62013FJ0097_EN
Parties
Grounds
Operative part
Parties
In Case F‑97/13,
ACTION brought under Article 270 TFEU,
Valéria Anna Gyarmathy, residing in Győr (Hungary), represented by L. Levi and M. Vandenbussche, lawyers,
applicant,
v
European Union Agency for Fundamental Rights (FRA),
represented by M. Kjærum, acting as Agent, and by B. Wägenbaur, lawyer,
defendant,
THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Second Chamber)
composed of M.I. Rofes i Pujol, President, K. Bradley (Rapporteur) and J. Svenningsen, Judges,
Registrar: X. Lopez Bancalari, Administrator,
having regard to the written procedure and further to the hearing on 10 July 2014,
gives the following
Judgment
Grounds
1. By application lodged at the Tribunal Registry on 20 December 2013, Ms Gyarmathy lodged the present action seeking, essentially, annulment of the decision of the Director of the European Union Agency for Fundamental Rights (‘the FRA’ or ‘the Agency’) to recruit a candidate other than the applicant for the post of ‘Senior Programme Manager — Social Research’. Furthermore, she claims payment of compensation in respect of the material and non-material harm which she considers herself to have suffered.
Facts giving rise to the dispute
The applicant’s career at the European Monitoring Centre for Drugs and Drug Addiction
2. From 1 May 2008 to 30 April 2013, the applicant worked at the European Monitoring Centre for Drugs and Drug Addiction (‘the EMCDDA’ or ‘the Observatory’) as a drug analyst and scientific writer, as a member of the temporary staff in grade AD 8.
3. On 27 July 2012, the applicant contested her mid-term appraisal and, claiming that her Head of Unit had created a hostile environment, requested a transfer to another unit.
4. By letter of 11 September 2012, the Director of the Observatory informed the applicant of his decision to reject the transfer request.
5. By letter of 14 September 2012, the Head of the Human Resources Management Sector of the Observatory reminded the applicant that her contract as a member of the temporary staff would expire on 30 April 2013.
6. By letter of 10 December 2012 the applicant, first, alleged that her Head of Unit had engaged in psychological harassment and, secondly, claimed that there had been no appropriate response from the Director of the Observatory. Moreover, she stated that the non-renewal of her contract seemed to be a ‘retaliation measure’ and challenged the decision of the Director of the EMCDDA to reject her transfer request.
7. Following the applicant’s letter of 10 December 2012, the EMCDDA opened an administrative enquiry into the conduct of the applicant’s Head of Unit and another into the conduct of the Director of the Observatory.
8. By decisions of the President of the Board of the EMCDDA of 13 May 2013 and of the Director of the EMCDDA of 25 June 2013, the two enquiries were closed without further action. Those decisions are the subject of two actions brought by the applicant, respectively on 12 November 2013 and 26 May 2014 and registered as Cases F‑79/13 and F‑22/14.
The recruitment procedure at issue
9. On 17 June 2012, the FRA published a vacancy notice for a post as a member of the temporary staff in grade AD 8, as ‘Senior Programme Manager — Social Research’ (‘the vacancy notice’). The vacancy notice stated that ‘[t]he job holder [would work] under the supervision of the Head of Department Freedoms and Justice, and in close cooperation with other staff’. Furthermore, it stated, under the heading ‘Functions and duties’, the responsibilities that would be assigned to the ‘successful candidate’.
10. The vacancy notice stated that, after a selection committee had been appointed by the authority empowered to conclude contracts of employment (‘the AECCE’), the selection procedure would take place in several stages. First, the selection committee would examine the applications of candidates in accordance with the selection criteria set out in the vacancy notice. Secondly, the Agency would invite the eight best candidates to the selection tests. Thirdly, after the selection tests, the successful candidates would be placed on a reserve list drawn up by the selection committee and proposed to the AECCE. Fourthly, the AECCE could offer a contract of engagement on the basis of the reserve list. In particular, the vacancy notice provided that ‘[a] temporary agent contract [would] be offered pursuant to Article 2(a) of the Conditions of Employment of Other Servants of the European Communities’.
11. On 9 August 2012, the applicant applied for the post.
12. By letter of 20 November 2012, the Head of the ‘Human Resources and Planning’ department of the FRA (‘the Head of the HR Department’) invited the applicant to take part in the selection tests organised by the selection committee on 17 December 2012.
13. The applicant accepted that invitation. It is apparent from the case-file that the selection tests consisted of three written tests and an interview with the selection committee.
14. In a note of 20 December 2012, the Head of the HR Department informed the applicant that she had been selected to be included in the reserve list of candidates for the post advertised.
15. The applicant was subsequently invited for an interview with the Director of the FRA, which took place on 11 January 2013.
16. By letter of 5 February 2013, the Head of the HR Department informed the applicant of the decision of the Director of the FRA to recruit another candidate (‘the contested decision’).
17. By e-mail of 4 March 2013 sent to the Head of the HR Department, the applicant requested her score and the scores obtained by the other two candidates who had been invited to an interview with the Director of the FRA. By e-mail of 19 March 2013, the Head of the HR Department informed the applicant that she had obtained 27 points, whereas the other two candidates on the reserve list had obtained 30.5 and 33.7 points respectively.
18. By letter of 9 April 2013, the applicant lodged a complaint under Article 90(2) of the Staff Regulations of Officials of the European Union, in the version then applicable (‘the Staff Regulations’), against the contested decision. Pointing out that her complaint against the contested decision would be handled by the Director of the FRA in his capacity as AECCE, in other words by the author of that contested decision, the applicant requested that an ‘independent and impartial’ investigator be appointed.
19. By decision of 11 July 2013, the Director of the FRA, in his capacity as AECCE, adopted a decision on the complaint and rejected it (‘the decision of 11 July 2013’).
20. On 28 September 2013, the applicant submitted an application for legal aid to bring the present action.
21. By order of 9 December 2013 in Gyarmathy
v FRA, F‑97/13 AJ, the President of the Tribunal granted the applicant legal aid within the limit of EUR 2 000 for the written procedure and EUR 1 000 for the oral procedure. The applicant received notice of that order on 11 December 2013.
Forms of order sought and procedure
22. The applicant claims that the Tribunal should:
– annul the contested decision;
– annul ‘the undated implicit decision not to appoint her to the other position as Senior Programme Manager [– Social Research] in the vacancy notice’;
– annul any decision adopted on the basis of those unlawful decisions;
– annul the decision of 11 July 2013, in so far as it rejects the complaint and refuses to open an administrative investigation in order to establish the facts;
– order the payment of damages in respect of the material harm suffered, the amount of which is estimated at EUR 550 651;
– order the payment of damages in respect of the non-material harm suffered, the amount of which is estimated at EUR 70 000;
– order the FRA to pay all the costs;
– by way of measures of organisation of the procedure, order the FRA to produce the written tests and the respective scores obtained by the applicant and — anonymously — the other two candidates placed on the reserve list, as well as the minutes of the meeting of the selection committee concerning the written and oral tests, including the scoring methodology and the itemised scores of the oral tests obtained by the applicant and — anonymously — the other two candidates;
– by way of a measure of inquiry, hear, as a witness, the staff member of the HR Department who was present at the interview on 11 January 2013 with the Director of the FRA;
– take any measure of organisation of the procedure or any measure of inquiry necessary to determine whether the Director of the FRA contacted the Director of the EMCDDA between the applicant’s interview on 11 January 2013 and 5 February 2013, the date when she was informed of the contested decision.
23. The FRA claims that the Tribunal should:
– dismiss the application;
– order the applicant to pay the costs.
24. Following the hearing on 10 July 2014, the oral procedure was not closed and the FRA was requested to submit to the Tribunal, by way of measures of organisation of procedure, the evaluation grid used by the selection committee, information on the identity of the person who was recruited and the documents concerning the role of the Staff Committee member in the selection procedure.
25. After the FRA had filed the documents requested and provided the information requested within the specified period, and the applicant had submitted her comments on the documents produced, the Tribunal informed the parties, by letter from the Registry of 15 September 2014, that the oral procedure was closed and that the case had entered the deliberation stage.
Law
The subject-matter of the claim for annulment
26. First, regarding the claim for annulment of the decision of 11 July 2013 in so far as it rejects the complaint, according to settled case-law, claims for annulment formally brought against a decision to reject a complaint have, where that decision lacks any independent content, the effect of bringing before the Tribunal the act against which the complaint was submitted (judgment in Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 8).
27. In the present case, the decision of 11 July 2013 confirms the contested decision by providing the reasoning in support of that decision. In such circumstances, it is indeed the legality of the initial act adversely affecting the official or staff member, in the present case the contested decision, which must be examined, taking into account the grounds given for the decision rejecting the complaint, those grounds being deemed to coincide with that act (judgment in Buxton
v Parliament, F‑50/11, EU:F:2012:51, paragraph 21, and the case-law cited). Consequently, the claim for annulment of the decision of 11 July 2013, in so far as that decision dismissed the complaint, is devoid of any independent content and, therefore, must be regarded as being formally brought against the contested decision, as clarified in the decision on the complaint (judgment in Scheefer
v Parliament, F‑41/12, EU:F:2013:31, paragraph 20).
28. Secondly, as regards the claim brought against the decision of 11 July 2013, in so far as that decision rejects the request that the complaint should be examined by means of an independent and impartial investigation, the Tribunal finds that that request, although appearing in the complaint, is a request within the meaning of Article 90(1) of the Staff Regulations. The decision of 11 July 2013 constitutes in that regard a decision within the meaning of Article 90(1) of the Staff Regulations which can be the subject of a complaint pursuant to Article 90(2) of the Staff Regulations. In the absence of such a complaint, brought within the statutory deadline of three months against this aspect of the decision of 11 July 2013, that decision became final in that regard, so that any related claim must also be rejected as inadmissible since it was not preceded by a regular administrative procedure.
29. Thirdly, the claim for annulment of ‘any decision adopted’ on the basis of the contested decision and of the decision of 11 July 2013 must, pursuant to Article 35(1)(d) of the Rules of Procedure in force at the time when this action was brought (now Article 50(1)(d) of the Rules of Procedure), be dismissed as inadmissible in so far as it merely refers in imprecise terms to FRA decisions which cannot be identified (see order in Nijs
v Court of Auditors, F‑1/08, EU:F:2008:88, paragraph 46).
The claim for annulment of the contested decision and of ‘the undated implicit decision not to appoint [the applicant] to the other position as Senior Programme Manager in the vacancy notice’
30. In support of her claim for annulment, the applicant puts forward five pleas alleging, in essence, (i) infringement of the vacancy notice and of the principles of the protection of legitimate expectations and of legal certainty, (ii) breach of the duty to state reasons, (iii) breach of the duty of impartiality of the Director of the Agency, (iv) infringement of the guidelines of the Agency regarding seconded national experts and (v) irregularities in the composition of the selection committee.
The first plea, alleging infringement of the vacancy notice and of the principles of protection of legitimate expectations and of legal certainty
31. The applicant claims that, at the end of the selection procedure, the Agency recruited one member of the temporary staff only, whereas the vacancy notice provided that ‘[t]he FRA is issuing a vacancy notice in order to recruit two Temporary Agents for the following post: Senior Programme Manager — Social Research …’.
32. In doing so, the Agency infringed the vacancy notice, as well as the principles of protection of legitimate expectations and legal certainty.
33. At the outset, the Tribunal notes that the first plea is based on the applicant’s assertion that ‘the vacancy notice clearly announced the recruitment of two temporary agents’. However, that statement, which is neither an assessment of a factual situation nor a legal argument regarding which the parties could disagree, but a simple assertion of fact, is clearly false and, indeed, misleading. The Tribunal also notes in that regard that, as she acknowledged at the hearing, the applicant lodged, as an annex to the application, an incomplete screenshot of the announcement of the publication of the vacancy notice which appeared in the Agency’s website (the ‘publication announcement’), a screenshot which stops precisely before the line which provided a hyperlink to the vacancy notice. That conduct, whether intentional or not, was liable to deceive the Tribunal.
34. In any event, the text on which the applicant bases her plea is that appearing in the publication announcement, which in fact contained a clerical error. However, it is clear beyond doubt from the text of the vacancy notice, annexed by the applicant herself to her application, that the Agency intended to recruit one temporary member of staff only.
35. That is confirmed by two e-mails sent by the Agency to the applicant on 5 October 2012 and 20 December 2012, which refer to the existence of a single post to be filled.
36. Furthermore, the applicant cannot rely on the clerical error contained in the publication announcement.
37. First, the applicant was able to detect the error herself, since the publication announcement, as mentioned above and as the applicant acknowledged at the hearing, contained a hyperlink to the vacancy notice, which concerned only one post (see paragraphs 9 and 33 of the present judgment).
38. Secondly, the applicant could not derive any legitimate expectation from the publication announcement. The following statement is included in the conditions of use of the Agency’s website, which are also posted on the same site: ‘We make every effort to keep the information on this website as timely and accurate as possible. None the less, we cannot guarantee its accuracy. If errors are brought to our attention, we will try to correct them. The FRA assumes no responsibility for any loss or damage caused by use or information on this site.’
39. As the applicant’s first plea is based on a false factual premise, it must be rejected.
40. It follows that the claim against ‘the undated implicit decision not to appoint her to the other position as Senior Programme Manager in the vacancy notice’ must also be dismissed, as no such decision exists.
The second plea, alleging breach of the duty to state reasons, manifest error of assessment and breach of the principles of legal certainty and transparency
– Arguments of the parties
41. By this plea, the applicant submits that the reasoning of the contested decision, according to which her application was unsuccessful because the profile of the successful candidate was better suited to the required qualifications, did not satisfy the requirement to give reasons set out in the second paragraph of Article 25 of the Staff Regulations and Article 41 of the Charter of Fundamental Rights of the European Union, even taking account of the fact that she had been informed of the score that she and the other candidates had obtained in the oral test before the selection committee.
42. Moreover, according to the applicant, the candidates were not informed ‘in advance’ of how the tests would be marked and of the scores required to pass, which, it is alleged, breaches the principles of legal certainty and transparency.
43. Finally, the applicant submits that, whatever the method of assessment used, she should have been selected and that the contested decision is vitiated by a manifest error of assessment. She considers that she performed ‘exceptionally well’ in the written tests and ‘well’ in the oral test and ‘does not understand how she could have come third’.
44. The Agency claims that the Tribunal should reject the present plea.
– Findings of the Tribunal
45. The Tribunal notes at the outset that the decision of the Agency regarding the marking of the tests does not adversely affect the applicant, since she not only passed those tests, but was also placed on the reserve list and invited to the interview with the Director of the Agency. There is nothing in the case-file to suggest that the outcome of the tests had any influence on the final classification of the applicant in relation to the other two candidates on the reserve list. It follows that, even assuming that, by not informing the candidates of the methods of assessing the tests, the Agency had committed an error of law, such an error is not such as to vitiate the contested decision.
46. Accordingly, the Agency had no obligation to give reasons for its decision either with regard to the choice of method of assessment of the tests or regarding the results of its implementation. Moreover, as the Agency rightly maintains, the applicant’s argument, that it is ‘very implausible’ that the written tests would be scored by an assessment of the ‘pass/fail’ type, concerns the Agency’s choice of assessment method and not the reasons for the contested decision.
47. Moreover, the Tribunal notes that the duty to state reasons laid down in the second paragraph of Article 25 of the Staff Regulations is intended, first, to provide the person concerned with details sufficient to allow him to ascertain whether the act adversely affecting him is well founded and whether it is appropriate to bring proceedings before the Tribunal and, secondly, to enable the Tribunal to review the legality of the act. Moreover, Article 41(2)(c) of the Charter provides that the right to good administration includes, inter alia, ‘the obligation of the administration to give reasons for its decisions’ (judgment in Trentea v FRA, F‑112/10, EU:F:2012:179, paragraph 89).
48. However, in the context of a recruitment procedure to fill a vacant post, as in the present case, such a duty to state reasons must be reconciled with observance of the secrecy surrounding the proceedings of selection committees, which precludes disclosure of the attitudes adopted by individual members of the selection committee and disclosure of factors relating to individual or comparative assessments of candidates ( Trentea v FRA, EU:F:2012:179, paragraph 90).
49. According to the case-law on competitions, in view of the secrecy surrounding the proceedings of the selection board, communication of the scores obtained in the various tests constitutes, in principle, an adequate statement of the reasons on which the selection board’s decisions are based (judgment in De Mendoza Asensi v Commission, F‑127/11, EU:F:2014:14, paragraph 94 and the case-law cited). Those principles apply by analogy to a selection procedure for a position as a member of the temporary staff.
50. In the present case, it should be noted that the applicant was informed of her success in the written tests, of the score she obtained in the oral test, of the fact that the candidates had to obtain at least 60% of the points in order to be included on the reserve list and that the other two candidates on the reserve list had also passed all of the tests, and of the score obtained by those two candidates in the oral test.
51. In those circumstances, the FRA satisfied its duty to state reasons.
52. That finding is not called into question by the various arguments put forward by the applicant in the context of her claims alleging breach of the principles of legal certainty and transparency.
53. The applicant cannot take issue with the AECCE for failing to inform her of the methods of assessment for each of the tests, since the vacancy notice sets out the threshold in percentage points for a candidate to be included in the reserve list. In any event, compliance with the duty to state reasons does not require that such information be communicated to the party concerned ( Trentea v FRA, EU:F:2012:179, paragraph 94).
54. Moreover, the applicant cannot rely on Article 1(1)(e) of Annex III to the Staff Regulations, according to which, where the competition is on the basis of tests, the notice of competition must specify ‘what kind they will be and how they will be marked’. That provision concerns competition procedures for the recruitment of officials and not, as the present case does, a selection procedure for a member of the temporary staff. According to the case-law, the procedures and obligations relating to the recruitment of officials do not apply to the procedures for the selection of members of the temporary staff (see judgment in Coget and Others
v Court of Auditors, T‑95/01, EU:T:2001:239, paragraph 56).
55. As for the method of assessing candidates in the oral test, as is clear from the evaluation grid provided by the Agency, that test consisted of eight questions, each marked from 0 to 5 points, as well as an assessment of the candidate’s knowledge of languages marked from 0 to 3 points. It is apparent from the decision of 11 July 2013 that, to succeed in that exam, candidates had to obtain at least 60% of the 43 points available, namely 25.8 points, and that the applicant obtained 27, that is 62.79% of the points available.
56. It follows that the complaints alleging breach of the principles of legal certainty and transparency must be rejected.
57. With regard to the complaint alleging a manifest error of assessment, according to settled case-law, the Tribunal’s review is confined to the question whether, in the light of the various considerations which influenced the administration in making its assessment, the administration has remained within reasonable bounds and has not used its power in a manifestly incorrect way or for purposes other than those for which that power was conferred upon it (see judgment in Campos Valls v Council, F‑39/07, EU:F:2009:45, paragraph 43). Moreover, the applicant’s belief that she correctly answered the questions asked does not constitute irrefutable proof of a manifest error of assessment (judgment in Balionyte-Merle v Commission, F‑113/12, EU:F:2013:191, paragraph 35 and the case-law cited).
58. In the present case, the applicant merely states that she performed ‘exceptionally well’ in the written tests and ‘well’ in the oral test, and therefore has not established that the AECCE committed a manifest error of assessment.
59. The second plea must therefore be dismissed in its entirety.
The third plea, alleging a lack of objectivity and independence on the part of the Director of the FRA
– Arguments of the parties
60. The third plea alleges that, after the interview with the applicant on 11 January 2013 and before adopting the contested decision, the Director of the FRA contacted the Director of the Observatory. In doing so, the Director of the FRA breached his duty of impartiality, objectivity and independence, as well as Article 21 of Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ 2001 L 8, p. 1), and the principle of equal treatment.
61. The Agency requests the Tribunal to reject that plea, principally, as inadmissible because it was not raised in the complaint and, in the alternative, as unfounded.
– Findings of the Tribunal
62. It is apparent from the pleadings of the applicant that, during the interview of 11 January 2013, she asked the director of the FRA not to contact the Director of the Observatory regarding her participation in the selection procedure in question, arguing that, in the particular circumstances of the case, such contact would constitute an infringement ‘of confidentiality rules, a violation of her personal rights and also a procedural infringement’. The applicant claims that the Director of the FRA agreed to that request.
63. The applicant has not provided the Tribunal with any evidence, or even prima facie evidence, to suggest that the Director of the FRA actually contacted the Director of the Observatory concerning the applicant’s participation in the selection procedure at issue. She confines herself to pure speculation based on the fact that she ‘believ[ed]’ that the interview with the Director of the FRA went very well and that the contested decision had come as ‘a complete surprise’. Similarly, the conclusion that the applicant draws from a discussion that she allegedly had, after the interview of 11 January 2013, with the Director of the FRA, the Head of the HR Department and with a member of the selection committee, who told her she could set up a gym in the FRA and organise voluntary fitness classes, as she had done in the EMCDDA, is pure speculation. Such statements, assuming that they were actually made, must be interpreted simply as friendly comments and do not in any way demonstrate, as the applicant claims, that the Head of the HR Department ‘would not have [made them] if he had not thought the [a]pplicant was the winning contender’.
64. Furthermore, the applicant’s request for the adoption of measures of organisation of the procedure or measures of inquiry to determine whether the Director of the FRA contacted the Director of the EMCDDA between 11 January 2013, the date of the interview with the applicant, and 5 February 2013, the date on which she was informed that she had not obtained the post, must be rejected. Assuming that the phone records of the Agency in general, and those of the Director in particular, can prove the existence of such contacts, they could not in any way demonstrate that the applicant was the subject of those contacts.
65. Accordingly, the present plea must be dismissed, without it being necessary for the Tribunal to rule on its admissibility in the light of the rule of correspondence between the complaint and the action.
The fourth plea, alleging an infringement of the guidelines of the Agency regarding seconded national experts
66. The fourth plea alleges that, by choosing for the post to be filled a candidate who was already working with the Agency as a seconded national expert, the contested decision was adopted in breach of the FRA guidelines on seconded national experts, that it granted an unfair advantage to the candidate selected and is vitiated by a manifest error of assessment.
67. The Tribunal notes that, as is apparent from settled case-law, the rule of correspondence between the complaint, under Article 91(2) of the Staff Regulations, and the subsequent application requires that, in order to be admissible, the pleas directed against the act adversely affecting the applicant and raised before the European Union judicature must have already been raised in the pre-litigation procedure, so that the appointing authority or the AECCE was in a position to know the criticisms which the person concerned is making against the contested decision. That rule is justified by the very purpose of the pre-litigation procedure, which is to allow for an amicable settlement of disputes arising between officials and the administration (judgment in Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, paragraphs 71 and 72, and the case-law cited). Furthermore, the implementation of the rule of correspondence between the application and the complaint, and its review by the Courts of the European Union, must guarantee full compliance, first, with the principle of effective judicial protection, which is a general principle of EU law laid down in Article 47 of the Charter, so that the person concerned may be in a position legitima tely to challenge a decision of the appointing authority or of the AECCE which adversely affects him, and, secondly, with the principle of legal certainty, so that the appointing authority or the AECCE may be in a position to know, at the complaint stage, the criticisms which the person concerned makes of the contested decision (judgment in Commission v Moschonaki, EU:T:2013:557, paragraph 82).
68. Therefore, in actions brought by officials, claims before the European Union judicature may contain only heads of claim based on the same matters as those raised in the complaint, although those heads of claim may be developed before the European Union Courts by the presentation of pleas in law and arguments which, whilst not necessarily appearing in the complaint, are closely linked to it ( Commission v Moschonaki, EU:T:2013:557, paragraph 73, and the case-law cited).
69. Finally, it is important to note that, since the pre-litigation procedure is informal in character and those concerned act, in general, without the assistance of a lawyer at that stage, the administration must not interpret the complaints restrictively but must, on the contrary, examine them with an open mind. Furthermore, Article 91 of the Staff Regulations is not intended to be strictly and definitively binding for the purposes of a possible contentious stage of the procedure, provided that neither the heads of claim nor the relief sought in the complaint are changed in the action brought. However, the fact remains that, in order for the pre-litigation procedure provided for under Article 91(2) of the Staff Regulations to achieve its objective, it is necessary that the appointing authority be in a position to know with sufficient precision the criticisms formulated by the persons concerned against the contested decision ( Commission v Moschonaki, EU:T:2013:557, paragraphs 76 and 77, and the case-law cited).
70. In the present case, in her complaint, the applicant submits (i) that the contested decision infringes Article 3 of Decision 2009/3 of the Executive Board of the Agency of 18 November 2009, on general implementing provisions on the procedures governing the engagement and the use of temporary agents at the Agency, in that she did not receive the results of the selection procedure tests, (ii) that it breaches the duty to state reasons and, (iii) that it infringes the vacancy notice, in that the FRA recruited one member of staff only, whereas the notice provided for the possibility of recruiting two.
71. It is thus apparent from the examination of the content of the complaint that the fourth plea was not raised in the complaint and that it is not closely related to any plea or argument of the complaint.
72. It is true that, in the complaint, the applicant refers to a possible breach of the principles of objectivity, transparency, legal certainty and good administration, and infringement of the rules concerning the protection of personal data and a misuse of power. However, the applicant merely lists possible irregularities without developing any argument in that regard, reserving the right to give explanations in the context of a possible administrative investigation. Such a list of possible grounds of illegality of the contested decision does not allow the AECCE, even interpreting the complaint with an open mind, to examine the criticisms that the applicant makes regarding that decision. Interpreting a complaint with an open mind does not mean that the administration is obliged to imagine or speculate on what the claimant intended to refer to without giving further details. It follows that the applicant cannot rely on the mere mention of those possible grounds of illegality of the contested decision to justify the admissibility of her fourth plea as regards the rule of correspondence.
73. Finally, when asked at the hearing about the admissibility of her fourth plea, the applicant stated that, at the time when she brought her complaint, she did not yet know the identity of the person who had been chosen at the conclusion of the contested recruitment procedure and that she had discovered that information only in August 2013, after making ‘personal enquiries’.
74. However, the applicant provided no evidence that could demonstrate that she was unable to carry out those ‘personal enquiries’ or, in any event, to know the name of the candidate who was finally chosen before bringing the complaint. It suffices to observe that whereas it is true, as the FRA claims in its defence, that the latter had no duty, on its own initiative, to inform the applicant as to the identity of the successful candidate, it is not apparent from the case-file that the applicant had ever requested access to that information.
75. Furthermore, it should be added that the Agency’s rule that ‘[the secondment] cannot lead to employment with the Agency’ cannot prevent a former seconded national expert from being recruited as a member of the temporary staff, as the person concerned was not recruited because of his status as a seconded national expert, but because he succeeded in the selection process for the recruitment of a member of the temporary staff. Accordingly, even assuming that the applicant could rely, in the present action, on an infringement of the abovementioned provision, it must be held that that provision was not infringed in the present case.
76. Nor can the Tribunal accept the applicant’s argument, based on the rules of the European Commission regarding seconded national experts, that the national expert appointed to the contested post ‘was supposed to return to his home country and implement his knowledge and experience acquired while working at the [the Agency]’ at the end of his contract. The person concerned ceased to be a seconded national expert, at the latest, upon appointment as a member of staff of the Agency.
77. It follows that the fourth plea must be rejected as inadmissible and, in any event, as unfounded.
The fifth plea, alleging irregular composition of the selection committee and breach of the principle of non-discrimination on grounds of sex
– Arguments of the parties
78. By her first complaint, the applicant contests the regularity of the composition of the selection committee for two reasons.
79. First, she considers the fact that four men and one woman sat on that committee infringes the rules intended to ensure a gender balance in selection boards.
80. Secondly, she argues that, according to Article 3(1)(b) and 3(2)(c) of Decision No 2009/3 of the Executive Board of the Agency, the Staff Committee should have been represented by a full member in the selection committee. Furthermore, the applicant observes that it is apparent from an e-mail of 9 September 2013 from the President of the Staff Committee, which was forwarded to the Tribunal by the Agency in the context of measures of organisation of procedure, that the Staff Committee had only decided on 17 July 2013 to participate in selection committees by appointing a representative as a full member, whereas prior to that its representatives participated in them as observers without voting rights. In those circumstances, according to the applicant, the selection committee was composed irregularly.
81. By her second complaint, the applicant observes that the two candidates on the reserve list are men and that the Director of the FRA is also a man. That fact, according to the applicant, demonstrates a gender imbalance which failed to ensure the fairness of the procedure and of the final decision.
82. The Agency notes that that argument was not raised in the complaint or in the claim, and therefore contends that it must be rejected as inadmissible. In any event, according to the Agency, that plea is entirely unfounded in law.
– Findings of the Tribunal
83. The Tribunal notes at the outset that this plea is not referred to in the complaint and that it is not closely related to any of the pleas in the complaint, in breach of the rule of correspondence between the pleas raised in the application and the pleas set out in the complaint, in accordance with the case-law set out in paragraphs 67 to 69 of the present judgment.
84. It follows that the fifth plea in law must be rejected as inadmissible.
85. That conclusion cannot be invalidated by the arguments put forward by the applicant at the hearing.
86. Questioned on the admissibility of that fifth plea, the applicant stated that any plea alleging infringement of fundamental rights should be considered a matter of public policy and should therefore be raised by the court of its own motion. Moreover, according to the applicant, the part of the first complaint concerning the status of the representative of the Staff Committee in the selection committee is a plea of illegality, which, according to the judgment in CR v Parliament
(F‑128/12, EU:F:2014:38), can be raised for the first time in the application.
87. In that regard, the Tribunal considers that the interpretation of the concept of public policy plea proposed by the applicant could allow an applicant to rely, for the first time before the court, on a plea directly concerning the legality of an act adversely affecting him which is completely unconnected with those relied on in the complaint. In those circumstances, the administration would be apprised, in the complaint, of only some of the allegations against it. Not being in a position to know with sufficient certainty the complaints or requests of the person concerned, as the case-law requires, the administration could not therefore seek an amicable settlement (see, to that effect, judgment in BG v Ombudsman, T‑406/12 P, EU:T:2014:273, paragraph 34).
88. With regard to the status of the representative of the Staff Committee in the selection committee, the Tribunal considers that the applicant has not raised a plea of illegality, but a plea alleging infringement of the rules established by the Agency for the establishment of selection committees. Accordingly, such a plea should have been raised in the complaint that preceded the application, which the applicant has failed to do.
89. In the light of the foregoing, the claim for annulment must be dismissed in its entirety.
The claims for damages
90. The applicant submits that the contested decision caused her material damage which she assesses provisionally at a sum of EUR 550 651 and non-material damage which she assesses at a sum of EUR 70 000.
91. The Tribunal notes that, according to settled case-law, a claim for compensation for damage must be dismissed where there is a close connection between that claim and a claim for annulment which has been rejected as unfounded ( Trentea v FRA, EU:F:2012:179, paragraph 121).
92. In the present case, the claim for compensation is closely connected to the claim for annulment which has been dismissed as unfounded. Since examination of the claim for annulment has not established any unlawful action such as to give rise to non-contractual liability on the part of the Agency, the claim for damages must be rejected.
93. Consequently, the action must be dismissed in its entirety.
Costs
94. Under Article 101 of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title 2 of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 102(1) of its Rules of Procedure, the Tribunal may, if equity so requires, decide that an unsuccessful party is to pay only part of the costs or even that he is not to be ordered to pay any.
95. It is apparent from the reasons set out in the present judgment that the applicant has been unsuccessful. Furthermore, in its pleadings the FRA has expressly requested that the applicant be ordered to pay the costs. Since the circumstances of the present case do not warrant the application of Article 102(1) of the Rules of Procedure, the applicant must bear her own costs and she must be ordered to pay the costs incurred by the FRA.
Operative part
On those grounds,
THE CIVIL SERVICE TRIBUNAL (Second Chamber)
hereby:
1. Dismisses the action;
2. Declares that Ms Gyarmathy is to bear her own costs and orders her to pay the costs incurred by the European Union Agency for Fundamental Rights.