62015TJ0734
JUDGMENT OF THE GENERAL COURT (Appeal Chamber)
15 September 2017 (
*1
)
(Appeal — Civil service — Officials — Open competition — Inclusion on the reserve list — Decision of the appointing authority not to recruit a successful candidate — Respective competences of the selection board and the appointing authority — Conditions of admission to the competition — Minimum duration of professional experience — Rules for calculation — Loss of a chance of recruitment — Claim for damages)
In Case T‑734/15 P,
APPEAL against the judgment of the European Union Civil Service Tribunal (First Chamber) of 6 October 2015, FE v Commission (F‑119/14, EU:F:2015:116), seeking to have that judgment set aside,
European Commission, represented by F. Simonetti and G. Gattinara, acting as Agents,
appellant,
the other party to the proceedings being
FE, represented by L. Levi and A. Blot, lawyers,
applicant at first instance,
THE GENERAL COURT (Appeal Chamber),
composed of M. Jaeger, President, M. Prek (Rapporteur) and S. Frimodt Nielsen, Judges,
Registrar: E. Coulon,
gives the following
Judgment
1
By its appeal lodged under Article 9 of Annex I to the Statute of the Court of Justice of the European Union, the European Commission seeks to have set aside the judgment of the European Union Civil Service Tribunal (First Chamber) of 6 October 2015, FE v Commission (F‑119/14, EU:F:2015:116) (‘the judgment under appeal’), by which it annulled the decision of 17 December 2013 by which the Commission had refused to recruit FE and ordered the Commission to pay EUR 10000 whilst dismissing the action as to the remainder.
Background to the dispute
2
The facts giving rise to the dispute are set out in paragraphs 8 to 20 of the judgment under appeal, as follows:
‘8
On 8 December 2005, the European Personnel Selection Office (EPSO) published competition notice EPSO/AD/42/05 (“the competition”) to constitute a reserve of lawyer-linguists in grade AD 7 with Polish as their main language, from which to fill vacant posts in the EU institutions (notably the Court of Justice of the European Communities) (OJ 2005 C 310 A, p. 3, “the competition notice”) …
9
In section A.I of the competition notice, headed ‘Duties’, the duties to be performed were described in the following terms:
–
“Translating legal texts into Polish from at least two of the official languages of the European Union and/or revising such texts.
–
Checking the Polish version of legislative texts (already translated and revised) for linguistic and legal consistency with the other language versions. Checking their drafting and compliance with formal presentational rules.
…”
10
Furthermore, Section A.II.2 of the competition notice stipulated that, in order to be admitted to the competition tests, candidates were required, as at the closing date for registration for the competition, to show that, “since completing the required abovementioned degree, [they had] had at least two years’ professional experience”.
11
[FE] applied for the competition on 27 December 2005. She stated under the heading “Professional Experience” in her application form for the competition (“the application form”) that she had six periods of professional experience with a total duration of 31 months, of which 15 months had been as a freelance lawyer-linguist for the Court of Justice, from 15 October 2004 up to the date of her application form, and three months had been as an intern in the W. law firm in Brussels (Belgium), from 1 July to 30 September 2005.
12
[FE] was admitted to the competition tests. Upon completion of its work, the selection board included her name on the reserve list for the competition, the expiry date of which had initially been fixed at 31 December 2007 but was deferred, after several extensions, to 31 December 2013, when the list definitively expired.
13
By email of 22 May 2013, [FE] was invited by DG Justice to attend for interview on 28 May, in connection with her potential recruitment to an administrator’s post in that Directorate-General …
14
In June 2013, [FE] was informed by DG Justice that she had been selected for the post of administrator and that a recruitment request had been sent to [DG Human Resources and Security (“DG Human Resources”)].
15
According to the documents on the file, in June 2013, the relevant departments of the Commission had also informed [FE] that “as the Commission was not involved in organising the competition … and the reserve list produced by that competition, on which [FE’s] name appeared, was a list of lawyer-linguists and not administrators, it was necessary to seek a derogation from the Commissioner for Human Resources and Security, as it was Commission policy not to use such lists, with notable exceptions relating to its Legal Service and certain specialised tasks in other [Directorates-General], subject to certain conditions”.
16
By email of 26 July 2013, the head of the contract law unit of DG Justice informed [FE] that DG Human Resources had given its approval for her [derogating] recruitment as an administrator [from] the reserve list of lawyer-linguists, making it clear that DG Human Resources would contact her and that she did not need to take any action before receiving an official communication from that DG.
17
At the end of August 2013, DG Human Resources asked [FE] to provide evidence of the professional experience she had had prior to the date of her application form, with reference to the eligibility condition requiring a minimum of two years’ professional experience set out in the competition notice.
18
During the period from the end of August 2013 to November 2013, [FE] had several meetings with representatives of DG Human Resources and provided various documents and explanations so as to clarify matters relating to the professional experience she had relied on in her application form. On several occasions during that period, the representatives of DG Justice confirmed their interest in recruiting her.
19
By letter of 17 December 2013, the appointing authority informed [FE] that she could not be recruited by DG Justice, on the ground that she did not meet the condition of eligibility for the competition concerning the professional experience required (“the contested decision”). According to the appointing authority, on the closing date for registration for the competition, [FE] had only 22 months of professional experience, rather than the two years required by the competition notice. In arriving at that conclusion the appointing authority had only given credit for seven months of professional experience as a “freelance translator” for the Court of Justice, and two months of professional experience as an intern in the W. law firm, which did not correspond to the 15 months and 3 months which the applicant had declared in the application form. The contested decision also stated that, in relation to the “freelance [work] for the [Court of Justice]”, the duration of [FE’s] professional experience had been calculated on the basis of the total number of pages translated (721) and a standard rate of 5 pages per day, regarded as adequate by the Commission and considerably below the rate of 8 pages per day used by the Court of Justice.
20
On 14 March 2014, the applicant lodged a complaint against the contested decision. That complaint was rejected by a decision of the appointing authority of 14 July 2014 …’
Proceedings at first instance and the judgment under appeal
3
By an application lodged at the Registry of the Civil Tribunal on 24 October 2014, FE brought an action, registered under number F‑119/14, seeking, first, annulment of the decision of 17 December 2013 by which the Commission refused to recruit her (‘the contested decision’) and of the decision of 14 July 2014 rejecting her claim and, second, to have the Commission ordered to pay the sum of EUR 26132.85, together with default interest, as well as pension scheme contributions as from September 2013, and a symbolic euro for the non-material harm caused. She also claimed for the Commission to be ordered to pay the costs.
4
By the judgment under appeal, the Civil Service Tribunal annulled the contested decision and ordered the Commission to pay FE the sum of EUR 10000, whilst dismissing the action as to the remainder. It ordered the Commission to bear its own costs and to pay the costs incurred by FE.
5
The Civil Service Tribunal observed, inter alia, that, unlike the case-law relied on by the Commission, ‘in the present case, while the competition notice undoubtedly required a minimum of two years’ professional experience in the field of translation or, more realistically, legal translation, it contained no explanation as to how professional experience acquired as a self-employed individual was to be taken into account or quantified in terms of duration’ and that, ‘the … argument that the minimum duration of two years’ professional experience must, in the specific case of the competition, be understood as relating, by definition, to professional activity carried out on a full-time basis, the duration of which, moreover, is to be calculated in the manner set out in the contested decision … cannot be accepted’ (paragraphs 51 and 56 of the judgment under appeal).
6
The Civil Service Tribunal also held that, ‘in adopting the contested decision, the appointing authority overstepped its competence to review compliance with the additional condition of eligibility relating to professional experience and thus encroached on the competence which the competition notice had expressly reserved, in this regard, to the selection board, as well as the prerogatives of autonomy and independence of competition selection boards’ (paragraph 71 of the judgment under appeal).
7
Lastly, the Civil Service Tribunal held that, ‘the analysis of [FE’s] professional experience carried out by the Commission with a view to calculating, in accordance with the principles used by its translation services, the number of pages translated by [FE] during her period of activity as a freelance lawyer-linguist to the Court of Justice, as if it was the work of a Commission “translator” that was in question, even supposing it to be plausible, has no basis in any relevant legal provision which can be relied upon directly against [FE] and, accordingly, constitutes a manifest error on the part of the appointing authority which can be readily detected by the [Civil Service] Tribunal’ (paragraph 93 of the judgment under appeal).
8
The Civil Service Tribunal also ruled on FE’s claim for damages and ordered the Commission to pay her the sum of EUR 10000 (paragraph 133 of the judgment under appeal).
Procedure before the Court and forms of order sought by the parties
9
By application lodged at the Court Registry on 17 December 2015, the Commission brought the present appeal.
10
On 15 March 2016, FE lodged a response.
11
By letter lodged on 4 April 2016, the Commission made an application for submission of a reply.
12
By decision of 11 April 2016, the President of the Appeal Chamber allowed that application.
13
On 23 May 2016, the Commission lodged a reply in accordance with Article 201(2) of the Rules of Procedure of the General Court.
14
On 6 July 2016, FE lodged a rejoinder.
15
By letter lodged on 29 July 2016, the Commission informed the Court that it did not wish to present oral argument. FE did not submit a request for a hearing within the time limit laid down in Article 207 of the Rules of Procedure.
16
The Commission claims that the Court should:
–
set aside the judgment under appeal;
–
dismiss the action brought by FE at first instance as unfounded;
–
order each of the parties to bear their own costs in relation to the first instance proceedings;
–
order FE to pay the costs of the present proceedings.
17
FE contends that the Court should:
–
dismiss the appeal;
–
uphold the judgment delivered at first instance;
–
order the Commission to pay the costs of the proceedings at both instances.
The appeal
18
The Commission puts forward three grounds in support of its appeal: (i) a number of errors of law and a distortion in the interpretation of the eligibility condition requiring a minimum period of professional experience; (ii) error of law in the conclusion that the appointing authority committed a manifest error of assessment; and (iii) error of law and a number of infringements of the obligation to state reasons in ordering the Commission to pay FE EUR 10000.
The first ground of appeal: errors of law and a distortion in the interpretation of the eligibility condition requiring a minimum period of professional experience
19
Under the first ground of appeal, the Commission submits that the Civil Service Tribunal made a number of errors of law and distorted evidence in its examination of the first ground of appeal put forward by FE at first instance, alleging a lack of competence on the part of the appointing authority. This ground is divided into three parts.
The first part: error of law in the interpretation of the condition requiring a minimum period of professional experience
20
In paragraphs 51 to 53 and 56 of the judgment under appeal, the Civil Service Tribunal held:
‘51
[In response to the Commission’s assertion that, where a competition notice provides, as a condition of eligibility for the tests, that the applicant must have professional experience of a minimum duration, that period of work must be understood, both by the selection board and by applicants, as relating, by definition, to professional activity carried out on a full-time basis] it should be borne in mind, first of all, that, in the cases referred to by the Commission, which gave rise to the judgment of 31 January 2006, Giulietti v Commission (T‑293/03, EU:T:2006:37), and the orders of 14 December 2006, Klopfer v Commission (F‑118/05, EU:F:2006:137), and of 10 July 2014, Mészáros v Commission (F‑22/13, EU:F:2014:189), the EU judicature undoubtedly held that the duration of the required professional experience was, even where there was no specific indication in the relevant competition notices, to be understood as a duration of full-time professional experience. However, those cases related to professional activity carried out very largely on an employed basis, the duration of which could therefore be readily determined from the contracts of employment or statements of employment provided by the employers. By contrast, in the present case, while the competition notice undoubtedly required a minimum of two years’ professional experience in the field of translation or, more realistically, legal translation, it contained no explanation as to how professional experience acquired as a self-employed individual was to be taken into account or quantified in terms of duration, despite the fact that experience of freelance work of that kind corresponds exactly to the nature of the duties described in the competition notice.
52
Accordingly, in default of any express indication in the competition notice as to how the duration of the required professional experience was to be calculated, or any other useful indication in that regard, the legal rationale of that eligibility condition, particularly as regards candidates, such as [FE], who were able to declare specific experience of freelance work as a lawyer-linguist, certainly could not be to require candidates, in order to prove that the experience in question was equivalent to full-time work, to have translated, on each day of work carried out in that capacity during the two-year reference period, a given number of pages of legal documents. No such condition was laid down by the competition notice, either expressly or by implication, particularly having regard to the other conditions set out in the competition notice.
53
Thus, in the absence of any criteria or detailed provision in the competition notice as to the calculation of the professional experience required to be admitted to the competition, it must be held that the selection board, even on the basis that the duration of professional experience at issue was supposed to be a duration of full-time work, was entitled to rely, in assessing whether to admit [FE] to the tests, on the fact that what was required was “professional” activity as a lawyer-linguist — and thus that the activity could not be “occasional” in nature, and that it was required to concern, mainly, the translation of legal documents — carried out on a continuing basis, or in other words for a significant period of time, to fulfil an order from a professional party, being a public or private person who, on the basis of the relevant contract, was entitled to call for translations of legal documents at any time and, where applicable, within strict deadlines, precisely because its professional or institutional activity required legal translations of a certain standard.
…
56
Accordingly, since, having regard to the fact that the wording of the competition notice is silent on the point, it is not possible to ascribe any other scope to this additional condition of eligibility than that described above, as the principle of legal certainty … would otherwise be infringed, the Commission’s argument that the minimum duration of two years’ professional experience must, in the specific case of the competition, be understood as relating, by definition, to professional activity carried out on a full-time basis, the duration of which, moreover, is to be calculated in the manner set out in the contested decision … cannot be accepted, in default of any indication having been given in the competition notice that, particularly in relation to candidates declaring professional experience as a freelance lawyer-linguist, the full-time duration in question was required to correspond to that calculated by the method used internally by that institution, or in any event by a specific method.’
21
The Commission submits that the Civil Service Tribunal made an error of law in holding that the condition requiring a minimum period of professional experience had to be understood as being carried out on a full-time basis could not be applied in respect of FE because it had not been explicitly stated in the competition notice. That error must lead to the judgment under appeal being set aside because it allowed the Civil Service Tribunal to hold that the selection board’s decision was not unlawful (paragraphs 68 to 70 and 73 to 80 of the judgment under appeal) and that, consequently, the appointing authority, in deciding not to recruit FE, had overstepped its competence (paragraph 71 of the judgment under appeal) and thereby adopted an unlawful decision (paragraph 82 of the judgment under appeal).
22
FE disputes that argument and submits inter alia that the Civil Service Tribunal did not disregard the case-law concerning the minimum period of professional experience, but rather applied it whilst adapting it to the particularities of work carried on as a self-employed individual. This is apparent inter alia from paragraphs 53, 54 and 80 of the judgment under appeal. The Civil Service Tribunal merely disapproved of the manner in which the appointing authority applied that case-law to the present case. Thus it observed both the principles of legal certainty and equal treatment, on the one hand, whilst ensuring independence of the selection board and its broad discretion, on the other, as well as the role of the competition notice. FE adds that, in the present case, the competition notice did not specify in any way the manner in which the required professional experience was to be assessed. In her submission, given the purpose of the competition, that experience could be acquired as a self-employed individual.
23
It must be borne in mind, first of all, that the essential function of a notice of competition is to give those interested the most accurate information possible about the conditions of eligibility for the post in question, so as to enable them to judge whether they should apply for it. The appointing authority enjoys a broad discretion in deciding upon the criteria of ability required for the posts to be filled and in determining the rules and conditions under which a competition is organised in the light of those criteria and in the interests of the service (see judgment of 31 January 2006, Giulietti v Commission, T‑293/03, EU:T:2006:37, paragraph 63 and the case-law cited).
24
At the same time, the notice of competition can, lawfully, merely repeat the general wording of Article 5(1) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), without specifying the level of experience required for the post to be filled, and thus leave it to the Selection Board to decide in each case whether the qualifications and diplomas produced and the relevant experience claimed by each candidate correspond to the level required by the Staff Regulations and, therefore, by the notice of competition, for the discharge of duties pertaining to the category to which that notice relates (see judgment of 31 January 2006, Giulietti v Commission, T‑293/03, EU:T:2006:37, paragraph 64 and the case-law cited).
25
In the present case, Section A.II.2 of the competition notice stipulated that, in order to be admitted to the competition tests, candidates were required, as at the closing date for registration for the competition, to show that, ‘since completing the required abovementioned degree, [they had] had at least two years’ professional experience’. It is also noteworthy that that notice did not specify the kind of professional experience or the area in which it had to be acquired. Similarly, as is apparent from the case file at first instance, nor was any other explanation given as to how different segments of experience were to be acquired, either in the competition notice or in the Guide for applicants (OJ 2005 C 327 A, p. 3), referred to in the competition notice.
26
In that regard, in paragraph 70 of the judgment of 31 January 2006, Giulietti v Commission (T‑293/03, EU:T:2006:37), the Court stated that, in a case such as the one before it then, where a condition in the competition notice was drafted in such 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.
27
The Court further clarified, however, in paragraphs 71 and 72 of the judgment of 31 January 2006, Giulietti v Commission (T‑293/03, EU:T:2006:37), that, in requiring that the professional activity be carried out for a minimum period, the competition notice necessarily required the actual pursuit of that activity during that period, which therefore could only be construed as referring to a period of work carried out on a full-time basis during that minimum period or to a period of work carried out during a period or periods of part-time work equivalent (in terms of time worked) to the minimum full-time period. Thus, the selection board could, for the purpose of admitting external candidates, calculate and take account of periods of non-exclusive and part-time professional experience, provided that the total of those periods met the minimum full-time period required.
28
The Court further held that, in the circumstances of the case that gave rise to the judgment of 31 January 2006, Giulietti v Commission (T‑293/03, EU:T:2006:37), in applying the criterion relating to the requirement of full-time work, the selection board could not be held to have acted contrary to the terms of the competition notice or to have imposed additional conditions going beyond the eligibility conditions laid down in that notice (judgment of 31 January 2006, Giulietti v Commission, T‑293/03, EU:T:2006:37, paragraph 76).
29
It follows from all the foregoing that, in the present case, the competition notice required only that the professional activity be carried out for a minimum of two years, with that condition to be construed as referring to a period of work carried out on a full-time basis for two years or to a period of work carried out on a part-time basis during a period or periods of time, or as a self-employed individual, equivalent (in terms of time worked) to a period of two years of full-time work.
30
That interpretation is in keeping with the case-law cited by the Civil Service Tribunal in paragraph 51 of the judgment under appeal and is also the only one that guarantees uniform application of the recruitment procedure to all candidates in the competition to be ensured since, depending on whether the activity is carried out full-time, half-time, quarter-time or one day a week for three years, the period of activity required may vary considerably and may give rise to unequal treatment as between candidates in terms of the duration of experience required (judgment of 31 January 2006, Giulietti v Commission, T‑293/03, EU:T:2006:37, paragraphs 74 and 75).
31
The Civil Service Tribunal did state correctly, in paragraphs 51 and 52 of the judgment under appeal, that in the present case, ‘the competition notice … contained no explanation as to how professional experience acquired as a self-employed individual was to be taken into account or quantified in terms of duration’ and that, as regards FE, the legal rationale of the eligibility condition relating to the duration of professional experience required ‘certainly could not be to require candidates, in order to prove that the experience in question was equivalent to full-time work, to have translated, on each day of work carried out in that capacity during the two-year reference period, a given number of pages of legal documents’.
32
However, after referring, in paragraph 53 of the judgment under appeal, to the requirement that even on the basis that the duration of professional experience at issue was supposed to be a duration of full-time work, the Civil Service Tribunal went on to hold, in paragraph 56, that ‘the Commission’s argument that the minimum duration of two years’ professional experience [had to], in the specific case of the competition, be understood as relating, by definition, to professional activity carried out on a full-time basis … cannot be accepted’.
33
It should also be noted in that regard that the Civil Service Tribunal’s conclusions in paragraph 51 of the judgment under appeal are based on an incorrect reading of the judgment of 31 January 2006, Giulietti v Commission (T‑293/03, EU:T:2006:37), in particular and the competition notice as well. First of all, it is apparent from that judgment that the applicant’s professional experience at issue in that litigation had not been carried out as on an employed basis, the duration of which could therefore have been readily determined from the contracts of employment or statements of employment provided by the employers, but as president of the board of a foundation carried out part-time on a voluntary basis without time or schedule restraints and in parallel with another activity that could not be taken into account (see, to that effect, judgment of 31 January 2006, Giulietti v Commission, T‑293/03, EU:T:2006:37, paragraphs 11 to 14, 61, 81 and 82). The Civil Service Tribunal thus stated, incorrectly, that unlike the circumstances having given rise to that judgment, in the present case the competition notice ‘contained no explanation as to how professional experience acquired as a self-employed individual was to be taken into account or quantified in terms of duration, despite the fact that experience of freelance work of that kind correspond[ed] exactly to the nature of the duties described in the competition notice’. Also in that case, the competition notice did not provide the selection board with any precise indication as to the interpretation to be given to the condition of minimum previous professional experience or as to how any experience not acquired on an employed basis or on a full-time basis was to be taken into account (judgment of 31 January 2006, Giulietti v Commission, T‑293/03, EU:T:2006:37, paragraphs 3 and 70).
34
Secondly, the Civil Service Tribunal held, incorrectly, that in the present case the competition notice required a minimum of two years of professional experience ‘in the field of translation or, more realistically, legal translation’. In fact, the competition notice stated only that candidates had to show, ‘[s]ince completing the required … degree, … at least two years’ professional experience’, without specifying the field in which the experience was acquired.
35
It follows from the foregoing that, in holding, inter alia, in paragraph 56 of the judgment under appeal, that, in the absence of specific provision to that effect in the competition notice, the selection board was not bound to interpret the two-year minimum professional experience requirement as referring to an activity carried out on a full-time basis, the Civil Service Tribunal made an error of law.
36
Such an error of law cannot, however, in the present case, in itself lead to the judgment under appeal being set aside. In order to determine whether it should be, it is appropriate to examine whether the Civil Service Tribunal’s findings were then actually vitiated by the incorrect postulate set out by it in paragraph 56 of the judgment under appeal.
The second part of the first ground of appeal: error of law in the Civil Service Tribunal’s assessment of the relationship between the selection board and the appointing authority
37
The Commission challenges paragraphs 38 and 71 of the judgment under appeal, where the Civil Service Tribunal held, in essence, that in deciding at the recruitment stage to remove FE from the reserve list on eligibility grounds not found in the competition notice, the appointing authority overstepped the bounds of its competence in reviewing compliance with the additional eligibility condition relating to professional experience.
38
In that regard, the Commission submits that the appointing authority’s adoption of the contested decision could not be categorised as interference in the selection board’s competences, as that decision was necessary to rectify an illegality committed by it, since the appointing authority is not bound by decisions of the selection board which are vitiated by illegality.
39
FE replies that the Commission is basing itself on an incorrect reading of the judgment under appeal, in which the Civil Service Tribunal held, correctly, that there was no reason to prefer one institution’s calculation method over the other’s, such as the Commission’s, for example, and that, moreover, the selection board’s assessment of that experience was more plausible than that carried out by the appointing authority. In any event, the arguments put forward by the Commission under this part provide no support for its conclusion that the Civil Service Tribunal was incorrect in holding that the appointing authority had overstepped its competences. The finding that the appointing authority had overstepped its competences in adopting the contested decision is the inevitable and necessary consequence of the finding that the selection board had made no manifest error of assessment.
40
In that regard, it follows from the examination of the first part of the present ground of appeal that, firstly, the condition requiring a minimum period of professional experience in the present case had to be construed as professional experience carried out on a full-time basis and, secondly, the selection board had broad discretion in determining whether candidates fulfilled that condition.
41
In paragraph 66 of the judgment under appeal, the Civil Service Tribunal held that there was no ‘legal basis empowering and entitling the appointing authority to exclude a successful candidate from the reserve list, after the event, on the basis that she had not met a condition of eligibility which did not appear in the competition notice that the appointing authority itself had adopted and which, equally, did not appear in a provision of the Staff Regulations or any other legal text which was binding on candidates’.
42
The Civil Service Tribunal considered that the unlawfulness on which the appointing authority sought to rely, in those circumstances, as against FE, would not arise ‘from a manifest error made by the selection board in assessing a specific condition of eligibility intended by the competition notice or appearing in a provision of the Staff Regulations, but from the error made by the appointing authority itself in not incorporating, in the competition notice, an additional clause stipulating that the minimum of two years’ professional experience which was required for admission to the competition tests was two years of full-time professional experience, and that this was to be calculated according to principles laid down clearly in advance, non-observance of which would prevent the candidate from being admitted to the competition tests’. It accordingly considered that the appointing authority’s decision in the case was tantamount to ‘regularis[ing] the competition notice after the event … at the recruitment stage’ (paragraph 67 of the judgment under appeal).
43
That conclusion is confirmed in paragraph 68 of the judgment under appeal, where the Civil Service Tribunal stated, in essence, that, in order for the condition at issue in the present case to be construed as two years’ full-time professional experience, ‘which would have been a legally binding requirement as regards both the selection board and the candidates, such that candidates who did not fulfil it would have been eliminated from the competition’, the appointing authority ought to have stated it in the competition notice.
44
On the basis of that conclusion, the Civil Service Tribunal held, firstly, that the respective decisions of the selection board and of the appointing authority merely reflected a difference in the methods used by the selection board in calculating the minimum period of professional experience laid down in the competition notice and that employed by the appointing authority in calculating full-time work according to the specific criteria and, secondly, that in those circumstances the Commission had not established proof of a manifest omission by the selection board in ascertaining whether the eligibility condition relating to professional experience was fulfilled in the case of FE (paragraphs 68 to 70 of the judgment under appeal).
45
The Civil Service Tribunal accordingly held that, in adopting the contested decision, the appointing authority had overstepped its competence in reviewing compliance with the additional eligibility condition relating to professional experience, thereby encroaching on the competence which the competition notice had expressly reserved, in this regard, to the selection board, as well as the prerogatives of autonomy and independence of competition selection boards (paragraph 71 of the judgment under appeal).
46
As held under the first part of the present ground of appeal, the eligibility condition requiring a minimum of two years’ professional experience, construed as relating to professional activity carried out on a full-time basis, could be relied on in the present case without being specified in the competition notice.
47
It follows that the Civil Service Tribunal erred in law in paragraph 71 of the judgment under appeal.
48
Therefore, the second part of the first ground of appeal must be upheld.
Third part of the first ground of appeal: error of law in the Civil Service Tribunal’s definition of the conditions for manifest error of assessment by the selection board, distortion of the evidence in the case file and error of law in finding that the Commission’s application of the method for calculating professional experience was unlawful
49
The Commission disputes paragraphs 57 to 82 of the judgment under appeal, concerning the Civil Service Tribunal’s examination in turn of the method for calculating the minimum two years’ professional experience, the appointing authority’s power to remove FE from the reserve list of successful candidates and also the possible manifest error made by the competition selection board in the assessment of the duration of FE’s professional experience. In the Commission’s submission, the Civil Service Tribunal found, incorrectly, that no manifest error had been proven in the selection board’s decision to admit FE to the competition.
50
In paragraph 70 of the judgment under appeal, the Civil Service Tribunal considered that the Commission not produced evidence of a ‘manifest omission on the part of the selection board [to take account of the eligibility condition of professional experience] or, for that matter, evidence that [FE] was admitted to the competition tests on the basis of a decision of the selection board which had been taken in a manifestly arbitrary way as regards the terms of the competition notice’ and that ‘there [was] nothing to indicate that the board had not examined [the documents submitted by FE], for example on the basis set out in paragraphs 53 and 55 [of the judgment under appeal]’.
51
By a first complaint, the Commission submits that the Civil Service Tribunal made an error of law. Instead of considering whether the arguments put forward by the Commission might undermine the plausibility of the selection board’s decision, it identified the criteria which, in its view, enabled it to conclude that the selection board had discharged its obligation to calculate FE’s professional experience. The Civil Service Tribunal was also incorrect in requiring proof of a manifest error in calculation of the professional experience or a manifestly arbitrary admission to the competition by the selection board.
52
In FE’s submission, this complaint is inadmissible inasmuch as it criticises findings of fact. As to the merits, she argues that it was for the appointing authority to prove that the selection board’s decision was vitiated by a manifest error, as that decision benefits from a presumption of lawfulness, which also restricts the appointing authority’s powers of review. In her submission, the Civil Service Tribunal carried out precisely that examination of manifest error, inter alia in paragraphs 72 to 82 of the judgment under appeal, in the light of the factors identified by it on the basis of the competition notice, in paragraphs 53 and 55 of the same judgment. Lastly, FE submits that the Commission’s arguments are contradictory in nature.
53
It should be noted that, by the present complaint, the Commission does not dispute the factual findings made by the Civil Service Tribunal in the judgment under appeal relating to manifest error of assessment, but rather its conclusions about the selection board’s obligations and the Commission’s burden of proof. Those findings raise questions of law which may be reviewed on appeal.
54
As was held in relation to the first part of the present ground of appeal and as observed by the Civil Service Tribunal in paragraph 80 of the judgment under appeal, in the present case the selection board had a broad discretion concerning the equivalence, in terms of working time, between activity carried out on a freelance basis with variable working hours and work carried out on a full-time basis.
55
However, although according to settled case-law, even though the appointing authority does not have the power to annul or amend a decision taken by a competition selection board, it is, however, required, in exercising its own powers, to take decisions free of irregularities. It cannot therefore be bound by the decision of a selection board the illegality of which decision is liable to vitiate its own decisions. That is the reason why the appointing authority is required to verify, before appointing a person as an official, whether that person satisfies the conditions required for that purpose. Where the selection board wrongly allows a candidate to take part in a competition and subsequently places him on the reserve list, the appointing authority must express its refusal to appoint that candidate by way of a reasoned decision from which the Union judicature can judge whether the refusal is well founded (see judgment of 15 September 2005, Luxem v Commission, T‑306/04, EU:T:2005:326, paragraph 23 and the case-law cited).
56
Given the selection board’s broad discretion in determining whether candidates’ previous professional experience satisfies the conditions for being admitted to the competition, the appointing authority, in its review of the lawfulness of selection board decisions, must restrict itself to ensuring that the selection board’s exercise of its discretion was not vitiated by a manifest error.
57
On that last point, it has been held that an error may be said to be manifest only where it may easily be detected in the light of the criteria to which the legislature intended the exercise by the administration of its broad discretion to be subject. Consequently, in order to establish that a manifest error was made in the assessment of the facts such as to justify the annulment of a decision, it is necessary to demonstrate that the findings made in the decision at issue are implausible. In other words, there cannot be manifest error if the contested assessment may be accepted as true or valid (see judgment of 23 October 2012, Eklund v Commission, F‑57/11, EU:F:2012:145, paragraph 51 and the case-law cited).
58
Firstly, it follows from the foregoing considerations that, first, before appointing FE, the appointing authority was under an obligation to review the selection board’s decision to admit her to the competition and, second, it had to refuse to appoint her if it took the view that the selection board’s decision was vitiated by a manifest error of assessment.
59
In the present case, the competition selection board decided to admit FE to the competition. Even though no reasons were given for that decision, it is logical to infer therefrom that it considered that the candidate had shown that she fulfilled the eligibility condition requiring a minimum period of previous professional experience.
60
Thus, contrary to what the Civil Service Tribunal held in paragraphs 69 and 70 of the judgment under appeal, it was not for the appointing authority to prove specifically that the selection board had not considered at all whether FE fulfilled the condition requiring a minimum period of professional experience, but instead to ascertain whether it had taken account of the fact that a lot of that experience had been acquired on a freelance basis and whether, without making a manifest error of assessment, it had calculated that experience as work time carried out on a full-time basis.
61
In that regard, the lack of information about the selection board’s assessments in no way prevents the appointing authority from considering that the former’s decision to admit FE to the competition could be vitiated by a manifest error of assessment.
62
Therefore, the Civil Service Tribunal could not, without making an error of law, conclude that the appointing authority had the competence to adopt the contested decision only if it was obvious that the selection board had omitted to take account of the eligibility condition relating to professional experience and to calculate the duration thereof or if the selection board decided to admit FE to the tests of the competition in a manifestly arbitrary manner having regard to the terms of the competition notice.
63
Secondly, in paragraphs 53 and 55 of the judgment under appeal, referred to by the Civil Service Tribunal in paragraph 70 of the same judgment, it held that, in determining whether to admit FE to the tests, the selection board could rely inter alia ‘on the fact that what was required was “professional” activity as a lawyer-linguist — and thus that the activity could not be “occasional” in nature, and that it was required to concern, mainly, the translation of legal documents — carried out on a continuing basis, or in other words for a significant period of time, to fulfil an order from a professional party, being a public or private person who, on the basis of the relevant contract, was entitled to call for translations of legal documents at any time and, where applicable, within strict deadlines, precisely because its professional or institutional activity required legal translations of a certain standard’, and that ‘the selection board … was required to assess whether the experience acquired was professional experience differently according to whether it related to activity as a“freelance translator” or as a “freelance lawyer-linguist”, particularly where the latter activity had been carried out for the benefit of an EU institution which, like the Court of Justice, requires its service providers to translate only documents which are entirely legal in content’.
64
As argued by the Commission, those eligibility criteria could not be relevant for assessing the condition relating to duration of previous professional experience in the present case. Firstly, the competition notice stated that candidates had to show a minimum of professional experience, not experience in the field of translation of legal texts (see also paragraph 34 above). Nor did the competition notice provide any instruction as to the nature of the minimum professional experience or its connection with the duties to be performed, as observed by the Civil Service Tribunal itself in paragraph 46 of the judgment under appeal. Secondly, in identifying those criteria, the Civil Service Tribunal ruled on the characteristics and obligations of a lawyer-linguist’s work and on the differences between work as a ‘freelance translator’ and as a ‘freelance lawyer-linguist’, without however basing those conclusions on the material in the file.
65
Therefore, in identifying, in paragraphs 53 and 55 of the judgment under appeal, criteria for the assessment of the eligibility condition in question, which were not part of the file submitted by the parties at first instance, the Civil Service Tribunal made an error of law.
66
Thirdly, in paragraphs 73 to 82 of the judgment under appeal, the Civil Service Tribunal applied the criteria identified in paragraphs 53 and 55 of that judgment as part of the assessment of whether a ‘manifest error potentially made by the selection board in assessing the duration of [FE’s] professional experience’, without properly addressing the arguments put forward by the Commission on that point and summarised in paragraph 76 of the judgment under appeal. The Civil Service Tribunal went on to conclude that nor had the Commission proven that the selection board made a manifest error in calculating the duration of FE’s professional experience (paragraph 81 of the judgment under appeal).
67
The errors of law made by the Civil Service Tribunal in paragraphs 53, 55 and 56 of the judgment under appeal, as identified as part of the examination of the first part and of the present complaint of the third part of the first ground of appeal thus vitiated by an error of law its assessment by which it held, in paragraphs 75 to 81 of its judgment, that nor had the Commission proven that the selection board made a manifest error in calculating the duration of FE’s professional experience. The grounds on which the Civil Service Tribunal based itself did not legitimately support that conclusion.
68
By a second complaint, the Commission submits that the Civil Service Tribunal distorted the evidence in the file, as it did not support the finding, in paragraphs 61 and 77 of the judgment under appeal, that there were no reasons to believe that the selection board had overlooked the freelance nature of FE’s work.
69
As argued by FE, this complaint must be rejected. The Commission has not adduced any evidence showing that any calculations by the selection board of FE’s professional experience leading to the conclusion that it had not properly calculated that experience in terms of full-time work — possibly using a different method than the one employed by the appointing authority — or assessed that experience on the basis of other criteria, for example, those referred to by the Civil Service Tribunal in paragraphs 53 to 55 of the judgment under appeal.
70
In that regard, it must be borne in mind that, in accordance with settled case-law, the assessment of the facts by the first instance court therefore does not, except in the case of distortion of the evidence submitted to that court, constitute a question of law which, as such, is subject to review by the appeal court. Such distortion must be obvious — without any need for a new assessment of the facts and the evidence — from the documents on the Court’s file (see judgment of 4 July 2014, Kimman v Commission, T‑644/11 P, EU:T:2014:613, paragraph 105 and the case-law cited). Whilst the Commission may argue that there has been a distortion of the evidence in the case file, in reality it is seeking a fresh assessment of the facts, which is outside the scope of review of the appeal court.
71
The third complaint of the third part alleges an error of law in the Civil Service Tribunal’s conclusion, in paragraphs 57 to 61 of the judgment under appeal, to the effect that the selection board was under no obligation to apply the criterion of conversion of pages translated into days worked, as it was applied by the appointing authority. In the Commission’s submission, the work on which FE relied was actually translation work.
72
FE submits that this part is inadmissible. As to the merits, she argues that, in the absence of precise rules in the competition notice and in the Guide for applicants, the selection board could apply the criteria for assessing the duration of professional experience that it had established itself for that purpose.
73
This complaint must be rejected. As held in paragraph 35 above, the Civil Service Tribunal made an error of law in holding, in paragraph 56 of the judgment under appeal, that the selection board was not obliged to calculate the duration of professional experience in terms of full-time work.
74
It should be pointed out, however, that in applying the eligibility condition thus defined, the selection board was free to employ any method of calculation that would enable it to calculate the period of FE’s professional experience in question in terms of full-time work. Consequently, the Commission’s argument that the criterion of conversion of pages translated into days worked was obligatory cannot be upheld.
75
In the light of all the foregoing, the first and second parts must be upheld, as must the first complaint of the third part of the first ground of appeal, whilst the second and third complaints of the third part of the first ground of appeal must be rejected as inadmissible and unfounded, respectively.
76
The errors of law found in paragraphs 35, 47, 62, 65 and 67 above do not, however, warrant setting aside the judgment under appeal inasmuch as the Civil Service Tribunal also upheld the second plea in law put forward in the alternative by FE at first instance, in holding that the appointing authority had made a manifest error of assessment (paragraphs 83 to 94 of the judgment under appeal).
The second ground of appeal: error of law in the conclusion that the appointing authority made a manifest error of assessment
77
In paragraphs 91 to 93 of the judgment under appeal, ruling on the second ground of appeal, alleging, inter alia, manifest error of assessment by the appointing authority, the Civil Service Tribunal held that the method for calculating the duration of the professional experience applied by the appointing authority ‘[had not been] set out in [the Communication from the Vice-President of the Commission SEC (2004) 638 of 25 May 2004 on translation requirements] as a mandatory criterion of selection for admission to the tests of a competition directed specifically to the recruitment of lawyer-linguists’, ‘was not set out in the competition notice’, ‘nor had it been published in such a way as to be accessible or necessarily known to the selection board or the candidates concerned’, ‘[did] not correspond to those used by the translation departments of the other institutions which were able to recruit lawyer-linguists’ and that therefore it was not ‘common to the EU institutions’. On the basis of those considerations, the Civil Service Tribunal concluded that the appointing authority ‘could not use a method of calculation which was exclusive to the Commission’s internal operations, and thus not interinstitutional, and which was therefore not pertinent, as the competition in fact concerned the recruitment of lawyer-linguists, and not binding on persons external to the institution’.
78
Thus, in paragraph 93 of the judgment under appeal, the Civil Service Tribunal held that the Commission’s analysis, ‘even supposing it to be plausible, has no basis in any relevant legal provision which can be relied upon directly against [FE] and, accordingly, constitutes a manifest error on the part of the appointing authority which can be readily detected by the Tribunal’, and upheld the second plea in law put forward by FE before it.
79
In the Commission’s submission, the lack of provision in the competition notice of a method for calculating professional experience does not preclude the selection board from applying it. Moreover, the issue of potential non-compliance with the condition relating to professional experience may be raised up to the moment of recruitment. A non-application of calculation criteria clearly would run counter to the requirement of equal treatment of candidates. Lastly, the Civil Service Tribunal’s conclusion is self-contradictory and therefore an infringement of the obligation to state reasons: see paragraph 93 of the judgment under appeal, in which it recognised that the Commission’s application of the conversion criteria could be considered ‘plausible’, which, under the case-law dealing with the concept of manifest error of assessment, rules out such an error.
80
FE replies that, in the absence of a calculation method in the relevant provisions, the Commission’s services could apply those methods in an arbitrary and non-transparent manner, whereas the selection board is bound by those provisions. Moreover, whether the conversion rule is internal or interinstitutional is irrelevant for the assessment of the reasons of the judgment under appeal, which is based on that rule being binding. Lastly, the reference to the ‘plausibility’ of the analysis of FE’s professional experience is a rhetorical feature indicative of the purely hypothetical nature of the supposition and the superfluity of the other arguments put forward by FE in the second plea in law of her action at first instance.
81
The conclusion is that the Civil Service Tribunal based its conclusion that the appointing authority had made a manifest error of assessment in finding that the method of calculation used by that authority, consisting in calculating the duration of professional experience according to a ratio of five pages of translation per day (see paragraph 90 of the judgment under appeal), was not only not based on any known legal provision, but nor was it common to all EU institutions. The Civil Service Tribunal’s application of that method amounted to a manifest error of assessment, inter alia because it was exclusively internal to the Commission and, as such, was neither relevant nor binding on persons external to the Commission, such as FE (paragraph 92 of the judgment under appeal).
82
By contrast, in paragraphs 86 and 94 of the judgment under appeal, the Civil Service Tribunal did not rule on the question whether the appointing authority’s assessment of FE’s professional experience could be accepted as plausible (paragraph 93 of the judgment under appeal), preferring instead to limit its assessment to the finding that the method of calculation used by the appointing authority could not be relied on as against FE. In reaching such a conclusion, the Civil Service Tribunal did not actually rule on the complaint of manifest error of assessment, but rather on the complaint alleging infringement of the principle of legal certainty.
83
In the first place, as evidenced by the case-law cited in paragraph 57 above, in order to establish whether a manifest error was made in the assessment of the facts such as to warrant annulment of a decision, it is necessary to show that the assessments endorsed in the contested decision are not plausible.
84
In holding in paragraph 93 of the judgment under appeal that the appointing authority had made a manifest error of assessment, without ruling on whether or not its analysis of FE’s professional experience was plausible, the Civil Service Tribunal infringed its obligation to state reasons as provided for in Article 36 of the Statute of the Court of Justice of the European Union.
85
In the second place, as regards the principle of legal certainty, it should be noted, as observed by the Civil Service Tribunal in paragraph 42 of the judgment under appeal, that a competition notice would be deprived of its purpose, which is to inform candidates of the conditions that must be satisfied in order to fill a post, if the administration were able to remove a candidate on a ground not expressly stated in the notice of competition or in the Staff Regulations, or that has not been published (see, regarding the vacancy notice, judgments du 14 April 2011, Šimonis v Commission, F‑113/07, EU:F:2011:44, paragraph 74, and of 15 October 2014, Moschonaki v Commission, F‑55/10 RENV, EU:F:2014:235, paragraph 42).
86
However, although that requirement precludes the use of an eligibility condition not stated in the competition notice or elsewhere to exclude a candidate from a competition, it cannot be interpreted as obliging the appointing authority to state in competition notices the different possible calculation method or methods for the application of such eligibility conditions as well. Such an interpretation would virtually remove the selection board’s broad discretion in the assessment of compliance with the criteria laid down in those competition notices.
87
Therefore, in adopting the contested decision, the appointing authority infringed the principle of legal certainty.
88
In the rejoinder, FE argues that, unlike in the present case, the competition notice at issue in the judgment of 31 January 2006, Giulietti v Commission (T‑293/03, EU:T:2006:37), contained a specific and detailed description of the nature of professional experience required and of the posts in which it could be acquired. That judgment also confirms that it is for the competition selection board, in its broad discretion, to determine whether the candidates fulfil the conditions. Decisions of a selection board to which the appointing authority has given no indication as to the exercise of its discretion cannot subsequently be called into question by the appointing authority on the basis of criteria by which the selection board was not bound.
89
That argument must be rejected. The present ground of appeal concerns the relevance and the binding nature of the calculation method used by the appointing authority in the present case and not the question of the discretion exercised by the selection board in regards to the eligibility conditions provided by the competition notice.
90
In the light of the foregoing, the Civil Service Tribunal made an error of law in holding that the calculation method used by the appointing authority was neither relevant nor binding in the present case, it had made manifest error of assessment.
91
Accordingly, the second ground of appeal must be upheld.
Partial annulment of the judgment under appeal
92
Since the first part, the second part and the first complaint of the third part the first ground of appeal, and also the second ground of appeal have been upheld, it follows that the judgment under appeal must be set aside in so far as it annuls the contested decision on the ground that the appointing authority was not competent to adopt it and made a manifest error of assessment.
93
In those circumstances, the Civil Service Tribunal’s decision ordering the Commission to pay damages to FE, which was based on its finding that an examination of the first plea in law put forward before it showed that the contested decision was vitiated by unlawfulness (see paragraph 121 of the judgment under appeal), is without legal foundation.
94
It follows that, without its being necessary to examine the third ground of appeal, points 1 and 2 of the operative part of the judgment under appeal must be set aside.
95
By contrast, it is not necessary to set aside point 3 of the operative part of the judgment under appeal, by which the Civil Service Tribunal dismissed FE’s action as to the remainder, as that decision was not affected by the fact that the first part, the second part and the first complaint of the third part of the first plea in law and the second plea in law were upheld.
96
Lastly, in view of the fact that the judgment under appeal is to be set aside in part, the Civil Service Tribunal’s decision on costs and, therefore, point 4 of the operative part of the judgment under appeal must also be set aside.
The action at first instance
97
Under Article 4 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), where the General Court sets aside a decision of the Civil Service Tribunal and considers that the state of the proceedings does not permit a decision, the chamber that rules on the appeal is also to rule on the dispute. That is so in the present case.
98
In that regard, in view of the fact that the judgment under appeal is being set aside only in so far as it is vitiated by the errors established in paragraphs 35, 47, 62, 65, 67 and 90 above, which relate to the allegations set out in the first and second pleas put forward at first instance alleging a lack of competence on the part of the appointing authority, manifest error of assessment and infringement of the principle of legal certainty, the other determinations made by the Civil Service Tribunal have become definitive.
99
In particular it should be noted that in the present proceedings no doubt has been cast on the Civil Service Tribunal’s finding in paragraph 105 of the judgment under appeal, to the effect that FE’s claim for annulment directed against the decision rejecting the complaint has no independent content and, accordingly, should be regarded as formally directed against the contested decision, as clarified by the decision rejecting the complaint. The same is true of the Civil Service Tribunal’s assessment in paragraphs 101 to 109 of the judgment under appeal, by which it rejected the third plea put forward at first instance, alleging the infringement of the principle of good administration and the duty to have regard for the welfare of officials, as well as failure to act within a reasonable time.
100
Thus, the Court must rule definitively on the action initially brought by FE before the Civil Service Tribunal by ruling on the complaints of the second and fourth pleas in law, which were not examined by the Civil Service Tribunal.
101
In that regard, in the first place, it follows from the analysis of the first ground of appeal put forward in the present appeal that, in the present case, the eligibility condition requiring a minimum period of previous professional experience had to be construed as referring to a period of work carried out on a full-time basis and that, before recruiting FE, the appointing authority was under an obligation to ascertain whether she fulfilled that condition.
102
Moreover, the fact that the calculation method for calculating previous professional experience was not stated in the competition notice cannot be interpreted as allowing the selection board not to make any calculation of the duration of that experience in terms of full-time work.
103
In those circumstances, in examining FE’s file before recruiting her, the appointing authority detected that work as a freelance lawyer-linguist claimed by her accounted for almost half of her professional experience (15 months out of a total of 31 months) and almost two thirds of the minimum period of the 24 months required, that during that period FE had translated a total of 721 pages and that, in parallel with part of that activity, she had pursued a course of study (see paragraphs 11, 19, 78 and 79 of the judgment under appeal). In those circumstances, the appointing authority was justified in examining the duration of FE’s previous professional experience.
104
In the second place, as regards the second plea in law put forward in the alternative by FE at first instance and, firstly, the alleged manifest error of assessment made by the appointing authority, the calculation method consisting of quantifying the work performed on the basis of the number of pages translated is widely used in the translation sector, both by the institutions and in the private sector, probably because it is considered the most objective. It is also used inter alia by the Court of Justice of the European Union, including for lawyer-linguists, and for payment for freelance translation services. It is also clear that the purchase orders from the Court of Justice of the European Union submitted by FE state ‘translation of the document’ as the task to be performed, the deadline for that task, the number of pages in the document concerned, the price per page and the total amount to be paid. Moreover, nowhere did the Civil Service Tribunal find that, in order to claim her experience as a ‘freelance lawyer-linguist’, FE adduced evidence establishing that, in that capacity, she performed tasks other than the translation of legal documents for the Court of Justice of the European Union.
105
Nor can the fact that the appointing authority used the criterion of the number of pages translated per day employed by the Commission’s translation services, namely five pages per working day, be considered in itself to be manifestly incorrect.
106
In that regard, the decision of the selection board decision and that of the appointing authority in the present case do not have the same scope. Although the first of those decisions leads to the admission (or not) of a candidate to the competition, the decision of the appointing authority is limited to the potential recruitment of the successful candidate by a given institution. It must be remembered that — contrary to what seems to be stated, inter alia, in paragraphs 62 to 72 of the judgment under appeal, where the Civil Service Tribunal examined ‘the appointing authority’s power to exclude [FE] from the reserve list of successful candidates’ ‐ according to settled case-law based on the principle of independence of selection boards, the appointing authority does not have the power to annul or modify a decision taken by the competition selection board (judgments of 20 February 1992, Parliament v Hanning, C‑345/90 P, EU:C:1992:79, paragraph 22, and of 15 September 2005, Luxem v Commission, T‑306/04, EU:T:2005:326, paragraphs 22 and 24). Moreover, with FE wishing to be recruited to the Commission and in the absence of a generally applicable interinstitutional method or indications of a plausible calculation having been made by the selection board, the appointing authority of the Commission was quite right to apply the calculation method in translation-related matters.
107
Moreover, as regards the Civil Service Tribunal’s explanation to the effect that the present case concerned specifically the translation of legal texts and/or the verification of the linguistic and legal consistency of legislative texts (paragraph 90 of the judgment under appeal), it should be noted that FE did not adduce any evidence showing that, on the basis of a calculation method applying a different ratio of pages translated per day, used inter alia at the Court of Justice of the European Union, she could have fulfilled the requirement of minimum two years’ previous professional experience.
108
The appropriate conclusion to be drawn here is that the calculation method used by the appointing authority was not unreasonable and that FE has failed to show that, by using a different calculation method, the appointing authority could have reached a different decision. Accordingly, the application of that calculation method cannot be considered manifestly incorrect.
109
Lastly, the argument that the appointing authority made a manifest error of assessment in finding that FE’s internship with the law firm W in Brussels had lasted two months instead of three must be rejected as ineffective. Even if the appointing authority had made such an error, that does not change its decision that FE did not fulfil the eligibility condition for the competition in question.
110
Secondly, the complaint put forward by FE at first instance, alleging infringement of the principle of equal treatment, must also be rejected. FE has not shown that her situation at the time was different from that of translators working for other institutions or translating in languages other than Polish.
111
Thirdly, at first instance, FE also argued that, in applying the principle according to which her professional experience had to correspond to full-time employment, the appointing authority infringed the competition notice. That notice did not set out any requirements candidates had to meet in terms of performance or production, or standards such as those applied by the appointing authority. Those arguments must be rejected for the reasons set out inter alia in paragraphs 29 and 86 above.
112
In the third place, the fourth plea put forward at first instance, alleging unlawfulness of the eligibility condition for the competition relating to professional experience, FE submits, by means of a plea of illegality, that that eligibility condition stated in the competition notice is contrary to the principle of equal treatment, inasmuch as other competition notices for the recruitment of lawyer-linguists do not state any condition of this nature.
113
The Commission contends that the Court should dismiss the fourth plea as inadmissible or, in the alternative, as unfounded.
114
In paragraph 112 of the judgment under appeal, the Civil Service Tribunal held that as the first plea advanced in support of the claim for annulment, based on a lack of competence on the part of the appointing authority, had been upheld, there was no longer any need to consider the fourth plea. It further held that, ‘since it [had] been established, by reference to the provisions of the competition notice regarding the division of competences between the appointing authority and the selection board, that the appointing authority was bound by the selection board’s decision to admit [FE] to the competition on the basis that she satisfied the condition relating to professional experience, since that decision was free of manifest error, the unlawfulness of that condition, if established, would not give rise to any further harm to [FE] in respect of which she would be entitled to compensation’.
115
It is settled case-law that, in a recruitment procedure, which is a complex administrative operation comprising a series of decisions, a candidate for a competition may, in an action brought against an earlier step taken in that process, challenge the legality of earlier steps that are closely linked to it (see judgment of 11 August 1995, Commission v Noonan, C‑448/93 P, EU:C:1995:264, paragraph 17 and the case-law cited), and, in particular, challenge the legality of the competition notice pursuant to which the step in question was taken (see, to that effect, judgments of 16 September 1993, Noonan v Commission, T‑60/92, EU:T:1993:74, paragraph 23, and of 5 December 2012, BA v Commission, F‑29/11, EU:F:2012:172, paragraph 39).
116
A breach of the principle of equal treatment, applicable to the law relating to the employment of EU officials, occurs when two categories of person whose factual and legal circumstances disclose no essential difference are treated differently and that difference in treatment is not objectively justified. In adopting applicable rules, especially in the sphere of the EU civil service, the legislature is obliged to observe the general principle of equal treatment (see judgment of 13 October 2015, Commission v Verile and Gjergji, T‑104/14 P, EU:T:2015:776, paragraph 176 and the case-law cited).
117
In that regard, it must be remembered that the appointing authority has broad discretion in setting the eligibility conditions for the competition depending on the interests of the service (see, to that effect, judgment of 15 November 2001, Van Huffel v Commission, T‑142/00, EU:T:2001:268, paragraph 52 and the case-law cited). Therefore, an infringement of the principle of equal treatment by the competition notice in question may not be inferred from the mere fact that certain other competitions for the recruitment of lawyer-linguists, organised, incidentally, subsequently to the competition at issue in the present case, did not include the same condition requiring a minimum period of professional experience as that at issue in the present case.
118
Nor has FE demonstrated that, from the point of view, inter alia, of the interest of the service, the candidates for the competition at issue here were in the same legal and factual situation as the candidates for the other competitions for the recruitment of those lawyer-linguists.
119
It follows that the competition notice at issue does not infringe the principle of equal treatment.
120
In the fourth place, regarding the claim for damages, it should be borne in mind that, where the damage on which an applicant relies arises from the adoption of a decision whose annulment is sought, the rejection of the claim for annulment entails, as a matter of principle, the rejection of the claim for damages, as those claims are closely linked (see judgment of 11 December 2013, Andres and Others v ECB, F‑15/10, EU:F:2013:194, paragraph 420 and the case-law cited).
121
In the present case, it should be noted that the non-material damage that FE claims is caused by the alleged illegality of the contested decision of the appointing authority and that the claims for annulment were rejected. Consequently, FE’s claim for damages must be rejected.
122
It follows from all the foregoing that the action brought at first instance must be dismissed as unfounded in its entirety.
Costs
123
Under Article 211(2) of the Rules of Procedure, 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. Under Article 134(1) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 211(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. Furthermore, under Article 211(3) of the Rules of Procedure, in appeals brought by institutions, the institutions are to bear their own costs, without prejudice to Article 135(2) thereof.
124
In the present case, the Commission and FE must each be ordered to bear their own costs of the appeal proceedings. As regards the proceedings at first instance, since FE was unsuccessful on all her heads of claim and the Commission applied for costs, FE must be ordered to pay the costs.
On those grounds,
THE GENERAL COURT (Appeal Chamber)
hereby:
1.
Sets aside points 1, 2 and 4 of the operative part of the judgment of the Civil Service Tribunal of the European Union (First Chamber) of 6 October 2015, FE v Commission (F‑119/14);
2.
Dismisses the action brought by FE before the Civil Service Tribunal in Case F‑119/14;
3.
Orders each party to bear their own costs of the appeal proceedings;
4.
Orders FE to pay the costs of the proceedings before the Civil Service Tribunal, including those of the European Commission.
Jaeger
Prek
Frimodt Nielsen
Delivered in open court in Luxembourg on 15 September 2017.
[Signatures]
(
*1
)	Language of the case: French.