OPINION OF ADVOCATE GENERAL

MEDINA

delivered on 17 November 2022( )

Case C‑511/21 P

European Commission

v

Ana Calhau Correia de Paiva

(Appeal – EPSO Competition – Plea of illegality – Article 277 TFEU – Admissibility – Notice of competition – Rules on languages – Limitation of the choice of the second language of the competition to English, French or German – Notice of competition challenged at a later stage of the competition – Basis of the individual decision or direct legal connection)





1. According to Ludwig Wittgenstein, ‘The limits of my language mean the limits of my world’. ( ) In the context of the EU institutions, it could be asserted that the limits of the languages are the limits of the European Union. The Court has already emphasised the importance of the ‘linguistic diversity of the Union’. ( ) That importance finds its expression in the choice made by the EU legislature of having the 24 languages as working languages of its institutions. ( ) It is in that context that the candidates of the competitions for recruitment to the EU institutions may challenge the language rules set by the Commission.

2. In the present case, Ms Calhau Correia de Paiva, candidate in the European Personnel Selection Office (EPSO) competition and applicant at first instance (‘the candidate’), has requested the annulment of the decision of the selection board for open competition EPSO/AD/293/14 in the field of competition law (‘the competition at issue’) of 23 June 2016 rejecting an application for review submitted by her, following her exclusion from the reserve list for that competition. By way of a plea of illegality under Article 277 TFEU, she also challenged the language rules of that competition set out in the notice of open competition ( ) (‘the contested notice of competition’). By its judgment of 9 June 2021, Calhau Correia de Paiva v Commission ( ) (‘the judgment under appeal’), the General Court annulled that decision.

3. By its appeal, the European Commission seeks to have set aside the judgment under appeal. It challenges, in essence, the finding made by the General Court that there was a close connection between the statement of reasons for the contested decision and the provisions of the contested notice of competition relating to the language regime, which provided that the candidates could choose their second language only from English, French and German.

4. Therefore, the present case raises the delicate question of the conditions of admissibility of a plea of illegality under Article 277 TFEU, by which a candidate challenges a notice of competition because of the language regime that it sets. Under that provision, any party may, in proceedings in which an act of general application adopted by an institution, body, office or agency of the EU is at issue, plead the grounds specified in the second paragraph of Article 263 TFEU in order to invoke before the Court of Justice the inapplicability of that act.

5. In particular, the Court is asked to decide upon the conditions in which a candidate, in an annulment action brought under Article 270 TFEU directed against individual decisions, may rely on the illegality of earlier acts of general application, such as a notice of competition. Moreover, the Court has to decide whether to apply a specific admissibility standard in relation to notices of competition, by contrast to the general admissibility test set out by the case-law in relation to Article 277 TFEU. The case also raises the questions on how to assess the existence of a close connection as described in point 3 above in the context of a challenge of a language regime.

I. Background to the dispute

6. On 23 October 2014, EPSO published in the Official Journal of the European Union the contested notice of competition. The competition was organised in the form of a competition based on qualifications and tests.

7. The contested notice of competition provided, in Section IV thereof, for three computer-based admission tests that were multiple-choice questions and, in Section VI thereof, for tests to be held at an assessment centre and consisting of a case study, a group exercise and a structured interview. In addition, the contested notice of competition stated that a check for compliance with the general and specific eligibility conditions set out in Section III thereof and a selection based on qualifications provided for in Section V thereof would be carried out initially on the basis of the information given in the application form and that the selection board would assign each selection criterion a weighting (1 to 3) and award each of the candidate’s answers between 0 and 4 points, with the weighted points being added to give an overall score.

8. In respect of the specific conditions for admission, the contested notice of competition required in Section III.2.3 thereof, entitled ‘Knowledge of languages’, first, as regards the main language (language 1), a thorough knowledge, corresponding to at least level C1 of the Common European Framework of Reference for Languages, of one of the official languages of the European Union. Secondly, as regards the second language (language 2), that provision imposed a requirement of a satisfactory knowledge of English, French or German, corresponding to at least level B2 of that framework. Moreover, it was required that that second language be different from the main language. In that section, it was stated, inter alia, that the second language options in the contested notice of competition had been defined in line with the interests of the service, which required new recruits to be immediately operational and capable of communicating effectively in their daily work. In addition, the general rules governing open competitions ( ) (‘the general rules’), to which the contested notice of competition referred and which, as set out in that notice, were an integral part of that notice, stated, in Annex II thereto, that limiting the choice of second language was also justified by the nature of the tests.

9. Section IV.3 of the contested notice of competition stated that the admission tests would be held in the main language of the competition and Section VI.3 stated that the assessment centre tests in order to assess the general and specific competencies of candidates would be held in the second language of the competition.

10. On 25 November 2014, the candidate, a Portuguese national, submitted an application to take part in the competition at issue. It is apparent from her application form that the candidate chose Portuguese, her mother tongue, as her main language and French as her second language.

11. By letter of 19 March 2015, sent to the candidate on the same day via her EPSO account, she was informed that she had passed the computer screening tests.

12. By letter of 16 April 2015, the candidate was invited to attend a case study, a test which was to take place on 13 May 2015. In that letter, EPSO offered the candidate the possibility of using an AZERTY FR keyboard in that test, while giving her the possibility of choosing, alternatively, a QWERTY UK, AZERTY FR/BE or QWERTZ DE keyboard. ( ) The candidate requested a change of keyboard in order to take the test using a QWERTY UK keyboard.

13. The candidate took part in the tests that were held at the assessment centre in Brussels (Belgium) on 13 May 2015 and on 11 June 2015.

14. By letter of 9 November 2015, sent to the candidate on the same day via her EPSO account, EPSO informed the candidate that the selection board for the competition at issue had decided not to include her name on the reserve list of that competition on the ground that she ‘[was] not among the candidates who obtained the highest aggregate marks in the Assessment Centre (at least 68.59)’ As was apparent from a document entitled “competency passport” annexed to that letter, the candidate had obtained a total score of 61.13 points out of 100.

15. After requesting, by letter of 19 November 2015, a review of the decision not to include her on the reserve list, the candidate was informed, by letter of 23 June 2016, that the selection board for the competition at issue had decided to confirm that decision (‘the contested decision’).

16. On 24 August 2016, the candidate filed a complaint, within the meaning of Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), against the decision not to include her on the reserve list. In that complaint, she claimed that the limitation of the choice of the type of keyboard to be used for the purpose of carrying out the case study constituted unequal treatment and alleged a failure to state reasons as regards the limitations relating to the types of keyboard made available to candidates and to the choice of the second language of the competition at issue. In addition, the candidate complained about the length of the review procedure.

17. By decision of 22 December 2016, EPSO, acting in its capacity as appointing authority, rejected the complaint as both unfounded and inadmissible on the ground that it was out of time.

II. The procedure before the General Court and the judgment under appeal

18. By application lodged at the Registry of the General Court on 31 March 2017, the candidate brought an action seeking the annulment of the letter of 9 November 2015, and where appropriate, declaring illegal and inapplicable to her, pursuant to Article 277 TFEU, the contested notice of competition and the language regime established therein. The candidate was also seeking the annulment of the decision not to include her on the reserve list, of the contested decision, of the decision of 22 December 2016 rejecting the complaint and of the reserve list of the competition at issue.

19. In support of the action, the candidate put forward five pleas in law, the first alleging, an infringement of Article 1(d) of the Staff Regulations and of the principles of non-discrimination, proportionality and equal opportunities in that EPSO had required a QWERTY UK, AZERTY FR/BE or QWERTZ DE keyboard to be used for the purpose of carrying out the case study. By her second, third and fourth pleas in law, she submitted, in essence, that the contested notice of competition was unlawful because of the restriction on the language of the competition at issue. By her fifth plea in law, she argued that EPSO failed to state reasons for its decision to endorse and promote a particular language regime.

20. By the judgment under appeal, after finding, as a preliminary point, that the contested decision constituted an act adversely affecting the candidate, the General Court examined, first, the plea of illegality raised in the context of the second, third and fourth pleas in law, the admissibility of which was contested by the Commission as well as its merits.

21. With regard to the admissibility of that plea of illegality, the General Court recalled that, in an action for annulment brought against individual decisions, the Court has accepted that the provisions of an act of general application that constitute the basis of those decisions or that have a direct legal connection with such decisions may legitimately form the subject matter of a plea of illegality. ( )

22. In particular, with regard to notices of competition, the General Court stated that, according to settled case-law, in the context of a recruitment procedure, which is a complex administrative operation composed of a series of decisions, a candidate in a competition may, in an action brought against a subsequent step taken in that process, challenge the legality of earlier steps that are closely linked to it ( ) and, in particular, challenge the legality of the notice of competition pursuant to which the step in question was taken. ( )

23. According to the General Court, where there is no close connection between the reasoning of the individual decision at issue and the plea of illegality in relation to the notice of competition, which has not been challenged in good time, the plea must be declared inadmissible in accordance with the mandatory rules governing time limits for bringing actions, which cannot be derogated from in such a case without infringing the principle of legal certainty. ( )

24. In light of the case-law cited at points 21 to 23 above, the General Court made six findings in paragraphs 52 to 59.

25. First, the General Court established that, by her plea of illegality, the candidate was challenging, in essence, the provisions of the contested notice of competition concerning the language regime.

26. Secondly, the General Court stated that, by the statement of reasons for the contested decision in the letter of 9 November 2015, the candidate was informed that her name had not been included on the reserve list on the ground that she had not obtained the highest marks in the assessment centre tests.

27. Thirdly, the General Court considered that it was apparent from the ‘competency passport’ issued to the candidate that, for the general competency ‘Communication’, she obtained 5.5 points out of 10, which was one of the lowest assessments and scores that she obtained as regards the evaluation of her general competencies at the assessment centre. According to point 1.2 of the general rules, to which footnote No 7 of the contested notice of competition referred, the purpose of the assessment of those competencies was to evaluate the candidate’s ability to ‘communicate clearly and precisely both orally and in writing’. The General Court held that the finding made by the selection board with regard to the candidate’s knowledge of French or, at the very least, as to her level of proficiency in a competency that was strongly influenced by her knowledge of that language, followed therefrom.

28. Fourthly, the General Court stated that, although the contested notice of competition did not provide for a test of the candidate’s specific knowledge, in terms of vocabulary or grammar, of English, French or German, it could not be denied that there was a close connection between the candidate’s knowledge of French, which she chose as a second language, and the tests that she had to sit in that language. The General Court found that the knowledge which she had of French was inevitably and necessarily reflected in the tests to assess the general and specific competencies as set out in the contested notice of competition at issue.

29. Fifthly, the General Court noted that limiting the choice of the second language of the competition at issue to the three languages in question not only affected the ability of candidates to express themselves orally or in writing, but also determined the type of keyboard that candidates could use for the purpose of carrying out the case study. It was not disputed that the candidate was required to use a type of keyboard which she was not accustomed to. According to the General Court, that affected the carrying out and therefore potentially the result of a test during which it was necessary to write, using a keyboard, a text of a certain length within a limited timeframe.

30. Sixthly, the General Court rejected the argument put forward by the Commission at the hearing that a close connection could only be established if the results of the tests to evaluate candidates’ general competencies proved to be negative or disastrous. The General Court stated that such an argument amounted to supporting, without justification, a stricter application of the condition that there be a close connection where the illegality alleged related to the language regime of the competition.

31. In the light of the case-law cited and those six findings, the General Court held, in paragraph 60 of the judgment under appeal, that there was a close connection between the statement of reasons for the contested decision and the provisions of the contested notice of competition relating to the language regime of the competition at issue, the legality of which is disputed. Thus, the General Court declared the plea of illegality in respect of the contested notice of competition to be admissible.

32. Next, the General Court considered that neither the reasons given in the contested notice of competition nor the evidence adduced by the Commission in support of those justifications was capable of substantiating the restriction in question. Accordingly, the General Court concluded that it was necessary to uphold that plea of illegality, declare the contested notice of competition inapplicable to the present case and to uphold the second, third and fourth pleas in law.

33. Finally, taking the view that it was no longer necessary to rule on the first and fifth pleas in the action, the General Court annulled the contested decision.

III. Form of order sought

34. The Commission asks the Court of Justice to:

– set aside the judgment under appeal;

– dismiss the second, third and fourth pleas of the action in the first instance brought by the candidate;

– refer the case back to the General Court to rule on the first and fifth pleas of the action brought by the candidate;

– reserve the decision on costs.

35. In support of those forms of order, the Commission relies on a single ground consisting of three limbs. The first limb alleges that paragraph 54 of the judgment under appeal contains an error of classification of the facts in that the General Court inferred from a finding of the selection board as to the candidate’s knowledge of French that there was a close connection between the statement of reasons for the contested decision and the provisions of the contested notice of competition relating to the language regime.

36. The second limb calls into question paragraphs 55 to 57 of the judgment under appeal. The Commission submits that the General Court made an erroneous classification of the facts and distorted the evidence in concluding, on the basis of a vague criterion, that there was a close connection between the statement of reasons for the contested decision and the provisions of the contested notice of competition, the legality of which is contested.

37. In the third limb, the Commission submits that the General Court erroneously classified the facts at paragraph 58 of the judgment under appeal, by basing the ‘close connection’ required by the case-law also on the fact that the candidate sat the written test with a keyboard configuration other than the QWERTY PT she is accustomed to.

38. The candidate disputes the Commission’s arguments. She claims the Court should:

– declare the appeal inadmissible;

– in the alternative, in the event that the Court should declare the appeal admissible, to reject it as unfounded on the substance;

– order the Commission to pay the costs of the present proceedings as well as those before the General Court.

IV. Assessment

39. I shall begin my analysis of the appeal by making some preliminary observations with regard to the plea of illegality provided for under Article 277 TFEU and the admissibility of that plea (A). Next, I shall examine the specific admissibility criteria in relation to EPSO competition notices (B) and, in light of those criteria, the three limbs of the single ground of appeal raised by the Commission in relation to the plea of inadmissibility that it raised before the General Court (C).

A. Preliminary observations with regard to the plea of illegality provided for under Article 277 TFEU and the admissibility of that plea

40. Since Les Verts, ( ) the Court has been asserting that the Treaties have established a ‘complete system of legal remedies and procedures’. By adopting Articles 263 and 277 TFEU, on the one hand, and Article 267 TFEU, on the other, that system is designed to ensure judicial review of the legality of all EU acts, and has entrusted such review to the EU Courts. ( ) In particular, under Article 277 TFEU, any party may challenge EU measures that directly implement EU acts of general application before the EU Courts and plead in support of its action the illegality of those acts.

41. In accordance with settled case-law, Article 277 TFEU gives concrete expression to a general principle conferring upon any party to proceedings the right to challenge, for the purpose of obtaining the annulment of a decision of direct and individual concern to that party, the validity of previous acts of the institutions, which form the legal basis of such a decision, provided that that party was not entitled to bring a direct action challenging those acts, and despite the fact that it was thus affected without having been in a position to ask that they be declared void. ( )

42. Furthermore, since the purpose of Article 277 TFEU is not to allow a party to contest the legality of an act of general application in all cases, the act that is being challenged and that implements such an act of general application must be applicable, directly or indirectly, to the issue with which the direct action is concerned. ( )

43. Thus, according to settled case-law, in an action for annulment brought against individual decisions, the provisions of an act of general application may legitimately form the subject matter of a plea of illegality, provided that those provisions constitute the basis of those decisions ( ) or have a direct legal connection with them. ( ) By relying on that case-law, the Court recalled those two alternative provisos in its recent Grand Chamber judgment, Commission and Council v Carreras Sequeros and Others. ( ) It held, accordingly, that, where the individual decision being challenged neither constitutes an implementing measure of the act of general application nor has a direct legal connection with it, the plea of illegality raised in relation to that act of general application is inadmissible. ( )

44. In adopting those two alternative requirements, the Court has adopted a rather broad interpretation of the scope of the plea of illegality under Article 277 TFEU, moving beyond the ‘legal basis’ paradigm. Notably, by adopting the direct legal connection requirement, which emerged from the case-law very early on, ( ) the Court explicitly opened the plea of illegality to acts of the institutions which do not formally constitute the legal basis of the individual decision at issue, but with which the latter has a direct connection. ( )

45. In my view, that broad interpretation is justified, first, by the need to facilitate access to justice of persons excluded from bringing direct actions against EU acts of general application. ( ) Secondly, it can be explained by the limited normative effect of the plea of illegality provided for in Article 277 TFEU: the latter Treaty provision only entails the ‘inapplicability’ of the act of general application to the particular case. In the case of Article 277 TFEU, such grounds of illegality do not translate into the invalidity or illegality of the provision concerned but only into its inapplicability to the particular case and inter partes. ( )

46. It follows from that case-law that a plea of illegality under Article 277 TFEU can be raised only if three cumulative criteria are met. First, the act which forms the legal basis of the individual decision that is being challenged is of general application (the ‘first criterion’). Secondly, the individual who relies on the plea of illegality was not entitled to bring a direct action for the annulment of that act (the ‘second criterion’). ( ) Thirdly and last, the provisions of the EU act of general application constitutes the basis of the individual decision or has a direct legal connection with that decision (the ‘third criterion’). However, it appears that, in the area of EPSO competition notices, the admissibility requirements are distinguished from the abovementioned requirements.

B. The admissibility criteria for pleas of illegality against EPSO competition notices

47. In the present case, the Commission argues, in essence, that the General Court erred in its classification of the facts in holding that there was a close connection between the reasoning of the contested decision and the plea of illegality raised against the contested notice of competition. Moreover, the Commission submits that, since there is no close connection between the reasoning of the contested decision and the plea of illegality raised against the contested notice of competition, which has not been challenged in good time, the plea must be declared inadmissible.

48. I should note that the arguments put forward by the Commission rely on the admissibility standard that was specifically developed by the Court of Justice and the General Court in the context of EPSO competitions. In order for a candidate to raise a plea of illegality against a notice of competition more than two months after its publication, the relevant case-law has set out requirements that are specific to EPSO competitions, and whose raison d’être is grounded in the complex administrative operation doctrine. In accordance with that doctrine, there must be a ‘close connection’ or ‘close link’ between the statement of reasons for the individual decision at issue and the plea of illegality raised against the notice of competition.

1. The ‘complex administrative operation’ doctrine

49. The Commission asserts that, as regards the admissibility of pleas of illegality raised against notices of competition, the case-law has adopted a restrictive approach which is justified by the need to strike the right balance between the right to judicial review and legal certainty. According to the Commission, that right is adequately protected by the fact that the candidate may challenge all the provisions of the notice of competition in an action for annulment under Article 270 TFEU, following the procedure laid down in Articles 90 and 91 of the Staff Regulations, and challenge, by way of a plea of illegality, the legality of the provisions of the notice of competition which are closely linked to the statement of reasons for the decision adversely affecting them.

50. At the outset, I must note that a notice of competition is a general act emanating from an EU institution which is addressed to all potential candidates. In accordance with Article 90(2) of the Staff Regulations, the applicant has three months from the date of publication of the notice of competition in the Official Journal to lodge an administrative complaint. Under Article 270 TFEU, a candidate of a competition may challenge an individual decision, such as a decision not to include the candidate’s name on the reserve list drawn up at the end of the selection procedure.

51. In that regard, contrary to the candidate’s submissions, I am of the opinion that a candidate is directly and individually concerned by the contested notice of competition that sets the language regime of the competition from the moment he or she enters the competition. The Court has also consistently held that a decision which has not been challenged by the addressee within the time limits laid down by the sixth paragraph of Article 263 TFEU becomes definitive as against him. ( ) However, in the course of preparing a competition, a candidate might have no interest in bringing such an action, for fear that it may adversely affect his or her chances of succeeding in the competition or for lack of time that such a challenge might entail. Therefore, the case-law essentially allows candidates to challenge the lawfulness of a notice of competition at a later stage, provided that there is a close connection between the statement of reasons for the individual decision at issue and the plea alleging irregularities in the notice of competition. ( ) Assuming that candidates may bring a direct action against a notice of competition on account of being directly and individually concerned in respect thereof, that case-law introduces a derogation from the second criterion. Moreover, that case-law also derogates from the third criterion, by introducing a lex specialis.

52. I must, in that regard, point out that the case-law has considerably evolved. At first, in Adams and Others v Commission, the Court rejected the admissibility of a plea of illegality raised against a notice of competition. It held that a candidate who takes the view that the illegal character of a notice of competition has an adverse effect on him or her must challenge that notice in good time. Were it otherwise, it would be possible to challenge a notice of competition long after it had been published and after most, or all, of the operations carried out in connection with the competition had already taken place, which would be contrary to the principles of legal certainty, legitimate expectations and sound administration. ( )

53. However, in Commission v Noonan, the Court, relying on the doctrine of a ‘complex administrative operation’, ( ) nuanced its previous case-law. It held that, in the context of a recruitment procedure, which is considered to be a ‘complex administrative operation’ composed of a series of closely linked decisions, an applicant is entitled to rely on irregularities which occurred during the conduct of the competition or concerning the arrangements for organising the competition, in an action against a subsequent individual decision, such as a decision not to admit a candidate to the tests, provided that the earlier irregularity relied on has a close link with the subsequent decision contested. ( )

54. That raises the question as to what qualifies as a ‘complex administrative operation’. In my opinion, for a competition procedure to be complex in nature, it needs to be objectively complex. EPSO competitions entail a series of closely linked decisions that are technical and need to be adopted while respecting the principles of equality, proportionality and transparency. ( ) The requirements EPSO imposes must be set out in a clear, objective and foreseeable manner. However, the objective complexity, per se, does not warrant a competition being described as complex. The competition procedure should also entail subjective complexity, meaning that the candidate at issue is put in a position whereby he or she cannot challenge the notice of competition in a timely manner, since the difficulties or irregularities that derive from that notice materialise at a later stage – either when receiving communications by the EPSO and the invitation to the tests, during the exams or when receiving the decision not to be admitted to the reserve list. Furthermore, the candidate, who is focused on succeeding in the competition, may not be in a position to bring an action of annulment against the notice of competition. ( ) Thus, it is only when an administrative procedure entails an objective and subjective complexity that it can be qualified as a ‘complex administrative operation’.

55. The approach adopted in Commission v Noonan is essentially a derogation from the second criterion, since it allows a candidate to challenge the notice of competition regardless of that person’s standing to bring a direct action against that notice. As the Commission relies on its argumentation on the ‘close connection’ or ‘close link’ requirement, ( ) which the General Court referred to in the judgment under appeal, ( ) and which derogates from the second criterion and, thus restricts and overlaps with the third criterion, I shall deal with this requirement in depth.

2. The requirement of a ‘close connection’ or the ‘close link’

56. At the outset, I should point out that the concept of a ‘close connection’ or ‘close link’ between the act of general application and the individual decision at issue seems to emerge early on from the Court’s case-law. In Ley v Commission ( ) and Alfieri v Parliament, ( ) the Court held that, in the context of a recruitment procedure, a candidate may, in an action challenging steps in such a procedure, contest the legality of earlier steps which are closely linked to them. In a subsequent judgment in Sergio and Others v Commission, ( ) the Court held that candidates who had not challenged a notice of competition in good time could nevertheless rely on irregularities occurring in the course of the competition, even if the origin of those irregularities was to be found in the wording of the notice of competition.

57. As already mentioned, in Commission v Noonan, ( ) the Court held that, taking into account the special nature of the recruitment procedure, ‘which is a complex administrative operation composed of a series of closely linked decisions’, competition notices may be challenged subsequently. ( ) Therefore, it appears that the admissibility of the plea of illegality in respect of a notice of competition constitutes a derogation from the second criterion, which is justified by the recourse to the notion of ‘complex administrative operation’. ( ) In my view, that case-law, which derogates from the general regime – since the candidate may raise a plea of illegality even though theoretically the notice of competition could have been challenged when the person became a candidate of the competition – is justified by the following reasons.

58. First, under the general regime, the candidate would be time-barred from raising a plea of illegality under Article 277 TFEU in application of the abovementioned case-law. ( ) Thus, it seems that the reasoning in Giulietti and Commission v PB, on which the judgment under appeal relies, is based on the idea that the notice of competition ‘has not been challenged in good time’. ( ) However, the abovementioned derogation allows the unsuccessful candidate to raise the plea of illegality irrespective of having standing to challenge the notice of competition. Apart from the fact that a candidate may be unable (or unwilling) to challenge the notice of competition during the course of the competition, he or she might not be aware of the practical issues in relation to the notice that may arise, such as the language regime, during the later stages of the competition. Those practical issues may materialise at the later stages of the competition when the candidate is communicating with EPSO or taking the tests. In particular, certain requirements imposed by EPSO that derive from the notice of competition may be implemented or specified in the invitations to the exams. In that context, I am of the opinion that the candidate should be able to raise the illegality of the notice of competition at the later stages of the competition. Consequently, in order to give effect to the principle of effective judicial protection, ( ) it should be considered that the candidate in question was not in a position to ask that the act of general application should be set aside at the moment he or she entered the competition.

59. Secondly, as I mentioned above, for the purposes of admissibility of a plea of illegality under Article 277 TFEU, in Commission and Council v Carreras Sequeros and Others, ( ) the Court has interpreted that provision and in particular the third criterion thereof relating to the basis or direct legal connection criterion, in a broad manner. ( ) If the Court were to interpret the requirement of a ‘close link’ or a ‘close legal connection’ ( ) between the reasoning of the individual decision at issue and the plea of illegality in a very narrow manner, such interpretation would unduly restrict that third criterion.

60. Moreover, an approach that is too restrictive could have the effect of making it excessively difficult to challenge the language rules for competitions, thereby constituting indirect approval of the practice of habitually imposing English, French and German as the second language of competitions, without it being possible to ascertain whether the institution concerned has complied with the obligations arising from the case-law of the Court. I would also point out that, in the present case, the General Court upheld the plea of illegality in respect of the contested notice of competition, since neither the justifications set out therein nor the evidence produced by the Commission in support of those justifications was such as to validate the language rules for the competition at issue. In its appeal, the Commission did not challenge the part of the judgment under appeal relating to the merits of the plea of illegality.

61. Thirdly, I note that the Treaty has established that the effect of a plea of illegality under Article 277 TFEU is limited, in so far as the act of general application is not annulled, but merely inapplicable to the particular case. ( ) The effect of the declaration of illegality is only inter partes and not erga omnes; the act of general application will be declared inapplicable in so far as it has been applied in the individual decision. For that reason, I am also inclined to dismiss the consideration with respect to the principle of legal certainty.

62. Therefore, I do not see any reasons why the Court should refuse to admit the action to challenge a notice of competition, by way of a plea of illegality, when there is a close link or a close legal connection between the statement of reasons for the contested decision and the provisions of the contested notice of competition relating to the language regime.

63. That being said, the close link or close legal connection requirement should be interpreted in a sufficiently restrictive manner, since it is a derogation to the general regime, allowing for a party not to be time-barred from challenging the legality of an act of general application. Moreover, such an interpretation is justified in order to strike a balance between the possibility of challenging an act of general application even well after the publication of the notice of competition, on the one hand, and the introduction of numerous separate actions against the notice of competition that would overburden the Commission and the General Court, on the other hand.

64. Consequently, I take the view that the General Court was right to point out that, where the plea alleging irregularities in the notice of competition, which has not been challenged in good time, concerns the statement of reasons for the individual decision at issue, the action is accepted as admissible by the case-law. ( ) By contrast, where there is no such connection, the plea must be declared inadmissible. ( )

65. In the light of those considerations, I shall next examine whether the General Court was right to reject the plea of inadmissibility raised by the Commission in the annulment action before the General Court against the plea of illegality in relation to the contested notice of competition.

C. The plea of inadmissibility raised by the Commission

66. At the outset, I must note that the Commission challenges paragraphs 54 to 61 of the judgment under appeal. It does not challenge the two findings of the General Court that are to be found in paragraphs 52 and 53 of that judgment. First, it states that, by her plea of illegality, the candidate is challenging, in essence, the provisions of the contested notice of competition concerning the language regime, namely the limitation of the choice of second language to English, French or German. Secondly, the General Court pointed out that, by letter of 9 November 2015, the candidate was informed that her name had not been included on the reserve list on the ground that she had not obtained the highest marks in the assessment centre tests.

67. The candidate argues that, by dividing the single ground of appeal into three limbs, the Commission is trying to separate artificially the reasoning relied on by the General Court in paragraphs 51 to 61 of the judgment under appeal. I agree that, in those paragraphs, the General Court explains why there is a close connection between the statement of reasons for the contested decision and the provisions of the contested notice of competition relating to the language regime of the competition at issue, the legality of which is disputed. Nevertheless, I do think that the reasoning in those paragraphs can be examined separately, since each of the three limbs concern a different argument.

68. Moreover, the candidate considers that those three limbs seek to dispute the facts of the case established by the General Court. She therefore asks the Court to reject the plea in its entirety, or each of the three limbs, as inadmissible. In the alternative, she submits that the ground of appeal, or each of the three limbs, should be rejected as unfounded. I shall address those requests in my analysis of each of those three limbs.

1. First limb of the single ground of appeal

69. The Commission alleges that paragraph 54 of the judgment under appeal contains an error of classification of the facts, since the General Court affirms that there was a close connection between the statement of reasons for the contested decision and the provisions of the contested notice of competition relating to the language regime. It argues that, even if the candidate had obtained 10/10 in the general competency ‘Communication’, she would have needed 7.46 additional points in order to be included on the reserve list. Therefore, the subsequent findings of the General Court concerning the admissibility of the plea of illegality, contained in paragraphs 55 to 58 of the judgment under appeal, all rest on the premiss that a close connection exists, and are all affected by that error of law.

70. At the outset, as already stated, ( ) I should note that, in paragraph 54, the General Court held that the purpose of the assessment of the general competency ‘Communication’ at the assessment centre was to evaluate the candidate’s ability to ‘communicate clearly and precisely both orally and in writing’. Therefore, a finding of the selection board with regard to her knowledge of French or, at the very least, as to her level of proficiency in a competency that was strongly influenced by her knowledge of that language, followed therefrom by necessary implication.

71. I must observe that the Commission’s argument relies on the premiss that the candidate’s failure at the competition at issue was not caused by the general competency ‘Communication’, but by other competencies in respect of which she did not obtain sufficient marks. However, the General Court has not made such a factual finding in the judgment under appeal. Whilst the Court of Justice, in its capacity as appellate jurisdiction, does not have jurisdiction in respect of the appraisal of the facts, ( ) except where a complaint of distortion is made, the legal characterisation of the facts is subject to review by it in appeal proceedings. ( )

72. Since the General Court has not made a finding, in the judgment under appeal, in relation to the competency that was decisive for the failure to include the candidate on the reserve list, the Court of Justice should remain, in my view, within the factual framework established in that judgment, which, as regards the candidate’s marks, merely states that ‘the [candidate] had obtained a total score of 61.13 points out of 100’ and, that, for the general competency ‘Communication’, the candidate ‘obtained 5.5 points out of 10, which is one of the lowest assessments and scores that she obtained as regards the evaluation of her general competencies at the assessment centre’. ( ) Therefore, when examining the Commission’s arguments, the Court of Justice should resist the temptation of substituting its own assessment of facts with that of the General Court. However, the Court of Justice has to determine whether the lack of such a finding is relevant for the purposes of determining the legal characterisation of the facts, that is to say of establishing a close connection between the statement of reasons for the contested decision and the provisions of the contested notice of competition relating to the language regime.

73. In that regard, I take the view that the legal characterisation of facts at issue should not depend on external elements, such as the mark obtained by the candidate in another general or specific competency, but rather the specific reasons of the individual decision relating to the specific competency at issue. In other words, in order for the plea of illegality to be admissible, it is sufficient that the candidate demonstrates that the competency at issue, where the mark was insufficient, has a close connection with the challenged provisions of the contested notice of competition. For that purpose, the other marks are, in my view, irrelevant.

74. Furthermore, if the Court were to determine which one of the marks was decisive in the non-inclusion of the candidate on the reserve list, such a determination would not relate to the inadmissibility, but to the substance of the grounds relied on by the candidate, since it entails an assessment of the results mentioned in the individual decision and the merits of the arguments put forward by the candidate.

75. Accordingly, in so far as the assessment of the ‘Communication’ competency by the selection board follows from the challenged provisions of the contested notice of competition, the candidate may raise a plea of illegality against those provisions under Article 277 TFEU. There is, moreover, nothing in the judgment under appeal, in particular paragraph 54 thereof, that indicates that the General Court distorted the elements of fact in finding that there was a close link between the finding of the selection board with regard to the knowledge of the French language of the candidate and the level of proficiency in the ‘Communication’ competency. In that paragraph, the General Court correctly applied the close connection or the close link criteria as explained above ( ) and that paragraph appears to be free of any error of law.

76. As a result of all the foregoing, I am of the opinion that, on the basis of the finding in paragraph 54, the General Court was right to infer that there was a close connection between the statement of reasons for the contested decision and the provisions of the contested notice of competition relating to the language regime in the present case such as to render the plea of illegality admissible. Such a finding is sufficient in order to establish that connection. Nevertheless, for the sake of completeness, I shall examine whether there is such a close connection for other reasons than those already stated, namely the ones stated in paragraphs 55 to 57 of the judgment under appeal.

2. Second limb of the single ground of appeal

77. The Commission claims that the General Court erred in classifying the facts and distorted the evidence when it concluded, in paragraphs 55 to 57 of the judgment under appeal, that there was a close connection between the statement of reasons for the contested decision and the provisions of the contested notice of competition on the basis of a criterion, which is based on the idea that it is more difficult for the candidate to sit tests in her second language than in her mother tongue. The Commission argues that the comparison of the candidate’s level in Portuguese with her level in French is irrelevant for the purposes of establishing such a close connection.

78. The Commission points out that the candidate contested the fact that she could choose her second language only from English, French and German. The candidate claimed that she would have been able to obtain better marks if she had been allowed to sit the tests in Spanish and that it was on that basis that she considered that there was a close connection between the contested decision and the language rules for the competition at issue. Rather than comparing the level of the candidate in Portuguese to her level in French, the General Court should have compared it to her level in Spanish.

79. In addition, the Commission submits that, in those paragraphs, the General Court failed to take account of the fact that, in the present case, the two languages the candidate had the best command of were English and French. Thus, the limitation of the choice of second language was not such as to place her at a disadvantage, since she had claimed to have a better command, at C2 level, of those two languages. She had declared another language, Spanish, but had indicated a level of knowledge lower than that of her knowledge of French and English. Therefore, that limitation cannot be regarded as having had a negative impact on the candidate’s performance or as having a close link with the statement of reasons for the contested decision.

80. The candidate argues, in essence, that paragraphs 56 to 58 of the judgment under appeal should be read together and that the Commission’s argument amounts to singling out those paragraphs artificially.

81. At the outset, I should point out that, in paragraph 52, the General Court states that, by her plea of illegality, the candidate is challenging, in essence, the provisions of the contested notice of competition concerning the language regime, namely the limitation of the choice of second language to English, French or German. In paragraph 55 of the judgment under appeal, the General Court set out to establish that there was a close connection between the candidate’s knowledge of French and the tests that she had to sit in that language. To that effect, the General Court pointed out, in paragraph 57 of the judgment under appeal, that the candidate had a better command of Portuguese than of French.

82. Such comparison cannot be correct, since Portuguese was her main language and the level of that language cannot be relevant for the appropriateness of the limitation of the choice of the second language. As a result, the findings of the General Court, contained in paragraphs 55 to 57 of the judgment under appeal, could not suffice in law to establish a close connection between the statement of reasons for the contested decision and the provisions of the contested notice of competition whose legality is contested. ( )

83. Consequently, the comparison in those paragraphs is vitiated by an error in law. However, if the grounds of a judgment of the Court disclose an infringement of EU law but its operative part is shown to be well founded on other legal grounds, such an infringement is not capable of bringing about the annulment of that judgment. Rather, a substitution of grounds must be made. ( ) In the present case, the reasoning in paragraphs 55 to 57 of the judgment under appeal should simply be set aside.

3. Third limb of the single ground of appeal

84. The Commission submits that the General Court, in paragraph 58 of the judgment under appeal, incorrectly classified the facts by basing the close connection required by the case-law on the fact that the candidate took the written test with a configuration of keyboard other than the QWERTY PT configuration to which she is accustomed.

85. The Commission argues, first, that the choice of configuration of the keyboard is unrelated to the statement of reasons for the contested decision. At the hearing, the Commission placed a great deal of emphasis on the fact that the contested notice of competition contained no mention as to the choice of keyboard. Secondly, the Commission contends that, even though it is true that a limited choice of keyboard configurations was proposed by EPSO for the case study, this is a separate question from that of the competition at issue’s language rules. In fact, the contested notice of competition makes no mention of the keyboard configurations. Furthermore, the fact that the candidate opted for a QWERTY UK keyboard even though she chose to sit the case study in French proves that the two questions are distinct and unrelated.

86. In that regard, I should note that, in paragraph 58 of the judgment under appeal, the General Court stated that ‘limiting the choice of the second language of the competition at issue to the three languages in question [not only affects] the ability of candidates to express themselves orally or in writing, but also determines the type of keyboard that candidates may use for the purpose of carrying out the case study, the provision of keyboards to candidates being limited, according to EPSO’s practice, which was confirmed by the Commission before the Court, to the language (and, as the case may be, to the languages) in which the tests are to be carried out’. The General Court added that, in the present case, it is not disputed that the candidate was required to use a type of keyboard that she was not accustomed to using because of her mother tongue. According to that court, that affects the carrying out and therefore potentially the result of a test during which it is necessary to write, using a keyboard, a text of a certain length within a limited timeframe.

87. The issue as to whether the choice of the keyboard can be characterised as a relevant fact for the purpose of the establishment of the close connection may be analysed in an appeal procedure by the Court on the basis of the facts established by the General Court.

88. In that respect, from the perspective of EPSO, it is true that the choice of keyboards is a practical and technical issue, which appears nowhere in the contested notice of competition. However, from the point of view of the candidate, it appears to me that the language regime has an effect on his or her oral and written expression. Since the latter is dependent on the choice of a keyboard, a link between those two elements cannot be precluded. As written language is expressed by the technical means of the keyboard, the link between the language used by the candidate and the language regime can be established. There is no doubt in my mind that those two are related to each other and that the close link is characterised in the specific circumstances of the present case. The fact that the contested notice of competition limited the choice of languages to the abovementioned three languages seems to carry over to the provision of the keyboards by EPSO, which is limited to the exact same languages. Such parallelism appears to be a choice made by EPSO as a result of the decision to restrict the choice of second language.

89. Moreover, I am highly critical of the argument presented at the hearing by the Commission, whereby it contended that no such link exists, since the options for choice of keyboard do not appear in the contested notice of competition. If the Court were to accept that argument, the Commission could rely on vague or imprecise notices of competitions, in order to avoid judicial scrutiny. The fact that the Commission relied on the letter of invitation to the tests to detail the choices of keyboards shows that, in the case of a complex administrative operation, such as an EPSO competition, the steps are closely linked and that the notice of competition ought to be sufficiently clear and detailed. An important element, such as the choice of keyboard used in the competition, should be subject to judicial scrutiny.

90. It follows that, in those specific circumstances, the General Court made no error when it stated, in paragraphs 60 and 61 of the judgment under appeal, that there was a close connection between the statement of reasons for the contested decision and the provisions of the contested notice of competition relating to the language regime of the competition at issue and, therefore, declared admissible the plea of illegality.

91. Accordingly, I consider that the third limb of the single ground of appeal should be rejected.

92. In the light of the foregoing considerations, I propose that the Court should set aside the judgment under appeal inasmuch as, in paragraphs 55 to 57 thereof, the General Court relied on a comparison between the candidate’s level of Portuguese and her level of French in order to establish a close connection between the statement of reasons for the contested decision and the provisions of the contested notice of competition. The appeal should be dismissed as to the remainder.

D. Costs

93. In accordance with Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is well founded and the Court of Justice itself gives final judgment in the case, the Court is to make a decision as to the costs.

94. Under Article 138(1) of those rules, applicable to the procedure on appeal pursuant to Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Article 138(3) of those rules states that where each party succeeds on some and fails on other heads, the parties are to bear their own costs. However, if it appears justified in the circumstances of the case, the Court may order that one party, in addition to bearing its own costs, pay a proportion of the costs of the other party.

95. In the present case, I take the view that, if the Court adopts the reasoning that I have proposed, having regard to the circumstances of the present case, the Commission should be ordered to pay, in addition to its own costs relating to both the proceedings at first instance and the appeal proceedings, all the costs incurred by the candidate at appeal and at first instance.

E. Conclusion

96. In the light of the foregoing considerations, I propose that, with the exception of paragraphs 55 to 57 of the judgment of 9 June 2021, Calhau Correia de Paiva v Commission (T‑202/17, EU:T:2021:323), the Court dismiss the appeal and order the Commission to pay the costs.