JUDGMENT OF THE GENERAL COURT (Eighth Chamber)
8 December 2021 (*)
(Access to documents – Regulation (EC) No 1049/2001 – Documents relating to Open Competition EPSO/AD/363/18 for the recruitment of administrators at grade AD 7 in the field of taxation – Restriction of the scope of the application for access – Refusal to grant access – Article 4(3) of Regulation No 1049/2001 – Exception relating to the protection of the decision-making process – Article 6 of Annex III to the Staff Regulations – Secrecy of the selection board’s proceedings – Partial access – Non-contractual liability)
In Case T‑247/20,
JP, represented by S. Rodrigues and A. Champetier, lawyers,
applicant,
v
European Commission, represented by C. Ehrbar and D. Milanowska, acting as Agents,
defendant,
APPLICATION pursuant to Article 263 TFEU seeking the annulment of Commission Decision C(2020) 1195 final of 24 February 2020 concerning a confirmatory application for access to documents under Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), as well as a claim for compensation pursuant to Article 268 TFEU for the non-material damage allegedly suffered by the applicant,
THE GENERAL COURT (Eighth Chamber),
composed of J. Svenningsen, President, R. Barents (Rapporteur) and T. Pynnä, Judges,
Registrar: I. Pollalis, Administrator,
having regard to the written part of the procedure and further to the hearing on 6 July 2021,
gives the following
Judgment
Background to the dispute
1 On 13 November 2018, the applicant, JP, applied for Open Competition EPSO/AD/363/18, organised by the European Personnel Selection Office (EPSO), in accordance with the competition notice published in the Official Journal of the European Union of 11 October 2018 (OJ 2018 C 368 A, p. 1; ‘the competition notice’) for the recruitment of administrators at grade AD 7 in the fields of ‘customs’ and ‘taxation’, the latter of which she selected.
2 In accordance with the competition notice, the competition consisted, in essence, of three stages: verification of the general and specific eligibility conditions; a selection procedure based on qualifications; and tests held in an assessment centre, to which only those candidates who had been successful in the first two stages of the competition were invited. Those tests consisted of reasoning tests, an interview based on competencies in the chosen field (‘the field-related interview’) – in the applicant’s case, taxation – and, lastly, three tests designed to assess general competencies, these being a case study, a group exercise and an interview based on those competencies (‘the general competency-based interview’).
3 Following the first two stages of the competition, the applicant was invited to the assessment centre. She completed the case study on 4 April 2019 and participated in the reasoning tests, interviews and group exercise on 22 May 2019.
4 On 17 July 2019, EPSO informed the applicant that the selection board had not included her name on the competition reserve list since she was not among the candidates who had obtained the highest marks in the tests held at the assessment centre (at least 116.5 points). She was informed at that time that she had obtained an overall score of 99 points out of 180.
5 On 25 July 2019, the applicant lodged a request for review of the decision not to include her name on the list (‘the request for review’).
6 On 20 and 21 September 2019, the applicant lodged six applications for access to documents (together, ‘the initial application for access’) through the register of documents of the Commission.
7 In her capacity as a candidate in Competition EPSO/AD/363/18, the applicant requested access to various documents connected with the competition, namely:
– the evaluation by the assessors of her answers during the field-related interview (‘Document No 1’);
– the evaluation by the assessors of her answers during the general competency-based interview (‘Document No 2’);
– all minutes of the selection board meetings discussing the performance and grading of candidates (‘Document No 3’);
– a copy of her case study (‘Document No 4’);
– the correction notes of her case study (‘Document No 5’); and
– the scores obtained in the field-related interview and the general competency-based interview by the first 10 candidates and the last 10 candidates appearing on the reserve list published on 5 August 2019 in the abovementioned competition (‘Document No 6’).
8 On 2 October 2019, EPSO informed the applicant that her initial application for access concerned a considerable number of documents which needed to be assessed individually and that such a detailed analysis could not be carried out within the time limits laid down in Article 7(1) of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43). Accordingly, EPSO asked the applicant to specify the objective of that application and her specific interest in the documents requested, with a view to finding a fair solution, pursuant to Article 6(3) of that regulation (‘the request for a fair solution’). EPSO stated that, if it did not receive a reply within five working days, it would unilaterally restrict the scope of the application.
9 On 8 October 2019, the applicant agreed to reduce the scope of the initial application for access. As regards Document No 6, she agreed to reduce the scope of that application to the scores of the last 10 candidates appearing on the reserve list. As regards Document No 3, she requested access to documents drawn up between 4 April 2019 (the date of her case study) and 17 July 2019 (the date on which her competition results were communicated). In her letter, she highlighted the fact that EPSO had not explained how the initial application for access would entail an excessive administrative burden.
10 On 4 November 2019, EPSO informed the applicant that six documents had been identified as coming within the scope of the initial application for access (‘the requested documents’). Even though the applicant had agreed to reduce the scope of that application, it identified and included the scores of the first 10 candidates appearing on the reserve list as coming within the scope of the application, along with the scores of the last 10 candidates (Document No 6). Access to the requested documents was entirely refused on the basis of (i) Article 4(1)(b) of Regulation No 1049/2001, regarding the protection of personal data, and (ii) Article 4(3) of that regulation, regarding the protection of the decision-making process, read in conjunction with Article 6 of Annex III to the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) which provides that proceedings of the selection board are to be secret. In the absence of any overriding public interest justifying a derogation from that latter exception, EPSO therefore refused to grant access, even in part, to the requested documents.
11 On 22 November 2019, the applicant lodged a confirmatory application for access with EPSO, pursuant to Article 7(2) of Regulation No 1049/2001.
12 On 10 December 2019, the applicant was informed by a letter from EPSO that the selection board for the competition had re-examined her file but had confirmed the initial decision not to put her on the reserve list (‘the decision rejecting the request for review’).
13 On 24 February 2020, the Secretary-General of the European Commission adopted Decision C(2020) 1195 final (‘the contested decision’) confirming the refusal to grant access to the requested documents on the basis of (i) Article 4(1)(b) of Regulation No 1049/2001, regarding the protection of personal data, and (ii) Article 4(3) of that regulation, regarding the protection of the decision-making process, read in conjunction with Article 6 of Annex III to the Staff Regulations. Furthermore, according to that decision, there was no overriding public interest in disclosure of the requested documents and no meaningful access in part was possible without undermining the protected interests.
14 On 5 March 2020, the applicant lodged a complaint with EPSO pursuant to Article 90(2) of the Staff Regulations against the decision rejecting the request for review (‘the prior complaint’).
Procedure and forms of order sought
15 By application lodged at the Court Registry on 4 May 2020, the applicant brought the present action.
16 By document lodged at the Court Registry on the same day, the applicant applied for anonymity, which was granted to her by the Court, pursuant to Article 66 of the Rules of Procedure of the General Court.
17 The defence was lodged on 14 July 2020.
18 By letter of 4 August 2020, the applicant was requested, pursuant to Article 83(3) of the Rules of Procedure, to produce a reply relating to the first two pleas.
19 The applicant lodged her reply on 15 September 2020. The Commission lodged its rejoinder on 11 November 2020.
20 On 2 December 2020, the Court adopted a measure of inquiry and ordered the Commission, on the basis of Article 91(c) of the Rules of Procedure, to produce a complete copy of the requested documents. The Commission complied with that request within the prescribed period. In accordance with Article 104 of the Rules of Procedure, those documents were not communicated to the applicant.
21 In the context of a measure of organisation of procedure adopted on 22 April 2021 on the basis of Article 89(3) of the Rules of Procedure, the Court put written questions to the parties, who lodged their replies to those questions within the prescribed periods.
22 The applicant claims that the Court should:
– annul the contested decision;
– order the Commission to pay one symbolic euro as compensation for the non-material damage suffered by the applicant and to pay all the costs of the proceedings.
23 The Commission contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
24 In support of the action, the applicant relies on four pleas in law. The first plea alleges infringement of Article 4(1)(b) of Regulation No 1049/2001 and Article 17 of Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ 2018 L 295, p. 39). The second plea alleges infringement of Article 4(3) of Regulation No 1049/2001. The third plea alleges infringement of Article 4(6) of Regulation No 1049/2001 and breach of the principle of proportionality. The fourth plea alleges breach of the principle of good administration.
25 The first three pleas are relied on in support of the head of claim based on Article 263 TFEU and the fourth plea is relied on in support of the head of claim based on Article 268 TFEU.
The claim for annulment
26 It is appropriate to begin by analysing the second plea in law.
The second plea in law, alleging infringement of Article 4(3) of Regulation No 1049/2001
27 The second plea in law is divided into two parts alleging, in essence, that, first, the applicant should have been granted access to the requested documents in accordance with the judgment of 12 November 2015, Alexandrou v Commission (T‑515/14 P and T‑516/14 P, EU:T:2015:844), and, secondly, the Commission failed to substantiate in specific terms why the disclosure of the requested documents would have undermined its decision-making process. It is appropriate to begin by examining the second part of the second plea in law.
(1) The second part of the second plea in law
28 The applicant submits that the Commission failed to substantiate in specific terms why disclosure of the requested documents would have undermined its decision-making process as protected by Article 4(3) of Regulation No 1049/2001.
29 According to the applicant, the statement of reasons given by the Commission is not supported by any detailed argument based on the content of the requested documents and is accordingly insufficient to substantiate the contested decision.
30 In addition, the applicant questions whether the disclosure of the requested documents would have put pressure on the selection board or on the last candidate appearing on the reserve list, since the requested documents could be anonymised and the score of the last candidate is known.
31 In her reply, the applicant states that, contrary to the Commission’s assertions, the contested decision does not contain a specific statement of reasons based on the content of the documents. That is particularly the case in respect of the references to the independence of selection boards and the fairness of future selection procedures. The applicant submits that the Commission should also have explained how the ‘foreseeable risk as recognised by the legislator itself’, namely the risk of undermining the decision-making process of the competition’s selection board, was reasonably foreseeable in the present case.
32 The Commission disputes the applicant’s arguments.
33 It must be borne in mind that the second subparagraph of Article 4(3) of Regulation No 1049/2001 provides that ‘access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned shall be refused even after the decision has been taken if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure’.
34 In the contested decision, the Commission distinguished between two groups of documents before finding that the disclosure of all the requested documents would seriously undermine EPSO’s decision-making process in a reasonably foreseeable and not purely hypothetical manner, relying on the case-law relating to Article 4(3) of Regulation No 1049/2001, read in conjunction with the Staff Regulations.
35 As regards the first group of documents, it was held in the contested decision that the confidential nature of the proceedings of the selection board, laid down in Article 6 of Annex III to the Staff Regulations, precluded not only the disclosure of the positions adopted by individual members of the selection board but also the revelation of any information concerning the individual or comparative assessment of the candidates. For that reason, the Commission considered that the applicant’s assessments (Documents Nos 1 and 2), the correction notes of her case study (Document No 5), the minutes of the selection board meetings (Document No 3) and the scores of the first and last 10 candidates appearing on the reserve list (Document No 6) had to be protected. The disclosure of that group of documents would thus have seriously undermined the decision-making process of the competition’s selection board, in so far as it would have led to a circumvention of the aforementioned provision. That secrecy was established by the legislature in order to safeguard the independence of the selection boards and the objectivity of their work, by protecting them from any external interference and pressure.
36 As regards the second group of documents, namely the applicant’s uncorrected answer to the case study (Document No 4), the Commission referred the applicant to point 3.2.2 of the competition notice, according to which candidates may request an uncorrected copy of their answers to written tests where their content is not intended for reuse, explicitly excluding answers to case studies. It went on to specify that case studies are intended to be reused or adapted by selection boards in subsequent selection procedures and competitions. Therefore, any disclosure of a case assignment or candidate answer script from which the contents of the assignment could be inferred would distort the fairness of future selection procedures by seriously undermining the equal treatment of candidates. Alternatively, such disclosure would undermine the efficient organisation and management of EPSO competitions, in so far as it would prevent EPSO from reusing previous or similar assignments in subsequent selection procedures.
37 In that regard, it must be noted that, in the judgment of 12 November 2015, Alexandrou v Commission (T‑515/14 P and T‑516/14 P, EU:T:2015:844, paragraphs 81 and 82), the Court acknowledged, on the basis of a similar restriction in another competition notice, that the principle that the proceedings of the selection board are to be secret applied to multiple-choice questions set in the context of open competitions. That restriction on the right of access was intended to avoid questions, which might be used in subsequent competitions, being disclosed to other, future candidates.
38 Accordingly, it must be considered that, by its reference to point 3.2.2 of the competition notice in the contested decision, with regard to Document No 4, the Commission intended to apply the principle that the proceedings of the selection board are to be secret, as guaranteed by Article 6 of Annex III to the Staff Regulations. In that regard, it must be noted that the applicant did not dispute the idea that the case study of Document No 4 could be reused in subsequent competitions.
39 The applicant’s arguments must be assessed in the light of the foregoing considerations.
40 First, it is appropriate to reject the applicant’s argument that the statement of reasons put forward in the contested decision is insufficient inasmuch as the reasons given by the Commission are worded in too general a manner, since they are not supported by any detailed argument based on the content of the requested documents.
41 As a preliminary point, it should be recalled that, according to settled case-law, the statement of reasons required under Article 296 TFEU and under Article 41(2)(c) of the Charter of Fundamental Rights of the European Union (‘the Charter’) must be appropriate to the measure at issue and must disclose clearly and unequivocally the reasoning followed by the institution which adopted that measure in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to exercise its power of review (see judgment of 26 March 2020, Bonnafous v Commission, T‑646/18, EU:T:2020:120, paragraph 22 and the case-law cited).
42 The requirement to state reasons must be assessed by reference to the circumstances of the case. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question. In the case of a request for access to documents, where the institution in question refuses such access, it must demonstrate in each individual case, on the basis of the information at its disposal, that the documents to which access is sought do indeed fall within the exceptions listed in Regulation No 1049/2001 (see judgment of 26 March 2020, Bonnafous v Commission, T‑646/18, EU:T:2020:120, paragraph 23 and the case-law cited).
43 It is therefore, according to the case-law, for the institution which has refused access to a document to provide a statement of reasons from which it is possible to understand and ascertain, first, whether the document requested does in fact fall within the sphere covered by the exception relied on and, secondly, whether the need for protection relating to that exception is genuine (see judgment of 26 March 2020, Bonnafous v Commission, T‑646/18, EU:T:2020:120, paragraph 24 and the case-law cited).
44 Furthermore, although the Commission is required to set out the reasons justifying the application to the particular case of one of the exceptions to the right of access provided for by Regulation No 1049/2001, it is not required to provide more information than is necessary in order for the person requesting access to understand the reasons for its decision and for the Court to review the legality of that decision (see judgment of 26 March 2020, Bonnafous v Commission, T‑646/18, EU:T:2020:120, paragraph 25 and the case-law cited).
45 It is in the light of these considerations that it falls to be determined whether, in the present case, the Commission met the requirements resulting from Article 296 TFEU and Article 41 of the Charter.
46 It is apparent from the contested decision that the Commission distinguished between two groups of documents and found, in essence and in the light of Article 6 of Annex III to the Staff Regulations, that any disclosure of the requested documents was likely seriously to undermine its decision-making process (see paragraphs 34, 35 and 38 above). In that context, it noted that the first group of documents (Documents Nos 1 to 3, 5 and 6) contained positions adopted by individual selection board members and information relating to the individual or comparative assessment of the candidates and that the protection of that group was necessary in order to safeguard the independence of the selection board and the objectivity of its work, by protecting that board from any external interference or pressure (see paragraph 35 above). It also noted, in the context of the second group of documents (Document No 4), that the case studies were intended to be reused in subsequent selection procedures and that their disclosure would distort the fairness of future selection procedures and would undermine the efficient organisation and management of EPSO competitions (see paragraph 36 above).
47 Thus, first of all, it is unambiguously clear from the contested decision that, according to the Commission, the requested documents came within the scope of the exception laid down in Article 4(3) of Regulation No 1049/2001, read in conjunction with Article 6 of Annex III to the Staff Regulations, because, in essence, they were connected to EPSO’s decision-making process and their disclosure would have seriously undermined that process.
48 Next, it is apparent from the reasons given in the contested decision that, in accordance with the case-law cited in paragraphs 43 and 44 above, the Commission provided a clear and understandable statement of the reasons why it considered that access to the requested documents would undermine the interest protected by the exception laid down in Article 4(3) of Regulation No 1049/2001. Thus, after having explained that it was appropriate to interpret the exception laid down in that provision, read in conjunction with Article 6 of Annex III to the Staff Regulations, it clearly set out, drawing distinctions depending on the nature of the information contained in the requested documents, the reasons why the information concerned came within the sphere covered by that exception.
49 Moreover, as is clearly apparent from the applicant’s written pleadings, the statement of reasons given in the contested decision made it possible for her to understand the reasons why access was refused and to prepare the present action. In addition, that statement of reasons is also sufficient to enable the Court to exercise its power of review.
50 Therefore, it cannot be disputed that the contested decision satisfies the conditions established by the case-law, as set out in paragraphs 41 to 44 above. Accordingly, the applicant’s argument that the statement of reasons given in the contested decision was insufficient must be rejected.
51 Secondly, and contrary to what was suggested by the applicant at the hearing, the requested documents are likely to contain confidential information coming within the scope of the exception relating to the protection of the decision-making process. Indeed, they appear to be closely connected with the recruitment process established by the Commission in Competition EPSO/AD/363/18. They therefore form part of the Commission’s decision-making process and, accordingly, come within the scope of Article 4(3) of Regulation No 1049/2001 (see, to that effect, judgment of 12 November 2015, Alexandrou v Commission, T‑515/14 P and T‑516/14 P, EU:T:2015:844, paragraph 86).
52 Thirdly, the applicant submits, in essence, that the Commission did not carry out a specific examination based on the content of the requested documents.
53 In that regard, it must be borne in mind that, in accordance with established case-law, to justify a refusal to grant access to a document of which disclosure has been requested, it is not sufficient, in principle, for that document to concern an activity referred to in Article 4 of Regulation No 1049/2001 (see judgment of 25 September 2018, Psara and Others v Parliament, T‑639/15 to T‑666/15 and T‑94/16, EU:T:2018:602, paragraph 102 and the case-law cited).
54 Indeed, according to settled case-law, the examination required for the purpose of processing a request for access to documents must be specific in nature. Thus, first, the mere fact that a document concerns an interest protected by an exception is not sufficient to justify application of that exception. Secondly, the risk of a protected interest being affected must be reasonably foreseeable and not purely hypothetical. Consequently, the examination which the institution must undertake in order to apply an exception must be carried out in a specific manner and must be apparent from the reasons for the decision (see judgment of 25 September 2018, Psara and Others v Parliament, T‑639/15 to T‑666/15 and T‑94/16, EU:T:2018:602, paragraph 103 and the case-law cited).
55 In the first place, the fact remains that, like any general rule, the right of access to documents provided for in Regulation No 1049/2001 may be specified, extended or, conversely, limited or excluded – according to the principle that a special rule derogates from the general rule (lex specialis derogat legi generali) – where there are special rules governing specific matters (judgments of the General Court (then the Court of First Instance) of 5 April 2005, Hendrickx v Council, T‑376/03, EU:T:2005:116, paragraph 55, and of 14 July 2005, Le Voci v Council, T‑371/03, EU:T:2005:290, paragraph 122).
56 In that connection, the EU judicature has observed that the secrecy surrounding the proceedings of selection boards under Article 6 of Annex III to the Staff Regulations was introduced with a view to guaranteeing the independence of those boards and the objectivity of their proceedings, by protecting them from all forms of external interference and pressure whether these come from the EU administration itself, the candidates concerned, or third parties. Observance of this secrecy therefore precludes disclosure both of the attitudes adopted by individual members of selection boards and of any factors relating to individual or comparative assessments of candidates (see judgment of 5 April 2005, Hendrickx v Council, T‑376/03, EU:T:2005:116, paragraph 56 and the case-law cited).
57 In the present case, as the requested documents come within the specific sphere of the EU civil service, the exception relating to the protection of the decision-making process laid down in Article 4(3) of Regulation No 1049/2001 must therefore be interpreted having regard to the principle that the proceedings of the selection board are to be secret, as set out in Article 6 of Annex III to the Staff Regulations (see, to that effect, judgment of 12 November 2015, Alexandrou v Commission, T‑515/14 P and T‑516/14 P, EU:T:2015:844, paragraph 93).
58 In the specific context of Article 6 of Annex III to the Staff Regulations, according to case-law, the criteria for marking adopted by the selection board prior to the tests form an integral part of the comparative assessments which it makes of the candidates’ respective merits. Those criteria are therefore covered by the secrecy of the proceedings in the same way as the selection board’s assessments. The comparative assessments made by the selection board are reflected in the marks it allocates to the candidates. The marks are the expression of the value judgments made concerning each of them (judgment of 4 July 1996, Parliament v Innamorati, C‑254/95 P, EU:C:1996:276, paragraphs 29 to 30).
59 In the present case, it is clear that individual or comparative assessments are contained in the evaluation by the assessors of the applicant’s answers (Documents Nos 1 and 2), the minutes of the selection board meetings (Document No 3), the correction notes of her case study (Document No 5) and the scores of the candidates appearing on the reserve list (Document No 6).
60 In the second place, the Court has also held that it is open to an institution to base its decisions on general presumptions which apply to certain categories of documents, as considerations of a generally similar kind are likely to apply to requests for disclosure relating to documents of the same nature (see judgment of 12 November 2015, Alexandrou v Commission, T‑515/14 P and T‑516/14 P, EU:T:2015:844, paragraph 88 and the case-law cited).
61 In order to find that such a presumption exists, the Court has, inter alia, relied on the fact that the exceptions to the right of access to documents set out in Article 4 of Regulation No 1049/2001 cannot, where the documents covered by the request for access fall within a particular area of EU law, be interpreted without taking account of the specific rules governing access to those documents (see judgment of 12 November 2015, Alexandrou v Commission, T‑515/14 P and T‑516/14 P, EU:T:2015:844, paragraph 90 and the case-law cited).
62 In that context, the Court has held that, in accordance with the objectives pursued by the principle that the secrecy of the selection board’s proceedings is to be protected, the administration is entitled to presume, without carrying out a specific and individual examination of the documents to which access is sought, that the disclosure of multiple-choice questions intended for reuse in subsequent competitions in principle seriously undermines its decision-making process (judgments of 12 November 2015, Alexandrou v Commission, T‑515/14 P and T‑516/14 P, EU:T:2015:844, paragraph 94; of 23 September 2020, ZL v EUIPO, T‑596/18, not published, EU:T:2020:442, paragraph 46; and of 10 February 2021, XC v Commission, T‑488/18, not published, under appeal, EU:T:2021:76, paragraph 150).
63 In the present case, similar considerations justify Document No 4 being protected by the secrecy of the selection board’s proceedings, namely the fact that there is a risk that its disclosure may undermine the principle of equal treatment of candidates in a subsequent competition in which the content of the assignment would be reused and, as a result, may prevent that content from being reused, which would frustrate the broad discretion of the selection board in its organisation of assignments and would be contrary to the principle of good administration (judgments of 12 November 2015, Alexandrou v Commission, T‑515/14 P and T‑516/14 P, EU:T:2015:844, paragraph 82, and of 10 February 2021, XC v Commission, T‑488/18, not published, under appeal, EU:T:2021:76, paragraph 152).
64 Therefore, it must be acknowledged that the disclosure of the requested documents would have seriously undermined the Commission’s decision-making process because it would jeopardise the observance of the principles referred to in paragraphs 55, 56 and 62 above.
65 That finding is not called into question by the fact that the examination required for the purpose of processing a request for access to documents must, in principle, be specific and individual in nature. As is apparent from the case-law cited in paragraph 60 above, there are in fact exceptions to that principle, in particular where there is a general presumption that disclosure of the document in question would undermine one of the interests protected by the exceptions laid down in Article 4 of Regulation No 1049/2001. Accordingly, the Commission was not required to show that this was in fact the case in respect of Document No 4.
66 Likewise, as is apparent from paragraphs 57 to 59 above, in order to ensure that the Staff Regulations and Regulation No 1049/2001 are applied consistently, account must be taken, as regards Documents Nos 1 to 3, 5 and 6, of the reasonably foreseeable risk that the decision-making process will be undermined, recognised by the EU legislature through Article 6 of Annex III to the Staff Regulations, inasmuch as those documents contain individual or comparative assessments within the meaning of the case-law cited in paragraph 58 above.
67 It is apparent from the foregoing that the second part of the second plea in law must be rejected as unfounded.
(2) The first part of the second plea in law
68 The applicant submits, in essence, that she should have been granted access to the requested documents in accordance with the judgment of 12 November 2015, Alexandrou v Commission (T‑515/14 P and T‑516/14 P, EU:T:2015:844), according to which the principle of access to documents may prevail over the principle that the proceedings of the selection board are to be secret, since she meets the requirements imposed by that judgment.
69 First, the applicant submits that she challenged the relevance of some questions and the merits of some answers regarded as correct by means of her request for review and that she lodged the prior complaint following the rejection of that request for review and an action for the annulment of the decision rejecting her prior complaint. According to the applicant, the existence of and reference made to those remedies is sufficient.
70 In her reply, the applicant submits that she did not ask for access to the selection board’s proceedings in order to carry out a comparison of the evaluation with those of other candidates.
71 Furthermore, the applicant submits that the level of detail required by the Commission amounts to a requirement that the person requesting access must have advance knowledge of the precise content of the documents to which access has been requested, which is akin to a probatio diabolica since, during the oral part of the competition, only the assessors could record the performance in writing.
72 In addition, the applicant claims that the evaluations to which she seeks access do not reveal the number of years of experience which the assessors have in the field of taxation, but the extent to which the information provided by the applicant regarding her professional experience in that field was or was not taken into account or studied in detail by the assessors. What is more, the applicant suspects that some of the information provided was misunderstood or omitted in the general competency-based interview and the field-related interview.
73 The applicant submits that, when called upon to grant access to documents that are likely to prove an error, the Commission is thus not competent to judge whether that error has actually been committed. The Commission’s assessment should concern only whether the documents could be relevant for that purpose.
74 Secondly, the applicant claims that, contrary to the Commission’s assertions, the difference between her score and the pass threshold was not too great. The applicant puts forward four specific arguments in that regard.
75 In the first place, the applicant claims that the Commission cannot decide that the judgment of 12 November 2015, Alexandrou v Commission (T‑515/14 P and T‑516/14 P, EU:T:2015:844), is not applicable on the basis of its own perception of the chances of success of the applicant’s action. In the second place, she submits that that judgment does not require there to be any ‘closeness’ between the candidate’s scores and the pass threshold. In the third place, she emphasises that, even assuming that a ‘reasonable “closeness”’ were required, she satisfies that condition, given that all her scores in the written and oral tests are higher than the minimum score required by the competition notice. In the fourth place, she states that, even assuming that mere ‘closeness’ were required, she satisfies that condition, given that the difference between her overall score and that of the last candidate included on the reserve list is only 17.5/180 points.
76 Thirdly, in her reply, the applicant explains that no overriding public interest is required in order for the judgment of 12 November 2015, Alexandrou v Commission (T‑515/14 P and T‑516/14 P, EU:T:2015:844), to apply.
77 Casting doubt on the validity of specific questions or the validity of answers deemed correct amounts to a private interest, namely the interest of the unsuccessful candidate in being re-admitted to the competition or included on the reserve list.
78 According to the applicant, her private interest is, however, connected to a broader public interest, namely that of ensuring the objectivity of the selection procedure in question, which is at the heart of Article 27 of the Staff Regulations, according to which recruitment is to be directed to securing for the institution concerned the services of officials of the highest standard of ability, efficiency and integrity.
79 Furthermore, there is an overriding public interest consisting of showing the general public that the evaluation method chosen by EPSO for certain parts of the competition is unsuitable and unreliable.
80 The Commission disputes the applicant’s arguments.
81 It should be borne in mind that, in paragraph 86 of the judgment of 12 November 2015, Alexandrou v Commission (T‑515/14 P and T‑516/14 P, EU:T:2015:844), the Court held that the multiple-choice questions set by selection boards in competitions organised by EPSO form part of the Commission’s decision-making process and, accordingly, come within the scope of the second subparagraph of Article 4(3) of Regulation No 1049/2001.
82 In that context and in accordance with the objectives pursued by the principle that the proceedings of the selection board are to be secret, the Court also acknowledged in that judgment that the administration is entitled to presume, without carrying out a specific and individual examination of the documents to which access is sought, that the disclosure of that type of question in principle seriously undermines its decision-making process (judgments of 12 November 2015, Alexandrou v Commission, T‑515/14 P and T‑516/14 P, EU:T:2015:844, paragraph 94, and of 23 September 2020, ZL v EUIPO, T‑596/18, not published, EU:T:2020:442, paragraph 46).
83 However, the Court emphasised that that general presumption does not rule out the possibility of demonstrating that a specific document disclosure of which has been requested is not covered by that presumption, or that there is an overriding public interest in disclosure of that document by virtue of Article 4(3) of Regulation No 1049/2001 (see, by analogy, judgment of 12 November 2015, Alexandrou v Commission, T‑515/14 P and T‑516/14 P, EU:T:2015:844, paragraph 96).
84 In certain specific circumstances, the Court noted that the general presumption of confidentiality applicable to multiple-choice questions may be rebutted, in the context of weighing up the interests in question, in accordance with the system provided for in Article 4(3) of Regulation No 1049/2001. Such is the case when a candidate disputes specifically the relevance of certain questions or the validity of the answers regarded as correct (‘the first condition’) and provided that the difference between his or her results and the pass threshold is such that, assuming that his or her complaint is well founded, the applicant could be among the candidates who passed the tests in question (‘the second condition’). In such a case, communication of the text of the questions at issue to the person concerned is necessary in order to enable him or her to assess whether the decision excluding him or her from the competition was lawful and whether it is appropriate for him or her to bring an action, as well as to enable the Court to exercise its power of review. In that case, the right for the person concerned to have access to the information on which that decision was based prevails over the principle that the proceedings of the selection board are to be secret (judgment of 12 November 2015, Alexandrou v Commission, T‑515/14 P and T‑516/14 P, EU:T:2015:844, paragraph 98).
85 In the present case, contrary to the circumstances of the case that gave rise to the judgment of 12 November 2015, Alexandrou v Commission (T‑515/14 P and T‑516/14 P, EU:T:2015:844), the applicant did not seek and the Commission did not refuse access to documents containing multiple-choice questions set in admission tests participated in by the applicant.
86 Furthermore, although the contested decision states that the judgment of 12 November 2015, Alexandrou v Commission (T‑515/14 P and T‑516/14 P, EU:T:2015:844), does not apply to the present case because the difference between the score obtained by the applicant and the pass threshold of the competition is too great, that decision does not identify the documents to which that finding applies. Likewise, the applicant does not specify, in her written pleadings, the documents in respect of which she intends to argue that the solution reached in paragraph 98 of that judgment – set out in paragraph 84 above – applies.
87 However, assuming that the solution reached in paragraph 98 of the judgment of 12 November 2015, Alexandrou v Commission (T‑515/14 P and T‑516/14 P, EU:T:2015:844), is applicable in the present case to all the requested documents, it is clear that the applicant does not satisfy any of the conditions necessary to rebut the general presumption that the disclosure of that type of question in principle seriously undermines the Commission’s decision-making process.
88 First, the applicant has not disputed specifically any question set or answer given in the tests she sat. She therefore does not satisfy the first condition set out in paragraph 98 of the judgment of 12 November 2015, Alexandrou v Commission (T‑515/14 P and T‑516/14 P, EU:T:2015:844).
89 Thus, her initial application for access does not indicate any question set or answer given in the competition tests. In her confirmatory application for access, the applicant stated that she had lodged a request for review and that, in that request, she had, inter alia, disputed the objectivity of her evaluation on account of the lack of tax expertise of the selection board members who conducted the field-related interview and, accordingly, the relevance of certain questions and the evaluation of certain answers. She went on to explain, in essence, that, in that request for review, she had set out the content of her answers in order to avert the risk of any error being made in the noting and reporting of her answers and consequently of her performance in the oral tests at the assessment centre (the group exercise, the general competency-based interview and the field-related interview).
90 It is clear that those allegations do not refer to any specific question or answer leading to the suspicion that there is any irregularity in one of the tests, or any evidence or indicia such as to suggest that the selection board members concerned by those accusations lack expertise. In addition, the request for review to which the applicant refers was not attached to the confirmatory application for access.
91 In any event, in the request for review, the applicant did not argue any specific error relating to the questions asked. She merely repeated certain questions set and answers given in order to infer that her performance had been under-evaluated and thus dispute the entirety of her evaluation. She does not, at any point, dispute the relevance of the questions set. As for calling into question the selection board members’ professional experience in the field of taxation, she does not refer to any specific part of the interview in that request either. She merely refers to the public information available on those people leading her to doubt the objectivity of their evaluation concerning her.
92 The fact that the applicant, after the contested decision was adopted, lodged a prior complaint following the rejection of her request for review and brought two actions for annulment of the decision rejecting her prior complaint is irrelevant. Even assuming that the applicant disputed specifically the questions set or answers regarded as correct in the subsequent steps she took, those steps cannot be taken into account for the purpose of assessing the legality of the contested decision, in so far as the legality of that decision must be assessed on the basis of the elements of fact and of law existing at the time when the measure was adopted (see judgment of 5 December 2018, Sumner v Commission, T‑152/17, not published, EU:T:2018:875, paragraph 42 and the case-law cited).
93 It is therefore in the initial application for access or the confirmatory application for access and any annexes thereto that the applicant should have raised her objections to the questions set or answers regarded as correct, which she did not do.
94 Moreover, contrary to what is suggested by the applicant, the need to dispute specifically particular questions or answers does not require her to know in advance the precise content of the documents that she wishes to access and is therefore not akin to a probatio diabolica, that is to say, proof which it is impossible to provide. A candidate who has participated in competition tests necessarily has knowledge of the questions put to, and the answers given by, him or her. Moreover, although it is not disputed that during the oral part of competition tests the assessors alone may take notes, there is nothing to prevent candidates, after the tests have been taken, from writing down the questions set and answers given during interviews in order to document their recollections, in particular, if the questions set could have given rise to doubts in their mind as to their relevance or if a candidate has doubts as to the professional experience of certain selection board members whose names are public (see, to that effect, judgment of 23 September 2020, ZL v EUIPO, T‑596/18, not published, EU:T:2020:442, paragraph 70). Moreover, as the applicant herself acknowledges in the confirmatory application for access, she set out, in her request for review, the content of some of her answers in the various tests, which shows that it is possible to recollect the content of questions set or answers given in a competition test.
95 Secondly, the applicant does not satisfy the second condition set out in paragraph 98 of the judgment of 12 November 2015, Alexandrou v Commission (T‑515/14 P and T‑516/14 P, EU:T:2015:844), according to which the difference between her results and the pass threshold should be such that, assuming that her objection is well founded, she could have been among the candidates who passed the disputed test.
96 The assessment of that condition must be carried out in the light of the scores obtained by the applicant and the points attributed to the disputed questions, as follows from the wording ‘assuming that [her] objection is well founded’ used in the case-law. However, as is apparent from paragraph 87 above, the applicant did not dispute any specific questions or answers. If this had been the case, it would have been possible to verify that her ‘increased’ scores would have allowed her to place among the candidates who passed the test, in the event that the disputed questions or answers were disregarded. In the present case, it is therefore not possible to assess the ‘improvement’ of the applicant’s scores and verify that she could have been among the candidates who passed the disputed test.
97 Even assuming that the assessment of the second condition set out in paragraph 98 of the judgment of 12 November 2015, Alexandrou v Commission (T‑515/14 P and T‑516/14 P, EU:T:2015:844), must be carried out without account being taken of the fact that the invalidation of the disputed question would have enabled the applicant to be among the candidates who passed the disputed test, it must be stated that the applicant’s arguments do not show that there were specific circumstances which required the requested documents to be communicated.
98 In the first place, the fact that she obtained a score higher than the minimum score required in all the competition tests cannot establish, per se, that the applicant could have been among the successful candidates of the competition.
99 As the Commission contends, if that reasoning were to be followed, any candidate who obtained the minimum score would be granted a right of access, whereas it is only in ‘certain specific circumstances’ that a candidate may avail him or herself of such a possibility (judgment of 12 November 2015, Alexandrou v Commission, T‑515/14 P and T‑516/14 P, EU:T:2015:844, paragraph 98). The unspecific nature of the considerations set out by the applicant cannot therefore establish the ‘specific circumstances’ required by the case-law and cannot, in themselves, outweigh the reasons underlying the refusal to disclose the requested documents.
100 In the second place, the calculations set out by the applicant in connection with her score for the field-related interview are not convincing either.
101 The applicant received an overall score of 99/180, while the pass threshold was 116.5/180. A difference of 17.5 points separates those two scores, that is, a difference of 15%.
102 In that connection, the applicant submits that an increase of 2/10 points (that is, 20%) of her score in each of the three fields that make up the field-related interview would have enabled her to improve her overall score, due to the application of the various coefficients, by 19 points.
103 That abstract and purely hypothetical demonstration relies on a complete re-evaluation of her performance in that interview. Moreover, 35 of the candidates who did not reach the pass threshold of the competition obtained a higher score than the applicant. The applicant cannot therefore reasonably claim that it would be plausible, or even probable, that the correction of (unidentified) errors would have enabled her to increase the score obtained in that test and be placed among the successful candidates of the competition.
104 In the third place, contrary to what the applicant claims, by referring, in the contested decision, to the lack of closeness between the overall score obtained by the applicant and the pass threshold of the competition, the Commission did not state its position on the chance of success of the applicant’s action, but on her general chances of being among the successful candidates of the competition, thereby highlighting the fact that the applicant’s scores were not, in themselves, by any means close to the pass threshold.
105 Moreover, in the confirmatory application for access, the applicant did not explain why there was, according to her, a chance that she would have been among the successful candidates of the competition. She merely referred to the fact that she had obtained a score higher than the minimum score required in all the competition tests, without any further explanation. It is only during the proceedings before the Court that she has claimed that increasing each of the three scores obtained in the field making up the field-related interview by 20% would have led to her being among the successful candidates of the competition. However, it is clear from paragraphs 98 and 100 above that, in both cases, the scores obtained by the applicant are not, in themselves, in any way close to the pass threshold of the competition and the applicant has not established that there are specific circumstances leading to a suspicion that there might be an irregularity.
106 Thirdly, irrespective of whether, as the Commission contends, the applicant should have demonstrated that there is an overriding public interest in the disclosure of the requested documents or whether, as the applicant, in essence, submits, that demonstration was not necessary, since the first and second conditions set out in paragraph 98 of the judgment of 12 November 2015, Alexandrou v Commission (T‑515/14 P and T‑516/14 P, EU:T:2015:844), were satisfied, the Court finds that the existence of an overriding public interest is not established in the present case.
107 Pursuant to the second subparagraph of Article 4(3) of Regulation No 1049/2001, the exception enshrined therein is not applicable if there is an overriding public interest in the disclosure of the document in question.
108 Thus, the system of exceptions laid down in Article 4 of Regulation No 1049/2001, particularly in paragraph 3 thereof, is based on a balancing of the opposing interests in a given situation, that is to say, first, the interests which would be favoured by the disclosure of the documents in question and, secondly, those which would be jeopardised by such disclosure. The decision taken on a request for access to documents depends on which interest must prevail in the particular case (see, by analogy, judgment of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 42).
109 In the present case, first of all, the applicant has not claimed, in the initial application or the confirmatory application for access, that there is an overriding public interest per se. She merely refers, in the confirmatory application for access, to the need to access the requested documents in so far as those documents would enable her to substantiate her challenge of the answers given in the oral tests at the assessment centre.
110 Even if, by that assertion, the applicant intended to rely on an overriding public interest, it is clear that an interest consisting of facilitating the exercise of her rights of defence in any actions she might bring in other cases amounts to a ‘private’ interest, which is not covered by Article 4(3) of Regulation No 1049/2001 (see, to that effect and by analogy, judgment of 14 July 2016, Sea Handling v Commission, C‑271/15 P, not published, EU:C:2016:557, paragraphs 97 to 99). Moreover, the applicant herself acknowledges in her reply that her actions are motivated first and foremost by private considerations.
111 Thus, it is only in her reply, in response to the arguments raised by the Commission in the defence, that the applicant raises that issue expressly and puts forward arguments to that effect. According to the case-law referred to in paragraph 92 above, those allegations cannot be taken into account for the purpose of assessing the legality of the contested decision, since the legality of the contested measure must be assessed on the basis of the elements of fact and of law existing at the time when the measure was adopted.
112 In any event, none of the arguments set out by the applicant in the reply or at the hearing is such as to establish an overriding public interest.
113 It is for the party claiming that there is an overriding public interest to set out in a specific manner the circumstances justifying the disclosure of the documents concerned. Those circumstances must, in addition, provide an appropriate basis for establishing that the overriding interest is especially pressing and prevails over the reasons underlying the refusal to grant access (see, to that effect, judgment of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraphs 93 and 94 and the case-law cited).
114 Regarding the need, argued by the applicant, to ensure the objectivity of the selection procedure concerned, which is at the heart of Article 27 of the Staff Regulations, it must be held that that justification is hypothetical because it is based on the idea that the applicant could have been among the candidates who passed the disputed test, whereas such a hypothesis cannot be regarded as proved, as has been noted in, inter alia, paragraph 97 above.
115 Regarding the objective of showing the public that EPSO’s evaluation method for the competition in question is unsuitable and unreliable, it must be stated that those considerations put forward by the applicant are, again, hypothetical and general, since they apply to any competition organised in a similar manner.
116 It follows from the foregoing that, in any event, the applicant has not established that there is an overriding public interest.
117 It follows from all of the foregoing that the first part of the second plea in law and, accordingly, that plea in its entirety, must be rejected.
118 As is apparent from the contested decision, the Commission relied at the same time on the exceptions based on the protection of private life and the protection of the decision-making process.
119 Therefore, there is no need to examine the merits of the first plea in law, since, in order for the contested decision to be well founded in law, it is sufficient if one of the exceptions put forward by the Commission in order to refuse access to the requested documents was justified (see, to that effect, judgment of 11 July 2018, ClientEarth v Commission, T‑644/16, not published, EU:T:2018:429, paragraph 78 and the case-law cited).
The third plea in law, alleging infringement of Article 4(6) of Regulation No 1049/2001 and breach of the principle of proportionality
120 The applicant submits that the Commission incorrectly applied Article 4(6) of Regulation No 1049/2001 and the principle of proportionality. She claims, in essence, that the Commission did not consider the possibility of granting access in part to the requested documents by redacting the names and signatures contained therein.
121 The Commission disputes the applicant’s arguments.
122 It must be borne in mind that, in accordance with Article 4(6) of Regulation No 1049/2001, if only parts of the requested document are covered by any of the exceptions, the remaining parts of the document are to be disclosed.
123 As regards Document No 4, it must be stated that that document is covered by the general presumption (see paragraph 63 above), that the applicant has been unsuccessful in calling into question the application of that presumption (see paragraphs 88 to 105 above), and that it has not been established that there is an overriding public interest in its disclosure (paragraphs 109 to 116 above). That document therefore falls outside the scope of the obligation to disclose its content, in full or in part (see, to that effect, judgments of 28 June 2012, Commission v Éditions Odile Jacob, C‑404/10 P, EU:C:2012:393, paragraph 133, and of 27 February 2014, Commission v EnBW, C‑365/12 P, EU:C:2014:112, paragraph 134).
124 As regards Documents Nos 1 to 3, 5 and 6, it must be noted that examination of partial access to a document of the European Union institutions must be carried out in the light of the principle of proportionality (judgments of 6 December 2001, Council v Hautala, C‑353/99 P, EU:C:2001:661, paragraphs 27 and 28, and of 12 September 2013, Besselink v Council, T‑331/11, not published, EU:T:2013:419, paragraph 83).
125 Thus, it is clear from the very wording of Article 4(6) of Regulation No 1049/2001 that an institution is required to consider whether it is appropriate to grant partial access to requested documents and to confine any refusal to information covered by the relevant exceptions. The institution must grant such partial access if the aim pursued by that institution in refusing access to a document could be achieved if the institution merely struck out the passages which might harm the public interest to be protected (judgment of 12 September 2013, Besselink v Council, T‑331/11, not published, EU:T:2013:419, paragraph 84).
126 In the present case, the Commission ruled out the possibility of granting partial access to all the requested documents, since those documents were, in its view, covered in their entirety by the exception provided for in the second subparagraph of Article 4(3) of Regulation No 1049/2001. It thus explained that it had considered the possibility of granting partial access, but that no meaningful access could have been granted without undermining the protected interests.
127 It is therefore appropriate to examine whether the refusal to grant access to Documents Nos 1 to 3, 5 and 6 is justified in the present case having regard to the exceptions relied on, in the light of the principle of proportionality.
128 Regarding Document No 1, it must be stated that the need to protect the positions adopted by the members of the selection board and the evaluations carried out by that board applies to only part of the document in question. Such considerations do not concern the questions set out in the sections headed ‘Anchor’ and ‘Possible questions’. Moreover, the Commission did not argue at any stage that those questions were intended to be reused in subsequent competitions.
129 Similar considerations are applicable to Document No 2, in respect of which the Commission never argued that the questions asked in the sections headed ‘Situation 1’, ‘Situation 2’ and ‘Situation 3’ were intended to be reused in subsequent competitions.
130 Accordingly, the Commission could not refuse access to those parts of the two documents in question on the basis of Article 6 of Annex III to the Staff Regulations.
131 Regarding Document No 3, the Commission was fully entitled to consider in the contested decision that partial disclosure of that document would be pointless. Such disclosure would have entailed the Commission making the content of the deliberations inaccessible, so that disclosure of that document would be restricted to its title.
132 It also does not appear possible to disclose any part of Document No 5, which reproduces the scores obtained by the applicant and the correction criteria adopted by the selection board for the case study, or of Document No 6, which contains the scores of the first 10 and last 10 candidates included on the reserve list.
133 It follows that the third plea in law alleging infringement of Article 4(6) of Regulation No 1049/2001 must be upheld in part, inasmuch as the Commission refused to grant the applicant access to the questions set out in the sections of Document No 1 headed ‘Anchor’ and ‘Possible questions’ and refused to grant access to the questions set out in the sections of Document No 2 headed ‘Situation 1’, ‘Situation 2’ and ‘Situation 3’. The same applies to the applicant’s claim for annulment.
The claim for damages
134 The applicant submits, in essence, that the Commission breached the principle of good administration, enshrined in Article 41(1) of the Charter, in asking her to reduce the scope of her initial application for access, and, what is more, to do so within five working days, whereas none of the requested documents was disclosed by EPSO in its response to the initial application for access and the request for a fair solution was formulated in general terms.
135 In view of those matters, the applicant seeks the payment of one symbolic euro as compensation for the damage caused to her by that breach and for the unfair and unjust treatment she claims to have received.
136 In her reply, the applicant adds that the Commission cannot claim that there was a need for a prima facie assessment of the administrative burden entailed by the initial application for access, in so far as this kind of request for access is not uncommon in the context of competitions. Moreover, the contested decision was not adopted within the period prescribed by Article 8 of Regulation No 1049/2001. In addition, the request for a fair solution is vitiated by several errors, including the date on which the initial application for access was lodged, the date of its registration, and the applicant’s name. Lastly, in order to comply with the deadline imposed by the request for a fair solution, the applicant, though herself a lawyer, needed to seek external professional assistance.
137 The Commission disputes the applicant’s arguments.
138 In the application, the applicant criticises, in essence, the manner in which the initial application for access was processed and, more specifically, EPSO’s request for a fair solution and its initial refusal to grant her access. The event giving rise to the alleged damage is not, therefore, the contested decision, but the manner in which her initial application for access was processed. There is therefore no close relationship between the claim for damages and the claim for annulment.
139 In those circumstances, it must be borne in mind that, under Article 76(d) of the Rules of Procedure, an application must contain the subject matter of the proceedings, the pleas in law and arguments relied on and a summary of those pleas in law. Those elements must be sufficiently clear and precise to enable the defendant to prepare its defence and to enable the Court to rule on the action, if necessary without any further information. In order to guarantee legal certainty and sound administration of justice it is necessary, in order for an action to be admissible, that the basic legal and factual particulars relied on be indicated coherently and intelligibly in the application itself (see, to that effect, order of 12 September 2018, RE v Commission, T‑257/17, not published, EU:T:2018:549, paragraph 54 and the case-law cited).
140 Accordingly, an application seeking compensation for damage allegedly caused by an institution must indicate with sufficient precision the manner in which the various conditions for reparation of the alleged damage are satisfied (see order of 12 September 2018, RE v Commission, T‑257/17, not published, EU:T:2018:549, paragraph 55 and the case-law cited). Such an application must therefore contain the evidence which makes it possible to identify, first, the conduct which the applicant alleges against the institution, secondly, the reasons for which the applicant considers that there is a causal link between that conduct and the damage which he or she claims to have suffered, and, thirdly, the nature and extent of that damage (judgments of 10 July 1990, Automec v Commission, T‑64/89, EU:T:1990:42, paragraph 73; of 30 June 2009, CPEM v Commission, T‑444/07, EU:T:2009:227, paragraph 33; and order of 12 September 2018, RE v Commission, T‑257/17, not published, EU:T:2018:549, paragraph 56).
141 More specifically, as regards the condition that an applicant must place the Court in a position to assess the extent and nature of the damage which he or she claims to have suffered, it is for that applicant to specify, inter alia, the nature of the non-material damage alleged in connection with the conduct complained of on the part of the institution concerned and to quantify the whole of that damage, even if approximately (see, to that effect, judgments of 15 June 1999, Ismeri Europa v Court of Auditors, T‑277/97, EU:T:1999:124, paragraph 81 and the case-law cited; of 7 February 2007, Gordon v Commission, T‑175/04, EU:T:2007:38, paragraph 45; and order of 12 September 2018, RE v Commission, T‑257/17, not published, EU:T:2018:549, paragraph 61).
142 In the present case, it is difficult to ascertain the specific nature of the non-material damage alleged and, accordingly, to assess the existence and extent thereof. The applicant merely refers to non-material damage and unfair and unjust treatment, without providing any further details. She does not explain what non-material damage she has suffered.
143 Moreover, the issue of the existence of a causal link is not addressed. Indeed, the applicant does not seek to explain, in detail, how the way in which her initial application for access was processed by EPSO gave rise to any non-material damage whatsoever or what effect the unfair and unjust treatment she allegedly suffered had on her. It follows that the Court is not in a position to assess whether the applicant has succeeded in showing the existence of a causal link.
144 In addition, the ‘few observations on the fourth plea’ in the reply do not call those findings into question. The matters raised, as summarised in paragraph 136 above, do not specify the extent of the non-material damage alleged, which it is for the applicant to prove (see, to that effect, judgment of 10 March 2021, AM v EIB, T‑134/19, EU:T:2021:119, paragraph 86), or the causal link between that damage and the way in which EPSO processed her initial request for access.
145 In those circumstances, in the absence of any information whatsoever relating to the nature of the non-material damage allegedly suffered or details regarding the existence of a causal link, the claim for damages does not meet the requirements recalled in paragraphs 138 to 141 above.
146 Accordingly, the claim for damages made by the applicant must be rejected as manifestly inadmissible.
Costs
147 The applicant submits that the Commission’s attitude was responsible for all the procedural steps she took and that the Commission left her no choice but to bring the present action.
148 The Commission disputes the applicant’s arguments.
149 It must be noted that the applicant does not explain in what way the costs incurred in the present proceedings are unreasonable or vexatious within the meaning of Article 135(2) of the Rules of Procedure.
150 In addition, it must be stated that the Commission provided the applicant with all the necessary information to bring the present action, likewise making it possible for the General Court to exercise its power of review.
151 Pursuant to Article 134(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the parties are to bear their own costs. However, if it appears justified in the circumstances of the case, the Court may order that one party, in addition to bearing its own costs, pay a proportion of the costs of the other party.
152 Therefore, it is a fair assessment of the circumstances of the case to order each party to bear its own costs.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby:
1. Annuls Commission Decision C(2020) 1195 final of 24 February 2020 concerning a confirmatory application for access to documents under Regulation (EC) No 1049/2001 in so far as it refused to grant JP access to the questions set out in the sections of the evaluation by the assessors of her answers during the field-related interview (Document No 1) headed ‘Anchor’ and ‘Possible questions’ and refused to grant access to the questions set out in the sections of the evaluation by the assessors of her answers during the general competency-based interview (Document No 2) headed ‘Situation 1’, ‘Situation 2’ and ‘Situation 3’ in the context of Competition EPSO/AD/363/18;
2. Dismisses the action as to the remainder;
3. Orders each party to bear its own costs.
Delivered in open court in Luxembourg on 8 December 2021.
E. Coulon | | M. van der Woude |
Table of contents
Background to the dispute
Procedure and forms of order sought
Law
The claim for annulment
The second plea in law, alleging infringement of Article 4(3) of Regulation No 1049/2001
(1) The second part of the second plea in law
(2) The first part of the second plea in law
The third plea in law, alleging infringement of Article 4(6) of Regulation No 1049/2001 and breach of the principle of proportionality
The claim for damages
Costs