Rosca v Commission (Civil service - Recruitment - Judgment) [2021] EUECJ T-434/19 (20 October 2021)

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(Civil service – Officials – Recruitment – Notice of competition – Open Competition EPSO/AD/363/18 – Decision of the selection board to exclude the applicant from the next phase of the competition – Obligation to state reasons – Manifest error of assessment – Article 27 of the Staff Regulations – Equal treatment)

Ioana-Felicia Rosca, residing in Vienna (Austria), represented by L.-O. Tufler and B. Nelissen, lawyers,

European Commission, represented by M. Brauhoff, D. Milanowska and L. Vernier, acting as Agents,

APPLICATION under Article 270 TFEU for annulment of the decision of the selection board in Open Competition EPSO/AD/363/18 of 22 March 2019, based on qualifications and tests, rejecting the applicant’s application and excluding her from the assessment centre for that competition,

composed of J. Svenningsen, President, C. Mac Eochaidh and T. Pynnä (Rapporteur), Judges,

having regard to the written part of the procedure and further to the hearing on 27 January 2021,

1 On 11 October 2018, notice of competition EPSO/AD/363/18, based on qualifications and tests and organised to draw up two reserve lists from which to recruit administrators (AD 7) in the fields of taxation and customs (‘the competition’), was published in the Official Journal of the European Union (OJ 2018 C 368 A, p. 1; ‘the competition notice’).

2 In the competition notice, under the heading ‘Am I eligible to apply?’, it was stated that all of the ‘general conditions’ and the ‘specific conditions’ – relating to languages, qualifications and work experience – had to be met when the candidate validated the application form.

3 Under the heading ‘How will I be selected?’, in point 4, entitled ‘Selection based on qualifications (Talent Screener)’, it was stated, in the first paragraph, as follows:

‘In order to allow the selection board to carry out an objective assessment of the comparative merits of all candidates in a structured way, all candidates in the same field must answer the same set of questions in the “Talent Screener” section of the application form in language 2. The selection based on qualifications will be carried out, only for those candidates deemed eligible …, using solely the information provided in this Talent Screener section. You should therefore include all relevant information in your Talent Screener answers, even if already mentioned in other sections of your application form. The questions are based on the selection criteria included in this notice.’

‘To carry out the selection based on qualifications, the selection board will first assign each selection criterion a weighting that reflects its relative importance (1 to 3) and each of the candidate’s responses will be awarded between 0 and 4 points. The points are multiplied by the weighting for each criterion and added up to identify those candidates whose profiles best match the duties to be performed.

Only the candidates with the highest overall marks at the selection based on qualifications will go through to the next stage.’

5 Also under the heading ‘How will I be selected?’, in point 5, entitled ‘Assessment Centre’, it was stated:

‘A maximum of 3 times the number of successful candidates sought for each field will be invited to this phase. If you meet the eligibility requirements according to the data in your online application and if you scored one of the highest overall marks for the selection based on qualifications, you will be invited to attend an assessment centre for 1 or 2 days, …, where you will take tests held in your language 2.’

6 On 11 October 2018, the applicant, Ms Ioana-Felicia Rosca, submitted her application for the competition in the field of taxation.

7 By letter of 18 December 2018, the applicant was informed that the selection board had decided to admit her to the stage of the competition involving selection based on qualifications (Talent Screener), on the basis of the information provided in her application form.

8 On 28 January 2019, the applicant was informed that the selection board had completed the examination of the online applications and that, on the basis of the information contained therein, she was not on the list of candidates invited to the assessment centre. Her score of 22 points was insufficient for her to be admitted to the next stage, for which a minimum score of 26 points was required.

9 On 4 February 2019, the applicant submitted a request for review of the decision of 28 January 2019.

10 By letter of 22 March 2019, the selection board informed the applicant that it had revised her mark. Following the revision of the points awarded to her for Question 1, her new score was 25 points, but that score was still not sufficient for the applicant to be invited to the next stage of the competition. The applicant’s scores for Questions 1, 5 and 7, after review, were as follows:

11 On 3 April 2019, the applicant lodged a complaint with the European Ombudsman against the selection board’s second assessment during the Talent Screener stage and thus against the following two decisions: (i) the decision to award her 2 points out of 4 for her answer to Question 5 and (ii) the decision to award her 2 points out of 4 for her answer to Question 7 under the Talent Screener tab.

12 On 19 June 2019, a meeting between the Ombudsman and representatives of the European Personnel Selection Office (EPSO) was organised with the purpose of gathering information regarding the scoring, inter alia, of Questions 5 and 7 of the disputed stage of the competition.

13 By application lodged at the Court Registry on 25 June 2019, the applicant brought the present action.

17 By document lodged at the Court Registry on 23 March 2020, the applicant requested that a hearing be held. The Commission did not express a view within the period prescribed as to whether there should be a hearing.

18 By decision of 12 November 2020, the Court decided of its own motion to omit the applicant’s name with regard to the public, in accordance with Article 66 of the Rules of Procedure of the General Court.

19 By separate document lodged at the Court Registry on 11 December 2020, the applicant requested that the anonymity of her name be removed. That request was granted by decision of the Court of 22 December 2020.

20 Acting upon a proposal of the Judge-Rapporteur, the Court (Eighth Chamber) decided to open the oral part of the procedure. The parties presented oral argument and answered the oral questions put to them by the Court at the hearing on 27 January 2021.

– annul the decision of the selection board rejecting her application and excluding her from the assessment centre;

23 In the reply, the applicant claims that the lodging of the defence on 1 October 2019 was out of time.

25 It follows from Article 81 of the Rules of Procedure that a defence must be lodged within two months after service of the application. Under Article 60 of those rules, that period is to be extended on account of distance by a single period of 10 days.

26 According to the first paragraph of Article 6 of the decision of the General Court of 11 July 2018 on the lodging and service of procedural documents by means of e‑Curia (OJ 2018 L 240, p. 72), procedural documents, including judgments and orders, are to be served by e‑Curia on the holders of access accounts in the cases which concern them. In accordance with the third paragraph of Article 6 of that decision, a procedural document is to be served at the time when the intended recipient (representative or assistant) requests access to that document.

27 In the present case, since the application was sent to the Commission by means of e‑Curia on 19 July 2019 and the Commission requested access to it on 22 July 2019, the period for lodging the defence expired on 2 October 2019. Consequently, by lodging the defence on 1 October 2019, the Commission complied with that time limit.

28 As a preliminary point, the applicant stated in the application that the subject matter of the proceedings consisted, in the first place, in an action for annulment, under Article 270 TFEU, of the decision of the competition selection board to exclude her from the next stage of the competition and, in the second place, an action for annulment, under Article 263 TFEU, of all the results of the Talent Screener stage of the competition.

29 In her heads of claim, the applicant seeks, first, annulment of the decision of the selection board rejecting her application and excluding her from the assessment centre. Second, she claims that the Court should review the legality of the selection procedure based on qualifications.

30 As regards the reference to Article 263 TFEU in the applicant’s account of the subject matter of the dispute, it should be noted that, aside from that reference, the applicant does not submit any claim seeking annulment of all the results of the Talent Screener stage. In any event, an action based on Article 263 TFEU would be out of time, since the results of that stage were communicated on 28 January 2019 and the present action was brought on 25 June 2019, manifestly beyond the two-month period prescribed by Article 263 TFEU. As a result, it must be held that the present action was brought solely on the basis of Article 270 TFEU.

31 In addition, as regards the second head of claim, by which the applicant asks the Court to review the legality of the selection procedure based on qualifications, it must be held that the Court has jurisdiction only to hear and determine the actions referred to in Article 256 TFEU and, therefore, does not have jurisdiction, on the basis of a single abstract statement, to conduct a general examination of the lawfulness of an administrative procedure.

32 As regards the decision the annulment of which is sought by the present action, according to settled case-law, where a person whose application for admission to a competition has been rejected seeks review of that decision on the basis of a specific provision which is binding on the administration, it is the decision taken by the selection board, after review, which constitutes the act adversely affecting that person within the meaning of Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) or, as the case may be, Article 91(1) of those regulations. The decision taken after the review therefore replaces the selection board’s original decision (see judgment of 5 September 2018, Villeneuve v Commission, T‑671/16, EU:T:2018:519, paragraph 24 and the case-law cited).

33 It follows that the present action is directed against the decision of the selection board of 22 March 2019, adopted following the request for review of the decision of the selection board of 28 January 2019, which it replaces (‘the contested decision’).

34 The applicant put forward, in the application, three pleas in law in support of her action, alleging, respectively, ‘infringement of Article 90 of the Staff Regulations’, infringement of Article 27 of the Staff Regulations and errors in the marking of her answers to Questions 1, 5 and 7 of the Talent Screener stage and, lastly, infringement of the principle of equal treatment.

35 As regards the first plea, alleging ‘infringement of Article 90 of the Staff Regulations’, it is apparent from the application and the reply that, by her line of argument, the applicant claims, in essence, that the contested decision is vitiated by an inadequate statement of reasons. In particular, the applicant submits that the selection board should, in response to her request for review, have provided her with a more extensive statement of reasons concerning the marks awarded to her as part of the assessment of her answers in the Talent Screener stage.

36 Although the applicant also claims that the contested decision is vitiated by errors concerning the marks awarded to her, it should be noted that that line of argument relates to the substantive legality of the selection board’s decision, which is examined in the context of the analysis of the second plea in law.

37 In those circumstances, the first plea must be understood as alleging breach of the obligation to state reasons.

1. The first plea in law, alleging breach of the obligation to state reasons

38 The applicant challenges the contested decision on the ground that, following her request for review, no reasoned decision was provided. According to the applicant, the contested decision did not contain a statement of reasons relating either to the points of which she was deprived or to matters in respect of which she had put forward arguments and produced evidence in her request for review. In her view, the selection board should have provided a statement of reasons relating to each of Questions 1, 5 and 7 and to each point of which she was deprived and should have acknowledged what it implicitly states. The contested decision, she submits, was drafted in general terms and mostly describes the procedural aspects of allocating the scores in the Talent Screener stage, which cannot stand as a reasoned decision.

40 As a preliminary point, it should be borne in mind that, in accordance with settled case-law, the obligation to state reasons laid down in the second paragraph of Article 25 of the Staff Regulations and, more generally, in Article 41(2)(c) of the Charter of Fundamental Rights of the European Union is intended, first, to provide the person concerned with details sufficient to allow him or her to ascertain whether the act adversely affecting him or her is well founded and whether it is appropriate to bring proceedings before the General Court and, second, to enable that court to review the legality of the act. It follows that the statement of reasons must in principle be notified to the person concerned at the same time as the decision adversely affecting him or her (see, to that effect, judgments of 26 November 1981, Michel v Parliament, 195/80, EU:C:1981:284, paragraph 22, and of 8 May 2019, Stamatopoulos v ENISA, T‑99/18, not published, EU:T:2019:305, paragraph 21 and the case-law cited).

41 In the present case, in order to assess whether the statement of reasons for the contested decision is adequate, regard must first be had to Article 6 of Annex III to the Staff Regulations, under which the proceedings of the selection board are to be secret. Observance of that secrecy precludes both disclosure of the attitudes adopted by individual members of selection boards and disclosure of any factors relating to individual or comparative assessments of candidates (judgments of 4 July 1996, Parliament v Innamorati, C‑254/95 P, EU:C:1996:276, paragraph 24, and of 27 March 2003, Martínez Páramo and Others v Commission, T‑33/00, EU:T:2003:84, paragraph 44).

42 In particular, as is clear from the case-law, having regard to the secrecy which must surround its proceedings, the selection board is not required to indicate which of the candidate’s answers were considered unsatisfactory or to explain why those answers were considered unsatisfactory (see, to that effect, order of 24 September 2008, Van Neyghem v Commission, T‑105/08 P, EU:T:2008:402, paragraphs 34 and 35 and the case-law cited).

43 In the contested decision, the selection board stated that the applicant’s score had been revised from 22 to 25 points, but that that score still did not allow her to be invited to the next stage of the competition, the minimum threshold required being 26 points. Furthermore, the selection board described the scoring method used for the Talent Screener stage, which involved assessment criteria, a marking grid and predetermined weighting factors for each question corresponding to the selection criteria set out in the competition notice, and stated that that procedure had been applied to each candidate. The selection board then stated that it had awarded points on the basis of the relevance, duration and level of the tasks and responsibilities specified in the Talent Screener tab of the applicant’s application form.

44 Lastly, in annex to the contested decision, the selection board attached a document containing the questions corresponding to the selection criteria set out in Annex II to the competition notice, the weighting factors for each question, the marks awarded to the applicant for each answer, as revised after review, the overall mark obtained and the minimum threshold required in order to be invited to the next stage of the competition.

45 Thus, in the present case, the applicant was made aware of the points awarded for her answers as regards each selection criterion, before and after her request for review, and could see that only her score for Question 1 had been revised during the review. She also received information on the procedure and the criteria used by the selection board to score her answers to the questions under the Talent Screener tab of her application form. In addition, she was well aware of her answers to Questions 1, 5 and 7.

46 Furthermore, it should be noted that, in the present case, the competition notice stated that, ‘to carry out the selection based on qualifications, the selection board will first assign each selection criterion a weighting that reflects its relative importance (1 to 3) and each of the candidate’s responses will be awarded between 0 and 4 points’, that ‘the points are multiplied by the weighting for each criterion and added up to identify those candidates whose profiles best match the duties to be performed’ and that ‘only the candidates with the highest overall marks at the selection based on qualifications will go through to the next stage’. In accordance with the case-law, the competition notice forms both the legal framework and the basis for assessment for the selection board (see judgment of 14 December 2018, UR v Commission, T‑761/17, not published, EU:T:2018:968, paragraph 65 and the case-law cited).

47 Having regard to Article 6 of Annex III to the Staff Regulations and to the wording of the competition notice, the statement of reasons given in the contested decision must be regarded as sufficient.

48 In any event, even though the selection board was not required to explain why certain answers had been considered unsatisfactory (see, to that effect, order of 24 September 2008, Van Neyghem v Commission, T‑105/08 P, EU:T:2008:402, paragraphs 34 and 35 and the case-law cited), it should be noted that, in the defence, the Commission provided additional information, going beyond communication of the marks obtained for each question, in relation to the selection board’s assessment of the applicant’s answers to the questions in the Talent Screener stage, and set out the reasons why the selection board had awarded the marks in question to Questions 1, 5 and 7 of that stage.

49 Furthermore, as regards the applicant’s argument referring to a procedure which she initiated with the Ombudsman, it must be noted that a preliminary report in the Ombudsman’s inquiry is not relevant here. Under Article 228 TFEU, the Ombudsman is empowered only to investigate and give his or her views in cases of maladministration, which cannot include infringement of a legal provision or of a general principle amenable to review by the EU Courts (see, to that effect, judgment of 31 May 2005, Gibault v Commission, T‑294/03, EU:T:2005:190, paragraph 45 and the case-law cited).

50 It follows from the foregoing that the selection board did not breach the obligation to state reasons. Accordingly, the first plea in law must be rejected.

2. The second plea in law, alleging infringement of Article 27 of the Staff Regulations and certain irregularities in the marking of Questions 1, 5 and 7 of the Talent Screener stage

51 The Commission takes the view that this plea in law is inadmissible because the applicant did not contest the competition notice within the time limits provided for in Articles 90 and 91 of the Staff Regulations. According to the Commission, this plea must be interpreted as a direct challenge to the competition notice because the applicant calls into question the legality of the Talent Screener section, as defined in that competition notice. The Commission maintains that the applicant challenges, in particular, the process of verification of the supporting documentation, as performed by the selection board prior to drawing up the reserve list, as well as the method of allocating points during this stage of the competition, which consequently, according to the applicant, led to the selection board committing a manifest error in the assessment of the applicant’s qualifications.

52 In addition, the Commission submits that, in any event, in accordance with the case-law, the applicant could challenge the legality of the competition notice beyond the three-month deadline only if a close link was established between the reasoning of the contested decision and the plea of illegality of the competition notice. In the Commission’s view, such a close link has not been established in the present case.

53 In order to assess this plea of inadmissibility, it is therefore necessary to examine whether the complaints relied on in support of the second plea in law relate directly to the competition notice. In that regard, it should be noted that the applicant has put forward five complaints in support of her second plea in law. The first complaint alleges infringement of Article 27 of the Staff Regulations by the verification of the documentation supporting the information provided in the Talent Screener tab at the end of the competition. The second complaint alleges infringement of Article 27 by reason of an alleged practice of multiplying points during the stage in question. The third, fourth and fifth complaints allege irregularities in the scoring of Questions 1, 5 and 7.

54 In the first complaint, the applicant essentially challenges a practice described in the competition notice. Verification of the supporting documents is conducted on the basis of point 6 under the heading ‘How will I be selected?’ in that competition notice, which provides that ‘after checking candidates’ supporting documents, the selection board will draw up a reserve list for each field – until the number of successful candidates sought is reached’.

55 In that regard, it should be borne in mind that, in accordance with the case-law, a candidate in a competition must not be deprived of the right to challenge all the elements, including those defined in the competition notice, comprising the justification for the individual decision concerning him or her taken on the basis of the conditions laid down in the notice, in so far as only the decision applying them affects his or her legal position individually and enables him or her to ascertain with certainty how and to what extent his or her personal interests are affected. An applicant may therefore, in the event of an action brought against subsequent measures, plead the irregularity of previous measures which are closely connected to them (see, to that effect, judgment of 5 September 2018, Villeneuve v Commission, T‑671/16, EU:T:2018:519, paragraph 54 and the case-law cited).

56 By contrast, where there is no close connection between the statement of reasons for the challenged decision and the plea alleging irregularities in the competition notice, which has not been challenged in good time, that plea must be declared inadmissible, in accordance with the mandatory rules governing time limits for bringing proceedings, which cannot be derogated from in such a case as this without offending against the principle of legal certainty (see judgment of 5 September 2018, Villeneuve v Commission, T‑671/16, EU:T:2018:519, paragraph 55 and the case-law cited).

57 In that regard, the Court has held to be inadmissible or ineffective arguments alleging the unlawfulness of the competition notice in a situation where an applicant had not demonstrated, by means of specific evidence, that, had it not been for that alleged illegality, it would have been possible for the applicant to be invited to the next stage (see, to that effect, judgments of 30 November 2005, Vanlangendonck v Commission, T‑361/03, EU:T:2005:433, paragraph 33, and of 14 December 2017, PB v Commission, T‑609/16, EU:T:2017:910, paragraph 35).

58 In the present case, it should be noted that the applicant has put forward no argument to the effect that verification of the documents would have affected her individual score. It is not apparent from the documents in the file that the refusal to grant the applicant access to the next stage is, even in part, a result of the procedure for verification of the documents.

59 In the absence of arguments clarifying the link between that complaint and the applicant’s individual situation, it must be held that that link is not sufficiently close for the first complaint of the second plea in law to be admissible and examined on its merits.

60 By her second complaint, by which she challenges the alleged practice of multiplying points for the same qualifications and experience, the applicant does not challenge the legality of the competition notice, but rather the awarding of points by the selection board. In the last three complaints, the applicant set out arguments against the way in which points were awarded for Questions 1, 5 and 7, as described in the contested decision and in the supplementary reasons given by the Commission before the Court. By those complaints, the applicant claims that the selection board acted in breach of the competition notice and went beyond its scope, that it infringed the principles of the protection of legitimate expectations and of equal treatment and that it made a manifest error of assessment. By contrast, the applicant does not dispute the legality of the competition notice.

61 Lastly, the arguments relating to the manifest error of assessment which were submitted only in the annexes to the application must be rejected as inadmissible, in accordance with the case-law which states that a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which must appear in the application. It is not for the Court to seek and identify, in the annexes, pleas in law and arguments which it might deem to constitute the basis of the action, since the annexes have a purely evidential and instrumental function (see, to that effect, judgment of 20 November 2018, Barata v Parliament, T‑854/16, not published, EU:T:2018:809, paragraph 43 and the case-law cited).

62 In the light of the foregoing, it must be held that the first complaint raised in support of the second plea is inadmissible, and that the other complaints are admissible.

(1) The second complaint, alleging a multiplication of points during the Talent Screener stage

63 By the second complaint, the applicant claims that the same qualification or professional experience should not give rise to a doubling or multiplication of points for the candidate who answered more than one question under the Talent Screener tab with the same qualification or the same professional experience. The same information should not, she argues, be counted twice in the calculation of the overall score of the assessment, which determines the threshold for access to the next stage of the competition and thus potentially eliminates candidates who have exercised the highest standard of integrity and fairness when providing their answers.

64 In this regard, the applicant observes that Questions 7 and 8, as well as Questions 1 to 5, could potentially be answered with the same academic diplomas or professional experience. The competition notice differs from the Talent Screener tab in that it does not state that the answers should not contain references to other answers given within that tab. In the reply, the applicant claims that she has become aware that other candidates who answered several questions in that tab by reference to the same professional experience obtained two or more points. She claims to provide proof of this in the form of a score sheet of an anonymous candidate, whose answers and scoring she enclosed as an annex to the reply.

65 The applicant also observes that the burden of proof lies with the Commission, but that it has failed to provide any evidence that the selection board did not engage in a practice of double scoring.

66 The Commission notes that none of the applicant’s answers makes reference to the same professional experience and, thus, the issue of possible double counting does not arise in the present case. In any event, the applicant has failed to prove that there was a practice of multiple counting. The Commission has confirmed that the selection board did not double-count the diplomas listed in reply to Question 7 and to Questions 8 or 9. Furthermore, at the hearing, the Commission stated that, in so far as the applicant seems to mean by ‘professional experience’ experience with a single employer, the number of employers was not decisive with regard to the allocation of points for candidates’ professional experience.

67 In that regard, the first paragraph of Article 27 of 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 of the Union. No posts shall be reserved for nationals of any specific Member State.’

68 It must be noted that, in accordance with settled case-law, the selection board enjoys wide discretion with regard to the procedure for and detailed content of the tests in a competition. In accordance with that case-law, the EU Courts may review the procedures for the conduct of a test only to the extent necessary to ensure that the candidates are treated equally and that the choice of candidates is objective. Similarly, the EU Courts may not review the detailed content of a test unless such content goes beyond the limits laid down in the competition notice or is not consonant with the purposes of the test or competition (see, to that effect, judgments of 8 March 1988, Sergio and Others v Commission, 64/86, 71/86 to 73/86 and 78/86, EU:C:1988:119, paragraph 22, and of 19 February 2004, Konstantopoulou v Court of Justice, T‑19/03, EU:T:2004:49, paragraph 48). That same broad discretion applies to the marking methods chosen by the selection board (see, to that effect, judgment of 19 February 2004, Konstantopoulou v Court of Justice, T‑19/03, EU:T:2004:49, paragraph 60).

69 It should be noted that the applicant criticises in general an alleged procedure of double scoring without specifying how that would be contrary to Article 27 of the Staff Regulations or how it would have affected her individual score.

70 In any event, it should be noted, in the first place, that the Commission has confirmed that the selection board did not double-count the diplomas listed in reply to Question 7 and to Questions 8 or 9. According to the Commission’s clarifications, which have not been disputed by the applicant, she would not have received more points for those questions if she had mentioned those diplomas twice, in response both to Question 7 and to Question 8.

71 In the second place, as regards awarding points for the same professional experience, the Commission stated at the hearing that the number of employers was not decisive in the assessment of candidates’ skills. By contrast, the selection board assessed the skills acquired from the experience, tasks and assignments described in the answers in relation to each selection criterion.

72 In that regard, it must be stated that a marking method which values the nature of the tasks and assignments described by the candidates in their answers instead of the number of employers does not prevent the recruitment of officials of the highest standard of ability, efficiency and integrity, in accordance with Article 27 of the Staff Regulations. It is possible that a candidate may acquire a variety of skills when working for the same employer.

73 It should also be pointed out that it is for the applicant to provide the selection board with all the information and documents which he or she considers relevant to the selection board’s consideration of his or her application (see judgment of 14 December 2017, PB v Commission, T‑609/16, EU:T:2017:910, paragraph 46 and the case-law cited).

74 In that regard, it is apparent from the documents before the Court that the candidates were informed, in the Talent Screener tab of the application form, that points would be awarded solely on the basis of the information provided by the candidates in their answers, and that references to other answers within that tab or to other parts of the application form would not be taken into account. In addition, the candidates were advised, in that tab, to provide a separate and complete answer for each question and to ensure that all parts of the question had been covered.

75 Similarly, candidates were asked to indicate, for Questions 1 to 6, whether they had ‘professional experience’ in each of the fields mentioned in those questions, respectively, and, if so, to specify for each experience the employer’s name, the duration of the experience and the fields concerned, the nature of the work and their role and responsibilities. However, the applicant answered Questions 2, 3, 4 and 6 in the negative.

76 Thus, the applicant has not shown that an alleged multiplication of points was effected by the selection board at the Talent Screener stage.

(2) The third complaint, concerning the scoring of Question 1 under the Talent Screener tab

78 In the application, the applicant claims that, regardless of the method of awarding points for the answers to similar questions, the selection board has not, in the case at hand, been consistent in the assessment of diplomas or professional qualifications.

79 In the reply she states that the marking scheme for Question 1 infringed and went beyond the competition notice because the selection board used a diversity criterion in its scoring. The wording of selection criterion number 1 and of Question 1 indicated that the experience had to be acquired ‘in one or more’ of the areas under the scope of Question 1, but an additional ‘diversity’ criterion was never mentioned. In addition, the selection board made a number of errors when scoring her answers. According to the applicant, she did give an answer showing diverse professional experience in terms of employers and tasks, in so far as she referred to two different employers in Romania and Austria for whom she undertook 20 different tax projects. However, the selection board failed to assess the answers of the other candidates by applying the same restrictive criteria for awarding a score of 4 points for Question 1.

80 In the rejoinder, the Commission states in reply that the selection board, acting within the limits of its discretionary power, decided to award one additional point to candidates who had specific experience in more than one of the areas listed in selection criterion number 1. The applicant’s experience as a tax consultant was acquired at just one tax consultancy firm, and the selection board did not award her an additional point due to the lack of diversity of employers or tasks.

81 The Commission stated at the hearing that, for the diversity point, the number of employers was not decisive, but the selection board would have taken into consideration diversity in terms of specific experience and the diversity of the tasks and skills acquired, even with a single employer.

82 In that regard, the first selection criterion for the field of taxation referred to in Annex II to the competition notice states:

‘Professional experience in the application of rules and procedures of national and/or international/EU tax law, including transfer pricing and fiscal State aid law, in particular in:

– direct taxation (income taxation, corporate taxation, dividend taxation, inheritance tax);

– indirect taxation (VAT, excise duties, environmental taxation, car taxation …)

– a university or a research body specialised in taxation or in economics of taxation

83 In the light of the broad discretion conferred on the selection board to assess candidates’ answers in relation to the selection criteria set out in Annex II to the competition notice, as well as in relation to the wording of selection criterion number 1, which refers to experience acquired in different fields of tax law, with one or more categories of employers, the Court considers that the selection board did not disregard the competition notice or commit a manifest error of assessment by valuing the diversity of the candidates’ professional experience under that first selection criterion.

84 As regards the applicant’s second argument, relating to an alleged error in the assessment of the diversity of her professional experience in the context of her answer to Question 1, it should be noted that, according to settled case-law, the selection board enjoys discretion, in assessing candidates’ previous professional experience, both as to the nature and duration of that experience and as to how closely they relate to the requirements of the post to be filled (see judgment of 14 December 2017, PB v Commission, T‑609/16, EU:T:2017:910, paragraph 44 and the case-law cited).

85 In the exercise of its jurisdiction to review legality, the Court cannot substitute its assessment of the merits and qualifications of the candidates for that of the administration where there is nothing in the file to suggest that, in assessing those merits and qualifications, the administration committed a manifest error. In relation to recruitment, it is for the unsuccessful candidate to prove, by means of specific evidence, that the administration has committed a manifest error of assessment (see judgment of 8 May 2019, Stamatopoulos v ENISA, T‑99/18, not published, EU:T:2019:305, paragraph 38 and the case-law cited).

86 In the present case, in her answer to Question 1, the applicant mentioned two experiences of work as a tax adviser performed in the same group of undertakings. In addition, the Commission confirmed at the hearing that the number of employers was not decisive in obtaining a point for diversity and that even experience with a single employer could merit a point if the nature of the experience and tasks had shown a certain diversity. However, the applicant did not indicate in her answer anything that demonstrated the existence of such diversity, in particular in relation to the various aspects of direct and indirect taxation mentioned in Question 1, which might have enabled the Court to find that the selection board had assessed that experience in a manifestly incorrect way.

87 It is appropriate, moreover, to bear in mind the case-law referred to in paragraph 73 above, according to which it is for the candidate to provide the selection board with all the information and documents which he or she considers relevant to the selection board’s consideration of his or her application.

88 It should also be added that, even if the applicant’s application had shown the alleged merits, that fact would not exclude the possibility that, in the context of consideration of the comparative merits of candidates, other candidates were considered to have greater merits (see, to that effect, judgment of 8 May 2019, Stamatopoulos v ENISA, T‑99/18, not published, EU:T:2019:305, paragraph 42 and the case-law cited).

89 Lastly, a comparison of the points awarded for the applicant’s professional experience and the points awarded to another anonymous candidate, who had demonstrated experience different from that of the applicant, solely on the basis of the answers given and the marks obtained by that candidate, is speculative in nature and excluded from judicial review, in that that would amount to asking the Court to substitute its assessment for that of the selection board.

(3) The fourth complaint, concerning the scoring of Question 5 under the Talent Screener tab

91 In the application, the applicant states that the selection board was not consistent in its assessment of diplomas or professional qualifications. In her view, it ignored the relevance, duration and level of the tasks and responsibilities which she stated for Question 5.

92 In the reply, the applicant submits that the marking scheme for that Question 5, as revealed by the Commission in its defence, constituted a breach of the competition notice and went beyond the scope of that notice. In addition, she takes the view that the selection board made a number of errors in the marking of her answer.

93 First, according to the applicant, the scoring grid is inconsistent and discriminatory in so far as only candidates with more than two years of experience received a second point for the same publications. The applicant was given one point for her publications but not an additional point, even though an additional point was awarded to candidates with such publications and more than two years of experience. Second, the grid does not indicate the points to be awarded for all the elements in the answer to Question 5, in breach of the competition notice and the principle of the protection of legitimate expectations. The applicant states that she referred to several experiences of teaching in her answer, which did not earn her any points, and that that is also an error of assessment on the part of the selection board. The applicant submits that she was deprived of 2 points out of 4 on this question.

94 In the rejoinder, the Commission explained that, according to the scoring grid for Question 5, candidates with no relevant experience and no publications did not receive any points. Candidates able to show relevant experience and point to publications received between 1 and 3 points, depending on the duration of their experience. In this case, one additional point was given to candidates whose publications concerned a practical EU-relevant issue or project. This is demonstrated by the fact that the applicant, who had less than two years’ experience in that area, also received the additional point because of the specific EU relevance of her publications.

95 In addition, the Commission states that presentations made at round tables and conferences were not regarded as relevant teaching experience. However, even if the selection board had found such experience to be relevant, the applicant’s experience would still have amounted to less than two years, and therefore, according to the scoring criteria, her score would not have changed.

96 The Commission stated at the hearing that, for Question 5, a point had been granted for a publication concerning a subject or practical project relevant to the European Union, and that the number of publications was irrelevant.

97 In that regard, point 5 of the selection criteria listed in Annex II to the competition notice concerned ‘professional experience in academic research or teaching in the field of tax law and/or economics of taxation, relevant to the nature of the duties’.

98 In her answer, the applicant, first, mentioned research and teaching experience at a university of a duration of one year and two months. Next, she stated that she had participated in conferences and seminars on 11 and 12 December 2018 and on 17 May 2018. She referred to round tables on 18 December 2017 and 4 July 2018, a presentation in a conference on 5 July 2018 and lectures at a chamber of tax consultants in September and October 2015, then in March and May 2016, and also at the premises of her employer, a private undertaking, in February 2016. She also stated that she had experience as a teaching assistant for courses during a winter semester. In addition, the applicant gave a list of publications.

99 In that connection, as regards the marking of that question, which, according to the applicant, is vitiated by discrimination in that only candidates with more than two years of experience received a second point for the same publications, it is sufficient to note that, according to the Commission’s clarifications in the rejoinder and at the hearing, a score of between 1 and 3 points was awarded on the basis of the length of experience mentioned, and only one point was granted for publications on a practical issue or project relevant to the European Union. As a result, the applicant has not adduced any evidence to support the view that the selection board treated her differently from the other candidates in the scoring of publications.

100 As regards the argument that the applicant was deprived of a point for her teaching experience, it should be noted that the applicant does not set out her arguments clearly. She appears to think that this constitutes either a breach of the competition notice and of the principle of the protection of legitimate expectations or an error in the assessment of her teaching experience. With regard to the first argument, it must be held that the applicant does not sufficiently specify the missing elements or the points of the competition notice which, she claims, were infringed, with the result that such an argument must be rejected as inadmissible (see, to that effect, judgment of 4 July 2019, Italy v Commission, T‑598/17, not published, EU:T:2019:482, paragraph 29 and the case-law cited).

101 As regards the second argument, it is sufficient to note that, in view of the nature and duration of the various training events which she mentioned in her answer, the applicant has not shown that the selection board exceeded its discretion in its assessment of the relevance or duration of her teaching experience.

102 Accordingly, the applicant’s arguments relating to the scoring of Question 5 must be rejected. The fourth complaint must therefore be rejected.

(4) The fifth complaint, concerning the scoring of Question 7 under the Talent Screener tab

103 In the application, the applicant claims that the selection board was not consistent in its assessment of diplomas or professional qualifications. In her view, the manifest error is clearly apparent from the comparative table of the university diplomas named in answer to Questions 7 and 8, submitted in the annexes to the application. In addition, she submits, the selection board ignored the relevance, duration, level of tasks and responsibilities stated for Question 7.

104 In the reply, the applicant states that the selection board’s use of the scoring grid for Question 7, as communicated by the Commission, constituted a breach of the competition notice and of the principle of the protection of legitimate expectations. In addition, the selection board went beyond the competition notice by requiring an answer mentioning two or more diplomas and, even then, assessed those diplomas in a discriminatory manner.

105 The applicant submits that the question relating to ‘a university-level diploma’ instead of ‘one or more university-level diplomas’ cannot justify a scoring grid that takes into account two or more diplomas. Such a quantitative assessment should have been explicitly mentioned in the competition notice. If Question 7 had been formulated correctly, the applicant would have answered that she had an additional diploma which she had mentioned not in the Talent Screener tab but in a different section of her application. That diploma is in addition to the diploma required to access the competition. Furthermore, the applicant observes, by way of comparison, that by answering Question 8, which is worded similarly, by reference to a single diploma, she obtained the maximum score of 4 points.

106 With regard to the Commission’s explanation that the second diploma was scored only if one of those two diplomas had been obtained in a country other than that of the diploma taken into account for admission to the competition, the applicant is of the view that such a scoring method constitutes an unjustified difference in treatment, with the result that candidates who had answered that they had two diplomas awarded in two different countries were treated more favourably than those in comparable situations who had answered that they had two diplomas awarded in one and the same Member State or country.

107 The Commission disputes those arguments put forward by the applicant and observes, in the rejoinder, that Question 8 is worded differently from Question 7, that it refers to another selection criterion and that, consequently, the marking criteria established by the selection board are different.

108 In that regard, the wording of selection criterion number 7, referred to in Annex II to the competition notice, is as follows: ‘University-level diploma in studies with specialisation in direct and/or indirect taxation, international and/or EU tax law or State aid law, in addition to the one required to access the competition’.

109 Question 7a under the Talent Screener tab, which the applicant completed in English and which was presented to the Court only in English, reads as follows:

‘Have you obtained a university-level diploma in studies with specialisation in direct and/or indirect taxation, international and/or EU tax law or State aid law, in addition to the one required to access the competition?’

110 Question 7b invites those who answered Question 7a in the affirmative to specify for each diploma (‘If so, please specify for each diploma’) the title, field, level and duration of the studies and the name of the institution which awarded the diploma.

111 In the present case, even though the wording of the beginning of Question 7a, ‘Have you obtained a … diploma …’, may potentially lead to confusion, the question must be considered as a whole (‘… in studies with specialisation in direct and/or indirect taxation, international and/or EU tax law or State aid law, in addition to the one required to access the competition’), and in conjunction with Question 7b (‘If so, please specify for each diploma …’). It must be held that the wording as a whole refers to a large number of subjects and to the possibility of a number of diplomas, with the result that the view cannot be taken that, by valuing several diplomas in its scoring, the selection board infringed the competition notice and exceeded its discretion.

112 As regards the comparison of the wording of Questions 7 and 8, it should be noted, first, that those questions are linked to the different selection criteria and may thus include different marking criteria and, second, that Question 8 asks for a diploma ‘from a law school or faculty, in addition to the one required to access the competition’. Thus, a difference in the marking of those questions does not constitute inconsistency or unequal treatment on the part of the selection board.

113 As regards the principle of the protection of legitimate expectations, it should be borne in mind that, according to settled case-law, three conditions must be satisfied in order to claim entitlement to the protection of legitimate expectations. First, precise, unconditional and consistent assurances originating from authorised and reliable sources must have been given to the person concerned by the EU authorities. Second, those assurances must be such as to give rise to a legitimate expectation on the part of the person to whom they are addressed. Third, the assurances given must comply with the applicable rules (see judgment of 12 September 2018, PH v Commission, T‑613/16, not published, EU:T:2018:529, paragraph 65 and the case-law cited).

114 The wording of the question was not drafted in such a way as to give rise to a legitimate expectation on the part of the applicant that she would obtain a maximum mark by stating one diploma in her response, in particular in the context of a stage of the competition the purpose of which is to assess and compare the qualifications of the candidates by means of scoring.

115 It should also be borne in mind that, as was stated in paragraph 74 above, the candidates’ qualifications were assessed on the basis of each individual answer, as the candidates were told they would be in the Talent Screener tab. If the applicant does in fact hold an additional and potentially relevant diploma, the fact remains that she did not mention it in her answers and that, accordingly, the selection board was not able to award her points for that diploma. Furthermore, according to the Commission’s explanations, which the applicant has not disputed, even if the applicant had mentioned the two diplomas twice in the answers to Questions 7 and 8, she would not have obtained more points.

116 In that regard, it should be borne in mind that, according to the case-law, it is for the applicant to provide the selection board with all the information and documents which he or she considers relevant to the selection board’s consideration of his or her application. In addition, the selection board is obliged to take into account only the information provided and documents submitted by candidates in support of their applications when assessing their professional experience in the light of the requirements laid down for the competition. It is under no obligation whatsoever to ask the applicant to provide additional documents or to make enquiries itself in order to ascertain whether the person concerned fulfils all of the conditions in the competition notice (see judgment of 12 December 2018, Colin v Commission, T‑614/16, not published, EU:T:2018:914, paragraphs 75 and 76 and the case-law cited).

117 So far as concerns the alleged difference in treatment between the applicant and those persons who mentioned another diploma, it is sufficient to note that, since the applicant did not mention in her answer a second diploma from the same country as the diploma on the basis of which she was admitted to the competition, such a distinction could not affect her score and was therefore not capable of adversely affecting her.

3. The third plea in law, alleging infringement of the principle of equal treatment

120 In the application, the applicant submits that the principle of equal treatment ensures that candidates with comparable qualifications are treated the same and that candidates with different qualifications are treated differently.

121 The applicant claims that the verification of supporting documentation after the adoption of the decision at the Talent Screener phase does not ensure equal treatment between candidates. She submits that there is a risk of certain candidates being excluded from the competition prior to having their documents verified, even though the verification of the documents of other candidates could have resulted in the exclusion of those candidates, thus invalidating the threshold on the basis of which those earlier candidates were excluded.

122 In addition, according to the applicant, the alleged practice of double scoring is contrary to the principle of equal treatment, since a candidate who has used the same qualification multiple times cannot be treated more favourably than another candidate with a comparable qualification mentioned just once, as a sole individual answer to a single question of the Talent Screener stage.

123 In the reply, the applicant claims that the scoring of Questions 1, 5 and 7 is also proof of infringement of the principle of equal treatment of candidates. According to the applicant, in its scoring of Question 1, the selection board took the view that the applicant’s experience did not reflect the necessary diversity, whereas it gave that point to other candidates who had experience in the same type of entity. As for Question 5, the selection board unjustifiably treated differently candidates who declared similar publications but who had experience of different durations. As regards Question 7, candidates whose answers went beyond the question and the competition notice were treated more favourably than candidates who had lawfully answered the questions strictly, as the applicant had done. In addition, the selection board unjustifiably treated candidates differently on the basis of the countries in which they obtained their diplomas.

125 According to the case-law, the principle of equal treatment, which is a general principle of EU law, requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see, to that effect, judgments of 11 September 2007, Lindorfer v Council, C‑227/04 P, EU:C:2007:490, paragraph 63, and of 5 September 2018, Villeneuve v Commission, T‑671/16, EU:T:2018:519, paragraph 118).

126 As regards the verification of documents, that argument must be rejected as inadmissible for the same reasons as those set out in paragraphs 55 to 59 above.

127 As for the alleged practice of double or multiple marking, that argument must be rejected as ineffective for the reasons established in the context of the second plea.

128 To the same effect, as regards the arguments concerning the scoring of Questions 1, 5 and 7, it should be noted that those arguments have already been examined in the context of the second plea, in paragraphs 89, 99 and 117 above. The applicant has not sufficiently invoked such circumstances which would demonstrate that the selection board treated her differently from the other candidates.

129 Furthermore, as was stated in the context of the examination of the second plea, a comparison between the marks awarded to the applicant and those awarded to an anonymous candidate, which were provided in annex to the reply, cannot prove the existence of unequal treatment, since the answers of those candidates are not the same and the reasons justifying the marks awarded to the other candidate were not disclosed.

131 It follows from all of the foregoing considerations that the action must be dismissed.

132 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, she must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

Selection criterion	Weighting per criterion (1-3) (A)	Yes/No	Points awarded (0-4) (B)	Your points per criterion (A*B)
1. Do you have professional experience in the application of rules and procedures of national and/or international/EU tax law, including transfer pricing and fiscal State aid law, in particular in: direct taxation (income taxation, corporate taxation, dividend taxation, inheritance tax); indirect taxation (VAT, excise duty, environmental taxation, car taxation …) obtained while working in or for one or more of the following? - a law firm - in a company or professional association as an in-house lawyer - a professional tax consultancy firm - a national/international taxation or competition organisation/authority - a ministry of finance/taxation - a university or a research body specialised in taxation or in economics of taxation - a judicial institution - a European Institution, Body or Agency.	3	Yes	3	9
5. Do you have professional experience in academic research or teaching in the field of tax law and/or economics of taxation, relevant to the nature of the duties?	1	Yes	2	2
7. Have you obtained a university-level diploma in studies with specialisation in direct and/or indirect taxation, international and/or EU tax law or State aid law, in addition to the one required to access the competition?	1	Yes	2	2

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Rosca v Commission (Civil service - Recruitment - Judgment) [2021] EUECJ T-434/19 (20 October 2021) URL: http://www.bailii.org/eu/cases/EUECJ/2021/T43419.html Cite as: ECLI:EU:T:2021:717, EU:T:2021:717, [2021] EUECJ T-434/19

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