VI v Commission (Civil service - Officials - Recruitment - Judgment) [2022] EUECJ T-20/21 (06 July 2022)

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(Civil service – Officials – Recruitment – Open Competition EPSO/AD/363/18 – Non-inclusion on the reserve list – Equal treatment – Stability in the composition of the selection board)

European Commission, represented by T. Lilamand, D. Milanowska and A.‑C. Simon, acting as Agents,

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

1 By her action pursuant to Article 270 TFEU, the applicant, VI, seeks annulment of, first, the decision of the selection board for Competition EPSO/AD/363/18 not to include her on the competition reserve list, second, the decision of that selection board to refuse the applicant’s request for review of the initial decision, third, the Commission’s decision of 20 August 2019 rejecting her complaint, fourth, 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 would recruit administrators (AD 7) in the fields of customs and taxation and, fifth, the competition reserve list, as well as, moreover, seeking compensation for the damage which she claims to have suffered.

2 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, based on qualifications and tests, for the recruitment of administrators (AD 7) in the fields of customs and taxation (OJ 2018 C 368 A, p. 1; ‘the notice of competition’), with a view to drawing up two reserve lists from which the European Commission, and in particular the Directorate-General for Taxation and Customs Union, would recruit new members of the civil service as administrators.

3 According to point 5 of the section entitled ‘How will I be selected?’, the assessment centre tests consisted of four tests, namely a general competency-based interview, a field-related interview, a group exercise and a case study. The eight general competencies (analysis and problem-solving, communication, delivering quality and results, learning and development, prioritising and organising, resilience, working with others, leadership) were each assessed out of 10 points and the field-related competencies out of 100 points. The pass marks were, as regards the general competencies, 3/10 per competency and 40/80 in total and, as regards the field-related competencies, 50/100.

4 On 12 November 2018, the applicant applied as a candidate in that competition in the customs field.

5 The applicant was subsequently informed by EPSO that, in the selection based on qualifications, she had obtained a mark above the minimum threshold and that the selection board had therefore decided to invite her to take the assessment centre tests.

6 After having taken the written assessment centre test consisting of the case study, the applicant, on 20 March 2019, took part in the three oral assessment centre tests consisting of the group exercise and the two individual interviews, in accordance with the terms of the notice of competition referred to in paragraph 3 above.

7 By letter of 26 June 2019, the selection board informed the applicant of its decision not to include her name on the reserve list on the ground that she had obtained an overall score (109.5/180) that was lower than the pass mark (113/180) for her name to be included on the reserve list.

8 That letter was accompanied by a competency passport from which it is apparent, in particular, that the applicant obtained, first, a score of 42.5/80 for the assessment of the general competencies and, second, a score of 67/100 for the assessment of the competencies for the field which she had chosen.

9 By email of 19 July 2019, the applicant submitted a request for review to the selection board, which was refused by decision of the selection board of 27 February 2020.

10 By email of 27 May 2020, the applicant submitted a complaint to the appointing authority under Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), which was rejected by decision of 7 October 2020.

– annul the decision rejecting the complaint, the decision refusing the request for review and the decision not to include her on the reserve list;

– annul the notice of competition and the reserve list for the competition at issue;

– order the Commission to pay the sum of EUR 70 000 in respect of the damage suffered;

13 In her application, the applicant seeks annulment of the decision not to include her on the reserve list, of the decision refusing the request for review and of the decision rejecting the complaint. For the purpose of the examination of those claims for annulment, the applicant applies for measures of organisation of procedure or of inquiry, which will be examined below. The notice of competition and the competition reserve list are also the subject of claims for annulment.

14 At the hearing, the applicant withdrew the claims for annulment of the notice of competition and of the competition reserve list, with the result that there is no longer any need to adjudicate on those claims.

The claim for annulment of the decision not to include the applicant on the reserve list, of the decision refusing the request for review and of the decision rejecting the complaint

15 As regards the head of claim seeking annulment of the decision not to include the applicant on the reserve list, it must be borne in mind that, according to settled case-law, where a person who has been refused admission to a competition 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) or, where applicable, Article 91(1) of the Staff Regulations (see, to that effect, order of 3 March 2017, GX v Commission, T‑556/16, not published, EU:T:2017:139, paragraph 21 and the case-law cited). The decision taken after review therefore replaces the selection board’s original decision (see judgment of 5 September 2018, Villeneuve v Commission, T‑671/16, EU:T:2018:519, paragraph 24 and the case-law cited). It follows that it is the decision refusing the request for review which constitutes the act adversely affecting the applicant in the present case. Therefore, it must be held that the heads of claim for annulment of the decision not to include the applicant on the reserve list and of the decision refusing the request for review seek annulment solely of the decision refusing the request for review.

16 In that context, it should be noted that the applicant also seeks annulment of the decision rejecting the complaint. In this respect, it should be borne in mind that, according to settled case-law applicable to EU civil service law, the administrative complaint, as provided for in Article 90(2) of the Staff Regulations, and its rejection, whether express or implied, constitute an integral part of a complex procedure and are no more than a precondition for bringing the matter before the Courts. Consequently, the action before the Courts, even if formally directed against the rejection of the complaint, has the effect of bringing before the Courts the act adversely affecting the applicant against which the complaint was submitted, except where the scope of the rejection of the complaint differs from that of the measure against which that complaint was made (see judgment of 27 October 2016, CW v Parliament, T‑309/15 P, not published, EU:T:2016:632, paragraph 27 and the case-law cited).

17 In the present case, the decision rejecting the complaint merely confirms the decision not to include the applicant on the reserve list and, therefore, the decision refusing the request for review. The fact that the authority authorised to decide on the applicant’s complaint has been led, in response to the complaint, to supplement or amend the grounds for the review decision cannot justify the rejection of that complaint being regarded as an autonomous act adversely affecting the applicant. The statement of grounds for that rejection is deemed to be incorporated in the contested decision against which that complaint was directed (see, to that effect, judgment of 9 December 2009, Commission v Birkhoff, T‑377/08 P, EU:T:2009:485, paragraph 55).

18 Consequently, in accordance with the case-law cited in paragraph 16 above, it must be held that the act adversely affecting the applicant is the decision refusing the request for review (‘the contested decision’), the legality of which must be examined by also taking into account the statement of reasons contained in the decision rejecting the complaint.

19 In support of the action, the applicant puts forward five pleas in law, alleging, in essence, first, that the composition of the competition selection board was unlawful, second, manifest errors of assessment made by the competition selection board in its assessment of her answers, third, infringement of the obligation to state reasons, fourth, lack of stability on the part of the competition selection board and infringement of the principle of equal treatment, and, fifth, illegality of the rules governing the language arrangements for the competition.

21 In support of the fourth plea, the applicant claims that the composition of the selection board lacked stability during the oral assessment centre tests referred to in paragraph 6 above, and more particularly during the field-related interview, in so far as the applicant was assessed, during that interview, only by the two assessors appointed for that purpose, namely A and B, and the chair of the selection board was only briefly present at the beginning of the interview. The applicant therefore submits that she was questioned, in her field-related interview, by a selection committee made up of two members of the selection board who assessed only some of the candidates. According to the applicant, the objective and uniform assessment of the candidates required, at the very least, the continuous presence of a core team of examiners throughout the tests. The applicant claims that she is also unaware whether any coordination measures were put in place in order to ensure consistent and objective assessment, equal opportunity and equal treatment of candidates by the selection board. In those circumstances, she maintains that the principles of objective assessment, of stability of the selection board and of equal opportunities have been infringed.

23 The Commission states that the selection board put in place all the necessary coordination measures, before and during the selection process, to ensure a consistent and objective assessment and equal treatment of candidates. The applicant, it contends, has not produced any evidence to show that candidates were not treated on an equal footing.

24 More specifically, the Commission submits, the selection board agreed on a methodology to be applied for the shadowing of interviews by the chair and the feedback to be given to assessors every day or every week at the assessors’ meetings. The chair of the selection board monitored the conduct of each interview by being present, at least for the members of the selection board, in order to ensure that they ‘stay within the grid’ and assess candidates in a consistent manner. Moreover, the chair was present throughout the assessment centre tests in order to respond to the members of the selection board and to provide them with feedback.

25 The selection board met regularly during the assessment centre tests by holding, first, meetings at the end of each day at the assessment centre, in order to review and harmonise the scores of the candidates who had been interviewed on that day and during which the participants had particularly ensured equal treatment of the candidates, scoring coherence over time and as much objectivity in the assessment as possible; second, meetings at the end of each week of assessment centre tests in addition to the daily meetings; and, third, a meeting at the end of the assessment centre tests, in order to ensure consistency of the candidates’ assessments after all the tests, and to confirm all candidates’ final scores collectively by the whole of the selection board on the basis of the results in all the tests.

26 While pointing out that the content of the abovementioned coordination meetings and the documents relating to the shadowing of the interviews by the chair are covered by the secrecy of the selection board’s proceedings, the Commission stated, in the defence, that it was prepared to communicate the content of those confidential documents to the Court if it deemed it necessary to give a ruling on the case and provided that their content would not be disclosed to the applicant.

27 The consistent application of all the abovementioned measures was confirmed by the sworn statements submitted by the chair of the selection board and by the applicant’s two assessors, annexed to the defence.

28 As a preliminary point, the Court points out that the EU institutions have a wide discretion with regard to the procedure for organising a competition and the EU Courts may therefore review those procedures only in so far as is necessary to ensure equal treatment of candidates and objectivity in the choice made between them (see judgment of 12 February 2014, De Mendoza Asensi v Commission, F‑127/11, EU:F:2014:14, paragraph 63 and the case-law cited).

29 The obligation to recruit officials of the highest standard of ability, efficiency and integrity, imposed on the institutions by Article 27 of the Staff Regulations, means that the appointing authority and the selection board must each ensure, when exercising its powers, that competitions take place in such a way that the principles of equal treatment of the candidates and of objectivity in the marking are observed (see judgment of 12 February 2014, De Mendoza Asensi v Commission, F‑127/11, EU:F:2014:14, paragraph 64 and the case-law cited).

30 It has thus been held that the wide discretion enjoyed by a selection board in determining the procedures for and detailed content of the tests to be undergone by candidates must be counterbalanced by scrupulous observance of the rules governing the organisation of those tests. The selection board must therefore ensure that the principle of equal treatment is complied with strictly in relation to the candidates in the course of those oral tests and that the choice made between the persons concerned is objective. To that end, the selection board is obliged to ensure consistent application of the assessment criteria to all the candidates concerned by ensuring, inter alia, that its composition is stable (see judgment of 12 February 2014, De Mendoza Asensi v Commission, F‑127/11, EU:F:2014:14, paragraph 65 and the case-law cited).

31 According to case-law, observance of the principles of equal treatment and of objectivity in marking requires that, so far as is possible, stability of the composition of the selection board should be maintained throughout the tests (see judgment of 12 February 2014, De Mendoza Asensi v Commission, F‑127/11, EU:F:2014:14, paragraph 66 and the case-law cited).

32 However, it cannot be excluded that consistency of marking may be ensured by means other than maintaining the stability of the selection board throughout the tests. Thus, the Court has accepted that, where full members of a competition selection board had been prevented from attending and had been replaced, for some of the candidates’ tests, by alternate members in order for the selection board to complete its work within a reasonable period, the composition of the selection board could nonetheless remain sufficiently stable if the selection board put in place the coordination needed in order to ensure consistent application of the marking criteria (see judgment of 12 February 2014, De Mendoza Asensi v Commission, F‑127/11, EU:F:2014:14, paragraph 67 and the case-law cited).

33 In the same way, it should be noted that measures taken by a selection board in order to comply with its obligation to ensure stability of its composition must, where appropriate, be assessed in the light of the particular characteristics of the recruitment organised and of the practical requirements inherent in the organisation of the competition without, however, the selection board being able to dispense with observance of the fundamental assurances of equal treatment of the candidates and objectivity in the choice made between them (see judgment of 12 February 2014, De Mendoza Asensi v Commission, F‑127/11, EU:F:2014:14, paragraph 68 and the case-law cited).

34 A selection board’s assessment of candidates’ competencies or of their knowledge and ability is, it is true, primarily of a comparative nature. However, it cannot be excluded that, in the light of the way the tests in a competition and the proceedings of the selection board are organised, it may be sufficient, in order to ensure the comparative nature of the selection board’s assessment, that the latter’s composition be kept stable only during certain stages of the competition (see judgment of 12 February 2014, De Mendoza Asensi v Commission, F‑127/11, EU:F:2014:14, paragraph 69 and the case-law cited).

35 As maintaining a certain stability of the selection board is not a requirement in itself but a means of ensuring that the principles of equal treatment and objectivity of marking are observed, it is necessary to examine whether, in the present case, the way in which the competition was organised made it possible for those principles to be observed (see judgment of 12 February 2014, De Mendoza Asensi v Commission, F‑127/11, EU:F:2014:14, paragraph 70 and the case-law cited).

36 In that regard, it should be noted at the outset that, for the purpose of examining the present plea, by a measure of organisation of procedure adopted on the basis of Article 89 of the Rules of Procedure of the General Court, a request was sent to the Commission to produce documents making it possible to substantiate its claims that, in essence, first, there was a pre-established methodology allowing the objective assessment of candidates and, second, measures of coordination between the various members of the selection board had been implemented in order to ensure equal treatment between candidates, as the Commission had suggested in paragraphs 110 and 115 of the defence.

37 In response to that measure of organisation of procedure, the Commission produced a number of documents in a non-confidential version, stating that, in the light of Article 92(3) of the Rules of Procedure, it was prepared to submit those documents in a confidential version, where appropriate supplemented by other confidential documents, but only in response to a measure of inquiry referred to in Article 91(b) of the Rules of Procedure. The Commission stated in that regard that those documents contained confidential information and that, as such, their content could be disclosed only to the Court and was not to be disclosed to the applicant.

38 By order of 6 December 2021, the Court adopted a measure of inquiry ordering the Commission to produce confidential versions of the documents referred to in paragraphs 110 and 115 of the defence.

39 On 18 January 2022, the Court decided that the documents produced by the Commission in accordance with the order for measures of inquiry of 6 December 2021 were relevant in order for it to rule on the case and that they were confidential. The Court also decided to adopt a measure of organisation of procedure concerning the manner in which those documents could be brought to the attention of the applicant’s lawyers.

40 By letter from the Registry of 18 January 2022, the applicant’s lawyers were invited by the Court to give a confidentiality undertaking before receiving a copy of the confidential version of the documents at issue. On 26 January 2022, the applicant’s lawyers sent the signed confidentiality undertakings to the Court.

41 On 2 February 2022, the documents at issue were disclosed to the applicant’s lawyers.

42 At the hearing, the applicant’s representative claimed that the documents sent to him referred to annexes relating to the presence of the members of the selection board at certain meetings which had not been attached or which were not capable of being used. In response to those claims, the Commission undertook to submit the missing documents to the Court following the hearing, which it did on 8 March 2022.

43 On 17 March 2022, the documents at issue, covered by the confidentiality undertakings signed by the applicant’s lawyers, were sent to the latter. On 25 March 2022, the applicant’s lawyers submitted their observations on those documents.

45 First, as regards the preparation made in advance for the interviews at the assessment centre, the Commission explains that the content of the oral assessment centre tests and the assessment criteria had been defined jointly by the selection board as a whole and in a uniform manner for all candidates.

46 The Commission maintains, by producing the corresponding documents, that those tools had been prepared in advance by EPSO and made it possible to ensure an objective assessment of candidates and the elimination of ‘personal biases’, that is to say, an assessor’s natural tendency to favour candidates whose personality is compatible with the assessor’s own personality.

47 In that regard, in reply to the measure of inquiry referred to in paragraph 38 above, the Commission submitted templates of evaluation grids for the interviews with the selection board and the group exercise, a document prepared by EPSO entitled ‘Field related interview. Building the interview grid’, intended to show the training provided by EPSO to the selection board, and a document prepared by EPSO entitled ‘Chairing Assessment Centre. Recommendation to SB Chairs’, intended to show the training received by the chairs of the selection board.

48 In addition, the Commission points out that the chairs and vice-chairs and the other members of the selection board had followed training in order to ensure that they perform their role in the best possible manner, which it has demonstrated by documents produced in response to the measure of inquiry referred to in paragraph 38 above. In particular, the Commission submitted a document prepared by EPSO entitled ‘Training for non-permanent selection board members’, dated March 2018 and intended to demonstrate the training provided by EPSO to non-permanent members of the selection board, and an unsigned and undated document which the Commission claims was drawn up on 28 January 2021 by the vice-chair of the selection board concerning the assessment centre’s shadowing activities.

49 Second, according to the Commission, coordination measures were implemented throughout the assessment centre tests. It states that the chair of the selection board in particular ensured that the members of the selection board would follow strictly the analytical templates, which had been adopted before the tests had begun, throughout the competition. Moreover, the chair of the selection board was responsible for consolidating the observations made by the members of the selection board, which were discussed at meetings of the members of the selection board at the end of the day. The Commission thus states that the chair was present throughout the assessment centre tests in order to respond to the members of the selection board and to provide them with feedback.

50 In addition, the Commission submits that persons were appointed as observers to ensure that interviews were conducted properly, correcting, if necessary, differences in treatment found in respect of certain pairs of assessors. Those persons had previously received training to that effect.

51 The Commission also states that, in order to ensure consistency of marking between candidates, every week, during the assessment centre tests, EPSO psychologists carried out statistical analyses of the marks awarded by the various examiners to the candidates in order to detect any anomalies which were then the subject of a report sent to the chair of the selection board, prior to the weekly meeting of that selection board. In addition to those standard statistical analyses, specific ad hoc analyses could, according to the Commission, be carried out at the request of the chair and concern, for example, pairs of examiners or particular tests.

52 Third, the Commission maintains that the selection board met regularly during the assessment centre tests, first of all on a daily basis in order to review and harmonise the scores of candidates who had been interviewed during the day and to ensure equal treatment of the candidates, then weekly, and finally, after the end of the assessment centre tests, in order to ensure that the candidates’ assessments were consistent at the end of all the tests and to confirm collectively by the whole of the selection board all candidates’ final scores on the basis of the results of all the tests.

53 In order to illustrate those claims, the Commission submitted a number of documents.

54 First of all, annexed to the defence, the Commission produced sworn statements, first, of the chair of the selection board, certifying in essence that the members of the selection board who assessed the applicant had complied with the rules applicable to the assessment centre and, second, of each of the two examiners in question, certifying that the applicant had been assessed in the same way as all other candidates.

55 Next, in response to the measure of organisation of procedure referred to in paragraph 36 above, the Commission produced the non-confidential version of the minutes of the selection board meetings held on 18, 23 and 24 October 2018 and on 29 March 2019 and of the emails of 25 March and 2 and 3 April 2019, serving as minutes of other selection board meetings.

56 Lastly, in response to the measure of inquiry referred to in paragraph 38 above, the Commission produced the confidential version of all the documents referred to in paragraph 55 above, to which it added an email of 11 April 2019, serving as the minutes of a selection board meeting and minutes of a selection board meeting held on 24 May 2019.

57 Furthermore, as noted in paragraph 42 above, the Commission, following the hearing, submitted annexes to the minutes of the meetings held on 18, 23 and 24 October 2018, 29 March 2019 and 24 May 2019, containing sheets noting the attendance of the members of the selection board at those meetings, which had not been attached to the documents submitted in response to the measure of inquiry.

58 The Court takes the view that, in so far as the marking of candidates in a competition and the drawing up of a reserve list are comparative exercises, the actual pursuit of the necessary coordination measures and the presence of the members of the selection board at meetings forming part of the coordination measures, such as those alleged in this case by the Commission, is an essential condition for ensuring that the principles of equal treatment and of objectivity in marking are observed. It follows that the Commission must show that the planned coordination meetings took place and that all the members of the selection board, namely the chair, the vice-chairs and the assessors, actually attended those meetings, which it is appropriate to examine on the basis of the documents produced by the Commission and the attendance sheets of those meetings.

59 First, it is apparent from the examination of all those documents that, on 18, 23 and 24 October 2018, the selection board met before the start of the assessment centre tests in order to prepare those tests. However, the name of one of the applicant’s two assessors at the field-related interview, namely B, did not appear on the sheets noting the attendance of the selection board members who were to attend those three preparation meetings, while the other assessor, namely A, by signing those sheets, confirmed her presence at those three meetings. It must also be stated that the signature of one of the two vice-chairs of the selection board, namely C, does not appear on the attendance sheet for the meeting of 23 October 2018, whereas the attendance sheet for the meeting held the following day contains neither the signature of that vice-chair nor that of the other vice-chair of the selection board, namely D.

60 The selection board also met on 29 March 2019, after the tests had begun, in order to address, on an ad hoc basis, the issue of marking the case study, which is one of the assessment centre tests. On that occasion, B, by signing the attendance sheet, confirmed that she had attended that meeting, whereas A and the two vice-chairs of the selection board did not sign the attendance sheet for that meeting.

61 Second, at the end of each of the four weeks during which interviews concerning the competition at issue were held at the assessment centre, an email demonstrating coordination was sent to the members of the selection board who had taken part in the tests. Accordingly, the email of 25 March 2019 concerns the tests which took place between 18 and 21 March 2019, that of 2 April 2019 concerns the week of 25 to 28 March 2019, that of 3 April 2019 concerns the week of 2 and 3 April 2019 and that of 11 April 2019 relates to the week of 8 to 11 April 2019. In this respect, it should be noted that the applicant took part in the assessment centre tests on 20 March 2019 (see paragraph 6 above) and that the members of the selection board who assessed her are indeed among the addressees of the email of 25 March 2019. However, the mere fact that the applicant’s two assessors are among the addressees of that email does not make it possible to establish with certainty that they were actually present at the weekly, or even daily, coordination meetings.

62 Third and lastly, the Commission submitted evidence of the existence of a final meeting, held on 24 May 2019, at which, according to the minutes of that meeting, an initial draft list of the successful candidates in the competition at issue in the customs field was drawn up. The documents submitted by the Commission show, however, that only 10 members of the selection board out of the 38 potential participants were indicated on the corresponding attendance sheet as being actually present. Neither the two assessors who assessed the applicant during the field-related interview nor the two vice-chairs of the selection board signed the attendance sheet for that meeting. Although the minutes of that meeting refer to explanations given by those two assessors at the field-related interview as to why they considered it necessary to increase the score of one candidate in the competition for the ‘Leadership’ competency by one point, it is not entirely clear that those explanations were provided at the meeting of 24 May 2019 in their presence or that, in their absence, reference was made to those explanations which they had previously provided at another meeting held on 12 April 2019. As regards the two vice-chairs of the selection board, it is true that the minutes refer to a presentation by ‘the vice-chair’ of the results of the whole competition in the customs field. In the absence of signatures on the attendance sheet, the ambiguous drafting of that reference does not, however, make it possible either to verify the presence of the two vice-chairs of the selection board or to verify the presence of a specific vice-chair. In those circumstances, it must be held that the Commission has not established either the actual presence of one of the assessors or of the two assessors who assessed the applicant at the field-related interview, or that of the two vice-chairs of the selection board at the meeting of 24 May 2019, at which the initial draft reserve list was adopted.

63 It follows from the foregoing that, although the Commission was, on several occasions, given the opportunity to produce documents supporting the claim that, in essence, all the necessary coordination measures had been taken before, during and after the tests, in order to ensure a consistent and objective assessment and equal treatment of candidates, the Commission does not substantiate that claim.

64 First, the Commission has not adduced evidence that the selection board had convened in its entire composition before the tests began, in order to validate the methodology and the assessment criteria of the assessment centre tests. On the contrary, whereas the minutes of the meeting of 23 October 2018 indicate that ‘the selection board as a whole’ had to analyse and validate the proposals for the group exercise and that the Commission, as is apparent from paragraph 45 above, claimed that the content of the tests had been defined jointly by all the members of the selection board, the attendance sheet of that meeting shows that several members of the selection board, in particular the vice-chair, were absent. An identical finding may be made in respect of the meeting of 24 October 2019, during which the content of the case study was validated in the absence, in particular, of the two vice-chairs of the selection board.

65 Second, as has been stated in paragraphs 25 and 52 above, the Commission itself stressed, in the defence, the importance of the coordination meetings of the selection board and, more specifically, of the meetings held during the assessment centre tests, namely daily and weekly meetings.

66 The Commission adduces no express evidence that the daily meetings were held at the end of each day of the assessment centre tests, as it claims. While it is true that the emails of 25 March 2019 and of 2, 3 and 11 April 2019, serving as minutes of the selection board’s meetings, indicate that the assessors met during the weeks in question, those emails do not make it possible either to verify that daily meetings were held, even though this is claimed by the Commission, or to verify the presence of all the assessors at the meetings referred to, in the absence of the attendance sheets relating to those meetings. In those circumstances, the Commission has not proved the reality of the nature and extent of the regular exchanges between the members of the selection board, the significance of which, however, it has itself emphasised.

67 Third, by way of evidence that a meeting was held after the end of the assessment centre tests, the purpose of which, as it claims, was to ensure consistency in the assessments of candidates at the end of all the tests and to confirm collectively by the whole of the selection board the final marks for all the candidates, on the basis of the results of all the tests, the Commission merely mentions, for the first time at the stage of its reply to the measure of inquiry referred to in paragraph 38 above, a meeting in which an initial draft list of successful candidates in the competition at issue in the customs field was drawn up. Furthermore, and although the Commission itself claimed that the final marks of the candidates had to be confirmed ‘collectively by the whole of the selection board’, the documents submitted following the hearing indicate that only 10 members of the selection board out of 38, by signing the attendance sheet, certified that they had actually been present at that meeting held on 24 May 2019 and that neither the signatures of the two assessors who assessed the applicant during the field-related interview nor those of the two vice-chairs of the selection board appear on that attendance sheet. To the extent that the marking of candidates in a competition and therefore, the drawing up of a reserve list is an exercise that is comparative in nature, the Court finds that the presence of the whole of the selection board during the meeting of 24 May 2019 was essential (see, to that effect, judgment of 13 January 2021, Helbert v EUIPO, T‑548/18, EU:T:2021:4, paragraph 84). According to the attendance sheet, it was at that meeting that actual attendance was reduced to less than one third of the members of the selection board. More specifically, the absence of the signatures of the two assessors who assessed the applicant and of those of the two vice-chairs of the selection board casts doubt on their actual participation in that meeting. It must therefore be held that it has not been established that that meeting could attain the objective indicated, that is to say, a coordination ensuring that the marking of the candidates was objective and consistent and that the candidates were treated equally (see, to that effect, judgment of 13 January 2021, Helbert v EUIPO, T‑548/18, EU:T:2021:4, paragraph 86).

68 Thus, it must be held that the Commission has not provided evidence that the selection board had met in its entire composition in order to adopt the final decisions on the basis of the results in all the tests, something which it nevertheless argued in the defence and which it proposed to substantiate by providing documents, if the Court were to take the view that this was necessary.

69 Moreover, it must be held that, notwithstanding the opportunities given to the Commission to substantiate its claims, it has not explained the gaps in the various attendance sheets, in particular in that for the meeting of 24 May 2019, nor has it demonstrated or even claimed that another meeting, subsequent to that of 24 May 2019, would have enabled the selection board to meet in full composition in order to adopt the final lists of successful candidates.

70 In that regard, the Court observes first of all that, in spite of the fact that the minutes of the meeting of 24 May 2019 describe the draft reserve list resulting from that meeting as a ‘first draft’, the Commission remained silent as to the holding of subsequent meetings confirming that ‘first draft’ collectively. In addition, the decision not to include the applicant’s name on the reserve list is in all likelihood based on that ‘first draft’. Subsequently, that decision was undoubtedly confirmed by the contested decision, which, according to the terms used, was taken by the selection board as a whole.

71 However, the Commission failed to submit any evidence to show that the contested decision could have remedied the shortcomings of the initial decision. In particular, it did not produce minutes of a meeting of the selection board concerning the review or an attendance sheet for such a meeting. Nor did it refer to an alternative procedure ensuring the participation of the selection board as a whole.

72 In those circumstances, it must necessarily be held that the existence of the contested decision also does not prove that the selection board met in its full composition in order to adopt a final decision on the basis of the results in all the tests. It must therefore be held that, while maintaining throughout the procedure that all the necessary coordination measures had been taken before, during and after the tests, in order to ensure a consistent and objective assessment and equal treatment of candidates, the Commission merely submitted documents which did not substantiate those claims, in their entirety and as regards the decisive stages of the procedure, without adding further explanations. More particularly, the Commission did not explain the absence of the signatures of members of the selection board on attendance sheets and did not claim that there were actual compensatory measures when, in the light of its substantive arguments and the nature of the documents which the Commission itself submitted, it ought to have been aware of the significance of those deficiencies. Nor has it proved that there was a meeting of the selection board as a whole in order to adopt a definitive version of the reserve list or that there was a meeting of the selection board as a whole in order to adopt the contested decision.

73 Moreover, the Court considers that the sworn statements of the chair of the selection board and of the applicant’s assessors also do not constitute probative evidence capable of calling that finding into question. Those statements are limited to the conduct and assessment of the applicant’s specific interview by the assessors and to the monitoring of the chair of the selection board, but do not relate to a collective appraisal, by the selection board as a whole, of the applicant’s assessment and of that of all the candidates in the competition.

74 Consequently, it must be concluded that the Commission has not adduced sufficient evidence to establish that the stability of the composition of the selection board was ensured in certain key phases of the selection procedure and, in particular, that regular exchanges between the members of the selection board made it possible to ensure consistency in the marking and objectivity of the assessment of the candidates and, therefore, equal treatment of those candidates.

75 It follows that the plea alleging a lack of stability on the part of the selection board and infringement of the principle of equal treatment must be upheld and, accordingly, that the contested decision must be annulled, without it being necessary to accede to the applicant’s requests for the adoption of measures of organisation of procedure and inquiry, since the Court considers that it has sufficient information from the material in the file to rule on the dispute, or without it being necessary to rule on the other pleas in the application.

76 In support of her claim for compensation, the applicant claims that EPSO and the competition selection board committed several unlawful acts, which allegedly caused her various types of non-material and material damage. In order to provide compensation for all of the non-material and material damage which she claims to have incurred, the applicant seeks the sum of EUR 70 000. The Court notes that, in her complaint, the applicant quantified the compensation sought at an initial amount of EUR 50 000, and that it was only at the stage of the application that she added a claim in the amount of EUR 20 000 for damage which had occurred in the meantime.

77 The applicant states, inter alia, that her career prospects were hindered by the contested decision, which is manifestly flawed, and that she suffered significant non-material damage and the onset of depression on account of the manner in which she was excluded from the open competition in question.

79 In the present case, the evidence adduced by the applicant does not make it possible to determine the actual damage alleged in the present case or its extent. Accordingly, it cannot be held that, in the present case, the condition relating to the existence of damage in order to secure compensation has been satisfied (see, to that effect, judgment of 13 January 2021, Helbert v EUIPO, T‑548/18, EU:T:2021:4, paragraphs 120 to 122).

80 As regards the claim for compensation for material damage, it must be held that, in support of the claim for compensation for the material damage which she claims to have incurred, the applicant has not shown that the unlawful acts on which she relies have actually affected the progress of her career, nor does she quantify the expenses which she claims to have incurred for the purpose of preparing for the competition at issue.

81 In that regard, the Court notes in particular that, in any event, inclusion on a reserve list for a competition does not provide any certainty that the person concerned will be recruited at a later stage.

82 Thus, as the applicant has not produced any estimate or proof of the amount of the material damage which she claims, the Court is unable to verify the authenticity and the amount of that damage, with the result that the claim for compensation in respect of that damage must be rejected.

83 As regards the claim for compensation for non-material damage, it should be noted that the annulment of an unlawful act of the administration may constitute, in itself, appropriate and, in principle, sufficient compensation for any non-material damage which that measure may have caused, unless the applicant shows that he or she has sustained non-material damage that cannot be compensated in full by that annulment (see, to that effect, order of 3 September 2019, FV v Council, C‑188/19 P, not published, EU:C:2019:690, paragraph 26, and judgment of 28 April 2021, Correia v EESC, T‑843/19, EU:T:2021:221, paragraph 86).

84 However, in the present case, it is sufficient to note that the applicant has in no way explained how the ‘manner’ in which she was excluded from the competition caused her non-material damage and, a fortiori, that such damage, even if it were established, would be incapable of being entirely remedied by the annulment of the contested decision.

85 It follows from all of the foregoing that the claim for compensation must, in the present case, be rejected.

86 The action must therefore be upheld in so far as it seeks annulment of the contested decision and be dismissed as to the remainder.

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

1. Annuls the decision, adopted after review, of the selection board for Open Competition EPSO/AD/363/18 of 27 February 2020 not to include VI’s name on the reserve list for that competition;

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> VI v Commission (Civil service - Officials - Recruitment - Judgment) [2022] EUECJ T-20/21 (06 July 2022) URL: http://www.bailii.org/eu/cases/EUECJ/2022/T2021.html Cite as: ECLI:EU:T:2022:427, [2022] EUECJ T-20/21, EU:T:2022:427

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