Judgment;Information — ECLI:EU:T:2024:820
Date: 2024-11-13
Language of the case: English
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Staff cases - unfounded;Staff cases - inadmissible;Action for damages - unfounded

summary of the pleas in law relied on. It is apparent from the case-law that such a summary must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to exercise its review. It follows that it is necessary that the essential points of fact and of law on which the action is based be indicated coherently and intelligibly in the application itself. The application must, accordingly, specify the nature of the ground on which the action is based, with the result that a mere abstract statement of the grounds does not satisfy the requirements of the Rules of Procedure (see, to that effect, order of 9 February 2023, Aziz v Commission, T‑266/22, not published, EU:T:2023:81, paragraph 12 and the case-law cited). 34 Furthermore, it must be noted that the applicant did not put forward any argument in his application in support of his first head of claim seeking the annulment of the selection procedure at issue. While he puts forward arguments seeking to demonstrate the alleged unlawfulness of the contested decision, he does not explain how that unlawfulness is capable of invalidating the selection procedure at issue. That head of claim must therefore be rejected as inadmissible. 35 On the other hand, as regards the second head of claim seeking annulment of the contested decision, it is sufficiently clear from the application that the applicant is alleging, in a first plea in law, that EUIPO infringed several provisions of Regulation 2018/1725 and also the vacancy notice. Moreover, in a second plea in law, the applicant submits that EUIPO committed manifest errors of assessment by incorrectly evaluating the answers he had given to the questions set in the talent screener. In that regard, the applicant has reproduced the wording of the questions and provided separate reasoning in respect of each of them. 36 In addition, by his third head of claim, the applicant seeks compensation for the damage caused by the unlawfulness of the contested decision and by EUIPO’s wrongful conduct which placed him in a state of continual insecurity and considerable strain in relation to his job applications. 37 It is evident from the defence and the rejoinder that EUIPO was able to respond to the arguments put forward by the applicant in the first and second pleas. 38 It follows that the applicant’s claims, made in the alternative, seeking the annulment of the contested decision and compensation for the damage allegedly suffered, meet the minimum requirements under Article 76(d) of the Rules of Procedure, as interpreted by the case-law referred to in paragraph 33 above. Accordingly, EUIPO’s objection of inadmissibility must be rejected. The admissibility of the documents annexed to the reply 39 EUIPO submits that the documents supplied in Annexes C.1 to C.4 to the reply are inadmissible because they were not produced with the application, that the delay in submitting them with the reply is not justified and that, in any event, they have no connection with the contested decision. It argues that the same is true of Annexes C.5 to C.13, which do not have any connection with the present dispute. Accordingly, the annexes to the reply do not comply with Article 85(1) and (2) of the Rules of Procedure since they do not substantiate any of the applicant’s arguments. 40 In that regard, it should be borne in mind that, under Article 85(1) of the Rules of Procedure, evidence produced or offered is to be submitted in the first exchange of pleadings. Article 85(2) of the Rules of Procedure states that in reply or rejoinder a main party may produce or offer further evidence in support of his or her arguments, provided that the delay in the submission of such evidence is justified. 41 In the present case, Annexes C.1 to C.4 to the reply consist of confirmations of receipt of the applicant’s applications to the selection procedure at issue together with documents setting out the answers he gave in the talent screener. Annexes C.8 to C.10 contain documents concerning the applicant’s right to access his personal data. Lastly, Annexes C.11 and C.12 consist of evidence of the alleged manipulation of the applicant’s profile. 42 It must be noted that the evidence appearing in these annexes pre-dates the lodging of the application and, therefore, there was nothing to prevent it from being submitted in the first exchange of pleadings, pursuant to Article 85(1) of the Rules of Procedure. As the applicant has not justified the late submission of his evidence, it must be rejected pursuant to Article 85(2) of the Rules of Procedure and cannot be taken into account by the Court in the examination of the present action. 43 As regards the other evidence annexed to the reply, it must be noted that this post-dates the lodging of the application and, therefore, the applicant was unable to submit it any sooner. In the circumstances, that evidence must be regarded as admissible, subject to the examination of its relevance to the present action. The application for annulment of the contested decision 44 In support of his application, the applicant relies on two pleas, the first alleging infringement of Article 4(1)(a), (d) and (f), Article 4(2), Article 17(3) and Article 33(1)(b) of Regulation 2018/1725 and also of the vacancy notice, in that EUIPO incorrectly assessed his suitability for the position of business analyst by failing to use the latest versions of his application documents and the second alleging manifest errors of assessment on the part of the Selection Committee in the award of the talent screener marks in view of the duties, selection criteria and competencies set out in the vacancy notice. The first plea, alleging infringement of Article 4(1)(a), (d) and (f), Article 4(2), Article 17(3) and Article 33(1)(b) of Regulation 2018/1725 and of the vacancy notice in the selection procedure at issue 45 By his first plea, the applicant alleges that EUIPO infringed various provisions of Regulation 2018/1725 and the vacancy notice, in that it did not use the correct information from his application, failed to process his data lawfully, fairly and in a transparent manner and, lastly, refused to grant him access to his data. 46 EUIPO contends that since the first plea was not raised at the stage of the administrative complaint, it is inadmissible under the rule of correspondence, as it results from Article 91(2) of the Staff Regulations and from settled case-law. 47 In that regard, it must be remembered that the rule of correspondence between a complaint under Article 91(2) of the Staff Regulations and the subsequent action requires that, for a plea before the Courts of the European Union to be admissible, it must have already been raised in the pre-litigation procedure, enabling the administration to know the criticisms made by the person concerned in respect of the contested decision (see judgment of 4 July 2014, Kimman v Commission, T‑644/11 P, EU:T:2014:613, paragraph 43 and the case-law cited). 48 Thus, in civil service actions, the form of order sought before the Courts of the European Union can contain only heads of claim based on the same matters as those forming the basis of the heads of claim put forward in the complaint, although those heads of claim may be developed before the Courts of the European Union by pleas and arguments which, whilst not necessarily appearing in the complaint, are closely linked to it (see judgment of 25 October 2013, Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, paragraph 73 and the case-law cited). 49 In addition, it should also be noted, first, that, since the pre-litigation procedure is informal in character and those concerned are generally acting without the assistance of a lawyer at that stage, the administration must not interpret complaints restrictively but must, on the contrary, examine them with an open mind and, secondly, that it is not the purpose of Article 91 of the Staff Regulations to bind strictly and absolutely any contentious stage of the proceedings (see, to that effect, judgment of 25 October 2013, Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, paragraph 76 and the case-law cited). 50 However, the fact remains that, according to settled case-law, if the pre-litigation procedure provided for in Article 91(2) of the Staff Regulations is to achieve its purpose, the administration must be in a position to know with sufficient precision the criticisms made by those concerned of the contested decision (see judgment of 25 October 2013, Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, paragraph 77 and the case-law cited). 51 In that regard, as EUIPO rightly points out, the applicant’s complaint did not contain any argument relating to an alleged infringement by EUIPO of the provisions of Regulation 2018/1725 or of the vacancy notice. In addition, none of the allegations in his complaint refer to EUIPO failing to use the correct versions of his application, failing to process his data lawfully, fairly and in a transparent manner or, lastly, refusing to grant him access to his data. 52 Therefore, the arguments raised in the first plea did not appear in the complaint and are not closely linked to any of the heads of claim relied on in the complaint, in breach of the rule of correspondence between the complaint and the application. It should be added, in that regard, that the complaint does not contain any clear and precise element allowing it to be interpreted, even with an open mind, as a broader reference to an allegation of infringement of Regulation 2018/1725 or of the vacancy notice. 53 That conclusion cannot be called into question by the applicant’s argument that, since the right to the protection of personal data is a fundamental right and a matter of public policy, it should have been examined by the Court of its own motion. 54 In that regard, it must be borne in mind that pleas alleging the incompetence of the author of an act that adversely affects the applicant, infringement of essential procedural requirements and the failure to state reasons, or to state adequate reasons, for a contested decision constitute matters of public policy which the Court must examine of its own motion (see, to that effect, judgments of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 64, and of 8 July 2010, Commission v Putterie-De-Beukelaer, T‑160/08 P, EU:T:2010:294, paragraph 61 and the case-law cited). However, the fundamental right to the protection of personal data, as protected by Regulation 2018/1725, does not fall into any of those categories. 55 Lastly, the applicant’s argument that EUIPO committed a potential breach of the rule of correspondence by failing to provide him with the requested documents before he lodged his complaint cannot succeed. It is apparent from the file that EUIPO supplied to the applicant a large amount of data concerning his application for the selection procedure at issue and he does not explain how the purported failure to provide certain data could have led to a breach of the rule of correspondence. In particular, the applicant has not specified what information it was that he received after lodging his complaint which led him to argue in his application that EUIPO used the wrong versions of his application documents. 56 In the light of the foregoing, these allegations must be rejected and the entirety of the first plea rejected as inadmissible. The second plea, alleging manifest errors of assessment on the part of the Selection Committee in relation to the talent screener marks obtained by the applicant in view of the duties, selection criteria and competencies set out in the vacancy notice – Admissibility 57 EUIPO submits that, to the extent that the applicant’s second plea is based on the hypothesis that the Selection Committee used outdated versions of his application documents, it must be rejected as inadmissible for reasons of consistency and non-observance of the rule of correspondence. 58 In that regard, it must be noted that, although, in paragraph 40 of the application, the applicant reiterates his allegations that the documents in question were out of date, the other arguments put forward in support of the second plea relate, in essence, to the heads of claim in his complaint alleging that EUIPO committed manifest errors of assessment. 59 It follows that the second plea cannot be regarded as being entirely based on the hypothesis that the Selection Committee examined an outdated version of the applicant’s application documents. Therefore, the second plea must be declared admissible. – Substance 60 The applicant asserts that the contested decision is vitiated by several manifest errors of assessment because EUIPO used outdated and incorrect versions of his application documents. He essentially bases his arguments on his first plea. 61 In that regard, in the first place, the applicant submits that the Selection Committee committed a manifest error of assessment by failing to evaluate correctly his answer to the first question in the talent screener, which required candidates to set out their business analysis experience across a range of disciplines including software, process, strategy and operational improvement. The applicant comments that he only obtained 2.5 points whereas he should have been awarded the maximum 4 points. He had provided several examples of his professional experience and had also supplied the results of his analysis, then provided and implemented the solution. In addition, he mentions his experience in a private company where he had sped up the ‘Extract Transform and Load’ (ETL) process by 300 times, and his experience within EUIPO where he had reduced by two days the duplication time for data to be backed up and had improved backup performance. According to him, those results were not achievable without prior analysis. Furthermore, the applicant also provided examples of improvements in software, process and strategy and operational improvements in different sectors and disciplines and in world-class companies, namely the biggest companies in Europe. 62 In the second place, according to the applicant, the Selection Committee committed a manifest error of assessment by failing to evaluate correctly his answer to the second question in the talent screener, which asked candidates to set out their experience in producing software requirement specifications. The applicant comments that he only obtained 1.5 points whereas he should have been awarded the maximum 3 points. He provided three examples of specifications that he had developed in three different areas and three different sectors, namely the public sector, the telecommunications sector and the renewable energy sector. Furthermore, given that the specifications he had developed in 2016 for the automatic reporting solution continued to be used, they were good enough to produce reasonably good software. 63 In the third place, the applicant submits that the Selection Committee committed a manifest error of assessment by failing to evaluate correctly his answer to the third question in the talent screener, which asked candidates to set out their experience in producing business cases. The applicant maintains that he should have been awarded the maximum 1 point. He went beyond the requirements of the question by finding out the stakeholders’ requirements and creating business cases before starting the development, then developing the solution and training the users so that they could automate new reports and, finally, by delivering the solution. Furthermore, the solution developed to automate report generation is still working, which means that all the preliminary tasks, such as the production of the business cases, were performed perfectly. 64 In the fourth place, the applicant maintains that the Selection Committee committed a manifest error of assessment by failing to evaluate correctly his answer to the fourth question in the talent screener, which asked candidates to set out their experience in mapping ‘as is’ processes, capturing pain points to develop new solutions to challenges and problems. The applicant did not obtain any points here although, in his view, he should have been awarded the maximum 2 points. The answer he gave related to a mapped pain point (namely ‘an Input/Output problem’) and the way of resolving it. In this regard, the applicant submits that he conducted the analysis and went further by providing the solution in five steps, which he summarises. He even provided a second example where he mapped another pain point and supplied the solution to the stakeholders. The applicant describes the outcome of this new approach as amazing, since it led to an acceleration by 300 times compared to the existing solution used by one of the biggest telecommunications companies in the world. What is more, he also transformed a superpolynominal algorithm into a polynominal algorithm, the complexity of which is common knowledge. 65 In the fifth place, the applicant submits that the Selection Committee committed a manifest error of assessment by failing to evaluate correctly his answer to the fifth question in the talent screener, which consisted of setting out experience in conducting user acceptance tests (UATs). The applicant only obtained 1 point whereas he should have been awarded the maximum 2 points. In this regard, he comments that he described his experience in UATs in a Windows-based application and a web-based application. Furthermore, he points to his experience in behaviour-driven development which should be carried out at the same time as UATs to reduce the implementation time needed. Lastly, the applicant emphasises his international experience, which has brought him into contact with important clients, particularly those from Asia and Latin America. He also points out his participation in various countries in EU-funded international intellectual property projects. 66 For all those reasons, the applicant considers that the contested decision should be annulled. 67 EUIPO disputes those arguments. 68 First of all, for the reasons already set out in paragraphs 50 and 51 above, the applicant’s argument in paragraph 40 of the application claiming that EUIPO used outdated versions of his application documents must be rejected as inadmissible. 69 In addition, in his second plea, the applicant alleges various manifest errors of assessment on the part of the Selection Committee in its examination of the answers he gave in the talent screener and, more particularly, the marks awarded to him in that context. 70 In that regard, it must be noted that EUIPO merely informed the applicant what marks he had obtained without providing him with any further explanations. 71 According to settled case-law, although, under the second paragraph of Article 25 of the Staff Regulations, any decision that might adversely affect the person to whom it is addressed must state the grounds on which it is based, as far as concerns decisions taken by a selection board in a competition, the obligation to state reasons must be reconciled with observance of the secrecy surrounding the proceedings of selection boards provided for in Article 6 of Annex III to the Staff Regulations (see judgment of 4 July 1996, Parliament v Innamorati, C‑254/95 P, EU:C:1996:276, paragraph 24 and the case-law cited). 72 The secrecy surrounding the proceedings of selection boards was introduced with a view to guaranteeing the independence of competition selection boards and the objectivity of their proceedings, by protecting them from all external interference and pressures, whether these come from the administration itself or the candidates concerned or third parties. Observance of that secrecy therefore precludes both disclosure of the attitudes adopted by individual members of selection boards and disclosure of any factors relating to individual or comparative assessments of candidates (see, to that effect, judgment of 8 May 2019, Stamatopoulos v ENISA, T‑99/18, not published, EU:T:2019:305, paragraph 24 and the case-law cited). 73 Thus, in view of the need to reconcile the obligation to state reasons with respect for the secrecy of the selection board’s deliberations, communication of the candidate’s scores, in so far as they reflect the selection board’s comparative assessments, constitutes an adequate statement of reasons (see judgment of 7 February 2019, Duym v Council, T‑549/17, not published, EU:T:2019:72, paragraph 39 and the case-law cited). 74 Next, it should be borne in mind that, by the contested decision, the applicant was informed that he had not been selected for the interview phase of the selection procedure at issue. In addition, it is clear from the file that, following his request, the applicant was told what marks he had obtained in the talent screener for each of the five questions. EUIPO also informed him that the candidates admitted to the next phase of the procedure had obtained at least 10 out of 14 points and that the reason for the Selection Committee’s decision not to select him was that he had received a lower overall mark than that obtained by those other candidates. 75 Those elements are therefore sufficient to satisfy the obligation to state reasons as it results from the case-law referred to in paragraph 73 above. They allow an understanding of the Selection Committee’s overall assessment of the answers given by the applicant in the talent screener. 76 In addition, with regard to the complaint alleging manifest errors of assessment on the part of the Selection Committee, it should be noted that, according to settled case-law, the assessments which a selection board in a competition makes when it evaluates the knowledge and abilities of candidates are comparative and that those assessments, and also the decisions whereby the selection board determines that a candidate has failed a test, constitute the expression of a value judgement of the candidate’s performance in the test. They fall within the wide discretion enjoyed by the selection board and are amenable to review by the European Union judicature only where there has been a flagrant breach of the rules governing the selection board’s work. Thus, the actual assessment carried out by a selection board in a competition of candidates’ knowledge and ability is not open to review by the Courts (see judgment of 11 October 2023, PF v Parliament, T‑317/22, not published, EU:T:2023:620, paragraph 24 and the case-law cited). 77 In that regard, it must be noted that the applicant does not advance any argument which, as required by the case-law referred to in paragraph 76 above, relates to a breach of the rules governing the work of selection boards. Instead, in essence, he simply reiterates the professional experience that he had set out in his application for the post and the answers he gave to the questions in the talent screener, concluding therefrom that the Selection Committee did not assess his answers in accordance with their true worth. 78 Accordingly, since the applicant’s allegation is not based on any concrete evidence but solely on his own belief as to the merits of his application, it cannot be regarded as evidence of an manifest error of assessment (see, to that effect, judgment of 6 July 2022, JP v Commission, T‑179/20, not published, EU:T:2022:423, paragraph 72 and the case-law cited). 79 It follows from all the foregoing that the second plea must be rejected. The application for compensation 80 The applicant claims to have suffered damage caused by the unlawfulness of the contested decision and EUIPO’s wrongful conduct which placed him in a state of continual insecurity and considerable strain in relation to his job applications. That state of insecurity has existed since at least June 2022 and has been a source of unnecessary worry for him. The applicant leaves the extent of the moral and immaterial damage suffered to the discretion of the Court. 81 EUIPO disputes those arguments. 82 It must be recalled that, according to settled case-law, the European Union can be held liable for damages only if a number of conditions are satisfied as regards the illegality of the conduct alleged against the institutions, actual harm and the existence of a causal link between the conduct of the institution and the damage complained of. It is sufficient that any one of those conditions is not satisfied for the action for damages to have to be dismissed in its entirety without there being any need for examination of the other conditions for such liability (see order of 13 December 2018, Bowles v ECB, T‑447/17, not published, EU:T:2018:993, paragraph 102 and the case-law cited). 83 In addition, in accordance with settled case-law, where an application for compensation is closely related to an application for annulment, the rejection of the latter also results in the rejection of the application for compensation (see order of 13 December 2018, Bowles v ECB, T‑447/17, not published, EU:T:2018:993, paragraph 103 and the case-law cited). 84 In the present case, in seeking to demonstrate a wrongful act committed by EUIPO which would give rise to compensation, the applicant refers entirely to his claims for annulment. Therefore, the application for compensation is closely related to the claims for annulment, in that the harm the applicant alleges to have suffered originates from the contested decision. 85 Accordingly, since the claims for annulment have been rejected, the application for compensation must also be dismissed. The measures sought by the applicant 86 The applicant asks the Court to instruct EUIPO to disclose the SuccessFactors audit and access logs relating to his application for the selection procedure at issue, showing the date and time when each recipient had accessed his personal data in those systems together with all personal data provided by him contained in EUIPO’s IT systems and the systems of EUIPO’s data processors. He also asks to be provided with the evaluation sheets drawn up by the selection board, the ‘separate assessment and decision documents signed by Chairpersons – on behalf of committees’ documenting the final decision of the selection board made available to candidates and, lastly, for minutes of the selection boards. 87 In that regard, it must be borne in mind that it is evident from Article 90 and Article 92(1) of the Rules of Procedure that assessment of the appropriateness of adopting a measure of organisation of procedure or a measure of inquiry is a matter for the court, not the parties and the latter may, if they see fit, challenge the choice made at first instance in the framework of an appeal (judgment of 12 May 2010, Commission v Meierhofer, T‑560/08 P, EU:T:2010:192, paragraphs 61 and 62). 88 In the present case, since the present dispute may be resolved on the basis of the documents in the Court’s file, the measures requested by the applicant are irrelevant for the purpose of resolving the dispute, since they concern either personal data access requests that are unconnected to the present dispute or documents relating to the secrecy surrounding the proceedings of selection boards (see paragraphs 70 to 72 above). 89 Accordingly, the applicant’s request must be rejected and, consequently, the action in its entirety must be dismissed as partly inadmissible and partly unfounded. Costs 90 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by EUIPO. On those grounds, THE GENERAL COURT (Tenth Chamber) hereby: 1. Dismisses the action; 2. Orders WS to pay the costs. Porchia Nihoul Verschuur Delivered in open court in Luxembourg on 13 November 2024. V. Di Bucci M. van der Woude Registrar President * Language of the case: English. 1 Confidential information redacted