OG v AED (Civil service – Members of the temporary staff - Judgment) [2022] EUECJ T-632/20 (01 June 2022)

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(Civil service – Members of the temporary staff – EDA staff – Vacancy notice – Head of Unit post – Rejection of application – Obligation to state reasons – Equal treatment – Transparency – Objectivity – Principle of sound administration – Infringement of the vacancy notice – Manifest error of assessment – Liability – Non-material harm)

European Defence Agency (EDA), represented by C. Ribeiro, acting as Agent, and by B. Wägenbaur, lawyer,

composed of H. Kanninen, President, M. Jaeger and M. Stancu (Rapporteur), Judges,

having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,

1 By her action under Article 270 TFEU, the applicant, OG, seeks, first, annulment of the decision of the European Defence Agency (EDA) of 13 December 2019 by which she was not placed on the reserve list for the position of Head of IT Unit in the Corporate Services Directorate (‘the contested decision’) and, secondly, compensation for the harm she claims to have suffered as a result of that decision.

2 The applicant is a member of the temporary staff at the European Union Agency for Cybersecurity (ENISA).

3 On 23 September 2019, the EDA published vacancy notice EDA/CSD/TA/AD11/070c (‘the vacancy notice’) for the position of Head of IT Unit in the Corporate Services Directorate with a view to recruiting a temporary agent at grade AD 11 (‘the post in question’).

4 After she submitted her application for the post in question, the applicant was invited for a written test and an interview, which took place on 3 December 2019.

5 By the contested decision of 13 December 2019, the applicant was informed that she had not been placed on the reserve list for the post in question.

6 On 16 December 2019, the applicant asked to be provided with the scores she had obtained for each interview question and in the written test.

7 By email of 18 December 2019, the applicant was informed that she had obtained the score of 79/100 in the written test. As regards the interview, without indicating the score obtained, that email gave the following details:

‘… the selection panel noted that you could have capitalised more on your professional background, as reflected in your CV. Through your answers, you demonstrated very good technical knowledge and skills, providing some relevant insights (e.g. IT audits and [handling of EU classified information systems]) but in other instances (e.g. on automation and monitoring), you could have honed in more on the focus of the specific question.

Your answers indicate that you had not familiarised yourself with the EDA context, notably its specificities compared to classic EU Agencies. The selection panel further noted that you tended to approach questions from a researcher, rather than management, perspective …’

8 On 22 December 2019, the applicant submitted comments on the assessment which had been communicated to her in the email of 18 December 2019 and repeated her request that she be sent her scores for each of the interview questions.

9 By email of 17 January 2020, the EDA informed the applicant that, unlike for the written test, the selection panel had not used a numerical point system for the interview. That email also contained details of the assessment made by the selection panel at the interview, worded as follows:

‘It should also be noted that competences such as technical skills are not narrowly assessed based on replies to individual questions but based on all relevant elements provided across the different interview replies.

The selection panel’s observation that you could have capitalised more on your professional background did not aim to suggest that you should have reviewed your career highlights; the selection panel was, indeed, familiar with your CV and shortlisted you on the strength of your application.

The selection panel’s point was that you could have used your substantial professional experience more effectively in your replies to illustrate and support your suitability for the position e.g. by matching your specific professional competences and experiences to related tasks, duties and responsibilities of the post in question or EDA requirements. On a more general note, while asking candidates to recall their CV in detail is not a very effective use of the limited time available for each interview, you were indeed given the opportunity to offer additional information at the end of the interview, if you so wished.

The selection panel also noted that you could have honed in more on the focus of the specific question. Thus, with respect to automation, you did provide examples, but did not elaborate on the benefits of automation which was a key element of the question. In your reply to the question on monitoring, you focused on auditing.

Lastly, the selection board did not state that you are a researcher but that you approached the questions during the interview from a researcher rather than a management perspective. Specifically, your answers could have benefitted from being supported by more practical, hands-on examples and your presentation (on “appreciative enquiry”) stayed – even in the presented “use case/case study” – at a rather theoretical level …’

10 On 13 March 2020, the applicant submitted a complaint under Article 168(2) of Council Decision (EU) 2016/1351 of 4 August 2016 concerning the Staff Regulations of the [EDA], and repealing Decision 2004/676/EC (OJ 2016 L 219, p. 1).

11 By decision of 13 July 2020, the Chief Executive of the EDA rejected the complaint (‘the decision rejecting the complaint’). That decision stated that the same questions had been put to all the candidates and that the selection panel had used a marking system for the interview based on the following qualitative marks: ‘insufficient’, ‘sufficient’, ‘good’, ‘very good’ and ‘excellent’. However, the qualitative marks obtained by the applicant were not specified. In addition, the decision rejecting the complaint stated that the selection panel had based its recommendations on a comparative analysis of the candidates.

– order the EDA to pay her the sum of EUR 3 000 as compensation for the non-material harm suffered;

– dismiss the action for annulment and damages as inadmissible in part and unfounded;

14 It should be pointed out that a claim for annulment formally directed against the rejection of a complaint has the effect of bringing before the Court the act against which the complaint was submitted, where that claim, as such, lacks any independent content (see, by analogy, judgment of 13 July 2018, Curto v Parliament, T‑275/17, EU:T:2018:479, paragraph 63 and the case-law cited). Since the decision rejecting the complaint has no independent content, the present claim for annulment must be regarded as being directed against the contested decision, the legality of which will be examined having regard to the statement of reasons for the decision rejecting the complaint, which is deemed to be the same as that contained in the decision against which that complaint was directed (see, to that effect, judgment of 16 January 2018, SE v Council, T‑231/17, not published, EU:T:2018:3, paragraph 22 and the case-law cited).

15 In support of the claim for annulment, the applicant relies on three pleas in law, alleging, first, infringement of the obligation to state reasons, secondly, breach of the principles of equal treatment, transparency, objectivity and sound administration and, thirdly, infringement of the vacancy notice, failure to state adequate reasons for the contested decision, errors contained in that decision and a manifest error of assessment vitiating the assessment of her qualifications for the post in question.

16 Since the second part of the third plea, relating to the failure to state adequate reasons, pertains, in essence, to the claims made in the first plea, which relates to infringement of the obligation to state reasons, it is appropriate to deal with that part in the context of the first plea.

The first plea and the second part of the third plea, alleging infringement of the obligation to state reasons

17 In the first plea, the applicant submits that the contested decision lacks a statement of reasons and, in the alternative, that it contains an inadequate statement of reasons. The applicant claims, in essence, that, despite her requests that her scores for the interview be communicated to her, the EDA did not send her those scores. She states that the general observations provided to her are devoid of any meaning or purpose without scores, which constitute the minimum information that should be communicated to candidates, particularly since those observations gave only actionable areas for improvement and were not comments intended to indicate the weaknesses in her performance. She states that she was therefore not able to ascertain whether the contested decision was well founded or assess whether it was appropriate to bring an action before the Court.

18 In the second part of the third plea, the applicant adds that, even if the interview score had been communicated to her, that would not constitute an adequate statement of reasons. Indeed, in the absence of a predetermined threshold for inclusion on the reserve list, a predetermined number of candidates to be admitted to that list and the weighting of the written test and interview in the overall assessment, the interview score is meaningless. In other words, the applicant submits that, even if the interview score had been communicated to her, she would still not have been in a position to understand why her name had not been placed on the reserve list, in the absence of any reference point. She also states that the high score she obtained in the written test shows that she was a strong candidate and therefore the obligation to state reasons was reinforced.

20 In the reply, the applicant claims that certain details contained in the defence – concerning the pre-established framework for the interview and, in particular, the selection panel’s assessment criteria, the qualitative marks allegedly awarded to the applicant for her interview and her alleged unsuitability for the post in question – are inadmissible, details which, although set out in the second and third pleas, are closely linked to the first plea. The applicant states that those details are inadmissible since they amount to supplementary reasons which were provided only at the stage of the defence.

22 As a preliminary point, it should be noted that the EDA, without formally raising an objection of inadmissibility in respect of the first plea and the second part of the third plea, nevertheless observes that the applicant raised the infringement of the obligation to state reasons only at the stage of the application, and not at the stage of the complaint.

23 In that regard, it is sufficient to note that, in accordance with settled case-law, a plea alleging that a statement of reasons for the contested decision is lacking or inadequate constitutes a plea involving a matter of public policy which the Court must examine of its own motion. The rule of correspondence between the complaint and the application does not apply to such a plea (see, to that effect, judgment of 8 September 2021, AH v Eurofound, T‑630/19, not published, EU:T:2021:538, paragraph 45 and the case-law cited).

24 The first plea and the second part of the third plea are therefore admissible.

25 As regards the merits of the applicant’s arguments concerning infringement of the obligation to state reasons, it must be borne in mind that the purpose of the requirement laid down by Article 296 TFEU is, first, to provide the person concerned with sufficient details to ascertain whether the act adversely affecting him or her is well founded and whether it is appropriate to bring proceedings before the Courts of the European Union and, secondly, to enable the latter to review the legality of the act (see, to that effect, judgment of 8 September 2021, AH v Eurofound, T‑630/19, not published, EU:T:2021:538, paragraph 75 and the case-law cited).

26 In addition, in accordance with established case-law, the authority empowered to conclude contracts of employment is bound to give a statement of reasons, at the very least when rejecting an unsuccessful candidate’s complaint against the decision rejecting his or her application or against the decision to appoint another candidate (see, by analogy, judgment of 7 February 2019, Duym v Council, T‑549/17, not published, EU:T:2019:72, paragraph 24 and the case-law cited).

27 In the present case, the contested decision contained, inter alia, the following details:

‘The competition was of a high standard. After careful review and evaluation of the candidates by the selection panel, we regret to inform you that your name has not been placed on the reserve list of suitable candidates.

Please rest assured that your qualifications, experience and competencies were given due consideration.’

28 Thus, the contested decision enabled the applicant to understand, in the context of the recruitment procedure in which she had decided to participate, that she had not been selected following the selection panel’s comparative assessment of the candidates’ performance, after she was invited to the written test and interview.

29 In addition, the emails of 18 December 2019 and 17 January 2020 contain a clear and detailed statement of reasons explaining the basis for the selection panel’s proposal not to accept the applicant’s application following the written test and interview. The applicant was informed that she had obtained the score of 79/100 in the written test and that, with regard to the interview, the selection panel had identified the deficiencies referred to in paragraphs 7 and 9 above. Furthermore, as stated in paragraph 11 above, after confirming that the selection panel had not used a numerical point system for evaluating candidates at the interview, the decision rejecting the complaint stated that the evaluation system used was based on the qualitative marks ‘insufficient’, ‘sufficient’, ‘good’, ‘very good’ and ‘excellent’ and that the same questions had been put to all candidates. In addition, that decision stated that the selection panel had based its recommendations on a comparative assessment of the candidates.

30 It follows from the foregoing that the contested decision, as supplemented by the information contained in the emails of 18 December 2019 and 17 January 2020 and in the decision rejecting the complaint, does not lack a statement of reasons.

31 Nevertheless, it is also necessary to examine whether, as the applicant claims, in the absence of communication of the qualitative marks awarded by the selection panel for the interview, the statement of reasons for that decision is inadequate.

32 In that regard, it should be noted that, admittedly, in accordance with case-law, with a view to reconciling, in a competition or, more generally, in a recruitment procedure, the obligation to state reasons with respect for the secrecy of the selection panel’s deliberations, communication of the candidate’s scores, in so far as they reflect the selection panel’s comparative assessments, constitutes an adequate statement of reasons (see judgment of 7 February 2019, Duym v Council, T‑549/17, not published, EU:T:2019:72, paragraph 39 and the case-law cited).

33 However, it should be noted that, although the applicant was not provided with her score, she received, both in the emails of 18 December 2019 and 17 January 2020 and in the decision rejecting the complaint, which refers to those emails, a clear and detailed explanation of the aspects of her answers to the questions asked during the interview which led the selection panel not to propose to place her on the reserve list for the post in question.

34 It is clear from those emails that the selection panel considered that the applicant, in essence, should have capitalised on her professional background, that she should have homed in more on the focus of certain specific questions put to her by the panel, that her answers indicated that she had not familiarised herself with the EDA context, notably its specificities compared with classic EU agencies, and that she tended to approach questions from a researcher, rather than management, perspective.

35 In addition, it should be noted that those explanations correspond to the evaluation grid which the selection panel used for the interview, since they concern, respectively, the ‘relevance of professional experience’ criterion, the ‘technical questions related to the post’ criterion, the ‘knowledge of EDA and context’ criterion and the ‘intellectual/problem solving capacity and judgment’ criterion, selection criteria which indeed result from the vacancy notice.

36 Accordingly, the applicant’s assertion that the reasoning given to her was in the form of general observations cannot be accepted.

37 It must therefore be held that, together, those reasons were sufficient in the present case, even in the absence of communication of the qualitative marks awarded by the selection panel for the interview, since the applicant was able, first, to understand the clear and detailed reasons which led that panel not to accept her application for the post in question and, secondly, to assess the legality of the contested decision and whether it was appropriate to refer it for judicial review. Thus, contrary to what the applicant claims, it was not necessary to reinforce the reasoning in the light of her score in the written test, to provide details of the weighting of the written test and the interview in the overall assessment, or to specify a predetermined threshold for inclusion on the reserve list and a predetermined number of candidates to be admitted to that list. Therefore, since the details provided at the stage of the judicial proceedings are not decisive, it is not necessary to rule on the admissibility of those details.

38 Accordingly, the statement of reasons for the contested decision is sufficient to enable the Court to review the legality of the decision.

39 It follows that the first plea and the second part of the third plea must be dismissed.

The second plea, alleging infringement of the principles of equal treatment, transparency, objectivity and sound administration

40 In the second plea, the applicant claims, in the first place, that the vacancy notice does not describe the conduct of the recruitment procedure in sufficient detail. More specifically, she submits that that notice failed to indicate whether the selection panel had to draw up a provisional list of candidates who met the requirements, whether certain criteria weighed more than others, how criteria that were considered advantageous were to be evaluated, the weighting of the written test and the interview in the overall mark and whether there was any threshold for inclusion on the reserve list for the post in question.

41 In the second place, as regards the interview, the applicant claims that the EDA has not demonstrated that its recruitment procedure was objective and impartial, in the absence of uniform and objective criteria established beforehand and applicable to all candidates, specifying in particular the basis on which marks would be awarded for the answers given to each question, for example the points that candidates would have to cover in order to receive the best score, whether certain questions were given increased weighting, the threshold above which candidates would be considered suitable, the subjects that could be covered and the competences that were to be assessed during the interview, and providing information generally on the assessment methods and the evaluation criteria for the interview.

42 In that regard, while acknowledging that the selection panel has a broader discretion in the oral tests, the applicant argues that it is precisely that broad discretion which makes it necessary to establish beforehand uniform and objective rules and criteria upon which the assessment of the candidates is to be based. She adds that, in its written pleadings, the defendant admits that there was no overall mark. Accordingly, she submits that the defendant has not demonstrated that its marking method could guarantee an objective, impartial and transparent comparison of the candidates in the written test and interview. On the contrary, such a comparison was impossible because an overall score could not be given for the interview and because ‘between’ marks could be given.

43 The applicant concludes that the rules governing the recruitment procedure, or at least the interview, lacked transparency and objectivity and did not ensure observance of the principle of sound administration or equal treatment of candidates, since the candidates were not assessed in accordance with a pre-established and uniformly applicable framework.

44 The EDA disputes the applicant’s arguments. Furthermore, it contends, as a preliminary point, that part of the second plea is inadmissible under Article 76(d) of the Rules of Procedure of the General Court, in so far as the applicant alleges breach of the principle of sound administration without explicitly elaborating on that complaint. The EDA also submits that the applicant provides no explanation as to how the alleged omissions in the vacancy notice, relating to the recruitment procedure, might have had an impact on her legal situation and that, therefore, those statements likewise do not meet the requirements of Article 76(d) of the Rules of Procedure.

45 In the reply, the applicant contends that the second plea in law as a whole and the arguments concerning the omissions in the vacancy notice relating to the recruitment procedure are admissible.

46 As regards the admissibility of the second plea, it should be borne in mind that, pursuant to Article 76(d) of the Rules of Procedure, an application of the kind referred to in Article 21 of the Statute of the Court of Justice of the European Union must contain the subject matter of the proceedings, the pleas in law and the arguments relied on. In accordance with case-law, that information must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application, even without further information. In addition, it is necessary that the basic legal and factual particulars on which the action is based be indicated coherently and intelligibly in the application itself, so as to guarantee legal certainty and sound administration of justice (judgment of 15 October 2020, Karpeta-Kovalyova v Commission, T‑249/19, not published, EU:T:2020:490, paragraph 25).

47 In the present case, it must be held that the complaints as set out in the second plea enabled the EDA to understand the applicant’s arguments and to prepare its defence, just as they enable the Court to rule on that plea.

48 It is apparent from the application that, according to the applicant, the recruitment procedure had to be set out in a sufficiently detailed manner as regards the stages of that procedure and the method of weighting, first, the selection criteria and, secondly, the written test and the interview in the overall assessment of the candidates. In addition, the applicant submits that the selection panel should have established uniform and pre-defined assessment criteria.

49 Moreover, it should be pointed out that, in the application, the applicant took care to cite the content of Article 41 of the Charter of Fundamental Rights of the European Union and stated in the context of her second plea that, according to her, the duty on the competent institution carefully and impartially to examine the aspects of the individual case concerned the principle of sound administration.

50 It follows that, as regards the second plea, the application satisfies the minimum requirements laid down in Article 76(d) of the Rules of Procedure, as interpreted by the case-law referred to in paragraph 46 above. Therefore, the plea of inadmissibility raised by the EDA in respect of that plea must be rejected.

51 As regards the merits of that plea, and in the first place the applicant’s claim that the vacancy notice does not describe the recruitment procedure in sufficient detail, it is settled case-law that the function of the vacancy notice is, first, to give those interested the most accurate information possible on the nature of the conditions of eligibility for the post to be filled, in order to enable them to decide whether they should apply for it and, secondly, to establish the legal framework within which the comparative assessment of the merits of the candidates will be carried out. The latter function implies that sufficiently precise requirements must be set out to enable that comparison to be carried out and to justify the choices made (see judgment of 8 May 2019, Stamatopoulos v ENISA, T‑99/18, not published, EU:T:2019:305, paragraph 48 and the case-law cited).

52 It is clear from the actual content of the vacancy notice that it meets those requirements.

53 First, it should be noted that, in paragraph 9, headed ‘Application procedure’, the vacancy notice describes in detail the various stages of that procedure, namely that a selection panel would be appointed, each application would be screened based on the requirements of the job profile stated in that notice and that the most suitable applicants would be called for an interview and a written test. Accordingly, contrary to the applicant’s claim, the vacancy notice did contain information relating to the conduct of the recruitment procedure.

54 Secondly, as regards matters such as information as to the greater relative weight of certain criteria, how criteria considered to be advantageous were to be evaluated, the weighting of the written test and the interview in the overall mark and whether there was any threshold for inclusion on the reserve list, it should be pointed out that those matters concern the weighting of each of the selection criteria or the method for evaluating the written or oral tests. It follows from the case-law that the fact that a vacancy notice does not contain any information concerning the weighting given to each of the selection criteria or the method for evaluating the written and oral tests does not mean that the candidates would necessarily have been assessed without account being taken of the selection criteria; rather, it shows only that, within the legal framework established by the vacancy notice, the authority empowered to conclude contracts of employment intended to allow the selection panel some discretion in the weighting to be given to each of the selection criteria and in the procedures for the written and oral tests (see, to that effect and by analogy, judgment of 11 December 2012, Trentea v FRA, F‑112/10, EU:F:2012:179, paragraph 58).

55 In the second place, as to the pre-established framework for the interview, it should be noted that, in accordance with case-law, the wide discretion conferred on the administration as regards the determination of the procedure or method of assessment to be followed in the comparative consideration of candidates is limited by the need to consider candidates’ comparative merits carefully and impartially, in the interests of the service and in accordance with the principle of equal treatment of officials. In practice, consideration of the comparative merits of candidates must be undertaken on a basis of equality, using comparable sources of information (judgment of 7 February 2019, Duym v Council, T‑549/17, not published, EU:T:2019:72, paragraph 49). In addition, a selection panel is required to ensure that its assessment of all the candidates considered in the oral tests is made under conditions of equality and objectivity (see, by analogy, judgment of 13 September 2005, Pantoulis v Commission, T‑290/03, EU:T:2005:316, paragraph 90).

56 In the present case, as regards, first, the pre-established framework for the interview, the EDA stated that qualitative marks had been given to the candidates, who had been asked the same questions. Moreover, on 12 November 2021, in its reply to a question put by the Court, in the context of a measure of organisation of procedure adopted under Article 89 of the Rules of Procedure, the EDA produced documents attesting to the existence of such a framework for the interview, in particular as regards questions prepared in advance and the candidate evaluation grid.

57 In that regard, the applicant adduces no evidence capable of calling into question the evidential value of those documents or the actual application of those documents to her application. To that extent, the evidential value of those documents and the actual application to the applicant of the pre-established framework defined by the EDA cannot be called into question. The arguments put forward by the applicant in her observations on the EDA’s reply to the questions raised in that measure of organisation of procedure, arguments which relate to the administration’s involvement in the recruitment procedure and the approval of certain questions by only two members of the selection panel, must also be rejected. The first argument is in no way substantiated and the second is unfounded, since it is apparent from the documents produced by the EDA in reply to that measure of organisation of procedure that the exchanges in question were sent to all the members of the selection panel. Furthermore, the applicant’s suspicions about possible changes in the evaluation grid are likewise not supported by evidence.

58 For the sake of completeness, it should be noted that the EDA also stated in its written pleadings before the Court that the applicant had obtained the following qualitative marks: ‘sufficient’ for two criteria, between ‘sufficient’ and ‘good’ for two criteria, ‘good’ for four criteria and ‘very good’ for one criterion.

59 It follows that, during the interviews, the selection panel followed the same criteria and evaluation methods for each candidate. Therefore, it cannot reasonably be argued that the consideration of the candidates’ comparative merits was not undertaken on a pre-defined basis of equality and using comparable sources of information.

60 Secondly, as regards the possibility of uniformly applying the pre-established framework for the interview, or, in other words, the objectivity of that framework, the applicant’s arguments cannot be sustained.

61 First, the applicant has not demonstrated that the failure to award an overall mark for the interview and the existence of ‘between’ qualitative marks made it impossible for the selection panel to compare the candidates. It is apparent from the defendant’s written pleadings and from the interview evaluation grid it has produced that the qualitative marking system in respect of each assessment criterion defined by the defendant did allow a comparison to be made, even where ‘between’ qualitative marks were awarded.

62 Secondly, as regards the applicant’s argument that, even if the qualitative marks awarded and the questions asked by the selection panel were the same for all candidates, the panel could still assess the answers to the questions in an arbitrary and unequal manner, it is sufficient to state that the applicant merely makes that argument without substantiating it or producing any evidence in support. It is clear from case-law that the subjective impartiality of the members of the selection panel is to be presumed until proven otherwise (see, to that effect, judgment of 22 November 2018, Brahma v Court of Justice of the European Union, T‑603/16, EU:T:2018:820, paragraph 147 (not published)).

63 Thus, the applicant has not shown that the selection panel lacked objectivity when comparing the candidates’ merits.

64 It follows from the foregoing that, since the applicant has not succeeded in proving breach of the principles of equal treatment, transparency, objectivity and sound administration, the second plea must be rejected.

The third plea, alleging infringement of the vacancy notice, errors in the contested decision and a manifest error of assessment

65 The third plea relied on by the applicant is, in essence, subdivided into four parts, relating, respectively, to infringement of the vacancy notice, failure to provide an adequate statement of reasons for the contested decision, errors in the contested decision and a manifest error of assessment vitiating the assessment of the applicant’s qualifications.

66 The second part of the third plea has been examined together with the first plea.

67 The applicant alleges infringement of the vacancy notice in so far as it was indicated to her that she had not sufficiently familiarised herself with the EDA context, in view of the EDA’s specificities compared with other EU agencies, even though the vacancy notice did not stipulate such a selection criterion.

69 In that regard, it should be pointed out that in exercising the discretion available to it regarding an appointment or engagement, the administration must examine carefully and impartially all the relevant parts of each application and meticulously observe the requirements laid down in the vacancy notice, thus being required to reject any candidate who does not meet those requirements. The vacancy notice constitutes a legal framework which the administration imposes on itself and to which it must adhere strictly (see judgment of 8 May 2019, Stamatopoulos v ENISA, T‑99/18, not published, EU:T:2019:305, paragraph 36 and the case-law cited).

70 In the present case, paragraph 5(b)(2) of the vacancy notice, which relates to personal essential selection criteria, states that ‘all staff must be able to fit into the [EDA]’s way of working (see para. 2)’. Paragraph 2 of that notice, headed ‘The [EDA]’s Way of Working’, sets out details relating to, inter alia, the fact that it is outward-facing and works in an integrated way, that its business processes are flexible and oriented towards achieving results, and that all staff need to be able to demonstrate certain qualities.

71 Paragraph 2 must be read as an extension of paragraph 1 of the vacancy notice, which describes the EDA’s specific background and its structure.

72 It is therefore clear from the vacancy notice, taken in its various sections, that the selection panel was also called upon to assess whether the candidates had sufficiently familiarised themselves with the EDA context. Thus, in exercising its discretion, the administration complied with the requirements set out in that notice.

74 The applicant claims, first, that the explanations communicated to her during the pre-litigation stage are vague and imprecise, in so far as they refer not to the lack of certain competences, but to the fact that she could have capitalised more on her professional background or dwelt on certain aspects of her answers to certain questions. She submits that those explanations are speculative and based on a hypothesis. Secondly, the applicant states that there is a contradiction between the EDA’s email of 17 January 2020, which specifies that the selection panel did not use a point system for the interview assessment, and the decision rejecting the complaint, which states that the panel used a qualitative marking system reflecting the score obtained during the interview.

76 As regards the contested decision, as supplemented by the emails of 18 December 2019 and 17 January 2020 and by the decision rejecting the complaint, it must be stated that, contrary to the applicant’s assertion, it is not apparent from the content of those documents in the file that the explanations for rejecting her application set out therein are speculative or based on a hypothesis. The EDA’s explanations specifically indicate what the weaknesses in the applicant’s performance were during the interview before the selection panel, in that she should have capitalised on her professional background and used her substantial professional experience more effectively in her answers to illustrate and support her suitability for the post in question, for example by matching her specific professional competences and experience to tasks, duties and responsibilities of that post or to EDA requirements.

77 As regards the alleged contradiction in the explanations for rejecting the applicant’s application, it is sufficient to note that the email of 17 January 2020 states that the selection panel did not use a point system for the interview, whereas the decision rejecting the complaint simply states that, while there was no point system, the selection panel did use a qualitative marking system. The EDA did not therefore contradict itself in the explanations given to the applicant.

– The fourth part, relating to a manifest error of assessment vitiating the assessment of the applicant’s qualifications for the post in question

79 The applicant states that the EDA made a manifest error of assessment by not placing her on the reserve list for the post in question. First of all, the applicant maintains that she fulfils all the eligibility requirements, the essential selection criteria and most of the desirable criteria set out in the vacancy notice. Next, the applicant claims that, in any event, if the selection panel considered that she had not elaborated on her professional background, as stated in the email of 17 January 2020, the panel members should have focused on certain questions with a view to forming an opinion. Lastly, the applicant states that the person selected for the post in question is [confidential]. (1)

81 In that regard, it should be borne in mind that, in view of the wide discretion enjoyed, within the legal framework laid down in the vacancy notice, by the administration in comparing the merits of candidates and in assessing the interests of the service, review by the Court must be confined to the question whether, having regard to the considerations which influenced the administration in making its assessment, the latter remained within reasonable bounds and did not use its power in a manifestly incorrect way (see judgment of 8 May 2019, Stamatopoulos v ENISA, T‑99/18, not published, EU:T:2019:305, paragraph 37 and the case-law cited).

82 Furthermore, in carrying out its review of 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 made a manifest error. In relation to recruitment, it is for the unsuccessful candidate to prove, by means of specific evidence, that the administration has made 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).

83 In the present case, it should be noted that the applicant confines herself, in essence, to restating the professional experience which she listed in her application form in order to conclude that she should have been placed on the reserve list of candidates satisfying the necessary conditions. That contention is not based on any concrete evidence, but solely on the applicant’s assessment of the merits of her application, that is to say, on her personal conviction, which cannot be regarded as constituting proof of a manifest error of assessment. It should also be pointed out, in response to the applicant’s assertion that the selection panel should, in relation to certain questions, have focused on her professional background, that, since the questions asked were the same for all candidates, the selection panel was under no obligation to focus on certain gaps in the applicant’s answers.

84 Furthermore, as regards the applicant’s argument relating to the successful candidate’s abilities, the mere fact that the applicant’s application displayed the merits alleged does not rule out that, in the consideration of the candidates’ comparative merits, the merits of other candidates may be regarded as greater (see, to that effect, judgment of 8 May 2019, Stamatopoulos v ENISA, T‑99/18, not published, EU:T:2019:305, paragraph 38 and the case-law cited). In that regard, the applicant has not adduced any evidence or prima facie evidence to show that the successful candidate’s profile was less suitable than hers. It should also be noted in that regard that, unless any possibility of career progression is to be excluded, the professional position held by a person at a given time cannot rule out that he or she may have the abilities required to perform more important duties.

85 It follows from all the foregoing that the third plea must be rejected in its entirety, as must, therefore, the claim for annulment.

86 The applicant claims that, on account of the illegality of the contested decision, she has experienced feelings of injustice, unfairness, frustration and uncertainty. In those circumstances, the applicant claims that the Court should award her the amount of EUR 3 000 as compensation for the non-material harm she has suffered.

88 In that regard, it should be borne in mind that, in a claim for damages brought by an official or other staff member, for an EU institution, body, office or agency to incur non-contractual liability for unlawful conduct, a series of conditions must be met, namely, the conduct of which the institution is accused must have been unlawful, the damage must be real and a causal connection must exist between that conduct and the damage in question. If one of those conditions is not met, the action must be dismissed in its entirety, without the need to consider the other conditions for incurring non-contractual liability (judgment of 8 May 2019, Stamatopoulos v ENISA, T‑99/18, not published, EU:T:2019:305, paragraph 55).

89 It should be noted that the claim for damages is based exclusively on the illegalities that would be found to exist if the three pleas in support of the claim for annulment were well founded. Since those pleas have been rejected, the condition that the conduct of which the institution is accused must have been unlawful is not satisfied, with the result that the claim for damages must be dismissed.

91 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 EDA.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> OG v AED (Civil service – Members of the temporary staff - Judgment) [2022] EUECJ T-632/20 (01 June 2022) URL: http://www.bailii.org/eu/cases/EUECJ/2022/T63220.html Cite as: ECLI:EU:T:2022:308, EU:T:2022:308, [2022] EUECJ T-632/20

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