Case T‑581/16

Costas Popotas

v

European Ombudsman

(Civil service — Officials — Call for expression of interest — Secretary-General in the European Ombudsman’s Office — Opinion of the Advisory Committee — Failure to take that opinion into consideration — Breach of the selection procedure — Manifest errors of assessment — Equal treatment — Principle of good administration — Liability)

Summary — Judgment of the General Court (Eighth Chamber), 22 March 2018

1.      Actions brought by officials — Prior administrative complaint — Correspondence between the complaint and the application — Same subject-matter and legal basis — Submissions and arguments not made in the complaint but closely related to it — Admissibility

(Staff Regulations of Officials, Arts 90 and 91)

2.      Actions brought by officials — Acts adversely affecting an official — Decision adopted after reconsideration of a previous decision — No prior request for reconsideration — No effect on the admissibility of the action

(Staff Regulations of Officials, Arts 90(2) and 91(1))

3.      Officials — Recruitment — Call for expression of interest with a view to the recruitment of a Secretary General at the office of the European Ombudsman — Consideration of the comparative merits of candidates — State measures designed to approximate conditions of competition to those prevailing in other Member States — Compliance with the conditions laid down in that call — Judicial review — Limits — Manifest error of assessment

(Staff Regulations of Officials, Art. 29)

4.      Officials — Recruitment — Consideration of comparative merits — Intervention by a consultative body not provided for in the relevant texts — Duty of the administration to take account of the opinion given by such a body

(Staff Regulations of Officials, Art. 29)

5.      Officials — Principles — Principle of sound administration — Scope

6.      Actions brought by officials — Application for damages linked to an application for annulment — Inadmissibility of the application for annulment entailing inadmissibility of the claim for compensation

(Staff Regulations of Officials, Arts 90 and 91)

7.      Judicial proceedings — Costs — Order that the successful party bear its own costs — Exceptional circumstances

(Rules of Procedure of the General Court, Arts 134 and 135(1))

1.      See the text of the decision.

(see paras 45-47, 50, 53, 57)

2.      When a party whose request to be admitted to an EU competition has been rejected seeks reconsideration 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 reconsideration that constitutes the act affecting him adversely, within the meaning of Article 90(2) or, where appropriate, Article 91(1) of the Staff Regulations. It is also that decision, taken after reconsideration, that causes time to begin to run for the purposes of lodging a complaint and bringing an action, without there being any need to ascertain whether, in such a situation, that decision may be regarded as a purely confirmatory act.

However, that option to request reconsideration of a decision rejecting an application cannot be interpreted as meaning that an action against a decision rejecting a complaint would be inadmissible on the ground that there had been no prior request for reconsideration. The prior request for reconsideration is not a condition of the admissibility of the action.

(see paras 63, 64)

3.      The Ombudsman is required to comply with the call for expression of interest (CEI) which she has adopted, since such a call for expression of interest determines the conditions governing access to the post in question. Thus, the function of the CEI is to inform interested parties as precisely as possible of the nature of the conditions required to occupy the post to be filled, in order to put them in a position to determine whether to apply, and to set the framework of legality in the light of which the institution intends to examine the comparative merits of the applicants. By taking into consideration, when examining the applications, conditions other than those set out in the CEI, the Ombudsman does not respect that framework of legality.

The Ombudsman has a wide discretion when carrying out her work. It is therefore permissible for her, where the CEI does not set out criteria for marking, to fix such criteria or to determine, if the CEI does not so provide, the stage at which the criteria must be taken into consideration.

It is for the Ombudsman to assess whether an applicant fulfils the conditions required by the vacancy notice and that assessment may be questioned only in the event of manifest error. Consequently, the Court cannot substitute itself for the Ombudsman and review the latter’s assessment of the professional abilities of applicants, except in so far as it finds a manifest error of assessment.

(see paras 73, 75, 132)

4.      When an institution, a body or an agency sets up within itself an Advisory Committee not provided for in the Staff Regulations in order to obtain an opinion, regarding appointments to certain posts, in relation to the abilities and aptitudes of applicants, that measure is designed to ensure that that institution, body or agency, as appointing authority, has a better basis for examining the comparative merits of applicants. It follows that the opinion expressed by that Advisory Committee in the form of a recommendation for interview must, in so far as that committee actually makes such a recommendation, form part of the matters which the appointing authority is required to take into consideration as a basis for its own assessment of the officials’ merits, even if considers itself obliged not to follow it.

(see para. 110)

5.      The principle of sound administration requires the competent authority to apply legislation correctly.

In that regard, the applicant cannot complain of maladministration, when he himself failed to ask the administration for details and also failed, while awaiting the requested details, to request an extension of the deadline for submitting a request for reconsideration.

Moreover, those inaccuracies cannot render the contested decision unlawful, since it was at the stage of the response to the applicant’s complaints that that correction was made.

(see paras 161, 164, 167)

6.      See the text of the decision.

(see para. 171)

7.      See the text of the decision.

(see paras 174-177)