HC v Commission (Civil service - Recruitment - Obligation to state reasons - Judgment) [2021] EUECJ T-804/19 (01 December 2021)

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(Civil service – Recruitment – Notice of competition – Open competition EPSO/AD/363/18 – Decision not to admit the applicant to the next stage of the competition – Obligation to state reasons – Manifest error of assessment – Plea of illegality – Equal treatment – Proportionality – Right to be heard – Principle of sound administration – Language rules for the competition – Discrimination based on language – Liability)

European Commission, represented by M. Brauhoff, T. Lilamand and D. Milanowska, acting as Agents,

ACTION pursuant to Article 270 TFEU for the annulment of, first, the notice of competition EPSO/AD/363/18 of 11 October 2018 organised for the purpose of drawing up two reserve lists from which the Commission is to recruit administrators (at grade AD 7) in the fields of customs and taxation, secondly, the decision of the selection board for that competition not to include the applicant’s name on the list of individuals invited to the assessment centre, thirdly, the decision of that selection board rejecting the applicant’s request for a review, fourthly, the Commission’s decision of 20 August 2019 dismissing the applicant’s claim under Article 90(2) of the Staff Regulations of Officials of the European Union and, fifthly, the list of candidates invited to the next stage of the competition, and for compensation for the damage allegedly suffered by the applicant as a result thereof,

composed of J. Svenningsen, President, T. Pynnä and J. Laitenberger (Rapporteur), Judges,

having regard to the written part of the procedure and further to the hearing on 7 July 2021,

1 On 11 October 2018, the European Personnel Selection Office (EPSO) published in the Official Journal of the European Union the notice of open competition EPSO/AD/363/18 – Administrators (AD 7) in the following fields: 1. Customs, 2. Taxation (OJ 2018 C 368 A, p. 1, ‘the notice of competition’). The purpose of that competition, organised by EPSO, was to draw up two reserve lists from which the European Commission would recruit administrators (at grade AD 7) in the fields of customs and taxation.

2 The applicant, HC, applied to take part in the competition, in the field of customs.

3 By letter of 18 December 2018, the applicant was informed by EPSO that his application fulfilled the conditions for admission and that he was admitted to the next stage of the competition, in which selection would be based on qualifications (‘the Talent Screener’).

4 On 28 January 2019, the applicant was informed, via his EPSO account, of the selection board’s decision not to admit him to the stage of the competition following the Talent Screener, namely the tests known as the ‘assessment centre’ (‘the first contested decision’). The applicant was thus informed that the selection board had carefully considered the answers he had given to the questions in the Talent Screener and had awarded him 27 points, which was not a high enough score for him to be invited to the next stage of the competition, at the assessment centre, since the minimum score required for admission to the tests at the assessment centre had been set at 33 points.

5 By email of 29 January 2019, the applicant requested a review of the selection board’s decision.

6 By letter of 21 March 2019, EPSO rejected the request for review, informing the applicant that the selection board had confirmed its decision not to invite him to the assessment centre (‘the second contested decision’).

7 By email of 18 April 2019, the applicant lodged a complaint under Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), which was rejected by decision of the Director of EPSO of 20 August 2019 (‘the third contested decision’).

8 By application lodged at the Registry of the General Court on 20 November 2019, the applicant brought the present action.

9 By a separate document lodged at the Court Registry on 20 November 2019, the applicant applied, pursuant to Article 66 of the Rules of Procedure of the General Court, for anonymity. By decision of 2 March 2020, the General Court (Eighth Chamber) granted that application.

– ‘declare Article 90 of the Staff Regulations invalid and inapplicable in the present proceedings under Article 277 TFEU’;

– annul the entirety of the ‘draft list of [candidates] selected to take part in the aforesaid competition’;

– order the Commission to pay the applicant the sum of EUR 50 000 by way of compensation for the harm suffered;

12 In the context of the measures of organisation of procedure provided for in Article 89 of the Rules of Procedure, on a proposal from the Judge-Rapporteur, the Court put written questions to the parties, who replied within the prescribed period.

13 The parties presented oral argument and answered oral questions put by the Court at the hearing on 7 July 2021.

14 First and foremost, it must be noted that the applicant claims, in the form of order sought, that the Court should declare Article 90 of the Staff Regulations invalid and inapplicable in the present proceedings under Article 277 TFEU.

15 As regards the question whether that claim may be interpreted as a plea of illegality in the context of the claim for annulment of the notice of competition and the entire ‘draft list of [candidates] selected to take part in the aforesaid competition’, it should be recalled that, under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, which is applicable to the procedure before the General Court in accordance with the first paragraph of Article 53 thereof, and Article 76(d) of the Rules of Procedure, all applications must contain the subject matter of the proceedings, the pleas in law and arguments relied on and a summary of those pleas in law. That summary must nevertheless be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any other supporting information. Accordingly, it is necessary, in order for an action to be admissible, that the basic legal and factual particulars relied on be indicated coherently and intelligibly in the application itself, even if only in summary form (judgment of 2 April 2020, Barata v Parliament, T‑81/18, not published, EU:T:2020:137, paragraph 33).

16 In that regard, it must be noted that the reason why the applicant considers that Article 90 of the Staff Regulations should be declared unlawful is clearly set out in the application. Thus, the applicant maintains that the complaint procedure laid down in that article infringes Article 41(2) of the Charter of Fundamental Rights of the European Union, in so far as it does not allow him to comment on the draft decision rejecting the complaint before its adoption.

17 It must be observed, in that regard, that the applicant has not in any way specified, in the application whether the claim that the Court should ‘declare Article 90 of the Staff Regulation invalid and inapplicable in the present proceedings’ was raised in the context of the claims for annulment of the notice of competition and of the ‘draft list of [candidates] selected to take part in the aforesaid competition’.

18 Consequently, taking account of what is set out in paragraph 16 above, that claim must be interpreted as a plea of illegality in the context of the claims for annulment of the first, second and third contested decisions and will therefore be examined at a later stage of the analysis.

19 According to settled case-law, the time limit of three months for lodging a complaint against an act adversely affecting the complainant, laid down in Article 90 of those regulations, is a matter of public policy. It is not subject to the discretion of the parties or the Court, since it was established in order to ensure that legal positions are clear and certain and that there is legal certainty. It is therefore for the EU Courts to ascertain, of their own motion, whether that time limit has been observed. Even where an institution deals with the substance of an administrative complaint that is out of time and therefore inadmissible, that can neither have the effect of derogating from the system of mandatory time limits laid down by Articles 90 and 91 of the Staff Regulations nor of depriving the administration of the option of raising, at the stage of court proceedings, a plea of inadmissibility based on the fact that the complaint was out of time, nor a fortiori of relieving the General Court of the obligation to ascertain, of its own motion if need be, that the time limits under the Staff Regulations have been complied with (see, to that effect, judgment of 7 September 2005, Krahl v Commission, T‑358/03, EU:T:2005:301, paragraphs 35 and 36 and the case-law cited).

20 In the present case, it must be observed that, in accordance with Article 90(2) of the Staff Regulations, the applicant had three months from the date of publication of the notice of competition in the Official Journal, on 11 October 2018, to lodge an administrative complaint, that is to say, until 11 January 2019. Since that complaint was lodged on 18 April 2019, it must be held that the complaint is out of time in so far as it concerns the notice of competition and that, therefore, the claim for annulment must be rejected as inadmissible.

21 Moreover, the applicant himself acknowledged that he had no interest in seeking the annulment of the notice of competition.

22 It must be noted that, while it is true that the applicant challenges certain provisions of the notice of competition by means of pleas of illegality which will be analysed below, he does not seek, by his action, to have the competition annulled in its entirety. He alleges, rather, irregularities occurring in the course of a competition, some of which originated in the wording of the notice of competition.

23 It follows from all the foregoing that the claim for annulment of the notice of competition must be rejected as inadmissible.

B. The claim for annulment of the first, second and third contested decisions

24 It should be recalled that, according to case-law, where a candidate in a competition seeks review of a decision taken by a selection board, it is the decision taken by the latter after a review of the candidate’s situation that constitutes the act adversely affecting him, within the meaning of Article 90(2) or, where applicable, Article 91(1) of the Staff Regulations (judgment of 5 September 2018, Villeneuve v Commission, T‑671/16, EU:T:2018:519, paragraph 24; 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). It follows that the second contested decision replaced the first contested decision and constitutes the act adversely affecting the applicant.

25 As regards the third contested decision, it should be noted that, according to settled case-law, claims for annulment formally directed against a decision rejecting a complaint have the effect, where that decision lacks any independent content, of bringing before the Court the act against which the complaint was submitted (see, to that effect, judgment of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 8).

26 In the present case, the third contested decision has no independent content in relation to the second contested decision, the statement of reasons for which it merely clarifies. The present claim for annulment must therefore be regarded as being directed against the second contested decision, even though, in the context of the examination of the lawfulness of that decision, the statement of reasons set out in the third contested decision must be taken into account, as it is deemed to cover the statement of reasons in the second contested decision (see, to that effect, judgment of 9 December 2009, Commission v Birkhoff, T‑377/08 P, EU:T:2009:485, paragraphs 58 and 59).

27 It follows from the foregoing that the claim for annulment must be regarded as relating to the second contested decision.

28 The applicant raises four pleas in law, alleging (i) infringement of the obligation to state reasons, manifest errors of assessment, illegality of Annex II to the notice of competition, infringement of the principle of equal treatment and infringement of the principle of proportionality, (ii) infringement of the right to be heard, illegality of Article 90(2) of the Staff Regulations and infringement of the principle of sound administration, (iii) infringement of the rules governing language arrangements for the competition and (iv) illegality of the Talent Screener.

(a) The first plea in law, alleging infringement of the obligation to state reasons, manifest errors of assessment, illegality of Annex II to the notice of competition, breach of the principle of equal treatment and breach of the principle of proportionality

(1) The first part of the first plea in law, alleging breach of the obligation to state reasons

30 The applicant claims that the obligation to state reasons has not been fulfilled.

31 Thus, he maintains that the selection board, in its review decision, did not give a precise account of the reasons justifying the ‘rejection’ of his experience.

32 He asserts in particular that the selection board was required to explain why it had followed a ‘strict’ approach when assessing his answers to the Talent Screener.

34 It should be noted, in the first place, that a number of the arguments put forward by the applicant are in fact intended to challenge the substance of the second contested decision and, in particular, the selection board’s assessment of his professional experience and qualifications. It must be noted that the obligation to state reasons for decisions constitutes an essential procedural requirement which must be distinguished from the question of the merits of those reasons, which concern the substantive legality of the contested measure (see, to that effect, judgments of 7 March 2002, Italy v Commission, C‑310/99, EU:C:2002:143, paragraph 48, and of 17 September 2015, Ricoh Belgium v Council, T‑691/13, not published, EU:T:2015:641, paragraph 32).

35 Accordingly, the applicant’s arguments which relate to the substance of the contested decision will be examined in the context of other parts of the first plea in law.

36 With regard to the applicant’s arguments that concern the statement of reasons in the contested decision, it should be noted that, in accordance with the second paragraph of Article 25 of the Staff Regulations, any decision adversely affecting an official is to state the grounds on which it is based.

37 It should be noted, in addition, that, in accordance with settled case-law, the purpose of the obligation to state reasons, laid down in the second paragraph of Article 25 of the Staff Regulations, is, first, to provide the person concerned with sufficient details to allow him or her to ascertain whether or not the decision is well founded and, secondly, to make it possible for the decision to be the subject of judicial review (see, to that effect, judgment of 19 January 2017, Commission v Frieberger and Vallin, T‑232/16 P, not published, EU:T:2017:15, paragraph 40 and the case-law cited).

38 That said, the statement of reasons for a measure does not have to be exhaustive and the administration is not required to adopt a position on all the arguments mentioned (see, to that effect, judgment of 12 May 2016, Zuffa v EUIPO (ULTIMATE FIGHTING CHAMPIONSHIP), T‑590/14, not published, EU:T:2016:295, paragraph 38).

39 As far as concerns decisions taken by a selection board in a competition, the obligation to state reasons must also be reconciled with observance of the secrecy surrounding the proceedings of selection boards by virtue of Article 6 of Annex III to the Staff Regulations (see judgment of 4 July 1996, Parliament v Innamorati, C‑254/95 P, EU:C:1996:276, paragraph 24 and the case-law cited).

40 In view of the need to reconcile the obligation to state the reasons on which a decision adversely affecting a person is based and observance of the secrecy surrounding the proceedings of selection boards, communication of the scores obtained in the various tests constitutes an adequate statement of the reasons on which the selection board’s decisions are based (judgments of 4 July 1996, Parliament v Innamorati, C‑254/95 P, EU:C:1996:276, paragraph 31, and of 27 March 2003, Martínez Páramo and Others v Commission, T‑33/00, EU:T:2003:84, paragraph 50).

41 In the present case, the applicant received his marks by means of a message published on his EPSO account on 28 January 2019, and the communication of the minimum score required for admission to the next stage of the competition. He also received, as an attachment to that message, a detailed marking grid showing the points he obtained on the basis of his answers for each Talent Screener selection criterion and the corresponding weightings set by the selection board prior to the assessment. Therefore, in the light of the case-law cited in paragraph 40 above, such a statement of reasons must be regarded as sufficient.

42 In addition, in the third contested decision, EPSO provided the applicant with information relating to the selection board’s use of the evaluation criteria applied in his case and set out the reasons which led the selection board to award the marks in question, that is to say, information which went well beyond mere communication of those marks.

43 In his action, the applicant does not explain how that information is insufficient in the light of the requirements of the abovementioned case-law.

44 In particular, the application, which refers to information relating to the selection board’s reasoning provided by EPSO in the third contested decision, shows that the applicant understood the selection board’s reasoning, although he disputes it.

45 It follows from the above that the first part of the first plea in law must be rejected as unfounded.

(2) The second part of the first plea in law, alleging manifest errors of assessment

46 The applicant claims that the selection board committed several manifest errors of assessment when it assessed the applicant’s answers to a number of questions in the Talent Screener.

47 The applicant claims that the selection board committed a manifest error of assessment by not awarding him any points for his answers to question 1 of the Talent Screener, which was intended to assess candidates’ professional experience in drafting legislation, rules and procedures in the fields covered by the competition in question, including customs matters. He claims in particular in that regard that, when he was assigned to the European Union Border Assistance Mission between Moldova and Ukraine (‘EUBAM’), he was responsible for drawing up guidelines and proposed amendments to the Moldovan Customs Code. In his reply to a question put by the Court in the context of a measure of organisation of procedure, the applicant stated that, although they do not have legally binding force, the guidelines are recognised as being important measures concerning interpretation and application of EU customs rules and procedures.

49 As a preliminary point, as the Commission rightly points out, the applicant is confusing the eligibility stage, where the selection board checks whether the candidates have the necessary experience enabling them to take part in the competition, and the Talent Screener stage, where the selection board makes an initial selection of candidates on the basis of a more specific examination. Contrary to what the applicant claims, the selection board took into account the fact that he had six years of appropriate professional experience, which enabled him to be admitted to the first stage of the competition, namely the Talent Screener.

50 According to the wording of question 1 of the Talent Screener, candidates were explicitly expected to indicate whether they had professional experience in drafting ‘legislation, rules and procedures as regards trade/commercial policy related measures or direct/indirect taxation’.

51 The Commission stated that, according to the marking scheme established by the selection board, it had to take into account the relevance, duration and diversity of the professional experience described by the candidates.

52 It must be noted that no manifest error of assessment was made in awarding the applicant no points for his answer, since the selection board considered that his experience, as described in his answer to question 1b, did not include the drafting of legislation, rules and procedures but rather ‘implementation and advisory activities’ as is apparent from the third contested decision.

53 First of all, it must be pointed out that the fact of distinguishing professional experience relating to the drafting of legislation, rules and procedures, on the one hand, from professional experience relating to implementation and advisory activities, on the other, does not in itself constitute a manifest error of assessment. On the contrary, the drafting of provisions which are binding and intended to be applied generally differs from their application or advisory activity in relation to them. It is therefore necessary to examine whether or not the applicant’s answer to question 1b actually referred to professional experience relating to the drafting of legislation, rules and procedures.

54 With regard, first, to the first point of the applicant’s answer to question 1b, the applicant’s experience was described as follows:

‘In two different stages (2013/2016) of EUBAM action plans, I have analysed the issue, drafted final report of the two units which I was working for (Analytical and operational support [and] Operation quality control cell) and sent for further proceedings by Mission Management (Output: Official recommendation to Moldovan Customs Authorities) …’

55 It should be noted that it is not apparent from that description that the applicant drafted ‘legislation, rules and procedures’.

56 In addition, the following elements were also apparent from the first paragraph of the applicant’s answer to question 1b:

‘My key role was to process information also from the field, scrutinize and analyse legislation (both national and EU best practice) and propose feasible solutions in terms of amendments to partners’ primary legislation.’

57 Here again, it must be stated that it is not apparent from that sentence that the applicant himself drafted any ‘legislation, rules and procedures’. As presented, that professional experience is more akin to an analytical activity. While it is true that the information refers to legislation, rules and procedures, it is also the case that it is presented rather as an activity concerning the provision of advice to external entities. Moreover, it is not apparent from that information which specific provisions were drafted or, at the very least, drawn up in draft form by the applicant.

58 With regard, first, to the second point of the applicant’s answer to question 1b, the applicant’s experience was described as follows:

‘… holding managerial position I have reviewed and approved (therefore analysed and studied relevant provisions) experts’ reports on amendments proposals in the national partner service legislation to approximate EU a[c]quis and best practices:

a) on clearance procedures for vessels and yachts applied at Odessa and Illich[i]vsk sea ports …;

b) analysis of deficiencies detected in the chain of controls at the ferry terminal of lllichivsk port in case of cigarette smuggling with recommendations of amending local provisions …;

c) UA legislation relating to the physical examinations of goods in Odessa port …. The reported analysis concluded with recommendation to Ukrainian Cabinet of ministers …;

d) Analysis of the customs control and clearance of foreign-going vessels …Therefore, the Fie[ld] Office Odesa asked the EUBAM competent unit to recommend UA State fiscal service partners at a central level to revise the relevant provisions included in the abovementioned Resolution.’

59 It must be noted that that professional experience does not cover the concept of ‘drafting’ referred to in the notice of competition. The presentation of that experience covers, in essence, an activity relating to ‘analysis’ and ‘approval’ of reports.

60 Moreover, those documents were described by the applicant as ‘expert reports on proposed amendments’ to national legislation. In that regard, the selection board was entitled to take the view, without making a manifest error of assessment, that the analysis and examination of such reports on proposals for amendments to legislation do not amount to the drafting of ‘legislation, rules and procedures’. There is a difference between the identification of problems concerning legislation, rules and procedures and the task of advising in order to solve those problems, on the one hand, and the actual drafting of amended or new provisions on the subject, on the other. As presented by the applicant, his professional experience is more akin here to giving advice on behalf of the countries concerned than to drafting, in the strict sense, specific and detailed provisions.

61 With regard, first, to the third point of the applicant’s answer to question 1b, the applicant’s experience was described as follows:

‘Drafting of Guideline For The Organisation And Coordination Of Law Enforcement International Operations (providing the Moldovan Customs Authorities of an initial “vademecum”, on how to run operations as member of International Organizations (WCO, SELEC etc.).’

62 In that regard, as the applicant stated in his reply to a question put by the Court in the context of a measure of organisation of procedure, it is clear that ‘EUBAM promotes border control, customs and trade norms and practices that meet European Union standards, and serve the needs of its two partner countries. [Moldova and Ukraine]’ and that ‘although EUBAM’s support/advisory role confers on it certain privileges, it does not have executive powers’.

63 It is therefore apparent that, according to the applicant, the role of EUBAM is not to lay down ‘legislation, rules and procedures’ but to ‘promote’ the adoption of rules by Ukraine and Moldova in the context of ‘support/advisory’ tasks.

64 Furthermore, in his reply to the Court’s question, the applicant states that the guidelines are not, in general, ‘binding’ and that they are a tool for interpreting pre-existing rules. It may be considered that the question at issue in the Talent Screener was intended to assess whether the candidate in question had drafted ‘original’ texts of a ‘binding’ nature or which had, at the very least, more ‘prescriptive’ content than the mere interpretation of existing rules or procedures.

65 The applicant’s argument does not therefore call into question the selection board’s assessment that the applicant’s experience did not consist of drafting ‘legislation, rules and procedures’, but rather of advice or implementation in connection with such provisions.

66 The applicant also states in his action that he drafted a ‘recommendation’, which he describes as ‘a draft of amendments of the Moldovan customs code in the duty free shops sector, in comparative analysis with the EU legislation’. However, as the Commission submits, it must be stated that the description which he gives of his work differs from the terms used in his answer to question 1b of the Talent Screener.

67 In the present case, the selection board was required to carry out its assessment of the candidates’ applications, at the Talent Screener stage, using solely the information provided in that section, as stated in point 4 of the section entitled ‘How will I be selected?’ of the notice of competition.

68 That means that the comparative analysis of the candidates’ answers had to be carried out solely on the basis of the information referred to in the Talent Screener section, without using any additional information. As the Commission rightly pointed out at the hearing, it was therefore important for the applicant to draft his answer to question 1, and more particularly to question 1b, of the Talent Screener carefully, giving all the relevant details capable of substantiating his own experience in drafting ‘legislation, rules and procedures’, which he failed to do.

69 Similarly, as regards the claim that the applicant was responsible throughout his career for monitoring, proposing and enforcing customs legislation, it is sufficient to note that such experience does not appear with sufficient precision in his answer to the question at issue, with the result that the selection board was not in a position to assess its relevance.

70 In the light of the foregoing, the selection board made no manifest error of assessment in its evaluation of the applicant’s answers to question 1 of the Talent Screener.

71 The first ground of complaint in the second part of the first plea in law must therefore be rejected.

72 The applicant maintains that the selection board committed a manifest error of assessment by not awarding him any points for his answer to question 7 of the Talent Screener, which was intended to assess professional experience acquired in the field of academic research or teaching. He submits in that regard that he has given several training courses, in particular in the field of accounting and finance, and that he drew up several reports in the course of his professional activity.

74 It must be noted that question 7 of the Talent Screener concerned professional experience in academic research or teaching in the field of customs or tax law or economics. According to the marking scheme established by the selection board, the elements that it had to consider when assessing the answers to that question included the relevance and duration of the work experience described, and whether it also included publications.

75 In answer to that question, the applicant referred to the following experience:

‘Training specialists on courses of “accounting and finance issues” (training activities lasting 2/3 months each, organised in Trieste[,] Italy – for three academic years (i.e. 2002 to 2005) at “the professional training centre Opera Villaggio del Fanciullo”, Via di Conconello 16 34151 – Trieste, I have [taught] for secondary schooled-aged pupils accounting and administration and international business, in three months session (in a year) organised course of the school.

Delivering of trainings to partner service in the framework of the EUBAM on customs-related topics (19/20 July 2012, ATA carnet seminar for the benefit of Moldovan and Ukraine Customs Service officers from the Briceni Customs house and Dnistr Customs post – approx 70 participants).’

76 It should be observed that only the training given to customs officers fell within the scope of the question. However, its duration, described as two days, was below the threshold of one year necessary to obtain one point for the question.

77 On the basis of the information provided by the applicant, it must be noted that the selection board concluded, without committing any manifest error of assessment, that his experience was insufficiently relevant to the field of activity covered by the selection criteria for question 7. The selection board considered that his experience was largely irrelevant since it focused on delivering training, rather than on academic research or teaching and, moreover, the total duration of that experience fell below the minimum duration required for the award of points in accordance with the marking scheme previously established by the selection board.

78 In addition, the applicant claims that he ‘progressed in his career, extending the nature of responsibilities, conducting research and reports for Italian Ministry and EUBAM’. However, it must be held that even such a clarification does not explain how he acquired experience in ‘academic research’ or ‘teaching’.

79 In particular, experience consisting of ‘drawing up reports’ in the course of his professional activity is not akin to ‘academic research’.

80 In the light of the foregoing, the selection board did not make any manifest error of assessment in its evaluation of the applicant’s answers to question 7 of the Talent Screener.

81 The second ground of complaint in the second part of the first plea in law must therefore be rejected.

82 The applicant claims that the selection board committed a manifest error of assessment by not awarding him any points for his answer to question 6b of the Talent Screener, which was intended to evaluate the criterion of obtaining a university-level diploma in studies with specialisation, in addition to the one giving access to the competition, in one of the fields covered by that competition. He submits in that regard that he holds three diplomas which relate to the fields referred to in the notice of competition.

84 Question 6 of the Talent Screener concerned possession of a university-level diploma in studies with specialisation in customs or tax law, business management or economics, in addition to the one giving access to the competition. According to the marking system established by the selection board, before the applications were assessed, the relevance, level and number of additional degrees were among the elements to be taken into consideration by the selection board when assessing the answers to that question.

85 The diploma on the basis of which the applicant gained access to the competition is a master’s degree in economics obtained in 1997 in Trieste.

86 In question 6b of the Talent Screener, the applicant noted the following additional qualifications:

‘10/2004 – 7/2005 – Master in accounting, administration and finance – Main body of auditors and accountants of Udine – Italy “Post Master’s degree doctorate in accounting, administration and finance. School of preparation for the state examination to join the National Logbook of Advisors and Accountants”;

12/2002 – 01/2003 Master in Legislation of European Community – High School of Public Administration in Rome – CEIDA Italy’

87 On the basis of the answer given above, the selection board, according to the Commission, concluded that beyond the degree giving access to the competition, the applicant had no additional relevant degree meeting the specifications of that question. Therefore, the selection board awarded no points.

88 As regards the first of the two qualifications referred to in the applicant’s reply, it should be noted that it is a qualification issued by a professional body.

89 In that regard, in his replies to the questions put by the Court, the applicant merely asserted that that qualification was equivalent to a university degree within the meaning of the notice of competition, referring to the Italian decree establishing the association of chartered accountants and certified accountants, but did not identify precisely the provision that would confer on that qualification a level equivalent to that of a university degree.

90 Even supposing that the Italian legislation recognises in respect of the contested qualification a level equivalent to that of a university degree, the applicant’s assertion that such a diploma ‘can be considered as specialisation in the field of customs and taxation’ cannot be accepted.

91 In order to examine the subject matter of the diploma at issue, the selection board had to exercise its discretion as to the content of the diploma and in that regard was entitled to take into consideration, in particular, the specialisation and the courses followed (see, to that effect, judgment of 11 July 2006, Tas v Commission, F‑12/05, EU:F:2006:68, paragraph 44).

92 On that point, the evidence submitted to the Court by the applicant does not make it possible to establish clearly that it is a specialised course in the field of customs or taxation. It is apparent in particular from the list of courses followed by the applicant that, of the 46 lessons mentioned, only 8 referred to tax law and none concerned the field of customs.

93 In those circumstances, the selection board was entitled, without committing a manifest error of assessment, not to award any points in respect of that diploma.

94 As regards the second diploma referred to in the applicant’s answer, namely a master’s degree in ‘Legislation of European Community’, it must be held that that diploma does not relate to customs or tax legislation, business management or economics. In any event, the applicant’s answer to question 6b of the Talent Screener did not contain any information concerning the fact that that diploma in ‘Legislation of European Community’ covered matters relating to customs or tax law and, if that were the case, the percentage of the programme devoted to those subjects. The selection board therefore did not commit any manifest error of assessment in finding that no points should be awarded to it in that regard.

95 ‘Legislation of European Community’ may, by definition, relate to any matter in respect of which the European Union has legislative powers, including, but not limited to, customs and taxation. According to the literal and logical interpretation of his qualification, a diploma in ‘Legislation of European Community’ is not therefore a diploma with a specialisation in customs or tax law.

96 In addition, the applicant states that his master’s degree in economics from the University of Trieste was not mentioned in his answer in the Talent Screener, but appears in the ‘section related to his educational background’. He considers that he would have been awarded points on that basis if the selection board had taken into consideration other sections of his application.

97 However, it should be noted that the notice of competition clearly states, in point 4 under the heading ‘How will I be selected?’ that candidates should include all relevant information in the Talent Screener answers even if they were already included in other sections of the application form.

98 In any event, in the present case, the applicant’s first qualification could not be taken into account because candidates were expressly requested in that question to indicate a diploma ‘in addition to the one giving access to the competition’, and it is not disputed that the applicant’s master’s degree in economics was the one that gave him access to the competition. He could not therefore receive any points on that basis.

99 In the light of the foregoing, the selection board made no manifest error of assessment in its evaluation of the applicant’s answers to question 6 of the Talent Screener.

100 The third ground of complaint and, accordingly, the second part of the first plea in law in its entirety must therefore be rejected, without it being necessary to examine the requests for measures of organisation of procedure and measures of inquiry made by the applicant in the reply.

(3) The third part of the first plea in law, alleging that Annex II to the notice of competition is unlawful

101 By the third part of the first plea in law, the applicant raises a plea of illegality in respect of point 1.1 of Annex II to the notice of competition and consequently in respect of that annex in its entirety.

102 By way of an initial ground of complaint, the applicant argues that it is clear from point 1.1 that it de facto only concerns activities and work which can be performed by individuals working for the Commission, on account of the exclusive nature of European competences in those areas, the effect of which is to place at a disadvantage candidates who have professional experience in the customs authorities of the Member States of the European Union.

103 Thus, the applicant considers that only persons who have acquired substantial professional experience in the Commission’s Directorate-General for Taxation and Customs Union or the Directorate-General for Trade have the technical experience required for the drafting of specific legal acts corresponding to the criterion of ‘drafting’ in the notice of competition. The applicant submits that the customs authorities of the Member States do not, as a general rule, draft customs legislation, which falls within the competence of the national parliaments.

104 According to the applicant, the reference to ‘national instructions’ is also devoid of purpose as EU customs law has direct effect in the Member States and therefore many customs authorities do not issue national instructions.

105 The applicant claims that the practical and objective effect of the above is to favour those that have already worked at the European Commission or in EU Institutions for a significant period of time, thereby undermining the nature of the competition at issue as an ‘open competition’.

106 By a second ground of complaint, the applicant argues that Annex II to the notice of competition is unlawful, as regards point 1.1 thereof, in that it unduly discriminates against individuals who have worked in the field of customs in the private sector or for other international organisations or States outside the European Union.

107 The applicant maintains that he has an interest in the annulment of those provisions since they are directly connected to his professional experience’s being considered insufficient.

109 In that regard, it must be borne in mind that the applicant is entitled to rely on irregularities occurring in the course of the competition, even if the origin of those irregularities may be found in the wording of the competition notice, in an action brought against a subsequent individual decision, such as the contested decision (see, to that effect, judgment of 14 December 2017, PB v Commission, T‑609/16, EU:T:2017:910, paragraphs 26 and 27 and the case-law cited).

110 As regards that point, the evidence put forward by the applicant cannot substantiate the claims to the effect that only candidates who had already worked for the Commission were able to satisfy the conditions referred to in point 1.1 of Annex II to the notice of competition. While it is true that prior work experience at the Commission was capable of satisfying the criteria referred to in that paragraph, it has not been shown that other professional experience could not also satisfy those criteria. As regards, more particularly, the argument that the customs authorities of the Member States do not, as a general rule, draft customs legislation, which falls within the competence of national parliaments, it is sufficient to point out that, as a general rule, national authorities are involved, at the very least, in the preparation of legislative or regulatory work, for example by presenting drafts or providing detailed and specific comments, and that they may also be directly involved in the drafting of procedures, so that some of their agents may be involved in legislation, rules or procedures. Similarly, as regards the argument alleging unjustified discrimination against persons who have worked in the customs field for the private sector or other international organisations or States outside the European Union, it should be noted that it is quite possible for such entities to submit proposals or opinions containing proposals for legislative or regulatory texts and that the professional experience of some of their employees may also satisfy the criteria laid down in point 1.1 of Annex II to the notice of competition.

(4) The fourth part of the first plea in law, alleging infringement of the principle of equal treatment

112 The applicant considers that the selection board did not assess his application and that of another candidate, namely Mr X, in a uniform manner.

113 According to the applicant, although, both the applicant and Mr X indicated in fields 1a and 1b of the Talent Screener that they had carried out exactly same activities, namely delivering official recommendations to the Ukrainian and Moldovan Border Agencies within the framework of EUBAM, the applicant asserts that he received 0 points, while Mr X received 9 points for that criterion.

114 In addition, the applicant maintains that Mr X did not comply with the instructions referred to in question 1b of the Talent Screener, since, according to the applicant, he gave too general a description of the activities carried out and did not provide the specific information required by EPSO with regard to that point, which was not the case for the applicant, who provided the required information in a precise manner.

115 The applicant also submits that Mr X’s qualifications were not assessed correctly, on the basis, for example, of a comparison with his own.

116 According to the applicant, the advice given to the Moldovan and Ukraine customs and border guards’ representatives – within the mandate and scope of EUBAM – were not activities falling within the scope of ‘drafting legislation’, and nor did they resemble the act of drafting of national instructions, rules and procedures. The applicant maintains that they merely concerned advice seeking to compare best practices in specific fields of expertise between the EU legislature and those of Moldova and Ukraine. The applicant submits that those activities, performed by EU experts, did not require the Moldovan or Ukrainian authorities to amend their national provisions, since the advice given was merely a way to compare already existing provisions in force. On the other hand, the applicant claims that the recommendations that he drafted sought to amend Ukrainian and Moldovan primary and secondary legislation relating to customs and borders, subject to the prior approval of the Ukrainian and Moldovan national authorities.

118 According to settled case-law, an applicant cannot plead in his or her own cause an unlawful or incorrect act committed in favour of another person in order to obtain the same benefit for him or herself. Incorrect application of the wording of the notice of competition whereby other candidates might have been improperly admitted to the competition does not constitute an infringement of the principle of equal treatment on which a candidate excluded may rely in order to seek annulment of the selection board’s decision to terminate his or her participation in the competition (see, to that effect, judgment of 3 March 1994, Cortes Jimenez and Others v Commission, T‑82/92, EU:T:1994:24, paragraph 43 and the case-law cited).

119 Observance of the principle of equal treatment must be reconciled with the principle of legality. No person may, in support of his claim, rely on an unlawful act committed in favour of another. Such an approach would be tantamount to affirming the principle of ‘equal treatment in unlawfulness’ (see judgments of 4 July 1985, Williams v Court of Auditors, 134/84, EU:C:1985:297, paragraph 14 and the case-law cited; of 16 October 2019, Palo v Commission, T‑432/18, EU:T:2019:749, paragraph 38 and the case-law cited; and of 21 February 2008, Skoulidi v Commission, F‑4/07, EU:F:2008:22, paragraph 81 and the case-law cited).

120 Thus, even supposing the selection board had, as the applicant claims, made manifest errors of assessment in evaluating the answers given by Mr X to question 1 of the Talent Screener, it follows from the case-law cited above that the applicant was not justified in relying, in support of his claim, on the unlawfulness of that assessment.

121 In any event, it appears that the answers given by the applicant and Mr X to question 1 of the Talent Screener are not identical and that, in the exercise of its broad discretion, the selection board was entitled to take the view that the answers given by Mr X deserved more points than those given by the applicant. In that regard, it should be noted that the evaluation of the answers is based not on whether or not they are succinct but on the accuracy of the information provided. Furthermore, succinct but accurate information may result in a more positive assessment than information that is less succinct but also less accurate. Thus, the selection board was entitled to take the view that, on the basis of his reply, Mr X had personally drafted recommendations and that, in view of the legal content of those recommendations, they fell within the scope of ‘legislation, rules and procedures (including national instructions)’ in the context of the competition, whereas it was not clear from the applicant’s answer that he had personally drafted similar recommendations.

122 It must be stated that the applicant seeks to call into question the result of the selection board’s assessment of the abilities of the candidates. Such assessments cannot be reviewed by the EU Courts unless the rules which govern the proceedings of the selection board have clearly been infringed (see judgment of 15 July 1993, Camara Alloisio and Others v Commission, T‑17/90, T‑28/91 and T‑17/92, EU:T:1993:69, paragraph 90 and the case-law cited). Since the applicant has not adduced any evidence to call into question that the way in which the selection board differentiated his answer from that of Mr X was justified, it must be held that no clear infringement of the rules governing the proceedings of the selection board has been demonstrated in the present case.

(5) The fifth part of the first plea in law, alleging breach of the principle of proportionality

124 In the alternative, the applicant claims that the principle of proportionality was breached in so far as he maintains that he received the second contested decision following a delay, that is to say, on 21 March 2019, while, in his view, the review of his application was straightforward and the adverse consequences for him were significant.

126 First of all, it should be noted that the applicant submitted his request for review on 29 January 2019 and received the second contested decision on 21 March 2019, that is to say, less than two months later. In that regard, he does not explain how that period is unlawful or unreasonable.

127 Furthermore, the applicant does not explain to what extent the allegedly late receipt of the second contested decision affects its legality.

128 It follows from the foregoing that the third part of the first plea in law must be rejected and, accordingly, the first plea in law in its entirety.

(b) The second plea in law, alleging infringement of the right to be heard, illegality of Article 90(2) of the Staff Regulations and breach of the principle of sound administration

(1) The first part of the second plea in law, alleging infringement of the right to be heard

130 The applicant submits that the selection board should have informed him of its intention to eliminate him from the competition and should have given him an opportunity to comment before that unfavourable decision was taken. He also submits that he should have been allowed to comment before the selection board adopted its decision in response to his application for a review and before EPSO rejected his administrative complaint.

133 As noted above, the action must be regarded as relating to the second contested decision. It must therefore be ascertained whether that decision was adopted in breach of the applicant’s right to be heard.

134 It should be noted that the purpose of the review procedure is to allow candidates the opportunity to challenge the initial exclusion decision by stating their observations and arguments on the matter.

135 In the present case, the applicant submitted a request for review, within the applicable time limit, of the first contested decision. That request was then examined by the selection board and the applicant subsequently received a reply on 21 March 2019, which constitutes the second contested decision.

136 It follows that the applicant did therefore indeed enjoy the right to be heard before the adoption of the second contested decision.

137 The first part of the second plea in law is therefore unfounded and must therefore be rejected.

(2) The second part of the second plea in law, alleging infringement of Article 90(2) of the Staff Regulations

138 The applicant raises a plea of illegality in respect of Article 90(2) of the Staff Regulations.

139 Thus, he claims that that article, if it were to be interpreted as authorising the appointing authority to dismiss complaints without first affording the complainant the right to submit comments, infringes the right to be heard enshrined in Article 41 of the Charter of Fundamental Rights.

141 As noted above, the claim for annulment must be regarded as having been brought against the second contested decision. The plea of illegality raised by the applicant, if upheld, cannot call that decision into question in so far as Article 90(2) of the Staff Regulations does not relate to the selection board’s review of a previous decision but to the administrative complaint which may be brought against a decision such as the second contested decision. The plea of illegality must therefore be rejected as ineffective.

142 The applicant was, in any event, by means of his complaint, in a position in which he could effectively make known his views. Accordingly, the plea of illegality raised by the applicant must be dismissed as unfounded (see, to that effect, judgment of 2 April 2020, Barata v Parliament, T‑81/18, not published, EU:T:2020:137, paragraph 108).

(3) The third part of the second plea in law, alleging infringement of the principle of sound administration

144 The applicant also claims that the review of the answers he provided should not have been carried out by the selection board, since that was the body which awarded the marks which he disputes. In his view, such a re-examination ‘calls into question the [principles of] independence and good administration’.

146 According to point 4.2.2 of the general rules governing open competitions reproduced in Annex III to the notice of competition, requests for review are examined by ‘the body which took the contested decision (either the selection board or EPSO)’ and according to Article 7(2) (b) of Annex III to the Staff Regulations, which sets out EPSO’s tasks, at the request of an EU institution, EPSO is to provide technical support for internal competitions organised by that institution. It follows from a combined reading of those provisions that where the decision which is the subject of the request for review was adopted by the selection board, it is the board, as the author of the contested decision, which is competent to examine and adjudicate on that request (see, to that effect, judgment of 9 July 2020, Commission v HM, C‑70/19 P, not published, EU:C:2020:544, paragraphs 76 to 78).

147 It should be noted that decisions taken by the selection board, which adjudicates in complete independence, cannot be amended by the appointing authority (judgment of 26 February 1981, Authié v Commission, 34/80, EU:C:1981:57, paragraph 7).

148 In that context, the purpose of the review procedure is therefore to require the sole competent authority to amend its decision to reconsider that decision in the light of any objections raised by the unsuccessful candidate. Such an optional means of obtaining redress, which is pursued prior to bringing proceedings before the EU Courts, cannot be regarded as being contrary to the principle of sound administration.

149 It is consequently necessary to reject the third part of the second plea in law, and therefore the second plea in law in its entirety.

150 By the third plea in law, the applicant asserts that the notice of competition was unlawful in that it required candidates to choose a second language from a limited range of options. According to the applicant, the following provisions were infringed: Articles 1 to 4 of Regulation No 1 of 15 April 1958 determining the languages to be used by the European Economic Community (OJ, English Special Edition, Series I 1952-1958, p. 59), as amended by Council Regulation (EU) No 517/2013 of 13 May 2013 adapting certain regulations and decisions in the fields of free movement of goods, freedom of movement for persons, company law, competition policy, agriculture, food safety, veterinary and phytosanitary policy, transport policy, energy, taxation, statistics, trans-European networks, judiciary and fundamental rights, justice, freedom and security, environment, customs union, external relations, foreign, security and defence policy and institutions, by reason of the accession of the Republic of Croatia (OJ 2013 L 158, p. 1), Article 1d and Article 28 of the Staff Regulations and Article 1(1)(f) of Annex III thereto.

151 The applicant also argues that he should have been allowed to upload onto EPSO’s website the information concerning his professional experience and qualifications in his mother tongue, which is Italian.

153 Before examining whether the third plea in law is well founded, it should be assessed whether it is admissible.

154 It must be noted that, although an applicant is entitled to lodge a direct action, within the prescribed period, against a notice of competition where it constitutes a decision by the appointing authority which adversely affects him or her within the meaning of Articles 90 and 91 of the Staff Regulations, he or she is not barred from bringing an action directed against the decision not to admit him or her to the competition, or accordingly, to the various stages, solely on the grounds that he or she did not challenge the notice of competition in good time (see, to that effect, judgments of 16 September 1993, Noonan v Commission, T‑60/92, EU:T:1993:74, paragraph 21, and of 31 January 2006, Giulietti v Commission, T‑293/03, EU:T:2006:37, paragraphs 39 and 40). A candidate in a competition must not be deprived of the right to challenge all the elements, including those defined in the notice of competition, comprising the justification for the individual decision concerning him or her taken on the basis of the conditions laid down in the notice, inasmuch as only the decision applying them affects his or her legal position individually and enables him or her to ascertain with certainty how and to what extent his personal interests are affected (see, to that effect, judgments of 16 September 1993, Noonan v Commission, T‑60/92, EU:T:1993:74, paragraph 23, and of 31 January 2006, Giulietti v Commission, T‑293/03, EU:T:2006:37, paragraph 41). As long as applicants’ applications have not been rejected by the selection board, they cannot be sure whether they have an interest in bringing proceedings against the competition notice, so that they cannot be criticised for not having contested the competition notice within the time limits provided for in Articles 90 and 91 of the Staff Regulations. An applicant may therefore, in the event of an action against subsequent acts, plead the irregularity of previous acts that are closely connected with them (see, to that effect, judgment of 15 September 2017, Commission v FE, T‑734/15 P, EU:T:2017:612, paragraph 115).

155 However, where there is no close connection between the statement of reasons for the challenged decision and the plea alleging irregularities in the notice of competition, which has not been challenged in good time, that plea must be declared inadmissible, in accordance with the mandatory rules governing time limits for bringing proceedings, which cannot be derogated from in such a case as this without offending against the principle of legal certainty (see, to that effect, judgments of 11 March 1986, Adams and Others v Commission, 294/84, EU:C:1986:112, paragraph 17; of 16 September 1993, Noonan v Commission, T‑60/92, EU:T:1993:74, paragraph 27; and of 31 January 2006, Giulietti v Commission, T‑293/03, EU:T:2006:37, paragraph 42).

156 In the light of all of those considerations, it must be determined whether, in the present case, there is a close connection between the statement of reasons in the second contested decision and the third plea in law, alleging the unlawfulness of the language rules of the competition.

157 In that regard, it must be recalled that the section of the competition notice entitled ‘Am I eligible to apply?’ contained, under the heading ‘Specific conditions: languages’ an eligibility requirement, for language 1, for a minimum level of C1 in one of the 24 official EU languages, and, for language 2, a minimum level of B2 in English or French, with a requirement that language 2 be different from language 1. Furthermore, in the same section, it was stated that ‘Language 2 must be English or French’. It was also stated that, while knowledge of additional languages could be an advantage, most Commission departments in customs and taxation have recourse to English or French for analytical work, internal communication as well as communication with external stakeholders, publications and reports, legislation, or economic papers, as mentioned under ‘What tasks can I expect to perform?’ and in Annex I. According to the notice of competition, a satisfactory knowledge of English or French was therefore essential and, consequently, a successful candidate not having a satisfactory knowledge of English or French could not have been immediately operational.

158 In the present case, as has already been found in a similar case (judgment of 14 December 2017, PB v Commission, T‑609/16, EU:T:2017:910, paragraphs 31 to 38), in which a candidate in an open competition, after failing the Talent Screener test, had raised, in his action, a plea of illegality in respect of the language rules in the notice of that competition, it must be held that the second contested decision is in no way based on factors connected with the language rules of the competition, but only on the insufficient number of marks attributed to the answers given by the applicant in the Talent Screener.

159 It is not apparent from any of the documents in the file that the rejection of the applicant’s application is the result, even in part, of any inadequacy in his command of English, which he chose from among the two abovementioned languages in order to draft his application form, in particular the Talent Screener, and that he indicated that his skill level concerning the ability to write was ‘C1 Proficient user’.

160 First, the applicant does not claim that he had difficulty in completing his application form in English, or that the fact that he only obtained a mark of 27 points was due to constraints in writing in that language. He merely submits that, as a general rule, a candidate should be able to choose his or her second language from all the official languages of the European Union, that it has not been established that a customs official would necessarily need to be able to work in English or French and that candidates whose mother tongue and second language are neither English nor French are discriminated against and disadvantaged in comparison with candidates whose mother tongue is English or French. However, he does not specify how, in his view, in the present case, the use of English to complete his application form penalised him. The applicant merely claims that the selection board’s assessments were negatively influenced by the obligation to complete his application in English.

161 Secondly, it should be observed that what is at issue in the present case is not the linguistic presentation of the answers to the Talent Screener but rather the content of those answers. In other words, if the answers had been given not in English but in another language, they would not in any event have given rise to a different assessment by the selection board. The fact that the selection board did not award points to the answers to certain questions, and more particularly to the answers to questions 1, 6 and 7, is linked to a lack of relevant information in those answers and not to problems of clarity in the written expression or linguistic understanding.

162 It should also be noted that the applicant’s situation in the present case was different from that of the applicant in the case which gave rise to the judgment of 9 June 2021, Calhau Correia de Paiva v Commission (T‑202/17, under appeal, EU:T:2021:323), which was referred to at the hearing.

163 First, it must be pointed out that the two cases concern the exclusion of a candidate at different stages of a competition. In the present case, the applicant had not been admitted to the assessment centre tests, whereas, in the case which gave rise to the judgment of 9 June 2021, Calhau Correia de Paiva v Commission (T‑202/17, under appeal, EU:T:2021:323), the applicant had been excluded at the end of the assessment centre tests. It should be noted that candidates’ linguistic abilities may have a different impact on the evaluation of assessment centre tests and on that of the Talent Screener. For example, during the assessment centre tests, candidates in principle have a short preparation time to answer the questions put to them, so that they may not have the time and tools necessary to check the linguistic quality of their answers. By contrast, a candidate is not subject to the same constraints when he or she fills in his or her application form.

164 Secondly, it must be noted that, according to paragraph 54 of the judgment of 9 June 2021, Calhau Correia de Paiva v Commission (T‑202/17, under appeal, EU:T:2021:323), the applicant had obtained her lowest assessments and marks for the ‘communication’ competency, which had led the Court to find that there was a close link between the statement of reasons for the contested decision and the provisions of the notice of competition relating to the language rules for the competition in question, the legality of which was contested. However, in the present case, the applicant has not put forward any specific evidence suggesting that the fact he was not admitted to the assessment centre was linked to an insufficient command of English. Nor does the reasoning of the second contested decision relate to an aspect of the applicant’s communication capabilities.

165 In addition, it should be noted that, unlike the line of argument put forward by the applicant in the case giving rise to the judgment of 9 June 2021, Calhau Correia de Paiva v Commission (T‑202/17, under appeal, EU:T:2021:323), the applicant in the present case did not rely on other specific and detailed evidence relating to any kind of disadvantage resulting from the language rules for the competition as regards the stage of the competition in question, such as, for example, constraints relating to the use of a keyboard of a specific computer, as noted in paragraph 58 of that judgment.

166 Accordingly, it must be concluded that there is no close link between the plea of illegality in question and the grounds for the second contested decision.

167 It follows from the foregoing that the third plea in law must be declared inadmissible.

(d) The fourth plea in law, alleging that the Talent Screener is unlawful

168 By the fourth plea in law, the applicant maintains that the use of the Talent Screener in open competitions is unlawful because it is a procedure that does not apply to established officials when they are appointed to vacant posts by way of transfer.

169 The Commission disputes the admissibility and the merits of this plea in law.

170 In that regard, as set out in the reasoning in paragraphs 154 to 166 above, it must be held that there is no close link between the general criticisms which the applicant makes of the Talent Screener and the reason why he was not invited to the next stage of the competition, namely that he was not awarded the necessary number of points on the basis of the information he provided.

171 In any event, the appointing authority has a broad discretion when determining the criteria in respect of the abilities required for posts to be filled and when determining, according to those criteria and, more generally, in the interest of the service, the conditions and procedures for the organisation of a competition (see judgment of 5 April 2005, Christensen v Commission, T‑336/02, EU:T:2005:115, paragraph 83 and the case-law cited). The applicant’s line of argument is not supported by any evidence to permit the view that a selection method based on qualifications such as that provided for in the notice of competition is inappropriate, in the light of the criteria of ability required for the posts to be filled, or contrary to the interests of the service. That plea in law must therefore, in any event, be rejected as unfounded.

172 The fourth plea in law must therefore be rejected as inadmissible and, in any event, unfounded and, accordingly, the claim for annulment of the second contested decision must be rejected.

C. The claim for annulment of the entirety of the ‘draft list of [candidates] selected to take part in the aforesaid competition’

173 As regards the claim for annulment of the entirety of the ‘draft list of [candidates] selected to take part in the aforesaid competition’, that claim must be interpreted as a claim for annulment of the list of candidates who were invited to the stage of the competition following the Talent Screener, that is to say, the assessment centre tests.

174 That was the stage at which the competition stood when the applicant was excluded from it.

175 In that regard, it should be recalled that, according to the case-law, the annulment of all the results of a competition constitutes, in principle, an excessive penalty for the irregularity committed, irrespective of the nature of the irregularity and the extent to which it affects the results of the competition (judgment of 5 May 2010, Bouillez and Others v Council, F‑53/08, EU:F:2010:37, paragraph 83).

176 Consequently, claims for annulment of the reserve list of a competition are in principle admissible, in accordance with the case-law, only in so far as they concern the selection board’s refusal to include the applicant on the reserve list in question (see, to that effect, judgment of 25 May 2000, Elkaïm and Mazuel v Commission, T‑173/99, EU:T:2000:142, paragraph 23 and the case-law cited). Where, in an open competition for the purpose of constituting a reserve for future recruitment, unlawfulness is found, an applicant’s rights will be adequately protected if the board and the appointing authority reconsider their decisions and seek a just solution in that case. There is therefore no reason to call in question the entire results of the competition or to annul the appointments made as a result thereof (see judgment of 6 July 1993, Commission v Albani and Others, C‑242/90 P, EU:C:1993:284, paragraph 13 and the case-law cited).

177 It must be held that that reasoning, developed in relation to a claim for annulment of the reserve list of a competition, may be applied, by analogy, to the list of candidates invited to the next stage of a competition.

178 Thus, the claim for annulment of the entirety of the ‘draft list of [candidates] selected to take part in the aforesaid competition’ must be rejected as inadmissible on the ground of lack of interest in bringing proceedings (see, by analogy, judgment of 10 February 2021, XC v Commission, T‑488/18, not published, under appeal, EU:T:2021:76, paragraphs 180 and 181).

179 In support of his claim for damages, the applicant alleges that ‘his career opportunities have been disrupted by the contested decisions, which are manifestly flawed’. On that basis, he claims an award of EUR 50 000 in compensation.

181 It is settled case-law that claims seeking compensation in respect of material or non-material harm must be dismissed where they are closely linked with claims for annulment which have themselves been dismissed as either inadmissible or unfounded (judgment of 15 May 1997, N v Commission, T‑273/94, EU:T:1997:71, paragraph 159, and order of 16 November 2018, OT v Commission, T‑552/16, not published, EU:T:2018:807, paragraph 89).

182 It follows from all the foregoing that the claims for annulment were rejected. It also follows from what is stated in paragraph 179 above that the claim for damages is closely linked to those claims for annulment. Hence, the claim for damages must be rejected.

184 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. As the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> HC v Commission (Civil service - Recruitment - Obligation to state reasons - Judgment) [2021] EUECJ T-804/19 (01 December 2021) URL: http://www.bailii.org/eu/cases/EUECJ/2021/T80419.html Cite as: [2021] EUECJ T-804/19, EU:T:2021:849, ECLI:EU:T:2021:849

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