ORDER OF THE GENERAL COURT (First Chamber)
16 November 2018 (*)
(Civil service — Members of the temporary staff — Candidature submitted for the post of Director of the EMCDDA — Rejection of the candidature — Opinion of the CCA — Non-challengeable act — Manifest inadmissibility)
In Case T‑552/16,
OT, a former member of the European Monitoring Centre for Drugs and Drug Addiction, represented by D. Sobor, lawyer,
applicant,
v
European Commission, represented by G. Gattinara and F. Simonetti, acting as Agents,
defendant,
APPLICATION on the basis of Article 270 TFEU and seeking, first, annulment of ‘the [d]ecision of 26 September 2014 of [the Commission] refusing to accept the [a]pplicant’s candidature for the post of Director of the European Monitoring Centre for Drugs and Drug Addiction’ (EMCDDA) and, secondly, compensation in respect of the material and non-material harm she has allegedly suffered,
THE GENERAL COURT (First Chamber),
composed of I. Pelikánová, President, P. Nihoul (Rapporteur) and J. Svenningsen, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1        A vacancy notice, bearing the reference COM/2013/10339, for the post of Director of the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) was published in the Official Journal of the European Union of 15 October 2013 (OJ 2013 C 299 A, p. 1).
2        Pursuant to Article 11(1) of Regulation (EC) No 1920/2006 of the European Parliament and of the Council of 12 December 2006 on the EMCDDA (recast) (OJ 2006 L 376, p. 1), the Director is appointed by the Management Board of the EMCDDA on a proposal from the European Commission for a renewable five-year term.
3        According to the vacancy notice published on 15 October 2013, the person chosen was to be employed as a member of the temporary staff at grade AD 14.
4        The selection procedure was described in that vacancy notice as follows:
‘A preselection panel will be set up for the selection process. This panel will invite applicants with the best profile for the specific requirements of the post …, who have been selected on the basis of their merits and the criteria set out above[, to an interview]. Candidates shortlisted by the preselection panel will then be called for an interview with the Commission’s Consultative Committee on Appointments (CCA) and will have to undergo testing in an assessment centre run by external recruitment consultants. Candidates who are short-listed by the CCA will then be interviewed by the relevant Commissioners.
Following these interviews, the Commission will adopt a list of eligible candidates, which will be communicated to the Management Board of the [EMCDDA]. The latter will interview the shortlisted candidates and select a candidate from among them. Inclusion on the shortlist does not guarantee appointment. Candidates may be required to undergo further interviews and/or tests in addition to those indicated above.’
5        On 14 November 2013, the applicant, OT, submitted her candidature for the post of Director of the EMCDDA, as did 34 other candidates. She had previously worked as a member of the temporary staff at the EMCDDA, from 1 May 2008 to 30 April 2013.
6        On 28 May 2014, she received a letter informing her that the preselection panel had decided not to invite her to an interview for the following reason:
‘…other candidates have a better mix of skills and experience [as] specified in the vacancy notice [published on 15 October 2013]’.
7        That letter informed her of the possibility of lodging an appeal, by 6 June at the latest, at an address specified therein.
8        The applicant lodged an appeal on 5 June 2014. By letter of 13 June 2014 she was invited to an interview, scheduled for 19 June 2014, before the preselection panel, with ten other candidates. Following that interview, she was classed in eleventh position.
9        By letter of 26 September 2014, the Commission’s Consultative Committee on Appointments (‘the CCA’) informed the applicant that it had found no reason to deviate from the preselection panel’s recommendation and that she would not be invited to another interview. The reasons given in that letter were also that ‘other candidates [had] a better mix of the skills and experience as specified in the vacancy notice [published on 15 October 2013]’. The CCA added that she could contact the Chair of the preselection panel if she would like to receive ‘feedback on [her] performance during [her] interview with the preselection committee’.
10      The applicant contacted the Chair of the preselection panel on 8 October 2014 to obtain that information.
11      After offering to answer the applicant by telephone, the Chair of the preselection panel repeated, in a letter dated 3 November 2014, that the panel had found that other candidates had ‘a better mix of the skills and experience as specified in the vacancy notice [published on 15 October 2013]’. In addition, he specified that although the applicant had the relevant technical skills and experience, she had not managed to ‘convince the panel with regards to the required management skills’.
12      On 12 December 2014, the applicant submitted a complaint to the Commission. In that complaint she requested:
–        ‘annulment of both rejecting decisions made by the preselection panel and/or the CCA [with] regard to [her] candidacy’,
–        compensation in respect of the harm she considered herself to have suffered as a result of those decisions, namely EUR 1 033 908.17 in respect of material harm and EUR 100 000 in respect of non-material harm,
–        the launching of an administrative inquiry in order to ‘shed light [on] the questionable aspects of the contested selection procedure’.
13      On 21 January 2015, the Secretary of the preselection panel informed the applicant that, following a decision of the Commission dated 3 December 2014 and the 50th meeting of the Management Board of EMCDDA, it had been decided not to establish a shortlist of suitable candidates and to launch a new selection procedure. The letter stated that it served as formal notification on behalf of the AECE (authority empowered to conclude contracts of employment) that the procedure was now closed.
14      On 23 January 2015, a new vacancy notice for the post of Director of the EMCDDA, bearing reference COM/2015/20002, was published in the Official Journal (OJ 2015 C 22 A, p. 1). That other procedure culminated in the recruitment, on 14 October 2015, of a new Director. The applicant did not participate in that recruitment procedure.
15      On 9 April 2015, the Commission rejected the complaint in its entirety. That decision was communicated to the applicant on 13 April 2015.
Procedure and forms of order sought
16      On 15 May 2015, the applicant submitted an application for legal aid to the Civil Service Tribunal on the basis of Article 110 of its Rules of Procedure.
17      By order of 7 September 2015, the President of the Civil Service Tribunal granted the applicant legal aid.
18      By order of 20 July 2016, the President of the Civil Service Tribunal designated the applicant’s lawyer.
19      By application lodged at the Registry of the Civil Service Tribunal on 12 August 2016, the applicant brought the present action, initially registered as Case F‑75/15.
20      By letter of 12 August 2016, the applicant submitted an application seeking anonymity.
21      Pursuant to Article 3 of Regulation (EU, Euratom) 2016/1192 of the European Parliament and of the Council of 6 July 2016 on the transfer to the General Court of jurisdiction at first instance in disputes between the European Union and its servants (OJ 2016 L 200, p. 137), the present case was transferred to the General Court as it stood on 31 August 2016. That case was thus registered at the Registry of the General Court as Case T‑552/16 and assigned to the First Chamber.
22      On 21 November 2016, the General Court decided to grant the applicant’s application for anonymity.
23      On 23 January 2017, the Commission lodged the defence.
24      On 27 March 2017, the applicant lodged the reply.
25      On 15 June 2017, the Commission lodged the rejoinder.
26      By letter lodged at the Registry on 11 July 2017, the applicant requested that a hearing be held, in accordance with Article 106(1) of the Rules of Procedure of the General Court.
27      On 24 January 2018, 23 February 2018 and 4 April 2018, the Court put written questions to the parties in the context of measures of organisation of procedure. In particular, the applicant was invited to submit observations on the response provided by the Commission to questions seeking clarification of the position adopted by that institution, after the complaint, on the admissibility of the claim for annulment brought by the applicant.
28      The parties replied to the Court’s questions by letters of 8 February 2018, 9 March 2018 and 27 April 2018.
29      The applicant claims that the Court should:
–        annul ‘the [d]ecision of 26 September 2014 of the [Commission] refusing to accept [her] candidature for the post of Director of the [EMCDDA]’ (‘the “decision” of 26 September 2014’);
–        annul ‘the [d]ecision of 9 April 2015 of the [Commission] rejecting [her] complaint …’ (‘the decision of 9 April 2015’);
–        order the Commission to pay the sum of EUR 2 836 107 by way of compensation in respect of the material harm suffered;
–        order the Commission to pay the sum of EUR 100 000 by way of compensation in respect of the non-material harm suffered;
–        order the Commission to pay the costs.
30      The Commission contends that the Court should:
–        dismiss the application;
–        order the applicant to pay the costs.
31      On a number of occasions, the applicant requested that measures of inquiry be ordered seeking, in particular, the designation of an expert or that an expert analysis be made in order to assess the authenticity of the recording which she had made of her interview with the preselection panel.
Law
32      Under Article 126 of the Rules of Procedure, where the action is manifestly inadmissible the General Court may, without taking further steps in the proceedings, decide to give a decision by reasoned order.
33      In the present case, the Court considers itself to have sufficient information from the material in the file, in particular from the replies of the parties to the questions put to them, and has decided, on that basis, to rule without taking further steps in the proceedings in accordance with Article 126 of the Rules of Procedure.
Subject matter of the action
34      It is case-law that claims for annulment formally brought against a decision to reject a complaint have the effect, where that decision lacks any independent content, of bringing before the Court the act against which the complaint was submitted (see, to that effect, judgment of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 8).
35      In the present case, inasmuch as it rejects the complaint, the decision of 9 April 2015 does not have any independent content in relation to the ‘decision’ of 26 September 2014, whose reasoning it simply makes clear. The claim for annulment must therefore be regarded as directed against the latter decision, even if, in the examination of its legality, the statement of reasons in the decision rejecting the complaint must be taken into consideration, that statement of reasons being deemed to supplement the statement of reasons in the contested decision (see, to that effect, judgment of 9 December 2009, Commission v Birkhoff, T‑377/08 P, EU:T:2009:485, paragraphs 58 and 59).
36      It must therefore be held that the claim for annulment made in the present case concerns the ‘decision’ of 26 September 2014.
37      The claim for damages, for its part, seeks compensation in respect of the alleged harm stemming from illegalities vitiating that decision and from the conduct of the EMCDDA during the selection procedure.
The claim for annulment
38      The applicant puts forward ten pleas in law in support of that claim for annulment, headed as follows:
–        ‘violation of Article 2 of the 2000/407/EC Commission Decision of 19 June 2000 relating to gender balance within the committees and expert groups established by it [(OJ 2000 L 154, p. 34)], [violation] of Article 3 of Annex III to the [Staff Regulations], and of the principle of legitimate expectations’;
–        ‘violation of the duty to state reasons’;
–        ‘violation of the vacancy notice [published on 15 October 2013]’;
–        ‘violation of [s]ection 6.4. of the Guidelines for Candidates on Senior Management Appointment Procedures’;
–        ‘violation of the obligation to indicate the possibilities of appeal’;
–        ‘the falseness of the stated grounds’;
–        ‘violation of Articles 21 and 23 of the [Charter of Fundamental Rights of the European Union], violation of Articles [1d(1) and (2) of the Staff Regulations]’;
–        ‘violation of Article 21 of the European Code of Good Administrative Behaviour, violation of Articles 4, 5, 6, 7 and 11 of Regulation (EC) No 45/2001 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)]’;
–        ‘compromised independence of the members of the preselection panel’;
–        ‘violation of the principle of good administration’.
39      The applicant submits that the action is admissible, since it is directed against an act adversely affecting her. The Commission, for its part, considers that the ‘decision’ of 26 September 2014, since it was an act of the CCA, constitutes an opinion and is on that basis a preparatory act in a procedure made up of several stages. It takes the view, however, that the action could be declared admissible in accordance with the order of 13 April 2011, Planet v Commission (T‑320/09, EU:T:2011:172), and the judgment of 13 October 2015, Commission v Verile and Gjergji (T‑104/14 P, EU:T:2015:776).
40      It must be recalled in this connection that the admissibility of actions is a matter of public policy and may be examined by the Court of its own motion (see, to that effect, judgment of 22 February 2006, Standertskjöld-Nordenstam and Heyraud v Commission, T‑437/04 and T‑441/04, EU:T:2006:62, paragraph 28 and the case-law cited).
41      Pursuant to Articles 90 and 91 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), applicable by analogy to members of the temporary staff pursuant to Article 46 of the Conditions of Employment of Other Servants (CEOS), the admissibility of an action for annulment in cases concerning the EU civil service is conditional on the existence of an act adversely affecting the applicant.
42      It is settled case-law that only acts producing binding legal effects which directly and immediately affect the applicant’s interests, by significantly altering his legal situation, can be regarded as acts adversely affecting him (see, to that effect, order of 25 October 1996, Lopes v Court of Justice, T‑26/96, EU:T:1996:157, paragraph 19 and the case-law cited).
43      In the case of acts or decisions adopted by a procedure involving several stages, it is in principle only those measures which definitively determine the position of the institution upon the conclusion of that procedure which are open to challenge and not intermediate measures whose purpose is to prepare the final decision (see judgment of 6 February 2007, Wunenburger v Commission, T‑246/04 and T‑71/05, EU:T:2007:34, paragraph 42 and the case-law cited).
44      Acts preparatory to a decision are not therefore deemed to affect the person concerned adversely even if, in the context of an action challenging the decision adopted at the end of the procedure, the applicant may rely on defects in acts prior to the decision and closely linked to it (see, to that effect, judgment of 21 July 2016, De Nicola v EIB, F‑82/15, EU:F:2016:166, paragraph 60 and the case-law cited).
45      Thus, although some purely preparatory measures may adversely affect the person concerned inasmuch as they may influence the content of a subsequent challengeable act, those measures cannot be the subject of a separate action and must be challenged in support of an action brought against that act (see judgment of 23 November 2010, Marcuccio v Commission, F‑65/09, EU:F:2010:149, paragraph 42 and the case-law cited).
46      In any event, under Articles 90 and 91 of the Staff Regulations, only measures emanating from the appointing authority and the AECE can be the subject of a review by the General Court in proceedings brought by officials and other members of staff of the European Union institutions (see, to that effect, judgment of 10 July 1992, Mergen v Commission, T‑53/91, EU:T:1992:86, paragraph 22).
47      In the present case, the letter of 26 September 2014, which according to the applicant communicated to her a Commission decision rejecting her candidature for the post of Director of the EMCDDA, emanates from the CCA which, as its name indicates, is an advisory committee, namely a body issuing opinions which as such do not have an adverse effect and therefore cannot be the object of an action for annulment.
48      Attention was drawn to that advisory role of the CCA in the letter of 26 September 2014 in the following terms:
‘The CCA is an advisory body in the procedure for appointments of senior officials within the European Commission. Its role is to assess candidates as to their aptitude to exercise senior management functions and propose to the [AECE] a list of those candidates it considers most qualified for an appointment.’
49      The advisory role of the CCA is also apparent from the vacancy notice published on 15 October 2013, according to which the list of candidates to be communicated to the Management Board of the EMCDDA was to be established by the Commission itself after an interview with the relevant Commissioners. The Director was to be chosen, by that Management Board, from the candidates shortlisted.
50      Lastly, the advisory role of the CCA is apparent from the Commission Guidelines, of 12 January 2009, on Selection and Appointment of Directors of Regulatory Agencies, Executive Agencies and Joint Undertakings (‘the Guidelines on Regulatory Agencies’).
51      As is apparent from their title and their statement of grounds, those guidelines lay down the procedure for the appointment of Directors of European Union agencies. In section 4 thereof, they describe that procedure as containing several stages which, in the present case, were instigated by the vacancy notice published on 15 October 2013.
52      Under that procedure, the Commission and the AECE, having identified the post concerned in the establishment plan of the agency and established that they have the necessary budgetary resources available (preliminary stage), compile and publish a vacancy notice (first stage). Next, a draft list containing the names of the best candidates is drawn up by a preselection committee (second stage), an opinion is drafted by the CCA (third stage) and, after an interview with the responsible Commissioner and, in some cases, with the Commissioner for personnel and administration, a list of candidates is proposed by the Commission to the AECE, which makes the appointment (fourth and final stage).
53      As is apparent from that description, the CCA performs an advisory role whereas the final decision within the meaning of the case-law recalled in paragraph 43 above is adopted by the Management Board of the agency concerned, which, pursuant to Article 11(1) of Regulation No 1920/2006, appoints the Director of the EMCDDA.
54      In the present case, that final decision was communicated to the applicant by a letter of 21 January 2015, informing her that no shortlist of candidates had been established, that no candidate had been appointed and that a new procedure would be launched. In addition, that letter stated that it served as formal notification, on behalf of the AECE, that the procedure was now closed. The claim for annulment is not directed against that decision.
55      It follows that, given that it was adopted by an advisory body and that it is of a preparatory nature, the ‘decision’ of 26 September 2014 does not, as such, constitute an act adversely affecting the applicant against which an action for annulment may be brought.
56      The applicant takes issue with that finding, advancing two arguments in support of her position. In the first place, she claims that, so far as she is concerned, the ‘decision’ of 26 September 2014 definitively ended the selection procedure since, not being included in the list adopted by the CCA, she was not admitted to the subsequent stages of the procedure. In the second place, she alleges that the letter of 21 January 2015 merely referred to the Commission’s decision of 3 December 2014 and did not contain any new information.
57      The first of those arguments is incompatible with the nature of the opinions adopted by the CCA inasmuch as, since those documents merely express a judgment as to the value of the candidates and make a suggestion as to those which should be heard in the subsequent stage of the procedure, such opinions cannot, in themselves, definitively affect the applicant’s situation.
58      In this connection, as mentioned in section 8.3 of the Guidelines on Regulatory Agencies, the list proposed in the CCA’s opinion does not necessarily include the name of the person who will be appointed at the end of the procedure. According to that section, the Commissioner for personnel and administration reserves the right, for the purposes of the procedure, to hear people whose names have not been included in that list. It follows that the opinion does not, in itself, definitively fix the outcome of the procedure for any specific candidate.
59      Contrary to what the applicant maintains, it is of little importance that in the procedure in question the Commissioner concerned did not intervene during the stages following the CCA’s opinion. It is sufficient, in order for it to be held that that opinion did not definitively settle the applicant’s situation, that that Commissioner had the power to call in question the selection proposed by the CCA.
60      Had the Commissioner not had that power to intervene, the selection made by the CCA would still retain the character of an opinion which is not binding upon the AECE, since the AECE may choose whether or not to follow the proposal made to it. In the present case, that power was exercised by launching a new call for candidatures at the end of the procedure in which the applicant participated.
61      The applicant raises against the foregoing the objection that, since the Guidelines on Regulatory Agencies are available only in French — a language she does not know — they cannot be relied on against her.
62      In this connection, it must be recalled that whether or not an act adopted in the course of a procedure organised for the purposes of making an appointment to a position in a regulatory agency is challengeable depends on whether or not that act has the capacity to definitively affect the applicant’s legal situation.
63      That capacity is determined under Articles 90(2) and 91(1) of the Staff Regulations, as interpreted by the European Union judicature and read, if necessary, in conjunction with the provisions of the CEOS, and thus only acts emanating from the appointing authority or the AECE, where such acts have an adverse effect, can be the subject of a review by the General Court in proceedings brought by officials and other members of staff of the European Union institutions.
64      Next, the applicant challenges the application of the Guidelines on Regulatory Agencies, claiming that the procedure at issue was governed by other guidelines, namely the Commission’s Guidelines of 8 June 2006 for Candidates on Senior Management Appointment Procedures (‘the Guidelines on Senior Management’).
65      In this connection, the purpose of the Guidelines on Senior Management, on which the applicant relies, is to set out procedures for the recruitment of senior officials who are to carry out their duties in the EU institutions.
66      In the light of their purpose, those guidelines are not applicable to the procedure at issue in the present case, the aim of which was the recruitment of a Director of a regulatory agency.
67      As stated in paragraph 51 above, the procedures for the recruitment of those persons are set out by the Guidelines on Regulatory Agencies. Adopted on 12 January 2009, those guidelines replace the Commission Guidelines of 13 May 2005 for the appointment of heads of Community agencies, and update section 4.2.2 of the Commission Guidelines of 20 May 2006 for the establishment and operation of executive agencies financed by the general budget of the European Communities.
68      In any event, even if it were held to be well-founded, the argument put forward by the applicant is ineffective since the role conferred on the CCA by the Guidelines on Senior Management is identical to that granted to it under the Guidelines on Regulatory Agencies.
69      Thus, section 6 of the Guidelines on Senior Management states, as is provided in section 8.2 of the Guidelines on Regulatory Agencies, that the CCA is to issue an initial opinion, which is communicated to the candidates, and then, on the basis of interviews, a second opinion.
70      Furthermore, section 7 of the Guidelines on Senior Management states, as does section 8.3 of the Guidelines on Regulatory Agencies, that the candidates shortlisted in the CCA’s opinion are to be invited to an interview with one or more Commissioners. Following that interview, a formal decision is taken to retain one candidate, that decision being notified, by means of a formal notification, to all the candidates who took part in the procedure.
71      That final stage of the procedure means, according to section 7.3 of the Guidelines on Senior Management, which is similar to section 10 of the Guidelines on Regulatory Agencies, that every candidate who applied for the post receives a formal notification of the outcome of the selection and recruitment procedure.
72      That closing decision is accordingly expressly identified in the Guidelines on Senior Management, which in the applicant’s submission are applicable to the recruitment procedure in which her candidature was rejected, as the ‘act adversely affecting’ the person concerned within the meaning of Article 90 of the Staff Regulations.
73      Having thus examined the applicant’s first argument, it is necessary to address her second argument, in which she submits that the letter of 21 January 2015 did not contain any new information but merely referred to the act by which the Commission, on 3 December 2014, had decided not to propose any candidate to the Management Board of the EMCDDA, as described in paragraph 13 above. She submits also that there are several flaws in those acts, due to the fact that they contain no statement of reasons or indication of the means of appeal and that she was not heard prior to their adoption.
74      It is sufficient to note in this connection that the applicant’s assertion is inaccurate since, contrary to what she states, the letter of 21 January 2015 and the Decision of 3 December 2014 contain new information, since they reveal that the Commission decided not to submit a shortlist of suitable candidates and that the Management Board of the EMCDDA had decided to launch a new procedure.
75      The argument is ineffective as to the remainder since it calls in question the lawfulness of acts which are not the subject of the present action. In disputing the challengeable nature of the decision of 3 December 2014 and of the letter of 21 January 2015, the applicant has not established that the ‘decision’ of 26 September 2014 is a challengeable act.
76      After analysing the arguments put forward by the applicant, it is necessary to analyse the position adopted by the Commission concerning the admissibility of the action in so far as it is directed against the CCA’s opinion.
77      The Commission in its pleadings submitted that, even if it is directed against an act not having an adverse effect, the action could be declared admissible. Invited to explain this view, the Commission referred to two cases which it claims were decided to this effect by the General Court. Thus in the order of 13 April 2011, Planet v Commission (T‑320/09, EU:T:2011:172, paragraph 23), the General Court held that where an application is formally brought against a decision which is part of a group of decisions forming a whole, that application may be regarded as directed also, so far as necessary, against the other decisions. That order cites the judgment of 2 March 1967, Simet and Feram v Haute Autorité (25/65 and 26/65, EU:C:1967:4, paragraph 2). The same position, it contends, was adopted in the judgment of 13 October 2015, Commission v Verile and Gjergji (T‑104/14 P, EU:T:2015:776, paragraph 108), where the final decision was adopted before the action was brought.
78      It is sufficient to state in this connection that the abovementioned cases have specific characteristics which are not present in the case before the Court.
79      First, in the cases which gave rise to the judgment of 2 March 1967, Simet and Feram v Haute Autorité (25/65 and 26/65, EU:C:1967:4, paragraph 2) and the order of 13 April 2011, Planet v Commission (T‑320/09, EU:T:2011:172, paragraph 21), the form of order sought in the application was inconsistent with the pleas therein, in the sense that the decisions challenged were different. There was therefore a difficulty in interpreting the application which does not arise in the situation in the present case where both the form of order sought and the pleas in the application are clearly directed against the ‘decision’ of 26 September 2014.
80      Secondly, those cases concerned acts which were inseparable and which had been adopted in the context of a procedure involving solely the applicant and the authority from which the challenged act emanated. In the present case, by contrast, the procedure involves the comparison of candidatures, comprises action on the part of several bodies and gives rise to assessments concerning the substance of the file, the preparatory acts adopted in the course of the procedure not necessarily leading to the adoption of a decision which perfectly reflects their content.
81      As to the remainder, it must be recalled that according to the case-law only acts which have an adverse effect may be the subject of review before the EU judicature and, in the context of the law on the EU civil service, such acts are those adopted by the appointing authority or the AECE.
82      For the reasons set out in paragraphs 47 to 53 above, the CCA’s opinion does not constitute such an act having an adverse effect but merely prepares the final decision within the meaning of the case-law recalled in paragraph 43 above. That final decision definitively determines the legal situation of candidates and the date at which that final act is adopted has no effect on the classification of that opinion as a preparatory act.
83      In this respect, the fact that, in its reply of 9 April 2015 to the complaint, the AECE referred to its decision of 3 December 2014, in which it had definitively decided not to propose any list of candidates to the Management Board of the EMCDDA and had then decided, in line with its duty to have regard to the welfare of staff, to examine the substance of the complaint, is not relevant either so far as the preparatory nature of the CCA’s opinion is concerned. Furthermore, the Court is not of the opinion, having regard to the judgment of 28 June 2018, Spliethoff’s Bevrachtingskantoor v Commission (C‑635/16 P, EU:C:2018:510), that it is under an obligation to redirect the action against that decision of 3 December 2014, assuming that it could be considered to be the decision by which the AECE definitively rejected the applicant’s candidature.
84      By enabling the act definitively establishing their legal situation to be challenged, the case-law guarantees litigants effective legal protection without the procedure in which they participated being interrupted at each stage by a legal action, since such interruptions may hinder service continuity by preventing the administration from filling vacant posts in due time.
85      It follows from those considerations that the claim for annulment must be dismissed as manifestly inadmissible, without it being necessary to rule on the measures of inquiry requested by the applicant.
The claim for damages
86      Under the claim for damages the applicant is seeking, first, compensation in respect of material harm and, secondly, compensation in respect of non-material harm.
Material harm
87      The applicant claims that, on account of the illegalities vitiating the ‘decision’ of 26 September 2014, she lost a genuine chance of being recruited to fill the post of Director of the EMCDDA, given that she had the required skills and that the five candidates accepted by the CCA failed the next stage of the procedure. She takes the view that she had better chances than those other candidates of obtaining the post concerned because she had better assessment skills and judgment in EMCDDA management matters than those of its former Director. In other words, had she been admitted to the next stage of the procedure, she would have been appointed Director and the procedure would not have had to be relaunched.
88      The applicant therefore claims damages equivalent to the remuneration and allowances she would have obtained over the course of the contract which should have been concluded at the end of the procedure at issue, and the retirement pension she would have received until the age of 78.7, which corresponds to the life-expectancy of a women of her age and nationality. She thus assesses her material harm at EUR 2 836 107.
89      It is settled case-law that claims seeking compensation in respect of material or non-material harm must be dismissed where they are closely linked with claims for annulment which have themselves been dismissed as either inadmissible or unfounded (see, for example, judgment of 15 May 1997, N v Commission, T‑273/94, EU:T:1997:71, paragraph 159 and the case-law cited).
90      In the present case, it is apparent from the application that the claim for damages is closely linked to the claim for annulment. The claim for damages seeks compensation in respect of the material harm allegedly caused to the applicant by the illegalities in the ‘decision’ of 26 September 2014.
91      The inadmissibility of the claim for annulment therefore entails the inadmissibility of the claim for damages in so far as it seeks compensation in respect of the material harm allegedly suffered by the applicant.
Non-material harm
92      The applicant submits that the various illegalities alleged in connection with the claim for annulment and the way in which she was treated have caused her significant non-material harm. First, they have had a negative impact on her personal dignity, her self-esteem, her reputation and her mental health. Secondly, they caused her to suffer anxiety, uncertainty and psychological harm.
93      The applicant calls into question in particular the conduct of the former Director of the EMCDDA who, without any reaction from the EMCDDA, allegedly hampered on various occasions her career development, inter alia by allowing the selection procedure in the present case to take place in an unlawful manner.
94      On that basis, the applicant seeks damages of EUR 100 000 in respect of non-material harm.
95      The non-material harm in respect of which the applicant is seeking compensation has, in her submission, two origins: first, the illegalities allegedly vitiating the ‘decision’ of 26 September 2014 and, secondly, the conduct of the EMCDDA, in which the preselection panel was complicit.
96      In so far as it is based on the alleged illegalities vitiating the ‘decision’ of 26 September 2014, the claim for damages in respect of non-material harm is manifestly inadmissible in accordance with the case-law recalled in paragraph 89 above.
97      In so far as it is based on the conduct of the EMCDDA, the Commission submits that the applicant’s claim is inadmissible on the ground that she failed to submit a complaint on that matter, under Article 90(2) of the Staff Regulations in conjunction with Article 46 of the CEOS, before bringing an action before the General Court.
98      It must be observed in this connection that, inasmuch as the harm alleged does not stem from an act which the applicant is seeking to have annulled but from an administrative fault committed by the administration, the pre-litigation procedure must be initiated by a request under Article 90(1) of the Staff Regulations calling on the administration to make good that harm, and be continued, as appropriate, with a complaint directed against the decision to reject that request (see, to that effect, judgment of 12 July 2011, Commission v Q, T‑80/09 P, EU:T:2011:347, paragraph 61).
99      However, in the present action, the applicant has invoked neither a complaint against the decision of 9 April 2015, inasmuch as it rejects her request seeking compensation in respect of the non-material harm resulting from the administration’s conduct, nor a response from the Commission to that complaint.
100    The claim for damages is thus also manifestly inadmissible in so far as it relates to compensation in respect of the non-material harm allegedly suffered by the applicant on account of the administration’s conduct.
101    That claim must therefore be dismissed in its entirety.
102    It follows from all the foregoing considerations that the action must be dismissed in its entirety.
Costs
103    Under Article 134(1) 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.
104    Since the applicant has been unsuccessful, she must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby orders:
1.      The action is dismissed.
2.      OT shall pay the costs.
Luxembourg, 16 November 2018.
E. Coulon
I. Pelikánová
Registrar
President
*      Language of the case: English.