CB, v European Commission [2013] EUECJ F-73/11 (24 April 2013)

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(Civil service – Officials – Open competition – Notice of competition EPSO/AD/181/10 – Non-admission to the assessment tests)

CB, official of the European Commission, residing in Brussels (Belgium), represented by S. Rodrigues, C. Bernard-Glanz and A. Blot, lawyers,

European Commission, represented by J. Currall, acting as Agent, and by A. Dal Ferro, lawyer,

1 By application received at the Registry of the Civil Service Tribunal on 25 July 2011, CB brought the present action for annulment of the decision of the selection board in open competition EPSO/AD/181/10, communicated by letter from the European Personnel Selection Office (EPSO) of 20 August 2010 and confirmed after review, refusing the applicant access to the assessment tests of that competition.

2 The first paragraph of Article 27 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) provides:

‘Recruitment shall be directed to securing for the institution the services of officials of the highest standard of ability, efficiency and integrity, recruited on the broadest possible geographical basis from among nationals of Member States …’.

‘For each competition, a selection board shall be appointed by the appointing authority. This board shall draw up a list of suitable candidates.

4 Article 2 of Annex III to the Staff Regulations, which concerns the competition procedure, provides:

‘The appointing authority shall draw up a list of candidates who satisfy the conditions laid down in Article 28(a), (b) and (c) of the Staff Regulations and shall send it, together with the candidates’ files, to the chairman of the Selection Board.’

‘After examining [the candidates’ files], the selection board shall draw up a list of candidates, who meet the requirements set out in the notice of competition.

Where the competition is on the basis of qualifications, the Selection Board shall, after determining how candidates’ qualifications are to be assessed, consider the qualifications of the candidates appearing on the list provided for in the first paragraph.

Where the competition is on the basis of both tests and qualifications, the Selection Board shall state which of the candidates on the list shall be admitted to the tests.

On completion of its proceedings, the Selection Board shall draw up the list of suitable candidates provided for in Article 30 of the Staff Regulations; the list shall wherever possible contain at least twice as many names as the number of posts to be filled.

The Selection Board shall forward this list to the appointing authority, together with a reasoned report by the Selection Board including any comments its members may wish to make.’

8 On April 29, 2010, EPSO published in the Official Journal of the European Union the notice for Open Competition EPSO/AD/180-181-182/10 to constitute reserve lists of grades AD 7 and AD 8 administrators from which to fill vacant posts in the institutions of the European Union in the fields of information systems security, competition law and industrial economics respectively (OJ 2010 C 110 A, p. 11, ‘the notice of competition’).

9 On the first page of the notice of competition, it was stated that the open competitions in questions were competitions on the basis of qualifications and tests. An explanation was then given regarding the conditions to be fulfilled by candidates to be admitted to the competition that they had chosen and to sit the assessment tests, in order to be included on the reserve list. Point 2 of section IV of the notice of competition described the procedure as follows:

To identify candidates who can be admitted to the assessment centre, the selection board will select candidates on the basis of their qualifications after having established the criteria by which it will assess those qualifications. Candidates will be selected on the basis of the information given in their on-line applications forms. The selection board will select those candidates who satisfy the eligibility conditions and who possess the qualifications (especially diplomas and professional experience) that are most relevant in terms of quality and level to the nature of the duties described in the competition notice …. Selection will be on the basis of the following marking scheme:

The number of candidates admitted to the assessment centre will be approximately three times the number of successful candidates indicated in the competition notice and will be published on EPSO’s website ….’.

10 Point 3 of section IV of the notice of competition, entitled ‘Verification of information given by candidates’, stated:

‘Following the [assessment tests], the information given by candidates in their on-line applications will be verified against the general conditions by EPSO and against the specific conditions and selection criteria by the selection board. If verification shows that the information given is not borne out by the appropriate supporting documents, candidates will be eliminated from the competition.

11 With regard to the nature of the duties, the notice of competition referred to specific profiles in Annexes. In relation to competition EPSO/AD/181/10, point 1 of Annexe 2 to the notice of competition provided:

‘Conducting analyses related to European anti-trust, merger and state aid policy and enforcement and carrying out administrative, advisory and supervisory duties related to the activities of competition policy of the European Union.

The European institutions are looking for lawyers with a strong knowledge and expertise in European competition law (anti-trust, mergers and/or state aid) and confirmed experience in the application of competition rules and procedures in a law firm, legal consultancy, business organisation or national competition authority. The candidates should have a proven ability to analyse competition cases, taking due account of the economic aspects; make a legal assessment under the competition rules and procedures and present legal drafts.’

12 Point 4 of Annex 2 to the notice of competition, entitled ‘Selection on the basis of qualifications’, stated:

1. Work experience in the application of rules and procedures of EU competition law or Member States competition law (anti-trust: restrictive agreements, dominance, cartels; mergers and/or state aid) in any of the following:

13 Those eight criteria, weighted according to the importance given to them by the selection board, were the subject of 11 questions under the section ‘Talent Screener’ (‘the Talent Screener’), which candidates had to answer in their application form.

14 The deadline set by the competition notice, for on-line applications only, was 28 May 2010.

15 The applicant, an official of the European Commission, applied for open competition EPSO/AD/181/10. He validated his application form on-line within the time-limit specified.

16 In his application, under ‘Education and Training’, the applicant referred to his doctorate in law from the University of Hamburg (Germany) and indicated the title of his doctoral thesis. In response to question 11 of the Talent Screener, which reads ‘Have you published books or articles in peer-reviewed journals in the field of competition law?’, the applicant referred to a book with the same title as his doctoral thesis.

17 After reviewing all the on-line applications, the selection board concluded the first stage of the selection preceding admission to the assessment centre. By letter dated 20 August 2010, sent to the applicant via his EPSO account, EPSO informed him that the selection board had decided not to invite him to the assessment centre.

18 By that letter, the applicant was also informed that he had not been selected because the minimum score required, on the basis of the marking scheme adopted by the board for selection on the basis of qualifications for the invitation to the assessment centre, in accordance with paragraph 2 of section IV of the notice of competition, was 41 points and he had obtained only 40 points.

19 By faxed letter of 23 August 2010, the applicant requested more information from EPSO regarding the marking scheme, arguing that another candidate, whom he knew and who, he claimed, was not as well-qualified as he was, had been admitted to the assessment centre.

20 On 2 September 2010, EPSO, on behalf of the chairman of the selection board, replied to the applicant by sending him the evaluation sheet of his qualifications and details of the selection criteria used, as well as the breakdown of his score of 40 points.

21 As an administrative error arose when the selection criteria were sent to the applicant, on 15 September 2010, EPSO sent him the grid of the criteria actually used by the board and the weighting applied to each of them, while stressing that the results he had obtained were identical to those that had been sent to him in the letter of 2 September 2010.

22 In the meantime, on 3 September 2010, the applicant sent the selection board another request for clarification and a request for review of his application, noting that some elements were not, in his view, properly taken into account.

23 On receipt of the letter of 15 September 2010 containing the selection criteria actually used by the selection board to assess all of the applications, on 15 September 2010 and on 27 September 2010, the applicant sent a new request for review, arguing that there were still inconsistencies. According to the applicant, those inconsistencies concerned in particular the assessment of his qualifications in relation to question 7 (experience in negotiations at an international level), question 5 (work experience in commercial law gained in a law firm, in a court, as an in-house lawyer in a company or in a national or an international public organisation) and questions 9 to 11 (teaching experience, participation in conferences and workshops, publications relating to competition law) of the Talent Screener.

24 By letter dated 5 November 2010, EPSO replied to the applicant that the selection board, after reviewing his application, confirmed its decision not to invite him to the assessment centre for the same reasons as those stated previously. In that letter, EPSO set out the more detailed explanations given by the selection board in relation to the specific points raised by the applicant.

25 With regard to the criterion applied in question 7, the letter of 5 November 2010 stated that ‘it is correct that the automatic message generated when the Selection Board gives a score of 0 might be misinterpreted. Data was indeed entered, but the Selection Board found that the experience you referred to did not warrant any point. Such experience was not considered relevant for any candidate’.

26 With regard to the criterion applied in question 5, the selection board found as follows:

‘The experience referred to in your application form in reply to question 5 is limited, notably in terms of duration, focus and relevance. It does not merit more than 1 point, as initially granted. The Selection Board noted that a large part of the experience you referred to in your requests for further clarification was not mentioned in your reply to question 5 of your application form.’

27 With regard to the criteria applied in questions 9 to 11, the selection board acknowledged that the applicant had significant experience but explained that it had been duly taken into account in the score awarded. The board found that the publication of the doctoral thesis could not be taken into account twice: it was not included in the calculation of points for question 11, since it had already been taken into account in the applicant’s response to question 8, for which he had, moreover, obtained the maximum score of 8 (that is, a score of 4 out of 4, then multiplied by a weighting factor of 2).

28 It also appears from the letter of 5 November 2010, that the selection board’s decision not to invite the applicant to the assessment centre did not prejudice any future application that he might make to another open competition. It was also stated that ‘EPSO has standard procedures in case of admission of candidates at a later stage, so that no disadvantage is suffered by those candidates.’

29 On 10 November 2010 the applicant lodged a complaint, under Article 90(2) of the Staff Regulations, against the selection board’s decision, communicated by letter dated 20 August 2010 and confirmed on review, not to invite him to the assessment centre (‘the contested decision’). In addition to the annulment of that decision, the applicant sought compensation for the loss occasioned by his non-admission to the next stage of the competition.

30 The appointing authority rejected the complaint by decision dated 15 April 2011.

– reintegrate the applicant in the selection process or, if that is not possible, organise a new round of tests in which he can take part;

33 As a result of the expiry of the term of office of the Judge-Rapporteur to whom the case was initially assigned and the change in the composition of the Chambers of the Tribunal, on 12 October 2011 the President of the Tribunal reassigned the case to the Third Chamber of the Tribunal and appointed a new Judge-Rapporteur.

34 On 17 August 2012, the applicant submitted further evidence to the Tribunal. The Tribunal replied on 7 September 2012.

35 By e-mail addressed to the Tribunal dated 31 August 2012, the applicant submitted a new plea, alleging that the number of points awarded to him for his response to question 11 of the Talent Screener was illegal and a breach of the principle of equal treatment.

1. 1. Concerning the claim that the applicant should be admitted to the selection procedure or, if that is not possible, that a new round of tests be organised in which he can take part

36 The applicant seeks to be admitted to the selection procedure or, if this is not possible, that new tests be organised in which he can take part.

37 However, in an action brought under Article 91 of the Staff Regulations, heads of claim requesting the Civil Service Tribunal to address directions to the administration or to recognise the validity of certain pleas in law relied on in support of a claim for annulment are manifestly inadmissible, since, according to settled case-law, it is not for the Courts of the European Union to issue directions to the institutions of the Union or to make rulings in the abstract (see, for example, judgment of 5 July 2011 in Case F-46/09 V v Parliament, paragraph 63 and the case-law cited). That applies to claims requesting the Civil Service Tribunal to establish the existence of certain facts and to instruct the administration to adopt measures to reinstate the person concerned in their rights (see order of 29 June 2010 in Case F-11/10 Palou Martínez v Commission, paragraphs 29 to 31).

39 According to settled case-law, a claim for annulment formally directed against the decision rejecting a complaint has the effect, where that decision lacks any independent content, of bringing before the Tribunal the act against which the complaint was submitted (judgment of 17 January 1989 in Case 293/87 Vainker v Parliament, paragraph 8, and judgment of 9 July 2009 in Case F-104/07 Hoppenbrouwers v Commission, paragraph 31). In those circumstances, since the decision of 15 April 2011 rejecting the complaint is devoid of any independent content, the action for annulment must be regarded as directed only against the contested decision, as the claims formally directed against that decision overlap with the claim for the annulment of the act referred to in the complaint, that is to say, of the contested decision.

40 The applicant bases his action on four pleas alleging (i) infringement of the competition notice and of the principle of equal treatment, and failure to apply objective selection criteria; (ii) manifest errors of assessment; (iii) procedural irregularities and (iv) the illegality of the number of points awarded for his response to question 11 of the Talent Screener and breach of the principle of equal treatment.

41 It should be borne in mind at the outset that the essential function of a notice of competition is to give those interested the most accurate information possible about the conditions of eligibility for the post in question, so as to enable them to judge whether they should apply for it. The appointing authority enjoys a wide discretion in deciding upon the criteria of ability required for the posts that are to be filled and in determining, in the light of those criteria and in the interests of the service, the rules and conditions under which a competition is organised (judgments of 16 October 1975 in Case 90/74 Deboeck v Commission, paragraph 29; of 16 October 1990 in Case T-132/89 Gallone v Council, paragraph 27; of 12 June 1997 in Case T-237/95 Carbajo Ferrero v Parliament, paragraph 47, and of 31 January 2006, in Case T-293/03 Giulietti v Commission, paragraph 63).

42 The notice of competition may also merely repeat a general formula, without specifying the level of experience required for the post to be filled, and thus leave it to the selection board to decide in each case whether the qualifications and diplomas produced and the relevant experience claimed by each candidate correspond to the level required by the Staff Regulations and, therefore, by the notice of competition, for the discharge of duties pertaining to the category to which that notice refers (see judgments of 14 June 1972 in Case 44/71 Marcato v Commission, paragraph 14; of 12 July 1989 in Case 225/87 Belardinelli and Others v Court of Justice, paragraphs 13 and 14; Carbajo Ferrero v Parliament, paragraph 48; judgment of 28 November 2002 in Case T-332/01 Pujals Gomis v Commission, paragraph 39, and Giulietti v Commission, paragraph 64).

43 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 (judgment of 21 November 2000 in Case T-214/99 Carrasco Benítez v Commission, paragraph 70; Pujals Gomis v Commission, paragraph 40, and Giulietti v Commission, paragraph 65).

44 Finally, it should be noted that, in its review of legality, the Tribunal must confine itself to ascertaining whether the selection board’s decisions were free from manifest errors (judgment of 13 December 1990 in Case T-115/89 González Holguera v Parliament, paragraph 54; judgment of 11 February 1999 in Case T-244/97 Mertens v Commission, paragraph 44; Carrasco Benítez v Commission, paragraph 71; Pujals Gomi v Commission, paragraph 41, and Giulietti v Commission, paragraph 66).

45 It is in the light of these general considerations that the pleas put forward by the applicant should be examined.

The first plea, alleging infringement of the notice of competition and of the principle of equal treatment, and failure to apply objective selection criteria

46 It is clear from the applicant’s pleadings that the first plea comprises three submissions, alleging (i) the failure to take into account the experience of the applicant in the field of negotiations at an international level, (ii) the failure to consider the publication of his doctoral thesis and (iii) breach of the principle of equal treatment as a result of a translation error in a question of the application form.

The first submission, alleging failure to take into account the experience of the applicant in the field of negotiations at an international level

47 The applicant argues that the selection board wrongly failed to take into account the experience in the field of negotiations at an international level that he had mentioned in response to question 7 of the Talent Screener. According to paragraph 5 of point 4 of Annex 2 to the notice of competition, one of the criteria for selection on the basis of qualifications consisted of ‘experience in negotiations at an international level’. The applicant claims that, in the absence of clarification, that experience should be understood as covering all types of negotiations at an international level, including commercial or regulatory negotiations.

48 The applicant adds, first, that the fact that EPSO, in a letter of 4 July 2011, in response to a request for access to documents, acknowledged that there was no decision in written form of the selection board restrictively defining the concept of experience of negotiations at an international level, establishes that there was a breach of the principle of equality in so far as his qualifications were assessed on the basis of narrower criteria than those used to assess the qualifications of other candidates. Secondly, if such a decision existed, it was illegal, as it contradicted the notice of competition and was not known to the candidates. Thirdly, in the absence of evidence that the selection board had actually made the decision to restrictively define the concept of ‘negotiations at an international level’, the Commission was not able to demonstrate that the candidates had been assessed on the basis of uniform and previously established criteria.

49 According to the Commission, the selection board took into consideration, in assessing the responses to question 7 of the Talent Screener, only experience gained in the representation of a State or international organisation in the context of international negotiations. Given the wide discretion of the selection board, it was not obliged to take into consideration the regulatory and trade discussions, even on an international level, between private parties. The limitation of the criterion to international public negotiations only was clearly justified by the nature of the duties of the positions to be filled. The Commission adds that, even if the applicant had thought that the wording of the notice of competition was too vague, nothing prevented him from providing any additional information that he considered useful in his application form. According to the Commission, all the candidates were in the same situation and provided all the information that they personally considered useful and that the selection board then assessed on the basis of criteria previously drawn up in the exercise of its discretion.

50 In order to assess the validity of the interpretation of paragraph 5 of point 4 of Annex 2 to the notice of competition adopted by the selection board, point 4 of Annex 2 to the notice of competition should be read as a whole. The introduction of point 4 indicates that ‘[o]ne or more of the following: experience, knowledge and ability, would be an asset’. Paragraph 1 then provides a list of categories of work experience in the field of ‘the application of rules and procedures of EU competition law or Member States competition law’ that was relevant in that context, including that gained in ‘a law firm’ and in ‘a national or an international competition authority’. Given the broad scope of paragraph 1 of point 4 of Annex 2 to the notice of competition, which at first glance could include, with one exception, all the experience referred to by the applicant in the first submission of the first plea, the restrictive interpretation by the selection board of paragraph 5 of point 4, which excludes that experience, does not contradict in any way the notice of competition as the applicant claims.

51 With regard to the experience gained in the German Federal Ministry of Finance, relied on by the applicant, where he acted as an observer of the negotiations between the German Government and the Commission and other European Union Member States respectively, it should be noted, that, as the Commission states, paragraph 5 of point 4 of Annex 2 to the notice of competition requires ‘[e]xperience in negotiations’ on the part of the candidate and not merely experience as an observer of negotiations. However, the applicant did not state that he had personal experience of negotiations within the framework of his work at the German Federal Ministry of Finance.

52 Moreover, even assuming that the advantage of experience in the field of negotiations at an international level can be interpreted in the sense indicated by the applicant, including all types of private and public international negotiations, the fact remains that, taking into account the nature of the duties of the positions to be filled covered by the notice of competition, in particular in so far as those duties may include participation in negotiations between the European Union and third countries or international organisations, it was permissible for the selection board, within the limits of its broad discretion, to interpret that advantage as relating only to public international negotiations, without infringing the notice of competition.

53 With regard to the submission that the selection board of the competition thus breached the principle of equal treatment, it is sufficient to observe that the applicant did not provide any evidence that the selection board interpreted the requirement of experience in the field of negotiation at an international level in a different way with regard to the applicant.

The second submission, alleging failure to take the publication of the applicant’s doctoral thesis into account

55 According to the applicant, the selection board of the competition wrongly failed to take his doctoral thesis into account when awarding marks for his response to question 11 of the Talent Screener. In that regard, he argues that the award of the same number of points to all candidates who hold a PhD, without taking account of the publication of their thesis, would lead to discrimination, since the situation of a candidate who has published his doctoral thesis is different to that of a candidate who has not published it, in so far as the publication of the thesis entails extra work and constitutes a contribution to legal practice and scholarly debate.

56 The applicant also claims in that regard that candidates holding a PhD who have published their thesis, without specifying the title in the application form, were treated more favourably than him as their thesis was taken into account under question 11 of the Talent Screener and their PhD under question 8 of the same section. In addition, candidates who have published their Masters thesis in the form of a book or articles in a newspaper, without its being identified as such, would have received points both for question 8 and question 11 of the Talent Screener, unlike candidates holding a PhD. However, there is no justification for treating Masters theses and doctoral theses differently, and this also constitutes a breach of the principle of equality of treatment.

57 In that context, the selection board of the competition could not decide to take into account information which it did not have for all the candidates because neither the competition notice nor the application form requested that information. By taking such information into account, it thus disregarded the principle of equal treatment and the obligation to apply uniform and objective criteria known in advance by all the candidates.

58 Finally, in response to a question from the Tribunal at the hearing, the applicant observed that, in any event, in the assessment of his response to question 11 of the Talent Screener, taking account of the publication of his thesis should result in the award of separate points since his book was a modified and updated version of his thesis.

59 The Commission replies that, clearly, the selection board could take the PhD thesis into account only once, even if it had been published in the form of a book, since the author had done the work only once. The Commission also submits that, in any event, the applicant could not be awarded his doctorate without publishing his thesis, as this was a condition of the regulations concerning doctorates of the University of Hamburg applicable at the time. As publication is an integral part of doctoral studies, the selection board could not make a distinction between the doctoral thesis and its publication in the form of a book.

60 The Commission adds that the candidates were free to choose how they completed their applications and to decide whether to include the title of their doctoral thesis at the beginning and not just in response to question 11 of the Talent Screener. The selection board of the competition was, in any event, bound by the notice of competition, which stated that ‘[c]andidates will be selected on the basis of the information given in their on-line applications forms’. According to the Commission, each candidate had to take that into account in deciding where it was appropriate to mention specific information.

61 It should be noted at the outset that, with regard to the alleged differences between the applicant’s doctoral thesis and the book he published, the applicant raised those differences only at the hearing. Indeed, under the section ‘Education and Training’ of the application form, the applicant stated that he had obtained a doctorate after writing a doctoral thesis, the title of which he referred to; the same title was used again in the reply to question 11 of the Talent Screener concerning competition law publications, whereas the applicant did not refer to any differences between his doctoral thesis and his book anywhere in his application form. Such differences were not identified in his complaint of 10 November 2010. Furthermore, in his application, the applicant identifies the book mentioned in his response to question 11 of the Talent Screener as his doctoral thesis.

62 It should also be noted that, in point 2 of section IV of the notice of competition, it was expressly provided that the selection of candidates admitted to the assessment centre would be on the basis of the information provided by the interested parties in their application form (see, to that effect, the judgment of 20 June 2012 in Case F-83/11 Cristina v Commission, paragraph 68 and the case-law cited). It follows that the applicant cannot criticise the selection board for not having checked if his doctoral thesis and his book were different and to what extent, particularly as the two works bore the same title.

63 Furthermore, the fact that the applicant’s thesis has been published in the form of a book does not alter the fact that the selection board may not take into account the same work twice when selecting candidates. In the context of the competition and in accordance with Article 27 of the Staff Regulations, the selection board seeks to admit candidates with the highest standard of ability, which implies, in particular, those with the most experience possible. A situation where a candidate, on behalf of whom the same work was taken into account two or more times, was admitted and candidates who had much more experience, but who had their work taken into account only once, were excluded, would, therefore, contravene the objective of Article 27 of the Staff Regulations.

The third submission, alleging breach of the principle of equal treatment as a result of a translation error in a question of the application form

65 The applicant pleads breach of the principle of equality as a result of a translation error in the German version of question 5 of the Talent Screener section of the application form. He claims that the terms ‘Handelsrecht’ and ‘Behörde’ refer to concepts that are narrower in scope than the corresponding English and French terms, namely, ‘commercial law’ and ‘droit commercial’, and ‘public organisation’ and ‘organisme public’ respectively. According to the applicant, it was for that reason that he did not mention, under the Talent Screener, a period of 38 months at the Max Planck Institute for Comparative and International Private Law (‘the Max Planck Institute’), as that establishment is a ‘public organisation’ or an ‘organisme public’ but not a ‘Behörde’.

66 The Commission contends that that argument is unfounded. First, the terms in question were correctly translated into German, as an expert from the Commission’s Directorate-General for Translation has confirmed. Secondly, the applicant’s argument appears to be frivolous, since he completed his application in English and therefore could not have been misled by any fault in German. Finally, his experience at the Max Planck Institute was included in his application form and, as it has already been taken into account in respect of question 9 of the Talent Screener, it could not, therefore, be taken into account a second time.

67 First of all, it is common ground that the applicant completed the on-line registration form, including the Talent Screener, in English and chose this language as his first language for the purposes of competition EPSO/AD/181/10. It follows that, even assuming that the translation of the disputed terms into German was incorrect, the applicant could not have been misled by this error because he used the English version of the on-line registration form.

68 Next, while it is true that the applicant did not refer to his experience with the Max Planck Institute in his response to question 5 (work experience in commercial law gained in a national or an international public organisation) of the Talent Screener, he did, however, provide that information in his response to question 9 (experience in academic research or teaching in competition or commercial law) of that section. There is therefore no doubt that his experience with the Max Planck Institute was indeed assessed by the selection board.

69 Finally, the applicant did not contradict the Commission’s assertion that his experience at the Max Planck Institute, namely, research activities in the field of competition law, could not be taken into account in the assessment of the answer to question 5 of the Talent Screener, given that it had already been taken into account in the context of question 9 of that heading.

70 It follows from the foregoing that the third submission of the first plea is unfounded and that, therefore, the first plea must be rejected in its entirety.

71 The first manifest error of assessment, according to the applicant, is the failure to take into consideration his experience in the field of negotiations at an international level. According to the applicant, the negotiations in which he participated, namely, negotiations between the Commission and a commercial undertaking, were international, as the Commission is international in nature and the partner is a private American company. By deciding not to take into account that experience in the field of negotiation at an international level, the selection board committed a manifest error of assessment.

72 According to the applicant, the selection board also committed a manifest error of assessment by not taking into account his experience gained within the Max Planck Institute. In that regard, he argues that his experience concerned both competition law and general private law. To the extent that that experience related to general private law, it should have been taken into account in the context of question 5 of the Talent Screener, while, in connection with question 9 of that section, the selection board was also bound to take into account the experience of the applicant in competition law. Accordingly, there is no duplication in taking the same experience into account with regard to different matters.

73 The Commission argues in response that the selection board decided to count only international negotiating experience acquired on the basis of a mandate conferred by a State or an international organisation. Thus, discussions between a representative of the relevant Commission department and the representative of a private commercial undertaking, with a view to bringing the latter into compliance with European competition law, do not constitute ‘international negotiation’ within the meaning of the notice of competition. Discussions of that type are not based on an explicit mandate to negotiate with a view to reaching an international agreement. It is, rather, a normal incident in the application of competition law to an individual case, forming part of the ordinary duties of the Commission official who has responsibility for competition issues.

74 With regard to the classification of international negotiations, as has already been stated in paragraph 52 of the present judgment, the fact that consideration is given only to experience gained in international negotiations on the basis of a mandate conferred by a State or an international organisation falls within the discretion of the selection board and cannot be defined as a manifest error of assessment.

75 With regard to the applicant’s experience within the Max Planck Institute, it suffices to note that, as it has been observed in paragraph 68 of the present judgment, the selection board clearly took that experience into account. As the Commission rightly points out, even if the applicant had also provided information in response to question 5 of the Talent Screener, the selection board would have had to ignore that information in so far as it had taken it into account under question 9 of that section. This would not have changed the situation in any way because following the reasoning of the applicant on that point would have resulted in counting the experience gained within the Max Planck Institute twice.

77 The third plea, alleging procedural irregularities, is in two parts. In the first part, the applicant criticises the lack of objective selection criteria. The second part of the plea is based on the ground of lack of competence in that EPSO, rather than the selection board, selected the candidates.

78 The applicant claims that the selection procedure was irregular in that it favoured candidates who overstated their experience in the on-line application, since the information thus provided was finally verified only with regard to candidates who were admitted to the assessment centre. Therefore, according to the applicant, the decision to admit to the assessment centre was based solely on a self-assessment. The applicant states, in that regard, that at no stage of the procedure were candidates tested as to whether they truly possessed the claimed experience.

79 The applicant adds that the structure put in place by that form of competition invites abuses by candidates and gives an enormous amount of discretion to the selection board at the first stage of the competition, whereas it is necessary, at that stage, to ensure strict observance of the principles according to which professional experience must be assessed on the basis of objective data and the candidates selected on the basis of verifiable objective criteria.

80 The Commission replies that the objectivity of the selection process is guaranteed, since the information provided by the candidates is verified during the second stage of the competition, so that the institutions can be satisfied that the selected candidates really do have the qualifications required by the notice of competition. The legality of that way of organising competitions, and more especially, of the fact that checks on eligibility are conducted only after the pre-selection stage, is justified in order to meet the requirements of rational organisation of the competition, which are in themselves a reflection of the principle of sound administration.

81 It should be recalled that, according to settled case-law, the appointing authority enjoys a wide discretion in deciding upon the rules and conditions under which a competition is organised and it is for the Tribunal to censure its choice only if the limits of that discretion have not been observed (judgment of 26 October 2004 in Case T-207/02 Falcone v Commission, paragraph 38).

82 In the exercise of that discretion the appointing authority may, when it organises an open competition, provide in the competition notice for an initial stage of pre-selection by the selection board so as to retain only those candidates who, in the appropriate field, possess the qualifications required for admission to the competition, in order to meet the requirements of rational organisation of the competition, in accordance with the principle of sound administration (Falcone v Commission, paragraph 39).

83 In that connection, a procedure consisting, in particular in competition procedures involving a large number of candidates, in ascertaining only after the preselection tests whether candidates meet the specific conditions for admission to the competition, is consistent with Articles 4 and 5 of Annex III to the Staff Regulations and the Commission’s interest in ensuring that only candidates meeting those conditions take part in the tests of the competition, and with the principle of sound administration (Falcone v Commission, paragraph 40).

84 With regard to the applicant’s criticism that the decision to admit to the assessment centre was based solely on a self-assessment by candidates without any verification of the experience referred to by the candidates in their application form and that, therefore, the structure of the competition invites abuse by candidates, it should be noted that it is clear from point 3 of section IV of the notice of competition that the selection board was required to verify the statements made by the candidates in their on-line application form and that, if it emerged from that verification that those statements were not corroborated by the relevant supporting documents, the applicants concerned would be excluded from the competition.

85 In the present case, the applicant has not adduced proof or sufficient circumstantial evidence to establish that the selection board failed to carry out such verification. The applicant’s argument, according to which EPSO did not provide documentary evidence of the effectiveness of that verification, and did not formulate guidelines in that regard, and according to which no candidate was excluded by the selection board as a result of such a verification, is not sufficient to support the conclusion that the verification of the statements made by the candidates, required under point 3 of section IV of the notice of the competition, had not taken place.

87 In the context of the second part of the third plea, the applicant, referring to the fact that there was no written record of the decision of the selection board to admit to the assessment centre only those candidates with 41 points or more at the end of the selection stage on the basis of qualifications, raises the question whether, in fact, it was the selection board that assessed the application forms and not EPSO. The applicant requests the Tribunal to examine whether, in the present case, the proper division of tasks between EPSO and the selection board has been respected.

88 The Commission contends that that is a mere suggestion, which, in any event, has been made contrary to the rules relating to the burden of proof and the presumption of legality of acts of the administration. It argues that the decisions to admit or not to admit candidates to the assessment centre were in fact taken by the selection board and not by EPSO, as is clear from the file.

89 In that regard, it should be noted that, according to settled case-law, first, an administrative act enjoys a presumption of legality and, secondly, the burden of proof weighs, in principle, on the party that makes the allegation, so that the onus is on the applicant to at least provide sufficiently precise, objective and consistent evidence to support the veracity or likelihood of the facts in support of its contention. Therefore, an applicant who does not have any proof or, at the very least, a body of evidence must accept the presumption of legality attached to decisions taken with regard to competitions and cannot require the Tribunal to itself assess the application forms of the successful candidates in order to check if successful candidates were improperly admitted to compete (judgment of 4 February 2010 in Case F-15/08 Wiame v Commission, paragraph 21).

90 In the present case, the applicant merely raises a hypothetical question, without providing any proof, or even circumstantial evidence, to suggest that the contested decision was not taken by the selection board but by EPSO.

91 The second part of the third plea and, consequently, the third plea in its entirety, must therefore be rejected.

The fourth plea, alleging the illegality of the number of points awarded to the response to question 11 of the Talent Screener and breach of the principle of equal treatment

92 According to the applicant, the three points awarded with regard to his answer to question 11 of the Talent Screener are insufficient, even if his book was not taken into account. He argues that another candidate, who wrote only one chapter of 53 pages of a book and published, along with three other authors, a 3-page article, had obtained two points. According to him, the chapter of 110 pages of a book other than the publication of his thesis, together with 22 articles, including six of more than 20 pages and six others of more than 10 pages, could not be worth only one additional point. The decision of the selection board to award him only three points is therefore, he claims, arbitrary and infringes the principle of equal treatment.

93 The Commission observed during the hearing, that, if the applicant’s book could have been taken into account under question 11 of the Talent Screener, he would have received four points for that question. However, given that the book could not be counted a second time, he could not get the maximum four points. It also contends that, compared with the other candidate who was awarded two marks for his response to question 11, the applicant received 50% more points, as he obtained three points. Consequently, the selection board gave consideration to the applicant’s greater volume of publications and did not, therefore, err when awarding points for question 11 of the Talent Screener, nor did it breach the principle of equal treatment.

94 In that regard, and without it being necessary to consider whether the plea raised in the e-mail sent to the Tribunal on 31 August 2012 is a new plea within the meaning of Article 43 of the Rules of Procedure, the Tribunal considers that, when assessing the response to a question concerning the publications of candidates, for which response the selection board of the competition could assign a maximum of four points, there cannot be a mathematical correspondence between, on the one hand, the number of pages and the number of publications and, on the other hand, the number of points awarded, as the applicant acknowledged at the hearing.

95 In these circumstances, the selection board did not exceed the limits of its discretion by giving the applicant 50% more points than another candidate who had published fewer pages and articles or books than the applicant.

96 It follows from all the foregoing that the action must be dismissed in its entirety.

97 Under Article 87(1) of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title 2 of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 87(2), the Tribunal may, if equity so requires, decide that an unsuccessful party is to pay only part of the costs or even that he or she is not to be ordered to pay any.

98 It follows from the reasoning set out above that the applicant has failed in his action. Furthermore, in its pleadings the Commission expressly requested that the applicant be ordered to pay the costs.

99 However, it follows from the foregoing that a simple statement in the competition notice that doctoral theses would be assessed only under question 8 of the Talent Screener in the competition application form would have avoided the need for the applicant to bring an action. As the circumstances of the case therefore justify the application of the provisions of Article 87(2) of the Rules of Procedure, the Commission must be ordered to bear its own cost and to pay half of the costs incurred by the applicant.

2. Declares that the European Commission shall bear its own costs and orders it to pay half of the costs incurred by CB.

The texts of the present decision and the texts of the decisions of the Courts of the European Union cited in it are available on the internet site www.curia.europa.eu.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> CB, v European Commission [2013] EUECJ F-73/11 (24 April 2013) URL: http://www.bailii.org/eu/cases/EUECJ/2013/F7311.html Cite as: [2013] EUECJ F-73/11

Court of Justice of the European Communities (including Court of First Instance Decisions)