ORDER OF THE COURT (Eighth Chamber)
5 October 2023 (*)
(Appeal – Article 181 of the Rules of Procedure of the Court of Justice – Civil service – Notice of Open Competition EPSO/AD/364/19 – Security Officers (AD 7) – Decision of the Selection Board to exclude the appellant from the next stage of the competition – Obligation to state reasons – Possibility for the administration to supplement the statement of reasons for the decision to exclude at the complaint stage – Action for annulment and for damages)
In Case C‑786/22 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 29 December 2022,
MV, represented by D. Rovetta and V. Villante, avvocati,
appellant,
the other parties to the proceedings being:
European Commission,
defendant at first instance,
Council of the European Union,
intervener at first instance,
THE COURT (Eighth Chamber),
composed of M. Safjan (Rapporteur), President of the Chamber, N. Jääskinen and M. Gavalec, Judges,
Advocate General: T. Ćapeta,
Registrar: A. Calot Escobar,
having decided, after hearing the Advocate General, to give a decision by reasoned order, in accordance with Article 181 of the Rules of Procedure of the Court of Justice,
makes the following
Order
1        By his appeal, MV seeks to have set aside the judgment of the General Court of the European Union of 19 October 2022, MV v Commission (T‑624/20, EU:T:2022:653; ‘the judgment under appeal’) by which it dismissed his action seeking, first, annulment of the decision of the competition selection board of 29 October 2019 rejecting his request for review of the decision of 5 June 2019 not to admit him to the next stage of Open Competition EPSO/AD/364/19 – Security Officers (AD 7) (‘the decision at issue’), the decision of the Director of the European Personnel Selection Office (EPSO) of 30 June 2020 rejecting his complaint (‘the decision rejecting the complaint’), the notice of competition and the draft list of officials selected to take part in the competition and, second, compensation for the damage which he claims to have suffered as a result of those acts.
The appeal
2        Under Article 181 of the Rules of Procedure of the Court of Justice, where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court of Justice may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal in whole or in part.
3        It is appropriate to apply that provision in the present case.
4        On 6 July 2023, the Advocate General took the following position:
‘1.      For the reasons stated hereinafter, I propose that the Court should, in accordance with Article 181 of the Rules of Procedure, dismiss the appeal in this case as being manifestly unfounded.
2.      In support of his appeal before the Court, the appellant raises two grounds of appeal. The first ground alleges an infringement of the obligation to state reasons and contradictory reasoning. The second ground alleges an incorrect qualification of the facts and a misapplication of the appropriate legal standard for the purpose of finding a manifest error of assessment.
The first ground of appeal
3.      In support of the first ground of his appeal, the appellant claims, in essence, that the General Court erred in law, in paragraphs 43 to 66 of the judgment under appeal, in finding that the lack of a statement of reasons for the decision at issue could be remedied by the statement of reasons for the decision rejecting the complaint. According to the appellant, if there is a complete lack of a statement of reasons for the decision at issue, the decision rejecting the complaint cannot remedy that lack.
4.      In that respect, the appellant’s line of argument is based on a misreading of the judgment under appeal so far as the lack of a statement of reasons for the decision at issue is concerned.
5.      It is true that the General Court noted, in paragraph 53 of the judgment under appeal, that the decision at issue did not provide any specific statement of reasons as regards the relevance of the appellant’s professional experience and as regards whether that experience had been taken into account.
6.      However, that finding does not, contrary to the appellant’s assertions, constitute a “total lack of motivation”.
7.      In paragraph 52 of the judgment under appeal, the General Court observed that, in the decision at issue, the selection board had decided that the professional experience, as presented by the appellant, was not sufficient in the light of the eligibility conditions defined by the notice of competition concerned since that experience did not sufficiently cover the scope of the duties previously set out in that notice.
8.      In addition, in paragraph 54 of the judgment under appeal, the General Court relied on the settled case-law referred to in paragraph 48 of that judgment, according to which the statement of reasons contained in the decision rejecting the complaint must also be taken into account in the review of the lawfulness of the decision rejecting the candidate’s application.
9.      In that respect, in paragraph 55 of the judgment under appeal, the General Court found, first, that the Director of EPSO had provided the appellant with information concerning the eligibility criteria, according to which, inter alia, certain professional experience was considered relevant, partly relevant or irrelevant and, second, that that same Director had provided explanations relating to the various entries completed by the appellant in the section of the application form dedicated to his professional experience.
10.      Thus, it follows from the judgment under appeal that the appellant’s application was rejected on the grounds that his professional experience was insufficient.
11.      Consequently, although the statement of reasons for the decision at issue does not deal exhaustively with all aspects of the rejection of the appellant’s application, that decision, taken together with the decision rejecting the complaint, is not vitiated by a “total lack of motivation”.
12.      In any event, it follows from the case-law of the Court that although the selection board and EPSO are bound to give a statement of reasons, that statement of reasons may be made when rejecting a complaint brought by an unsuccessful applicant against the decision rejecting his or her application (see, to that effect, judgment of 23 September 2004, Hectors v Parliament, C‑150/03 P, EU:C:2004:555, paragraph 40 and the case-law cited). It is important to recall that the obligation to state reasons must be reconciled with observance of secrecy surrounding the proceedings of selection boards. As the Court has already had occasion to state, that secrecy was introduced with a view to guaranteeing the independence of selection boards and the objectivity of their proceedings, by protecting them from all external interference and pressures, whether these come from the EU administration itself or from the candidates concerned or third parties (see, to that effect, judgment of 4 July 1996, Parliament v Innamorati, C‑254/95 P, EU:C:1996:276, paragraph 24, and order of 7 September 2022, Rosca v Commission, C‑802/21 P, EU:C:2022:677, paragraph 21).
13.      In the present case, since the Director of EPSO has provided a statement of reasons in the decision rejecting the complaint, a fact which is not disputed by the appellant, the General Court was entitled to hold, in paragraph 65 of the judgment under appeal, that the statement of reasons for the decision at issue, as supplemented by the statement of reasons for the decision rejecting the complaint, was sufficient to enable the appellant to challenge its validity before the Courts of the European Union, and to enable the General Court to exercise its review.
14.      Consequently, the appellant’s line of argument must be rejected as being manifestly unfounded.
15.      As a subsidiary argument, the appellant criticises the General Court for having erred in law on account of the infringement of its obligation to state reasons. According to the appellant, the General Court, in paragraph 62 of the judgment under appeal, examined the merits of the reasons of the decision at issue, while it recalled, in paragraph 49 of that judgment, that the obligation to state reasons in decisions is an essential procedural requirement which must be distinguished from the question whether the reasoning is well founded. Thus, according to the appellant, the General Court infringed Article 296 TFEU and its obligation to state reasons since it relied on the merits of the reasons contained in the decision rejecting the complaint for the purpose of determining whether the procedural requirements had been complied with.
16.      In that respect, it must be noted that the appellant misreads the judgment under appeal.
17.      In paragraphs 61 and 62 of that judgment, the General Court explained, in essence, the reason why the appellant was able, on the basis of the statement of reasons for the decision rejecting the complaint, to understand that his professional experience had been considered insufficient, without carrying out an examination of the merits of the reasons contained in the decision rejecting the complaint.
18.      In those circumstances, the first ground of appeal must be rejected as being manifestly unfounded.
The second ground of appeal
19.      The second ground of appeal is divided into two separate parts. By the first part, the appellant argues that the General Court erred in law, in paragraph 96 of the judgment under appeal, in so far as it examined whether the selection board’s assessment was vitiated by a manifest error of law only in the light of the information in the “Professional Experience” section of the appellant’s application form, without duly taking into account the information provided in the “Talent Screener” section of that application form.
20.      In that respect, it should be observed that the General Court found, in paragraph 86 of the judgment under appeal, that the Talent Screener stage and the eligibility checks stage were two distinct stages. As the General Court also sets out, in paragraphs 10 and 11 of the judgment under appeal, only candidates who were deemed eligible, on the basis of the specific and general conditions for admission, could be admitted to the selection stage based on qualifications (“Talent Screener”).
21.      In those circumstances, the General Court did not err in law when it held, in paragraph 87 of the judgment under appeal, that the selection board could not take into consideration the information provided by the appellant in the “Talent Screener” section of the application form for the purposes of the prior eligibility checks stage.
22.      In the second part of the second ground of appeal, the appellant submits that the General Court erred in law, in paragraphs 108 and 109 of the judgment under appeal, inasmuch as it held that the decision at issue could not be called into question in so far as it found that the total duration of his relevant experience was less than six years, after having identified a manifest error made by the selection board in assessing the relevance of his professional experience.
23.      That part is based on a misreading of the judgment under appeal.
24.      Contrary to what is argued by the appellant, the General Court did not identify, in paragraphs 108 and 109 of the judgment under appeal, a manifest error as regards the assessment of the relevance of his professional experience, but merely stated that, even if a manifest error had been made by the selection board, the duration of the appellant’s relevant professional experience was not sufficient.
25.      Accordingly, the second part of the second ground of appeal must be rejected as being manifestly unfounded.
26.      In view of the foregoing, I consider that the appeal must be dismissed in its entirety as being manifestly unfounded on the basis of Article 181 of the Rules of Procedure.’
5        For the same reasons as those given by the Advocate General, the appeal must be dismissed in its entirety as being manifestly unfounded.
Costs
6        Under Article 137 of the Rules of Procedure, applicable to the procedure on appeal pursuant to Article 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings. In the present case, since the present order is adopted before the appeal was served on the other parties to the proceedings and, therefore, before those other parties could have incurred costs, it is appropriate to decide that MV is to bear his own costs.
On those grounds, the Court (Eighth Chamber) hereby orders:
1.      The appeal is dismissed as being manifestly unfounded.
2.      MV shall bear his own costs.
Luxembourg, 5 October 2023.
A. Calot Escobar
M. Safjan
Registrar
President of the Chamber
*      Language of the case: English.