Provisional text
OPINION OF ADVOCATE GENERAL
EMILIOU
delivered on 15 January 2026 (1)
Cases C‑622/24 P and C‑623/24 P
VT
v
European Commission (C‑622/24 P)
and
UJ and Others
v
European Commission (C‑623/24 P)
( Appeal – Civil Service – Competition EPSO/AD/380/19 – Non-inclusion on the reserve list – Equal treatment – Repetition of written tests – Rule of correspondence between the application and the complaint – Interpretation of the competition notice regarding general competencies )
I.      Introduction
1.        The present appeals concern an open competition organised by the European Personnel Selection Office (EPSO) for the recruitment of administrators in the field of international cooperation and managing aid to non-EU countries. During the written tests there were widespread technical disruptions, affecting a significant number of candidates. In response, the selection board decided to offer all candidates – regardless of whether they had encountered technical difficulties – the choice either to retake those tests or to retain their initial results. The legality of that approach lies at the core of the present appeals.
2.        Several candidates, who were ultimately not included on the reserve list for that competition, challenged their non-inclusion before the General Court, alleging various irregularities in the conduct of the competition, including the repetition of the written tests. In particular, in the cases giving rise to the judgments in VT v Commission (2) and in UJ and Others v Commission(3), the applicants sought the annulment of the relevant decisions adopted by the selection board. The General Court dismissed the actions in both cases, rejecting the – nearly identical – pleas raised.
3.        By their present appeals in Cases C‑622/24 P and C‑623/24 P, the appellants seek to have those judgments of the General Court in VT v Commission and in
UJ and Others v Commission (‘the judgments under appeal’) set aside. To that end, they argue, essentially, that the General Court erred in law in failing to find a breach of the principle of equal treatment in the competition. In this respect, they claim that the selection board acted in breach of the principle of equal treatment by allowing all candidates – and not only those seriously affected by technical issues – to benefit from a retake of the tests. They further contend that those candidates who retook the tests enjoyed an unfair advantage, in that they had significantly more time to prepare. Lastly, they also challenge the General Court’s rejection of a plea they had raised, concerning the interpretation of the competition notice as to the assessment of candidates’ general competencies.
4.        Given the substantial overlap in the factual background and legal issues raised in the two cases, it appears appropriate to examine them in one joint Opinion.
II.    Legal framework
5.        Article 90(2) of the Staff Regulations of Officials of the European Union (4) (‘the
Staff Regulations’) reads as follows:
‘Any person to whom these Staff Regulations apply may submit to the appointing authority a complaint against an act affecting him adversely …
The authority shall notify the person concerned of its reasoned decision within four months from the date on which the complaint was lodged. If at the end of that period no reply to the complaint has been received, this shall be deemed to constitute an implied decision rejecting it, against which an appeal may be lodged under Article 91.’
6.        Article 91(2) of the Staff Regulations provides the following:
‘An appeal to the Court of Justice of the
European Union
shall lie only if:
–      the appointing authority has previously had a complaint submitted to it pursuant to Article 90(2) within the period prescribed therein, and
–      the complaint has been rejected by express decision or by implied decision.’
III. Factual background
7.        The background to the disputes giving rise to the present appeals is set out in detail in the judgments under appeal. The facts relevant to the present Opinion may be summarised as follows.
8.        On 5 December 2019, EPSO published, in the Official Journal of the European Union, the notice of open competition based on qualifications and tests, EPSO/AD/380/19, for the recruitment of administrators in the field of international cooperation and managing aid to non-EU countries, (5) with a view to establishing two reserve lists, one for grade AD 7 administrators and one for grade AD 9 administrators.
9.        The appellants in both cases took part in the competition for grade AD 7. After successfully passing the stages of the multiple-choice-question tests and of the selection based on qualifications (‘Talent Screener’), they participated in the assessment centre tests. These included two written tests: a case study and a field-related written test (together, ‘the written tests’), both of which were held on 9 September 2021 (‘the initial session’).
10.      By letter dated 4 October 2021, EPSO informed candidates that, due to technical problems that occurred during the initial session of the written tests, it had been decided that all candidates who had participated in that session would be offered two options: either (i) to retain the – at that time unknown – results of the initial session or (ii) to resit the written tests, thereby forfeiting their initial results.
11.      The new written tests took place on 10 November 2021 (‘the second session’). The appellant in Case C‑622/24 P (VT), as well as three of the eight appellants in Case C‑623/24 P (UN, US and UT), decided not to retake the test and to instead rely on the results of the initial session. The other five appellants in Case C‑623/24 P (UJ, UL, UP, UU and UV) opted instead to resit the tests.
12.      Eight candidates who encountered technical difficulties during the second session were allowed by the selection board to sit the tests in a third session, held on 10 December 2021. UJ was the only one of the appellants who was invited to and participated in that third session.
13.      On 5 May 2022, EPSO notified each of the appellants individually of the selection board’s decision not to include their names on the AD 7 reserve list (‘the non-inclusion decisions’), on the ground that they were not among the candidates who had obtained the highest aggregate marks in the assessment centre tests. As regards specifically one of the appellants in Case C‑623/24 P, UT, the rejection was instead based on the ground that he had not obtained the required minimum pass marks.
14.      Certain of the appellants (VT, UJ and UL) lodged requests for review, by the selection board, of the non-inclusion decisions concerning them. Those requests were rejected by decisions of 15 July 2022. All of the appellants subsequently lodged complaints before EPSO (as the competent appointing authority), pursuant to Article 90(2) of the Staff Regulations (‘the Article 90(2) complaints’), challenging the non-inclusion decisions and, where relevant, also the decisions rejecting their requests for review.
15.      In particular, the appellant in Case C‑622/24 P filed an Article 90(2) complaint on 10 October 2022, to which he did not receive an express reply. His complaint was therefore deemed, in accordance with Article 90(2) of the Staff Regulations, to have been implicitly rejected following the lapse of a period of four months, on 10 February 2023.
16.      The appellants in Case C‑623/24 P, along with several other candidates, jointly lodged their Article 90(2) complaints on 5 August 2022. Their complaints were considered to have been implicitly rejected on 5 December 2022, yet were subsequently also explicitly rejected by decisions of the appointing authority dated 13 March 2023.
IV.    Proceedings before the General Court and the judgments under appeal
17.      The appellants in both cases lodged actions before the General Court, under Article 270 TFEU, challenging their non‑inclusion on the competition reserve list.
18.      Formally, their actions were considered to be directed, in the cases of VT, UJ and UM, against the selection board’s decisions of 15 July 2022, rejecting their requests for review and, in respect of the other appellants who had not lodged such requests, directly against the non-inclusion decisions of 5 May 2022 (together, ‘the decisions at issue’).
19.      The appellants in both cases raised seven nearly identical pleas, alleging numerous irregularities in the competition, with a view to the annulment of the decisions at issue. By its judgments of 10 July 2024 in VT v Commission and in
UJ and Others v Commission, the General Court dismissed both actions in their entirety, while ordering the parties each to bear their own costs.
V.      Proceedings before the Court of Justice and the forms of order sought
20.      VT has appealed the judgment in VT v Commission, which is now pending as Case C‑622/24 P.
Likewise, 8 of the 13 applicants in UJ and Others v Commission have appealed that judgment in so far as it concerns them, now pending as Case C‑623/24 P.
21.      By their appeals, the appellants ask the Court to set aside the judgments under appeal, to uphold their actions at first and second instance and to order the European Commission to pay the costs of the proceedings at both instances. For its part, the Commission requests that the appeals be dismissed and the appellants be ordered to pay the costs.
VI.    Assessment
22.      In support of their appeals, the appellants rely on two grounds of appeal.
23.      The first ground, common to both appeals, concerns an alleged breach of the principle of equal treatment, resulting from the repetition of the written tests.
24.      The second ground challenges the General Court’s rejection of the fifth plea raised at first instance, which alleged infringement of the competition notice. While that plea was declared inadmissible in UJ and Others
v Commission, it was considered admissible but was dismissed as unfounded in VT v Commission. The appellants submit in both cases that the General Court erred in law in its respective conclusions.
25.      I shall begin by examining the first ground of appeal, regarding the principle of equal treatment (A), before addressing the second ground, assessing, in turn, the procedural and substantive questions specific to each case (B).
A.      First ground of appeal: breach of the principle of equal treatment
26.      By the first ground of appeal, the appellants claim that the General Court erred in law in failing to find a breach of the principle of equal treatment, as enshrined in Article 20 of the Charter
of Fundamental Rights of the European Union (‘the
Charter’), between the candidates in the competition.
27.      They argue that this breach resulted (i) from the fact that the possibility of resitting the written tests was offered to all candidates, irrespective of technical difficulties actually encountered (first part of the first ground of appeal); (ii) from the longer preparation time available for the second and third sessions of the written tests (second part of the first ground of appeal); and (iii) from the fact that the three sessions of the written tests – with particular reference to the third one – were held on different dates (third part of the first ground of appeal, raised as such only in Case C‑623/24 P).
28.      I shall consider each of these parts of the first ground of appeal in turn, after first setting out the relevant arguments of the parties. In relation to the first two parts, it will also be necessary to address the appellants’ interest in raising those claims. I will, exceptionally, address that interest after the substantive analysis, for
practical reasons of presentation, since setting out the alleged
inequality first will allow for a clearer explanation of the appellants’ interest in raising it, in light of their differing factual circumstances.
1.      First part of the first ground of appeal: resit offered to all candidates
29.      By the first part of the first ground of appeal, the appellants submit that the General Court
erred in law in holding (6) that the selection board had not breached the principle of equal treatment by offering all candidates the possibility to resit the written tests, regardless of whether they had experienced technical difficulties affecting their performance. (7)
30.      In that regard, the General Court found, in the judgments under appeal, that, although the solution chosen by the selection board allowed candidates unaffected by technical difficulties to sit the tests for a second time, that difference in treatment was difficult to avoid, in view of the scale and nature of the disruptions and the large number of candidates concerned. The General Court further considered that the measure served the legitimate objective of ensuring that all candidates who had experienced technical problems could benefit from a new session.
(a)    Main arguments of the parties
31.      As already indicated above, the appellants argue, in essence, that offering a resit not only to candidates who were affected by serious technical issues, but also to those who had faced few or no problems, amounted to treating different situations in the same way, in breach of the principle of equal treatment.
32.      They maintain that the solution adopted by the selection board was not justified by the objective of the competition (namely, to select the most competent candidates, in accordance with Article 27 of the Staff Regulations) and that it was disproportionate, going beyond what was necessary to remedy the irregularities caused by the technical disruptions.
The appellants accordingly claim that the General Court failed to recognise that the selection board had not taken all necessary measures to limit the risk of inequality to that inherent in any examination, but had created avoidable inequality among candidates.
33.      The Commission disputes the appellants’ claim, recalling the broad discretion of selection boards in determining corrective measures when irregularities arise and the correspondingly limited scope of judicial review. (8) It further emphasises that, according to settled case-law, every competition embodies an inherent risk of inequality (9) and thus a breach of the principle of equal treatment can only be established where the selection board failed to limit that risk to what is normally inherent in any examination.(10) In its view, that was not the case here and the General Court was right to conclude, in essence, that the solution adopted was justified in the circumstances.
34.      In that regard, the Commission explains that, due to the diffuse and varied nature of the verified technical disruptions, it would have been impossible to ascertain their extent and the precise consequences for each candidate. (11) Consequently, it contends that offering all candidates the option to retake the tests, but not making it an obligation to do so, was the only feasible and fair solution, consistent with the principles of equal treatment, proportionality and good administration.
35.      The Commission posits that, even if some candidates who had not experienced technical difficulties decided to resit, they did so by forfeiting their initial results and, thus, re-entered the competition on the same terms as other candidates. Therefore, they cannot be regarded as having had ‘more chances’ in the competition. Finally, the Commission also emphasises that the appellants have not demonstrated how they were individually disadvantaged by the solution adopted.
(b)    Analysis
36.      As a preliminary point, it must be recalled that, while selection boards enjoy broad discretion with regard to the conditions, content and organisation of a competition (which must be considered to include the adoption of corrective measures), that discretion must be exercised in line with the principle of equal treatment. (12)
37.      That principle requires, according to settled case-law, that comparable situations must not be treated differently and that different situations must not be treated in the same way, unless such treatment is objectively justified. (13)
38.      In the present case, it is, in my view, clear that different situations were treated in the same way: candidates who had faced technical issues with a severe impact on their tests were treated akin to candidates who had experienced merely minor or no difficulties, since they were all offered the possibility of a second session.
39.      While, as the Commission suggests, all candidates ultimately had only one attempt in the written tests that counted (since only one set of results was retained), that is not where the inequality alleged by the appellants lies. It is rather that the blanket offer of the choice of a retake entailed an additional benefit for candidates who had not been adversely affected by technical issues: the opportunity to improve a potentially unsatisfactory initial performance or, conversely, to retain a satisfactory one, without being obliged to resit. In other words, they had the advantage of choosing which of their attempts would count. By contrast, candidates who, due to severe technical problems, were precluded from participating effectively in the initial session had no such real choice: for them, the second session was, in practice, the only and final opportunity they had in the written tests. (14)
40.      The General Court, in fact, acknowledged that the above constituted a difference in treatment, but considered it ‘difficult to avoid’. It is therefore necessary to examine whether, as the General Court essentially considered, that difference was justified in the circumstances.
41.      Pursuant to Article 1d(6) of the Staff Regulations and in line with settled case-law, a measure giving rise to a difference in treatment may be justified if it pursues a legitimate objective of general interest in the framework of staff policy and is proportionate to that objective. (15)
42.      As regards, first, the objective pursued, it can be agreed with the Commission that the solution adopted by the selection board pursued the legitimate objective of remedying the irregularities caused by the extensive technical problems during the initial session of the written tests, in order to restore the conditions of the competition.
43.      As regards, second, the proportionality of the measure in the light of that objective, what must be considered, pursuant to the case-law of the Court, is whether the measure (i) was suitable for attaining that objective; (ii) did not go beyond what was necessary to that end; and (iii) was proportionate stricto sensu, striking a fair balance between the interests at stake. (16)
44.      As to the first element of suitability, I would observe that the solution of offering a resit to all candidates could be regarded as capable of addressing the irregularities of the initial session. (17) As the General Court considered, that solution enabled all candidates affected by technical issues to complete the tests under regular conditions.
45.      However, it is with respect to the element of necessity (and without there being a need to consider proportionality
stricto sensu), that, in my view, that measure falls short. In considering the necessity of a measure, the key question is whether less restrictive alternatives to the principle of equal treatment could have achieved the same objective with equal effectiveness. In my view, that is certainly the case in the situation at issue.
46.      It may be noted, first, solely for context, that, in principle, when individual candidates in a competition encounter technical problems for which they are not responsible, EPSO, following verification, offers them corrective measures, such as a targeted resit. (18) This is what was done for example in the present case with respect to the eight candidates who were offered a third session of written tests, and it is also the solution that the appellants can be understood to regard as appropriate. However, as explained by the Commission, this option was unfeasible in the competition at issue (see point 34 above).
47.      Nonetheless, to my mind, a more appropriate alternative was available: to invalidate the initial session – whose integrity must be regarded as seriously compromised in the circumstances and considering the exceptionally large number of candidates affected (19) – and organise a new session for all candidates. That approach would have – to use the wording of the Commission – restored the conditions of the competition at the point where the irregularities had occurred, without conferring upon certain candidates the advantage of a choice between performances. (20)
48.      In its response in Case C‑623/24 P, the Commission acknowledged that such an alternative approach was conceivable, but contended that it would have unfairly deprived candidates unaffected by the serious technical issues of results legitimately obtained during the initial session. I am not unsympathetic to that concern – which is presumably also driven by a desire to prevent further complaints. However, the wish to avoid depriving those candidates of their initial results cannot justify conferring on them an advantage over other candidates, which is precisely the effect of the solution adopted, as explained above. That conclusion is all the more compelling given that the candidates cannot plausibly be said to have acquired a right to retain their initial results or to be exempt from retaking the written tests should circumstances so require. No such right flows from the competition notice, and there is nothing to indicate – nor has the Commission asserted – that the candidates received precise, unconditional and consistent assurances capable of giving rise to legitimate expectations (21) that their initial results would be maintained irrespective of a possible subsequent annulment of the competition (or of a stage thereof) and despite the exceptional, unforeseeable circumstances at issue. (22)
49.      It follows, in my view, that the solution adopted by the selection board exceeded what was necessary to achieve the objective of remedying the irregularities due to the large-scale technical issues of the initial session of the written tests in order to restore the conditions of the competition. Instead, the solution adopted effectively distorted those conditions, creating a new inequality between candidates, which therefore went beyond what is normally inherent in any competition.
50.      In the light of the foregoing, I would conclude that the General Court erred in law in holding, in the judgments under appeal, that the selection board had not infringed the principle of equal treatment by offering all candidates the possibility, but not the obligation, to resit the written tests.
51.      The above conclusion notwithstanding, it is necessary to consider whether all of the appellants have an interest in invoking this breach of the principle of equal treatment – an issue also alluded to in the judgments under appeal.
52.      While, as the appellants correctly observe, they are not required to demonstrate that certain candidates in fact benefited from an advantage, (23) that does not absolve them from the need to establish that they themselves were personally concerned by the alleged inequality. According to settled case-law an applicant may not act in the general interests of the law or of the institutions; in an action for annulment, he or she may only advance pleas that concern him or her personally. (24)
53.      As the foregoing analysis shows (and as the appellants themselves accept), the inequality of treatment stemming from the blanket offer of a resit placed at a disadvantage, at least in principle, those candidates who were seriously affected by the technical failures and who, accordingly, had no real choice but to retake the written tests. The General Court was right to observe that candidates who, although offered a resit, elected not to make use of it and to retain their initial results must be regarded as having been satisfied with their original performance and, therefore, as falling outside the category of those severely affected by the disruptions. It is true that the appellant in Case C‑622/24 P has suggested in theoretical terms that candidates who encountered serious technical difficulties might nonetheless have decided against resitting for reasons such as professional commitments. However, none of the appellants has actually maintained that this was the case for them.
54.      Accordingly, it is my view that those of the appellants who chose not to take part in the second session of the written tests (see point 11 above) cannot claim to have a personal interest in raising the first part of the first ground of appeal.
55.      For the appellants who did take part in the second session (namely, UJ, UL, UP, UU and UV), the situation is less straightforward. The Commission has maintained that it would be impossible to determine with certainty whether the candidates in the second session did indeed all face sufficiently serious technical issues in the initial session. However, the possibility that they did cannot be excluded. In view of that uncertainty, I consider that such appellants may be afforded the benefit of the doubt and be accepted as having an interest in raising this part of the first ground of appeal.
56.      It follows from all of the foregoing, in my view, that the first part of the first ground of appeal must be upheld with respect to appellants UJ, UL, UP, UU and UV and rejected for the remaining appellants.
2.      Second part of the first ground of appeal: longer preparation time for later sessions
57.      By the second part of the first ground of appeal, the appellants contend that the General Court erred in law (25) in failing to find a breach of the principle of equal treatment in the fact that the participants in the second and third sessions of the written tests benefited from a significantly longer preparation period than those in the initial session.
58.      More specifically, the appellants had claimed before the General Court that the second and third sessions were of a lower degree of difficulty than the initial session, as regards both of the written tests, that is to say, the case study and the written test in the field. Concerning in particular the latter test, they had argued that since the scenario that it was based on was the same across the three sessions and had been published prior to the initial session, candidates in the subsequent sessions had an unfair advantage, both because of the similarity of the tests and due to a longer preparation time. (26)
59.      The General Court had dismissed those arguments. It held, on the one hand, that, despite being based on the same underlying scenario (albeit with two versions (27)), the specific subject of the note to be drafted in each of the sessions differed significantly and sufficiently. On the other hand, as regards the additional preparation time, the General Court held that no significant advantage for candidates in the subsequent sessions could be inferred therefrom, since there was nothing to suggest that the selection board had intended to limit the time available to candidates to familiarise themselves with the published scenario.
(a)    Main arguments of the parties
60.      The appellants note, first, that the scenario forming the basis of the written test in the field was published in August 2021, thereby affording candidates in the second session of November 2021 and the third session of December 2021 a significantly longer preparation period compared to those who only took part in the initial session of September 2021. They argue that this
disparity in preparation time constitutes a difference in the objective conditions of the competition, regardless of the intentions of the selection board or the variations in the test topics. They hence conclude that, contrary to the General Court’s finding, there had been, as a result, a breach of the principle of equal treatment.
61.      The Commission contends that the appellants are, in essence, attempting to call into question the General Court’s factual assessment that there was no significant advantage conferred on candidates in later sessions due to the additional preparation time. Hence, the Commission submits, this part of the appeal does not raise a point of law and should be dismissed as inadmissible.
62.      In the alternative, as regards the merits, the Commission posits that the candidates’ performance was not assessed on the basis of the time they had to familiarise themselves with the scenario, but on the basis of – what the General Court held to be – sufficiently distinct topics for each test. It follows, in the Commission’s view, that the length of preparation time had no bearing on the evaluation of the candidates’ performance.
(b)    Analysis
63.      First, on the admissibility of this second part, I do not share the Commission’s view that the appellants call into question the assessment of facts by the General Court. The appellants allege an error in law in the General Court’s reasoning, in so far as it considered that the additional preparation time did not entail a breach of the principle of equal treatment, merely because the selection board had not intended to limit that time. Essentially, what is at issue is whether the established factual circumstance of a longer preparation time for certain candidates amounts to a difference in the objective conditions under which the competition was held, contrary to the principle of equal treatment; that determination is a question of law.
In my view, the Commission’s objection of inadmissibility cannot therefore be upheld.
64.      Second, as to the substance, it must be clarified that the appellants had advanced two distinct arguments, at first instance, to support their claim that the second and third sessions were of a lower degree of difficulty than the first: (i) that the tasks required of candidates were very similar across the sessions; and (ii) that candidates in subsequent sessions benefited from more preparation time, as the underlying scenario had been published well in advance. By finding that the topics of the written test in the field were sufficiently different across the three sessions, the General Court addressed only the first of these points (which is not at issue in the present appeals). However, it does not follow – contrary to what the Commission appears to argue – that this finding dispenses with the second point, namely whether the disparity in preparation time could itself affect the relative difficulty of the sessions. The distinct nature of the test topics does not preclude the possibility that unequal preparation time may nonetheless have influenced candidates’ performance. The General Court instead addressed this second argument concerning the disparity in preparation time separately, as indicated in point 59 above, concluding essentially that this disparity did not entail a breach of the principle of equal treatment, because the selection board had not intended to limit the preparation time for any candidate. It is that conclusion which is at issue here.
65.      Having made that clarification, I recall that, according to the case-law, the principle of equal treatment requires that all candidates for the same competition take the same test in the same conditions and that the tests present substantially the same degree of difficulty for all candidates. (28)
66.      In the judgments under appeal, the General Court held that the longer preparation time did not constitute a significant advantage for candidates in the subsequent sessions and appeared to base this conclusion solely on the absence of any apparent intention by the selection board to limit that time. However, in my view, that approach overlooks the objective consequences of additional time to prepare known test materials. It is, however, those consequences that are, in my view, decisive in assessing whether there had been unequal treatment. Indeed, in the light of the case-law cited in the preceding point, the relevant question is whether a disparity in preparation time
resulted in candidates participating in a competition under objectively different conditions – a determination that depends on the circumstances of the case.
67.      While not every disparity in preparation time can be considered material, the particular circumstances of the present case, as established by the General Court, render it, in my view, substantial. Candidates in the second and third sessions benefited respectively from two or three times the preparation period available for the initial session, to familiarise themselves with the same pre-published scenario. That significantly longer preparation time on the same scenario – coupled, inevitably, with a certain degree of insight, from the initial session, into how that scenario might be used – makes, in my view, an appreciable difference in the conditions under which the candidates in the three sessions sat the written test in the field.
68.      As with the first part of this ground of appeal, it must therefore be assessed whether this difference in treatment was objectively justified and proportionate. No specific justification has been advanced by the Commission in that regard. It can only be surmised that the approach of maintaining the same pre-published scenario for the resits of the written test in the field (which resulted in the longer preparation time) pursued the legitimate objective of ensuring a comparable level of difficulty across sessions. Even on that presumption, however, the approach taken does not appear to me to be proportionate, under the circumstances, particularly due to the availability also in this respect of less restrictive alternatives. Even if scheduling all sessions within a narrower time
frame was unfeasible due to administrative constraints, other alternatives could have been considered, in my view, such as publishing a new scenario of equivalent difficulty or, as discussed in the previous section, rerunning the written tests for all candidates on equal terms.
69.      It follows, in my view, that the additional preparation time enjoyed by candidates in subsequent sessions of the written test in the field entailed a breach of the principle of equal treatment.
70.      Consequently, I consider that the General Court erred in law in finding, in the judgments under appeal, that no such breach had occurred.
71.      As with the first part of the first ground of appeal, however, this conclusion does not concern all of the appellants. As already held by the General Court and accepted by the appellants, only those among them who did not retake the written tests – and thus did not benefit from a longer preparation period for the written test in the field may invoke this second part of the first ground of appeal. Those appellants are VT, UN US and UT. (29)
72.      However, it seems to me that a distinction must be drawn in the case of UT. Although not specifically addressed by the parties to the appeal, it follows, to the best of my understanding, from paragraph 5 of the judgment in UJ and Others v Commission that UT was excluded from the reserve list because he had failed to obtain the minimum pass marks in the assessment centre.
73.      In that regard, the competition notice clearly subjected inclusion on the reserve list to two cumulative conditions: (i) obtaining all pass marks in the assessment centre; and (ii) achieving one of the highest overall marks
among candidates. Crucially, UT failed to meet the first of those conditions. His non-inclusion on the reserve list therefore did not result from the comparative assessment among candidates as to the highest overall mark – where the alleged unequal treatment may have influenced his relative ranking – but from his failure to satisfy a threshold requirement.
74.      Even considering, as concluded above, that the ground of appeal on breach of equal treatment is well founded and even assuming that, in the absence of that breach, other candidates might have obtained lower marks or failed, that would still not alter UT’s own marks, which fell below the minimum threshold. That is because the inequality alleged in the present case concerns unwarranted opportunities afforded to other candidates to perform better; it does not concern any adverse effect on UT’s own performance. It follows, in my view, that the present
ground of appeal must be dismissed in UT’s case. (30)
75.      Consequently, since the errors in law in the judgment in UJ and Others v Commission identified above cannot lead to the annulment of the decision not to include UT on the reserve list, the operative part of that judgment remains unaffected in so far as he is concerned. Instead,
in my view, the grounds of the judgment must be substituted in his case with the considerations set out above. (31)
76.      In the light of the foregoing, I would conclude that the second part of the first ground of appeal must be upheld in respect of appellants VT, UN and US, but rejected for the remaining appellants.
Intermediate conclusion
77.      It follows from the conclusions reached in Sections A.1 and A.2 above that the judgments under appeal are vitiated by errors of law and must, in my view, be set aside in respect of all of the appellants – with the exception of UT.
78.      In case
the Court
disagrees with the above assessment, I shall examine the third part of the first ground of appeal, as well as the second ground of appeal (which in any event remains relevant for UT).
3.      Third part of the first ground of appeal: written tests held on different dates
79.      By the third part of the first ground of appeal, advanced only in Case C‑623/24 P, the appellants submit that the General Court erred in law in paragraphs 119 to 122 of the judgment in UJ and Others v Commission in failing to find that the holding of the various sessions of the written tests – in particular the third session – on different dates was in breach of the principle of equal treatment.
(a)    Main arguments of the parties
80.      In support of this part of their appeal, (32) the appellants rely primarily on the judgment in Prais (33) (and in other points throughout the appeal also on the judgment in OJ (34)) to argue that the principle of equal treatment, according to those judgments, requires that all candidates sit the written tests simultaneously. On that basis, they claim that the organisation of written tests over three distinct dates is, in itself, incompatible with the principle of equal treatment.
81.      The Commission contends that the case-law relied on by the appellants is not relevant to the circumstances of the present case. It adds that, in any event, the principles drawn from that case-law were respected, since at issue was not the organisation of tests on different dates but rather the repetition of the same session of tests, owing to technical problems, with each session taking place on one day.
(b)    Analysis
82.      In the first place, it should be noted that the judgments in Prais and in
OJ concerned requests by individual candidates that competition tests be organised on a different date for them for personal reasons. Those requests had been refused by the competent appointing authorities and the refusals had been upheld in the respective judgments, on the basis, essentially, that allowing those individuals to sit the exams on different dates could compromise the requirement that tests be carried out under the same conditions for all candidates. The Commission rightly points out, therefore, that those situations differ markedly from the context at issue, where the selection board, confronted with widespread technical failures, had to adopt remedial measures.
83.      In any event, those judgments cannot be understood as laying down the rigid proposition that the appellants seek to derive from them, namely that the mere fact that written tests in a competition are held on different dates necessarily amounts, in itself, to a breach of the principle of equal treatment.
84.      First, in both of the abovementioned judgments, it was suggested that the requests for different dates could have been accommodated in different circumstances. (35)
85.      Second, the reasoning in those judgments was premissed on the consideration that tests in a competition must be carried out under the same conditions for all candidates. While admittedly simultaneous testing is generally the most effective way to guarantee uniform conditions, that logic cannot be applied as an absolute rule. Indeed, such an absolute reading, as advanced by the appellants, would preclude the adoption of corrective measures following technical or other disruptions and even the re-testing of candidates where the decision to exclude those candidates from a competition has been annulled by the EU Courts (which is, paradoxically, the outcome that the appellants can stand to gain from the present appeals).
86.      Hence, contrary to what the appellants assert, the principle of equal treatment does not require that all tests must always take place on the same day. What is required,
rather, is that any divergence in timing must not entail a difference in the objective conditions under which candidates are assessed (for example, candidates sitting tests at a later date must not benefit from prior knowledge of the test topics – which, therefore, have to differ while maintaining an equivalent level of difficulty).
87.      Accordingly, in my view, there was no breach of the principle of equal treatment, in itself, merely because the written tests were conducted on three different dates. The concerns relating to equal treatment arise rather from the specific arrangements governing the organisation of those sessions – in particular the blanket resit and the significantly longer preparation time on a known scenario – which are matters already examined under the first two parts of the first ground of appeal. Taken in isolation, the third part of that ground is therefore, in my view, unfounded and must be rejected.
B.      Second ground of appeal: errors in law in the rejection of the fifth plea raised at first instance
88.      The appellants’ second ground of appeal concerns the rejection by the General Court of the fifth plea raised at first instance. That plea was essentially identical in both cases and, as will be explained in more detail
below, alleged an infringement of the competition notice as regards the competencies to be assessed in respect of the candidates. However, the General Court’s rejection of that plea was based on different reasons in the two cases.
89.      In particular, the General Court rejected that plea as inadmissible in UJ and Others v Commission, as it had not been raised by the appellants in their Article 90(2) complaints and, as such, did not respect the rule of correspondence between the complaint and the action. On the other hand, in VT v Commission, the General Court assessed the merits of the plea and rejected it as unfounded.
90.      Thus, the appellants in Case C‑623/24 P challenge the finding of inadmissibility, while the appellant in Case C‑622/24 P challenges the General Court’s assessment of the merits. I shall examine the corresponding grounds of appeal in turn, starting with the question of admissibility (1) before dealing with the alleged error in the assessment of the substance of the original plea (2).
1.      Second ground of appeal in Case C‑623/24 P: the rule of correspondence between the complaint and the action
91.      By their second ground of appeal, the appellants in case C‑623/24 P submit that the General Court erred in law (in paragraphs 206 and 207 of the judgment in UJ and Others v Commission), in rejecting their fifth plea as inadmissible due to failure to comply with the rule of correspondence between the administrative complaint and the action.
(a)    Main arguments of the parties
92.      While the appellants do not dispute that their Article 90(2) complaint contained no reference to the specific plea at issue, they claim that the General Court’s application of the rule of correspondence in their case was unduly strict.
93.      In
that regard, they argue that the rule of correspondence is purely a case-law construct, without any explicit basis in Article 270 TFEU, the Staff Regulations or the Rules of Procedure of the General Court. They therefore view it as an unwritten procedural limitation which, applied strictly, infringes the right to effective judicial protection under Article 47 of the Charter. Relying in particular on the former Civil Service Tribunal’s judgment in Mandt, (36) the appellants call for a flexible interpretation of that rule, whereby it should suffice that in their Article 90(2) complaints they disputed
the substantive – and not merely the procedural – legality of the competition notice.
94.      The appellants further submit that the rationale of the rule – to allow for an amicable settlement of the dispute between the administration and the complainant – cannot justify its strict application in cases such as theirs, where there was no explicit response to their complaint by the appointing authority within the time limits set out in Article 90(2) of the Staff Regulations and thus an amicable settlement was not realistically under consideration.
95.      The Commission considers that the second ground of appeal must be dismissed as ineffective or manifestly unfounded, since, in its view, the appellants essentially seek to avoid their obligation to submit an administrative complaint, in line with the pre-litigation procedure mandated by Article 90(2) and Article 91(2) of the Staff Regulations. The Commission further notes that the ‘flexible’ approach adopted in the judgment in Mandt has expressly been rejected by the General Court, acting as court of appeal, in subsequent cases. Lastly, it argues that the nature of the reply to the complaint, whether explicit or implicit, is irrelevant to the application of the rule of correspondence and that in any event an explicit decision was issued in the present case before expiry of the time limit for bringing an action.
(b)    Analysis
96.      According to settled case-law, the rule of correspondence in EU civil service disputes requires, on pain of inadmissibility, that an action brought under Article 270 TFEU may contain only heads of claim based on the same cause of action as that relied on in the prior mandatory complaint under Article 90(2) of the Staff Regulations. The action may develop those heads of claim by putting forward pleas in law and arguments which do not necessarily appear in the complaint but are closely connected with it. This rule is intended to enable the amicable resolution of disputes by ensuring that the appointing authority is placed in a position to ascertain with sufficient precision the criticisms directed against the contested act. (37)
97.      While it is true that the rule of correspondence is not expressly set out in Articles 90 and 91 of the Staff Regulations (or in any other applicable provisions), it cannot for that reason be dismissed as an unfounded judicial construct. Those provisions impose a prior administrative complaint as a prerequisite for judicial action and would be rendered meaningless – and open to abuse – if any complaint, even one unrelated to the object or cause of the subsequent action, sufficed in that regard.
98.      It follows that the action must have a link with the complaint, which cannot, in my view, be purely formal or overly abstract. Yet this is, in essence, what the appellants advocate for, in relying on the judgment in Mandt.
99.      In that judgment (and in a limited number of cases that followed it), the former Civil Service Tribunal took the view that the rule of correspondence should be interpreted in a more flexible manner, in view of the informal nature of the pre-litigation procedure, the typical absence of assistance by a lawyer at that stage and the right to effective judicial protection under Article 47 of the Charter. On that basis, the former Civil Service Tribunal had accepted that pleas raised in the action could be deemed to be ‘closely connected’ to those in the complaint, if they both related to the substantive legality (or, conversely, the procedural legality) of the contested act, even if they concerned different aspects thereof.
100. However, as the Commission has rightly observed, the General Court – in its capacity as a court of appeal for the Civil Service Tribunal –curtailed that overly broad approach in subsequent cases, bringing the case-law back into line with earlier judgments of the Court of Justice on the rule of correspondence. (38) In my view, this was the correct approach. As the General Court held in the judgment in Moschonaki, (39) the concepts of substantive and procedural legality are too broad and abstract to ensure a meaningful connection between the pleas raised at the pre-litigation stage and those relied on in the action. That connection is nevertheless essential if the pre-litigation procedure is to attain its purpose of an amicable resolution of disputes.
101. Accordingly, the appellants’ reliance on the judgment in Mandt to argue that it is sufficient, for the purposes of bringing any plea relating to substantive legality before the Court, merely to have invoked the substantive legality of the competition or of the decisions at issue in their Article 90(2) complaint cannot be upheld. Such a reading would deprive the pre-litigation procedure of its very function. Where an Article 90(2) complaint does not even hint at a specific grievance concerning the act at issue, the appointing authority is unable to ascertain with the requisite clarity the concerns of the person concerned and thus cannot meaningfully reconsider the act, amend or withdraw it, or pursue an amicable settlement.
102. The appellants have further argued that precisely this purpose of an amicable resolution is defeated where, as in their case, no explicit decision has been adopted within the four-month period prescribed by Article 90(2) of the Staff Regulations. In such circumstances, they submit, the rule of correspondence should be applied less strictly – if at all. I do not share that view.
103. Like the Commission, I consider that the nature of the appointing authority’s response to the complaint, whether implicit or explicit, is irrelevant and does not alter the requirements of the rule of correspondence. (40) Moreover, it seems to me that the appellants’ reasoning is flawed in that it is retrospective: they infer from the subsequent implicit rejection that the complaint stage was never capable of serving its purpose, and they then use that assertion to argue that the complaint need not have included the plea
at issue in the first place. However, the content of the complaint cannot be determined based on how the appointing authority eventually responded to it. Besides, the possibility, even in cases of an implicit rejection, that had a specific grievance been clearly raised from the outset, the appointing authority might have adopted a different stance, for example upholding the complaint and exploring the possibility of an amicable settlement, cannot be excluded.
104. In view of the above, it must be concluded that the General Court did not err in law in rejecting
the appellants’ fifth plea at first instance
as inadmissible, since – as is undisputed – no relevant head of claim or any closely connected argument was raised in their Article 90(2) complaint. Consequently, in my view, the second ground of appeal in Case C‑623/24 P must be dismissed as unfounded.
105. I note that the appellants have also set out, for completeness, their position on the substance of their original fifth plea. Their argumentation in that respect corresponds to that of the appellant in Case C‑622/24 P, which I will address in the following section. Given the conclusions which will be reached in that regard below, I consider that even if the plea at issue had been found to be admissible for the appellants in Case C‑623/24 P, it would in any event have failed on the merits.
2.      Second ground of appeal in Case C‑622/24 P: infringement of the competition notice
106. By the second ground of appeal, the appellant in Case C‑622/24 P posits that the General Court erred in law, in paragraphs 187 to 193 of the judgment in VT v Commission,
in its interpretation of the competition notice as to which competencies should have been assessed in respect of the candidates.
107. More specifically, before the General Court, the appellant had claimed that the selection board had acted in breach of the competition notice, because it had assessed the team-management skills of AD 7 candidates (such as himself) although, in his view, according to the notice, those skills should have been evaluated only in respect of candidates for grade AD 9.
108. The General Court had rejected that plea, finding that the appellant was mistakenly relying on the section of the competition notice describing the tasks that recruited candidates could be expected to perform (‘the task section’), where it stated, only for AD 9 administrators, that they ‘may be required to … manage a team of professionals’. On the contrary, the section of the competition notice on how candidates would be selected (‘the selection section’) provided that eight general competencies, including ‘leadership’, were to be evaluated at the assessment centre for all candidates, regardless of grade. On that basis, the General Court concluded that, in evaluating the leadership competency of the appellant, the selection board had acted in full compliance with the provisions of the competition notice.
(a)    Main arguments of the parties
109. The appellant argues that the General Court’s assessment is vitiated by an error in law because it failed to adhere to the wording of the competition notice (namely, the legal framework of the competition), which clearly reserved ‘team management’ as a task only for grade AD 9 posts, and wrongly treated that concept as being interchangeable with ‘leadership’.
110. Relying on the judgment in Spisto, (41) the appellant contends that the nature of the tasks to be performed upon recruitment constitutes a fundamental interpretative criterion of the competition notice and must therefore inform the assessment of candidates. He submits, in essence, that the selection section of the notice could not be read in isolation from the tasks section, but should instead have been interpreted in the light of it.
111. It follows, in his view, that skills related to team management ought to have been assessed only in respect of candidates for grade AD 9. Alternatively, he adds that, even if the leadership competency had to be assessed for all candidates, the selection board ought to have at least applied different assessment criteria for each of those grades.
112. The Commission contends that the second ground of appeal is unfounded. It stresses that the competition notice clearly provided that ‘leadership’, as a general competency, would be assessed for all candidates at the assessment centre, irrespective of the grade applied for. In that respect, it notes that, in EPSO competitions, general competencies are always assessed for all grades independently of the specific tasks of successful candidates.
113. Consequently, it submits that the distinction between grades AD 7 and AD 9 was not relevant at the stage of the assessment centre, but only at the stage of the Talent Screener (where professional experience relevant to the tasks to be undertaken by successful candidates was taken into account). The Commission accordingly contends that the appellant’s reliance on the judgment in Spisto is misplaced because that case concerned the evaluation, at the Talent Screener stage, of professional experience, not the assessment of general competencies. In addition, the Commission argues that the General Court did not treat ‘leadership’ and ‘team management’ as interchangeable. Rather, it examined each concept in its proper context and correctly found that the selection board had evaluated only the general competency of leadership, as provided for in the notice.
(b)    Analysis
114. First, it must be clarified that the appellant’s formulation of his claim, namely that the selection board assessed his team-management skills, is factually imprecise. As the judgment under appeal makes clear (in paragraphs 53 and 192), what the selection board assessed was the leadership competency, for which it took into account the ability to ‘manage, develop and motivate people to achieve results’. As noted by the General Court, that competency was one of eight general competencies to be assessed at the assessment centre for all candidates, irrespective of grade, as expressly provided in the selection section of the competition notice.
115. On this basis, the appellant can be understood to claim, in essence, that, because successful candidates at grade AD 7 would not be expected to manage a team as part of their tasks, the leadership competency should either not have been assessed for them at all or should have been assessed using different criteria from those used for AD 9 candidates. Both of these propositions, however, stem from a fundamental misunderstanding of, on the one hand, the concept of leadership as a competency, and, on the other hand, the nature of the general competencies assessed in EPSO competitions.
116. In this respect, it may first be noted that, while ‘leadership’ may encompass aspects of managing others, it is not a competency reserved for those holding formal managerial posts. An individual may be required to lead a project or handle a file, thus having to coordinate and guide colleagues, for example, without being the manager of a team. In considering that ‘leadership’ may only be fully relevant for AD 9 candidates as potential team managers, the appellant seems to be conflating the concepts of team management and leadership.
117. As a second point, I note that EPSO along with the recruiting institutions and bodies it serves, in exercising their discretion to determine the abilities that they may require of candidates in competitions, (42) have defined certain general competencies regarded as essential for any position in those institutions or bodies. ‘Leadership’ is one such competency, applicable for all administrator posts, across grades, including entry-level AD 5 posts. (43)
118. It is for that reason that the competition notice makes no distinction, for the purposes of competency assessment, between candidates for grade AD 7 and those for grade AD 9. Accordingly, the task section of the notice, which sets out the tasks associated with each grade, is not relevant for the assessment of general competencies. In this context, the selection board could not disregard the clear wording of the notice, which forms the legal framework of the competition and defines the limits of the board’s discretion; (44) instead, it was bound to assess the leadership competency for all candidates, on the basis of the same criteria, irrespective of grade.
119. It must be concluded, therefore, that the General Court did not err in law in holding that the selection board had not infringed the competition notice, contrary to the appellant’s claim.
120. This conclusion is not called into question by the appellant’s argument based on the judgment in Spisto. That judgment does not support the appellant’s claim; on the contrary, it confirms the conclusion reached above.
121. In the case giving rise to the judgment in
Spisto, a candidate in an EPSO competition complained that, at the Talent Screener stage, the selection board had assessed – and found wanting – her experience in team management, even though neither the selection criteria nor the description of tasks to which those criteria referred contained any relevant mention of such experience. The General Court held that, by introducing this additional criterion of ‘team management’ at the Talent Screener stage, the selection board had failed to comply with the terms of the competition notice.
122. The
distinction between that case and
the present case is clear, since Spisto concerned the Talent Screener stage, which is explicitly intended to assess candidates’ experience related to the tasks to be performed. It cannot be inferred therefrom, as the appellant argues, that the description of tasks (which in the competition at issue in the present appeals differed according to the grade) is a criterion that must guide the interpretation of a competition notice as regards all stages of the competition. On the contrary, the General Court emphasised, in paragraphs 46 and 47 of its judgment in that case, that the different stages of the competition served distinct purposes, the objective of the Talent Screener being to assess the candidates’ professional experience and stated qualifications, while the assessment centre stage is intended to assess their abilities and competencies in practice. For that reason, the General Court considered that the criteria relevant to one stage of the competition cannot influence the assessment at another stage. It is also worth mentioning that the General Court also noted, in passing, in the judgment in Spisto that the leadership competency cannot be interpreted as necessarily involving team management, a point fully consistent with the analysis set out above. Consequently, far from supporting the appellant’s argument, the judgment in Spisto rather supports the conclusion reached above that the General Court was right to hold, in the judgment under appeal, that the selection board had acted in accordance with the competition notice.
123. In the light of the foregoing, the second ground of appeal in Case C‑622/24 P must, in my view, be dismissed as unfounded.
VII. Consequences of the assessment
124. As concluded in point 77 above, in my view, the first ground of appeal is well
founded in respect of all of the appellants, with the exception of UT. Consequently, the judgments under appeal should be set aside in respect of appellants VT, UJ, UL, UN, UP, US, UU and UV.
125. In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, the Court may, after quashing a decision of the General Court, refer the case back to the General Court for judgment or, where the state of the proceedings so permits, give itself final judgment in the matter.
126. In the present case, I am of the view that the state of the proceedings permits the Court to take a final position in the case and to conclude that the decisions at issue, contested by the appellants for whom the first ground of appeal has been upheld, must be annulled.
VIII. Costs
127. Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is well
founded and the Court itself gives final judgment in the case, the Court is to make a decision as to costs. Article 138(1) of those rules, applicable to appeal proceedings pursuant to Article 184(1) thereof, provides that the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
128. In the present case, the appellants have applied for costs. Since the appeals should, in my view, be upheld, the Commission should be ordered to pay the costs of these proceedings, both at first instance and on appeal.
IX.    Conclusion
129. In the light of the above assessment, I propose that the Court should:
–        In Case C‑622/24 P:
–        set aside the judgment of 10 July 2024, VT v Commission (T‑216/23, EU:T:2024:465);
–        annul the decision of 15 July 2022, by which the selection board for open competition EPSO/AD/380/19 decided, after review, not to include VT on the reserve list for the recruitment of administrators at grade AD 7 in the field of international cooperation and managing aid to non-EU countries;
–        order the Commission to bear the costs of the proceedings, both at first instance and on appeal.
–        In Case C‑623/24 P:
–        set aside the judgment of 10 July 2024, UJ and Others v Commission (T‑120/23, EU:T:2024:464), in so far as it concerns UJ, UL, UN, UP, US, UU and UV;
–        dismiss the appeal with respect to UT;
–        annul the decisions of 15 July 2022, by which the selection board for open competition EPSO/AD/380/19 decided, after review, not to include UJ and UL on the reserve list for the recruitment of administrators at grade AD 7 in the field of international cooperation and managing aid to non-EU countries;
–        annul the decisions of 5 May 2022, by which that selection board decided not to include UN, UP, US, UU and UV on the reserve list;
–        order the Commission to bear the costs of the proceedings, both at first instance and on appeal.
1      Original language: English.
2      Judgment of 10 July 2024, VT v Commission
(T‑216/23, ‘the judgment in VT v Commission’, EU:T:2024:465). This case was designated as a pilot case for 18 other similar cases (Cases T‑217/23, T‑234/23 to T‑238/23, T‑241/23, T‑242/23, T‑249/23 to T‑254/23, T‑259/23, T‑264/23, T‑267/23 and T‑268/23), the proceedings in which were
accordingly stayed, pursuant to Article 71a of the Rules of Procedure of the General Court.
3      Judgment of 10 July 2024, UJ and Others v Commission (T‑120/23, ‘the judgment in UJ and Others v Commission’, EU:T:2024:464). This case was brought jointly by 13 applicants.
4      Regulation No 31 (EEC), 11 (EAEC), laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Economic Community and the European Atomic Energy Community (OJ 1962 P 045, p. 1385).
5      OJ 2019 C 409A, p. 1.
6      In paragraphs 107 to 112 of the judgment in VT v Commission and in paragraphs 103 to 109 of the judgment in UJ and Others v Commission.
7      Although the appellants mention, at several points of their argumentation, the third session of the written tests, this first part of the first ground of appeal can only be understood to concern the offer of the second session of the written tests. It is clearly established in the judgments under appeal (see also points 10 to 12 above)
that it is only in the second session that all candidates were offered the possibility to participate, while the third session was only open to eight candidates, who had faced technical difficulties during the second session.
8      See, for example, judgment of 29 September 2009, Aparicio and Others v Commission (F‑20/08, F‑34/08 and F‑75/08, EU:F:2009:132, paragraph 77).
9      For example, because the choice of subjects in a test may be more advantageous for certain candidates who happen to be familiar with that specific subject matter; see judgment of 8 March 1988, Sergio and Others v Commission (64/86, 71/86 to 73/86 and 78/86, EU:C:1988:119, paragraphs 26 to 28).
10      Ibid.; see also judgment of 12 March 2008, Giannini v Commission (T‑100/04, EU:T:2008:68, paragraph 133).
11      The Commission clarifies this point explicitly only in its response in Case C‑622/24 P, though it may also be inferred from its submissions in Case C‑623/24 P.
12      See judgment of 18 February 1982, Ruske v Commission (67/81, ‘the judgment in Ruske’, EU:C:1982:69, paragraph 9); order of 7 September 2022, Rosca v Commission (C‑802/21 P, EU:C:2022:677, paragraph 31); and judgment of 14 December 2022, SY v Commission (T‑312/21, ‘the judgment in SY’, EU:T:2022:814, paragraphs 43 and 71).
13      See, for example, judgment of 14 July 2022, Commission v VW and Others (C‑116/21 P to C‑118/21 P, C‑138/21 P and C‑139/21 P, EU:C:2022:557, paragraph 142).
14      Notwithstanding the exceptional third session, organised for a limited number of candidates due to further technical issues.
15      See, for example, judgment of 26 March 2019, Spain v Parliament (C‑377/16, EU:C:2019:249, paragraph 38), and the judgment in SY, paragraphs 53 and 74.
16      See judgment of 5 December 2023, Nordic Info
(C‑128/22, EU:C:2023:951, paragraph 77 and the case-law cited).
17      One may, nonetheless, wonder whether a measure can be considered to be fully suitable for remedying irregularities and restoring the conditions of the competition when it introduces a fresh irregularity, namely the unequal treatment at issue.
18      See Section 4.1 of Annex III to the competition notice; this is now also set out in detail in a ‘Complaint resolution policy for testing events’, published by EPSO on 24 June 2024, available at https://eu-careers.europa.eu/en/epso-complaint-resolution-policy.
19      At least half of the candidates, as noted by the General Court in paragraph 108 of its judgment in VT v Commission.
20      Admittedly, such a solution would not have been ideal from the perspective of candidates who would have been required to retake the tests despite being satisfied with their performance during the initial session. Nevertheless, in the exceptional circumstances at issue, it appears as the only corrective option available that would not, in itself, have created an advantage for certain candidates.
21      See judgment of 27 February 2025, OA v Parliament (C‑32/24 P, EU:C:2025:118, paragraph 67 and the case-law cited).
22      See in that regard the recent judgment in SY, where the General Court considered that the legitimate expectations of a candidate had not been affected in a situation where, due to the force majeure context of COVID-19, his original test results had not only been annulled but replaced by a different type of test not provided in the original competition notice.
23      See, for example, the judgment in SY, paragraph 126.
24      See judgments of 30 June 1983, Schloh v Council (85/82, EU:C:1983:179, paragraph 14),
and of 25 March 2021, Alvarez y Bejarano and Others v Commission (C‑517/19 P and C‑518/19 P, EU:C:2021:240, paragraph 91 and the case-law cited).
25      In paragraphs 113 to 117 of the judgment in VT v Commission and in paragraphs 112 to 114 of the judgment in UJ and Others v Commission.
26      It should be clarified in this respect that a scenario regarding a fictitious country was published ahead of the initial session, with which candidates were invited to familiarise themselves. During the written test in the field, candidates were invited to prepare notes to address a situation arising in the context of that scenario.
27      Version 1 of that scenario was relied on in the initial and third sessions of the written tests and Version 2 was relied on in the second session.
28      See, for example, judgment of 24 March 1988, Goossens and Others v Commission (228/86, EU:C:1988:172, paragraph 15).
29      It could also certainly be questioned (as the Commission did in VT v Commission) whether those candidates can invoke unequal preparation time as regards the second session, considering that they chose not to participate therein. However, since the selection board precisely decided to offer candidates a choice between the initial
session and the second session, it should, in my view, have ensured that those sessions were held under equivalent conditions. Moreover, this question does not arise in relation to the third session, in which only eight candidates had the choice to participate.
30      See, by analogy, judgments of 30 November 2005, Vanlangendonck v Commission (T‑361/03, EU:T:2005:433, paragraph 33); of 11 December 2012, Mata Blanco v Commission (F‑65/10, EU:F:2012:178, paragraphs 38 and 39); and of 23 April 2015, BX v Commission (T‑352/13 P, EU:T:2015:225, paragraph 27 et seq.).
31      See judgment of 16 March 2023, Commission v Calhau Correia de Paiva (C‑511/21 P, EU:C:2023:208, paragraphs 64 and 65).
32      I note that, while the third part focuses on the third session of the written tests, the appellants in both cases have also cited the judgment in Prais
in support of the first two parts of the same ground of appeal, including with respect to the second session of the written tests. To the extent that that line of argument can be understood as an additional part of the first ground of appeal for all of the appellants, the present analysis is any event equally relevant.
33      Judgment of 27 October 1976, Prais v Council (130/75, ‘the judgment in Prais’, EU:C:1976:142).
34      Judgment of 23 February 2022, OJ v Commission (T‑709/20, ‘the judgment in OJ’, EU:T:2022:81).
35      In the judgment in Prais, if the applicant had informed the appointing authority in advance that she was unable to participate on the selected date (see paragraph 17) and in the judgment in OJ if appropriate evidence showing that the applicant was unable to participate on the dates set (paragraph 50 et seq.) had been presented.
36      Judgment of 1 July 2010, Mandt v Parliament (F‑45/07, ‘the judgment in Mandt, EU:F:2010:72).
37      See judgments of 7 May 1986, Rihoux and Others v Commission (52/85, EU:C:1986:199, paragraph 13), and of 14 March 1989, del Amo Martinez v Parliament (133/88, EU:C:1989:124, paragraphs 9 and 10).
38      Ibid.
39      Judgment of 25 October 2013, Commission v Moschonaki (T‑476/11 P, EU:T:2013:557, paragraph 75 et seq.).
40      See also paragraph 150 of the judgment in UJ and Others v Commission, where the General Court, albeit in the context of another plea, likewise considered that the absence of an explicit reply within the four-month time limit does not affect the application of the rule of correspondence.
41      Judgment of 10 November 2021, Spisto v Commission (T‑572/20, ‘the judgment in Spisto’, EU:T:2021:766).
42      See judgment of 16 February 2023, Commission v Italy and Spain (C‑635/20 P, EU:C:2023:98, paragraph 66 and the case-law cited).
43      This was the case until 2022, hence also with respect to the competition at issue. As of 2023, the requisite competencies have changed but the logic of them being required across posts and grades remains; see, in that regard: https://eu-careers.europa.eu/en/kick-start-epsos-transformation-process.
44      See the
judgment
in Ruske, paragraph 9, and the judgment
in SY, paragraph 83 and the case-law cited.