JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Third Chamber)

2 July 2014 ( )

(Civil service — Open competition — Non-inclusion on the reserve list –Verbal reasoning test — Plea of illegality of the competition notice — Choice of the second language from three languages — Principle of non-discrimination)

In Case F‑5/13,

ACTION brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof,

Paulo Jorge Da Cunha Almeida, residing in Brussels (Belgium), represented by J. Grayston, solicitor, and G. Pandey and M. Gambardella, lawyers,

applicant,

v

European Commission, represented by J. Currall and B. Eggers, acting as Agents,

defendant,

THE CIVIL SERVICE TRIBUNAL (Third Chamber)

composed of S. Van Raepenbusch, President, R. Barents (Rapporteur) and K. Bradley, Judges,

Registrar: X. Lopez Bancalari, Administrator,

having regard to the written procedure and further to the hearing on 11 December 2013,

gives the following

Judgment

1 By application received at the Registry of the Tribunal on 15 January 2013, Mr Da Cunha Almeida seeks, principally, the annulment of the decisions of the selection board of Competition EPSO/AD/205/10 excluding him from the reserve list and refusing his request for review, and the annulment of the competition notice and the reserve list.

Legal framework

2 The legal framework consists of Article 1(d), Article 27 and Article 28(f) of the Staff Regulations of Officials of the European Union, in the version applicable on the date of the contested decisions (‘the Staff Regulations’), and Article 1(1)(f) of Annex III to the Staff Regulations.

3 Articles 1 and 6 of Council Regulation No 1 of 15 April 1958 determining the languages to be used by the European Economic Community (OJ, English Special Edition, Series I, Chapter 1952-1958, p. 59), as amended by Council Regulation (EC) No 1791/2006 of 20 November 2006 (OJ 2006 L 363, p. 1, ‘Regulation No 1’), are also part of the legal framework and provide:

‘Article 1

The official languages and the working languages of the institutions of the Union shall be Bulgarian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish and Swedish.

…

Article 6

The institutions of the Community may stipulate in their rules of procedure which of the languages are to be used in specific cases.’

4 Notice of Open Competition EPSO/AD/204-205/10, published on 28 October 2010 by the European Personnel Selection Office (EPSO) in the Official Journal of the European Union (OJ 2010 C 292 A, p. 1), provides in Title V, entitled ‘Open competition’:

‘…

2. Assessment centre

You will be assessed on your reasoning competencies … by means of:

(a) a verbal reasoning test;

(b) a numerical reasoning test;

(c) an abstract reasoning test.

You will also be assessed on your specific competencies in the [chosen] field and the following general competencies:

…

These competencies are tested by means of:

(d) a case study in the chosen field;

(e) a group exercise;

(f) a structured interview.

3. Languages for the assessment centre

Language 2 [, German, English or French,] for parts (a) to (f).

Your knowledge of your main language (language 1) will also be tested during part (d) (case study).

…’

Background to the dispute

5 The applicant applied to take part in competition EPSO/AD/205/10 to recruit administrators in grade AD 7 in the field of customs and/or taxation in particular at the European Commission (‘the competition’). On 17 March 2011, he was invited to take part in the reasoning tests, the structured interview and the group exercise, which took place on 12 May 2011 at the Brussels (Belgium) assessment centre.

6 On 5 July 2011, EPSO invited the applicant to the case study and to the assessment of his knowledge of his main language, to take place on 16 September 2011.

7 On 23 December 2011, the applicant was informed by EPSO, on behalf of the selection board, that he had not been included on the reserve list because he had obtained an insufficient mark in the verbal reasoning test (‘the decision of 23 December 2011’), as he had obtained only 8 out of the 20 and the minimum mark required was 10 out of 20.

8 On 31 December 2011, the applicant submitted a request for review by the selection board of the verbal reasoning test and for access to the test itself, with the questions and answers.

9 On 27 January 2012, the reserve list for the competition was published in the Official Journal of the European Union (OJ C 22 A, p.1).

10 On 9 March 2012, EPSO informed the applicant of the rejection of his request for review by the selection board (the ‘decision of 9 March 2012’).

11 On 4 June 2012, by fax and by registered letter, the applicant brought a complaint, dated 1 June 2012, against the decision of 9 March 2012, under Article 90(2) of the Staff Regulations, which was registered by EPSO on 6 June 2012.

12 The applicant did not receive an express reply to his complaint within the four-month period prescribed. By e-mail of 8 January 2013, EPSO informed the applicant that the period prescribed for bringing an action against the implied rejection of his complaint would expire on 18 January 2013. By letter of 4 February 2013, after this action had been brought, the applicant was informed of the rejection of his complaint by a decision of the director of EPSO of that date.

Forms of order sought

13 The applicant claims that the Tribunal should:

– annul the decision of 9 March 2012;

– annul the decision of 23 December 2011;

– annul the implied decision not to communicate to him the documents which he requested by letter of 31 December 2011;

– annul the implied decision rejecting his complaint;

– annul the competition notice;

– annul the competition reserve list;

– order the Commission to pay the costs.

14 The applicant also requests that the Tribunal prescribe measures of organisation of procedure or measures of inquiry aimed at obtaining a copy of the administrative file related to the competition and that the chairman of the selection board and the case handler in charge in EPSO be heard.

15 The Commission contends that the Tribunal should:

– dismiss the action;

– order the applicant to pay the costs.

Law

Admissibility of the action

16 It should be recalled that, according to settled case-law, the periods for lodging complaints and bringing actions, referred to in Articles 90 and 91 of the Staff Regulations, are matters of public policy and cannot be left to the discretion of the parties or the Court, which must ascertain, of its own motion if need be, whether they have been complied with. Those periods meet the requirement of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice (see, inter alia, order in Case F‑3/05 Schmit v Commission, EU:F:2006:31, paragraph 24 and the case-law cited).

17 It is therefore necessary to examine whether the action was brought within the legal time limit referred to in Article 91(3) of the Staff Regulations.

18 As observed in paragraph 12 of the present judgment, the applicant did not receive an express reply to his complaint within the four-month period prescribed.

19 The question arises as to when the four-month period expired.

20 In that regard, it has been held that Article 90(2) of the Staff Regulations must be interpreted as meaning that the complaint is ‘lodged’ not when it is sent to the institution, but when it reaches that institution (order in Schmit v Commission, EU:F:2006:31, paragraph 28 and the case-law cited).

21 In the present case, it is apparent from the transmission control report that the fax of the complaint was sent by the applicant on 4 June 2012 at 17.05 and was acknowledged electronically the following day at 09.33.

22 It is not disputed that, by letter of 18 June 2012, EPSO informed the applicant that his complaint had been registered on 6 June 2012. Furthermore, at the hearing, the Commission stated that it had received the complaint on the date when it was registered, namely on 6 June 2012.

23 It is apparent from the case-law that, although the acknowledgment or registration by the administration of a document sent to it is not capable of fixing a certain date for the introduction of that document, as an example of sound administrative management, it is at least a means of raising a presumption, until the contrary is proved, that the document reached it on the date indicated (see, to that effect, order in Schmit v Commission, EU:F:2006:31, paragraph 29).

24 In those circumstances, and in the absence of any evidence to the contrary, it must be held that the complaint was lodged, at the earliest, on 5 June 2012.

25 It follows that the period of four months that the administration had to reply to the complaint pursuant to the second paragraph of Article 90(2) of the Staff Regulations expired on 5 October 2012, so that the period of three months and ten days for lodging the action itself expired on 15 January 2013 at midnight.

26 Consequently, as the action was lodged on 15 January 2013, it must be held to be admissible.

The claim for annulment of the implied decision rejecting the complaint

27 According to settled case-law, claims for annulment formally directed against the decision rejecting a complaint have the effect, where that decision lacks any independent content, of bringing before the Tribunal the act against which the complaint was submitted (judgment in Case 293/87 Vainker v Parliament, EU:C:1989:8, paragraph 8; see also judgment in Case F‑104/07 Hoppenbrouwers v Commission, EU:F:2009:93, paragraph 31). In the present case, the action for annulment must be regarded as directed against the decision of 9 March 2012, which replaced the decision of 23 December 2011 and therefore constitutes the act open to challenge (see, to that effect, judgment in Case T‑173/05 Heus v Commission, EU:T:2006:392, paragraphs 19 and 20).

The claims for annulment of the decision of 9 March 2012, of the competition notice and of the reserve list

28 In support of his claims for annulment, the applicant relies on seven pleas, alleging, (i) infringement of the obligation to state reasons and manifest error of assessment; (ii) infringement of the rights of the defence and of Regulation No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents; (iii) infringement of the competition notice, of Article 30 of and Annex III to the Staff Regulations and of the duty of sound administration; (iv) infringement of the principle of sound administration and of the right to effective judicial protection in so far as some of the questions of the verbal reasoning tests were not accurate and led to divergent interpretations; (v) infringement of the competition notice, of the principle of sound administration, of the applicant’s legitimate expectations and of the principle of equality; (vi) infringement of Article 27 of the Staff Regulations and of the principle of sound administration and, (vii) infringement of the principle of sound administration, of the principles of non-discrimination and proportionality and of Articles 1 and 27 of the Staff Regulations in so far as the competition notice is unlawful.

29 The Tribunal finds that it should first consider the seventh plea, alleging infringement of the principle of sound administration, the principles of non-discrimination and proportionality and Articles 1 and 27 of the Staff Regulations in so far as the competition notice is unlawful.

Arguments of the parties

30 Relying on the judgment in Italy v Commission, (C‑566/10 P, EU:C:2012:752), the applicant considers that the competition notice is unlawful in so far as it does not provide an objective justification either as regards the limitation of the choice of second language (German, English or French) in the light of the interest of the service or as regards the proportionality of that limitation to the real needs of the service. He argues that if he had had the opportunity to sit the verbal reasoning tests in his mother tongue, his understanding of the questions would have been better and, therefore, his chances of getting higher marks would have been greater. The applicant adds that the objective of recruiting officials of the highest standards of ability and efficiency, in accordance with Article 27 of the Staff Regulations, can best be achieved when candidates are allowed to sit the selection tests in their mother tongue.

31 According to the Commission, that plea is inadmissible for three reasons. First, the applicant should have brought a prior complaint against the competition notice. In that regard, the Commission observed that it is apparent from the case-law, inter alia the judgment in Vicente Carbajosa and Others v Commission (F‑77/08, EU:F:2010:133), that an applicant attacking the language regime set out in a competition notice must introduce a complaint under Article 90(2) of the Staff Regulations, because he is attacking an act of the appointing authority. Secondly, the rule of consistency between the complaint and the application was not complied with. The Commission noted that the applicant did not raise in his complaint the plea of illegality against the language regime as set out in the competition notice, nor did he put forward arguments closely linked to that aspect. Thirdly, it contends that the applicant has no interest in attacking the language regime set out in the competition notice, since, should the action be upheld and the Commission decide to organise a new competition, it would have to start all the tests over again, including those which he also sat in his second language and in which he obtained good results.

32 With regard to the merits of the plea, the Commission notes that a limitation of the choice of second language does not interfere with the use of the candidate’s mother tongue and cannot therefore constitute discrimination on the grounds of language. The Commission also argues that the validity of the assessment centre methodology would be jeopardized if all the tests were conducted in the first language because these tests are supposed to test candidates in a work-related environment and the performance of candidates should be assessed on a comparable basis. On the one hand, candidates such as the applicant, whose first language is not widely used as a ‘vehicular’ language, would not be being tested in a real-life situation since they would not actually be using such languages at work. On the other hand, this would create a double disadvantage for such candidates, since other candidates would be operating in a realistic situation, and would be assessed by direct listening, whereas candidates such as the applicant would be operating only via translation. According to the Commission, any competition structured in this way would be severely criticised by the unsuccessful candidates, because it would bear no relation to the real circumstances of the job on offer, and/or because it would not allow the candidates to be assessed on a comparable basis. The Commission adds that it is correct that the verbal, numerical and abstract reasoning tests are now conducted in all the official languages following political pressure from Member States and that it has been possible as a result to do away with the old tests of knowledge of the main language. However, that change in the organisation of competitions cannot be seen as meaning that the old system was wrong. Finally, the Commission argues that the requirements in the competition notice do not impose any disproportionate restriction on candidates’ access to the competition and to possible recruitment since those requirements correspond to the language knowledge which a large majority of likely candidates already possess.

Findings of the Tribunal

– Admissibility of the plea

33 The Tribunal takes the view that the seventh plea is a plea of illegality of the competition notice in the light of the principles of non-discrimination and proportionality, and Articles 1 and 27 of the Staff Regulations. It follows that the arguments of the Commission in support of the inadmissibility of the seventh plea must be examined in the light of the plea of illegality of the competition notice.

34 As regards the first argument of the Commission, that the applicant should have lodged a prior complaint against the competition notice, suffice it to note that in the present case the illegality of the competition notice has been raised as a plea in support of the present action which is brought, inter alia, against the decision of 9 March 2012 not to include the applicant on the reserve list for the competition and against the reserve list itself, those acts having been the subject of a prior complaint. Moreover, the reference in that regard to the judgment in Vicente Carbajosa and Others v Commission (EU:F:2010:133) is not relevant since in that case since the applicants did not lodge a complaint against the individual decisions not to admit them to the competition that was the subject of the action. The first argument raised by the Commission must therefore be rejected.

35 As regards the alleged lack of consistency between the complaint and the application, it must be noted that, in his complaint, the applicant challenged the language regime of the notice of competition. He argued that the regime was illegal and that the practice concerning the language used in the competition and, in particular, for verbal reasoning tests, had since changed, which resulted in discrimination against him, in so far as there is a difference in treatment between those who, like him, participated in the competition and those who now participate in other competitions.

36 In that regard, it must be recalled, first, that since the pre-litigation procedure is an informal procedure and those involved at that stage are generally acting without the assistance of a lawyer, the administration must not interpret complaints restrictively but should, on the contrary, examine them with an open mind, and, secondly, that it is not the purpose of Article 91 of the Staff Regulations to bind strictly and absolutely the contentious stage of the proceedings, if any, provided that the claims submitted at that stage change neither the legal basis nor the subject-matter of the complaint (judgment in Case T‑476/11 P Commission v Moschonaki, EU:T:2013:557, paragraph 76). It follows unambiguously from the complaint that the applicant contested the alleged discriminatory effects of the language regime provided for by the competition notice in his case. Accordingly, the Commission cannot claim that it was not given an opportunity to ascertain with a sufficient degree of certainty the complaints or wishes of the person concerned, as required by the case-law (see, to that effect, Commission v Moschonaki, EU:T:2013:557, paragraph 78).

37 Accordingly, the argument regarding the consistency between the complaint and the application must also be rejected.

38 As regards the third argument of the Commission, it suffices to observe that the applicant has an interest in raising a plea of illegality against the language regime provided for by the competition notice in so far as the likelihood of getting better marks in the tests is higher if these tests are conducted in the candidate’s mother tongue or a language of which he has an equal command. The discrimination complained of by the applicant is that, in the system put into practice during the competition, the Commission favours candidates who have greater ease in one of three languages that can be chosen as a second language than the other candidates who have, certainly, the knowledge of languages required by the Staff Regulations but whose knowledge of the languages of the competition is less good than that of the first category of candidates. The applicant’s interest in bringing proceedings consists in being able to sit the competition in conditions that put all candidates on an equal linguistic footing, unless the Commission justifies its decision to limit the number of languages in which the candidates may sit the competition, in accordance with the judgment in Italy v Commission (EU:C:2012:752). The third argument raised by the Commission, therefore, must also be rejected.

39 It follows that the plea of illegality against the competition notice is admissible.

40 For the sake of completeness, the Tribunal must point out that considerations relating, respectively, to the purpose of the pre-litigation procedure, the nature of the plea of illegality and the principle of effective judicial protection preclude that a plea of illegality raised for the first time in an action should be declared inadmissible merely because it was not raised in the complaint that preceded that action (judgment in Case F‑128/12 CR v Parliament, EU:F:2014:38, paragraph 32).

– Merits of the plea

41 It must be pointed out that, although Article 1(1)(f) of Annex III to the Staff Regulations provides that the competition notice may, where applicable, lay down the knowledge of languages required in view of the special nature of the posts to be filled, no general authorisation can be derived from that provision to derogate from the requirements of Article 1 of Regulation No 1, which provides that 23 languages are to be, not only official languages, but also working languages of the institutions of the European Union (Italy v Commission, EU:C:2012:752, paragraphs 81 and 84).

42 Moreover, Article 1d(1) of the Staff Regulations provides that any discrimination based on, inter alia, language is prohibited in the application of the Staff Regulations. According to the first sentence of Article 1(d)(6), any limitation of the principles of non-discrimination and of proportionality must be justified on objective and reasonable grounds and must be aimed at legitimate objectives in the general interest in the framework of staff policy (Italy v Commission, EU:C:2012:752, paragraph 82).

43 In addition, Article 28(f) of the Staff Regulations provides that an official may be appointed only on condition that he produce evidence of a thorough knowledge of one of the languages of the European Union and of a satisfactory knowledge of another language of the European Union. While that provision lays down that the satisfactory knowledge of another language is required ‘to the extent necessary for the performance of the duties’ he is called upon to carry out, it does not state the criteria which may be taken into consideration in order to limit the choice of that language among the 23 official languages (Italy v Commission, EU:C:2012:752, paragraph 83).

44 It must therefore be held that the abovementioned provisions do not provide for explicit criteria which would allow the choice of the second language to be limited, either to the three languages required by the contested competition notice or to other official languages (see, to that effect, Italy v Commission, EU:C:2012:752, paragraph 85).

45 It should be added that no specific language rules apply to the institutions concerned by the contested competition notice (see, to that effect, Italy v Commission EU:C:2012:752, paragraph 86).

46 As regards, specifically, the interest of the service, put forward by the Commission, it is apparent from all the abovementioned provisions that that interest may be a legitimate objective that can be taken into consideration. In particular, as stated in paragraph 42 above, Article 1(d) of the Staff Regulations authorises limitations on the principles of non-discrimination and proportionality. The interest of the service must, however, be objectively justified and the required level of knowledge of languages must be proportionate to the genuine needs of the service (Italy v Commission, EU:C:2012:752, paragraph 88).

47 It should be noted, moreover, that rules limiting the choice of the second language must provide for clear, objective and foreseeable criteria so that the candidates may know, sufficiently in advance, what the language requirements are and can prepare to take part in the competition in the best possible circumstances (Italy v Commission, EU:C:2012:752, paragraph 90).

48 It is undisputed that the institutions of the Union have never adopted rules of procedure in accordance with Article 6 of Regulation No 1. Nor, moreover, has the Commission referred to other measures such as communications which lay down criteria governing the choice of the second language for participation in the competition.

49 In addition, it must be stated that the competition notice at issue contains no statement of reasons justifying the choice, as a second language for the competition tests, of the three languages in question.

50 Therefore, the plea of illegality of the competition notice must be upheld. It follows that Section V.3 of the competition notice, concerning the language regime of the competition, must be declared inapplicable in the present case.

51 In that regard, it must be borne in mind that, in accordance with settled case-law, the effects of a judgment containing a declaration of inapplicability of a provision of an act in this specific case are limited to the parties to the dispute alone, and that that judgment affects neither the act itself, namely, in this case, the contested competition notice, nor the reserve list (see, with regard to a regulatory provision concerning classification in grade, Case T‑146/96 De Abreu v Court of Justice EU:T:1998:50, paragraphs 35, 72 and 73).

52 As the plea of illegality is well founded, the decision of 9 March 2012 must be annulled, without its being necessary to consider the other pleas raised by the applicant.

The other claims

53 As the decision of 9 March 2012 is annulled, there is no need to adjudicate on the request for measures of inquiry and measures of organisation of the procedure or on the request to annul the implied decision not to communicate to him the documents which he requested by letter of 31 December 2011.

Costs

54 Under Article 87(1) of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title 2 of those rules, 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 87(2), the Tribunal may, if equity so requires, decide that an unsuccessful party is to pay only part of the costs or even that that party is not to be ordered to pay any.

55 It is apparent from the reasons set out in the present judgment that the Commission has been unsuccessful. Furthermore, in his pleadings the applicant has expressly applied for the Commission to be ordered to pay the costs. As the circumstances of the present case do not justify the application of Article 87(2) of the Rules of Procedure, the Commission must bear its own costs and be ordered to pay the costs incurred by the applicant.

On those grounds,

THE CIVIL SERVICE TRIBUNAL

(Third Chamber)

hereby:

1. Annuls the decision of the selection board of Competition EPSO/AD/205/10 of 9 March 2012, transmitted by the European Personnel Selection Office, refusing the request of Mr Da Cunha Almeida for review, following his exclusion from the reserve list of the competition by a decision of 23 December 2011.

2. Dismisses the action as to the remainder.

3. Declares that the European Commission is to bear its own costs and orders it to pay the costs incurred by Mr Da Cunha Almeida.

Van Raepenbusch Barents Bradley

Delivered in open court in Luxembourg on 2 July 2014.

W. Hakenberg S. Van Raepenbusch