Case T‑609/16

PB

v

European Commission

(Civil service — Officials — Recruitment — Competition notice EPSO/AD/309/15 (AD 11) — Doctors for the Luxembourg site — Refusal of admission to the assessment centre tests — Limitation of the choice of second language to a restricted number of official languages of the European Union — Plea of unlawfulness — Manifest error of assessment — Liability — Non-material damage)

Summary — Judgment of the General Court (Ninth Chamber), 14 December 2017

Actions brought by officials — Plea of illegality — Measures the illegality of which may be pleaded — Notice of competition — Rules on languages — Admissibility — Conditions — Legal link between the contested measure and the competition notice in question

Actions brought by officials — Action brought against a decision refusing admission to the tests of a competition — Whether unlawfulness of the competition notice may be relied upon to challenge refusal of admission — Conditions

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 competition notice pursuant to which the step in question was taken. Failure to challenge a competition notice within the time-limit laid down does not prevent an applicant from relying on irregularities occurring in the course of the competition, even if the origin of those irregularities may be found in the wording of the competition notice. An applicant is entitled to rely on irregularities relating to the arrangements for the organisation of a competition in an action brought against the individual decision rejecting his candidature and cannot be criticised for not having lodged a complaint or brought an action within the prescribed periods against the decision setting out the arrangements for the organisation of the competition. In particular, 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 contested individual decision, the action is accepted as admissible. A candidate in a competition must not be deprived of the right to challenge all the elements, including those defined in the notice of competition, comprising the justification for the individual decision concerning him taken on the basis of the conditions laid down in the notice, in so far as only that specific decision applying them affects his legal position individually and enables him to ascertain with certainty how and to what extent his personal interests are affected. On the other hand, where there is no close connection between the reasoning of the contested decision and the plea of unlawfulness in relation to the competition notice, which has not been challenged in good time, the plea must be declared to be inadmissible in accordance with the mandatory rules governing time limits for bringing actions, which cannot be derogated from in such a case without offending against the principle of legal certainty. (see paras 26-29)

The plea of unlawfulness in the competition notice raised in the context of an action for annulment against the decision refusing admission to the assessment centre tests is inadmissible where the contested decision is not linked in any way to the language arrangements laid down in the competition notice and criticised by the applicant. (see paras 32, 38)

The competition selection board is required to ascertain whether the candidates possess the knowledge and the professional experience necessary to perform the duties of the post advertised in the relevant notice of competition. It is also required to make a comparative examination of the candidates’ knowledge and abilities so as to retain those most suited to the duties to be carried out. In this context, the selection board in a competition must ensure that its assessments of all the candidates examined are made under conditions of equality and objectivity and it is important that the marking criteria should be uniform and applied in a consistent manner to all candidates. In that regard, the selection board enjoys a discretion, in assessing the previous experience of candidates, both as regards the nature and length of that experience and as regards the extent to which it meets the requirements of the post to be filled. Moreover, in reviewing the lawfulness of the assessment of candidates’ previous professional experience, the General Court must confine itself to examining whether the exercise of the selection board’s discretion is vitiated by a manifest error which renders the decision of the selection board implausible. It is for the applicant to provide the selection board with all the information and documents which he considers relevant to the selection board’s consideration of his application. Accordingly, the selection board is obliged to take into account only the information provided and documents submitted by candidates, in support of their applications, when assessing their professional experience in the light of the requirements laid down for the competition. In that context, the selection board makes a manifest error of assessment when it does not award any points in respect of professional experience in the management of a medical team even though the notice of competition provided for the award of points in that respect and the application form contained information to establish that the applicant had professional experience in that field. Such a manifest error of assessment is such as to distort the selection board’s overall assessment of the applicant’s experience, taking account, first, of the number of points which could be awarded to candidates by way of management of a medical team, and, second, the number of points required so that candidates which would be invited to take part in the other competition tests. (see paras 42-46, 48, 72, 73, 80, 88, 89)