ORDER OF THE GENERAL COURT (Eighth Chamber)
16 October 2020
(*)
(Action for annulment – Civil service – Officials – Internal Competition COM/1/AD 10/18 (AD 10) – Submission of the application using the form provided for that purpose and referred to in Article 2 of Annex III to the Staff Regulations – Request to be admitted to the competition, lodged at the same time and on a separate sheet of paper, to the Appointing Authority – Eligibility conditions – Decision of the selection board to reject the applicant’s application – Decision of the Appointing Authority refusing to grant the applicant’s request to set aside one of the conditions provided for in the notice of competition in order to admit him to the competition – Challenge of the decision of the Appointing Authority and not that of the selection board – Legal interest in bringing proceedings – Inadmissibility)
In Case T‑13/20,
Diego Valiante, residing in Antwerp-Berchem (Belgium), represented by R. Wardyn, Radca Prawny,
applicant,
v
European Commission, represented by D. Milanowska and L. Vernier, acting as Agents,
defendant,
APPLICATION under
Article 270 TFEU seeking annulment of the decision of the Commission of 14 March 2019 by which the Appointing Authority of that institution rejected the applicant’s request to be admitted to Internal Competition COM/1/AD 10/18 (AD 10) on the ground that he did not fulfil the condition, laid down in the relevant notice of competition, relating to him holding grade AD 8,
THE GENERAL COURT (Eighth Chamber),
composed of J. Svenningsen (Rapporteur), President, R. Barents and T. Pynnä, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1        The applicant, Mr Diego Valiante, has been an official of the European Commission since 1 July 2016, currently classified in grade AD 7.
2        On 20 November 2018, the Appointing Authority (‘the Appointing Authority’) of the Commission published notices on the organisation of eight internal competitions, including the notice (‘the notice of competition at issue’) on competition COM/1/AD 10/18 (AD 10) (‘the competition at issue’) and four other notices of competitions, for the function group of administrators, of grades AD 7, 8, 10 and 12. The competition at issue included five fields of expertise, of which the first was entitled ‘Single market, innovation and digital issues (internal market, health, research, transport, energy, enterprises, industry, information society, financial services, taxation, combating fraud)’.
3        The notice
of competition at issue stated that candidates could apply and, therefore, compete in only one of the five fields of specialisation of the competition.
4        The notice of competition at issue also laid down specific conditions of eligibility relating, in particular, to the candidates’ position under the Staff Regulations, their grade, diplomas, professional experience and their level of knowledge of the official languages of the European Union. That notice of competition thus provided that ‘candidates [must] be in grade AD 8 or above’.
5        On 20 December 2018, the applicant applied for the competition at issue, choosing field 1 in the registration form which he sent to the Commission’s
Appointing Authority and which was intended to be submitted to the competition selection board.
6        On the same day, the applicant and 194 other members of staff of the Commission and agencies of the European Union submitted, pursuant to Article 90(1) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), together requests to the Commission’s Appointing Authority, drafted in similar terms, for admission to the various internal competitions organised by that institution, despite the fact that they did not meet one or other of the conditions laid down in the notices relating to those competitions. In his request for admission to the competition, the applicant, who, on the date on which his application was submitted, had not yet reached the required grade AD 8, claimed that the condition laid down in the notice of competition at issue requiring proof of a minimum specific grade was in breach of Article 1d and Article 27 of the Staff Regulations, according to which one of the objectives of recruitment is, inter alia, to ensure that officials have ‘the highest standard of ability, efficiency and integrity’.
7        The Commission’s Appointing Authority decided to deal, jointly and by a single decision, with all the requests to be admitted to the competition submitted to it in the various competitions, under Case number D/754/18.
8        By decision of 14 March 2019 (‘the contested decision’), received by the applicant on the following day, the Commission’s Appointing Authority rejected the applications for admission to the competition submitted to it in the various competitions, including the applicant’s application.
9        As a preliminary point, the Commission’s Appointing Authority pointed out in particular that, in addition to their requests, which were submitted on separate sheets of paper, certain applicants had submitted requests for the competitions at issue to the various selection boards whereas others had not. Accordingly, in view of the rights and powers of selection boards to rule on the eligibility of candidates in those competitions, the Commission considered that requests to be admitted to a competition from interested parties in the various competitions in question had to be construed as requests for it to amend the notices of the competitions, in essence in order to set aside the conditions which they did not satisfy. As regards the applicants who, like the applicant, had applied for one of those competitions, the Commission pointed out that its reply to their requests, made on separate sheets of paper under Article 90(1) of the Staff Regulations, could not replace the decisions already taken or which had yet to be taken by the selection boards concerned in their respective spheres of competence and, in essence, in relation to their respective applications submitted by means of the form prescribed for that purpose by Article 2 of Annex III to the Staff Regulations and the notice of competition at issue.
10      Ruling after setting out those preliminary points, the Commission’s Appointing Authority stated in the contested decision that it had a wide discretion in determining the conditions for access to the competitions at issue, which the applicants did not dispute. As regards the condition of the competition at issue relating to the possession of a minimum grade AD 8, the Commission’s Appointing Authority took the view that it constituted an appropriate condition which did not infringe either Article 27 of the Staff Regulations or the principle of equal treatment. As regards the limitation of the participation of officials in service to only one of the five fields proposed in the same competition, the Commission’s Appointing Authority took the view that it complied with Article 27 of the Staff Regulations, as it made it possible to ensure the recruitment of officials of a high standard.
11      On 15 March 2019, the applicant was informed by the selection board that he was not admitted to the next phase of the competition at issue because he did not meet all the conditions for eligibility, since, ‘contrary to what is required in point 3
of Section II of the Notice of Competition [at issue], [he was] not [categorised] in grade AD 8 or above, on the closing date for online applications (20 December 2018)’. Thus, for that reason, the selection board rejected the applicant’s application (‘the selection board’s decision’).
12      On 14 June 2019, the applicant lodged a complaint against the contested decision under Article 90(2) of the Staff Regulations. He claimed that the fact that it was impossible to register for more than one of the fields of the competition at issue was incompatible with Article 27 of the Staff Regulations. As regards the condition requiring at least grade AD 8 to be held, he disputed the appropriate nature of that condition for determining the standard of candidates.
13      On 7 October 2019, while pointing out that the applicant had not challenged the selection board’s decision not to admit him to the competition at issue, the Commission’s Appointing Authority rejected the complaint as unfounded. In that regard, while stating that the question at issue in the present case was not an assessment of the applicant’s professional experience and merits, but only whether the conditions laid down in the notice of competition at issue were appropriate and did not compromise the objective of ensuring the participation of applicants of the highest standard of ability and efficiency, the Commission explained that the condition relating to the minimum required grade AD 8 was to be regarded as an objective parameter which ensures the standard of merit of applicants and prevented the evaluation of candidates’ merits from being left to the subjective perception of the service in charge. Thus, according to the Commission, that condition laid down in the notice of competition was not incompatible with the objectives of Article 27 of the Staff Regulations. As regards the fact that it was impossible to register in more than one of the five fields proposed for the competition at issue, that condition was also not incompatible with the objectives of Article 27 of the Staff Regulations.
Procedure and forms of order sought
14      By application lodged at the General Court Registry on 8 January 2020, the applicant brought the present action, in which he claims that the Court should:
–        annul the contested decision;
–        order the Commission to pay the costs.
15      By separate document lodged at the Court Registry on 20 March 2020 and registered on 17 April 2020, the Commission raised a plea of inadmissibility under Article 130(1) of the Rules of Procedure of the General Court, in which it claims that the Court should:
–        dismiss the action as ‘manifestly’ inadmissible;
–        order the applicant to pay the costs.
16      On 1 July 2020 the applicant lodged his observations on the plea of inadmissibility.
Law
17      Pursuant to Article 130(1) and (7) of the Rules of Procedure, where, by separate document, the defendant applies to the Court for a decision on inadmissibility or lack of competence without going to the substance of the case, the Court must decide on the application as soon as possible, where necessary after opening the oral part of the procedure.
18      In the present case, the Court considers that it has been sufficiently informed by the documents in the file and has decided to give a decision by way of order without there being any need to open the oral part of the procedure.
19      In support of its plea of inadmissibility, the Commission contends that the applicant has no legal interest in bringing proceedings because, in any event, he would derive no benefit from the annulment of the contested decision. In his case, it was the selection board’s decision, and not the contested decision, which terminated his participation in the selection procedure for the competition at issue. However, in the absence of a complaint lodged against the selection board’s decision and/or an action brought before the Court under Article 270 TFEU against the latter decision, that decision has become final. Moreover, as regards the applicant’s application to be admitted to a competition, the Commission’s Appointing Authority was not competent to adopt the decision which the latter had asked it to adopt. In reality, it was only out of concern to have regard for the welfare of officials, in order to remove the frustration felt by the applicant and the numerous other members of staff who had submitted applications in similar terms, that the Commission’s Appointing Authority took a position on the compatibility with the Staff Regulations of the requirements laid down in the various notices of competition at issue. In addition, the Commission submits that the present action, in that it seeks to challenge the selection board’s decision, which has become final, constitutes an attempt by the applicant to circumvent the appeal procedures laid down, in relation to Article 270 TFEU, by Articles 90 and 91 of the Staff Regulations and the time
limits laid down in those articles.
20      In his observations on the plea of inadmissibility, pointing out that he is not a lawyer, the applicant claims that, by its conduct, the Commission’s Appointing Authority misled him as to the decision which actually adversely affected him and which had to be challenged by means of a complaint and, subsequently, an action under Article 270 TFEU. The applicant chose to submit his request to be admitted to the competition before the Commission’s Appointing Authority in order to exercise his rights to take part in the competition at issue, without thereby preventing the selection board from continuing the selection procedure led by it. In contrast, he never sought to circumvent the requirements of the Staff Regulations, in particular as regards the applicable time
limits.
21      In that regard, the applicant received the contested decision before the selection board took its decision. Given that the Commission’s Appointing Authority did not inform him of the scope of each of those decisions and that, on the contrary, it replied in detail to his request of 20 December 2018 and his complaint, which gave rise to legitimate expectations on the part of the applicant that the contested decision adversely affected him, it was normal for him to challenge that decision in so far as it occurred first. Furthermore, in ruling on that complaint, the Commission’s Appointing Authority adopted a new decision open to challenge before the Courts of the European Union under Article 91 of the Staff Regulations and Article 270 TFEU.
22      As a preliminary point, it is necessary to set out the arrangements for the conduct of any competition by which someone can become an EU official, as laid down in the Staff Regulations.
23      In that regard, under Article 30 of the Staff Regulations, for each competition, a selection board is to be appointed by the Appointing Authority concerned, which is to draw up the list of suitable candidates in that competition and, to that end, Annex III to the Staff Regulations, entitled ‘Competition procedure’, lays down the rules governing the exercise by the Appointing Authority and the selection board concerned of their respective competences.
24      Although, under Article 1 of Annex III to the Staff Regulations, it is for the Appointing Authority concerned to draw up, after consulting the Joint Committee, the notice of competition specifying the requirements to be met by candidates in order to be admitted to a competition, it is nevertheless, next, for the selection board for that competition alone, according to Articles 2, 4 and 5 of that annex,
to draw up the list of candidates who satisfy the conditions laid down in the notice of competition. This is after having had regard to the files, which had previously been sent to it by the Appointing Authority concerned, of the candidates who satisfy, according to that authority, the conditions laid down in Article 28(a) to (c) of the Staff Regulations and relating exclusively to the nationality of candidates, enjoyment of their citizens’ rights, their position in relation to military requirements to be met by candidates in the Member State to which they belong and relating to their character requirements.
25      In the present case, with a view to submitting his application for the competition at issue, the applicant sent the Commission’s Appointing Authority the application form, as referred to in Article 2 of Annex III to the Staff Regulations and provided for in the notice of competition at issue. In such a situation, pursuant to Article 4 of that annex and within its sphere of competence, the Commission’s Appointing Authority was required to draw up a list of candidates fulfilling the conditions referred to solely in paragraphs (a) to (c) of Article 28 of the Staff Regulations and to forward the files of solely those candidates
to the selection board for the competition, which, within its competence, was then required to determine which of those candidates satisfied the conditions laid down in the
notice of competition at issue.
26      Thus, in those circumstances, it must be held that, by submitting his application using the form provided for that purpose, the applicant necessarily made a request to the Commission’s Appointing Authority, within the meaning of Article 90(1) of the Staff Regulations, that, with the assistance of the selection board for the competition at issue, the Commission’s Appointing Authority take a position on that application and, in particular, on whether that application satisfied not only the conditions referred to in Article 28(a) to (c) of the Staff Regulations, an examination which was the responsibility of the Commission’s Appointing Authority, but also the conditions referred to in the notice of competition, the examination of which was the exclusive responsibility of the selection board for the competition.
27      In those circumstances, it must be held that, by submitting at the same time to the Commission’s Appointing Authority, on a separate sheet of paper, a request for admission to the competition, the applicant finally made a request which had, at least in part, the same purpose as that underlying the submission of his application for the competition at issue, using the form provided for in the Staff Regulations for that purpose.
28      As regards the division of powers between the Commission’s Appointing Authority and the selection board with regard to the examination of the applications for the competition at issue, it must be held that the contested decision, which was notified to the applicant on 15 March 2019 but predated the selection board’s decision of 15 March 2019, could contain only an assessment by the Commission’s Appointing Authority as to whether the applicant fulfilled the conditions laid down in Article 28(a) to (c) of the Staff Regulations. It was and remains common ground that the Commission’s Appointing Authority never questioned the fact that the applicant satisfied those conditions under the Staff Regulations.
29      In contrast, it is clear that, in the contested decision, the Commission’s Appointing Authority did not adopt a position, and was not competent to do so, as to whether, in this specific case, the applicant fulfilled the conditions laid down in the notice of competition at issue. That is supported by the fact that, in that decision, the Commission’s Appointing Authority stated that it regarded the applicant’s request for admission to the competition as constituting a request for it to amend the notice of competition at issue, an interpretation of the purpose of that request for admission to the competition which the applicant did not contest in his complaint. It also stated, first, that ‘for the requestors who [like the applicant] submitted an application for a given competition [at issue], it [was] for the relevant selection board to determine their eligibility and therefore take a decision whether or not to “admit” them to the further stages of the competition’ and, secondly, that ‘[its] reply [could not] be seen as a substitute for the decisions already taken or still to be taken by the selection boards in accordance with their competence’.
30      In those circumstances, and as the Commission’s Appointing Authority had indicated in the contested decision, it must be held that, in the present case, in adopting that decision, that authority merely adopted a position on the applicant’s request, submitted on a separate sheet of paper and which sought to challenge the merits of the admission criteria to the competition at issue, only in so far as, by that request, the applicant sought to require the Appointing Authority to amend the notice of competition in the manner he recommended. Moreover, it must be stated that, for the remainder, the Commission’s
Appointing Authority referred the applicant to the decision or decisions which the selection board had adopted or would be required to adopt, within its field of competence, as regards the compliance of his application with the conditions laid down in the notice of competition at issue.
31      However, with regard to the applicant’s request to be admitted to the competition, as formulated by the submission of the application form to the competition at issue and such as reiterated on the separate sheet of paper, redundantly, in the request to be admitted to the competition, it must be considered that it is the competition selection board – and this by means of the decision of 15 March 2019 – which decided, within its field of competence, to reject the applicant’s application as he did not meet one of the conditions referred to in the notice of competition, namely that relating to holding grade AD 8. Consequently, having regard to the subject of that request, the selection board’s decision constitutes the only act which adversely affected the applicant as to the point of knowing, also raised in his request to be admitted to the competition, whether his application, introduced by the form provided for that purpose, satisfied that condition for admission to the competition at issue (see, to that effect, order of 16 May 1994, Stagakis v Parliament, T‑37/93, EU:T:1994:51, paragraph 18).
32      Faced with such a decision taken by the selection board, the applicant had the possibility, provided for in the notice of competition at issue, to request a review of that decision, which he did not do, and he still had the possibility, according to settled case-law, either to immediately challenge that decision by means of an action under Article 270 TFEU, or to lodge a complaint against that decision under Article 90(2) of the Staff Regulations, followed, where appropriate, by an action before the Court under Article 270 TFEU (see, to that effect, order of 16 May 1994, Stagakis v Parliament, T‑37/93, EU:T:1994:51, paragraph 20, and judgment of 3 December 2015, Cuallado Martorell v Commission, T‑506/12 P, EU:T:2015:931, paragraphs 54 to 56 and the case-law cited).
33      However, it must be stated that the applicant did not bring an action under Article 270 TFEU against the selection board’s decision. Likewise, it appears that, by his complaint and even if he had also attached to it the selection board’s decision, the applicant disputed solely the contested decision, that is to say, decision D/754/18 rejecting his application of 20 December 2018, the only decision referred to in the subject matter of that complaint, and not the selection board’s decision.
34      It follows that, as the Commission has rightly pointed out, in the absence of an action and/or a complaint brought against the selection board’s decision, the latter decision must be regarded as having become final.
35      According to settled case-law, the possibility of submitting a request within the meaning of Article 90(1) of the Staff Regulations does not allow an official or other staff member to set aside the time
limits laid down in Articles 90 and 91 of the Staff Regulations for lodging a complaint and bringing an action by indirectly calling in question, by means of another request, a decision which has not, moreover, been challenged within the time
limits laid down in the Staff Regulations (judgments of 13 November 1986, Becker v Commission, 232/85, EU:C:1986:428, paragraph 8; of 29 January 1997, Adriaenssens and Others v Commission, T‑7/94, EU:T:1997:7, paragraph 27; and order of 20 March 2014, Michel v Commission, F‑44/13, EU:F:2014:40, paragraph 46).
36      In those circumstances, as the subject matter of the present action, formally seeking annulment of the contested decision, is in fact to call into question the legality of the selection board’s decision not to admit him to the competition at issue, a decision which has in the meantime become final because of the applicant’s failure to act, that action is manifestly inadmissible by reason of the selection board’s decision having become definitive.
37      In any event, even if, by the contested decision and notwithstanding its announcement to the contrary, the Commission’s Appointing Authority had implicitly adopted a position on the applicant’s request for admission to the competition, notwithstanding the fact that he did not hold grade AD 8, it would then be clear that such a decision of the Appointing Authority not only would have exceeded the limits of its competence in relation to the competition, but, above all, should then be regarded as having been reviewed and confirmed by the selection board, since its decision was adopted the day after the Commission’s Appointing Authority adopted the contested decision.
38      It is common ground that, in the form of order sought in the application, the applicant does not seek, in general, annulment of the selection board’s decision, nor, in particular, annulment of that decision in so far as it confirmed and thus replaced the alleged decision of the Commission’s Appointing Authority, resulting from the contested decision, not to admit him to the competition at issue on the ground that he did not fulfil the condition, laid down in the notice of competition at issue, relating to having as a minimum grade AD 8.
39      Similarly, as regards the applicant’s argument that the decision rejecting the complaint constitutes an act adversely affecting him, which was new in relation to the contested decision, even in relation to the selection board’s decision, it must be held that that complaint did not refer to the selection board’s decision; that implies that to interpret the claims for annulment as referring to the selection board’s decision would in any event, in the absence of a prior optional complaint against that decision, lead to the inadmissibility of such claims on the ground of them being out of time. Furthermore and in any event, the applicant does not seek, either in the application or in his observations on the plea of inadmissibility raised by the Commission, the annulment of the decision rejecting the complaint.
40      As regards the understandable error claimed in essence by the applicant in his observations on the plea of inadmissibility raised by the Commission, it is settled case-law that any official or member of staff exercising ordinary care is deemed to know the Staff Regulations and, more particularly, the rules governing career prospects. Furthermore, the diligence that may reasonably be expected of an official is to be assessed in the light of his or her training, grade and professional experience (see, to that effect, order of 20 March 2014, Michel v Commission, F‑44/13, EU:F:2014:40, paragraph 53 and the case-law cited).
41      However, as is apparent from his application form for the competition at issue, the applicant, in his capacity as an official having already passed a competition and having a number of years’ experience as an administrator, moreover as a ‘senior office and team leader’, cannot reasonably claim that he was unaware of the rules, referred to in Article 28 of and Annex III to the Staff Regulations and those specifically referred to in Annex IV to the notice of competition at issue, in particular those set out under the heading ‘Appeal procedures’ and setting out the means of action against decisions adopted by the selection board. Thus, it could reasonably be expected that a candidate, such as the applicant, would understand that, if he intended to challenge the condition, set out in the notice of competition at issue and relating to the requirement to hold grade AD 8, that he should, as a matter of priority, have challenged the selection board’s decision not to admit him to the competition, by bringing an action before the Court under Article 270 TFEU, possibly preceded by a complaint, which is optional in that case, and, in the context of such an action, he should have challenged, under Article 277 TFEU, the legality of the notice of competition at issue (see, to that effect, order of 3 March 2017, GX v Commission, T‑556/16, not published, EU:T:2017:139, paragraph 28, and judgment of 15 September 2017, Commission v FE, T‑734/15 P, EU:T:2017:612, paragraph 115).
42      Secondly, as regards the applicant’s claim, made in support of the understandable nature of his error, that the Commission’s Appointing Authority misled him, it cannot succeed, since, in the contested decision, and although it had to respond within the four-month time
limit laid down in the Staff Regulations to a large number of requests, formulated in similar terms under Article 90(1) of the Staff Regulations – all relating to different situations – that
authority expressly stated that it regarded the requests in question as seeking that it amend the conditions of the notice
of competition at issue, an interpretation of his request which the applicant did not call into question in his complaint.
Furthermore, the Commission’s Appointing Authority also stated, in clear terms, that the contested decision cannot take the place of the decision or decisions which the selection board had adopted or would be required to adopt in the case of the various applicants, including the applicant.
43      In any event, the fact that the Commission answered the substance of the applicant’s request without addressing the admissibility of that request or as to whether that request actually constituted a complaint against the notice of competition does not constitute a reason for derogating from the procedures and time
limits laid down in Articles 90 and 91 of the Staff Regulations (see, to that effect, judgment of 25 February 2015, Walton v Commission
T‑261/14 P, EU:T:2015:110, paragraph 37 and the case-law cited).
44      Consequently, in the circumstances of the present case, a reasonably diligent official should have understood that it was the selection board’s decision, determining whether his application satisfied the conditions laid down in the notice of competition at issue, which adversely affected him and which he had to challenge under Article 270 TFEU.
45      Finally, and in any event, even if the view were to be taken that, by his action, the applicant intended to seek annulment of the contested decision in so far as, by that decision, the Commission’s Appointing Authority refused to amend the notice of competition at issue, it must be held that, irrespective of the fact that he has
locus standi in that regard, the applicant did not seek, in the application, the annulment of the contested decision in so far as, by that decision, the Commission’s Appointing Authority had refused to amend that notice of competition in the manner he recommended. Similarly, even if it were to be held that, by his application for admission to the competition, the applicant intended to challenge the legality of the notice of competition at issue, by way of a complaint contained in his request for admission to the competition, it must then be concluded that the contested decision constitutes a decision rejecting such a complaint. The applicant did not bring the present action within the period of 3 months and 10 days following notification of the contested decision.
46      It follows from all the foregoing considerations that the plea of inadmissibility raised by the Commission must be upheld and that the action must therefore be dismissed as inadmissible.
Costs
47      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. As the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby orders:
1.      The action is dismissed as inadmissible.
2.      Mr Diego Valiante shall pay the costs.
Luxembourg, 16 October 2020.
E. Coulon
J. Svenningsen
Registrar
President
*      Language of the case: English.