HC v Commission (Appeal - Civil service - Recruitment - Open competition - Judgment) [2023] EUECJ C-102/22P (27 April 2023)

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(Appeal – Civil service – Recruitment – Open competition EPSO/AD/363/18 – Notice of competition – Assessment by the selection board of the candidate’s answers to the ‘Talent Screener’ – Non-admission to the next stage of the competition – Rules on languages – Limitation of the choice of the second language of the competition to English and French – Plea of illegality relating to the notice of competition – Inadmissibility)

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 11 February 2022,

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

composed of M.L. Arastey Sahún (Rapporteur), President of the Chamber, N. Wahl and J. Passer, Judges,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

1 By his appeal, HC seeks to have set aside the judgment of the General Court of the European Union of 1 December 2021, HC v Commission (T‑804/19, not published, EU:T:2021:849) (‘the judgment under appeal’), by which the General Court dismissed his action seeking, first, annulment of (i) 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 at issue’), (ii) the decision of the selection board in that competition not to include his name on the list of persons invited to the assessment centre, (iii) the decision of that selection board of 21 March 2019 rejecting his request for review (‘the decision at issue’), (iv) the decision of the European Personnel Selection Office (EPSO) of 20 August 2019 rejecting his complaint under Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), (v) the list of persons invited to the assessment centre, and, second, compensation for the harm he allegedly suffered.

2 The background to the dispute is set out in paragraphs 1 to 7 of the judgment under appeal and may be summarised as follows.

3 On 11 October 2018, EPSO published in the Official Journal of the European Union the notice of competition at issue. The purpose of the competition in question 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.

4 The appellant applied to take part in that competition, in the field of customs.

5 By letter of 18 December 2018, EPSO informed the appellant 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, namely the so-called Talent Screener test (‘the Talent Screener’).

6 On 28 January 2019, EPSO informed the appellant of the selection board’s decision not to admit him to the tests that followed the Talent Screener, namely the tests to be held in an assessment centre (‘the assessment centre’). The selection board had carried out a thorough analysis of the answers which the appellant had given to the questions in the Talent Screener and had awarded him 27 marks, which was not sufficient to invite him to the assessment centre, the minimum threshold required to take part in those tests being 33 marks.

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

9 By email of 18 April 2019, the appellant lodged a complaint under Article 90(2) of the Staff Regulations, which was rejected by decision of EPSO of 20 August 2019.

10 By application lodged at the Registry of the General Court on 20 November 2019, the appellant brought an action seeking, first, annulment of the notice of competition at issue, of the decisions referred to in paragraphs 6, 8 and 9 of this judgment and of the list of persons invited to the assessment centre and, second, compensation for the harm he allegedly suffered.

11 In support of his action, he put forward four pleas in law. The first plea alleged infringement of the obligation to state reasons, manifest errors of assessment, illegality of Annex II to the notice of competition at issue and breach of the principle of equal treatment and of the principle of proportionality. The second plea alleged infringement of the right to be heard, illegality of Article 90(2) of the Staff Regulations and infringement of the principle of sound administration. The third plea was based on the illegality of the language rules for the competition. Lastly, the fourth plea alleged illegality of the Talent Screener.

12 By the judgment under appeal, the General Court dismissed that action in its entirety.

– declare the plea alleging that the notice of competition at issue is unlawful on account of the language rules laid down therein to be admissible and well founded;

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

– in the alternative, set aside the judgment under appeal and refer the case back to the General Court for judgment;

15 In support of his appeal, the appellant puts forward two grounds of appeal. The first is based on an incorrect characterisation of the facts, a distortion of the evidence and an error of law concerning the General Court’s examination of the selection board’s assessment of the appellant’s answers to certain questions in the Talent Screener. The second ground of appeal alleges that the General Court erred in law in rejecting as inadmissible the plea of illegality raised by the appellant in respect of the language rules laid down in the notice of competition at issue.

16 The first part of the first ground of appeal alleges an incorrect characterisation of the facts, a distortion of the evidence and an error of law concerning the General Court’s examination of the selection board’s assessment of the appellant’s answer to question 1b of the Talent Screener, which was intended to assess the professional experience of candidates with regard to the drafting of legislation, rules and procedures in the fields covered by the competition in question, including the field of customs.

17 The appellant notes that, in paragraph 52 of the judgment under appeal, the General Court held that no manifest error of assessment was made in awarding him no marks for his answer to that question, since the selection board considered that his experience, as described in that answer, did not cover the drafting of legislation, rules and procedures but rather implementation and advisory activities.

18 In that regard, first of all, the appellant submits that it is apparent from the first point of his answer to that question, reproduced in paragraph 56 of the judgment under appeal, that he was required to ‘propose feasible solutions in terms of amendments to partners’ primary legislation’, which clearly shows that he proposed amendments to the legislation of partner countries, namely the Republic of Moldova and Ukraine, since he was assigned to the European Union Border Assistance Mission between Moldova and Ukraine (EUBAM).

19 In paragraph 57 of the judgment under appeal, the General Court incorrectly characterised the facts and distorted the relevant evidence in concluding that, first, that answer described an activity related to the provision of advice to external entities and, second, it is not apparent from that answer which specific legislation was drafted or drawn up in draft form. According to the appellant, that answer relates to the drafting and the proposal for amendments to customs legislation.

20 Next, as regards the second point of his answer to question 1b of the Talent Screener, reproduced in paragraph 58 of the judgment under appeal, the appellant submits that the General Court incorrectly characterised the facts in holding, in paragraph 59 of the judgment under appeal, that his experience does not cover the concept of ‘drafting’ referred to in the notice of competition at issue, but rather an activity relating to ‘analysis’ and ‘approval’ of reports.

21 In that regard, the appellant notes that it is apparent from that answer that he has examined ‘[Ukrainian] legislation relating to the physical examinations of goods in Odessa port [Ukraine]’ and that ‘the reported analysis concluded with recommendation to the Ukrainian Cabinet of Ministers’. Thus, there is no doubt that he had to explain, by means of an analysis, which amendments to the legislation were necessary, and for what reasons. That activity is covered by the criterion relating to the drafting of legislative provisions or procedures for the attention of the Cabinet of Ministers, like the tasks of persons working in the Commission’s Directorate-General (DG) for Taxation and Customs Union, when they propose legislative amendments to the College of Commissioners.

22 Lastly, as regards the third point of his answer to question 1b of the Talent Screener, reproduced in paragraph 61 of the judgment under appeal, the appellant criticises the General Court for having incorrectly characterised certain facts and for having erred in law in finding, in paragraphs 63 to 65 of that judgment, that the drafting of guidelines for the authorities of partner countries did not amount to the drafting of legislative provisions. The General Court failed to take account of the specific nature of customs law, which provides for certain subjects or areas to be regulated by guidelines, the drafting of which is equivalent to drafting customs legislation.

23 In the alternative, the appellant submits that the General Court erred in law by interpreting Annex II to the notice of competition at issue too strictly, laying down the selection criteria to be taken into account in the Talent Screener.

24 In paragraph 53 of the judgment under appeal, the General Court held that the drafting of legislation, rules or procedures refers to provisions which are binding. The General Court failed to consider that the selection criterion referred to in point 1.1 of Annex II to that notice of competition covers, in addition to the drafting of legislative provisions, the drafting of rules, procedures and national customs instructions, consisting inter alia in the drafting of guidelines, recommendations, vademecum and similar acts. In particular, national instructions cannot constitute binding provisions, so that the General Court erred in law in holding that the criterion relating to the ‘drafting of legislation, rules and procedures’ requires involvement in the drafting of binding legislation, thereby excluding customs rules and procedures.

25 Point 1.1 also refers to experience in the drafting of legislation, rules and procedures acquired, inter alia, in a customs office. However, ordinary customs offices usually do not draft binding legislation, rather they draft rules and procedures which take the form of non-binding administrative acts or circulars.

26 Lastly, according to the appellant, there is an inconsistency between that restrictive interpretation of point 1.1 of Annex II to the notice of competition at issue and the broader and more reasonable interpretation adopted in paragraph 110 of the judgment under appeal, according to which the drafting of comments relating to preparatory work, proposals or opinions containing proposals for legislative or regulatory texts is regarded as sufficient.

28 In accordance with the Court’s settled case-law, it follows from the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that the General Court has exclusive jurisdiction, first, to establish the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and, second, to assess those facts. Therefore, the appraisal of the facts by the General Court does not constitute, save where the clear sense of the evidence produced before it is distorted, a question of law which is subject, as such, to review by the Court of Justice (judgment of 25 June 2020, EUSC v KF, C‑14/19 P, EU:C:2020:492, paragraph 103 and 104 and the case-law cited).

29 Where an appellant alleges distortion of the evidence by the General Court, that person must, under Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) of the Rules of Procedure of the Court, indicate precisely the evidence alleged to have been distorted by the General Court and show the errors of appraisal which, in that person’s view, led to such distortion. In addition, according to settled case-law, that distortion must be obvious from the documents in the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence (judgment of 25 June 2020, EUSC v KF, C‑14/19 P, EU:C:2020:492, paragraph 105 and the case-law cited).

30 In the present case, it is apparent, in essence, from paragraph 52 of the judgment under appeal that the General Court took the view that the selection board made no manifest error of assessment in not awarding any marks to the appellant for his answer to question 1b of the Talent Screener, since that board considered that his experience did not include the drafting of legislation, rules and procedures. In that regard, the General Court examined, in paragraphs 54 to 64 of that judgment, the various points of the appellant’s answer to that question.

31 As regards, first of all, the first point of that answer, as reproduced in paragraph 56 of the judgment under appeal, it should be noted that the appellant stated therein, inter alia, that his role consisted in ‘propos[ing] feasible solutions in terms of amendments to partners’ primary legislation’. Thus, contrary to what the appellant claims, it must be held that the General Court did not incorrectly characterise the facts or distort the evidence produced before it when it concluded, in paragraph 57 of that judgment, that the appellant had not stated that he had himself drafted legislative provisions, rules or procedures and that, in addition, it was not apparent from that statement which specific provisions the appellant had drafted.

32 Next, so far as concerns the second point of the appellant’s reply to question 1b of the Talent Screener, reproduced in paragraph 58 of the judgment under appeal, from which it is apparent, inter alia, that the appellant has ‘reviewed and approved (therefore analysed and studied relevant provisions) experts’ reports on amendments proposals in [national legislation]’, it must also be held that, contrary to what the appellant claims, the General Court did not incorrectly characterise the facts when it held, in paragraph 59 of the judgment under appeal, that such experience does not cover the concept of ‘drafting’ referred to in the notice of competition at issue, but rather an activity relating to analysis and approval of reports.

33 Such an answer does not show experience in drafting legislation, rules or procedures. In those circumstances, the comparison by the appellant of his professional experience and the tasks carried out by persons working in the Commission’s DG Taxation and Customs Union, even if it were relevant, cannot call into question the fact that that answer does not in any way show that the appellant has experience in drafting legislative provisions, rules or procedures.

34 Lastly, as regards the third point of the appellant’s answer to question 1b of the Talent Screener, he submits that the General Court incorrectly characterised the facts and erred in law in holding, in paragraphs 63 to 65 of the judgment under appeal, that the drafting of guidelines for the authorities of partner countries did not constitute an activity of drafting legislative provisions.

35 In that regard, it should be noted, in the first place, that the appellant does not specify the nature of the alleged error of law made by the General Court.

36 In the second place, the appellant complains that the General Court failed to take account of the specific nature of customs law, which provides for certain subjects or areas to be regulated by guidelines, the drafting of which is equivalent to drafting customs legislation. Such an argument does not call into question the finding, made in paragraph 64 of the judgment under appeal, that, first, in his reply to a question put by the General Court, the appellant stated that the guidelines are a tool for interpreting pre-existing rules and, second, that question 1b was intended to assess whether the candidate 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.

37 In the light of the foregoing considerations, it must be held that the appellant has not adduced any evidence showing clearly the errors of appraisal which allegedly led the General Court to distort the facts or evidence, in accordance with the case-law referred to in paragraph 29 of the present judgment.

38 In the alternative, the appellant claims that the General Court erred in law by interpreting, in paragraph 53 of the judgment under appeal, Annex II to the notice of competition at issue too strictly, when it held that the criterion relating to the ‘drafting of … legislation, rules and procedures (including national instructions)’ requires involvement in the drafting of binding legislative provisions, thereby excluding ‘rules’ and ‘procedures’ which in the field of customs are not binding.

39 In that regard, it should be noted that although, in paragraph 53 of the judgment under appeal, when examining the concept of ‘drafting of legislation, rules or procedures’, the General Court referred to the drafting of provisions which are binding and intended to be applied generally, the fact remains that, in paragraph 64 of the judgment under appeal, it used as a criterion the drafting of 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.

40 It follows that, contrary to what the appellant claims, and irrespective of whether or not the national instructions and other acts referred to by him are binding, the General Court did not consider that, in order to satisfy the criterion relating to the drafting of legislative provisions, rules and procedures, it is essential to have drafted binding provisions.

41 In those circumstances, the first part of the first ground of appeal must be rejected as unfounded.

42 The second part of the first ground of appeal alleges incorrect characterisation of the facts and distortion of the evidence by the General Court in its examination of the selection board’s assessment of the appellant’s answer to question 6b of the Talent Screener, which sought to ascertain whether the candidates had obtained a university-level diploma in studies with specialisation in tax or customs law, business administration or economics, in addition to the diploma giving access to the competition in question.

43 The appellant claims that, as is apparent from paragraph 86 of the judgment under appeal, he had, in his answer to that question, mentioned two diplomas which were supplementary to the diploma giving access to the competition in question: a master’s degree in accounting, administration and finance issued by the main body of auditors and accountants of Udine (Italy) and a master’s degree in EU Law awarded by the High School of Public Administration in Rome (Italy). However, the selection board awarded him no marks for that answer.

44 As regards the master’s degree in accounting, administration and finance, the appellant submits that the General Court erred in law in finding that it could not be of a level equivalent to a university degree. That master’s degree is organised by the Italian regulatory body for chartered accountants and certified accountants and it has such an equivalent level by virtue of Italian law.

45 Furthermore, in paragraph 92 of the judgment under appeal, the General Court called into question the fact that that master’s degree could be regarded as a specialisation in the field of customs and taxation, in so far as of the 46 lessons mentioned, only 8 concerned tax law and none concerned the field of customs. However, the General Court failed to take account of the fact that, in Italy, customs matters form part of taxation and are dealt with in the context of tax law courses. Furthermore, the General Court erred in law by examining the appellant’s specialisation in the sole field of customs, whereas the relevant question concerned, inter alia, specialisation in customs or tax law.

46 As for the master’s degree in EU law, the General Court argued in paragraphs 94 and 95 of the judgment under appeal that that diploma did not relate to customs or tax law, business management or economics. According to the appellant, the General Court failed to take account of the fact that one of the cornerstones of the European Union is the customs union.

48 In the first place, so far as concerns the master’s degree in accounting, administration and finance, referred to in paragraph 43 of the present judgment, it is apparent from paragraph 89 of the judgment under appeal that, before the General Court, the appellant merely asserted that that qualification was equivalent to a university degree, referring to the Italian decree establishing the association of chartered accountants and certified accountants, but did not identify precisely the provision that confers on that qualification a level equivalent to that of a university degree. Thus, it must be held that, in his appeal, the appellant merely reiterates the assertions which he put forward at first instance, without showing in what way the General Court erred in law and, moreover, without giving any detail regarding the provision which conferred on that qualification a level equivalent to that of a university degree. In accordance with the case-law cited in paragraph 28 of the present judgment, it is sufficient to recall that, in the context of an appeal, the Court of Justice cannot, without alleging distortion of the evidence, review the General Court’s assessment of the facts or, a fortiori, carry out a new assessment of the factual circumstances.

49 Furthermore, although the appellant disputes the General Court’s findings, in paragraph 92 of the judgment under appeal, concerning the content of the subject forming part of that master’s degree, it should be noted that that aspect is examined by the General Court for the sake of completeness, as is apparent from paragraph 90 of that judgment. Thus, that argument of the appellant is, in any event, ineffective.

50 In the second place, as regards the master’s degree in EU law, referred to in paragraph 43 of this judgment, the appellant complains that the General Court failed to take account, in paragraph 94 of the judgment under appeal, of the fact that the customs union is one of the cornerstones of the European Union. As the General Court rightly observes in that paragraph, the appellant’s answer to question 6b of the Talent Screener, as reproduced in paragraph 86 of that judgment, did not contain any information concerning the fact that that diploma covered matters relating to customs or tax law and, if that were the case, the proportion of the programme devoted to those subjects.

51 It follows from the foregoing considerations that the appellant has not, in accordance with the requirements arising from the case-law referred to in paragraphs 28 and 29 of the present judgment, indicated precisely the evidence alleged to have been distorted by the General Court or shown the errors of appraisal which, in its view, led to that distortion.

52 In those circumstances, the second part of the first ground of appeal must be rejected as in part inadmissible, in part ineffective and in part unfounded.

54 The appellant submits that the General Court erred in law in rejecting as inadmissible the plea of illegality relating to the language rules laid down in the notice of competition at issue which he had raised.

55 Before the General Court, the appellant stated that the notice of competition at issue was unlawful in that it required candidates to choose a ‘language 2’ from a limited number of languages, namely English and French.

56 According to the appellant, in the light of the case-law of the Court of Justice, the possibility of pleading the illegality of a notice of competition in an action brought against an individual decision depends on the existence of a close link between that decision and the plea alleging that that notice of competition is unlawful.

57 In that regard, the General Court held, in paragraph 158 of the judgment under appeal, that the decision at issue was 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 appellant’s answers. Thus, the General Court found that there was no close link between the statement of reasons for that decision and the language rules of the competition, with the result that it held that the plea alleging that that notice of competition was unlawful was inadmissible.

58 According to the appellant, in the present case, there is clearly a link between the language rules of the competition and the decision at issue, since he was unable to answer the questions asked in the Talent Screener in his mother tongue or in a language other than English or French. The quality of his answers, their content, form and presentation were decisive factors for the evaluation of his professional experience.

59 In that regard, in paragraphs 67 and 69 of the judgment under appeal, the General Court criticised the appellant for having provided imprecise and/or insufficiently detailed answers in the Talent Screener. Thus, the fact that he had to reply in English or French had the effect of making his answers less precise than if he had been able to respond to them in a ‘language 2’ of which he had a better command, namely Spanish or, even better, Italian, which is his ‘language 1’, which confirms the existence of that close link.

60 Furthermore, in paragraph 161 of the judgment under appeal, the General Court found that what was at issue in the present case was not the linguistic presentation of the answers in the Talent Screener, but the content of those answers. According to the appellant, those findings are contradicted by the assessment of the General Court set out in paragraphs 67 and 69 of that judgment. In any event, his limited ability to write in English also affected the content of his answers.

62 As a preliminary point, it should be noted that it is apparent from paragraph 157 of the judgment under appeal that the notice of competition at issue required, as conditions for admission to the competition, first, knowledge of ‘language 1’ at minimum C1 level of the Common European Framework of Reference for Languages (CEFR) in at least one of the 24 official languages of the European Union and, second, for ‘language 2’, a minimum B2 level of the CEFR in English or French, that ‘language 2’ having to be different from ‘language 1’. Furthermore, it was stated that ‘language 2 [had to] be English or French’.

63 That being said, it should be borne in mind that, under Article 277 TFEU, any party may, in proceedings in which an act of general application adopted by an institution, body, office or agency of the Union is at issue, plead the grounds specified in the second paragraph of Article 263 TFEU in order to invoke before the Court of Justice of the European Union the inapplicability of that act.

64 According to the Court’s settled case-law, that provision gives expression to a general principle conferring upon any party to proceedings the right to challenge incidentally, with a view to obtaining the annulment of a decision addressed to that party, the validity of acts of general application which form the legal basis of that decision (see judgment of 8 September 2020, Commission and Council v Carreras Sequeros and Others, C‑119/19 P and 126/19 P, EU:C:2020:676, paragraph 67 and the case-law cited)

65 Since the purpose of Article 277 TFEU is not to allow a party to contest the applicability of any act of general application in support of any action whatsoever, the act the legality of which is called in question must be applicable, directly or indirectly, to the issue with which the action is concerned (judgment of 8 September 2020, Commission and Council v Carreras Sequeros and Others, C‑119/19 P and C‑126/19 P, EU:C:2020:676, paragraph 68 and the case-law cited).

66 Thus, in an action for annulment brought against individual decisions, the Court has accepted that the provisions of an act of general application that constitute the basis of those decisions or that have a direct legal connection with such decisions may legitimately form the subject matter of an objection of illegality (judgment of 8 September 2020, Commission and Council v Carreras Sequeros and Others, C‑119/19 P and C‑126/19 P, EU:C:2020:676, paragraph 69 and the case-law cited).

67 By contrast, the Court has held that a plea of illegality against an act of general application in respect of which the individual decision being challenged does not constitute an implementing measure is inadmissible (judgment of 8 September 2020, Commission and Council v Carreras Sequeros and Others, C‑119/19 P and C‑126/19 P, EU:C:2020:676, paragraph 70 and the case-law cited).

68 As regards, more particularly, the admissibility of a plea of illegality raised against a notice of competition, it is clear from the Court’s case-law, inter alia, that, in an action challenging subsequent acts in a recruitment procedure, an applicant may rely on the unlawfulness of acts adopted at an earlier stage in that procedure provided that they are closely linked to the contested acts. In such a procedure which is a complex administrative operation composed of a series of closely linked decisions, applicants cannot be expected to bring as many actions as the number of acts which may have affected them adversely (see, to that effect, judgment of 16 March 2023, Commission v Calhau Correia de Paiva, C‑511/21 P, EU:C:2023:208, paragraph 49 and the case-law cited).

69 Accordingly, a ground alleging an illegality in the notice of competition is admissible in so far as it concerns the reasons on which the contested decision is based. The criterion of a close link that stems from the case-law cited in paragraph 68 of this judgment therefore presupposes that the provisions of the notice of competition the illegality of which is pleaded have been applied in support of the individual decision that is the subject matter of the action for annulment (judgment of 16 March 2023, Commission v Calhau Correia de Paiva, C‑511/21 P, EU:C:2023:208, paragraph 50 and the case-law cited).

70 For the purposes of the examination of whether there is a close link between the statement of reasons for the individual decision being challenged and the contested provisions of the notice of competition, it is necessary to take into account the substance of the reasoning for the individual decision being challenged, and not merely the formal reasons (see, to that effect, judgment of 16 March 2023, Commission v Calhau Correia de Paiva, C‑511/21 P, EU:C:2023:208, paragraph 52).

71 The existence of such a close link must also be rejected where the contested provisions of the notice of competition are unconnected with the reasons underlying the individual decision being challenged (judgment of 16 March 2023, Commission v Calhau Correia de Paiva, C‑511/21 P, EU:C:2023:208, paragraph 53).

72 In the present case, as regards the statement of reasons for the decision at issue, it is apparent from paragraph 4 of the judgment under appeal, as recalled in paragraph 6 above, that the appellant was not admitted to the assessment centre on the ground that he had not obtained, for his answers to the questions asked in the Talent Screener, a sufficient number of marks to be invited to take part in those tests.

73 Thus, the General Court did not err in law in finding, in paragraph 158 of the judgment under appeal, that the decision at issue was 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 appellant in the Talent Screener.

74 Contrary to what the appellant claims, the General Court did not in any way criticise him, in paragraphs 67 and 69 of the judgment under appeal, for having provided imprecise or insufficiently detailed answers. In that regard, first, it must be stated that paragraph 67 of that judgment clearly does not contain any assertion relating to the appellant’s answers. Second, in paragraph 69 of that judgment, the General Court merely stated, with regard to the appellant’s claim relating to his professional experience, which he put forward in his action at first instance, that the reference to that experience was not sufficiently precise in his answer to question 1b of the Talent Screener, with the result that the selection board had not been in a position to assess its relevance. That board was required to assess the candidatures, at the Talent Screener stage, solely on the basis of the information provided in the candidates’ answers, as stated in the notice of competition at issue.

75 Consequently, the General Court’s assertion in paragraph 69 of the judgment under appeal does not in any way contradict the finding, made in paragraph 161 of that judgment, that the number of marks awarded to the appellant for his answers to the questions asked in the Talent Screener is explained not by their linguistic presentation or by problems of clarity in the written expression, but by the content of those answers.

76 Moreover, it is apparent from the file submitted to the Court, and in particular from the notice of competition at issue, that no language or communication skills were assessed in the Talent Screener. Therefore, and contrary to the facts of the case that gave rise to the judgment of 16 March 2023, Commission v Calhau Correia de Paiva (C‑511/21 P, EU:C:2023:208), a finding by the selection board regarding his knowledge of English cannot be inferred from the marks obtained by the appellant in that test.

77 In those circumstances, it must be held that, in the present case, it is clear that the provisions of the notice of competition at issue relating to the language rules have no connection with the statement of reasons for the decision at issue. Consequently, in accordance with the case-law referred to in paragraph 71 of the present judgment, the General Court did not err in law in concluding, in paragraph 166 of the judgment under appeal, that there was no close link between the plea of illegality raised by the appellant and the grounds of that decision.

78 It follows that the second ground of the appeal must be rejected as being unfounded.

79 It follows from all of the foregoing considerations that, since none of the grounds of appeal has been upheld, the appeal must be dismissed in its entirety.

80 Under Article 184(2) of the Rules of Procedure, where the appeal is unfounded, the Court is to make a decision as to the costs. Under Article 138(1) of those rules, applicable to the procedure on appeal pursuant to Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

81 In the present case, since the Commission has applied for costs and the appellant has been unsuccessful, the latter must be ordered to pay the costs.

2. Orders HC to bear his own costs and to pay those incurred by the European Commission.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> HC v Commission (Appeal - Civil service - Recruitment - Open competition - Judgment) [2023] EUECJ C-102/22P (27 April 2023) URL: http://www.bailii.org/eu/cases/EUECJ/2023/C10222P.html Cite as: EU:C:2023:351, [2023] EUECJ C-102/22P, ECLI:EU:C:2023:351

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