JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
30 April 2025 (*)
( Civil service – Officials – Recruitment – Internal competition COM/AD6/2022 – Decision not to admit the applicant to the next stage of the competition – Neutralisation of certain questions in the multiple-choice questionnaire test – Method of neutralisation – Lack of rounding )
In Case T‑325/24,
EL, represented by P. Billiet, lawyer,
applicant,
v
European Commission, represented by K. Talabér-Ritz and L. Hohenecker, acting as Agents,
defendant,
THE GENERAL COURT (Fourth Chamber),
composed of R. da Silva Passos, President, T. Pynnä and H. Cassagnabère (Rapporteur), Judges,
Registrar: V. Di Bucci,
having regard to the written part of the procedure,
having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,
gives the following
Judgment
1        By her action under Article 270 TFEU, the applicant, EL, seeks, first, annulment of the decision of 28 June 2023 by which the selection board for internal competition COM/AD 6/2022 (‘the internal competition’) informed her that she had not qualified for the next stage of that competition and, second, an order requiring the European Commission to readmit her to the internal competition.
Background to the dispute
2        On 22 November 2022, the Commission published the notice of competition relating to the internal competition (‘the competition notice’), subsequently amended by an addendum. The applicant applied for that competition.
3        On 14 March 2023, the Commission informed the applicant that she met the eligibility criteria and that she would subsequently be invited to the pre-selection test. The latter consisted of a multiple-choice questionnaire (‘the MCQ’) on knowledge of European Union policies and institutions. That test was held on 19 April 2023.
4        By decision of 28 June 2023 (‘the contested decision’), the applicant was informed that, with a mark of 34.88 out of 50, she did not meet the condition laid down in the competition notice, namely that of having obtained a pass mark of 35 out of 50, in order to be admitted to the next stage of the internal competition. By that letter, the Commission also informed the applicant of the fact that seven of the MCQ questions had been neutralised by the selection board, although the pass mark of 35 out of 50 had not been changed.
5        On 5 July 2023, the applicant submitted a request for review, which, in accordance with section 5.3 of Annex III to the notice of competition, was not examined.
6        On 27 September 2023, the applicant submitted a complaint under Article 90(2) of the Staff Regulations of Officials of the European Union (‘the complaint’), which was rejected by the authority empowered to conclude contracts of employment by decision of 24 April 2024.
Forms of order sought
7        The applicant claims that the Court should:
–        annul the decisions of 28 June 2023 and 24 April 2024;
–        order the Commission to readmit her to the internal competition;
–        order the Commission to pay the costs.
8        The Commission contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
The Court’s jurisdiction to rule on the second head of claim
9        By her second head of claim, the applicant asks the Court to order the Commission to readmit her to the internal competition.
10      In that regard, it is settled case-law that the EU Courts do not have jurisdiction to issue directions to the administration when exercising judicial review of legality under Article 91 of the Staff Regulations of Officials of the European Union (judgments of 2 March 2004, Di Marzio v Commission, T‑14/03, EU:T:2004:59, paragraph 63, and of 9 December 2020, GV v Commission, T‑705/19, not published, EU:T:2020:590, paragraph 155).
11      Consequently, the applicant’s request that the Court order the Commission to readmit her to the internal competition must be rejected on the ground of lack of jurisdiction.
Subject matter of the action
12      By her first head of claim, the applicant seeks annulment of both the contested decision and the decision rejecting her complaint.
13      In that regard, it must be borne in mind that, according to settled case-law, a claim for annulment formally directed against the decision rejecting a complaint has the effect of bringing before the Court the act against which the complaint was submitted, where that claim, as such, lacks any independent content. The decision purely and simply rejecting a complaint, whether it be express or implied, only confirms the act or failure to act to which the complainant takes exception and, when taken in isolation, does not constitute a challengeable act (see, to that effect, judgment of 5 July 2023, SE v Commission, T‑223/21, EU:T:2023:375, paragraphs 23 and 24 and the case-law cited).
14      On the other hand, in view of the developing nature of the pre-litigation procedure, the reasoning in the decision rejecting the complaint must be taken into account when assessing the legality of the contested decision (see, to that effect, judgment of 9 December 2009, Commission v Birkhoff, T‑377/08 P, EU:C:2009:485, paragraphs 55 and 56).
15      In the present case, since the decision rejecting the complaint merely confirms the contested decision, by which the applicant was informed that she had not qualified for the next stage of the internal competition, the claim for annulment directed against the decision rejecting the complaint lacks any independent content. Consequently, the action for annulment must be regarded as being directed solely against the contested decision, since the legality of that decision must be assessed by taking into account the statement of reasons set out in the decision rejecting the complaint.
The first plea, alleging manifest errors of assessment and infringement of the competition notice
16      First, without disputing the possibility for the selection board to neutralise certain questions, the applicant claims that it committed a manifest error of assessment by wrongly rounding the results of the candidates in the MCQ following the neutralisation of several questions. That resulted in an incorrect increase in the minimum requirement laid down in the competition notice.
17      More specifically, following the neutralisation of seven questions, and in order to comply with the initially required pass mark of 35 out of 50 – which the applicant equates with a score of 70% – the selection board was, in her view, required to apply a rounding method.
18      The applicant considers that such a pass mark of 70%, when applied to 43 questions, amounted to a requirement of 30.1 correct answers. Since that result is not a whole number, she concludes that the selection board was required, after rounding, to set the threshold for admission to the next stage of the competition at 30 correct answers. The selection board rounded the figure from 30.1 to the next whole number (31), which had the effect of raising the required pass mark, when applied to 50 questions, to 36.04.
19      In so doing, the selection board did not, according to the applicant, apply the generally accepted rounding rules, with the result that it committed a manifest error of assessment and disregarded the competition notice.
20      Furthermore, and in any event, the applicant complains that the selection board did not round her final mark (34.88 out of 50), which would have enabled her, by applying the generally accepted rounding method, to reach the required minimum of 35 out of 50. By opting, again, for an allegedly incorrect method of rounding, the selection board, in her view, vitiated its decision by a manifest error of assessment and disregarded the competition notice.
21      The Commission disputes that line of argument.
22      In that regard, according to settled case-law, the selection board is bound by the wording of the act of general application, namely the notice of competition, as published (see, to that effect, judgments of 21 October 2004, Schumann v Commission, T‑49/03, EU:T:2004:314, paragraph 63 and the case-law cited, and of 5 September 2018, Villeneuve v Commission, T‑671/16, EU:T:2018:519, paragraph 96).
23      In the present case, it may be inferred from Section III.2 of the competition notice that, as regards the MCQ, first, the 50 points are spread uniformly over the 50 questions (that is to say, 1 point per question) and, second, the required pass mark is 35 out of 50.
24      Furthermore, section 5.2 of Annex III to the same competition notice allowed the selection board to ‘“neutralise” the question(s) containing [an] error’, defining that neutralisation as ‘[cancelling] the question(s) concerned and [redistributing] the points initially allocated to that/those question(s) among the remaining questions of the test’. Such an operation could be decided by the selection board in response to a complaint by one or more candidates claiming ‘an error in one or more of the questions/items in the [questionnaire affecting their] ability to answer’.
25      By the contested decision, the selection board informed the applicant that seven questions from her MCQ had to be neutralised. In accordance with the provisions of the notice of competition referred to in paragraph 24 above, the selection board was therefore required to distribute the 7 points corresponding to the cancelled questions among the other 43 questions. Consequently, each of those 43 questions was revalued by 0.1627 additional points, thus increasing the number of points awarded to each question to 1.1627.
26      It appears that such a method does not involve or require any rounding up or down to the whole number. In addition, it keeps unchanged the required pass mark of 35 out of 50.
27      In the applicant’s case, since she gave 30 correct answers to the 43 questions at issue, the selection board awarded her the final mark of 34.88 out of 50 (that is to say, 30 multiplied by 1,1627). In so doing, the selection board neither committed a manifest error of assessment nor misapplied the provisions of the notice of competition referred to in paragraph 24 above.
28      The applicant’s arguments cannot cast doubt on that finding.
29      It appears that the methods of neutralisation which the applicant criticises the selection board for not having applied, set out in paragraphs 18 and 20 above, would not have made it possible to comply with the notice of competition.
30      Thus, the applicant starts from the premiss that a required score of 70% was required, a mark which she then applies to the 43 questions to be taken into account after the neutralisation in order to arrive at a theoretical number of correct answers of 30.1, which, according to the applicant, should have been rounded to 30. It was by not proceeding with such rounding that the selection board committed a manifest error of assessment (the applicant implying that the selection board implicitly but necessarily opted for rounding up to the nearest whole, namely 31) and misapplied the competition notice.
31      Such a premiss cannot be accepted. It is based on a misreading of the contested decision, since the selection board, in accordance with the competition notice, merely allocated to the 43 questions to be taken into account after neutralisation the points initially allocated to the annulled questions, which did not require any rounding. The applicant’s criticisms of the method of rounding allegedly adopted by the selection board are therefore, in any event, ineffective.
32      Moreover, the alternative method involving rounding which, according to the applicant, had to be followed would, according to her own statements, have had the effect of lowering the required pass mark from 35 out of 50 to 34,88 out of 50, which would have been contrary to the provisions of the competition notice. Thus, far from having disregarded that notice, the selection board applied it correctly, whereas, conversely, the method relied on by the applicant, had it been applied, would have led to it being disregarded.
33      The applicant also complains that the selection board did not carry out another rounding of the marks. More specifically, as stated in paragraph 20 above, she submits that, as the selection boards in other competitions have done, the selection board should have rounded her mark from 34.88 out of 50 to the nearest whole, namely 35 out of 50. However, the Court must find that the competition notice does not contain any rule on the rounding of final marks applicable in the present case in the event of neutralisation of certain questions.
34      It follows from the foregoing that the first plea in law must be rejected.
The second plea, alleging infringement of the principle of proportionality
35      According to the applicant, by choosing a rounding method which, in her view, had the effect of raising the required pass mark required by the notice of competition from 35 to 36.04 out of 50, even though a ‘[less] onerous option’, which involved rounding the marks, was available to it, the selection board infringed the principle of proportionality.
36      The Commission disputes that line of argument.
37      However, as stated in paragraph 26 above, the method of neutralisation followed by the selection board did not, and could not, have had the purpose of changing the required pass mark of 35 out of 50 fixed by the competition notice.
38      Consequently, the present plea has no factual basis and must be rejected as unfounded.
39      It follows from all the foregoing considerations that the action must be dismissed in its entirety.
Costs
40      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. Since the applicant has been unsuccessful, she must be ordered to bear her own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1.      Dismisses the action.
2.      Orders EL to pay the costs.
da Silva Passos
Pynnä
Cassagnabère
Delivered in open court in Luxembourg on 30 April 2025.
[Signatures]
*      Language of the case: English.