Helbert v EUIPO (Civil service - Composition of the selection board - Judgment) [2021] EUECJ T-548/18 (13 January 2021)

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

Lars Helbert, residing in Alicante (Spain), represented by H. Tettenborn, lawyer,

European Union Intellectual Property Office (EUIPO), represented by A. Lukošiūtė and K. Tóth, acting as Agents, assisted by B. Wägenbaur, lawyer,

ACTION pursuant to Article 270 TFEU seeking, on the one hand, annulment, first, of the decision of 1 December 2017 of the selection board for Competition EUIPO/AD/01/17 – Administrators (AD 6) in the field of intellectual property not to place the applicant’s name on the reserve list drawn up with a view to the recruitment of administrators by EUIPO and, second, of the decision of that selection board of 7 March 2018 rejecting the applicant’s request for review in its final form following EUIPO’s decision of 8 June 2018 rejecting his complaint, and, on the other hand, compensation for the damage that the applicant claims to have suffered as a result,

composed of S. Gervasoni, President, P. Nihoul (Rapporteur) and J. Martín y Pérez de Nanclares, Judges,

having regard to the written part of the procedure and further to the hearing on 2 July 2020,

1 On 12 January 2017, the European Personnel Selection Office (EPSO) published in the Official Journal of the European Union the notice of Open Competition EUIPO/AD/01/17 – Administrators (AD 6) in the field of intellectual property (OJ 2017 C 9 A, p. 1; ‘the notice of competition’). The purpose of that competition, organised by EPSO, was to draw up a reserve list for the recruitment of administrators by the European Union Intellectual Property Office (EUIPO). A corrigendum to that notice was published in Official Journal C 315 A of 22 September 2017.

2 The notice of competition stated, under the heading ‘How will I be selected?’, that candidates who satisfied the eligibility requirements and had obtained one of the highest marks in the pre-selection based on qualifications would be invited to attend ‘EPSO’s assessment centre’ where they would be assessed, by means of a series of ‘multiple choice questions’, on their verbal, numerical and abstract reasoning skills and then, by means of an interview, an e-tray exercise, a group exercise and a written test, on eight general competencies and finally, by means of an interview, on their specific competencies in the field covered by the competition.

3 The notice of competition stated that general competencies were assessed out of 80 points, the pass mark required for those general competencies being 40 points, and that the specific competencies were assessed out of 100 points, the pass mark required for those specific competencies being 50 points.

4 Annex III to the notice of competition concerning the ‘general rules governing open competitions’ stated, in point 6.4, that candidates could request a review of any decision taken by the selection board and, in point 6.5, that candidates had the right to address an administrative complaint to the appointing authority, namely the Executive Director of EUIPO.

5 The applicant, Mr Lars Helbert, applied to take part in the competition in question. He was informed by EPSO, on 12 July 2017, that he had been invited to the assessment centre, where he took part in the tests on 11 and 12 October 2017.

6 By letter of 1 December 2017, EPSO informed the applicant that the selection board had decided not to place him on the reserve list of successful candidates in the competition (‘the initial decision of the selection board’). The reason for this was that, having obtained 99.5 points for the tests taken at the assessment centre, the applicant was not among the candidates who had obtained the highest marks. The overall mark obtained by the last candidate on the reserve list following those tests was 102 points out of 180.

7 A document entitled ‘competency passport’ was attached to EPSO’s letter of 1 December 2017. It was apparent from that document that the applicant had obtained a total of 44.5 points out of 80 on completion of the tests designed to assess his general competencies and 55 points out of 100 in the specific competencies interview, that is to say, an overall mark of 99.5 points out of 180 for all those tests.

8 On 10 December 2017, the applicant submitted a request for review to the selection board.

10 On 26 February 2018, the applicant lodged a complaint with EUIPO pursuant to Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) against the initial decision of the selection board.

11 By letter of 7 March 2018, the chairperson of the selection board informed the applicant that the selection board had reviewed the applicant’s file following his request for review and that it confirmed its initial decision (‘the decision taken after review’).

12 On 29 April 2018, the applicant, at EUIPO’s suggestion, lodged a supplement to his complaint with EUIPO against the initial decision of the selection board, which had been confirmed by the decision taken after review.

13 By decision of 8 June 2018, notified to the applicant on the same date, EUIPO rejected that complaint (‘the decision rejecting the complaint’).

14 By application lodged at the Court Registry on 18 September 2018, the applicant brought the present action.

15 By decision of the President of the General Court of 9 July 2019, taken pursuant to Article 27(1) of the Rules of Procedure of the General Court, the present case was assigned to a new Judge-Rapporteur sitting in the First Chamber.

16 By decision of the Court of 17 October 2019, taken pursuant to Article 27(5) of the Rules of Procedure, the present case was re-assigned to the Fourth Chamber.

17 Acting on a proposal from the Judge-Rapporteur, the Court decided to open the oral procedure and, by way of the measures of organisation of procedure provided for in Article 89 of the Rules of Procedure, requested the parties to lodge certain documents and put to them written questions, inviting them to respond in writing or at the hearing. The parties complied with those requests within the period prescribed.

18 The parties presented oral argument and answered the questions put to them by the Court at the hearing on 2 July 2020.

– annul the initial decision of the selection board and the decision taken after review, in its final form, following the decision rejecting the complaint;

– order EUIPO to pay him compensation for the ‘moral and immaterial’ damage suffered because of the initial decision of the selection board and the decision taken after review;

21 By his first head of claim, the applicant seeks annulment of the initial decision of the selection board and of the decision taken after review, in its final form, following the decision rejecting the complaint. The application states that the initial decision of the selection board and the decision taken after review together form the ‘contested decision’.

22 In that regard, it should be noted that, on 10 December 2017, the applicant submitted a request for review of the initial decision of the selection board, in accordance with point 6.4 of Annex III to the notice of competition. By the decision taken after review, the selection board confirmed its initial decision.

23 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 or, where applicable, Article 91(1) of those regulations (judgment of 16 May 2019, Nerantzaki v Commission, T‑813/17, not published, EU:T:2019:335, paragraph 25; see also, to that effect, order of 3 March 2017, GX v Commission, T‑556/16, not published, EU:T:2017:139, paragraph 21, and judgment of 12 February 2014, De Mendoza Asensi v Commission, F‑127/11, EU:F:2014:14, paragraph 29).

24 The decision taken after review therefore replaces the initial decision of the selection board (judgment of 16 May 2019, Nerantzaki v Commission, T‑813/17, EU:T:2019:335, paragraph 25; see also, to that effect, order of 3 March 2017, GX v Commission, T‑556/16, not published, EU:T:2017:139, paragraph 22, and judgment of 12 February 2014, De Mendoza Asensi v Commission, F‑127/11, EU:F:2014:14, paragraph 29).

25 It follows from the foregoing that the application for annulment must be interpreted as relating to the decision taken after review (‘the contested decision’).

26 In support of his claim for annulment, the applicant raises, in essence, four pleas in law alleging, respectively:

– lack of stability in the composition of the selection board during the oral tests of the competition and lack of sufficient coordination measures implemented to ensure a consistent and objective assessment, equal opportunity and equal treatment of candidates;

– breach of the obligation to carry out a comparative and objective assessment of candidates, and breach of the principles of equal treatment and equal opportunity;

27 In the first plea in law, the applicant alleges, inter alia, that there was a lack of stability in the composition of the selection board during the oral tests, in so far as all the members of the selection board did not attend all of those tests and that, instead, there were ‘selection committees’ composed of a few members only who each examined a limited number of candidates. He thus considers that he was questioned, in his specific competencies interview, by a selection committee which assessed only 20% of the candidates. According to the applicant, an objective and uniform assessment of the candidates required, at the very least, the continuous presence of a core team of examiners throughout the tests. He also alleges insufficient implementation of coordination measures to ensure consistent and objective assessment, equal opportunity and equal treatment of candidates.

28 In those circumstances, the applicant submits, there was a failure to comply with the principles of consistency of the selection board, equal opportunity and equal treatment of candidates, objectivity of assessments and points 2.4 and 3.1 of Annex III to the notice of competition.

30 In this regard, it should be noted that the EU agencies and institutions have a wide discretion with regard to the procedure for organising a competition and that, in that connection, review by the EU Courts must be limited to the extent necessary to ensure equal treatment of candidates and objectivity in the choice made between them (see, to that effect, judgment of 12 February 2014, De Mendoza Asensi v Commission, F‑127/11, EU:F:2014:14, paragraph 63).

31 In addition, the obligation to recruit officials of the highest standard of ability, efficiency and integrity means that the appointing authority and the selection boards must each ensure, when exercising their powers, that competitions take place in such a way that the principles of equal treatment of the candidates, consistent marking and objectivity of the marking are observed (see, to that effect, judgment of 12 February 2014, De Mendoza Asensi v Commission, F‑127/11, EU:F:2014:14, paragraph 64).

32 In order to ensure equal treatment of candidates, consistent marking and objectivity of the assessment, the selection board is obliged to ensure consistent application of the assessment criteria to all the candidates by ensuring, inter alia, that its composition is stable (see, to that effect, judgments of 24 September 2002, Girardot v Commission, T‑92/01, EU:T:2002:220, paragraphs 24 to 26, and of 12 February 2014, De Mendoza Asensi v Commission, F‑127/11, EU:F:2014:14, paragraph 65).

33 According to the case-law, that requirement is particularly necessary in the oral tests, such as those at issue in the present dispute, since those tests are by their nature less uniform than the written tests (see, to that effect, judgments of 10 November 2004, Vonier v Commission, T‑165/03, EU:T:2004:331, paragraph 39; of 29 September 2010, Brune v Commission, F‑5/08, EU:F:2010:111, paragraphs 38 to 41; and of 12 February 2014, De Mendoza Asensi v Commission, F‑127/11, EU:F:2014:14, paragraph 66).

34 In the present case, it follows from point 2.4 of Annex III to the notice of competition that the body responsible for organising the competition ‘consistently applies an equal opportunities policy in its selection procedures in order to ensure equal treatment of all candidates’.

35 According to point 3.1 of Annex III to the notice of competition, ‘a selection board is appointed to compare candidates and select the best ones on the basis of their competencies, aptitudes and qualifications in the light of the requirements set out in the notice of competition’, ‘selection boards are composed of officials, half nominated by the administration (HR services) and half by the staff committees’ and ‘the names of the board members are published on the EPSO website (www.eu-careers.eu)’.

36 As provided for in Decision ADM-16-60 of 23 November 2016, on the appointment of members of the selection board for the competition, as last amended by Decision ADM-16-60-Rev4 of 19 September 2017 on the appointment of members of the selection board for the competition, EUIPO set up a selection board consisting of a chairperson, a vice-chairperson, eight full members and three alternate members. The chairperson, the vice-chairperson, the eight full members and two of the three alternate members were agents of EUIPO and the third alternate member was an agent of the European Commission.

37 The assessment centre tests included, inter alia, two interviews, one on specific competencies and one designed to assess the general competencies of the candidates (‘the general competency-based interview’).

38 It is common ground between the parties that the members of the selection board were not all present at each interview. The information provided by EUIPO in its responses of 28 February 2020 and 9 April 2020 to the measures of organisation of procedure of the General Court (‘EUIPO’s response of 28 February 2020’ and ‘EUIPO’s response of 9 April 2020’) indicates that selection committees composed of two members of the selection board assessed the competencies of each of the candidates in those interviews. That was the case, inter alia, for the applicant in the specific competency-based interview.

39 In total, 196 candidates took part in the oral tests of the assessment centre comprising, for each of the candidates, on the one hand, the specific competency-based interview and, on the other, the general competency-based interview, that is to say, 392 interviews in total. Those tests took place over a period of 20 days spread over 7 weeks. They were distributed equally between two assessment centres.

40 During the 20 days dedicated to the oral tests, four selection committees, that is to say, two in each assessment centre, shared the interviews each day. In total, 80 selection committees thus assessed the candidates during the 20 days of tests. Even though a portion of those committees convened on a number of occasions during that period in an identical composition, it follows from EUIPO’s responses of 28 February 2020 and 9 April 2020 that, during that period, no less than 26 different selection committees assessed the competencies of the 196 candidates invited to those tests.

41 It also follows from EUIPO’s responses of 28 February 2020 and 9 April 2020 that no full or alternate member attended all of the interviews, the highest attendance rate being 22% and the lowest 17%. Moreover, no selection committee assessed the competencies of more than 33 candidates in all of the oral tests (that is to say, 392 interviews in total), which represents less than one tenth of the candidates. No selection committee thus attended more than seven days of oral tests or more than three consecutive days of tests. Among the three members who attended the largest number of interviews, with an attendance rate of 22% for the first and of 21.6% for the two others, only two of them questioned all the candidates, knowing that they did so in only eight interviews, which represents only 2% of the oral tests. By way of example, the selection committee which assessed the applicant in his specific competency-based interview convened only on that day and, in total, assessed only six candidates in six interviews, which represents only 1.5% of the oral tests.

42 Thus, it must be noted that, as the applicant has stated and as EUIPO has acknowledged, the composition of the selection board varied significantly during the oral tests.

(b) The impossibility of ensuring the presence of all members of the selection board at all tests

43 EUIPO maintains that, in the present case, the variation in the composition of the selection board was necessary due to the impossibility of ensuring the presence of all members of the selection board at every test.

44 In this respect, it should be recalled that, according to the case-law, the stability of the composition of the selection board must be ensured ‘so far as is possible’ (see, to that effect, judgment of 12 February 2014, De Mendoza Asensi v Commission, F‑127/11, EU:F:2014:14, paragraph 66).

45 Exceptionally, logistical problems, for example, may justify the fact that each member of the selection board is not present at each test (see, to that effect, judgments of 29 September 2010, Brune v Commission, F‑5/08, EU:F:2010:111, paragraph 41, and of 29 September 2010, Honnefelder v Commission, F‑41/08, EU:F:2010:112, paragraph 36).

46 That is the case, inter alia, where, in a competition involving numerous candidates, the organisation of oral tests gives rise to significant difficulties related, first, to the organisation of multiple tests for candidates belonging to different linguistic groups and, second, to the necessity, for the members of the selection board or, in any event, for some of them, to comply with their service requirements in cases where competitions are conducted out over a relatively long period (see, to that effect, judgment of 12 March 2008, Giannini v Commission, T‑100/04, EU:T:2008:68, paragraph 196).

47 In such circumstances, the need to ensure the continuity of the public service may justify a relaxation of the rule of stability in the composition of the selection board (see, to that effect, judgment of 13 February 1979, Martin v Commission, 24/78, EU:C:1979:37, paragraph 10).

48 In the present case, EUIPO puts forward three reasons to justify why the particular characteristics of the recruitment organised and the constraints encountered in the organisation of the competition required that there should be a relaxation of the application of the rule of stability in the composition of the selection board.

49 In the first place, EUIPO argues that it was necessary to set up different selection committees in order to take account, on the one hand, of the languages in which the interviews had to be conducted and, on the other, of the organisation of parallel interviews in two assessment centres in order to avoid a situation in which the competition would be extended over an excessive period of time.

50 In this respect, it follows from the information provided by EUIPO that, out of the 392 interviews in question, 342, that is to say, nearly 9 interviews out of 10, were conducted in English. Only 50 interviews, that is to say, barely more than 1 out of 10, were carried out in another language, namely 20 in Spanish, 18 in German, 8 in French and 4 in Italian.

51 In total, during the 20 days given over to the oral tests, the selection committees assessed candidates more than 8 times out of 10 in English and less than 2 times out of 10 in 1 of the other 4 languages. Thus, for those latter languages, it was possible for the interviews to be limited to 3 days in the first assessment centre (on 5, 12 and 19 October 2017) and to 4 days in the second (on 5, 12, 19 and 24 October 2017), while the interviews in English were carried out in the first centre over 17 days and in the second centre over 16 days.

52 It is also apparent from the table submitted by EUIPO at the hearing that the 10 members of the selection board, including full and alternate members, were able to conduct the interviews in English. Their linguistic capacities were, moreover, sufficiently extensive to enable them to attend the interviews in most of the other four languages. According to that table, those 10 members of the selection board were also able to attend the interviews in Spanish, 7 of them the interviews in French, 6 the interviews in German and 4 the interviews in Italian.

53 It follows from the foregoing that linguistic diversity cannot, by itself, justify the variation established in the composition of the selection board in paragraphs 40 and 41 above. In particular, the wide linguistic capacities of the selection board members and the very high proportion of interviews in English could not provide justification for only two selection board members assessing each candidate during the interviews, or for each selection board member questioning such a low number of candidates.

54 As regards the fact that the tests were divided up between two assessment centres in order to shorten the duration of the competition, this also cannot justify, per se, the setting up of so many different selection committees, in this case 26.

55 In the second place, EUIPO submits that different selection committees had to be put in place in order to avoid numerous conflicts of interest.

56 Asked to explain that argument, EUIPO stated, at the hearing, without being able to provide any further information, that, in the present case, the conflicts of interest which had been encountered were likely to fall into two categories, namely, on the one hand, the existence of friendly relations and, on the other, the existence of a hierarchical link between certain candidates and members of the selection board.

57 Requested once again to clarify that argument, EUIPO acknowledged, at the hearing, that it was unable to specify the conflicts of interest which had actually arisen or to provide specific examples of such conflicts.

58 In those circumstances, it is not possible to ascertain to what extent the risk of conflicts of interest was liable to require the selection board to function in the manner described in paragraphs 40 and 41 above.

59 In the third place, EUIPO refers to the impossibility, for some members of the selection board, to be sufficiently available to hold an interview with each candidate or, in any event, with a great number of them.

60 In that regard, it should be noted that the organisation of a competition forms part of the measures to be implemented by the EU agencies and institutions in order to manage the human resources made available to them.

61 In that context, the EU agencies and institutions must be able to release staff assigned to recruitment for a sufficient period of time to enable them to carry out their task, at the risk of not being able to recruit, as is required, officials or other servants of the highest standard of ability, efficiency and integrity (see paragraph 31 above).

62 Furthermore, in the event that the full members of a competition selection board are prevented from attending, they may be replaced, for the tests of some of the candidates, by alternate members in order for the selection board to complete its work within a reasonable period (see, to that effect, judgments of 13 September 2005, Pantoulis v Commission, T‑290/03, EU:T:2005:316, paragraph 78, and of 12 February 2014, De Mendoza Asensi v Commission, F‑127/11, EU:F:2014:14, paragraph 67 and the case-law cited).

63 It follows from the foregoing that the circumstances adduced by EUIPO do not justify a fragmentation of the selection board into 26 different selection committees in order to question the 196 candidates in the oral tests.

(c) The coordination put in place to ensure equality as between candidates, consistent marking and objectivity of the assessment

64 Criticised in this regard by the applicant, EUIPO maintains that the variation in the composition of the selection board was acceptable in view of the measures taken to ensure equal treatment of the candidates, consistent marking and objectivity of the assessment.

65 In this respect, it should be recalled that, according to the case-law, stability in the composition of the selection board is not a requirement in itself but a means of ensuring equal treatment of the candidates, consistent marking and objectivity of the assessment (see, to that effect, judgment of 12 February 2014, De Mendoza Asensi v Commission, F‑127/11, EU:F:2014:14, paragraph 70).

66 It cannot be excluded that equal treatment of the candidates, consistent marking and objectivity of the assessment may be obtained by means such as putting in place the coordination necessary to ensure compliance with those three principles (see, to that effect, judgment of 12 February 2014, De Mendoza Asensi v Commission, F‑127/11, EU:F:2014:14, paragraph 67).

67 The applicant submits that that was not the case here, contrary to EUIPO, which relies on the judgment of 12 February 2014, De Mendoza Asensi v Commission (F‑127/11, EU:F:2014:14).

68 It should be recalled that, in the case which gave rise to the judgment of 12 February 2014, De Mendoza Asensi v Commission (F‑127/11, EU:F:2014:14), as regards the oral tests taking place at the assessment centre, several measures were envisaged in order to overcome various types of cognitive bias generally found in examiners and thus to ensure equal treatment, consistent marking and objectivity of the assessment (paragraph 25 of that judgment).

69 In the first place, in the case which gave rise to the judgment of 12 February 2014, De Mendoza Asensi v Commission (F‑127/11, EU:F:2014:14), it was provided that the selection board had to meet:

– every two or three days, each time the marks assigned to the candidates were shared in order to carry out an assessment of the competencies of those candidates who were interviewed within that period of time;

– in order to check the consistency of the candidates’ assessments after all the tests, as the final decisions had to be taken collectively by the whole of the selection board on the basis of the results in all the tests (paragraphs 26 and 71 of that judgment).

70 In the second place, in the case which gave rise to the judgment of 12 February 2014, De Mendoza Asensi v Commission (F‑127/11, EU:F:2014:14), it was provided that account had to be taken of the measures implemented to overcome various types of cognitive bias generally found in examiners and thus to ensure consistent marking and objectivity of the assessment, among which were:

– the use of pre-structured tests which follow a pre-established methodology using pre-defined behaviour indicators;

– the presence of the chairperson of the selection board during the first few minutes of all of the tests in order to ensure proper application of the methodology;

– the carrying out of studies and analyses in order to check the consistency of marking (paragraphs 26 and 72 of that judgment).

71 It is necessary to determine whether, as EUIPO maintains, such coordination measures were implemented in the present case.

72 EUIPO maintains that, first, regular exchanges of views between the members of the selection board and, second, weekly meetings of the whole of the selection board enabled that board to discuss the performance of all candidates whose competencies had already been assessed and to carry out a comparative examination of those candidates.

73 The applicant, however, takes the view that the exchanges and meetings in question did not make possible an exchange of views concerning the relative merits of the candidates, in the absence of a common core team of examiners who had assessed a sufficiently large proportion of candidates.

74 In that regard, it follows from the judgment of 12 February 2014, De Mendoza Asensi v Commission (F‑127/11, EU:F:2014:14, paragraphs 26 and 71), that the exchanges among the selection board members which occur before, during and after the tests are particularly important for the purpose of ensuring equal treatment of candidates, consistent marking and objectivity of the assessment.

75 In the first place, EUIPO provided the attendance sheets for 19 meetings which took place before the assessment centre tests, between 9 December 2016 and 21 June 2017.

76 It should be noted that not all of the members of the selection board were present at each of the 19 meetings in question. Furthermore, no minutes of those meetings were drafted, with the result that it is impossible to know what was discussed in them. In particular, the Court is unable to verify whether it was during those meetings that it was decided how the tests were to be carried out, as in the case which gave rise to the judgment of 12 February 2014, De Mendoza Asensi v Commission (F‑127/11, EU:F:2014:14) (see paragraph 69 above). It may also be noted that, as the same meetings took place before the beginning of the assessment centre tests, they could not have enabled the selection board to examine the performance and merits of the candidates or to carry out a comparative assessment of those candidates.

77 In the second place, EUIPO relies on seven weekly meetings held during the phase of the competition organised at the assessment centre. It states that the selection board met at the end of each of the seven weeks of the oral tests, that is to say, on 15, 22 and 29 September 2017, and then on 6, 13, 20 and 26 October 2017.

78 However, the evidence provided by EUIPO does not make it possible to verify, inter alia, which members of the selection board attended the seven weekly meetings in question and what the precise purpose of those meetings was, in particular to what extent those meetings gave rise to exchanges concerning the performance of candidates and their comparative assessment.

79 First of all, while, in its response of 28 February 2020, EUIPO claims that, during the seven weekly meetings in question, the selection board convened ‘usually in its entire composition, including the Chairperson and Vice-Chairperson’, and that ‘only at times, when the full member was unavailable, was he/she replaced by the alternate who sat in the juries the given week’, in its response of 9 April 2020, it states that only the members of the selection board who had conducted the interviews during the week concerned participated in the weekly meetings, including the chairperson and the vice-chairperson of the selection board.

80 Next, contrary to what EUIPO had done for the meetings of the selection board that were held before and after the oral tests, it did not submit any attendance list concerning the seven weekly meetings in question or any other document making it possible to verify its claims. Specifically asked twice on this point in the context of the measures of organisation of procedure, EUIPO replied that such attendance lists had not been drawn up in respect of those last meetings. However, the minutes of the selection board meeting of 9 November 2017 submitted by EUIPO refer to minutes of the selection board’s meeting of 20 October 2017, that is to say, the meeting which took place at the end of the sixth week of those assessment centre tests. At the hearing, EUIPO acknowledged an inconsistency in that regard, without, however, being able to confirm whether the minutes apparently drawn up at the end of that last meeting existed or not.

81 In the third place, EUIPO forwarded the minutes of seven meetings which took place after the assessment centre tests, on 7, 8, 9, 17, 21 and 22 November 2017 as well as on 1 February 2018:

– in the meeting of 7 November 2017, EPSO presented the statistics on the assessment of the written tests and then, on its proposal, the selection board proceeded to a normalisation of marks by eliminating the differences between the marks given by different selection board members;

– in the meeting of 8 November 2017, the selection board reviewed the complaints that had been addressed to it and requested clarification on especially low marks, by listening to an explanation on quality checks carried out by EPSO;

– in the meeting of 9 November 2017, the selection board reviewed the marks of certain candidates, decided on a draft reserve list and checked the documents provided by the successful candidates in order to attest their experience in intellectual property;

– in the meetings of 17 and 21 November 2017, the members of the selection board examined the documents submitted by the candidates establishing their experience in the field of intellectual property;

– in the meeting of 22 November 2017, the selection board continued that examination and organised the continuance of the process by authorising the preparation of the reasoned report of the selection board, the preparation of a note to the Director of EPSO and presentation of those documents to the Executive Director of EUIPO;

– in its meeting of 1 February 2018, the selection board examined the 35 review requests addressed to it, and decided to confirm its initial decisions in all those cases.

82 It follows from the foregoing that the comparative examination carried out by the selection board did not relate to the marks of all the candidates but concerned the differences between the marks, the marks which had given rise to a complaint and those which, according to the sheets presented to the members of the selection board, were abnormally low.

83 Such an examination undoubtedly ensures, from a numerical perspective, a connection between the marks awarded by the examiners, but does not make it possible to establish that, as required by the judgment of 12 February 2014, De Mendoza Asensi v Commission (F‑127/11, EU:F:2014:14, paragraph 71), on which EUIPO relied, the members actually compared candidates in such a way as to ensure equality between them, consistent marking and objectivity of the assessment.

84 Moreover, EUIPO did not adduce evidence that the selection board had convened in its entire composition to adopt final decisions on the basis of the results in all the tests, as in the case which gave rise to the judgment of 12 February 2014, De Mendoza Asensi v Commission (F‑127/11, EU:F:2014:14, paragraph 26).

85 It follows from the information provided by EUIPO that a certain number of decisions had been finalised, first, during the meeting of 9 November 2017, when the results of some candidates in the assessment centre tests were revised and, second, at the selection board’s last meeting on 1 February 2018, when the requests for review regarding the initial decisions of the selection board concerning 35 candidates were examined and the selection board decided to reject them. Although all of the full and alternate members of the selection board attended those two meetings, it should be observed that the vice-chairperson did not attend the last meeting.

86 Consequently, it must be found that EUIPO has not adduced sufficient evidence to establish that regular exchanges between the members of the selection board made it possible to ensure consistent marking and objectivity of the assessment of the candidates and, therefore, to ensure that they were treated equally.

87 EUIPO submits that it relied on a pre-defined methodology and pre-defined assessment criteria.

88 When questioned on this point by the Court, EUIPO provided, in Annex F.8 to its response of 28 February 2020, a 13-page untitled document, without being able to explain, at the hearing, how that document contained the required assessment criteria.

89 The first page of the document in question, composed of two tables and five boxes, each in one of the five languages of the competition, contains:

– the list of competencies assessed in the specific competency-based interview, which are set out in, inter alia, Annexes I and II to the notice of competition concerning, respectively, the duties of an administrator and the selection criteria, and in the applicant’s competency passport;

– the scoring grid for those competencies and the weighting of each of them in the overall mark of the candidates in the specific competency-based interview;

– the scale of the assessments of the candidates’ performance during that interview (‘insufficient’, ‘satisfactory’, ‘good’, ‘strong’, ‘very strong’, ‘excellent’ and ‘outstanding’) established from that grid.

90 The 2nd to 13th pages of the document in question are tables similar to one of the two tables on the first page of that document. Those tables appear to have been used to assess candidates in their specific competency-based interviews. EUIPO has not indicated the basis on which the selection of those tables was carried out and, in particular, whether they related to candidates on the reserve list. None of the tables in question appears to relate to the applicant, since none of the overall marks listed corresponds to the mark that was awarded to him in his specific competency-based interview.

91 It follows from the foregoing that the information in Annex F.8 to EUIPO’s response of 28 February 2020 cannot be regarded as sufficient to constitute the pre-defined assessment criteria required by the judgment of 12 February 2014, De Mendoza Asensi v Commission (F‑127/11, EU:F:2014:14, paragraphs 26 and 73). In that case, in addition to the competencies to be assessed, the grid of points and the scale of assessments based on that grid, the selection board was also required to define objective criteria before the tests, which were of a qualitative nature, making it possible to apply that grid. Those criteria had to, inter alia, contain the elements expected from candidates during their performance, which members of the selection board had to take into account in order to mark the candidates, and that marking then had to be refined by a comparative assessment, taking into account the performance of the other candidates. However, in the present case, nothing in that annex or in any other part of the file makes it possible to identify such criteria, or, a fortiori, to verify that those criteria were set before the start of the tests.

92 EUIPO submits that an important role was played, in the coordination, by the chairperson and the vice-chairperson of the selection board.

93 In the first place, that coordination was ensured by reason of, first, the presence of the chairperson or the vice-chairperson of the selection board during a few minutes at the beginning of each test and, second, the daily exchanges of views between the chairperson and the vice-chairperson throughout the tests.

94 However, the applicant takes the view that the presence of the chairperson of the selection board or of its vice-chairperson in the tests was insufficient to ensure the coordination role assigned to them. The chairperson, he argues, could have assessed the candidates’ merits only indirectly, without being able to ensure consistency in the assessment and comparison of the candidates, since he was entirely dependent on the opinions of third parties and his presence during the applicant’s specific competency-based interview was too short, being in the range of five to seven minutes only. Moreover, the chairperson of the selection board and the vice-chairperson did not assess the candidates’ competencies, but only listened to the members of the selection board who questioned them. Furthermore, they did not attend the interviews at the same time but alternatively, with the result that it was impossible to ensure that they applied the same criteria when assessing the practice of the members of the selection board.

95 In this regard, it should be recalled that, in the case which gave rise to the judgment of 12 February 2014, De Mendoza Asensi v Commission (F‑127/11, EU:F:2014:14), relied on by EUIPO, the chairperson of the selection board was present during the first few minutes of each test in order to ensure that the methodology was properly applied (paragraphs 26 and 72 of that judgment).

96 In the present case, EUIPO has stated that the chairperson and the vice-chairperson of the selection board had on average attended the first 10 or 15 minutes of each interview. In addition, it explained that, as the tests were divided between two assessment centres, those two persons had shared the interviews between each of those centres.

97 It follows from those factors that the chairperson and the vice-chairperson of the selection board never attended the first minutes of the same interview together. In that regard, the organisation set in place for the competition departed from the method examined in the judgment of 12 February 2014, De Mendoza Asensi v Commission (F‑127/11, EU:F:2014:14), in which continuity in the interviews had been ensured by the presence of the same person, in that case, the chairperson of the selection board, for the first minutes of each interview.

98 According to EUIPO, continuity in the interviews was able to be ensured through daily exchanges of views, throughout the tests, between the chairperson and the vice-chairperson of the selection board, since those exchanges enabled them to harmonise the approaches between the different selection committees.

99 In order to establish that those exchanges took place, EUIPO referred, at the hearing, to the second page of Annex F.9 to its response of 28 February 2020. That document, entitled ‘IP COMP AD/01/2017 MARKING ANALYSIS FOR DATE’, with the handwritten date ‘26/9/17’ is an assessment sheet for the performance of five candidates relating to four tests, that is to say, three tests assessing general competencies and the specific competency-based interview. It appears that on that sheet a certain number of figures constituting the marks awarded to those candidates in those tests were transferred by hand. In addition, the handwritten references ‘checked’ and ‘ok’ appear in the middle of the page. A number of those figures are also highlighted in yellow. Finally, for three out of the five candidates concerned, the second column of the table entitled ‘Comments’, contains the letter ‘F’ handwritten with a yellow highlighter.

100 However, the second page of Annex F.9 to EUIPO’s response of 28 February 2020 concerns the assessment of the candidates’ competencies, as acknowledged by EUIPO at the hearing, and not the assessment of the members of the selection board. That document does not therefore make it possible to establish that there had been exchanges of views between the chairperson and the vice-chairperson of the selection board regarding the coordination of the working methods of the selection board members, and even less so that those exchanges took place on a daily basis, as claimed.

101 Additionally, there is no evidence which makes it possible to establish the impact that the exchanges in question may have had. In particular, EUIPO has not provided any explanation regarding the transmission of the results of those exchanges to the various selection committees and their implementation by those committees.

102 In the second place, EUIPO submits that Decision ADM-16-60 of 23 November 2016, designating the selection board, and the four subsequent decisions which amended it had specifically entrusted the vice-chairperson of the selection board with the task of ensuring harmonisation of standards and working methods in the context of the competition.

103 However, it must be held that the vice-chairperson of the selection board was absent from several meetings which preceded or followed the assessment centre tests, although those meetings were, according to EUIPO, a key step in the procedure designed to ensure equality as between candidates, consistent marking and objectivity of the assessment.

104 Thus, according to the attendance sheets provided in Annex F.4 to EUIPO’s response of 28 February 2020, the vice-chairperson of the selection board attended only 12 out of the 19 meetings prior to the assessment centre tests and was therefore absent from 7 of them, that is to say, more than one third of those meetings. Although EUIPO has not provided any information as to the purpose of those meetings, it is probable that they were decisive in ensuring harmonisation of working methods during the tests that followed and in preparing the members of the selection board for that purpose, which was one of the vice-chairperson’s first tasks.

105 As regards the seven meetings subsequent to the assessment centre tests, according to the minutes of those meetings, the vice-chairperson of the selection board attended five of them. By contrast, she was absent from the meeting of 21 November 2017 during which the documents provided by several candidates in order to establish their professional experience in intellectual-property matters, inter alia, were discussed. In addition, she was absent from the last meeting of the selection board, on 1 February 2018, during which the selection board decided to reject the 35 applications for review that had been filed after publication of the competition results. However, these were matters which called for particular vigilance in order to ensure that the decisions taken by the selection board were the result of the implementation of a methodology and harmonised criteria.

106 Finally, since no information has been communicated by EUIPO concerning the participants in the weekly meetings relied on (see paragraphs 78 and 80 above), the Court is unable to verify whether the chairperson or the vice-chairperson of the selection board attended all or some of those meetings.

107 In Annex F.9 to its response of 28 February 2020, EUIPO submitted a two-page document on studies and analyses that were carried out to check the consistency of the marking.

108 EUIPO explained at the hearing that the first page of the document in question, entitled ‘Assessor check list (for JSI, CBI, OP)’, contained a list of the factors concerning the conduct of the members of the selection board sitting in the interviews which the chairperson and the vice-chairperson of the selection board checked during the first minutes of their presence during those interviews, the purpose of that check being to limit the cognitive bias referred to above (see paragraphs 68 and 70 above).

109 With regard to the second page of the document in question, it concerns the assessment of the candidates’ competencies, as stated in paragraph 100 above, and not that of the members of the selection board. It cannot therefore be regarded as a study or analysis making it possible to check that the marking of those members was consistent.

110 Therefore, only the first page of the document in question is relevant for the purposes of establishing the existence of the studies and analyses carried out by the chairperson and the vice-chairperson of the selection board. It is, however, a blank document which, by itself, does not make it possible to check either the number of those studies and those analyses or whether such studies and analyses were carried out for each member of the selection board at each interview.

111 It follows from the foregoing that EUIPO has failed to establish the existence, within the meaning of the judgment of 12 February 2014, De Mendoza Asensi v Commission (F‑127/11, EU:F:2014:14, paragraphs 67 and 71 to 73), of sufficient measures of coordination such as to ensure that the selection procedure was based on equal treatment and a consistent and objective assessment of the candidates.

112 The complaint alleging, in essence, breach of the rule requiring stability in the composition of the selection board must therefore be upheld.

113 In that regard, it should be observed that, given the significance of the principles of equal treatment of the candidates, consistent marking and objectivity of the assessment, the failure on the part of the selection board to ensure stability in its composition constitutes a breach of the essential procedural requirements which should entail the annulment of the contested decision (see, to that effect, judgment of 10 November 2004, Vonier v Commission, T‑165/03, EU:T:2004:331, paragraph 39 and the case-law cited), without it being necessary to examine the other complaints put forward in support of the first plea and the other pleas raised by the applicant.

114 The applicant claims to have suffered ‘moral and immaterial’ damage caused by the unlawful conduct of the selection board and EUIPO. That damage, he argues, consists of the fact that the contested decision has placed him in a situation of continual insecurity since at least 1 December 2017, which has been a constant source of concern since then and has had a bearing on his future career in EUIPO. That decision has also cast doubt on the applicant’s skills and abilities, contrary to his reasonable expectations, and placed considerable strain on him.

116 In accordance with settled case-law, the European Union can be held liable to pay compensation if three conditions are satisfied, namely the illegality of the allegedly wrongful act committed by the institutions, bodies, offices or agencies, the actual and certain nature of the damage alleged and the existence of a causal link between the act alleged and that damage (judgments of 21 February 2008, Commission v Girardot, C‑348/06 P, EU:C:2008:107, paragraphs 52 and 54; of 12 March 2008, Giannini v Commission, T‑100/04, EU:T:2008:68, paragraph 327; and of 29 November 2018, Di Bernardo v Commission, T‑811/16, not published, EU:T:2018:859, paragraph 60).

117 Those three conditions are cumulative, with the result that the absence of any one of them is sufficient for the claim for compensation to be rejected (see, to that effect, judgments of 9 September 1999, Lucaccioni v Commission, C‑257/98 P, EU:C:1999:402, paragraph 14; of 10 November 2004, Vonier v Commission, T‑165/03, EU:T:2004:331, paragraph 78; and of 29 November 2018, Di Bernardo v Commission, T‑811/16, not published, EU:T:2018:859, paragraph 60).

118 In the present case, the applicant, satisfying the first condition, has established that the contested decision was vitiated by illegality.

119 However, even if the moral damage and the causal link may be regarded as having been established, since the applicant has neither alleged nor, a fortiori, shown that he has suffered moral damage which is separable from the illegality on which the annulment is based and cannot be compensated in full by that annulment, it must be held that annulment of the contested decision vitiated by that illegality constitutes, in itself, appropriate and, in principle, sufficient compensation for the moral damage which that decision may have occasioned (see, to that effect, judgment of 6 June 2006, Girardot v Commission, T‑10/02, EU:T:2006:148, paragraph 131).

120 With regard to the immaterial damage, it should be recalled that, according to settled case-law, in order to satisfy the requirements laid down by Article 76(d) of the Rules of Procedure, an application seeking compensation for damage caused by an EU institution, body, office or agency must state the evidence from which the conduct which the applicant alleges against the EU institution, body, office or agency can be identified and the reasons why the applicant considers that there is a causal link between the conduct and the damage which the applicant claims to have suffered, and the nature and extent of that damage (see, to that effect, judgment of 20 July 2017, ADR Center v Commission, T‑644/14, EU:T:2017:533, paragraphs 65 and 66 and the case-law cited).

121 However, it cannot be determined from the evidence adduced by the applicant how he seeks to rely on ‘immaterial’ damage distinct from the moral damage claimed. Assuming that he does seek to rely on such damage, the applicant does not provide any evidence which would make it possible to establish the existence of such damage or its extent.

122 Thus, it cannot be held, in the present case, that the second condition to be established in order to secure compensation has been satisfied.

124 It follows from all of the foregoing considerations that the action must be upheld in so far as it seeks annulment of the contested decision and that it must dismissed as to the remainder.

125 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.

126 Since EUIPO has essentially been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the applicant, in accordance with the form of order sought by the latter.

1. Annuls the decision of 7 March 2018, by which the selection board for Open Competition EUIPO/AD/01/17 refused, after review, to place Mr Lars Helbert on the reserve list for the recruitment of grade AD 6 administrators in the field of intellectual property;

3. Orders the European Union Intellectual Property Office (EUIPO) to pay the costs.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Helbert v EUIPO (Civil service - Composition of the selection board - Judgment) [2021] EUECJ T-548/18 (13 January 2021) URL: http://www.bailii.org/eu/cases/EUECJ/2021/T54818.html Cite as: ECLI:EU:T:2021:4, [2021] EUECJ T-548/18, EU:T:2021:4

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