JUDGMENT OF THE GENERAL COURT (Tenth Chamber)
23 October 2024 (*)
( Civil service – Officials – Recruitment – Notice of competition – Open competition EPSO/AST-SC/10/20 – Decision not to admit the applicant to the next stage of the competition – Manifest error of assessment )
In Case T‑14/23,
UI, represented by S. Pappas, A. Pappas and A. Kila, lawyers,
applicant,
v
European Commission, represented by G. Niddam and A. Sipos, acting as Agents,
defendant,
THE GENERAL COURT (Tenth Chamber),
composed of O. Porchia, President, M. Jaeger (Rapporteur) and P. Nihoul, Judges,
Registrar: A. Marghelis, Administrator,
having regard to the written part of the procedure,
further to the hearing on 20 March 2024,
gives the following
Judgment
1        By her action brought on the basis of Article 270 TFEU, the applicant, UI, seeks annulment of the decision of the selection board of 2 May 2022 rejecting her request for review and confirming the decision of 7 March 2022 not to admit her to the next stage of Open Competition EPSO/AST-SC/10/20 – Secretaries (SC 1/SC 2) (‘the competition’) (‘the contested decision’).
Background to the dispute
2        On 25 June 2020, the notice of open competition EPSO/AST-SC/10/20 – Secretaries (SC 1/SC 2) (‘the notice of competition’) was published in the Official Journal of the European Union. The purpose of the competition was to draw up reserve lists from which the institutions of the European Union could recruit officials as ‘secretaries’ (function group AST-SC).
3        On 30 August 2020, the applicant completed the form to apply to the competition for grade SC 2 (‘the application form’).
4        Having passed the preliminary tests and the multiple-choice question test on skills in the word processing software Microsoft Office Word, the applicant was informed by letter of 7 March 2022 that the selection board had decided not to admit her to the next stage of the competition because she did not meet the eligibility condition requiring at least seven years’ professional experience directly related to the nature of the duties.
5        On 15 March 2022, the applicant submitted a request for review of the decision of 7 March 2022. By the contested decision, the selection board rejected that request for review.
6        The applicant submitted a second request for review on 12 May 2022. On 16 May 2022, the European Personnel Selection Office (EPSO) confirmed the contested decision and declared the applicant’s request for review inadmissible.
7        On 7 June 2022, the applicant lodged a complaint pursuant to Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) against the contested decision.
8        On 7 October 2022, on the expiry of the period of four months after the applicant’s complaint had been lodged, the appointing authority had not adopted any decision, thereby impliedly rejecting that complaint.
9        By decision of 27 October 2022, the appointing authority rejected the applicant’s complaint.
Forms of order sought
10      The applicant claims, in essence, that the Court should:
–        annul the contested decision and the implied decision of the appointing authority of 7 October 2022 and, in the alternative, the explicit decision of the appointing authority of 27 October 2022;
–        order the European Commission to pay the costs.
11      The Commission contends that the Court should:
–        dismiss the action in its entirety;
–        order the applicant to pay the costs.
Law
Subject matter of the dispute
12      The applicant seeks, principally, annulment, first, of the contested decision, by which the selection board rejected her request for review and confirmed the decision of 7 March 2022 not to admit her to the next stage of the competition, and, second, of the implied decision of the appointing authority of 7 October 2022 rejecting her complaint against the contested decision, and, in the alternative, annulment of the appointing authority’s decision of 27 October 2022 explicitly rejecting that complaint.
13      In the first place, it must be stated that the second indent of Article 91(3) of the Staff Regulations provides that, ‘where a complaint is rejected by express decision after being rejected by implied decision but before the period for lodging an appeal has expired, the period for lodging the appeal shall start to run afresh’. Consequently, and in accordance with settled case-law, the claims directed against the explicit decision of the appointing authority of 27 October 2022, issued after the expiry of the four-month period, must be regarded as admissible (see, to that effect, judgment of 2 April 2020, Barata v Parliament, T‑81/18, not published, EU:T:2020:137, paragraph 87 and the case-law cited).
14      In the second place, it must be borne in mind that, according to settled case-law, the administrative complaint such as referred to in Article 90(2) of the Staff Regulations and its rejection, whether express or implied, thus constitute an integral part of a complex procedure and are no more than a precondition for bringing the matter before the judicature. Consequently, the action before the judicature, even if formally directed against the rejection of the complaint, has the effect of bringing before the judicature the act adversely affecting the applicant against which the complaint was submitted, except where the scope of the rejection of the complaint differs from that of the measure against which that complaint was made (see judgment of 7 September 2022, Migadakis v ENISA, T‑507/21, not published, EU:T:2022:507, paragraph 12 and the case-law cited).
15      Furthermore, in view of the evolving nature of the pre-litigation procedure, an express decision rejecting a complaint which contains only further particulars and thus merely reveals, in a detailed manner, the grounds for confirming the earlier decision does not constitute an act adversely affecting the person concerned. Nevertheless, that evolving nature of the pre-litigation procedure means that those further particulars must be taken into consideration in assessing the legality of the contested act (see judgment of 7 September 2022, Migadakis v ENISA, T‑507/21, not published, EU:T:2022:507, paragraph 13 and the case-law cited).
16      In the present case, it must be stated that the implied and explicit decisions rejecting the applicant’s complaint confirm the contested decision. In accordance with the case-law cited in paragraph 15 above, the fact that the appointing authority has been led, in response to the arguments put forward by the applicant in her complaint, to provide particulars on the grounds of the contested decision cannot justify the express decision rejecting the complaint being regarded as an autonomous act adversely affecting the applicant, since the statement of reasons for that decision coincides, in essence, with the decision against which that complaint had been made.
17      The applicant’s claim for annulment directed against the decisions rejecting the complaint therefore lacks any independent content and must therefore be regarded as formally directed against the contested decision (see, to that effect, judgment of 7 September 2022, Migadakis v ENISA, T‑507/21, not published, EU:T:2022:507, paragraph 15 and the case-law cited).
18      Accordingly, it must be stated that the act adversely affecting the applicant is the contested decision, the legality of which must be examined while also taking into consideration the statement of reasons set out in the decision of 27 October 2022 rejecting the complaint.
Substance
19      In support of her application for annulment, the applicant puts forward, in essence, two pleas in law, the first alleging infringement of the notice
of competition and the second alleging manifest errors of assessment in the application of the rules of the notice of competition.
Preliminary observations
20      It should be noted that the competition selection board is bound by the wording of the notice of that competition as published. The essential function of the notice of competition is to inform the persons concerned in as precise a way as possible of the nature of the conditions required to fill the post in question, in order to enable them to judge, first, whether they should apply and, second, what supporting documents are required by the selection board and must, consequently, be attached to the application (see judgment of 19 October 2022, MV v Commission, T‑624/20, not published, EU:T:2022:653, paragraph 75 and the case-law cited).
21      Moreover, according to the case-law, the competition selection board enjoys discretion, under the provisions of the Staff Regulations concerning competition procedures, when assessing the nature and duration of previous professional experience of candidates and how closely they relate to the requirements of the post to be filled (see judgment of 19 October 2022, MV v Commission, T‑624/20, not published, EU:T:2022:653, paragraph 76 and the case-law cited).
22      Therefore, in reviewing the lawfulness of the assessment of candidates’ previous professional experience, the Court must confine itself to examining whether the exercise of the selection board’s discretion is vitiated by a manifest error (see judgment of 19 October 2022, MV v Commission, T‑624/20, not published, EU:T:2022:653, paragraph 77 and the case-law cited).
23      In this regard, it should be observed that an error is manifest where it can be readily detected, in the light of the criteria which the legislature intended to apply to the exercise by the administration of its broad discretion. In view of that broad discretion granted to the selection board, in order to establish that it committed a manifest error in assessing the facts such as to justify the annulment of the decision taken, the evidence, which it is for the applicant to adduce, must be sufficient to make the findings of the selection board in question implausible. In particular, there can be no manifest error if the contested assessment may be accepted as true or valid (see judgment of 19 October 2022, MV v Commission, T‑624/20, not published, EU:T:2022:653, paragraph 78 and the case-law cited).
The first plea in law, alleging infringement of the notice of competition
24      By her first plea in law, the applicant submits that the selection board infringed the notice of competition by defining and applying eligibility criteria that were not envisaged in that notice.
25      The Commission disputes the arguments put forward by the applicant in support of her first plea in law.
26      First, the applicant submits that, in considering that the only tasks that could be directly related to the nature of the duties were those listed in the section ‘What tasks can I expect to perform?’ in the notice of competition
(‘the section relating to tasks’), the selection board misinterpreted that notice. Accordingly, the applicant was deprived of the possibility of asserting the relevance of numerous tasks performed in the course of her previous professional experience.
27      In that context, the applicant submits that it is apparent both from the wording of the section relating to tasks and from the general scheme of the notice of competition that the assessment of the eligibility of candidates’ professional experience should not be based solely on the list of tasks set out in the section relating to tasks, but had to take into account all secretarial tasks.
28      However, in order to reject those arguments, it is sufficient to note that the applicant has failed to specify the tasks which are not listed in the section relating to tasks but which should have been considered to be relevant for the posts to be filled.
29      As the Commission stated at the hearing, the tasks set out in the section relating to tasks are worded in broad terms, which enables the selection board to include in its assessment numerous tasks that may relate to the various descriptions.
30      Second, in the first place, the applicant complains that the selection board did not assess the eligibility of her professional experience on the basis of the nature of the tasks declared in the application form, but on the basis of the title of the post in the context of which the tasks declared had been performed. According to the applicant, by doing so, the selection board regarded tasks which were secretarial but which had been performed in the context of a post with a different title as not being directly related to the nature of the duties and, therefore, as ineligible.
31      However, it must be noted that it is not apparent from the file that the selection board assessed the eligibility of the applicant’s professional experience by merely taking into account the titles of the posts which she had listed in the application form.
32      It is clear from Section 2 of the eligibility criteria form that, regardless of the title of the posts appearing in the application forms, the selection board must check, in all cases, the description of the nature of the duties.
33      Furthermore, as regards the fourth professional experience entry listed in the application form, in respect of which the applicant claims that the selection board merely took into account the job title, it is sufficient to note the extremely laconic nature of the description of the tasks carried out by the applicant, as she herself acknowledged at the hearing. Consequently, the fact that that professional experience was not considered to be relevant in its entirety does not show that the selection board confined itself to taking into account the job title, but indicates, on the contrary, that it assessed the nature of the tasks described.
34      In the second place, the applicant claims that, even if job titles were assessed solely for the purpose of reaching a preliminary conclusion, the selection board could not rely on that criterion without contravening the rules set out in the notice of competition. She submits that, by doing so, the selection board unlawfully narrowed the scope of eligible candidates, in so far as their applications
were not assessed on the basis of their secretarial duties, as indicated in the entries of their online applications, but on the basis of their job titles.
35      However, as stated in paragraphs 31 to 33 above, the applicant has not shown that the selection board acted in that manner. Thus, her argument has no factual or legal basis.
36      Third, the applicant criticises the selection board for considering that, in order for professional experience to be credited, that experience had to include at least 50% of secretarial tasks as described in the notice of competition. According to her, that meant that the selection board refused to credit any professional experience 49% or less of which entailed secretarial tasks. The applicant submits that it is clear from the notice of competition that all the tasks referred to in the list set out in that notice should have been regarded as directly related to the nature of secretarial duties and, therefore, eligible, regardless of the percentage of the candidate’s experience that they represented. Therefore, according to the applicant, the very nature of the
duties
as secretarial should have been sufficient in order for them to be credited with a percentage, even a low one.
37      As a preliminary point, it must be borne in mind that it is for the selection board in a competition to assess in each case whether the professional experience of each candidate corresponds to the level required by the notice of competition, and that, by adopting assessment criteria, it seeks to ensure a certain consistency in its assessments, in the interests of candidates, in particular where there is a large number of them (see, to that effect, judgment of 9 March 2022, LA v Commission, T‑456/20, not published, EU:T:2022:120, paragraph 25 and the case-law cited).
38      In that regard, the Court has stated that, where a condition in the notice of competition was drafted in general terms, the selection board had broad discretion in defining the criteria for applying the eligibility conditions to be met, including the duration of the required professional experience (see judgment of 1 December 2021, Ruiz-Ruiz v Commission, T‑293/20, not published, EU:T:2021:845, paragraph 33 and the case-law cited).
39      However, despite its broad discretion, the selection board still remains bound by the wording of the notice of competition, the essential role of which is to inform, as accurately as possible, the persons concerned of the nature of the eligibility conditions for the post in question, in order to enable those persons to assess, in particular, whether they should submit an application (see judgment of 1 December 2021, Ruiz-Ruiz v Commission, T‑293/20, not published, EU:T:2021:845, paragraph 34 and the case-law cited).
40      It must therefore be inferred that, in adopting the assessment criteria, the selection board must not only not contradict the notice of competition, but also interpret it in the spirit of the text and in accordance with the legitimate expectations of the candidates. According to the case-law, there is a prohibition not only on there being contradictions between the assessment criteria and the notice of competition, but also on the selection board restricting or broadening the selection criteria laid down in the notice of competition, failing which the wording of that notice would be contravened (see judgment of 10 November 2021, Spisto v Commission, T‑572/20, not published, EU:T:2021:766, paragraph 43 and the case-law cited).
41      It is in the light of those principles that the merits of the applicant’s line of argument must be assessed.
42      In the present case, first of all, as stated in paragraph 29 above, the tasks required were described in broad terms. It is apparent from the notice of competition that the objective pursued was to recruit secretaries with at least seven years’ professional experience directly related to the nature of those duties, as regards grade SC 2. In addition, Article 27 of the Staff Regulations requires the EU institutions to recruit candidates of the highest standard of ability and efficiency.
43      Consequently, it appears justified, for a selection board, to establish criteria enabling a distinction to be drawn between situations in which the candidate performed the required tasks as the main activity and those in which the performance of those tasks was ancillary.
44      Thus, the fact that the selection board reflected those requirements by
means of the threshold of 50% secretarial tasks, as described in the notice of competition, in order for the candidates’ professional experience to be considered relevant for the purposes of their eligibility is not contrary to either the letter or the spirit of the notice of competition.
45      Next, as regards the applicant’s claim that it was not for the selection board to check, in the context of the assessment of the eligibility of her professional experience, whether that experience could qualify her as one of the best secretaries to be recruited and that it should rather have confined itself to checking whether her professional experience was in the field of the competition by comparing the experience set out in her application form with the tasks described in the notice of competition, it is sufficient to recall that, in accordance with the case-law cited in paragraph 37 above, it is for the selection board to assess in each case whether the professional experience of each candidate corresponds to the level required by the notice of competition.
46      Lastly, as regards the applicant’s claim that the threshold of 50% secretarial tasks may only lead to inaccurate results, it should be borne in mind that, in accordance with the case-law cited in paragraphs 38 and 39 above, the applicant cannot substitute criteria which she considers more appropriate for those applied by the selection board, but must show that those criteria are contrary to the notice of competition. It is apparent from the foregoing that the applicant has failed to show that.
47      Consequently, the first plea in law must be rejected as unfounded.
The second plea in law, alleging manifest errors of assessment in the application of the rules of the notice of competition
48      By her second plea in law, the applicant claims that, even if it were
to be accepted that the eligibility criteria laid down complied with the notice of competition, the selection board committed several manifest errors of assessment in analysing the relevance of her professional experience in the light of the rules of that notice, which, according to her, cannot be justified by the discretion that it enjoys.
49      The Commission contends that the arguments raised by the applicant in support of her second plea in law are not well founded.
50      The applicant submits that the majority of the tasks performed in the context of three professional experience entries set out in the application form were manifestly secretarial tasks.
51      In that regard, the applicant disputes the selection board’s approach of disregarding the relevance of her entire professional experience, including duties listed in the notice of competition,
where they had been performed in posts other than that of secretary.
52      As a preliminary point, first of all, reference should be made to the principles set out in paragraphs 20 to 23 above.
53      Next, it should be pointed out that it is, in principle, incumbent on the candidate in a competition to read the notice of competition carefully and to provide the selection board with all the information and documents enabling it to verify that that candidate fulfils the conditions laid down in that notice (see, to that effect, judgment of 26 January 2023, Parliament v Carbajo Ferrero, C‑613/21 P, EU:C:2023:51, paragraph 78 and the case-law cited).
54      Furthermore, it is settled case-law that the selection board is obliged to take into account only the information provided and documents submitted by a candidate in support of his or her application form when assessing his or her professional experience in the light of the requirements laid down for the competition (see judgment of 19 October 2022, MV v Commission, T‑624/20, not published, EU:T:2022:653, paragraph 105 and the case-law cited). A selection board cannot be required to make investigations itself in order to determine whether the candidates satisfy all of those conditions (see judgment of 25 March 2004, Petrich v Commission, T‑145/02, EU:T:2004:91, paragraph 49 and the case-law cited). It is incumbent on them to provide the selection board with all the information they consider pertinent to the appraisal of their applications, even if they have not been formally called on to do so (judgment of 12 July 1989, Belardinelli and Others v Court of Justice, 225/87, EU:C:1989:309, paragraph 24), and a fortiori if they have been formally called on to do so.
55      Lastly, it should be noted that it is clearly stated in Subsection 4, entitled ‘Eligibility checks’, of the section ‘How will I be selected?’ of the notice of competition, that checking compliance with the eligibility requirements is carried out against the data provided in candidates’ online applications.
56      It is in the light of those considerations that the merits of the complaints made by the applicant against the selection board’s assessment of the three professional experience entries on which she relied must be examined.
57      The second professional experience entry set out by the applicant in the application form concerns a post held for a period of 218 months and 22 days, that is to say, more than 18 years, in which, according to her, she carried out activities consisting in administrative assistance and project assistance.
58      In that regard, the applicant claims that the tasks carried out in the context of that post coincide with the tasks listed in the section relating to tasks and that, as such, that professional experience should have been taken into account as relevant experience. She also maintains that the application of a percentage of relevance between 50% and 100% would have enabled her to qualify for the next stage of the competition. The selection board did not take that experience into account, in so far as it considered that the duties listed by the applicant did not correspond to those of a secretary, but to those of a project manager.
59      In that context, first, it must be noted that the tasks, set out by the applicant in her application form, consisting of ‘[updating the] project schedule, [taking] minutes at meetings, [making] phone calls to vendors, suppliers and customers, [responding] to emails and [writing] progress reports’, ‘[keeping] updated contact information and [ensuring] communication with the project team’ and ‘other support activities … informing and advising staff; assisting in the day-to-day management’, correspond to the secretarial duty, as set out in the notice of competition, of ‘supporting the organisation and coordination of the department’s activities (meetings, official travel, diary), answering calls, taking messages’.
60      Second, the tasks,
set out by the applicant in her application form, consisting of ‘[monitoring] contractual obligations, … [monitoring] and [controlling] payment deadlines and payments reaching maturity’ and ‘[ensuring] the follow-up of projects’ implementation’ relate to the secretarial duty, as set out in the notice of competition, of ‘managing documents and requests for action (receipt, processing, follow-up, and filing of documents, reports and correspondence)’.
61      Third, the tasks, set out by the applicant in her application form, consisting of ‘[assisting] the hierarchy in drafting notes and proposals’ and ‘performing various tasks such as receiving, verifying and regularising administrative documents’ correspond to the secretarial duty, as set out in the notice of competition, of ‘preparing, processing, finalising, and checking documents and tables (editing, formatting)’.
62      Fourth, the tasks, set out by the applicant in her application form, consisting of ‘[updating] databases, [ensuring] the quality of date, [checking] the coherence in the relevant databases and [ensuring] e-archiving’ and ‘[communicating] and [providing] information internally and externally to assist and enable organisational operations’ coincide with the secretarial duty, as set out in the notice of competition, of ‘finding, compiling and disseminating information (updating databases, files)’.
63      Thus, on the basis of a comparison of the text of the description of the tasks provided in the application form and that of the list of secretarial duties set out in the notice of competition, in the light of the eligibility criteria form, it must be stated that the majority of the tasks referred to by the applicant in her application form correspond to secretarial duties.
64      In that regard, the Commission’s answer provided at the hearing to the question concerning the accuracy of that comparison revealed that the selection board’s approach was clearly at odds with the assertion that its assessment had to be flexible
in so far as the tasks in the section relating to tasks were worded in broad terms (see paragraph 29 above).
65      Consequently, in accordance with the case-law cited in paragraph 23 above, the applicant has adduced sufficient evidence to make the findings of the selection board regarding the second professional experience entry set out in her application form implausible.
66      In the light of the foregoing, and in accordance with the principles referred to in paragraphs 53 and 54 above, it must be concluded that the second plea in law is well founded on account of a manifest error in the selection board’s assessment of that professional experience.
67      Therefore, given that it is not disputed that the application of the 50% threshold, as defined by the selection board, to the second professional experience entry set out in the applicant’s application form would have enabled her to qualify for the next stage of the competition, it is appropriate to annul the contested decision, without there being any need to examine the other arguments raised in support of the second plea in law.
Costs
68      Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
69      Since the Commission has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.
On those grounds,
THE GENERAL COURT (Tenth Chamber)
hereby:
1.      Annuls the decision of the selection board of 2 May 2022 rejecting UI’s request for review and confirming the decision of 7 March 2022 not to admit her to the next stage of Open Competition EPSO/AST-SC/10/20 – Secretaries (SC 1/SC 2);
2.      Orders the European Commission to pay the costs.
Porchia
Jaeger
Nihoul
Delivered in open court in Luxembourg on 23 October 2024.
V. Di Bucci
S. Papasavvas
Registrar
President
*      Language of the case: English.