1 By its appeal, the European Commission seeks to have set aside the judgment of the General Court of the European Union of 20 March 2024, EO v Commission (T‑623/18, ‘the judgment under appeal’, EU:T:2024:195) by which that court annulled the decision of the selection board in open competition EPSO/AD/323/16 of 1 February 2018 (‘the decision at issue’) by which that selection board confirmed its decision not to include EO’s name on the reserve list for that competition.
2 The background to the dispute is set out in paragraphs 2 to 17 of the judgment under appeal and may be summarised as follows.
3 On 26 May 2016, the European Personnel Selection Office (EPSO) published in the Official Journal of the European Union the notice of open competitions EPSO/AD/323/16 and EPSO/AD/324/16 for the constitution of reserve lists of administrators entrusted with the duties of investigators (AD 7) and investigator team leaders (AD 9) in the fields of EU expenditure, anti-corruption, customs and trade, tobacco and counterfeit goods (OJ 2016 C 187 A, p. 1; ‘the competition notice’).
4 In the part of the competition notice entitled ‘am I eligible to apply?’ the specific conditions for eligibility include the requirements of a ‘minimum level - C1 [of the Common European Framework of Reference for Languages (CEFR)] in one of the 24 official EU languages’ designated as ‘language 1’ of the competition, and a ‘minimum level - B2 [of the CEFR] in English, French or German’. That second language, designated as ‘language 2’ of the competition, had to be different from the language chosen by the candidate as the first language. It was also stated that ‘a good understanding of English (written and spoken) [was] required for recruitment in these two competitions’ and, lastly, that ‘you [had to] fill in your application form in English, French or German’.
5 In the section of the competition notice entitled ‘how will I be selected?’ it was indicated, in point 1, that three computer-based ‘multiple-choice question’ (MCQ) tests would constitute the first step in the selection procedures concerned. Those tests would be organised in the language chosen by each candidate as the first language.
6 Furthermore, according to point 3 of that part, following the ‘selection based on qualifications’, which constituted the second step in those procedures, the candidates who had obtained the highest total marks would be invited to sit the assessment centre tests, the last step in those procedures. That step consisted of five tests designed to assess eight ‘general competencies’ and the ‘specific competencies’ required for each competition and each profile.
7 It is apparent from the competition notice that four of those tests (namely, general and specific competency-based interviews, a group exercise and a case study) were to take place in the language chosen by each candidate as their second language. In addition, the candidates were required to take an English language comprehension test. According to the competition notice, that language comprehension test was eliminatory, but the mark would not be taken into account in the calculation of the overall marks for the assessment centre.
8 On 27 June 2016, EO applied to take part in Competition EPSO/AD/323/16 in the field of EU expenditure and anti-corruption. She chose [confidential] (1) as her first language and English as her second language.
9 The applicant passed the computer-based MCQ tests, was admitted to the competition and, after passing the selection based on qualifications, was invited to sit the tests at the assessment centre.
10 By a decision of the competition selection board of 12 December 2017, EO was informed of her results in the assessment centre tests and of the fact that the selection board had decided not to place her name on the reserve list for the competition on the ground that she had not obtained the necessary pass mark in one or more tests relating to the general or specific competencies at the assessment centre (‘the decision not to include her on the reserve list’). A document entitled ‘competency passport’, annexed to that decision, effectively indicated that EO had achieved a total score of 93.5 points out of 200 in the assessment centre tests. It was also apparent from that document that, for the eight general competencies and for the specific competencies, the applicant had obtained scores of 33.5 points out of 80 and 60 points out of 120 respectively. In addition, it was stated that the applicant had obtained a score of 6.667 points out of 10 in the English language comprehension test and a score of 5.5 points out of 10 for the general competency of communication.
11 By a letter of 21 December 2017, EO requested a review of the decision not to include her on the reserve list.
12 By the decision at issue, she was informed that the competition selection board had decided to confirm the decision not to include her on the reserve list.
13 On 11 March 2018, EO lodged a complaint, under Article 90(2) of the Staff Regulations of Officials of the European Union, against the decision not to include her on the reserve list.
14 By a decision of 9 July 2018, EPSO, acting in its capacity as appointing authority, rejected that complaint.
15 By an application lodged at the Registry of the General Court on 13 October 2018, EO brought an action seeking, first, the annulment (i) of the decision not to include her on the reserve list, (ii) of the decision rejecting the complaint referred to in the preceding paragraph and (iii) of the ‘results’ of that reserve list, and, secondly, compensation in respect of the material and non-material harm she allegedly suffered as a result of the non-inclusion of her name on the reserve list.
16 In support of her action, EO put forward eight pleas in law, alleging (i) inadequate conduct on the part of one of the members of the competition selection board; (ii) a lack of impartiality on the part of one of the members of that selection board; (iii) lack of competence on the part of the assessors; (iv) infringement of the language arrangements; (v) irregularities affecting the case study; (vi) infringement of the principle of equal treatment and fair treatment; (vii) an insufficient statement of reasons and; (viii) that EPSO did not respond to all the arguments she raised in her complaint of 11 March 2018.
17 By decisions of 7 January 2019, 20 December 2019 and 12 January 2021, the General Court stayed the proceedings before it pending the decisions ending the proceedings in the cases which gave rise to the judgments of 26 March 2019, Commission v Italy (C‑621/16 P, EU:C:2019:251); of 9 September 2020, Spain and Italy v Commission (T‑401/16 and T‑443/16, EU:T:2020:409); and of 16 February 2023, Commission v Italy and Spain (C‑635/20 P, EU:C:2023:98) respectively.
18 By the judgment of 9 September 2020, Spain and Italy v Commission (T‑401/16 and T‑443/16, EU:T:2020:409) the Court annulled the competition notice on the ground, in essence, that the Commission had not established that the restriction, first, of the choice of the second language of the competition and, secondly, of the languages of communication between candidates and EPSO to English, French and German was objectively and reasonably justified in the light of a legitimate objective of general interest in the framework of staff policy.
19 By the judgment of 16 February 2023, Commission v Italy and Spain (C‑635/20 P, EU:C:2023:98), the Court of Justice dismissed the appeal brought by the Commission against the judgment mentioned in the preceding paragraph.
20 By the judgment under appeal, as regards, in the first place, the applications for annulment referred to in paragraph 15 above, the General Court, having found that the act adversely affecting EO was the decision at issue, examined the fourth plea in law of her action, in which she raised a plea of illegality of the competition notice on account of the language arrangements provided for by that notice.
21 The Commission disputed both the admissibility and the merits of that plea of illegality.
22 In that regard, the General Court first pointed out, in paragraph 54 of the judgment under appeal, that the competition notice had been annulled, on account of the unlawfulness of the language arrangements provided for by that notice, by the judgment of 9 September 2020, Spain and Italy v Commission (T‑401/16 and T‑443/16, EU:T:2020:409), confirmed by the judgment of 16 February 2023, Commission v Italy and Spain (C‑635/20 P, EU:C:2023:98). Accordingly, the General Court held that it was not necessary to rule on the plea of inadmissibility directed against that plea of illegality.
23 Next, the General Court observed, in paragraph 58 of the judgment under appeal, that the illegalities found in the judgment of 9 September 2020, Spain and Italy v Commission (T‑401/16 and T‑443/16, EU:T:2020:409), confirmed by the judgment of 16 February 2023, Commission v Italy and Spain (C‑635/20 P, EU:C:2023:98), had affected all the tests carried out by the candidates in the context of the selection procedure at issue, including the written and oral tests taken at the assessment centre, which were to be conducted in English, French or German. Therefore, it found, in paragraph 59 of the judgment under appeal, that the decision at issue, containing the assessment of the written and oral tests carried out by EO at the assessment centre, was unlawful.
24 Lastly, in paragraph 60 of the judgment under appeal, the General Court upheld the fourth plea of EO’s action and annulled the decision at issue, taking the view that it was not necessary to examine the other pleas which she had raised.
25 In the second place, as regards the claim for damages referred to in paragraph 15 above, the General Court held, in paragraph 84 of the judgment under appeal, that, in view of the circumstances of the case and, in particular, the difficulties envisaged as regards restoring EO to the legal position she was in before the adoption of the decision at issue, it was appropriate to order the Commission to pay her a lump sum of EUR 6 000 by way of compensation for non-material damage.
26 The Commission claims that the Court should: - set aside the judgment under appeal and - order EO to pay the costs.
27 EO contends that the Court should: - primarily, dismiss the appeal; - order the Commission to pay the costs; and - in the alternative, should the appeal not be dismissed as unfounded, examine the other pleas in law which she raised in support of her action before the General Court.
28 The Commission raises three grounds of appeal.
29 By its first ground of appeal, which concerns paragraphs 54, 58 to 60 and 67 of the judgment under appeal, the Commission alleges the General Court committed an error of law in its assessment of the effects of the annulment of the competition notice on the lawfulness of the decision at issue, by holding that that annulment necessarily and automatically entailed the annulment of the decision at issue.
30 Relying on paragraph 17 of the judgment of 6 July 1993, Commission v Albani and Others (C‑242/90 P, EU:C:1993:284), the Commission states that it is settled case-law that the annulment of an act of general application, such as a competition notice, does not automatically entail the annulment of the individual decisions adopted on the basis of that act, such as decisions of competition selection boards. It argues that the Court recently confirmed that case-law in paragraph 67 of the judgment of 9 November 2023, XC v Commission (C‑527/21 P, EU:C:2023:850), by recalling the duty of the General Court, in the event of the annulment of a competition notice, not necessarily to annul all the acts adopted as a result of that notice, but only those the annulment of which is necessary to reinstate the rights of the candidate.
31 So far as concerns the admissibility of a plea of illegality of a competition notice, the Commission argues that a case-by-case approach must be followed, requiring a close connection between the alleged illegality and the reasoning of the contested decision (judgment of 16 March 2023, Commission v Calhau Correia de Paiva, C‑511/21 P, EU:C:2023:208, paragraphs 49 to 51 and the case-law cited).
32 It claims that the General Court failed to examine the existence of that close connection, as paragraph 54 of the judgment under appeal expressly confirms, in order to assess whether EO was admissible in contesting the language arrangements provided for by the competition notice.
33 On the contrary, the General Court inferred automatic consequences from the annulment of the competition notice. In particular, as paragraph 58 of the judgment under appeal shows, the General Court annulled the decision at issue without assessing whether it was because of the language used by EO in the tests that her name had not been placed on the reserve list. The fact that the decision at issue contained an assessment of the written and oral tests, as stated in paragraph 59 of the judgment under appeal, is not enough to justify its annulment, given that the results obtained by EO in those tests prove that she suffered no harm due to the language arrangements provided for by the competition notice, as the Commission will show in its second plea in law.
34 It is also apparent from the Court’s case-law that the consequences of the annulment of a measure relating to the selection procedures for EU staff must be established taking into account the specific circumstances of each particular situation (judgment of 8 May 2019, Joint undertaking Fusion for Energy v Galocha, C‑243/18 P, EU:C:2019:378, paragraph 48). It follows that the annulment of the decisions adopted by a selection board on the basis of an unlawful competition notice should not be automatic.
35 The second ground of appeal, which concerns paragraphs 58 to 60 and 67 of the judgment under appeal, alleges that the General Court distorted the facts when it held that the annulment of the competition notice necessarily had to lead to the annulment of the decision at issue. According to the Commission, had the General Court correctly assessed EO’s competencies and the effects of the unlawfulness of the competition notice on her specific situation, it would not have concluded that the decision not to include her on the reserve list was unlawful, given that the language arrangements provided for by the competition notice could not have had any effect, having regard to EO’s language skills, on the decision at issue.
36 First, it is apparent from paragraph 13 of the judgment under appeal that the decision not to include her on the reserve list was not linked to EO’s language and communication skills. In particular, in that paragraph, the General Court pointed out that the reason given for that decision was that EO had not obtained the necessary pass mark in one or more tests relating to the general or specific competencies at the assessment centre, which had no bearing on her language skills. In addition, her knowledge of English had been tested and she had obtained the rather satisfactory score of 6.667/10.
37 Secondly, it is apparent from the file in the present case, and in particular from EO’s declarations in her application to the competition at issue, that she had a good knowledge of German (level C1 of the CEFR). Thus, having regard to her language knowledge and of the fact that she had chosen her mother tongue, namely [confidential], as the first language of that competition, the only languages in which she could have taken the assessment centre tests were English or German, which were languages accepted as the second language for the purposes of the language arrangements provided for by the competition notice.
38 The third ground of appeal, which the Commission presents as alleging a breach of the obligation to state reasons, can be divided into two branches, the first of which in fact alleges an error of law.
39 By that first branch of that ground, the Commission argues that paragraph 54 of the judgment under appeal is unlawful, given that the General Court could not hold that the mere confirmation on appeal of the annulment of the competition notice had the automatic consequence that it was not necessary to rule on the plea of inadmissibility raised by the Commission against the plea of illegality of that notice raised by EO.
40 In that regard, the Court’s case-law, and in particular the judgment of 16 March 2023, Commission v Calhau Correia de Paiva (C‑511/21 P, EU:C:2023:208, paragraph 42 et seq.), confirmed that a plea of illegality of a competition notice raised by an unsuccessful candidate is admissible only in so far as a close connection can be established between that notice and the decision concerning that candidate.
41 The case-law following from the judgments of 6 July 1993, Commission v Albani and Others (C‑242/90 P, EU:C:1993:284, paragraph 17), and of 9 November 2023, XC v Commission (C‑527/21 P, EU:C:2023:850, paragraph 67) proves that that conclusion is applicable even if the competition notice concerned has been declared unlawful. That is so because the decision of a selection board is a measure distinct from the competition notice concerned and because a candidate is affected by that decision, and not directly by the competition notice.
42 The second branch of the third ground of appeal concerns paragraph 84 of the judgment under appeal, in which the General Court held that it was difficult for the Commission to reinstate EO in the situation she was in prior to the adoption of the decision at issue. The Commission contends that the General Court thus committed another breach of its obligation to state reasons, given that that remark directly contradicts the finding, in paragraphs 58 and 59 of the judgment under appeal, that the illegality of the competition notice necessarily entailed the annulment of the decision at issue.
43 If the annulment of the competition notice could only have as its consequence the annulment of the decision at issue, it would then be impossible, and not merely difficult, for the Commission to reinstate EO in the position she was in prior to the adoption of that decision.
44 EO disputes the Commission’s arguments.
45 By its first and second grounds of appeal and by the first branch of its third ground of appeal, which it is appropriate to examine together, the Commission criticises the General Court, in essence, first, for holding that the annulment of the competition notice automatically led to the annulment of the decision at issue, without examining beforehand whether there was a close connection between the unlawfulness of that notice and the statement of reasons for the decision at issue, and, secondly, for distorting the facts before it by holding that the unlawfulness of that notice had affected all the tests carried out by the candidates and, as a result, the decision at issue.
46 Under Article 277 TFEU, any party may, in proceedings in which an act of general application adopted by an institution, body, office or agency of the European Union is at issue, plead the grounds specified in the second paragraph of Article 263 TFEU in order to invoke before the Court of Justice of the European Union the inapplicability of that act.
47 According to settled case-law, Article 277 TFEU gives expression to a general principle conferring upon any party to proceedings the right to challenge incidentally, with a view to obtaining the annulment of a decision addressed to that party, the validity of acts of general application which form the legal basis of that decision (judgment of 8 September 2020, Commission and Council v Carreras Sequeros and Others, C‑119/19 P and C‑126/19 P, EU:C:2020:676, paragraph 67 and the case-law cited).
48 Since the purpose of Article 277 TFEU is not to allow a party to contest the applicability of any act of general application in support of any action whatsoever, the act the legality of which is called in question must be applicable, directly or indirectly, to the issue with which the action is concerned (judgment of 8 September 2020, Commission and Council v Carreras Sequeros and Others, C‑119/19 P and C‑126/19 P, EU:C:2020:676, paragraph 68 and the case-law cited).
49 Thus, 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. By contrast, the Court has held that a plea of illegality covering an act of general application in respect of which the individual decision being challenged does not constitute an implementing measure is inadmissible (judgment of 8 September 2020, Commission and Council v Carreras Sequeros and Others, C‑119/19 P and C‑126/19 P, EU:C:2020:676, paragraphs 69 and 70 and the case-law cited).
50 As regards specifically the admissibility of a plea of illegality raised against a competition notice, it is apparent from the Court’s case-law, inter alia, that a ground alleging the illegality of a competition notice is admissible only in so far as there is a close connection between the grounds of the contested decision and the provisions of that notice the illegality of which is pleaded, which presupposes that those provisions must give a reason for the individual decision which is the subject of the application for annulment concerned (see, to that effect, judgment of 16 March 2023, Commission v Calhau Correia de Paiva, C‑511/21 P, EU:C:2023:208, paragraph 50 and the case-law cited).
51 That criterion of a close connection is thus akin, in essence, to the alternative criteria referred to in paragraph 49 above, which require, in order that a plea of illegality be admissible, that the act of general application thus challenged constitute the substantive legal basis of the contested decision or have a ‘direct legal connection’ with that decision (see, to that effect, judgment of 16 March 2023, Commission v Calhau Correia de Paiva, C‑511/21 P, EU:C:2023:208, paragraph 51 and the case-law cited).
52 For the purposes of the examination of whether there is a such a close connection between the statement of reasons for the individual decision being challenged and the contested provisions of the notice of competition concerned, it is necessary to take into account not only the reasons given for that decision, as they are expressly set out in the statement of reasons for it, but also the implicit reasons which led to that decision, such as those resulting from the legal framework applicable to it (see, to that effect, judgment of 27 April 2023, HC v Commission, C‑102/22 P, EU:C:2023:351, paragraph 70 and the case-law cited).
53 The existence of such a close link must also be rejected where the contested provisions of the competition notice concerned are unconnected with the reasons underlying the individual decision being challenged (judgment of 27 April 2023, HC v Commission, C‑102/22 P, EU:C:2023:351, paragraph 71 and the case-law cited).
54 Thus, as regards an open competition to draw up a reserve list for the recruitment of officials to the Commission, such as the competition at issue in the present case, the General Court is required to examine whether there is a close connection between the grounds of the decision of which an unsuccessful candidate seeks the annulment and the provisions of the competition notice the unlawfulness of which is pleaded (see, to that effect, judgment of 16 March 2023, Commission v Calhau Correia de Paiva, C‑511/21 P, EU:C:2023:208, paragraph 54).
55 In the present case, EO challenged, inter alia, the decision not to include her on the reserve list by claiming that the competition notice was unlawful on account of the language arrangements it provided for.
56 In that regard, the General Court held, in essence, first, in paragraph 54 of the judgment under appeal, that it was not necessary to examine whether EO was admissible in raising a plea of illegality of the competition notice inasmuch as that notice had been annulled, on account of the unlawfulness of the language arrangements, by the judgment of 9 September 2020, Spain and Italy v Commission (T‑401/16 and T‑443/16, EU:T:2020:409), confirmed by the judgment of 16 February 2023, Commission v Italy and Spain (C‑635/20 P, EU:C:2023:98). Secondly, in paragraphs 58, 59 and 67 of the judgment under appeal, the General Court held, in essence, that that unlawfulness had affected all the tests carried out in the competition at issue and therefore led to the annulment of the decision at issue.
57 As regards, in the first place, the finding made in paragraph 54 of the judgment under appeal, it must be recalled that, in the case-law referred to in paragraphs 50 to 54 above, the Court was at pains to point out that, in order that a candidate be held admissible to seek, on the basis of Article 277 TFEU, the annulment of a decision addressed to him or her, it is necessary to examine whether there is a close connection between the grounds of that decision and the provisions of the competition notice the unlawfulness of which is pleaded, which presupposes that those provisions were applied in support of that decision.
58 It is thus the existence of such a close connection, as it is shown by the grounds of a particular individual decision, which enables the candidate in a competition to rely on the unlawfulness of the competition notice concerned. On the other hand, such unlawfulness, whether it be only alleged or already established, cannot in itself be sufficient to that effect.
59 It follows that the case-law mentioned in paragraphs 50 to 54 above, on the admissibility of a plea of illegality of a competition notice raised, in the context of an action seeking annulment of an individual decision, by an unsuccessful candidate, is applicable even where the competition notice concerned has subsequently been annulled, as in the present case, in another direct action brought by a third party.
60 Accordingly, it must be held that the General Court erred in law when it held, in paragraph 54 of the judgment under appeal, that it was not necessary to rule on the plea of inadmissibility directed against the plea of illegality of the competition notice.
61 As a result, since the General Court did not examine that plea of inadmissibility, it also erred in law in so far as it likewise did not examine, in order to assess the admissibility of the plea of illegality raised by EO, whether there was a close connection between the grounds of the decision at issue and the provisions of the competition notice relating to the language arrangements.
62 In the second place, in paragraphs 58 to 60 and 67 of that judgment, the General Court admittedly held, in essence, that since the competition notice had been annulled on account of the unlawful language arrangements it provided for, such unlawfulness had affected all of the tests in the competition concerned, ‘including the written and oral tests taken at the assessment centre, which were to be conducted in English, French or German’, so that ‘the [decision at issue], containing the assessment of the written and oral tests carried out by [EO] at the assessment centre, [was] unlawful’.
63 However, since the justification on which the General Court’s decision is based differs from that consisting in examining whether there was a close connection between the unlawfulness of the competition notice, claimed by EO in her action, and the grounds of the decision at issue, the second ground of appeal raised by the Commission, in essence alleging a distortion of the facts inasmuch as the General Court purportedly failed to correctly assess EO’s language skills and the effect of the language arrangements provided for by that notice on that decision, must be considered to be ineffective.
64 That being said, it should be borne in mind, as regards the errors of law identified in paragraphs 60 and 61 above, that if the grounds of a decision of the General Court reveal an infringement of EU law but the operative part of that decision can be seen to be well founded on other legal grounds, that infringement is not capable of leading to the setting aside of that decision and a substitution of grounds must be made (judgment of 4 October 2024, Commission v Council and Council v Front Polisario, C‑778/21 P and C‑798/21 P, EU:C:2024:833, paragraph 178 and the case-law cited).
65 It is therefore necessary to ascertain whether the operative part of the judgment under appeal, inasmuch as it annulled the decision at issue, can be seen to be well founded on legal grounds other than those vitiated by those errors.
66 In that regard, it is apparent from paragraph 32 of the judgment under appeal that the decision at issue replaced, as the act adversely affecting EO, the decision not to include her on the reserve list. As is apparent from paragraph 13 of the judgment under appeal, the reason given for the latter decision was the fact that EO had not obtained the necessary pass mark in one or more tests relating to the general or specific competencies at the assessment centre. She obtained a total score of 93.5 points out of 200, a score of 33.5 points out of 80 for the eight general competencies and a scope of 60 out of 120 for the specific competencies. In addition, she obtained a score of 6.667 points out of 10 in the English language comprehension test and a score of 5.5 points out of 10 for the general competency ‘communication’.
67 It is also apparent from paragraph 52 of the judgment under appeal that the plea of illegality of the competition notice raised by EO in the fourth plea in her action related to the language arrangements provided for by that notice.
68 As is apparent from paragraphs 6 and 7 above, the competition notice provided that there were five tests at the assessment centre, namely the English language comprehension test and four other tests (general and specific competency-based interviews, a group exercise and a case study) which were to take place in the language chosen by each candidate as their second language.
69 In the present case, EO chose English as her second language.
70 In those conditions, EO’s knowledge of that language necessarily influenced the result of those assessment centre tests and, in that respect, the provisions of the competition notice on the language arrangements must be regarded as having had an impact on the grounds of the decision at issue.
71 Consequently, in the present case, there is a close connection between the grounds of the decision at issue and the provisions of the competition notice relating to the language arrangements.
72 That finding is not called into question by the Commission’s arguments reiterated in paragraphs 36 and 37 above, according to which, first, the score obtained by EO in the English language comprehension test could be regarded as satisfactory, secondly, the score of 5.5 points out of 10 for the general competency concerning communication proved that EO’s language skills had no bearing on the decision at issue and, thirdly, since EO had a good knowledge of German and English, namely languages accepted as a second language for the purposes of the language arrangements provided for by the competition notice, those language arrangements could not have had any adverse impact on her candidature.
73 Such arguments cannot disprove the existence of a close connection between the grounds of the decision at issue and the provisions of the competition notice relating to those language arrangements, since it cannot be ruled out that, had different language arrangements been applied, EO would have been more at ease in her interaction with the other candidates during the group exercise or in formulating her replies during the other tests at the assessment centre and that, consequently, she would have obtained not only the pass mark required by the competition notice in respect of each of those tests, but also a total score higher than that obtained by the candidate placed last on the reserve list.
74 Since the existence of a close connection between the grounds of the decision at issue and the provisions of the competition notice relating to the language arrangements has been established, it must be found that EO was admissible in raising a plea of illegality of that notice in her action seeking annulment of that decision.
75 As regards the merits of that plea, it must be observed that, in her application and reply at first instance, EO argued, in essence, that the limitation of the choice of the second language in the competition concerned to English, French and German, required under the competition notice, consisted of an unjustified breach of the principle of non-discrimination and equal opportunities.
76 In that regard, it is sufficient to note that, as is apparent from paragraph 18 above, that competition notice was annulled by the judgment of 9 September 2020, Spain and Italy v Commission (T‑401/16 and T‑443/16, EU:T:2020:409), in that it unjustifiably limited the choice of the second language in the competition to English, French or German.
77 It follows that, in the present case, the plea of illegality of that notice raised by EO in her action before the General Court must be upheld and the decision at issue annulled.
78 Accordingly, the errors of law, identified in paragraphs 60 and 61 above, vitiating the judgment under appeal are not such as to render invalid point 1 of the operative part of that judgment, by which the General Court annulled the decision at issue, given that point 1 of that operative part is well founded for the reasons set out in paragraphs 66 to 76 above.
79 Lastly, as regards paragraph 84 of the judgment under appeal, to which the second branch of the third ground of appeal relates, it must be recalled that the Commission contends that that paragraph contradicts the finding, set out in paragraphs 58 and 59 of the judgment under appeal, that the unlawfulness of the competition notice necessarily led to the annulment of the decision at issue.
80 However, it must be observed that such an argument has become ineffective given that, first, paragraphs 58 and 59 of the judgment under appeal are inextricably linked with the approach adopted by the General Court in the judgment under appeal, consisting in examining the consequences of the judgment of 9 September 2020, Spain and Italy v Commission (T‑401/16 and T‑443/16, EU:T:2020:409), instead of examining the plea of inadmissibility raised by the Commission, and, secondly, as it was found in paragraph 60 above, such an approach is vitiated by an error of law.
81 Having regard to all of the foregoing considerations, the three grounds of the appeal and therefore the appeal itself must be dismissed.
82 Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs.
83 Under Article 138(1) of those rules, applicable to appeal proceedings 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.
84 In the present case, since EO has applied for costs to be awarded against the Commission and the latter has been unsuccessful, the Commission must be ordered to bear its own costs and to pay those incurred by EO in the present appeal proceedings. 1. Dismisses the appeal; 2. Orders the European Commission, in addition to bearing its own costs, to pay those incurred by EO in the present appeal proceedings.