Provisional text
JUDGMENT OF THE GENERAL COURT (Fifth Chamber)
11 March 2026 (*)
( Civil service – Officials – Vacancy notice – Position of Director – Rejection of application – Act adversely affecting an official – Admissibility – Lack of competence of the author of the act – Eligibility criteria – Concept of ‘middle management function’ – Error of law )
In Case T‑195/25,
Friedrich Erlbacher, residing in Brussels (Belgium), represented by L. Levi, lawyer,
applicant,
v
European Commission, represented by J.-F. Brakeland and S. Chantre, acting as Agents,
defendant,
THE GENERAL COURT (Fifth Chamber),
composed, at the time of the deliberations, of J. Svenningsen, President, J. Martín y Pérez de Nanclares (Rapporteur) and M. Stancu, Judges,
Registrar: L. Ramette, Administrator,
having regard to the written part of the procedure, in particular:
–        the plea of inadmissibility raised by the Commission by separate document lodged at the Court Registry on 2 June 2025,
–        the applicant’s observations on the plea of inadmissibility, lodged at the Court Registry on 20 June 2025,
–        the decision of 4 July 2025 to reserve a decision on the plea of inadmissibility for the final judgment,
–        the measures of organisation of procedure of 7 July 2025 and the Commission’s response, lodged at the Court Registry on 18 July 2025,
further to the hearing on 17 December 2025,
gives the following
Judgment
1        By his action under Article 270 TFEU, the applicant, Mr Friedrich Erlbacher, seeks the annulment of the decision contained in the email from the European Commission’s Directorate-General (DG) for Human Resources and Security of 11 June 2024 by which his application for the position of Director (AD 14/AD 15) in the Commission’s DG for Agriculture and Rural Development (‘the post in question’) was rejected.
Background to the dispute
2        The applicant has been an official at the Commission since 1 January 1996.
3        From 1 January 1996 to 31 October 1998, the applicant was assigned to DG Competition. He was then seconded to the Court of Justice of the European Union in the interests of the service until 30 September 2004. Since 1 October 2004, he has been assigned to the Commission’s Legal Service (‘the Legal Service’). On 1 March 2014, he was appointed ‘Legal adviser’ in that service. He was subsequently promoted to grade AD 14. Finally, on 1 November 2021, he was appointed deputy to the Principal Legal Adviser heading the Legal Service’s ‘Institutions’ team.
4        On 14 May 2024, a vacancy notice was published for the position of Director (grade AD 14/AD 15) of Directorate G ‘International’ of DG
Agriculture and Rural Development (notice COM/2024/1108) (‘the vacancy notice’), pursuant to Article 29(1)(a)(i) and (iii) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’).
5        Under the heading ‘Recruitment policy’, the selection procedure was described
therein as follows:
‘… Candidates invited for an interview with the Consultative Committee on Appointments have to attend, before this interview, a one-day assessment centre run by external consultants, unless they have already been evaluated through an assessment centre organised at the request of DG [Human Resources and Security] for a type of post at the same level as the one they are currently applying for during the two years preceding the date of the interview with the [Consultative Committee on Appointments] …’
6        In addition, the vacancy notice contained a hyperlink to a Commission intranet page entitled ‘Management: eligibility criteria’. As regards functions corresponding to the type of post of director, it stated that permanent officials, in particular, ‘at grade AD 14 who have hold (or have held) a middle management function for a period of at least [two] years’ are eligible (‘the criterion at issue’).
7        On 27 May 2024, the applicant submitted his application for the post in question.
8        By email of 11 June 2024, a staff member of Unit HR.02 – Executive Staff in the Commission’s DG Human Resources and Security informed the applicant that his application could not be taken into consideration on the ground that he did not comply with all the eligibility criteria, in particular the criterion at issue.
9        By email of 13 June 2024, the applicant was invited to an interview with the pre-selection panel of DG Agriculture and Rural Development for selection procedure COM/2024/1108, scheduled for 25 June 2024.
10      By email of 14 June 2024, a staff member of Unit R.5 – People & Organisation of DG Agriculture and Rural Development informed the applicant that, as his application had not been considered eligible by DG
Human Resources and Security, the invitation referred to in paragraph 9 above was no longer valid.
11      On 22 August 2024, the applicant lodged a complaint under Article 90(2) of the Staff Regulations against the email of 11 June 2024.
12      On 30 October 2024, at its 2505th meeting, on a proposal by
the Member of the Commission for Budget and Administration, in agreement with the President of the Commission, and after consulting the Member of the Commission for Agriculture and Rural Development, the Commission decided to appoint another candidate
to the post in question (‘the appointment decision’).
13      The appointment decision was announced in a press release on the same day.
14      On 11 December 2024, the applicant was notified of the decision rejecting his complaint (‘the decision rejecting the complaint’) adopted by the appointing authority.
Forms of order sought
15      The applicant claims, in essence, that the Court should:
–        annul the email of 11 June 2024;
–        in so far as necessary, annul the decision rejecting the complaint;
–        order the Commission to pay the costs, even if the action is declared inadmissible.
16      The Commission contends that the Court should:
–        declare the action inadmissible and, in any event, unfounded;
–        order the applicant to pay the costs.
Law
Admissibility of the action
17      The Commission contests the admissibility of the action on the ground that the email of 11 June 2024 does not constitute an act adversely affecting the applicant.
18      First, the Commission contends that the action is inadmissible because the email of 11 June 2024 was sent by a staff member of DG Human Resources and Security and not by the appointing authority responsible for the procedure for filling the post in question under Article 29(1)(a)(i) and (iii) of the Staff Regulations, namely the College of Commissioners.
19      Secondly, the Commission raises the argument that the email of 11 June 2024 is not an act adversely affecting the applicant, but an intermediate act forming part of the recruitment procedure. It is apparent from the vacancy notice and the Commission’s intranet page to which the vacancy notice refers that the selection procedure in question involves several stages between the publication of the vacancy notice and the appointment decision by the College of Commissioners. However, the act adversely affecting the applicant adopted by the appointing authority is the appointment decision.
20      Thirdly, the Commission submits that the email of 11 June 2024 did not have the effect of definitively eliminating the applicant from the procedure or of binding the appointing authority. As the minutes of 28 November 2024 of the 2505th meeting of the College of Commissioners (‘the minutes of the meeting of the College of Commissioners’) make clear, the appointing authority was provided with the full list of persons who had submitted applications for the post in question. Consequently, the appointing authority made its final decision having seen the full list of applications.
21      The applicant disputes the Commission’s arguments.
22      Under Articles 90 and 91 of the Staff Regulations, an action for annulment in civil service matters is only admissible if there is an act adversely affecting the official concerned.
23      According to the case-law of the Court of Justice, only acts or measures which produce binding legal effects capable of directly and immediately affecting the applicant’s interests by bringing about a distinct change in his or her legal position are acts adversely affecting him or her within the meaning of Article 90(2) of the Staff Regulations (see judgment of 15 December 2022, Picard v Commission, C‑366/21 P, EU:C:2022:984, paragraph 95 and the case-law cited).
24      In order to determine whether an act produces such effects, it is necessary to examine the substance of that act and to assess those effects on the basis of objective criteria, such as the content of that act, taking into account, as appropriate, the context in which it was adopted and the powers of the institution which adopted the act (see judgment of 15 December 2022, Picard v Commission, C‑366/21 P, EU:C:2022:984, paragraph 96 and the case-law cited).
25      Thus, the ability of an act to affect directly the legal position of a natural or legal person cannot be assessed solely by reference to the fact that that act takes the form of an email, since that would amount to giving precedence to the form of the act which is the subject of the action over the actual substance of that act (see judgment of 15 December 2022, Picard v Commission, C‑366/21 P, EU:C:2022:984, paragraph 97 and the case-law cited).
26      Furthermore, in the case of acts or decisions adopted by a procedure involving several stages, in particular where they are the culmination of an internal procedure, in principle, an act is open to review only if it definitively lays down the position of the institution upon the conclusion of that procedure and not if it is an intermediate measure intended to pave the way for the final decision (judgment of 2 February 2022, LU v EIB, T‑536/20, not published, EU:T:2022:40, paragraph 38; see also, to that effect, order of 16 November 2018, OT v Commission, T‑552/16, not published, EU:T:2018:807, paragraph 43 and the case-law cited).
27      Lastly, under Articles 90 and 91 of the Staff Regulations, only measures emanating from the appointing authority and the authority empowered to conclude contracts of employment can be the subject of a review by the General Court in proceedings brought by officials and other members of staff of the EU institutions (see order of 16 November 2018, OT v Commission, T‑552/16, not published, EU:T:2018:807, paragraph 46 and the case-law cited).
28      In the present case, in its plea of inadmissibility, the Commission argues in essence that solely the appointment decision constitutes an act adversely affecting the applicant, in so far as it emanated from the appointing authority, that is to say the College of Commissioners, which was provided with the complete list of persons who had submitted applications for the post in question. By contrast, the applicant submits that, before adopting that decision, which was, moreover, not notified to him, the appointing authority took into account only the applications put forward by the Consultative Committee on Appointments (‘the CCA’), to the exclusion of his application, which was rejected as ineligible before the pre-selection stage, with the result that the email of 11 June 2024 constitutes a definitive rejection of his application and thus the act adversely affecting him.
29      In that regard, it should be noted that detailed rules for the procedure leading to the recruitment of senior officials are set out in the Compilation Document on Senior Officials Policy (SEC(2004) 1352/2) of 26 October 2004, approved by the Commission (‘the compilation document’). Section
5.2 of that document describes the procedure as comprising several stages, which, in the present case, were implemented through the vacancy notice.
30      Under that procedure, a draft vacancy notice is prepared by the recruiting directorate-general in agreement with the rapporteur for the procedure, then the vacancy notice is published following its approval by the appointing authority (first stage). Next, a list of the candidates best qualified for the post in question with reference to the published criteria is drawn up by the pre-selection panel (second stage). On the basis of the panel’s report, the CCA identifies the most suitable candidates for interview, then adopts its preliminary opinion (third stage). After interviewing the selected candidates, the CCA adopts its opinion and draws up the shortlist accompanied by evaluation forms
for each candidate (fourth stage). Candidates who have been short-listed by the CCA must be interviewed by one or more members of the College of Commissioners, which appoints the candidate selected for the post in question (fifth and final stage).
31      It follows that the College of Commissioners is the competent appointing authority for senior officials and that the appointment decision is taken at the end of a selection procedure involving several stages during which preparatory acts are adopted. Thus, in principle and in accordance with the case-law cited in paragraphs 26 and 27 above, only the appointment decision constitutes an act adversely affecting the applicant.
32      However, it has already been accepted in the case-law that a decision adopted at the end of one of the stages of the selection procedure could constitute an act adversely affecting the person concerned, since it has the effect of depriving that person of the possibility of participating in a subsequent stage of that procedure and, consequently, of any possibility of being appointed in the framework established by the vacancy notice (see, to that effect, order of 22 April 2015, ED v ENISA, F‑105/14, EU:F:2015:33, paragraphs 31 and 32).
33      In the present case, it was following the assessment of the eligibility criteria by DG
Human Resources and Security that the pre-selection panel cancelled the interview initially planned with the applicant. As recalled in paragraph 10 above, the invitation to that interview had to be considered as being no longer valid, since DG Human Resources and Security had taken the view that the applicant did not satisfy, in particular, the criterion at issue.
34      It must therefore be found that, after the email of 11 June 2024 was sent, the applicant was eliminated from the other stages of the selection procedure and that that email therefore adversely affects him.
35      At the hearing, the Commission nevertheless maintained that, although DG Human Resources and Security carried out an initial assessment of eligibility criteria, the only appointing authority competent to adopt a final decision was the College of Commissioners.
36      According to the Commission, the authorities involved in the procedure after DG Human Resources and Security were able to assess eligibility criteria and could have reached a different assessment from that of that DG. In other words, the pre-selection panel, the CCA or the College of Commissioners could have considered the applicant’s application to be eligible and the email of 11 June 2024 was therefore not an act adversely affecting him.
37      However, in the specific circumstances of the present case, the General Court considers that the reference to that mere possibility cannot constitute a sufficient argument for ruling out the classification of the email of 11 June 2024 as an act adversely affecting the applicant. Having regard to the consequences for him and to the information he received, the Commission must adduce evidence demonstrating that the various bodies which were to intervene in the selection procedure and, at the very least, in the pre-selection stage, received his application and assessed whether he satisfied the eligibility criteria. In the absence of such evidence, it must be concluded that DG Human Resources and Security appears to have definitively taken a view on whether the applicant fulfilled the eligibility criteria.
38      However, first, as regards the pre-selection panel, the wording used in the email of 14 June 2024, referred to in paragraph 10 above, rules out the possibility that the panel assessed the eligibility of the applicant’s application and indeed indicates that the panel considered itself bound by the assessment carried out by DG Human Resources and Security.
39      Secondly, as regards the CCA, the General Court requested the production of the documents bearing the references PERS
(2024) 65/2 and PERS (2024) 65/3 to ascertain whether, as the Commission claimed, the CCA and subsequently the College of Commissioners had available to them the complete list of applications for the post in question, which was a prerequisite for examining their eligibility. In response, the Commission produced three documents, namely:
–        the note from the Director-General of DG Human Resources and Security, sent to the Member of the Commission for Budget and Administration, dated 11 June 2024 (‘the note of 11 June 2024’);
–        the CCA’s preliminary opinion of 22 August 2024;
–        the CCA’s opinion of 3 October 2024.
40      The note of 11 June 2024 shows that, of the seven applications submitted, only that of the applicant was not eligible and was not forwarded to the Member of the Commission for Budget and Administration, which was confirmed by the Commission at the hearing. Thus, the Member of the Commission who submitted the proposal to the College of Commissioners (see paragraph 12 above) did not receive the applicant’s application.
41      As regards the CCA’s preliminary opinion of 22 August 2024, it included in the list of eligible applications not only that of the applicant, but also that of a person who nevertheless withdrew his or her application before the pre-selection stage. There were therefore eight eligible applications instead of six. When questioned at the hearing about the discrepancy, the Commission acknowledged that it was liable to raise questions, but did not provide any further explanation.
42      The Commission did not therefore argue that the difference was due to the fact that the CCA had assessed the eligibility criteria of all the applications and had reached a different conclusion from that of DG Human Resources and Security.
43      In any event, it must be found that the Commission was unable to provide tangible evidence confirming that the CCA did indeed receive the applicant’s application, unlike the Member of the Commission for Budget and Administration, or that the CCA in fact assessed its eligibility.
44      Furthermore, the CCA’s preliminary opinion of 22 August 2024 explicitly refers only to the verification of the personal files of the two applicants who were invited to the assessment centre and to an interview, neither of whom was the applicant.
45      Consequently, the documents produced and the explanations provided by the Commission do not make it possible to conclude that the CCA received all the applications, nor, a fortiori, that it re-examined their eligibility criteria, nor, more specifically, that it assessed the applicant’s application.
46      The list set out in the CCA’s preliminary opinion of 22 August 2024 therefore appears to be merely a list summarising all the names of applicants who had applied, irrespective of whether their applications were eligible, and, in the absence of convincing explanations provided by the Commission, the adjective ‘eligible’ must be understood as a clerical error.
47      Consequently, the Commission has not proved that the CCA examined the applicant’s application and concluded that it was eligible, contrary to the conclusion reached by DG Human Resources and Security, which moreover, had been accepted without verification by the pre-selection panel.
48      Such proof was all the more necessary since first, it is not apparent from the compilation document that the CCA is expected to examine the eligibility of the applications and, secondly, as the applicant’s interview with the pre-selection panel was cancelled, it was unlikely that the CCA would examine the merits of an application for which it lacked important information for its assessment.
49      Thirdly, as regards the College of Commissioners, given the manner in which the selection procedure was conducted, namely, first, the failure to forward the applicant’s application to the Member of the Commission for Budget and Administration, secondly, the acceptance by the pre-selection panel of the conclusion of DG Human Resources and Security and, lastly, the lack of evidence that the CCA examined the applicant’s application, there is a body of evidence giving rise to reasonable doubt as to whether the College of Commissioners received the applicant’s application and assessed its eligibility. Furthermore, as noted in paragraph 48 above with regard to the CCA, first, it is not apparent from the compilation document that the College of Commissioners is expected to verify the eligibility of the applications and, secondly, since neither the pre-selection panel nor the CCA held an interview with the applicant, it was unlikely that the College would have examined the merits of the applicant’s application, for which it lacked important information for its assessment.
50      It must be noted that the Commission has not produced any evidence to demonstrate the contrary, other than the minutes of the meeting of the College of its members.
51      However, the fact that the minutes of the meeting of the College of Commissioners state that the College received the list of applications is not sufficient to demonstrate that it actually received the applicant’s application and examined its eligibility. Forwarding a list is not necessarily the same as forwarding applications, as apparent from the note of 11 June 2024, which listed the applications but forwarded only the eligible ones to the Member of the Commission for Budget and Administration.
52      Furthermore, it should be noted that the applicant was notified of the email of 11 June 2024 on the same day at 16:56, approximately one hour after the electronic signature at 15:49 of the note of 11 June 2024, which confirms the intention to inform him of the decision taken in his regard and forwarded almost simultaneously to the relevant Member of the Commission.
53      In the circumstances of the case, it must therefore be considered that, since the email of 11 June 2024 resulted in the elimination of the applicant’s application before the pre-selection stage, it marked the end of the selection procedure for him and thereby constitutes a definitive rejection of his application and, consequently, the act adversely affecting him (‘the contested decision’). His action is therefore admissible.
Subject matter of the action
54      By his third head of claim, the applicant submits that the General Court should annul, in so far as necessary, the decision rejecting the complaint.
55      Since the decision rejecting the complaint lacks any independent content, in that it merely confirms the contested decision, it must be held that the claim for annulment seeks only the annulment of the contested decision, the legality of which will be assessed taking into account the statement of reasons set out in that decision rejecting the complaint (see, to that effect, judgments of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 8, and of 6 July 2022, MZ v Commission, T‑631/20, EU:T:2022:426, paragraph 21).
Substance
56      In support of his action, the applicant raises two pleas in law, the first alleging a manifest error of assessment and the second the illegality of the vacancy notice and the rules to which it refers.
57      Furthermore, in his observations on the plea of inadmissibility, the applicant raised a new plea alleging that the author of the act lacked competence.
The new plea alleging lack of competence of the author of the act
58      In his observations on the plea of inadmissibility, the applicant stated that, if the General Court were to consider, as the Commission does, that the person who notified him of the contested decision was not authorised to do so, he intended to raise a new plea for annulment alleging lack of competence of the author of the act.
59      At the hearing, the Commission submitted that, if the General Court were to consider that the email of 11 June 2024 was the act adversely affecting the applicant, it would have to be found that the authority which had adopted it was incompetent.
60      In that regard, it must be borne in mind that the incompetence of the author of an act adversely affecting the applicant is a plea of public policy which the EU judicature must examine, where necessary of its own motion (see judgment of 8 July 2010, Commission v Putterie-De-Beukelaer, T‑160/08 P, EU:T:2010:294, paragraph 61 and the case-law cited), and which may be raised at any stage of the proceedings (see judgment of 26 June 2024, Paraskevaidis v Council and Commission, T‑698/21, EU:T:2024:425, paragraph 36 and the case-law cited).
61      In the present case, the contested decision was adopted by a member of staff of Unit HR.02 – Executive Staff in DG Human Resources and Security. However, as stated in paragraph 31 above, it is the College of Commissioners which is the competent appointing authority for
the appointment of senior officials.
62      It is true that it transpires from the examination of the admissibility of the action that, in fact, the pre-selection panel, the CCA and the College of Commissioners did not examine the eligibility criteria of the applications and that that task was entrusted to DG Human Resources and Security.
63      Furthermore, as concluded in paragraph 53 above, the contested decision marked the end of the selection procedure for the applicant.
64      Thus, it might appear that the College of Commissioners delegated its powers regarding the assessment of the eligibility criteria of the applications and their rejection at that stage of the selection procedure to DG Human Resources and Security.
65      Nevertheless, it should be recalled that, according to settled case-law, a delegation of powers cannot be presumed and that, even when it is empowered to delegate its powers, the delegating authority must take an express decision transferring them (see, to that effect, judgment of 13 June 1958, Meroni v High Authority, 9/56, EU:C:1958:7, paragraphs 42 to 44, 46 and 47) and the delegation can relate only to clearly defined executive powers (see, to that effect, judgment of 26 May 2005, Tralli v ECB, C‑301/02 P, EU:C:2005:306, paragraph 43).
66      It must be found that such was not the case here.
67      Furthermore, it should be noted that the present case differs from the case which led to the order of 22 April 2015, ED v ENISA (F‑105/14, EU:F:2015:33, paragraph 31), referred to in paragraph 32 above. In that case, the act adversely affecting the applicant had been adopted by the competent authority, since it reflected the position of the authority empowered to conclude contracts of employment regarding the rejection of the applicant’s application at the first stage of the selection procedure, following a detailed assessment of the application by the selection panel.
68      In the circumstances of the present case, it must be held that the contested decision was adopted by an authority lacking competence and must therefore be annulled.
69      Nevertheless, in the interests of the proper administration of justice, in order to establish the correct legal framework within which the Commission must take the necessary measures to give effect to this judgment, in accordance with Article 266 TFEU, it is also necessary to examine the applicant’s first plea.
The first plea, alleging a manifest error of assessment and an error of law
70      The applicant submits that the appointing authority committed a manifest error of assessment in that it failed to take into account the vacancy notice and the rules to which it refers. In his view, the appointing authority should have interpreted those rules as meaning that the criterion at issue did not apply in a case such as his. Such a plea must also be regarded as alleging an error of law.
71      In that regard, the applicant notes, first, that Commission Decision C(2016) 3288 final of 15 June 2016 on middle management staff (‘the decision on middle management’), which lays down the criteria determining whether a function is a ‘middle management function’, does not apply to advisers, as is apparent from Article 2(3) of that decision.
72      Secondly, the applicant notes that Article 1 of Commission Decision C(2016) 3214 final of 7 June 2016 concerning the function of adviser (‘the decision on advisers’) excludes legal advisers in the Legal Service from its scope.
73      The applicant distinguishes two different scenarios from this.
74      Under the first scenario, it should be considered that, as the decision on advisers is not applicable to legal advisers in the Legal Service, the decision on middle management applies to them. However, in that case, legal advisers should, given the specific structure of the Legal Service, be considered heads of unit.
75      As the appointing authority did not treat the applicant, who is a legal adviser in the Legal Service, as a head of unit, the contested decision should be annulled on the grounds that it failed to apply the decision on middle management.
76      Under the second scenario, legal advisers in the Legal Service would be excluded from the scope of both the decision on middle management and the decision on advisers. That would mean that the function of legal adviser in the Legal Service would not be governed by any specific rules, either as regards its role or as regards the possibility of participating in selection procedures for senior management posts.
77      In that case, the contested decision could not have been adopted pursuant to the decision on middle management, and it would have been necessary for the appointing authority to carry out a specific assessment of whether the applicant had the skills and management experience required for the post in question.
78      Consequently, the appointing authority failed to have regard to the vacancy notice and the rules to which it refers by automatically applying the criterion at issue to the applicant, without verifying whether his skills and experience could be regarded as equivalent to those specified for middle management functions.
79      The Commission contests the applicant’s arguments. In particular, it submits that legal advisers in the Legal Service are excluded from the decision on middle management not ‘to the extent that’ they do not carry out management functions, but rather ‘because’ they do not carry out such functions. That interpretation of Article 2(3) of the decision on middle management is borne out by the English-language version of that decision, which uses the word ‘as’, and by the German-language version, which uses the word ‘da’.
80      It is settled case-law that the function of the vacancy notice is, first, to give those interested the most accurate information possible on the nature of the conditions of eligibility for the post to be filled, in order to enable them to decide whether they should apply for it and, secondly, to establish the legal framework within which the comparative assessment of the merits of the candidates will be carried out. The latter function implies that sufficiently precise requirements must be set out to enable that comparison to be carried out and to justify the choices made (see judgment of 1 June 2022, OG v EDA, T‑632/20, not published, EU:T:2022:308, paragraph 51 and the case-law cited). According to the case-law, both the general conditions set out in the summary of vacancy notices and the specific conditions laid down in relation to the post concerned constitute the conditions laid down in the vacancy notice (judgment of 7 February 2019, Duym v Council, T‑549/17, not published, EU:T:2019:72, paragraph 60).
81      It is also settled case-law that the wide latitude available to the appointing authority regarding appointment presupposes careful examination of the files and meticulous regard to the requirements laid down in the vacancy notice, so that the appointing authority is required to reject any candidate who does not meet those requirements. The vacancy notice thus constitutes a legal framework which the appointing authority imposes on itself and must observe meticulously (judgments of 18 March 1993, Parliament v Frederiksen, C‑35/92 P, EU:C:1993:104, paragraphs 15 and 16; of 12 May 1998, Wenk v Commission, T‑159/96, EU:T:1998:86, paragraph 63; and of 9 July 2019, VY v Commission, T‑253/18, not published, EU:T:2019:488, paragraph 20).
82      In the present case, it should be noted that, as stated in essence in paragraph 6 above, the vacancy notice included a section relating to eligibility criteria which contained a hyperlink to a page on the Commission’s intranet entitled ‘Management: eligibility criteria’.
83      The criterion at issue, as set out in paragraph 6 above, is clearly stated on that page, namely that permanent officials, in particular, ‘at grade AD 14 who have held (or have previously held) a middle management function for at least [two] years’ are eligible.
84      As a preliminary point, it should be noted that, although the applicant takes issue with the fact that his application was assessed by reference to the criterion at issue, he is in fact criticising the appointing authority for failing to take into account his special status as a legal adviser and his management skills and experience when assessing whether he fulfilled the criterion at issue.
85      In any event, as the criterion at issue forms part of the legal framework within which the vacancy notice was drawn up, it applied to the applicant given that he submitted his application for the post in question.
86      In the present case, it should be noted that, in the decision rejecting the complaint, the appointing authority considered, first, that the responsibilities carried out by the applicant, in his capacity as deputy team leader, could not be regarded as equivalent to permanent and continuous management of a team as referred to in the decision on middle management and, secondly, that the decision on middle management excluded its application to legal advisers. Lastly, the appointing authority considered that, despite the applicant’s extensive professional experience within the Commission, he had not acquired the management experience required to be eligible for the post in question.
87      The applicant primarily submits that legal advisers in the Legal Service must be treated as heads of unit, since they are not excluded from the decision on middle management. Alternatively, if it were to be considered that legal advisers in the Legal Service are excluded from the decision on middle management, there would be a legal vacuum in their regard, given they are also excluded from the decision on advisers. In such a case, the appointing authority should have carried out a specific assessment of whether the applicant had the skills and management experience required for the post in question.
88      As regards whether legal advisers in the Legal Service are covered by the decision on middle management, first, it should be noted that the second paragraph of Article 1 of the decision on middle management provides that ‘this Decision shall apply to all Commission departments and departments administratively attached to the Commission’. It therefore applies to the Legal Service.
89      Secondly, according to Article 2(3) of the decision on middle management, ‘advisers are not covered by that decision as they do not carry out management functions’.
90      In that regard, the applicant submits, in essence, first, that ‘advisers’ should be understood as the advisers referred to in the decision on advisers, which would exclude legal advisers in the Legal Service. Secondly, he submits that only advisers who do not carry out management functions are excluded.
91      The Commission does not express a view on the relevance of the decision on advisers for understanding the concept of ‘adviser’ as referred to in Article 2(3) of the decision on middle management. However, it maintains that legal advisers fall within the type of post ‘adviser or equivalent’ and that advisers, like legal advisers, do not carry out management functions and are therefore excluded from the decision on middle management. Furthermore, the Commission infers from various provisions and the case-law that it was clear to the College of Commissioners that a legal adviser in the Legal Service was not equivalent to a head of unit. According to the Commission, that situation, combined with the small number of legal advisers, explains why they are not referred to in the decision on middle management.
92      In accordance with settled case-law, in interpreting a provision of EU law, it is necessary to consider not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it is part. The origins of a provision of EU law may also provide information relevant to its interpretation (judgment of 2 September 2021, CRCAM, C‑337/20, EU:C:2021:671, paragraph 31; see also, to that effect, judgment of 10 March 2021, AM v EIB, T‑134/19, EU:T:2021:119, paragraph 60).
93      It should be noted, first, that Article 2(3) of the decision on middle management excludes ‘advisers’ from the scope of that decision and not ‘advisers or equivalent’, which is the name given to that type of post, as is apparent from Annex I to the Staff Regulations and Article 30 of Annex XIII to the Staff Regulations, as well as from the annex to Commission Decision C(2013) 8979 final of 16 December 2013 on types of post and post titles.
94      Secondly, it is true that Article 2(3) of the decision on middle management does not expressly refer to the decision on advisers to define that concept. However, the context in which those two decisions were adopted and the objective pursued by the decision on advisers support the conclusion that, by ‘advisers’, Article 2(3) of the decision on middle management was intended to refer to advisers within the meaning of the decision on advisers.
95      In that regard, first, concerning the context in which the decision on middle management and the decision on advisers were adopted, it should be borne in mind that they were adopted one week apart, namely on 7 June 2016 in the case of the decision on advisers and on 15 June 2016 in the case of the decision on middle management, that they both form part of the Commission’s overall talent management strategy (see recital 1 of the decision on middle management and recital 2 of the decision on advisers) and that they were intended to reflect the revised Staff Regulations, which entered into force on 1 January 2014 (recital 8 of the decision on middle management and recital 1 of the decision on advisers).
96      The decision on advisers and the decision on middle management therefore constitute a common set of rules adopted by the Commission for the management of its staff. This is borne out by section 2 of the Communication to the Commission C(2017) 5231 of 31 July 2017 on organisation charts of Commission DGs and services (implementing guidelines), which specifies that the guidance provided on the role and positioning of management and advisory functions must be read in conjunction with the provisions of the decisions on middle management and advisers.
97      Second, as regards the objective pursued by the decision on advisers, it should be noted that recital 2 thereof specifically states that the Commission intended ‘to make a clearer separation between middle management and expert careers’.
98      That objective is also referred to in section 3.3 of Communication to the Commission C(2017) 5231 final of 31 July 2017 on organisation charts of Commission DGs and services. According to that decision, the decision on advisers ‘modernised the policy on advisers in the context of its overall talent management strategy, by clearly distinguishing the careers of head of unit from those of adviser’.
99      It is apparent from the context in which the decision on middle management was adopted, including the objective pursued by the decision on advisers, that Article 2(3) of the decision on middle management was intended to refer to advisers as defined in the decision on advisers.
100    The fact, relied on by the Commission, that it was clear to the College of Commissioners that the post of legal adviser was not equivalent to that of head of unit, and the fact that legal advisers in the Legal Service were few in number, cannot, contrary to its submission, explain why legal advisers were not explicitly referred to in the decision on middle management.
101    First, it is apparent both from Commission Decision C(2013) 8979 final of 16 December 2013 on types of post and post titles and from the judgment of 16 July 2015, EJ and Others v Commission (F‑112/14, EU:F:2015:90, paragraphs 42 and 63), referred to by the Commission in support of that argument, that the concept of ‘adviser’ is limited to a particular type of post and that there is a broader category entitled ‘adviser or equivalent’ which covers several types of post, including that of legal adviser in the Legal Service.
102    Secondly, although they were few in number, the specific nature of legal advisers in the Legal Service was well established, as is apparent from the fact that they were explicitly excluded from the decision on advisers under Article 1
of the latter Commission decision.
103    Thus, when adopting the decision on middle management, the College of Commissioners knew, or could not have been unaware, that the concept of ‘adviser’ did not include legal advisers in the Legal Service and that the concept of ‘adviser or equivalent’ would have had to be used for them to be covered by the exclusion provided for in Article 2(3) of that decision.
104    However, contrary to what the applicant infers, that does not mean that legal advisers in the Legal Service must automatically be treated as heads of unit.
105    The functions which, in principle,
are considered to fall within middle management are listed in Article 2(1) of the decision on middle management. Those are the functions of head of unit and head of department, as well as head of representation in the Member States and head of task force. The functions of legal advisers are thus not included in that list.
106    Since they do not fall within any of the categories identified in Article 2(1) of the decision on middle management, legal advisers in the Legal Service must fulfil the two criteria set out in that provision in order to be considered as carrying out middle management functions.
107    The applicant’s argument that legal advisers in the Legal Service undergo a selection procedure similar to that of heads of unit, which is disputed by the Commission, cannot call that conclusion into question. According to the case-law, the mere fact that they were appointed ‘legal advisers’ following a selection procedure conducted pursuant to Article 4 and Article 29(1)(a) of the Staff Regulations and in accordance with the decision on middle management does not imply that they have actually carried out middle or senior management functions (see, to that effect and by analogy, judgment of 16 July 2015, EJ and Others v Commission, F‑112/14, EU:F:2015:90, paragraphs 20, 68 and 74).
108    Lastly, as the Commission acknowledged both in its defence and during the hearing, what matters is whether the Commission staff member actually carries out middle management functions as defined in Article 2(1) of the decision on middle management.
109    First, it should be noted that Article 2(1) of the decision on middle management states that ‘a person assigned to a function which satisfies both of these criteria at the same time is thereby a member of the middle management staff’ and therefore not only the categories subsequently identified, referred to in paragraph 105 above.
110    Secondly, section 3.1 of Communication to the Commission C(2017) 5231 final of 31 July 2017 on the organisation charts of Commission DGs and services provides that, in exceptional cases, a management function may exist outside a directorate-general, a directorate or a unit.
111    In those circumstances, there is nothing, in principle, to prevent a person, such as the applicant, from attempting to demonstrate that he or she satisfies the criteria laid down in Article 2(1) of the decision on middle management.
112    Therefore, in considering that legal advisers in the Legal Service were excluded from the decision on middle management in the same way as the advisers referred to in the decision on advisers, the appointing authority committed an error of law.
113    As the contested decision was adopted by an authority lacking competence, as has been found in paragraph 68 above, there is, by contrast, no need to examine whether the appointing authority verified, in concreto, whether the applicant had carried out middle management functions and whether it committed a manifest error of assessment in that regard.
114    In the light of all the foregoing, the present action must be upheld.
Costs
115    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.
116    In the present case, since the Commission has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the applicant, in accordance with the form of order sought by him.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby:
1.      Annuls the decision contained in the email from the European Commission’s Directorate-General (DG) for Human Resources and Security of 11 June 2024 rejecting Mr Friedrich Erlbacher’s application for the position of Director (AD 14/AD 15) in the Commission’s DG for Agriculture and Rural Development;
2.      Orders the Commission to pay the costs.
Svenningsen
Martín y Pérez de Nanclares
Stancu
Delivered in open court in Luxembourg on
11 March 2026.
[Signatures]
*      Language of the case: French.