JUDGMENT OF THE GENERAL COURT (Seventh Chamber)
16 May 2019 (*)
(Civil service — Officials — Recruitment — Notice of competition — Open competition EPSO/AD/331/16 — Conditions for admission — Decision of the selection board not to admit the applicant to the next stage of the competition — Error of law)
In Case T‑813/17,
Eleni Nerantzaki, residing in Brussels (Belgium), represented initially by N. Korogiannakis, and subsequently by L. Levi, lawyers,
applicant,
v
European Commission, represented initially by P. Mihaylova and L. Radu Bouyon, and subsequently by L. Radu Bouyon, D. Milanowska and B. Mongin, acting as Agents,
defendant,
APPLICATION under Article 270 TFEU for annulment of, first, the decision of the selection board of 15 May 2017 not to admit the applicant to the next stage of Open Competition EPSO/AD/331/16 and, second, the decision of the appointing authority of 14 September 2017 rejecting the applicant’s complaint against the decision of the competition selection board not to admit the applicant to the next stage of that competition,
THE GENERAL COURT (Seventh Chamber),
composed of V. Tomljenović (Rapporteur), President, E. Bieliūnas and A. Kornezov, Judges,
Registrar: E. Artemiou,
having regard to the written part of the procedure and further to the hearing on 29 November 2018,
gives the following
Judgment
Background to the dispute and legal framework
1 On 8 January 2017, the applicant, Ms Eleni Nerantzaki, applied for the open competition based on qualifications and tests EPSO/AD/331/16 — Information and Communication Technology (ICT) experts (AD 7). That competition had been organised in order to draw up reserve lists for the recruitment of ‘administrators’, in particular, with regard to the applicant, in field 6 ‘IT Portfolio/Programme Management and Enterprise Architecture’ (‘the Competition’). The competition notice had been published by the European Personnel Selection Office (EPSO) in the Official Journal of the European Union on 1 December 2016 (OJ 2016 C 447 A, p. 1; ‘the competition notice’).
2 Depending on the number of candidates, the competition notice provided for two possible selection procedures. In the light of the number of candidates the Competition at issue here took place in three stages. As a first stage the files of all the candidates were checked for eligibility on the basis of the data provided in the candidates’ online applications. As a second stage, the eligible candidates were selected on the basis of information in the application form’s Talent Screener tab. As a third stage, the candidates who had obtained the best results in the second stage were invited to take the assessment centre tests and multiple-choice question tests. The names of the candidates who had obtained the highest overall marks following the assessment centre phase of that procedure were placed on the reserve list for the Competition.
3 As regards the eligibility requirements, the competition notice included the following specific conditions concerning the candidates’ qualifications and professional experience:
‘- A level of education corresponding to at least 4 years’ completed university studies in information and communication technology [(‘ICT’)] attested by a diploma, followed by a minimum of 6 years’ professional experience in ICT, of which a minimum of 3 years in the chosen field
or
…
- A level of education corresponding to at least 4 years’ completed university studies attested by a diploma, followed by a minimum of 10 years’ professional experience in ICT, of which a minimum of 3 years in the chosen field …’
4 Annex I to the competition notice, entitled ‘Duties’, states the following:
‘The main duties of the successful candidates recruited from this competition may vary from one institution to another. Nevertheless in general they include:
– Project management: analysis, proposal, design, cost estimation, identification and acquisition of required resources, scheduling activities, follow-up of implementation, change management and reporting.
– Participate/coordinate/lead team(s) in charge of project activities.
Depending on the chosen domain, specific duties of the successful candidates may include the following:
…
Field 6: IT Portfolio/Programme Management and Enterprise Architecture
The IT Portfolio/Programme Management and Enterprise Architecture experts will mainly be involved in the following areas:
– Coordination and/or management of IT horizontal initiatives of strategic importance.
– Set-up and management of the application portfolio and/or verification that the portfolio/programme achieves its objective and that the projects which constitute it deliver the benefits required.
– Monitoring the scope, planning, budget and risks of the portfolio/programme and their constituent projects.
– Elaboration and validation of [Enterprise Architecture] products, including corporate (strategic) architectures as well as related domain-specific (technical) architectures, roadmaps, business processes, service-oriented architectures.
– As part of the IT strategy, contribution to the development of an IT vision considering technological opportunities.’
5 In respect of field 6, Annex II to the competition notice, entitled ‘Selection criteria’, provides:
‘Field 6: IT Portfolio/Programme Management and Enterprise Architecture (EA)
1. Professional experience in management of projects and/or in management of activities and services in the field of information technologies and/or in Enterprise Architecture.
2. Professional experience in Portfolio and/or Programme management.
3. Professional experience in resource planning, including analysing requirements, resource estimation and allocation.
4. Certification in a Project Management methodology (e.g. PRINCE2, PMI).
5. Professional experience with EA frameworks, principles and practices and/or certification in EA principles and practices (e.g. TOGAF).
6. Professional experience of IT Strategy and/or IT Governance frameworks (e.g. COBIT).
7. Professional experience in enterprise architecture modelling.
8. Professional experience in large-scale IT system implementation.’
6 Annex III to the competition notice, entitled ‘General rules governing open competitions’ (‘the general rules’), contains Section 3.3 on eligibility checks and provides in particular for the selection board to check compliance with the specific eligibility requirements. It is further stated in that section that the information given in an application is to be examined against the supporting documents at a later stage, and that candidates who do not meet all the eligibility requirements indicated in the competition notice are to be excluded.
7 Section 6.4 of the general rules provides for the possibility of requesting a review of any decision taken by the selection board or EPSO that establishes a candidate’s results and/or determines whether the candidate can proceed to the next stage of the Competition or is excluded. Sections 6.5 and 6.6 of the general rules refer to the possibility of submitting a complaint to the appointing authority and of submitting an appeal to the EU judicature.
8 On 7 March 2017, EPSO informed the applicant that the selection board had decided not to admit her to the second stage of the Competition (‘the decision of 7 March 2017’). More specifically, EPSO observed that the applicant had, first, a level of education corresponding to completed university studies of at least 4 years in ICT, attested by a diploma, followed by at least 6 years’ professional experience in ICT, and, second, a level of education corresponding to completed university studies of at least 4 years, attested by a diploma, followed by at least 10 years’ professional experience in ICT. However, in neither of those cases did the professional experience include a minimum of three years in the chosen field. EPSO added that the selection board had defined in advance strict criteria concerning the qualifications and professional experience necessary for the nature of the duties described in the competition notice.
9 On 13 March 2017, the applicant lodged a request for review of the decision of 7 March 2017.
10 On 15 May 2017, EPSO responded to the applicant’s request for review by informing her that the selection board had confirmed its initial decision of 7 March 2017 not to place her name on the list of candidates admitted to the second stage of the Competition (‘the decision of 15 May 2017’). EPSO pointed out that, before beginning the admission procedure, the selection board had drawn up criteria having regard to the specific conditions of the competition notice and that the selection board had rigorously applied those criteria to all candidates in order to ensure equal treatment. Since the applicant had completed four years of studies in the field of ICT, she was required to demonstrate at least six years of professional experience in that field. The selection board considered that the professional experience that the applicant had declared was relevant to ICT but that it was ‘not directly or only partially relevant’ to the field of ‘Portfolio Management/Programme Management and Enterprise Architecture’, and that the total experience in that field did not add up to the required three years.
11 On 7 June 2017, the applicant lodged a complaint under Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) against the ‘decision not to admit her to the following stage of the Competition’.
12 By decision of 14 September 2017 (‘the decision of 14 September 2017’), under reference Ares(2017)s. 4916702, the director of EPSO, acting as the appointing authority, rejected the applicant’s complaint of 7 June 2017. In essence, the appointing authority observed, first, that the selection board had decided in advance on objective evaluation criteria in order to ensure uniformity of assessment of the candidatures. Those criteria were applied equally to all the Competition candidates. Next, the appointing authority noted that the selection board had accepted that the applicant had at least six years’ professional experience in the field of ICT, but that that professional experience was not ‘directly pertinent’ to the field ‘IT Portfolio/Programme Management and Enterprise Architecture’ or to the duties described in Annex I to the competition notice. Finally, the appointing authority took the view that the selection board’s reasoning could not be qualified as manifestly erroneous.
Procedure and forms of order sought
13 By application lodged at the Registry of the General Court on 14 December 2017, the applicant brought this action.
14 On 7 March 2018, the Court (Seventh Chamber) decided that a second exchange of pleadings was unnecessary.
15 Upon hearing the report of the Judge-Rapporteur, the Court (Seventh Chamber) decided to open the oral procedure. At the hearing on 29 November 2018, the parties presented oral argument and replied to oral questions put by the Court.
16 At the hearing, the European Commission furnished two new documents. First, the President of the Seventh Chamber of the Court invited the Commission to justify the submission of those documents at that stage of the procedure and, second, the President took note of the applicant’s observations regarding the admissibility of those documents. Without adopting a position as to the admissibility of those documents, the President decided to add them to the file in the present case and set a deadline for the applicant to submit written observations on those new items of evidence.
17 On 7 January 2019, the applicant submitted written observations on the documents provided by the Commission at the hearing.
18 On 11 January 2019, the President of the Seventh Chamber of the Court decided to close the written part of the procedure.
19 The applicant claims that the Court should:
– annul the decision of 7 March 2017;
– annul the decision of 14 September 2017;
– annul ‘any subsequent decision having the same effect’;
– order the Commission to pay the costs.
20 The Commission contends that the Court should:
– dismiss the action;
– order the applicant to bear the costs.
Law
21 The applicant raises three pleas in law in support of her action. The first plea alleges a manifest error of assessment of the applicant’s professional experience; the second plea alleges an infringement of the competition notice; and the third plea alleges an infringement of Article 90(2) and Article 25 of the Staff Regulations.
22 It is appropriate, first, to examine the subject matter of the action at hand before analysing, secondly, the second plea in law. Thirdly, if deemed necessary, the first and third pleas in law will be examined.
Subject matter of the action
23 In the application, the applicant seeks the annulment of the ‘decision … not to admit [her] to the next stage of … Open Competition EPSO/AD/331/16 communicated to [her] by a letter dated 7 March 2017’, of the decision of 14 September 2017 and of ‘any other subsequent decision having the same effect’.
24 At the hearing, the applicant and the Commission submitted that the decision of 15 May 2017 constitutes the measure which adversely affects the applicant. The Commission added that the subject matter of the decision of 14 September 2017 was an objection raised against the decision of 15 May 2017. The applicant stated that the purpose of her third head of claim, seeking the annulment of ‘any other subsequent decision having the same effect’, was specifically to obtain the annulment of the decision of 15 May 2017.
25 As regards the head of claim seeking the annulment of the decision of 7 March 2017, the Court points out that, according to well-established case-law, where a person whose application for admission to a competition has been rejected seeks review of that decision on the basis of a specific provision which is binding on the administration, it is the decision taken by the selection board, after review, which constitutes the act adversely affecting that person, within the meaning of Article 90(2) of the Staff Regulations or, where applicable, Article 91(1) of those regulations (see, to that effect, order of 3 March 2017, GX v Commission, T‑556/16, not published, EU:T:2017:139, paragraph 21 and the case-law cited). The decision taken after the review therefore replaces the selection board’s original decision (see judgment of 5 September 2018, Villeneuve v Commission, T‑671/16, EU:T:2018:519, paragraph 24 and the case-law cited). It follows that it is the decision of 15 May 2017 which constitutes the act adversely affecting the applicant.
26 In that context, the Court observes that, by her second head of claim, set out in paragraph 19 above, the applicant seeks the annulment of the decision of 14 September 2017. However, it is settled case-law that claims directed against the rejection of a complaint have the effect of bringing before the Court the act against which the complaint was submitted and as such lack any independent content (see judgment of 20 November 2007, Ianniello v Commission, T‑205/04, EU:T:2007:346, paragraph 27 and the case-law cited; see also, to that effect, judgment of 14 November 2013, Europol v Kalmár, T‑455/11 P, EU:T:2013:595, paragraph 41). The administrative complaint 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 judicature. Accordingly, the action, even though formally brought solely against the rejection of the complaint, has the effect of bringing before the Court the act adversely affecting the applicant against which the complaint was submitted, in so far as the rejection of the complaint would not have a different scope from that of the act against which the complaint was brought (judgments of 21 May 2014, Mocová v Commission, T‑347/12 P, EU:T:2014:268, paragraph 34, and of 27 October 2016, CW v Parliament, T‑309/15 P, not published, EU:T:2016:632, paragraph 27).
27 In the present case, given that the decision of 14 September 2017 rejecting the complaint merely confirms the selection board’s refusal to consider that the applicant satisfied the requirement of proving that she had at least three years of professional experience in the field ‘IT Portfolio/Programme Management and Enterprise Architecture’, the Court finds that the second head of claim, seeking the annulment of that refusal decision, lacks any independent content and that it is therefore not necessary to adjudicate specifically on that head of claim, even though, in examining the lawfulness of the decision of 15 May 2017, it will be necessary to take account of the grounds set out in the decision of 14 September 2017, since those grounds are meant to be identical to those given in the decision of 15 May 2017 (see, to that effect, judgment of 9 December 2009, Commission v Birkhoff, T‑377/08 P, EU:T:2009:485, paragraphs 58 and 59 and the case-law cited).
28 Consequently, in the light of the considerations set out in paragraphs 25 to 27 above and the intention of the applicant and the Commission, stated expressly at the hearing (see paragraph 24 above), and of which the Court took note in the minutes of the hearing, it must be considered that the present action seeks solely the annulment of the decision of 15 May 2017, which constitutes, in the case at hand, the act adversely affecting the applicant.
The second plea, alleging infringement of the competition notice
29 The second plea is divided into two parts. By the first part the applicant argues that the competition notice is vague in not providing any definition of the phrase ‘large-scale IT system implementation’ and, consequently, does not fulfil the obligation to provide for clear conditions to be met by the candidates. By the second part the applicant considers that the selection board should have considered the professional experience of the candidates based on Annex II and not Annex I to the competition notice. However, the decision of 15 May 2017 refers to the fact that she did not fulfil the recruitment needs of the Commission as described in Annex I to the competition notice.
30 The Commission contends that, by the first part of the second plea in law, the applicant is, in reality, alleging non-compliance of the competition notice with the relevant case-law and not alleging an infringement of the provisions of the competition notice by the selection board. It adds that that argument is inadmissible due to manifest lateness. Moreover, that criterion was not relevant for the first stage of the competition following which the applicant was excluded. The Commission submits that the applicant therefore has no interest in the annulment of the criterion in question.
31 So far as concerns the second part of the second plea in law, the Commission considers that the part of the competition notice concerning the eligibility requirements must be interpreted in the light of Annex I thereto, describing the nature of the duties which successful candidates of the Competition could be required to carry out. In its view, the criteria listed in Annex II to the competition notice concern the second stage of the Competition, and not the first.
32 It is appropriate to begin by examining the second part of the second plea in law.
33 First of all, the Court notes that Annex I to the competition notice refers to the general duties which successful candidates will generally be required to perform and to the specific duties depending on the chosen field.
34 In that context, it should be noted that the main text of the competition notice refers to Annex I only in the introductive part, under the heading ‘What tasks can I expect to perform?’. In that part, candidates are invited to refer to Annex I to the competition notice for more information about the typical duties to be performed per field. Thus, according to the wording of the competition notice, Annex I thereto does not contain any selection criteria for candidates on the basis of their qualifications, but merely information intended for interested parties to assist them in deciding whether to apply for the Competition or not.
35 In its Annex II, the competition notice sets out the selection criteria to be used for the selection based on qualifications. As regards, more specifically, the field ‘IT Portfolio/Programme Management and Enterprise Architecture’, that annex lists ‘professional experience’ in relation to a series of specific activities and refers to a type of certification.
36 Next, so far as concerns the admission requirement of professional experience of at least three years in the ‘chosen field’, the Court finds that that requirement features, in accordance with the competition notice, among the specific conditions relating to the ‘qualifications and work experience’ of the candidates.
37 Moreover, the Court points out that, in accordance with what has been stated in paragraph 2 above, the first stage of the Competition consisted in checking whether the candidates had met the specific requirements regarding, inter alia, qualifications and professional experience. Section 2 of the competition notice, entitled ‘Selection based on qualifications’, sets out the detailed rules for checking whether those requirements have been satisfied. The competition notice itself states that the stage ‘selection based on qualifications’ consists, first, of checking the eligibility of the candidates’ applications and, second, of the awarding of points by the selection board for the candidates’ responses given in the application form’s Talent Screener tab. According to Section 2 of the competition notice, entitled ‘Selection based on qualifications’, it is Annex II to the latter which contains a list of ‘criteria’ per field. By contrast, Section 2 concerning the ‘selection based on qualifications’, does not contain any reference to Annex I to the competition notice.
38 The Court notes, furthermore, that Section 2 of the competition notice, entitled ‘Selection based on qualifications’, does not specify that the criteria listed in Annex II apply only during the second stage concerning the awarding of points by the selection board for the candidates’ responses given in the application form’s Talent Screener tab.
39 Finally, while the Commission states that the selection criteria to be used during the selection based on qualifications, listed in Annex II to the competition notice, are relevant only for the second stage of the Competition, namely the awarding of points by the selection board for the candidates’ responses given in the application form’s Talent Screener tab, the Court finds that that second stage did not constitute a selection based on qualifications, since it was carried out solely on the basis of the information provided in the application forms. Indeed, Sections 3.3, 3.4 and 3.7 of the general rules state that, throughout the Competition, the supporting documents provided by the candidates are to be examined only to determine whether the eligibility requirements have been met.
40 Moreover, the Court notes that, in so far as Articles 28 and 29 of, and Annex III to, the Staff Regulations allow for the organisation of competitions based on qualifications, such a selection based on qualifications requires an examination of written supporting documents submitted by the candidates.
41 Consequently, since the awarding of points by the selection board for the candidates’ responses given in the application form’s Talent Screener tab has not been carried out in the context of the examination of qualifications supported by written supporting documents, but in the context of an analysis of merely non-verified statements made in application forms, the second stage of the Competition does not constitute a selection based on qualifications within the meaning of Articles 28 and 29 of, and Annex III to, the Staff Regulations. Accordingly, the only selection based on qualifications which is carried out in the context of Section 2 of the competition notice, entitled ‘Selection based on qualifications’, is the first stage, in which it is checked whether the candidates have met the specific requirements regarding, inter alia, qualifications and professional experience.
42 It thus follows from the wording of the competition notice that the examination of the professional experience of the candidates in the ‘chosen field’ should have been carried out, at the very least, in the light of Annex II to the competition notice.
43 That finding is not called into question by the Commission’s argument that the part of the competition notice concerning eligibility criteria must be interpreted in the light of the part describing the nature of the duties. It is true that, according to the case-law, since the aim of competition notices, which is to inform potential candidates as accurately as possible of the necessary requirements to be able to occupy the post in question, it is necessary to interpret the eligibility requirements in the light of the aims of the competition in question, as set out in the description of the duties relating to the post to which the competition pertains. Consequently, the part concerning the nature of the duties and the part concerning the eligibility requirements of the competition notice must be considered together (judgment of 14 July 2000, Teixeira Neves v Court of Justice, T‑146/99, EU:T:2000:194, paragraph 34). However, that case-law cannot be interpreted as requiring that the professional experience of the candidates is to be examined exclusively in the light of the duties described in Annex I to the competition notice; if that were the case, such an examination would effectively depart from the requirements of the competition notice.
44 Consequently, the selection board committed an error of law in considering, in the decision of 15 May 2017, that only the duties listed in Annex I to the competition notice were relevant in examining whether the applicant possessed at least three years of professional experience in the ‘chosen field’. Moreover, the Court finds that, also in the decisions of 7 March and 14 September 2017, only an examination with regard to Annex I to the competition notice was carried out.
45 The result is that the selection board failed to have regard to all the criteria set out in the competition notice in examining the applicant’s application and, therefore, infringed the competition notice.
46 In that respect, the Court points out that the Commission submits in its defence that the selection board did not accept ‘project management’ among the types of relevant or partially relevant experience in relation to the field ‘IT Portfolio/Programme Management and Enterprise Architecture’. However, Annex I to the competition notice lists ‘project management’ as a ‘main duty’ and Annex II thereto includes, in the part relating to the field ‘IT Portfolio/Programme Management and Enterprise Architecture’, ‘professional experience in management of projects … in the field of information technologies and/or in Enterprise Architecture’ in the list of selection criteria. Given that the applicant submitted in her application that she had professional experience in project management, which was not taken into account by either the selection board or the appointing authority, it cannot be ruled out that, had that experience been taken into account, the applicant would have been admitted to the next stage of the Competition.
47 Accordingly, the second part of the second plea in law must be upheld.
48 Consequently, the decision of 15 May 2017 must be annulled in its entirety, without there being any need to examine the first plea, the first part of the second plea or the third plea raised by the applicant.
Costs
49 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 pay the costs, in accordance with the form of order sought by the applicant.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby:
1. Annuls the decision of the selection board of 15 May 2017 not to admit Ms Eleni Nerantzaki to the next stage of Open Competition EPSO/AD/331/16;
2. Orders the European Commission to pay the costs.
Tomljenović | Bieliūnas | Kornezov |
Delivered in open court in Luxembourg on 16 May 2019.