JUDGMENT OF THE COURT (Eighth Chamber)
26 January 2023 (*)
(Appeal – Civil service – Officials – Procedure for appointment to a post of Director – Vacancy notice and recruitment notice – Rejection of the candidate’s application and appointment of another candidate – Irregularity in the recruitment procedure – Manifest error of assessment – Transparency – Equal treatment)
In Case C‑613/21 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 1 October 2021,
European Parliament, represented by C. González Argüelles, R. Schiano and I. Terwinghe, acting as Agents,
appellant,
the other party to the proceedings being:
Fernando Carbajo Ferrero, residing in Brussels (Belgium), represented by L. Levi, avocate,
applicant at first instance,
THE COURT (Eighth Chamber),
composed of M. Safjan, President of the Chamber, N. Jääskinen and M. Gavalec (Rapporteur), Judges,
Advocate General: L. Medina,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after hearing the Opinion of the Advocate General at the sitting on 22 September 2022,
gives the following
Judgment
1 By its appeal, the European Parliament asks the Court of Justice to set aside the judgment of the General Court of the European Union of 14 July 2021, Carbajo Ferrero v Parliament (T‑670/19, not published, EU:T:2021:435; ‘the judgment under appeal’), by which the General Court, first, annulled the decision of the Parliament of 10 December 2018 rejecting Mr Fernando Carbajo Ferrero’s application and appointing A, another candidate, to the post of Director for Media in the Parliament’s Directorate-General for Communication (‘the decision at issue’) and, secondly, ordered the Parliament to pay him, by way of compensation for material harm, the sum of EUR 40 000.
Background to the dispute
2 The background to the dispute is set out in paragraphs 1 to 18 of the judgment under appeal and may, for the purposes of the present proceedings, be summarised as set out below.
3 Mr Carbajo Ferrero entered the service of the Parliament as an official on 21 April 1986. He performed various duties within the Parliament in the fields of press, information, culture and media.
4 With a view to filling the post of Director for Media in the Directorate-General for Communication (‘Director for Media’), the Parliament published, on 27 February 2018, a vacancy notice under Article 29(1)(a) of the Staff Regulations of Officials of the European Union (‘the vacancy notice’). The deadline for the submission of applications was 23 March 2018. Mr Carbajo Ferrero responded to that notice on 22 March 2018.
5 The Parliament received three applications in response to the vacancy notice. However, in order to be given a wider choice of candidates to fill the post of Director for Media, it published, on 27 March 2018, a transfer notice under Article 29(1)(b) of the Staff Regulations of Officials of the European Union (‘the transfer notice’). Furthermore, on 13 April 2018, it published, in the Official Journal of the European Union, a recruitment notice under Article 29(2) of the Staff Regulations of Officials of the European Union (OJ 2018 C 132 A, p. 1) (‘the recruitment notice’).
6 The deadline for applications, as set in the recruitment notice, was 27 April 2018. In total, 16 candidates applied – 3 in response to the vacancy notice, 1 in response to the transfer notice and a further 12 in response to the recruitment notice. Those candidates included A, who submitted his application in response to the recruitment notice on 26 April 2018.
7 As of 1 June 2018, since a Director for Media had yet to be appointed, Mr Carbajo Ferrero assumed interim responsibilities associated with that post with a view to ensuring continuity of service within the Directorate for Media.
8 In the context of the procedure for appointing a Director for Media, an advisory committee on the appointment of senior officials (‘the advisory committee’) was set up, in accordance with the decision of the Bureau of the Parliament (‘the Bureau’) of 16 May 2000 laying down the different stages of the procedure for appointing senior officials, as amended by the Bureau’s decision of 18 February 2008 (‘the decision laying down the stages of the procedure’).
9 At its meeting on 4 October 2018, the advisory committee adopted criteria for the comparative analysis of the merits of the candidates (‘the comparative assessment criteria’). On the basis of those criteria, the advisory committee drew up a list of candidates and made a recommendation to the Bureau as to who should be invited to interview. The Bureau unanimously approved that recommendation. Mr Carbajo Ferrero, who had applied in response to the vacancy notice, A, who had applied in response to the recruitment notice, and B, the only candidate who had applied in response to the transfer notice, were among the candidates invited to the interview. Before meeting with the candidates, the advisory committee set seven topics or themes as the basis of the interviews, in order to analyse the applications and rank the applicants following those interviews.
10 The interviews were conducted on 19 November 2018. On the basis of those interviews, the advisory committee submitted a reasoned report to the Bureau so that the latter could reach a decision on the applications. That report ranked the candidates in order of merit to determine which of them were the most qualified to occupy the post of Director for Media, and included a recommendation as an annex. At the meeting of 10 December 2018, the advisory committee proposed three candidates to fill the vacant post in order of precedence, with A ranked first, Mr Carbajo Ferrero second and B third. The Bureau, in its capacity as appointing authority, decided to follow the advisory committee’s recommendation and appointed A to the post in question.
11 On 11 December 2018, the Director-General of the Parliament’s Directorate-General for Communication informed its staff that the recruitment procedure had been completed and thanked Mr Carbajo Ferrero for the interim responsibilities that he had assumed, as of 1 June 2018, in the Directorate for Media within that Directorate-General.
12 By email of 12 December 2018, the Secretary-General of the Parliament notified Mr Carbajo Ferrero of the decision at issue.
13 On 8 March 2019, Mr Carbajo Ferrero lodged a complaint against the decision at issue under Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), which was rejected on 21 June 2019.
The procedure before the General Court and the judgment under appeal
14 By application lodged at the Registry of the General Court on 1 October 2019, Mr Carbajo Ferrero brought an action pursuant to Article 270 TFEU seeking, first, annulment of the decision at issue and, secondly, compensation in respect of the harm he allegedly suffered as a result of that decision.
15 Mr Carbajo Ferrero raised five pleas in law in support of his action.
16 In the judgment under appeal, the General Court examined the second part of the second plea, alleging that the selection procedure had infringed Article 27 of the Staff Regulations and the principles of legal certainty, transparency, sound administration and equal treatment.
17 In that regard, the General Court held, in paragraphs 111 to 123 of the judgment under appeal, in essence, that the broad discretion which the administration enjoys with regard to the organisation of the selection procedure is subject to observance of the principle of equal treatment of candidates and of objectivity in the choice between them, requiring, first, that the comparative assessment criteria be established before the recruitment procedure concerned and, secondly, that the comparative assessment criteria should not be altered in the course of the selection procedure in order to prevent the risk that those criteria may be adapted in the light of the applications received. The General Court noted, in paragraph 119 of the judgment under appeal, that the decision laying down the stages of the procedure provides that comparative assessment criteria are to be adopted at the beginning of the procedure, that is to say before applications are received, and does not provide for the possibility of those criteria being altered at the interview stage.
18 The General Court found that, in the present case, although such criteria had made it possible to rank the applications with a view to selecting only some of them, they had not been applied during the interviews with the candidates or during the assessment of the responses to the questions asked in the interviews, which led to the ranking of the candidates in order of merit. During the second stage of the selection procedure, the advisory committee set seven topics or themes for discussion intended to be used to evaluate the candidates, who were ranked in order of merit solely on the basis of their responses to the questions concerning those topics or themes, discussed during the interviews.
19 The General Court held, in paragraphs 124 and 125 of the judgment under appeal, that the Parliament had not established that the same comparative assessment criteria had been used during the various stages of the selection procedure, or that the Bureau, in its capacity as appointing authority, had been informed of the fact that the criteria set by the advisory committee before the applications were received had not been used to compare the merits of the candidates during the interviews. Accordingly, the General Court, upholding the second part of Mr Carbajo Ferrero’s second plea in law, in so far as it criticised the lack of transparency of the various stages of the recruitment procedure and the consequent infringement of the principle of sound administration and the principle of equal treatment, held that the decision at issue had been adopted following an irregular procedure.
20 The General Court also upheld the second part of the third plea in law and, accordingly, that plea in its entirety, in so far as the applicant claimed, by that part, that the decision at issue was vitiated by a manifest error of assessment, resulting from the fact that A’s application had been selected without the appointing authority having been properly informed of Mr Carbajo Ferrero’s professional experience. The General Court arrived at that conclusion after finding, in paragraph 139 of the judgment under appeal, that it was not apparent from the extract from the report on the interviews with the candidates, which the appointing authority relied on to adopt the decision at issue, that the advisory committee had duly taken into account Mr Carbajo Ferrero’s professional experience in the Parliament’s Directorate-General for Communication, since that extract indicated only that Mr Carbajo Ferrero had been Head of Unit in that Directorate-General since 2009, and the Parliament did not deny that he had in fact been Head of Unit in that Directorate-General since 1999. Furthermore, that extract did not mention the fact that Mr Carbajo Ferrero had assumed interim responsibilities associated with the post to be filled as of 1 June 2018.
21 Accordingly, taking the view that the decision at issue had been adopted following an irregular procedure and that it was vitiated by a manifest error of assessment resulting from the inaccuracy of information sent to the appointing authority, the General Court annulled that decision without examining the other arguments raised by Mr Carbajo Ferrero in support of the third, fourth and fifth pleas in law.
22 Furthermore, the General Court upheld in part Mr Carbajo Ferrero’s claim for compensation in so far as it related to material harm and ordered the Parliament to pay him, by way of compensation for that harm, the sum of EUR 40 000.
Forms of order sought by the parties before the Court of Justice
23 By its appeal, the Parliament claims that the Court of Justice should:
– principally, set aside the judgment under appeal, refer the case back to the General Court for a decision and reserve the costs, and
– in the alternative, set aside the judgment under appeal, dismiss the action and order Mr Carbajo Ferrero to pay all the costs.
24 Mr Carbajo Ferrero contends that the Court should:
– dismiss the appeal and
– order the Parliament to pay the costs.
The appeal
25 In support of its appeal, the Parliament puts forward two grounds of appeal. By the first ground of appeal, it claims that the General Court erred in law and distorted the facts by holding that the selection procedure was irregular. By the second ground, it submits that the General Court erred in law and distorted the facts and evidence when it found that the contested decision was vitiated by a manifest error of assessment. In addition, in the alternative, the Parliament raises a ground of appeal alleging a failure to state reasons in the judgment under appeal and infringement of the principle of proportionality as regards the failure to examine the consequences of annulling the decision at issue.
The first ground of appeal
26 The first ground of appeal consists of four parts, which it is appropriate to examine together.
Arguments of the parties
27 By the first part of its first ground of appeal, the Parliament submits that the General Court, when it interpreted the decision laying down the stages of the procedure, erred in law and ruled on the basis of contradictory reasoning.
28 In the first place, it is apparent from point 4 of the decision laying down the stages of the procedure that that procedure comprises two stages, the first, which is optional, consisting in a comparative analysis of the merits of the candidates on the basis of the applications and the drawing up of a list of candidates, and the second consisting in interviews of the candidates on that list. The Parliament states that the comparative assessment criteria are used only in the first stage of the procedure, as that decision does not in any way require the use of those same comparative assessment criteria in the second stage, nor does it prohibit the possible adoption of new criteria. It states that, in the context of the selection procedure at issue, the advisory committee adopted three comparative assessment criteria and then set seven topics for discussion during the interviews with the candidates. The Parliament submits that the General Court erred in law in holding, in paragraphs 117 to 119 of the judgment under appeal, that it could not, in the second stage of the selection procedure and when ranking the candidates in order of merit, alter the comparative assessment criteria that had been used in the first stage of selection. In so doing, the General Court deprived the administration of its very broad discretion as regards determining how the selection procedure is to be organised.
29 In the second place, the Parliament argues that the General Court erred in law in holding, in paragraphs 120 to 124 of the judgment under appeal, that the advisory committee was wrong not to inform the Bureau of the failure to use the comparative assessment criteria during the interviews with the candidates.
30 In the third place, the Parliament alleges a contradiction in the reasoning of the judgment under appeal. It submits that, in paragraph 65 of that judgment, the General Court referred to a complaint made by Mr Carbajo Ferrero in support of his plea of illegality against the decision laying down the stages of the procedure, according to which ‘that decision does not provide that the advisory committee is to adopt criteria for comparing the merits of the candidates during their interviews with a view to ranking them in order of merit, nor does it provide that those criteria are to be communicated to the appointing authority’. It is contradictory for the General Court to have rejected that plea of illegality in its entirety without ruling explicitly on that complaint, but to have held, in paragraphs 120 to 124 of the judgment under appeal, that the failure to communicate the comparative assessment criteria to the Bureau constituted an error of law.
31 By the second part of its first ground of appeal, the Parliament submits that the General Court erred in law in interpreting, in paragraphs 111 and 112 of the judgment under appeal, the principle of equal treatment as meaning that there is a general obligation to adopt those criteria before applications are received, together with a prohibition on altering them in the course of the selection procedure.
32 In that regard, the Parliament disputes the relevance of the judgment of 3 March 1993, Booss and Fischer v Commission (T‑58/91, EU:T:1993:15), upon which the General Court relied in order to hold, in paragraphs 111 and 112 of the judgment under appeal, that the comparative assessment criteria must not be altered in the course of the selection procedure. The Parliament maintains that the case that gave rise to that judgment concerned a vacancy notice published under Article 29(1)(a) of the Staff Regulations whereas, in the present case, the Bureau decided to cast its net wider and published a recruitment notice on the basis of Article 29(2) of those regulations. The latter provision sets out a special procedure in the course of which the appointing authority can apply criteria that were not stated in the vacancy notice. The Parliament takes the view that its argument is supported by the judgments of 19 May 1983, Mavridis v Parliament (289/81, EU:C:1983:142, paragraph 16), and of 19 May 1983, Verros v Parliament (306/81, EU:C:1983:143, paragraph 16).
33 The Parliament adds that a general prohibition on altering the comparative assessment criteria in the course of the selection procedure is not compatible with the first and third paragraphs of Article 5 of Annex III to the Staff Regulations.
34 The Parliament also complains that the General Court misapplied the principle of equal treatment in the present case. In that regard, it maintains, first, that the General Court never considered that it had disregarded the legal framework set by the vacancy, transfer or recruitment notices. Secondly, it submits that the General Court failed to examine whether the topics discussed during the interviews with the candidates were connected to the conditions set out in the recruitment notice and whether some candidates were given an advantage over others.
35 By the third part of its first ground of appeal, the Parliament claims that the General Court erred in law in holding, in paragraphs 120 to 124 of the judgment under appeal, that the Parliament had infringed the principle of transparency inasmuch as the Bureau, in its capacity as appointing authority, had not been informed of the supposed replacement of the comparative assessment criteria with the seven topics or themes set for the interviews with the candidates. In addition, the Parliament submits that the General Court ruled ultra petita since, at first instance, Mr Carbajo Ferrero alleged an infringement of the principle of transparency vis-à-vis the candidates and not the Bureau.
36 By the fourth part of its first ground of appeal, the Parliament submits that the General Court distorted the facts by holding, in paragraph 119 of the judgment under appeal, that the ranking in order of merit may not be based ‘solely’ on the responses given by the candidates to the seven topics or themes discussed during the interview. In that regard, the Parliament submits that there is nothing in the file to indicate that, for the purposes of ranking, the Bureau did not take into account the professional experience and competence of the candidates. The General Court even acknowledged that fact in paragraph 12 of the judgment under appeal.
37 Mr Carbajo Ferrero contends that this ground of appeal should be rejected.
Findings of the Court
38 According to the case-law of the Court, although the appointing authority has broad discretion in comparing the candidates’ merits, especially with a view to examining the applications for the post to be filled, it must exercise it within the self-imposed limits contained in the vacancy notice (see, to that effect, judgment of 7 February 1990, Culin v Commission, C‑343/87, EU:C:1990:49, paragraph 19 and the case-law cited).
39 On that basis, the General Court correctly stated, in paragraph 139 of the judgment of 28 September 2017, Hristov v Commission and EMA (T‑495/16 RENV I and T‑495/16 RENV II, not published, EU:T:2017:676), that the appointing authority has, in particular where the post to be filled is very senior, broad discretion when comparing the merits of candidates for such a post. That broad discretion must be exercised with scrupulous observance of all the relevant regulations, in other words not just of the vacancy notice, but also of any procedural rules that the authority has adopted for the exercise of its discretion. Thus, the rules applicable to the appointment procedure also constitute part of the legal framework that the appointing authority must observe strictly in the exercise of its broad discretion.
40 As the Advocate General states, in essence, in points 48 to 52 of her Opinion, the decision laying down the stages of the procedure forms part of those relevant regulations, and those stages, which are interlinked, make up one single selection procedure. In line with the singular nature of that procedure, the advisory committee’s adoption of the comparative assessment criteria, provided for in point 4(a) of that decision, constitutes the foundation of that entire procedure and any topic or theme used during the interviews with the candidates, provided for in point 4(e) of that decision, must follow from those criteria in order for the advisory committee to assess the suitability of the candidates who have been invited to interview in the light of each criterion.
41 It must therefore be held that the General Court did not misinterpret point 4 of the decision laying down the stages in the procedure by holding, in paragraphs 111, 112, 114 and 119 of the judgment under appeal, that the administration’s broad discretion, which it enjoys as regards the organisation of the selection procedure, is limited such that, first, the comparative assessment criteria must be established, on the basis of the vacancy, transfer and recruitment notices, in the first stage of the selection procedure, prior to the recruitment concerned, that is to say before applications are received; and, secondly, those criteria must not be altered in the course of the selection procedure.
42 Accordingly, the General Court was correct to hold, in paragraph 118 of the judgment under appeal, that the questions asked during the interviews with the candidates should not become new comparative assessment criteria adopted after the shortlisting of the candidates to be invited for interview.
43 The General Court was, moreover, correct to rely, in paragraphs 111 and 112 of the judgment under appeal, on paragraph 67 of the judgment of 3 March 1993, Booss and Fischer v Commission (T‑58/91, EU:T:1993:15), which refers to paragraphs 38 to 40 of the judgment of 30 October 1974, Grassi v Council (188/73, EU:C:1974:112), and to paragraphs 20 to 22 of the judgment of 7 February 1990, Culin v Commission (C‑343/87, EU:C:1990:49), according to which the principle of equal treatment in the conduct of a selection procedure of officials requires that the comparative assessment criteria be established before the recruitment procedure concerned and that they should not be altered during the procedure.
44 The Parliament relies on the judgments of 19 May 1983, Mavridis v Parliament (289/81, EU:C:1983:142, paragraph 16), and of 19 May 1983, Verros v Parliament (306/81, EU:C:1983:143, paragraph 16), according to which, under the special procedure provided for in Article 29(2) of the Staff Regulations or where a selection committee to which the appointing authority has delegated its right of selection has been appointed, the appointing authority is not required to apply the provisions of Annex III to the Staff Regulations relating to notices of competition and may also apply, in the course of the procedure, criteria that are not set out in the vacancy notice. However, those judgments were not delivered in the context of a selection procedure for which a decision, adopted specifically in order to lay down the stages of that procedure, provided that comparative assessment criteria should be established by the advisory committee on the basis of the text of the recruitment notice. Therefore, those judgments do not support the Parliament’s argument that it was possible to alter the comparative assessment criteria in the course of the selection procedure at issue.
45 Consequently, the Parliament cannot maintain that, in paragraphs 117 to 119 of the judgment under appeal, the General Court, in holding that the advisory committee had failed to inform the Bureau, in its capacity as appointing authority, of the fact that the comparative assessment criteria established for the first stage of the selection procedure had not been used to compare the merits of the candidates during the interviews, deprived the Bureau of an appropriate method of organisation of the selection procedure, falling within its very broad discretion. In those paragraphs, the General Court merely stated that the method in question did not meet the requirement that the comparative assessment of the qualifications and skills of the candidates must be carried out based on comparative assessment criteria which are established, before the applications are received, on the basis of the vacancy, transfer and recruitment notices, and which may not be altered in the course of the selection procedure.
46 Similarly, the Parliament’s arguments that the General Court erred in law in paragraphs 120 to 124 of the judgment under appeal must be rejected.
47 In the first place, the Parliament is not justified in maintaining that the General Court erred in law in holding that the advisory committee had been wrong not to inform the Bureau, in its capacity as appointing authority, of the fact that, during the interviews, the comparative assessment criteria initially established had not been used.
48 In that regard, it is apparent from paragraph 123 of the judgment under appeal, the content of which is not disputed in the appeal proceedings, that, first, although the Parliament maintained at first instance that the list of topics or themes discussed during the interviews with the candidates had been communicated to the Bureau in its capacity as appointing authority, the comparative assessment criteria initially established had not been applied during the interviews or during the assessment of the responses to the questions asked in the interviews, which led to the ranking of the candidates in order of merit, and, secondly, the advisory committee had not informed the Bureau of the failure to apply those criteria. The General Court held, in paragraph 113 of the judgment under appeal, that the comparative assessment criteria should be sent to the appointing authority so that the latter is aware of and understands the manner in which the candidates’ merits had been assessed, both when the candidates were shortlisted for interview and during the interviews with the candidates so as to rank them in order of preference. Consequently, since it did not demonstrate before the General Court that the topics or themes set for the purposes of the interviews met the comparative assessment criteria initially established and were an extension of those criteria, the Parliament cannot criticise the General Court for having verified, in paragraphs 120 to 124 of the judgment under appeal, whether the Bureau, in its capacity as appointing authority, had been informed of the fact that the comparative assessment criteria had not been applied during the interviews with the candidates.
49 In the second place, the Parliament is wrong to claim that the General Court ruled ultra petita, in paragraphs 120 to 124 of the judgment under appeal, with regard to the failure to observe the principle of transparency. The General Court found that there had been such a failure in the context of the infringement of the principle of sound administration, relating to the non-compliance with the obligation to inform the Bureau, first, of the links between the themes or topics to be discussed during the interviews with the candidates and the comparative assessment criteria established before applications were received and, secondly, that those criteria were not used during the interviews.
50 In the third place, contrary to what the Parliament maintains, there is no contradiction between the reasoning in paragraphs 66 to 73 and in paragraphs 120 to 124 of the judgment under appeal. In paragraphs 66 to 73 of the judgment under appeal, the General Court merely states that the decision laying down the stages of the procedure established the general framework of the selection procedure and that the fact that that decision neither sets out in detail the way in which the recommendation is drafted nor states that the candidates’ files are made available to the Bureau together with the report on the interviews and the recommendation is not sufficient to hold that that decision infringes the principles of sound administration, equal treatment and non-discrimination. As the Advocate General notes in point 61 of her Opinion, at that stage in its reasoning, the General Court did not yet address the question of consistency of the criteria applied in the course of the selection procedure or of the requirement to inform the Bureau, with the result that the finding made in paragraph 74 of the judgment under appeal does not call into question the finding made in paragraphs 120 to 124 of that judgment.
51 As to the argument, put forward by the Parliament to demonstrate a misinterpretation of the principle of equal treatment, according to which a prohibition on altering the comparative assessment criteria in the course of the selection procedure is not compatible with the first and third paragraphs of Article 5 of Annex III to the Staff Regulations, it must be noted, as Mr Carbajo Ferrero has done, that Annex III does not apply to procedures based on Article 29(2) of the Staff Regulations.
52 As regards the complaint relating to the application of the principle of equal treatment in the present case, it must be stated, first of all, that it is ineffective in so far as it maintains that the General Court did not examine whether, much less hold that the Parliament had disregarded the legal framework set by the vacancy, transfer and recruitment notices. As is apparent from paragraph 112 of the judgment under appeal, the change to the comparative assessment criteria entails the risk of those criteria being adapted having regard to the applicants for the post to be filled. In that respect, the examination of whether such a change infringes that framework is irrelevant.
53 Next, that same assessment must be made with regard to the examination as to whether the seven topics or themes set for the interviews with the candidates, and followed exclusively during those interviews, were set on the basis of the recruitment notice. Moreover, since the Parliament did not expressly refer to or, a fortiori, demonstrate such correspondence at first instance, it cannot claim that the General Court erred in law by not carrying out that examination.
54 Last, as regards the risk of the comparative assessment criteria being adapted having regard to the applicants for the post to be filled, the Parliament submits, in essence, that such a hypothetical risk is not sufficient in itself and that therefore the General Court should have ascertained whether the topics or themes discussed during the interviews did in fact give an advantage to certain candidates. In support of its argument, the Parliament relies on the judgments of 6 February 1986, Vlaschou v Court of Auditors (143/84, EU:C:1986:55), and of 13 July 1989, Caturla-Poch and de la Fuente Pascual v Parliament (361/87 and 362/87, EU:C:1989:317), from which it follows that, where a selection board establishes assessment criteria after receiving the list of candidates admitted to the tests, an infringement of the principle of equal treatment may be established only after examining whether those criteria are objectively of such a nature that they treat certain candidates favourably and others unfavourably.
55 As the Advocate General states in point 63 of her Opinion, first, that case-law does not bear out the conclusion that the finding of an infringement of the principle of equal treatment in a selection procedure requires, in each specific case, the examination of whether some candidates were treated favourably and others unfavourably. Secondly, the cases that gave rise to those two judgments raised an issue that was different from the one at the heart of the present case, namely the relationship between the comparative assessment criteria and the topics or themes for discussion at the interviews with the candidates, established for the purposes of selecting the most suitable candidate.
56 As regards the complaint raised by the Parliament against the reasoning in paragraph 119 of the judgment under appeal, according to which no document in the file indicates that the ranking of the candidates in order of merit was based ‘solely’ on the responses given during the interviews, suffice it to note that the use of that term is consistent with the assessment made by the General Court. The General Court used the term ‘solely’ because, first, in paragraph 118 of that judgment, it found that the questions put to the candidates during the interview should not become new comparative assessment criteria, adopted in the course of the selection procedure, after the applications had already been received and ‘sorted’, and, secondly, in paragraph 123 of the judgment under appeal, it held that the comparative assessment criteria had not been applied during the interviews or during the assessment of the responses to the questions asked in the interviews, which led to the ranking of the candidates in order of merit.
57 In the light of those considerations, the first ground of appeal must be rejected.
The second ground of appeal
58 The second ground of appeal consists of two parts. By the first part of this ground, the Parliament submits that the General Court erred in law when it held that the decision at issue was vitiated by a manifest error of assessment resulting from the inaccuracy of the information provided to the Bureau concerning Mr Carbajo Ferrero’s professional career. By the second part of this ground of appeal, it claims that that alleged manifest error of assessment stems from a distortion of the facts and evidence.
59 It is appropriate to examine the second part of the second ground of appeal in the first place.
Second part of the second ground of appeal
– Arguments of the parties
60 By the second part of the second ground of appeal, the Parliament submits that the General Court distorted the facts and evidence in paragraphs 132, 139 and 176 of the judgment under appeal.
61 In the first place, the Parliament submits, first, that the reasoning in paragraph 139 of the judgment under appeal, according to which Mr Carbajo Ferrero’s professional experience in the Directorate-General for Communication was not duly taken into account, does not faithfully reproduce the introductory sentence of the part of the advisory committee’s report on the interviews concerning Mr Carbajo Ferrero and, secondly, that the wording ‘is currently Head of Unit in [the Directorate-General for Communication] since 2009’, in that part of the report, merely reproduces Mr Carbajo Ferrero’s position at the time of submitting his application.
62 In the second place, according to the Parliament, the General Court manifestly distorted the evidence in finding, in paragraph 132 of the judgment under appeal, that, ‘at the hearing, the Parliament acknowledged that the extract from the report on the interviews contained an inaccuracy as regards the date on which Mr Carbajo Ferrero was appointed Head of Unit in [the Directorate-General for Communication]’. It maintains, based on the recording of the hearing, that it did not confirm the existence of such an inaccuracy.
63 In the third place, the Parliament, challenging the reasoning in paragraph 176 of the judgment under appeal, according to which it had objected to the measure of organisation of procedure concerning the production of the full version of the report on the interviews and of the recommendation drawn up by the advisory committee, argues that, at the hearing, it had explicitly stated that it was prepared to provide an anonymised version of the report on the interviews and that the General Court responded to its willingness to do so, holding that such transmission would be out of time. The Parliament submits that, under Article 88(1) of the Rules of Procedure of the General Court, the usefulness of measures of organisation of procedure and the decision concerning them fall within the discretion of the General Court.
64 Mr Carbajo Ferrero contends that the second part of the second ground of appeal should be rejected.
– Findings of the Court
65 It should be noted first of all that the General Court stated, in paragraph 139 of the judgment under appeal, that Mr Carbajo Ferrero ‘had been Head of Unit in DG COMM since 2009’, whereas it is apparent from the extract from the report on the interviews annexed to the decision rejecting Mr Carbajo Ferrero’s objection that he ‘is currently’ Head of Unit in that Directorate-General and has been since 2009. However, that error has no bearing on the finding, made in paragraph 139, that ‘the applicant state[d], without being challenged on that point by the Parliament, that he has been Head of Unit in that Directorate-General since 1999’.
66 Next, it is to no avail that the Parliament relies on the audio recording of the hearing before the General Court in order to demonstrate that it did not confirm, at that hearing, that the extract from the report on the interviews contained an inaccuracy in relation to the date on which Mr Carbajo Ferrero was appointed Head of Unit in the Directorate-General for Communication.
67 Even if the Parliament did not acknowledge, at the hearing, that the extract from the report on the interviews contained such an inaccuracy, it does not call into question the finding, made by the General Court in paragraph 139 of the judgment under appeal, as regards the date on which Mr Carbajo Ferrero was appointed Head of Unit in that Directorate-General. In the light of the fact that that evidence was adduced by Mr Carbajo Ferrero in his application initiating proceedings, in particular in paragraphs 7, 94, 99, in the footnote at page 21 and in Annex A.5 thereto, and the fact that the Parliament has not shown that it expressly rebutted that evidence at first instance, the Parliament cannot claim that the General Court wrongly relied on the existence of that inaccuracy by distorting evidence.
68 Last, the last complaint of the second part of the second ground of appeal cannot succeed either. It follows from paragraph 177 of the judgment under appeal that the General Court stated the reasons for the refusal to order the measure of organisation of procedure, requested by Mr Carbajo Ferrero, on the ground that the information made available to it was not sufficient to assess the legality of the decision at issue, and not because of any opposition from the Parliament.
69 In those circumstances, this part of the second ground of appeal must be rejected.
First part of the second ground of appeal
– Arguments of the parties
70 By the first part of the second ground of appeal, the Parliament submits that, in paragraphs 139, 143 and 146 of the judgment under appeal, the General Court erred in law when it held that the decision at issue was vitiated by a manifest error of assessment resulting from the inaccuracy of the information provided to the members of the Bureau on Mr Carbajo Ferrero’s professional career.
71 First of all, according to the Parliament, the General Court failed to have regard to the role of the report on the interviews, which is to inform the Bureau of the candidates’ performance during the interviews and not to provide it with information relating to the professional experience of the candidates. It submits that the information concerning the candidates’ skills and professional experience had already been communicated to the Bureau in the first stage of the selection procedure and that that information remained available to the Bureau throughout that procedure. That is why the report on the interviews merely mentions, by way of introduction, the post held and mentioned by the candidates when submitting their applications.
72 Next, the Parliament maintains that the General Court failed to have regard to its own case-law according to which the fact that the appointing authority holds all of the files of the candidates for the post to be filled is sufficient to dismiss a plea alleging the existence of possible errors in the qualifications of a candidate included in a recommendation sent by a selection committee to the appointing authority.
73 Last, according to the Parliament, the General Court was wrong to hold, in paragraph 139 of the judgment under appeal, that the advisory committee had not duly taken into account Mr Carbajo Ferrero’s experience in assessing his application for the post to be filled, by failing to take into consideration his experience as interim manager in the Directorate for Media within the Directorate-General for Communication since 1 June 2018. Mr Carbajo Ferrero did not, in his application, mention that experience, which began after the deadline for submitting applications.
74 Mr Carbajo Ferrero contends that this part of the second ground of appeal should be rejected.
– Findings of the Court
75 As regards the Parliament’s first complaint, it should be noted, first, that, as is apparent from paragraph 137 of the judgment under appeal, it was for the General Court to ascertain whether the administration had not manifestly misused its discretion in relation to Mr Carbajo Ferrero’s merits. Secondly, as is apparent from paragraph 90 of the judgment under appeal, which describes the content of the decision rejecting the complaint lodged by Mr Carbajo Ferrero, the Bureau adopted its decision with all the relevant documents at its disposal at the meeting, namely personal files of all the candidates (curricula vitae and cover letters), a table summarising their applications and a report on the interviews drawn up by the advisory committee, so that the members of the Bureau who wished to do so had the opportunity to consult those documents prior to the meeting.
76 However, given that the members of the Bureau had only the option of consulting those documents, if they wished to do so, but, as is apparent from paragraph 143 of the judgment under appeal, since the Parliament did not show that they made use of that option in relation to Mr Carbajo Ferrero’s file, the General Court was correct to consider that it was necessary to determine, in the light of the report on the interviews, whether the appointing authority had been properly informed by the advisory committee of Mr Carbajo Ferrero’s professional experience. That complaint is therefore unfounded.
77 As regards the second complaint, the Parliament cannot rely on the judgment of 13 December 1990, Kalavros v Court of Justice (T‑160/89 and T‑161/89, EU:T:1990:86). In the case that gave rise to that judgment, unlike in the present case, first, the document containing alleged errors had been submitted to the appointing authority in the context of an initial examination of the applications and the applicant in that case was among the candidates selected following that first selection, so that those errors, even if established, were not such as to affect him adversely. Secondly, in that case, as is apparent from paragraph 53 of that judgment, during the final selection the members of the administrative committee and then the members of the General Court had at their disposal the complete file for each of the candidates, which does not correspond to a situation in which there is only a mere option of consultation before the meeting of the appointing authority, contrary to what was found in the present case in paragraph 90 of the judgment under appeal. Accordingly, that complaint is unfounded.
78 As regards the third complaint, the Court of Justice has already held that, in principle, it is incumbent on the candidates to provide the selection board with all the information they consider pertinent to the appraisal of their applications (judgment of 12 July 1989, Belardinelli and Others v Court of Justice, 225/87, EU:C:1989:309, paragraph 24). Thus, it was incumbent on Mr Carbajo Ferrero to indicate explicitly his experience as interim manager in the Directorate for Media within the Directorate-General for Communication, particularly since that experience had begun after the deadline for submitting applications. Moreover, it should be noted that Mr Carbajo Ferrero was in a position to refer to that experience during his interview with the advisory committee.
79 However, although the Parliament is justified in maintaining that the General Court was wrong to hold that the advisory committee had not duly taken into account Mr Carbajo Ferrero’s experience in the post to be filled as interim manager since 1 June 2018, that failure to take this into account is not such as to call into question the reasoning in paragraph 145 of the judgment under appeal, according to which the decision at issue is vitiated by a manifest error of assessment, resulting from the fact that A’s application was selected without the appointing authority being properly informed of Mr Carbajo Ferrero’s professional experience. Consequently, that complaint is ineffective.
80 As is apparent from paragraphs 132 and 139 of the judgment under appeal, the extract from the report on the interviews stated that Mr Carbajo Ferrero had been Head of Unit in the Directorate-General for Communication since 2009, whereas he had been appointed Head of Unit in that Directorate-General in 1999.
81 In those circumstances, this part of the second ground of appeal and, consequently, that ground of appeal as a whole must be rejected.
The alternative ground of appeal
Arguments of the parties
82 By this ground of appeal, the Parliament argues that, in so far as the decision at issue benefits a third party, the EU judicature is obliged to ascertain, first, through a case-by-case examination, whether a penalty of annulment is not excessive. That examination should take into account the nature of the unlawful act committed, the interests of the applicant, of third parties and of the service, and the EU judicature should be required, moreover, to weigh up the interests involved. The Parliament relies in that regard, inter alia, on the judgment of 5 December 2017, Spadafora v Commission (T‑250/16 P, not published, EU:T:2017:866, paragraph 110), and submits that the lack of such an examination in the judgment under appeal constitutes a failure to state reasons and an infringement of the principle of proportionality.
83 Mr Carbajo Ferrero contends that this ground of appeal should be rejected.
Findings of the Court
84 It should be noted that paragraph 110 of the judgment of 5 December 2017, Spadafora v Commission (T‑250/16 P, not published, EU:T:2017:866), relied on by the Parliament, first, sets out the principle of restoring the applicant to the legal position he or she was in prior to the unlawful act committed by the selection committee, together with an exception to that principle where the annulment of acts that are addressed and are favourable to third parties, which that restoration would entail, would constitute an excessive penalty for the unlawful act committed. Secondly, that paragraph refers to the judgment of 31 March 2004, Girardot v Commission (T‑10/02, EU:T:2004:94), and, indirectly, to the judgment of 5 June 1980, Oberthür v Commission (24/79, EU:C:1980:145).
85 As regards that exception, it should be noted that, in the latter judgment, the Court of Justice held that the procedure for the promotion of 40 officials had been vitiated by an irregularity so far as the applicant was concerned in the case that gave rise to that judgment, on the ground that her staff report had not yet been drawn up at the time when the promotion committee had received proposals for promotion, whereas the staff reports for the same period relating to other officials eligible for promotion had been submitted to that committee and to the appointing authority, which placed the applicant in a less favourable situation than those other officials eligible for promotion. However, the Court held that annulment of the promotions of the 40 officials who had in fact been promoted would constitute an excessive penalty for the irregularity committed and that the award of compensation for the non-material harm suffered by the applicant in that case constituted the form of compensation which best met both the applicant’s interests and the requirements of the service (judgment of 5 June 1980, Oberthür v Commission, 24/79, EU:C:1980:145, paragraphs 13 and 14).
86 In accordance with that case-law, the General Court, in the judgment of 31 March 2004, Girardot v Commission (T‑10/02, EU:T:2004:94, paragraph 87), while upholding the ground that the European Commission had failed to establish that it had duly examined the applicant’s merits before rejecting her applications for eight permanent posts and selecting eight other candidates, held that the annulment of the decisions making appointments to the posts in question constituted an excessive penalty for the unlawful act committed by the Commission, since it would be contrary to the principles of proportionality and the protection of legitimate expectations, and to the interests of the service, to deprive the selected candidates, who had become officials, of the benefit of their appointment on that ground alone.
87 Without it being necessary to define the scope of that exception, which may vary according to the particular features of each case, it must be held that that exception was not intended to apply in the present case and that the General Court, having regard to the specific features of the dispute before it, was not required to examine whether the annulment of the decision to appoint A to the post of Director for Media was excessive.
88 It is important to note that, as is apparent from paragraphs 123, 124, 144 and 145 of the judgment under appeal, the irregularity of the selection procedure resulting from, first, the failure to apply the comparative assessment criteria during the interviews with the candidates and, secondly, the manifest error of assessment and the erroneous comparison of the merits of the candidates resulting from the inaccuracy of the information sent to the appointing authority affect not only the assessment of Mr Carbajo Ferrero’s application but also that of A’s application.
89 Moreover, it should be noted that Mr Carbajo Ferrero’s interest in obtaining the annulment of the decision at issue is clear and that it is only A’s interest that is affected by that annulment, as A cannot rely on a legitimate expectation that his appointment will be maintained, since that decision was challenged within the time limit for appeal by Mr Carbajo Ferrero.
90 As regards the interests of the service, it should be noted that the Parliament does not maintain that it put forward arguments to show that the annulment of the decision at issue would be met with particular difficulties. In any event, it is common ground that, as of 1 June 2018, as a Director for Media had yet to be appointed, Mr Carbajo Ferrero was allocated interim responsibilities associated with that post with a view to ensuring continuity of service within the Directorate for Media. There is nothing in the file to suggest that the interim exercise of the duties of Director for Media implies the existence of any difficulty in that Directorate.
91 Given that, in the circumstances of the present case, it was not necessary for the General Court to examine whether the annulment of the decision at issue was disproportionate in the light of the nature of the irregularities found, of A’s interest and of the interests of the service and that, therefore, the judgment under appeal is not vitiated by a failure to state reasons in the regard, the alternative ground of appeal must be rejected.
92 Since none of the grounds of appeal in the present appeal has been successful, the appeal must be dismissed in its entirety.
Costs
93 Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs. In accordance with Article 138(1) of those rules, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
94 Since Mr Carbajo Ferrero has applied for costs and the Parliament has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by Mr Carbajo Ferrero.
On those grounds, the Court (Eighth Chamber) hereby:
1. Dismisses the appeal;
2. Orders the European Parliament to bear its own costs and to pay those incurred by Mr Fernando Carbajo Ferrero.
[Signatures]