in the field at issue were absent from the meetings of 17 December 2019 and 31 January 2020.
77 However, it is apparent from the case-law that, having regard to the fact that the drawing up of the reserve list is an exercise that is comparative in nature, it is essential that the selection board meets in its full composition (see, to that effect, judgments of 1 April 1971, Rabe v Commission, 76/69, EU:C:1971:33, paragraph 10, and of 6 July 2022, VI v Commission, T‑20/21, not published, EU:T:2022:427, paragraph 67 and the case-law cited), which was not the case here.
78 Indeed, the presence of all the members of the selection board at the meeting for final deliberations provides an assurance for the candidates that the reserve list will result from the bringing together of all the comparative assessments made of their performance and, therefore, that it is the product of an effective comparative exercise.
79 The presence of all the members of the selection board at those deliberation meetings was all the more important in that, as is apparent from paragraph 70 above, the selection board acquired, during the tests, what was at most a partial comparative knowledge of the merits of the candidates owing to the number of different formations that interviewed the candidates.
80 It is also important to point out that no provision had been made by the selection board for the rule on the quorum to be applicable to the decisions taken during the final deliberations on the reserve list.
81 In view of all the foregoing considerations, it must be found that the contested decision is vitiated by an infringement of the principle of equal treatment.
82 As regards the Commission’s argument that the applicant has failed to establish that the variation in the composition of the selection board had affected her rights, it is sufficient to observe that, given the importance of the principle of equal treatment of the candidates, the failure on the part of the selection board to ensure stability in its composition constitutes a breach of essential procedural requirements. Consequently, a decision vitiated by such a defect must be annulled without it being necessary for the person concerned to prove that there has been any particular adverse effect on his or her subjective rights or to show that the result of the competition might have been different if the essential procedural requirements in question had been complied with (see, to that effect, judgments of 10 November 2004, Vonier v Commission, T‑165/03, EU:T:2004:331, paragraph 39, and of 13 January 2021, Helbert v EUIPO, T‑548/18, EU:T:2021:4, paragraph 113).
83 In any event, there is even less reason for the Court to rule out the possibility that the irregularities found above affected the applicant’s results given that her overall mark (15.742/20, rounded to 15.5/20) is only 0.008 points below the minimum mark required (15.75/20, rounded to 16/20) for inclusion on the reserve list (see, by analogy, judgment of 24 September 2002, Bachotet v Commission, T‑182/01, not published, EU:T:2002:223, paragraph 33).
84 Consequently, the third plea must be upheld and the contested decision annulled, without it being necessary to examine the other pleas put forward by the applicant or to rule on the applications for measures of organisation of procedure which she has submitted.
2. Request to the Court to exercise its unlimited jurisdiction
85 The applicant requested at the hearing that the Court exercise its unlimited jurisdiction and order the Commission to make good the material and non-material damage caused by the contested decision.
86 Asked about that issue at the hearing, the Commission claimed that the Court should reject that request.
87 The unlimited jurisdiction conferred on the Courts of the European Union by Article 91(1) of the Staff Regulations entrusts those Courts with the task of providing a complete solution to disputes of a financial character brought before them. That jurisdiction is primarily intended to enable the Courts of the European Union to guarantee the effectiveness of the judgments by which they annul decisions in staff cases, so that if the annulment of a decision adopted by the appointing authority which contains errors of law is not sufficient to assist the official concerned in enforcing his or her rights or to protect his or her interests effectively, the Courts of the European Union may award compensation of their own motion (see judgment of 20 May 2010, Gogos v Commission, C‑583/08 P, EU:C:2010:287, paragraphs 49 and 50 and the case-law cited). Accordingly, even in the absence of proper claims to that effect, no plea of inadmissibility on the grounds of being out of time may be brought against a question that the Court is led to raise, as necessary, of its own motion (see, to that effect, judgment of 10 July 1992, Barbi v Commission, T‑68/91, EU:T:1992:90, paragraph 43).
88 In the present case, it is apparent from the case-law that where a candidate contests the rejection of his or her candidature in a selection procedure intended to draw up a list of successful candidates, which prevents that person from subsequently taking up a vacant post within the institution concerned and from receiving the related financial advantages, the dispute is of a financial character (see, to that effect, judgments of 21 February 2008, Commission v Girardot, C‑348/06 P, EU:C:2008:107, paragraph 58, and of 6 June 2006, Girardot v Commission, T‑10/02, EU:T:2006:148, paragraphs 53 to 56).
89 In the case at hand, it is apparent from the foregoing that the selection board was not able to ensure equal treatment of the candidates interviewed during the oral tests, owing to the instability of its composition. Accordingly, it is the comparative assessment of the merits of all of the candidates that was vitiated by the variation in the composition of the selection board. That illegality consequently affects not only the mark given to the applicant but also the threshold of 16 points out of 20, on which the inclusion of the applicant on the reserve list was contingent.
90 In the first place, as regards the material damage arising from the illegality referred to in the previous paragraph, it should be observed that material damage for which compensation is sought must be actual and certain (see judgment of 21 February 2008, Commission v Girardot, C‑348/06 P, EU:C:2008:107, paragraph 54 and the case-law cited).
91 In that regard, the applicant may not make a claim of material damage on the basis of the fact that, in compliance with this judgment in annulment, she should immediately be included on the reserve list. In fact, including her on that list in that way would amount to exempting her from the oral test provided for by point 4 of the notice of competition referred to in paragraph 2 above, which makes the inclusion of a candidate on the reserve list conditional on obtaining one of the highest marks in that oral test as well as the required minimum thereof (see, to that effect, judgment of 5 June 2014, Brune v Commission, T‑269/13 P, EU:T:2014:424, paragraph 57). In any event, the inclusion of a candidate on the reserve list does not confer on that person a right to be appointed, but merely makes them eligible to be appointed (see, to that effect, judgment of 11 July 2007, Centeno Mediavilla and Others v Commission, T‑58/05, EU:T:2007:218, paragraph 52).
92 Nor has the applicant, furthermore, definitively lost the actual opportunity of being a successful candidate in the internal competition at issue and, consequently, of being appointed as an official of the European Union at grade AD 10, given that the organisation of a new oral test, conducted independently in relation to the results of the initial oral test (see, to that effect, judgment of 5 June 2014, Brune v Commission, T‑269/13 P, EU:T:2014:424, paragraph 32 and the case-law cited), would have the precise purpose of restoring such an opportunity to her. In that regard, the applicant has not stated that she would not be able to take advantage of such a measure for complying with the present judgment in annulment and, therefore, the Court cannot exercise its unlimited jurisdiction for the purpose of ordering the Commission to make good that material damage (see, to that effect, judgment of 16 September 2015, EMA v Drakeford, T‑231/14 P, EU:T:2015:639, paragraph 47 (not published) and the case-law cited).
93 Consequently, as regards the alleged material damage, the Court considers that proof of the existence of actual and certain damage has not been established.
94 In the second place, as regards the non-material damage, the Court observes that even if the reopening of the competition in respect of the applicant and the organisation of an oral test conducted independently in relation to the oral test that was vitiated by unlawfulness would constitute an appropriate measure for complying with the present judgment in annulment, it is not possible for the Commission, without cancelling all the results of the competition, to recreate the conditions in which that competition should have been organised in order to ensure equal treatment of all the candidates and the objectivity of the marking (see, by analogy, judgment of 19 May 2015, Brune v Commission, F‑59/14, EU:F:2015:50, paragraph 81).
95 Consequently, annulment of the contested decision does not suffice to protect the interests of the applicant effectively. That annulment is not capable by itself of making good the certain non-material damage suffered by the applicant owing to the fact that she was unable to take the initial oral test on 28 November 2019 under the proper conditions. In those circumstances, the Court, assessing the damage suffered by the applicant ex aequo et bono, considers that a sum of EUR 4 000 constitutes appropriate compensation in respect of non-material damage.
96 Taking account of the foregoing, the Court orders the Commission to pay the applicant the sum of EUR 4 000 in respect of the non-material damage suffered and rejects the request for compensation as to the remainder.
IV. Costs
97 Under Article 134(1) 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. Since the Commission has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the applicant, in accordance with the form of order sought by that latter individual.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby:
1. Annuls the decision of 10 February 2022, by which the selection board for internal competition COM/1/AD 10/18 refused, after review, to include NZ on the reserve list for the recruitment of administrators at grade AD 10 in the field of ‘Coordination, communication, human resources and budgetary management, audit’;
2. Orders the European Commission to pay NZ, in respect of the non-material damage suffered, the sum of EUR 4 000;
3. Orders the European Commission to pay the costs.
Svenningsen | Mac Eochaidh | Martín y Pérez de Nanclares |
Delivered in open court in Luxembourg on 18 October 2023.
[Signatures]