Case C-623/24 P: Appeal brought on 20 September 2024 by UJ, UL, UN, UP, US, UT, UU, UV against the judgment of the General Court (Fourth Chamber) delivered on 10 July 2024 in Case T-120/23, UJ and Others v Commission
Date: 2024-09-20
Institutions: Court of Justice
Subjects: EPSO, access to the courts, administrator, competition (EU), equal treatment, international cooperation, principle of proportionality, recruitment, right to justice, third country








C_202500244EN.000101.fmx.xml












Official Journal of the European Union


EN
C series













C/2025/244


20.1.2025






Appeal brought on 20 September 2024 by UJ, UL, UN, UP, US, UT, UU, UV against the judgment of the General Court (Fourth Chamber) delivered on 10 July 2024 in Case T-120/23, UJ and Others v Commission


(Case C-623/24 P)

(C/2025/244)
Language of the case: Italian

Parties


Appellants: UJ, UL, UN, UP, US, UT, UU, UV (represented by: M. Velardo, avvocata)

Other party to the proceedings: European Commission, UM, UO, UQ, UR, UW

Form of order sought

The appellants claim that the Court of Justice should:






—


set aside the judgment of the General Court of 10 July 2024 in case T-120/23, UJ and Others v Commission;










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uphold the action at first and second instance;










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order the Commission to pay the costs of the proceedings at first and second instance.





Grounds of appeal and main arguments

In support of their appeal, the appellants rely, in essence, on two grounds of appeal.
By the first ground of appeal, the appellants claim that the General Court erred in law by failing to find a breach of the principle of equal treatment between candidates to a competition.
The appellants claim that the General Court incorrectly held that the option of sitting the tests again – at the candidates’ discretion – irrespective of the whether the technical problem was actually encountered, did not constitute a breach of the abovementioned principle and that resitting the written part, on different dates and only by certain candidates, did not alter the objective conditions for assessing those candidates.
The General Court held, in essence, that candidates who had sat the same written tests one, two or even three times, could be treated in the same way irrespective of any verification of the technical difficulties encountered during the first test.
The appellants submit that, in the light of the fact that the measures adopted by the examination board and held to be valid by the General Court had had a considerable and avoidable impact on the running of the tests, the principle of proportionality was also breached.
By the second ground of appeal, the appellants claim that the General Court further erred in law in the application of the rule of correspondence between the administrative complaint and the legal action.
The appellants submit that the General Court did not examine their objection based on the breach of the competition notice. They submitted that a literal interpretation of the notice, which also safeguards the candidates’ legitimate expectations, did not allow for the assessment of the team management skills of those candidates who were taking part in the competition for a post at grade AD 7; the clear wording of the notice in fact restricted the assessment of that specific skill in relation to candidates for posts at grade AD 9, unlike leadership, which all candidates were assessed for.
The General Court held that that objection could not be declared admissible since it was not expressly raised in the complaint, notwithstanding the fact that the institution did not respond to the complaint within the statutory time limits.
The General Court erred in law in holding that the principle of correspondence between the administrative complaint and the legal action is to be applied with the same ridigity even where there has been no timely examination of the appellants’ complaints during the pre-litigation phase.
If, as the General Court observes, the complaint must be complete precisely in order to fulfil its essential function – which is of allowing an amicable resolution aimed at reducing litigation – it does not appear to be reasonable to apply the principle of correspondence in the same way, when, due to the institution’s mere inertia, such an attempt at conciliation did not take place. Failure to distinguish between the two situations amounts to a breach of Article 47 of the Charter of Fundamental Rights, thereby denying the appellants access to justice.
In addition, the appellants claim that the General Court’s reasoning is contrary to the case-law in Mandt, which distinguished between flaws of substantive legality and those of procedural legality, while holding that the principle is complied with where an applicant, in his or her own complaint, alleges flaws falling in either category. In the present case, the complaint was based on flaws in the contested measures, falling in both categories.
Moreover, the appellants claim that in fact, the General Court ends up creating the same link between the pre-litigation phase and litigation phase that the procedural rules, which prohibit ius novem, provide for between an action at first instance and on appeal, resulting in an infringement of the right of access to justice.
The error of law committed by the General Court is even more apparent in the light of the procedural rules in force as from 1 September 2024, which provide restrictions on the examination of appeals only if there has been an assessment of the case in the pre-litigation phase of the proceedings by a quasi-judicial body, which, although composed of lay members, is however independent with respect to the body which adopted the contested measure. That body cannot be considered to be the appointing authority since it is part of the system that adopted such a measure.
The General Court’s interpretation is therefore legally flawed, since as a result, cases relating to officials are treated in an unjustifiably less favourable way in terms of access to justice.
For the sake of completeness – and although not examined by the General Court, since it confined its examination to admissibility – the appellants focus also on the substance of the infringement of the rules on the interpretation of competition notices. In that connection, they claim that the General Court misinterpreted the assessment criteria for the different categories of posts (AD 7and AD9), thereby breaching the requirements of the competition notice, which clearly stated that team management skills should be assessed only in relation to those candidates who were competing for grade AD 9 posts, while all candidates, both those competing for posts at grade AD 7 and at grade AD 9, should have been assessed for leadership.
The General Court thus erred in law in the interpretation of the rules governing competition notices which require the wording of the notice to be strictly adhered to, with a view also to protecting candidates’ legitimate expectations.


ELI: http://data.europa.eu/eli/C/2025/244/oj
ISSN 1977-091X (electronic edition)