ORDER OF THE COURT (Seventh Chamber)
22 February 2018 (*)
(Appeal — Article 181 of the Rules of Procedure — Civil service — Open Competition EPSO/AD/248/13 — Decision not to include the appellant on the reserve list)
In Case C‑233/17 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 4 May 2017,
GX, residing in Bucharest (Romania), represented by G.-M. Enache, lawyer,
appellant,
the other party to the proceedings being:
European Commission, represented by G. Gattinara and P. Mihaylova, acting as Agents,
defendant at first instance,
THE COURT (Seventh Chamber),
composed of A. Rosas (Rapporteur), President of the Chamber, A. Prechal and E. Jarašiūnas, Judges,
Advocate General: E. Sharpston,
Registrar: A. Calot Escobar,
having decided, after hearing the Advocate General, to give a decision by reasoned order, in accordance with Article 181 of the Rules of Procedure of the Court,
makes the following
Order
1        By his appeal, GX seeks to have set aside the order of the General Court of the European Union of 3 March 2017, GX v Commission (T‑556/16, not published, ‘the order under appeal’, EU:T:2017:139) by which the General Court dismissed his action seeking, first, annulment of the decision of the selection board in Open Competition EPSO/AD/248/13 of 20 August 2014 not to include the appellant’s name on the reserve list (‘the decision at issue’) and, secondly, compensation in respect of the material and non-material harm allegedly suffered by the appellant on account of that decision.
Background to the dispute
2        The appellant, GX, registered on 5 March 2013 for Open Competition EPSO/AD/248/13 (‘the competition’), organised by the European Personnel Selection Office (EPSO), as set out in the notice of competition published in the Official Journal of the European Union on 31 January 2013 (OJ 2013 C 29 A, p. 1) for the recruitment of administrators in Grade AD 6 in the fields of ‘Security of Buildings’ and ‘Buildings Services Engineering’ (‘the notice of competition’).
3        The notice of competition was the subject of a corrigendum published in the Official Journal on 3 April 2013 (OJ 2013 C 94 A, p. 1) (‘the corrigendum’), according to which computer-based admission tests were to be organised prior to the examination of the eligibility conditions only if the number of candidates registered exceeded, not 1 000, as initially provided for, but ‘a certain threshold’, to be determined by the Director of EPSO. The corrigendum also stated that candidates would be informed of that threshold via their EPSO account. It is, however, common ground that, during the course of the competition, no such tests were organised.
4        In accordance with points V and VI of the notice of competition, the competition essentially involved three stages, namely verification of the general and specific eligibility conditions, then the examination of the candidates’ professional experience and university diplomas on the basis of their qualifications and, lastly, tests organised in an assessment centre to which only the candidates selected following the first two stages of the competition were invited. The tests organised in the assessment centre included reasoning ability tests, a ‘structured’ interview based on competencies in the chosen field — in the appellant’s case, security of buildings — and, lastly, three tests designed to assess general competencies, namely a case study, a group exercise and a ‘structured’ interview relating to those competencies.
5        On 10 July 2013, the appellant was informed that he satisfied the eligibility conditions and that the marks obtained in the examination of his qualifications enabled him to be admitted to the next stage of the competition, namely to the tests organised at the assessment centre.
6        The appellant sat the case study test on 1 October 2013, the reasoning tests on 7 October 2013 and the interviews and the group exercise on 5 November 2013.
7        On 26 February 2014, EPSO informed the appellant that the selection board had not included his name on the reserve list for the competition on the ground that he had not obtained the minimum number of points required in the tests organised at the assessment centre and referred, in this connection, to point VI of the notice of competition (‘the initial decision not to include the appellant’ or ‘the initial decision not to include him’). The document attached to the letter of 26 February 2014, stated, inter alia, that the appellant had obtained a score of 38 points out of 80 in the assessment tests for the general competencies whereas the minimum required was 40 points.
8        On 5 March 2014, the appellant, in accordance with point 6.4 of the Guide to open competitions, published in the Official Journal of 7 September 2012 (OJ 2012 C 270 A, p. 1), submitted a request for review of the initial decision not to include him. In his request for review, he also requested access to a number of documents relating to the competition, namely the copy of his case study, together with the corrections of the assessors, and a copy of his evaluation sheet, requesting in this connection a number of ‘clarifications’.
9        Following the review of his file by the selection board, EPSO informed the appellant by letter of the adoption of the decision at issue. In that letter, EPSO also rejected his request for disclosure of the documents sought, with the exception of the uncorrected copy of his case study test, which was attached to the letter.
10      On 18 November 2014, the appellant submitted a complaint, within the meaning of Article 90(2) of the Staff Regulations of Officials of the European Union, against the decision at issue. That complaint was rejected by a decision of the appointing authority of 18 March 2015.
The proceedings before the General Court and the order under appeal
11      By application lodged at the Registry of the Civil Service Tribunal on 18 June 2015, the appellant brought his action. Pursuant to Article 3 of Regulation (EU, Euratom) 2016/1192 of the European Parliament and of the Council of 6 July 2016 on the transfer to the General Court of jurisdiction at first instance in disputes between the European Union and its servants (OJ 2016 L 200, p. 137), the case was transferred to the General Court.
12      The appellant claimed that the General Court should:
–      before ruling, order the European Commission to ‘produce all documentation concerning his application and all the proceedings of the selection board, all reports of the meetings of the EPSO Heads of Unit in relation to [the contested] competition ... and all the minutes of the selection board’s meetings in relation to the Assessment Centre in [that] competition’; prescribe measures of organisation of procedure or ‘measures of inquiry’ aimed at obtaining a copy of the ‘administrative file related to the competition’ and hear the chairman of the selection board and the official in charge of his file at EPSO;
–      annul the decision of 18 March 2015 rejecting the complaint;
–      annul the decision at issue;
–      annul the initial decision not to include the appellant;
–      order the Commission to ‘submit ... certain documents mentioned [in the] application, that would [help him in] his effort of making a value judgment in relation to his performance and merits [in] the competition’;
–      order the Commission to pay him the sum of EUR 50 000 by way of compensation for the material harm suffered and the same sum by way of compensation for the non-material harm suffered; and
–      order the Commission to pay the costs.
13      In support of his action, the appellant raised four pleas, alleging in essence (i) the illegality of the notice of competition and of the corrigendum, (ii) procedural irregularities, (iii) a breach of the obligation to state reasons, and, lastly, (iv) a manifest error of assessment.
14      By the order under appeal, the General Court rejected the claim for annulment, on the ground that the pleas raised were ineffective or manifestly unfounded. Consequently, it also rejected the claim for compensation in respect of the harm allegedly caused by those decisions.
Forms of order sought by the parties before the Court of Justice
15      By his appeal, the appellant claims that the Court should:
–       set aside the order under appeal and, consequently, annul the decision at issue;
–       order the payment of compensation in respect of the material and non-material harm suffered on account of that decision; and
–      order the Commission to pay the costs.
16      The Commission contends that the Court should:
–      dismiss the appeal; and
–      order the appellant to pay the costs.
The appeal
17      Under Article 181 of its Rules of Procedure, where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal in whole or in part. It is appropriate to apply that provision in the context of the present appeal.
18      In support of the appeal, the appellant relies on two grounds. The first ground of appeal, divided into three parts, alleges ‘the illegality of the notice of competition’, ‘the illegality of … the Assessment Centre fundamental principles’ and ‘the illegality of … the corrigendum’. The second ground of appeal, divided into two parts, alleges procedural irregularities during the course of the competition at the assessment centre.
The first ground of appeal
The first part of the first ground of appeal: illegality of the notice of competition
19      By the first part of the first ground of appeal, the appellant argues that the notice of competition infringes the language rules of the European Union. He refers in this regard to the judgment of 27 November 2012, Italy v Commission (C‑566/10 P, EU:C:2012:752), and points out that that notice of competition was declared illegal by judgment of the General Court of 24 September 2015, Italy and Spain v Commission (T‑124/13 and T‑191/13, EU:T:2015:690). The appellant submits that, if he had had the opportunity to take the tests in his mother tongue, namely Romanian, instead of English, the second language chosen for the competition, he would have had a better understanding of the questions and he would, in fact, have had a better chance to obtain higher marks. He also points out that the notice of competition does not provide any reason why the choice of a second language for the competition tests was restricted to English, French and German only.
20      The Commission contends, as its principal argument, that this first part is inadmissible and, in the alternative, manifestly unfounded.
21      It must be borne in mind that, in the context of an appeal, the Court of Justice has jurisdiction solely to review whether the General Court erred in law. As regards the pleas concerning the substance of the dispute, that jurisdiction is limited to the assessment of the findings in law on the pleas argued at first instance, except where the appellant is able to demonstrate that the General Court was required to raise of its own motion a matter of public policy (see, to that effect, judgments of 15 November 2012, Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraph 40, and of 19 June 2014, FLS Plast v Commission, C‑243/12 P, EU:C:2014:2006, paragraph 48).
22      In the present case, the appellant does not allege that the General Court erred in law, but raises a new argument that in fact was not argued before the General Court, alleging infringement of the language rules of the European Union. In that regard, he relies on the judgment of 27 November 2012, Italy v Commission (C‑566/10 P, EU:C:2012:752), delivered before the action was brought, and the judgment of 24 September 2015, Italy and Spain v Commission (T‑124/13 and T‑191/13, EU:T:2015:690), which was delivered before 27 November 2015, the date on which the written part of the procedure was closed before the General Court. In those circumstances, the appellant was in a position to invoke Article 56 of the Rules of Procedure of the Civil Service Tribunal, applicable at that stage of the proceedings, authorising the submission of new pleas after the first exchange of pleadings when those pleas are based on matters of law and fact that came to light in the course of the procedure.
23      Consequently, the first part of the first ground of appeal is manifestly inadmissible.
The second part of the first ground of appeal: illegality of the recruitment principles governing EPSO competitions
24      By the second part of his first ground of appeal, the appellant observes that, according to the documents which he consulted concerning competitions, the assessment methods used by EPSO are based on the examination of candidates’ competencies for the purpose of best determining whether they are capable of performing their duties. He challenges the validity of such recruitment principles and, consequently, of the tests in which he participated. He maintains that those recruitment principles are incompatible with the principles of sound administration, legitimate expectations, equal treatment, non-discrimination, proportionality and due care for the ‘welfare’ of candidates. More specifically, after having pointed out that he had submitted requests for access to documents in order to understand EPSO’s assessment methods, the appellant maintains that the incompatibility of those methods with the abovementioned principles adversely affected him as he was not aware of the type of tests that he would be taking and how those tests would be marked.
25      The Commission contends, as its principal argument, that this part of the ground of appeal is new and is therefore inadmissible. In the alternative, it also maintains that it is manifestly unfounded. It observes that, according to settled case-law, although the institutions are required to recruit the most competent candidates, they have a wide discretion with regard to the procedure for organising a competition. It is for the EU Courts to censure those organisational procedures only if they are not related to the purpose of the competition.
26      As has been pointed out in paragraph 21 of the present order, the Court of Justice has jurisdiction, in the context of an appeal, solely to review whether the General Court erred in law. As regards the pleas concerning the substance of the dispute, that jurisdiction is limited to assessing the findings in law on the pleas argued at first instance, except where the appellant is able to demonstrate that the General Court was required to raise of its own motion a matter of public policy (see, to that effect, judgments of 15 November 2012, Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraph 40, and of 19 June 2014, FLS Plast v Commission, C‑243/12 P, EU:C:2014:2006, paragraph 48).
27      In the present case, the appellant does not allege that the General Court erred in law, but raises a new argument concerning the substance of the dispute that was not argued before the General Court.
28      It follows that the second part of the first ground of appeal is manifestly inadmissible.
The third part of the first ground of appeal: the General Court’s error of law concerning its assessment of the illegality of the corrigendum
29      By the third part of his first ground of appeal, the appellant criticises paragraph 31 of the order under appeal, by which the General Court concluded that ‘even if the corrigendum could not have lawfully altered the threshold above which admission tests could be organised, such a fact has no effect on the legality of the [decision at issue], since, even in the absence of any such illegality, the [appellant’s] name could not, on any view, have been included on the competition reserve list’. The appellant claims that that alleged illegality of the corrigendum adversely affected him.
30      The Commission contends, as its principal argument, that this part of the ground of appeal is inadmissible and, in the alternative, is manifestly unfounded.
31      In this regard, it must be noted that, in paragraph 31 of the order under appeal, the General Court first pointed out that no admission tests had been organised before the examination of the eligibility conditions for the competition. For the sake of completeness, it held that any possible illegality of that corrigendum in regard to the alteration of the candidate threshold above which admission tests could be organised is irrelevant to the legality of the decision at issue.
32      As the appellant did not dispute the fact that no admission tests were organised, it must be held that, even if the reasoning against the grounds included for the sake of completeness in paragraph 31 of the order under appeal were well founded, this could not lead to that order being set aside.
33      It follows that the third part of the first ground of appeal is manifestly ineffective and must be rejected.
34      It follows from these findings that the first ground of appeal must be rejected as being manifestly inadmissible and manifestly ineffective.
The second ground of appeal: procedural irregularities at the assessment centre
The first part of the second ground of appeal, concerning the briefing note
35      By the first part of his second ground of appeal, the appellant argues that, in paragraph 41 of the order under appeal, the General Court committed an error of classification when it found that ‘the wording of the test in question clearly shows that the note expected is a briefing note, there being no possible ambiguity in that respect’. According to the appellant, however, the type of note that the candidates were expected to write in the context of the case study was not stated comprehensibly in the wording of that test. The appellant argues, in this regard, that the terms used in the test in question for the purpose of defining that task were neither clear nor unambiguous. According to the appellant, drafting a briefing note is a completely different task to drafting a mere note. He points out that he maintained, in this regard, that it was impractical, given the circumstances and time allocated to the case study, to ‘prepare a note’ in the form of a ‘briefing note’. He maintains that, given the difficulty of the test, that case study was ‘impractical, confusing and unrealistic for the given purpose, [which ran counter to] the assurance given by the principle of legal certainty, the principle of legitimate expectations, the principle of proportionality, the principle of sound administration and the duty of care concerning his welfare as a candidate [in the context of] the competition’. Furthermore, he emphasises that EPSO and the Commission do not share a consistent view as to what was expected of the candidates during that task. He asks the Court to order measures of organisation of procedure and measures of inquiry in order to clarify that inconsistency.
36      The Commission contends that the appellant invokes a distortion of the facts by the General Court as to the nature of the case study, without, however, specifying what evidence would allow that distortion to be established. It also submits that the appellant’s argument that the General Court distorted the arguments which he had submitted before it is contradictory and uncertain.
37      In this regard, it must be noted that the appellant calls into question the General Court’s finding in paragraph 41 of the order under appeal that ‘the wording of the test in question clearly shows that the note expected is a briefing note, there being no possible ambiguity in that respect’. It is clear that that ground of the order under appeal is not a matter of legal characterisation by the General Court, but an assessment of the facts, which it is not for the Court of Justice to review in the context of an appeal, the latter being limited to questions of law.
38      To the extent that the appellant’s reasoning can be interpreted as a complaint alleging distortion, it must be borne in mind that a distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and evidence (see, inter alia, judgments of 6 April 2006, General Motors v Commission, C‑551/03 P, EU:C:2006:229, paragraph 54, and of 10 November 2016, DTS Distribuidora de Televisión Digital v Commission, C‑449/14 P, EU:C:2016:848, paragraph 45). However, the appellant does not submit any evidence to show that it was obvious that the note expected in the context of the case study did not consist in ‘a written test based on a scenario to do with the [European Union], in which [candidates] are faced with various problems that [they] are asked to solve or to which [they] must react, relying solely on the material provided’, as described in point 5.3 of the Guide to open competitions.
39      Moreover, it is not for the Court of Justice, in the context of an appeal, to order measures of organisation of procedure and measures of inquiry, the subject of which is the review of the General Court’s assessment of the facts. Consequently, the request that the Court order measures of organisation of procedure and measures of inquiry in order to clarify the alleged inconsistencies of EPSO and the Commission is manifestly inadmissible.
40      It follows that the first part of the second ground of appeal is manifestly inadmissible.
The second part of the second ground of appeal: various alleged procedural irregularities
41      By the second part of his second ground of appeal, the appellant disputes, in the first place, the General Court’s assessment in paragraph 42 of the order under appeal that the appellant did not submit any evidence capable of supporting the claim that the computer placed at his disposal did not function correctly with regard to the automatic saving function of the ‘last screen’ and that he did not point out that problem when it occurred. The appellant argues there is no evidence that he was in a position to point out the problem of the defective screen and that evidence resulting from an IT system database check could confirm his allegation.
42      The appellant disputes, in the second place, the General Court’s rejection, in paragraphs 43 and 44 of the order under appeal, of the allegation that EPSO had not complied with the instructions sent to the candidates for the case study and had allowed extra time for the test to certain candidates who arrived late, although the appellant had adduced conclusive evidence confirming that allegation.
43      He maintains, in the third place, that the General Court erred in finding, in paragraph 50 of the order under appeal, that the appellant, ‘due to the [seat] allocation’, asserted that he was placed at a disadvantage in respect of the use of the flip chart only and that he had not proved that he had been prevented from using the flip chart during the group exercise. In this regard, the appellant points out that he argued that the assessment centre methodology did not include the use of a flip chart as part of the tools that had to be used by the candidates. According to the appellant, a flip chart must be used during an oral presentation and not during a group exercise, the purpose of which is to discuss findings together.
44      In the fourth place, the appellant argues that the General Court, in paragraph 47 of the order under appeal, distorted the appellant’s argument in paragraphs 95 to 101 of his application that the instructions given to candidates on the day of the group exercise, which consisted of holding a meeting that would take the form of an ‘oral discussion exercise’, were different to those sent by EPSO to the candidates before the day of the tests, which consisted of ‘discuss[ing] [their] findings together and com[ing] to a collective decision’.
45      The Commission contends that those arguments are manifestly ineffective or manifestly inadmissible.
46      As regards the first argument, concerning the poor functioning of the appellant’s computer, it must be noted that the appellant is challenging the General Court’s assessment of evidence, which it is not for the Court of Justice to review in the context of an appeal. Moreover, it is not for the Court of Justice, in the context of an appeal, to order measures of organisation of procedure and measures of inquiry designed to review the General Court’s assessment of the facts, with the result that the request that IT system checks be carried out is inadmissible. In any event, the appellant does not call into question the General Court’s assessment that the argument which he raised before it is ineffective, since ‘the poor functioning of a computer made available to a candidate is not a plea which may warrant, as such, a test in a competition being found to be illegal. It is at the most an instance of the poor functioning of a tool in the competition’. It follows that the first argument is manifestly inadmissible.
47      As regards the second argument, concerning the alleged late arrival of certain participants in the competition, it must be noted that the appellant is challenging the General Court’s assessment of evidence, which it is not for the Court of Justice to review in the context of an appeal.
48      By his third argument, concerning the use of a flip chart, the appellant challenges paragraph 50 of the order under appeal, by which the General Court held that the mere fact that the ‘flip chart’ was ‘at the other end of the ... table’ clearly did not prevent the appellant, were he to have considered it useful, from deciding to use it in the group exercise. In that regard, it must be noted that, in paragraph 50 of that order, the General Court did not distort the argument set out by the appellant in paragraph 102 of his application, concerning discrimination and the difficulty in accessing the flip chart, but rather replied to that argument. The part of paragraph 50 of that order being challenged by the appellant is an assessment of fact, which it is not for the Court of Justice to review in the context of an appeal.
49      Moreover, the appellant does not demonstrate that, in his application, he raised a plea alleging infringement of the assessment centre’s methodology to which the General Court did not reply. The reference to the statement by a former EPSO contractual agent, in paragraph 102 of that application, that there should not be a flip chart in the examination room for a group exercise, was merely information used by the appellant to support his argument concerning discrimination, but cannot be characterised as ‘an independent plea in law’. It follows that the third argument is manifestly unfounded.
50      As regards the fourth argument, it must be noted that, in paragraph 47 of the order under appeal, the General Court found that, by his arguments, the appellant merely ‘gives his personal view of the conduct of the test in question, without adducing any objective evidence capable of establishing that the instructions given to candidates the day of the test concerning the way in which it would take place contradicted the Guide to open competitions’. That finding contains an assessment of the substantive evidence adduced by the appellant, which it is not for the Court of Justice to review in the context of an appeal. In any event, the appellant does not show that the General Court manifestly distorted the evidence when it found, at the end of paragraph 47 of the order under appeal, that any contradiction between the wording in point 5.3 of the Guide to open competitions and the information contained in point 4.4 of the instructions given to the candidates had to be ruled out, since those two texts were identical. It follows that the fourth argument is manifestly inadmissible and, in any event, manifestly unfounded.
51      It follows from these findings that the second ground of appeal must be rejected as being manifestly inadmissible and manifestly unfounded.
52      The appeal must consequently be dismissed.
Costs
53      Under Article 138(1) of the Rules of Procedure of the Court of Justice, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
54      Since the Commission has applied for costs and GX has been unsuccessful, the latter must be ordered to bear his own costs and to pay those incurred by the Commission.
On those grounds, the Court (Seventh Chamber) hereby orders:
1.      The appeal is dismissed.
2.      GX shall bear his own costs and pay those incurred by the European Commission.
Luxembourg, 22 February 2018.
A. Calot Escobar
A. Rosas
Registrar
President of the Seventh Chamber
*      Language of the case: English.