Source: EURLEX
Language: en
Format: md

Case T‑548/18

Lars Helbert

v

European Union Intellectual Property Office

Judgment of the General Court (Fourth Chamber), 13 January 2021

(Civil service – Recruitment – Notice of competition – Open Competition EUIPO/AD/01/17 – Decision not to place the applicant’s name on the reserve list for the competition – Composition of the selection board – Stability – Liability)

1. Officials – Competitions – Selection board – Composition – Sufficient stability to ensure equal treatment of candidates, consistent marking and objectivity of the assessment – Scope – Consistent application of the assessment criteria to all the candidates in the oral tests

   (Staff Regulations of Officials, Art. 27 and Annex III, Art. 3)

   (see paragraphs 31-33, 65)
2. Officials – Competitions – Selection board – Composition – Sufficient stability to ensure equal treatment of candidates, consistent marking and objectivity of the assessment – Absence of some of the members of the selection board at each interview – Examination of candidates during the interviews by two members of the selection board – Justification by reason of the linguistic diversity of the candidates and the lack of availability of members of the selection board – Not permissible

   (Staff Regulations of Officials, Annex III, Art. 3)

   (see paragraphs 38, 40, 41, 44-47, 50-54, 60-63)
3. Officials – Competitions – Selection board – Composition – Sufficient stability – Need for measures of coordination such as to ensure equal treatment and a consistent and objective assessment of the candidates – Scope – Exchanges among the selection board members before, during and after the tests – Definition of the methodology and the assessment criteria before the tests – Coordinating role of the chairperson and of the vice-chairperson of the selection board – Studies and analyses to check the consistency of marking – Insufficient implementation of measures of coordination – Not permissible

   (see paragraphs 66, 74, 76, 78, 86, 91, 97, 100, 101, 103-105, 110, 111)
4. Officials – Competitions – Competition based on qualifications and tests – Assessment of the candidates’ merits – Review of applications – Comparative examination of the differences between the marks giving rise to the request for review and those which are abnormally low – No meeting of the selection board in its entire composition to adopt final decisions – Not permissible

   (see paragraphs 82-85)
5. Officials – Competitions – Selection board – Composition – Sufficient stability to ensure equal treatment of candidates, consistent marking and objectivity of the assessment – No such stability – Infringement of essential procedural requirements – Consequences

   (Staff Regulations of Officials, Annex III, Art. 3)

   (see paragraph 113)

Résumé

On 12 January 2017, the European Personnel Selection Office (EPSO) published the notice of Open Competition EUIPO/AD/01/17. The purpose of that competition was to draw up a reserve list for the recruitment of administrators by the European Union Intellectual Property Office (EUIPO).

The applicant, Mr Lars Helbert, applied to take part in that competition and was invited to the assessment centre, where he took part in the tests.

Subsequently, EPSO informed the applicant that the selection board had decided not to place him on the reserve list of successful candidates in the competition on the ground that he was not among the candidates who had obtained the highest marks. The selection board confirmed its initial decision following the applicant’s request for review. The applicant lodged a complaint with EUIPO, which was rejected.

Following the rejection of the complaint, the applicant brought an action before the General Court by which he sought annulment of the initial decision of the selection board not to place him on the reserve list of successful candidates and of the decision of the selection board taken after review. That second decision, which is the act adversely affecting the applicant within the meaning of Article 90(2) of the Staff Regulations of Officials of the European Union, constitutes ‘the contested decision’.

The applicant submitted, inter alia, that there was a lack of stability in the composition of the selection board during the oral tests of the competition, in so far as all of the members of the selection board did not attend all of those tests and in so far as, instead, there were ‘selection committees’ composed of only a few members who each examined a limited number of candidates. He also alleges insufficient implementation of coordination measures to ensure consistent and objective assessment, equal opportunity and equal treatment of candidates. In those circumstances, according to the applicant, there was a failure to comply with the principles of consistency of the selection board, equal opportunity, equal treatment of candidates and objectivity of assessments as well as certain points of the notice of competition. The applicant also sought compensation for the moral damage which he claims to have suffered as a result of the unlawful conduct of the selection board and EUIPO.

After examining and clarifying the safeguards attaching to the selection procedure and, in particular, the requirements of stability in the composition of the selection board, the Court annulled the contested decision. By contrast, it rejected the claim for compensation.

Findings of the Court

The Court points out that the selection board is obliged to ensure consistent application of the assessment criteria to all candidates by ensuring, inter alia, that its composition is stable so far as is possible in order to ensure equal treatment of candidates, consistent marking and objectivity of the assessment. The requirement of stability is particularly necessary in the oral tests, since those tests are by their nature less uniform than the written tests.

In the present case, the Court finds that the composition of the selection board varied significantly during the oral tests.

However, logistical problems may, exceptionally, justify a relaxation of the rule of stability in the composition of the selection board. That is the case, inter alia, where, in a competition involving numerous candidates, the organisation of oral tests gives rise to significant difficulties related, first, to the organisation of multiple tests for candidates belonging to different linguistic groups and, second, to the necessity, for the members of the selection board or, in any event, for some of them, to comply with their service requirements in cases where competitions are conducted out over a relatively long period.

That said, the Court finds that none of the reasons put forward by EUIPO can, in the present case, justify the significant variation established in the composition of the selection board. That is the case, in particular, with regard to the linguistic diversity of the candidates, in view of the wide linguistic capacities of the selection board members and the very high proportion of interviews in English.

The division of the tests between two assessment centres in order to shorten the duration of the competition also cannot, per se, justify the setting up of 26 different selection committees.

As regards the impossibility, for some members of the selection board, to be sufficiently available to hold an interview with each candidate, the Court finds that it is for the EU agencies and institutions to release staff assigned to recruitment for a sufficient period of time to enable them to carry out their task, at the risk of not being able to recruit, as is required, officials or other servants of the highest standard of ability, efficiency and integrity. Furthermore, in the event that the full members of a competition selection board are prevented from attending, they may be replaced, in the tests of some of the candidates, by alternate members in order for the selection board to complete its work within a reasonable period.

However, it cannot be excluded that, in the absence of selection board stability, equal treatment of candidates, consistent marking and objectivity of the assessment may be obtained by means such as putting in place appropriate coordination.

In that regard, the exchanges among the selection board members which occur before, during and after the tests are particularly important for the purpose of ensuring compliance with those principles. In the present case, however, EUIPO has not adduced sufficient evidence to establish that regular exchanges between the members of the selection board, before, during and after the oral tests, made it possible to ensure consistent marking and objectivity of the assessment of the candidates and, therefore, to ensure that they were treated equally.

Similarly, the Court observes that there is no ground on which to conclude that the assessment criteria were set before the start of the tests.

Furthermore, the Court notes that the chairperson and the vice-chairperson of the selection board never attended the first minutes of the same interview together, that the alleged existence of daily exchanges of views between the chairperson and the vice-chairperson of the selection board regarding the coordination of the working methods of the selection board members is not established and that the vice-chairperson was absent from several meetings which preceded or followed the assessment centre tests, although those meetings were, according to EUIPO, a key step in the procedure designed to ensure equality as between candidates, consistent marking and objectivity of the assessment.

In the light of those considerations, the Court concludes that EUIPO has failed to establish the existence of sufficient measures of coordination such as to ensure that the selection procedure was based on equal treatment and a consistent and objective assessment of the candidates. Consequently, the Court upholds the complaint alleging breach of the rule requiring stability in the composition of the selection board and states that failure to comply with that rule constitutes a breach of the essential procedural requirements entailing the annulment of the contested decision.

As regards the application for compensation, the Court takes the view that, since the applicant has not shown that the moral damage claimed was separable from the illegality on which the annulment of the contested decision is based, that annulment constitutes, in itself, appropriate compensation for the damage which that decision may have occasioned.

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