Markov v Commission (Civil service - Officials - Recruitment - Notice of competition - Judgment) [2024] EUECJ T-1050/23 (13 November 2024)

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( Civil service - Officials - Recruitment - Notice of competition - Open competition EPSO/AD/383/21 - Decision not to include the applicant on the reserve list - Obligation to state reasons - Legal certainty - Legitimate expectations - Principle of good administration - Right to be heard - Liability )

Yavor Markov, residing in Sofia (Bulgaria), represented by I. Stoynev, lawyer,

European Commission, represented by J.-F. Brakeland and G. Niddam, acting as Agents,

composed of J. Svenningsen, President, J. Laitenberger (Rapporteur) and M. Stancu, Judges,

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

1 By his action under Article 270 TFEU, the applicant, Mr Yavor Markov, seeks, first, annulment of the decision of 28 February 2023 by which the selection board for competition EPSO/AD/383/21 decided not to include him on the reserve list for the competition (‘the decision of 28 February 2023’), and, second, compensation for the damage which he claims to have suffered as a result of the failure to include his name on the reserve list for the competition.

2 On 21 January 2021, the European Personnel Selection Office (EPSO) published in the Official Journal of the European Union the notice of open competition EPSO/AD/383/21 – Bulgarian-language (BG) lawyer-linguists (AD 7) (OJ 2021 C 22A, p. 1;‘the notice of competition’) organised with a view to drawing up, inter alia, a reserve list of Bulgarian-language lawyer-linguists in Grade AD 7, intended to fill vacant posts mainly within the European Parliament, the Council of the European Union and the Commission.

3 In point 5 of the section of the notice entitled ‘How will I be selected?’, as amended by the notice of 8 March 2022 amending the notice of competition - EPSO/AD/383/21 – Bulgarian-language (BG) lawyer-linguists (AD 7) (OJ 2022 C 111A, p. 7), it was stated that the assessment centre tests would consist of three tests, namely a general competency-based interview (in English), an oral presentation followed by a question and answer session, and the drafting of a summary, in the language of the competition, of a text written in the chosen ‘Language 3’, a language other than English and the language of the competition. The eight general competencies would each be assessed out of 10 points and the field-related competencies out of 100 points. The pass mark would be 40/80 in total for the general competencies and, in the case of the field-related competencies, 20/40 for the oral presentation and 30/60 for the summary.

4 On 30 January 2021 the applicant applied to be a candidate in that competition.

5 After successfully sitting the ‘multiple-choice’ question test and the translation test provided for in the notice of competition, the applicant was invited, by email of 31 May 2022, to participate remotely in two oral assessment centre tests. According to the letter of invitation, each test was to last between 40 and 50 minutes.

6 After sitting the written assessment centre test, which involved drafting a summary of a text, the applicant participated, on 13 and 22 June 2022 respectively, in the competency-based interview and the oral presentation test.

7 By letter of 29 November 2022, the selection board informed the applicant of its decision not to include him on the reserve list because he had obtained a score below the pass mark (‘the original decision’). That letter was accompanied by a competency passport, which indicated that the applicant had obtained an overall score of 189/260 and a score of 19/40 for the oral presentation, whereas the pass mark was 20/40. The letter further explained that the candidates included on the reserve list had all received at the least an overall score of 198/260.

8 On 2 December 2022, the applicant requested that the selection board review the original decision because the oral presentation test was vitiated by a material irregularity. By decision of 28 February 2023, the selection board confirmed the original decision.

9 On 19 March 2023, the applicant lodged a complaint under Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), by which he sought the annulment of the original decision and the decision of 28 February 2023.

10 On 30 May 2023, EPSO acknowledged receipt of the applicant’s complaint and informed him that the absence of a reply within four months of that complaint being lodged should be deemed to constitute a decision implicitly rejecting the complaint.

11 On 20 July 2023, EPSO’s failure to respond to the applicant’s complaint within the period of four months provided for in Article 90(2) of the Staff Regulations gave rise to a decision implicitly rejecting that complaint (‘the decision implicitly rejecting the complaint’).

12 By decision of 27 October 2023, EPSO rejected the applicant’s complaint (‘the decision explicitly rejecting the complaint’).

– order the Commission to pay damages in the amount of EUR 7 000 as compensation for the harm suffered;

15 It is apparent from the application that the applicant formally raises four pleas in law. By his first two pleas, the applicant seeks the annulment of the original decision. By his third plea, the applicant seeks the annulment of the decision of 28 February 2023. By his fourth plea, the applicant seeks the annulment of the decision implicitly rejecting the complaint. Lastly, in a section entitled ‘Form of order sought’, he claims payment of compensation in the amount of EUR 7 000 for the harm which he is to have suffered.

16 The applicant thus appears to be confusing the heads of claim and the pleas in law which are considered to be raised in support of them. The application must therefore be regarded as containing four heads of claim seeking, first, annulment of the original decision, second, annulment of the decision of 28 February 2023, third, annulment of the decision implicitly rejecting the complaint and, fourth, payment to him of the sum of EUR 7 000 as damages for the harm he claims to have suffered.

17 As regards the first head of claim seeking annulment of the original decision, it must be borne in mind that, according to settled case-law, where a person seeks the review of a decision taken by a selection board, 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. The decision taken after review therefore replaces the selection board’s original decision (see, to that effect, judgment of 6 July 2022, VI v Commission, T‑20/21, not published, EU:T:2022:427, paragraph 15 and the case-law cited). It follows that it is the decision of 28 February 2023 which constitutes the act adversely affecting the applicant in the present case. The heads of claim seeking annulment of the original decision and of the decision of 28 February 2023 must therefore be regarded as seeking annulment only of the latter decision.

18 Furthermore, in the context of his third head of claim directed against the decision implicitly rejecting the complaint, the applicant submits that, in view of the lack of a reply from EPSO to his complaint within the period of four months provided for in Article 90(2) of the Staff Regulations, the decision rejecting his complaint was made implicitly on expiry of that period, that is, on 20 July 2023.

19 With regard to that third head of claim, it is sufficient to recall that a claim for annulment formally directed against the rejection of a complaint has the effect of bringing before the Court the act against which the complaint was submitted, where that claim, as such, lacks any independent content (see order of 11 November 2021, QC v Commission, T‑77/21, not published, EU:T:2021:801, paragraph 19 and the case-law cited). Since the decision implicitly rejecting the complaint does not have any independent content, the claim for annulment at issue here must be regarded as being directed solely against the decision of 28 February 2023.

20 In support of his claim for annulment of the decision of 28 February 2023, the applicant essentially raises three pleas in law, alleging, first, the unlawful changing of the structure and the scope of the oral presentation test; second, the unlawful provision of inaccurate, unclear, ambiguous, inconsistent and contradictory information; and, third, breach of the right to be heard and of the obligation to state reasons.

The third plea in law, alleging breach of the right to be heard and of the obligation to state reasons

21 In the first part of his third plea, the applicant submits inter alia that, by the decision of 28 February 2023, the selection board infringed his right to be heard, as enshrined in Article 41(2)(a) of the Charter of Fundamental Rights of the European Union (‘the Charter’), by failing to consider all the arguments in his request for review and by examining arguments which he had not raised. In the second part of his third plea, the applicant claims that the selection board examined the arguments so perfunctorily that the decision of 28 February 2023 amounted to a mere blanket statement. The selection board therefore failed to provide reasons for that decision, in breach of the second paragraph of Article 296 TFEU, of Article 41(2)(c) of the Charter and of the ‘Code of good administrative behaviour for staff of the European Commission in their relations with the public’, annexed to Commission Decision 2000/633/EC, ECSC, Euratom of 17 October 2000 amending its Rules of Procedure (OJ 2000 L 267, p. 63; ‘the Code of Good Administrative Behaviour’).

– The first part of the third plea, alleging breach of the right to be heard enshrined in Article 41(2)(a) of the Charter

22 The applicant argues that, in the decision of 28 February 2023, the selection board did not consider the issue of the discrepancies between the information provided by EPSO and that contained in the relevant legal acts, an issue which he expressly raised in his request for review. The selection board thus infringed his right to be heard, since that right also requires the administration to pay due attention to the observations submitted by the person concerned, examining carefully and impartially all the relevant aspects of the individual case.

23 The applicant further submits that by stating that ‘[his] scores reflect[ed his] competencies as observed in the assessment centre’, the selection board failed to take into account the main arguments contained in his request for review related to the unlawful changing of the structure of the test and to the provision of inaccurate information to him, which also constitutes a breach of his right to be heard.

24 Moreover, the applicant claims that the selection board wrongly asserted that he had invoked, in support of his request for review, the results obtained in another selection procedure in the context of another competition, in so far as he referred to his personal experience in a previous competition simply by way of an example. That assertion likewise constitutes a breach of his right to be heard.

25 The applicant also submits that the selection board wrongly stated, in the decision of 28 February 2023, that the notice of competition referred to a separate part consisting of a presentation and a question and answer session focused exclusively on assessing knowledge of EU law. That discrepancy between the statement by the selection board and the wording of the notice of competition constitutes an infringement of Article 41(1) of the Charter.

26 The Commission contends that the applicant’s right to be heard was fully respected, and that therefore the present part of the third plea must be rejected as unfounded.

27 In the present case, the applicant claims that the selection board infringed his right to be heard, as enshrined in Article 41(2)(a) of the Charter. That provision states that the right to good administration includes the right of every person to be heard, before any individual measure which would affect him or her adversely is taken.

28 It should be noted that the applicant was able to request, on the basis of the general rules contained in Annex II to the notice of competition, the review of the original decision and to make known his complaints in that regard. The applicant was thus afforded the opportunity to be heard before the decision of 28 February 2023 was adopted (see, to that effect, judgment of 12 September 2018, PH v Commission, T‑613/16, not published, EU:T:2018:529, paragraphs 199 to 207).

29 In addition, the applicant alleges, first, by his arguments contained in paragraphs 22 and 23 above, that the selection board failed to respond to his main arguments and, second, by his arguments contained in paragraph 24 above, that the selection board distorted some of his arguments.

30 However, since a breach of the applicant’s right to be heard as enshrined in Article 41(2) of the Charter cannot be established on the basis of those complaints, they must be rejected as ineffective.

31 In any case, respect for the rights of the defence in no way requires the institutions, bodies, offices or agencies of the European Union to reply to each argument raised in the course of the proceedings, but merely that they place the interested parties in a position in which they may effectively defend their interests (see judgment of 21 December 2021, KS v Frontex, T‑409/20, not published, EU:T:2021:914, paragraph 88 and the case-law cited).

32 As regards the alleged infringement of Article 41(1) of the Charter which the selection board is to have committed by asserting that the notice of competition referred to a separate part consisting of a presentation and a question and answer session focused exclusively on assessing knowledge of EU law, it should be noted that the decision of 28 February 2023 simply informed the applicant that the ‘[oral presentation] test [had] consisted of a presentation followed by a question and answer session to assess [his] general competencies and of a presentation followed by a question and answer session to assess [his] field-related competencies as well as [his] knowledge of European Union law’, without linking that information to the wording of the notice of competition. The question of whether the conduct of the oral presentation test was contrary to the notice of competition falls under the examination of the merits.

33 Therefore, the first part of the third plea must be rejected as ineffective and, in any case, unfounded.

– The second part of the third plea, alleging breach of the obligation to state reasons

34 The applicant submits, in the application, that the selection board’s argument that its discretionary assessment is not subject to judicial review as it is the expression of a value judgment is irrelevant in the present case, since he is not calling into question the value judgment of the selection board, but rather arguing that there were irregularities and non-compliance with the law in the competition process. Accordingly, the selection board’s decision can be subject to judicial review. He claims that EPSO infringed its duty under the Code of Good Administrative Behaviour to inform him of the legal remedies available to him and the arrangements provided for in that regard.

35 With regard to the administration’s obligation to state reasons, the applicant argues in the reply that the purpose of the statement of reasons is to enable the persons concerned to ascertain the reasons for a measure and to enable the competent court to review its legality. He submits, in essence, that it cannot be concluded from the mere presence of superficial reasons which fail to address his main complaints that the second paragraph of Article 296 TFEU and Article 41(2)(c) of the Charter were observed.

36 The Commission contends that it complied fully with the obligation to state reasons and that therefore this part must be rejected as unfounded.

37 With regard to EPSO’s alleged breach of its obligation under the Code of Good Administrative Behaviour to inform the applicant of the legal remedies available to him, it is apparent from the actual wording of that code that it is a guide to good administrative behaviour which the institutions and their staff should observe in their relations with the public, and that, therefore, leaving aside the question of its binding force, it is not intended to govern the situation at issue here. Furthermore, no express provision of EU law imposes on the institutions a general obligation to inform the addressees of measures of the judicial remedies available or of the time limits for availing themselves thereof (see judgment of 22 December 2005, Gorostiaga Atxalandabaso v Parliament, T‑146/04, EU:T:2005:584, paragraph 131 and the case-law cited).

38 With regard, in addition, to the question of the inadequacy of the statement of reasons raised by the applicant, it should be borne in mind that, according to settled case-law, the obligation to state reasons provided for in Article 41(2)(c) of the Charter and in the second paragraph of Article 296 TFEU is intended, on the one hand, to provide the person concerned with sufficient details to determine whether the act adversely affecting him or her was well founded and whether it is appropriate to bring proceedings before the Court and, on the other, to enable that court to review the legality of the act (see, to that effect, order of 11 February 2022, OP v Commission, T‑736/20, not published, EU:T:2022:69, paragraph 29 and the case-law cited, and judgment of 11 October 2023, PF v Parliament, T‑317/22, not published, EU:T:2023:620, paragraph 13 and the case-law cited).

39 Furthermore, a statement of reasons need not be exhaustive but must, on the contrary, be regarded as adequate if it sets out the facts and legal considerations which are of decisive importance in the general scheme of the decision (see judgment of 6 April 2022, KU v EEAS, T‑425/20, not published, EU:T:2022:224, paragraph 40 and the case-law cited).

40 The Courts of the European Union have thus held that, 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 constituted an adequate statement of the reasons on which the selection board’s decisions are based (see judgment of 1 December 2021, HC v Commission, T‑804/19, not published, EU:T:2021:849, paragraph 40 and the case-law cited).

41 Finally, the obligation to state reasons is an essential procedural requirement which must be distinguished from the question whether the reasoning is well founded, which is concerned with the substantive legality of the measure at issue. The reasoning of a measure consists in a formal statement of the grounds on which that decision is based. If those grounds contain errors, those errors will affect the substantive legality of the measure in question, but not the statement of reasons in it, which may be adequate even though it sets out reasons which are incorrect (see judgment of 19 October 2022, MV v Commission, T‑624/20, not published, EU:T:2022:653, paragraph 49 and the case-law cited).

42 In the present case, it is apparent from the original decision, which was replaced by the decision of 28 February 2023, that the applicant was informed of the reason not to include his name on the reserve list, namely that he had not obtained the pass marks as set out in the notice of competition. A document entitled ‘Competency Passport’, which provided exhaustive information about his scores, was also annexed to the original decision. In the decision of 28 February 2023, the selection board refers explicitly to that document, stating that ‘the results provided in [the applicant’s c]ompetency [p]assport are correct’.

43 Accordingly, in the light of the case-law cited in paragraph 40 above, the second part of the third plea alleging breach of the obligation to state reasons is unfounded.

The first plea, alleging the unlawful changing of the structure and the scope of the oral presentation test

44 The first plea essentially consists of six parts. The first is based on breach of the principle of the protection of legitimate expectations, the second on infringement of the ‘general rules governing open competitions’, the third on infringement of Article 1(1)(e) of Annex III to the Staff Regulations, the fourth on breach of the principle of good administration, the fifth on breach of the Code of Good Administrative Behaviour and the sixth on the breach of the principles of legal certainty, the protection of legitimate expectations and good faith.

– The first part of the first plea, based on breach of the principle of the protection of legitimate expectations

45 The applicant submits, in essence, that the wording of the notice of competition was confusing. It also gave rise to a legitimate expectation as to the structure, scope and content of the oral presentation test. The applicant expected an oral presentation test consisting of a 5-minute presentation and a 15-minute question and answer session, in which his presentation would be discussed in the context of EU law. However, according to the applicant, the oral presentation test in fact consisted, in addition to that first part lasting a total of 20 minutes, of a second separate part concerning EU law lasting 30 minutes.

46 While the applicant acknowledges that he had reasonably to assume that the oral test intended to assess field-related competencies would include inter alia an assessment of his knowledge of EU law, he submits that the notice of competition does not contain any information about the organisation of another test concerning knowledge of EU law following the oral presentation test. Therefore, it was his legitimate expectation that his knowledge of EU law would be assessed solely in the context of the oral presentation test and not in an entirely separate additional part. The wording of the notice of competition was confusing, in that EPSO referred both to the test as a whole and to one of its constituent parts as the oral presentation.

47 In the reply, the applicant submits that, in the defence, the Commission reproduced the original version of Section 5 of the notice of competition and not the version amended by a corrigendum published in the Official Journal. In addition, the competition number stated by the Commission contains an error.

48 The applicant argues, furthermore, that the Commission referred, in its defence, to the selection board’s wide discretion in determining the rules and conditions of the competition, without taking into account that that discretion must comply with the law.

49 Moreover, the Commission also misrepresented the applicant’s claims by implying that he did not expect to have to answer questions on EU law.

50 The applicant submits that his legitimate expectations as regards the structure and the scope of the test were especially justified because the competition notice had to be read in conjunction with the provisions of a document entitled ‘General rules governing Open Competitions’, published in the Official Journal on 27 February 2015 (OJ 2015 C 70 A, p. 1; ‘the 2015 General Rules’), which did not provide for a separate part in which his knowledge of EU law would be assessed. That document, together with the notice of competition, constitutes the binding framework of the competition procedure.

51 On the issue of whether the 2015 General Rules were still in force at the time of the facts, the applicant submits, in the reply, that the Commission fails to produce any evidence to the contrary. He states in that regard that those general rules are still publicly accessible and can be found in the Official Journal and on the ‘eur-lex.europa.eu’ website without any indication that they are no longer in force.

52 In the absence of any legal acts expressly or tacitly repealing the 2015 General Rules, those rules must, in the applicant’s view, be regarded as having been in force at the time of the competition. Similarly, Annex II to the notice of competition does not repeal the 2015 General Rules, but rather simply supplements them.

53 Thus, the Commission incorrectly argues that the general rules contained in Annex II to the notice of competition were the only rules applicable at the time of the facts, in accordance with EPSO’s website. More specifically, the applicant argues that the link to EPSO’s website provided by the Commission in that regard redirects to a webpage which did not yet exist at the time of the facts, and that therefore the reference to that page is inadmissible.

54 In addition, the applicant argues that, even assuming that the 2015 General Rules were no longer in force at the time of the facts, he relied on official sources to identify the applicable provisions and acted in good faith and in accordance with the principle of legal certainty.

55 Lastly, the applicant relies on his experience as a candidate in a number of EPSO competitions to argue that he legitimately expected that the oral presentation test in the competition forming the subject of these proceedings would have the same structure and scope as the oral presentation test organised in the context of another EPSO competition, in which he also participated as a candidate. That test consisted solely of a presentation followed by a question and answer session. According to the applicant, there is no legally consistent explanation to justify EPSO departing from its previous practices. This is a fortiori the case since the description of the oral presentation test contained in the 2015 General Rules referred to in paragraph 50 above applies regardless of the type of competition.

57 As regards the right to rely on the principle of the protection of legitimate expectations, it is settled case-law that that right extends to any individual who is in a situation in which it is apparent that the EU administration has led him or her to entertain justified expectations by giving him or her precise assurances in the form of precise, unconditional and consistent information coming from authorised and reliable sources. However, a person may not plead breach of that principle unless he or she has been given precise assurances by the administration (see judgment of 6 July 2022, JP v Commission, T‑179/20, not published, EU:T:2022:423, paragraph 44 and the case-law cited). Furthermore, the assurances given must be compatible with the applicable rules (see judgment of 21 December 2022, OM v Commission, T‑118/22, not published, EU:T:2022:849, paragraph 54 and the case-law cited).

58 In the present case, although the applicant refers on a number of occasions to the principle of the protection of legitimate expectations, the satisfaction of the conditions set out in paragraph 57 above cannot be established on the basis of the information in the file.

59 In particular, with regard to the question of whether the administration provided precise, unconditional and consistent assurances, it must be held that the applicant himself observes that it is apparent from the wording of the notice of competition that EPSO referred to both the test as a whole and one of its constituent parts as the oral presentation. He goes on to state that he interpreted the notice of competition in the light of the 2015 General Rules, which in his view had to be read in conjunction with the notice of competition, and his experience in the context of previous competitions.

60 However, it is apparent from the notice of competition, both the original version thereof and the version amended by the notice of 8 March 2022 (see paragraph 3 above), that it was provided that ‘the oral presentation … be followed by a question and answer session … and assess [candidates’] general competencies, [their] field-related competencies as well as [their] knowledge of European Union law’. It must be clarified, as regards the claim that the Commission incorrectly reproduced, in the defence, the original version of the notice of competition, that the Commission sent the Court a corrigendum dated 1 March 2024 in order to rectify its error, and that there is therefore no need for the Court to give a ruling in that regard.

61 The 2015 General Rules provided that the oral presentation test consists of an ‘individual test of analysis and presentation in which [candidates] are asked to come up with a proposal concerning a fictitious work-related problem’ and that the candidates should, ‘after analysing the documentation provided, … present [their] ideas to a small group of people’.

62 Accordingly, since the respective descriptions of the oral presentation test in the notice of competition and in the 2015 General Rules are inconsistent, the applicant cannot reasonably claim that he considered that he had received precise, unconditional and consistent assurances from the administration. Furthermore, nor can such assurances be found to exist on the basis of the applicant’s experience in previous competitions, since the notice of competition states that, taken with its annexes, it forms the ‘binding legal framework’ for the selection procedure in the competition at issue.

63 Moreover, the case-law on the principle of the protection of legitimate expectations requires that the assurances given are compatible with the applicable rules. Therefore, an interpretation of the description of the oral presentation test in the light of the 2015 General Rules would presuppose, in any event, that those rules are applicable in the present case.

64 It should be noted in that regard that it follows from case-law that each notice of competition is adopted with a view to introducing rules on the conduct of one or more particular competitions, the regulatory framework of which is thus laid down in that notice in accordance with the objective set by the appointing authority. It is that regulatory framework, set up, where appropriate, in accordance with the rules of general application on the conduct of competitions, which governs the competition procedure from publication of the notice in question until publication of the reserve list containing the names of the successful candidates in the competition concerned (see judgment of 15 September 2016, Italy v Commission, T‑353/14 and T‑17/15, EU:T:2016:495, paragraph 66 and the case-law cited).

65 In the present case, the notice of competition expressly stated that, taken with its annexes, it formed the ‘binding legal framework for these selection procedures’ and asked candidates to ‘see [annex] II to read the general rules governing open competitions’.

66 Therefore, since it is apparent from the case-law cited in paragraph 64 above that the notice of competition lays down the regulatory framework of a particular competition and given that, in the present case, the notice of competition expressly provides that its annexes form part of the binding legal framework, the general rules contained in Annex II to the notice of competition were the applicable rules.

67 Furthermore, as regards the applicant’s argument that the general rules contained in Annex II to the notice of competition merely supplement the 2015 General Rules, it is sufficient to state that the binding legal framework is unambiguously set out in the notice of competition, which does not refer to the 2015 General Rules. That finding likewise applies in relation to the applicant’s claim that he relied on other official sources to identify the applicable provisions and acted in good faith and in accordance with the principle of legal certainty.

68 Therefore, in accordance with the case-law cited in paragraph 57 above, it must be held that the applicant cannot reasonably invoke a breach of the principle of the protection of legitimate expectations.

69 If the applicant’s arguments are to be understood as meaning that the selection board did infringe the notice of competition, it must be borne in mind that, according to settled case-law, the selection board of a competition has wide discretion as regards the details of the tests to be held in a competition. It is not for the Courts of the European Union to declare that content unlawful unless it exceeds the limits set out in the notice of competition or conflicts with the purpose of the tests or of the competition (see, to that effect, judgment of 30 November 2005, Vanlangendonck v Commission, T‑361/03, EU:T:2005:433, paragraph 38 and the case-law cited).

70 With regard, more specifically, to the oral tests of a competition, the selection board’s discretion is further extended by the freedom and the uncertainty characterising that type of test, which, by its very nature, is less standardised than a written test and the content of which may vary according to the experience and the personality of the different candidates and the answers which they provide to the selection board’s questions (see judgment of 30 November 2005, Vanlangendonck v Commission, T‑361/03, EU:T:2005:433, paragraph 39 and the case-law cited).

71 According to the applicant, the oral presentation test consisted of a first part comprising an oral presentation on a fictitious work-related problem, followed by a question and answer session on the subject of the presentation, and a second part including a brief presentation followed by general questions on EU law, with each part lasting 20 to 30 minutes. As is apparent from paragraph 60 above, the notice of competition stated that ‘the oral presentation … [would] be followed by a question and answer session … and [would] assess [the candidates’] general competencies, [their] field-related competencies as well as [their] knowledge of European Union law’. It is thus necessary to determine whether the oral presentation test as provided for by the selection board was consistent with the description in the notice of competition.

72 It must be held, in that regard, that it is unambiguously clear from the wording of the notice of competition that provision was made for an oral presentation test composed of an oral presentation and a question and answer session. It is, furthermore, expressly stated that the test would concern, inter alia, knowledge of EU law. On the other hand, nothing in the wording of the notice of competition allowed the conclusion to be drawn that the questions would relate solely to the oral presentation as such, or that the test would be limited to a particular duration. Moreover, it is apparent from the scoring grid for the oral presentation test that the selection board inter alia put questions concerning basic principles of EU law, related values, sources of EU law and EU procedures and institutions, which is consistent with the notice of competition.

73 Furthermore, the applicant himself acknowledges that he expected to have to make an oral presentation and for questions related to EU law to be put to him. Accordingly, and since no information as to the extent of the knowledge of EU law examined had been communicated, the claim relating to the changing of the structure and the scope of the oral presentation test concerns only the duration of that test. It must be held, in that regard, that the applicant does not produce any sound evidence to support the conclusion that he could in fact expect the total duration to be 20 minutes, in particular in view of the fact that the letter of invitation of 31 May 2022 expressly referred to a duration of 40 to 50 minutes. Furthermore, nor does the applicant produce any evidence to explain why preparation for a short question and answer session would be different from preparation for a more substantial question and answer session.

74 Therefore, in so far as the applicant in fact relies on a breach of the notice of competition, that complaint must also be rejected as unfounded.

– The second part of the first plea, alleging infringement of the ‘general rules governing open competitions’

75 The applicant submits that, by adding to the oral presentation test a separate part focused on knowledge of EU law, EPSO infringed the 2015 General Rules referred to in paragraph 50 above.

76 The applicant refers more specifically to the description of the oral presentation test as contained in point 2.5 of the 2015 General Rules, which applies to all competitions including an oral presentation test. He claims in that regard that the abovementioned point 2.5 makes no mention of any additional, separate part intended to assess knowledge of EU law, and that therefore EPSO was not entitled to add such a part to the oral presentation test.

77 Furthermore, the applicant argues that EPSO did not provide him with a manual containing detailed explanations about the oral presentation test, as is provided for in the 2015 General Rules.

78 For its part, the Commission contends that the 2015 General Rules relied on by the applicant were no longer in force when the competition was organised.

79 As regards the alleged infringement of the 2015 General Rules, it has been established, in paragraphs 63 to 67 above, that those rules did not apply in the present case.

– The third part of the first plea, alleging infringement of Article 1(1)(e) of Annex III to the Staff Regulations

81 The applicant considers that the failure to comply with the description of the oral presentation test, as contained in the 2015 General Rules, constitutes an infringement of Article 1(1)(e) of Annex III to the Staff Regulations, under which the notice of competition must state, where the competition is on the basis of tests, what kind they will be; the kind in question can only be in accordance with the applicable legal framework. This means, according to the applicant, that the description of the oral presentation test could have been understood only within the meaning of the 2015 General Rules. He therefore legitimately expected to take an oral presentation test as described in those general rules.

82 In the reply, the applicant states in that regard that either the notice of competition complied with the 2015 General Rules and, therefore, with Article 1(1)(e) of Annex III to the Staff Regulations, meaning that the selection board infringed both those general rules and the notice of competition, or, by failing to state the true kind of oral test, the notice of competition itself did not comply with Article 1(1)(e) of Annex III to the Staff Regulations, since it did not specify the true kind of oral presentation test, as set out in the 2015 General Rules.

83 Lastly, the applicant claims that the notice of competition does not contain any information about the field-related competencies, which also constitutes an infringement of Article 1(1)(e) of Annex III to the Staff Regulations.

84 The Commission argues that Article 1(1)(e) of Annex III to the Staff Regulations was not infringed.

85 As a preliminary point, it should be noted that the applicant alleges that the notice of competition is vitiated by a number of irregularities, without him however drawing any conclusions in that regard.

86 In the first place, with regard to the argument that the selection board infringed both the 2015 General Rules and the notice of competition because it failed to comply with the kind of test as specified in the abovementioned documents, reference must be made, first, to paragraphs 63 to 67 above, according to which the 2015 General Rules did not form part of the applicable legal framework in the present case, and, second, to paragraphs 69 to 74 above, by which it was held that the selection board had complied fully with the description of the oral presentation test, as set out in the notice of competition.

87 In the second place, as regards the argument that the notice of competition did not specify the true kind of test as set out in the 2015 General Rules, and that it therefore infringed Article 1(1)(e) of Annex III to the Staff Regulations, it is sufficient to observe that those rules were not applicable in the present case, and that therefore the applicant has not produced any evidence capable of establishing such an infringement.

88 In the third place, as for the argument that the lack of information on the field-related competencies also constitutes an infringement of Article 1(1)(e) of Annex III to the Staff Regulations, it should be observed that the notice of competition stated the kind of test, since it was clear from that notice that the test would consist of an oral presentation followed by a question and answer session. Article 1(1)(e) of Annex III to the Staff Regulations does not require that the details of the tests be stated.

89 The third part of the first plea must therefore be rejected as partly ineffective and partly unfounded.

– The fourth part of the first plea, alleging breach of the right to good administration enshrined in Article 41 of the Charter

90 The applicant submits that, in accordance with the right to good administration enshrined in Article 41 of the Charter, when the administration takes a decision concerning the situation of a competition candidate, it must take into consideration all the factors which may affect its decision and, in so doing, take into account inter alia the interests of that candidate.

91 The applicant states in that regard that, by arbitrarily changing the structure of the oral presentation test, EPSO did not take account of his interests and did not ensure that the oral presentation test would comply with the law. EPSO thus infringed Article 41 of the Charter and, therefore, breached his right to good administration.

92 The applicant states that, contrary to what the Commission contends, he did expect to have to answer questions relating to EU law, but not in the context of a separate part accounting for 60% of the oral presentation test, the total duration of which, moreover, was 50 minutes and not 20 minutes as provided for in the 2015 General Rules and stated on EPSO’s website.

93 The Commission contends that there was no change to the structure or the scope of the oral presentation test and therefore considers that the fourth part of the first plea is unfounded.

94 As regards the argument based on an infringement of Article 41 of the Charter on account of the alleged arbitrary change made to the structure of the oral presentation test, it must be recalled that, as is apparent, respectively, from paragraphs 69 to 74 and from paragraphs 63 to 67 above, the oral presentation test conducted by the selection board complied with the notice of competition and the 2015 General Rules did not apply in the present case, meaning that a change in the structure of the test could not be established.

– The fifth part of the first plea, alleging breach of the Code of Good Administrative Behaviour

96 In the first place, the applicant claims that the arbitrary changing of the structure and the scope of the oral presentation test constitutes a breach of the principle of legality, because EPSO did not act in accordance, inter alia, with the 2015 General Rules or the Staff Regulations.

97 In the second place, that change also constitutes a breach of the principle of consistency, as EPSO’s administrative behaviour was inconsistent and did not follow its ‘normal practice’.

98 The Commission argues that the structure of the oral presentation test was not changed and that all candidates were duly informed of the format, modalities and content of the test; the fifth part of the first plea is therefore unfounded.

99 It must be recalled that it is apparent from paragraph 37 above that the Code of Good Administrative Behaviour does not apply to the applicant’s situation.

100 In any event, it must be held that the applicant does not produce any specific evidence on the basis of which it may be concluded that the principles of legality and of consistency were breached. He simply states that that breach stems from an arbitrary change to the structure and the scope of the oral presentation test, which is contrary to the 2015 General Rules, the Staff Regulations and EPSO’s ‘normal practice’.

101 Accordingly, and also in view of the lack of any change to the structure of the oral presentation test, as found in paragraphs 69 to 74 above, and of the inapplicability of the 2015 General Rules, as found in paragraphs 63 to 67 above, the complaints based on the breach of the principles of legality and consistency, in so far as they stem from the Code of Good Administrative Behaviour, must be rejected as ineffective and, in any event, unfounded.

– The sixth part of the first plea, alleging breach of the principles of legal certainty, the protection of legitimate expectations and good faith

102 In the first place, the applicant relies on the principle of legal certainty, which requires, in particular, in accordance with settled case-law, that the law should be clear and precise, so that individuals may be able to ascertain unequivocally what their rights and obligations are and may take steps accordingly. That principle also applies to the rules governing EPSO competitions.

103 In the second place, the applicant relies on the principle of the protection of legitimate expectations, which extends, according to settled case-law, to any person who is in a situation from which it is apparent that the EU institutions led him or her to entertain justified expectations. That principle means that EU authorities may not arbitrarily change their policies, but must rather maintain consistency.

104 The applicant relies more specifically on his legitimate expectation that the duration of the oral presentation test would be 20 minutes and that his knowledge of EU law would be assessed in the question and answer session provided for following his oral presentation, and not as part of a separate part of the test.

105 The applicant states in that regard that there are no strict rules as to the form of the representations which bind the authorities. They may arise, inter alia, from communications, administrative practices and codes of conduct. He thus relied on the notice of competition, but also on private messages from the selection board and information on EPSO’s official website, the experience he acquired by participating in a number of EPSO competitions and the Code of Good Administrative Behaviour.

106 In the third place, the applicant also submits that, again according to settled-case-law, the conduct of an authority in administrative matters is subject to observance of the principle of good faith. That principle requires that those who act in good faith on the basis of the law as it is, or seems to be, must not be frustrated in their expectations, and it encompasses binding pronouncements. In that regard, the applicant argues that he legitimately expected EPSO to observe that principle, and that he therefore approached the competition in good faith and construed EPSO’s public pronouncements and the messages communicated to him by EPSO as a ‘functional whole’.

107 The Commission contends that, since there was no change to the scope or the structure of the test, there was no breach of those principles.

108 It must be held that, in the context of this part of the plea, the applicant does not produce any additional specific evidence from which it could be concluded that the principles of legal certainty, the protection of legitimate expectations and good faith were breached. Reference must thus be made to the considerations relating to the five parts set out above and the sixth part must also be rejected as unfounded, with the result that the first plea must be dismissed in its entirety.

The second plea, alleging the unlawful communication of inaccurate, unclear, ambiguous, inconsistent and contradictory information

109 By its second plea, the applicant criticises EPSO for having communicated to him, by different means, inaccurate, unclear, ambiguous, inconsistent and contradictory information, upon which he based his approach to the oral presentation test and which created legitimate expectations on his part.

110 The second plea is composed, in essence, of four parts. In the first part, the applicant relies on the principle of the protection of legitimate expectations. The second, third and fourth parts are based, respectively, on breach of the principle of good administration, breach of the Code of Good Administrative Behaviour and breach of the principles of legal certainty, the protection of legitimate expectations and good faith.

– The first part of the second plea, based on breach of the principle of the protection of legitimate expectations

111 The applicant states, in essence, that EPSO made several statements, inter alia on its official website, concerning the arrangements for the oral presentation test. The applicant relied on that information and entertained a legitimate expectation in that regard.

112 In the first place, the applicant refers to the assignment page for the oral presentation test, on which it was stated that, following his own oral presentation, his field-related competencies would be assessed in ‘the remaining part(s)’. He argues that that description, which is confusing, is, however, only partly in accordance with the 2015 General Rules, since it vaguely hints that the test may include more than one part.

113 In the second place, the applicant refers to the webpage entitled ‘Sample tests’, on which it was stated that the oral presentation test, consisting of an oral presentation regarding a fictitious problem and related questions, would last for 20 minutes, a fact which the Commission itself acknowledges. He considers that description to be fully in accordance with the 2015 General Rules.

114 In the applicant’s view, that description was supposed to be up to date and authoritative as it was published with a view to giving information about the format of the competition. Accordingly, and based on his previous experience with EPSO’s administrative practices, the applicant believed in good faith that the information on the webpage entitled ‘Sample tests’ was up to date and authoritative, and he therefore entertained a legitimate expectation regarding the scope and the structure of the oral presentation test and its 20-minute duration.

115 In the third place, the applicant states that that legitimate expectation was not called into question by the letter of invitation of 31 May 2022. While he notes that that letter did state that the oral presentation test would last ‘approximately 40-50 minutes’, the applicant submits that that duration was at odds with the 20-minute duration indicated in other official sources, inter alia the webpage entitled ‘Sample tests’.

116 The applicant considers that, given that the duration stated in the letter of invitation of 31 May 2022 was contrary to the 2015 General Rules, whereas the webpage entitled ‘Sample tests’ was entirely consistent with those rules, the applicant could reasonably conclude that the test would last for only 20 minutes and that the duration of 40 to 50 minutes stated in that letter of invitation took account of any technical or logistical issues. Furthermore, while he acknowledges that the 40- to 50-minute duration was not contrary to the notice of competition, he submits that neither was the 20-minute duration stated on EPSO’s website.

117 Thus, according to the applicant, the only legally consistent conclusion, in which he entertained a legitimate expectation, was that the oral presentation would consist of a 5-minute presentation and a 15-minute question and answer session.

118 In the fourth place, the applicant also refers to the name of the test, which is inaccurate, as 60% of the test was devoted not to an oral presentation as such, but to an examination concerning EU law. He states that the selection board’s wide discretion cannot justify the inappropriate choice for the name of the test.

119 In the reply, the applicant submits that, contrary to what the Commission alleges, it does not fall to the candidates to contact EPSO if they have doubts, but to EPSO to provide all candidates with clear and accurate information, and therefore he could have legitimately expected that the oral presentation test would be in accordance with the 2015 General Rules and EPSO’s website.

120 The applicant argues, furthermore, that EPSO’s website is supposed to provide additional information, since the notice of competition cannot provide enough detailed information.

121 The applicant observes in that regard that EPSO itself invited candidates, on the assignment page for the oral presentation test, to visit the webpage entitled ‘Sample tests’. The applicant considers, in essence, that, since EPSO’s public statements are meant to contain clear and accurate information in accordance with the principle patere legem quam ipse fecisti, the information contained on EPSO’s website was authoritative. He explains that he did not expect, contrary to what the Commission contends, that the sample tests provided would be exactly the same as those held as part of the competition, but that they would give him a true and accurate general idea of the tests, in particular the oral presentation test.

122 Moreover, the applicant observes that the version of EPSO’s website as reproduced by the Commission in the defence, which was created in September 2023, does not correspond to the version published at the time of the facts, which was amended by EPSO in order to limit the scope of its statements.

123 Furthermore, as regards the number of constituent parts of the oral test, the applicant submits, in essence, that it is not unequivocally clear from the wording of the assignment page for the oral presentation test that that test would consist of several parts.

125 It must be recalled that, according to the case-law cited in paragraph 57 above, in order for the applicant to rely on the protection of his legitimate expectations, the administration must, inter alia, have given him precise assurances in the form of precise, unconditional and consistent information coming from authorised and reliable sources. Moreover, the assurances given must be consistent with the applicable rules. The applicant cannot, however, plead breach of that principle unless he has been given such assurances.

126 It must be noted, in the present case, that, as has been found in paragraphs 64 to 67 above, the notice of competition and its annexes constitute the sole binding applicable legal framework here. That legal framework was likewise confirmed in the letter of invitation of 31 May 2022, which referred only to the notice of competition, the general rules governing open competitions annexed to that notice and the notice amending the notice of competition. It was, moreover, stated in that letter of invitation that the oral presentation test would last for 40 to 50 minutes. Lastly, that letter of invitation encouraged the applicant to visit the assignment page for the oral presentation test. It must be observed, in that regard, as the applicant notes, that the assignment page for the oral presentation test stated that, following his own oral presentation, his field-related competencies would be assessed in ‘the remaining part(s)’, instructions for which would be provided on the day of the test. The assignment page for the oral presentation test therefore alluded to the fact that the test could consist of several parts.

127 Thus, the information available to the applicant by means of, first, the notice of competition, second, the letter of invitation and, third, the assignment page for the oral presentation test, which were directly or indirectly communicated to him by EPSO, was precise, unconditional and consistent, in accordance with the case-law cited in paragraph 125 above and, furthermore, corresponds exactly to the oral presentation test which actually took place, as described by the applicant himself. The applicant cannot therefore reasonably claim that he legitimately expected that the oral presentation test would consist solely of an oral presentation followed by questions on that presentation, and that it would last for 20 minutes.

128 Moreover, the webpage entitled ‘Sample tests’ to which the applicant refers has no legal force and, at the very most, has only indicative force vis-à-vis the potential substantive content of the tests. That finding cannot be called into question by the allegation that, on the assignment page for the oral presentation test, EPSO itself invited candidates to visit the webpage entitled ‘Sample tests’. The assignment page for the oral presentation test does indeed state that candidates will find ‘sample tests’ on the abovementioned webpage, but does not indicate that those tests correspond in every detail to the tests which candidates will face as part of the testing. In addition, nor can the argument based on the applicant’s past experience succeed in the present case, given that it was expressly stated in the notice of competition and in the letter of invitation of 31 May 2022 that the notice of competition and its annexes formed the binding legal framework.

129 Accordingly, the first part of the second plea, alleging breach of the principle of the protection of legitimate expectations, must be rejected as unfounded.

– The second part of the second plea, alleging breach of the principle of good administration

130 The applicant submits that, in breach of his right to good administration as defined in paragraph 90 above, EPSO did not take into consideration all the factors which may affect its decision, such as the alleged discrepancies in the description of the oral presentation test and the resulting confusion, and did not take into account his interests. On the contrary, it provided him with inaccurate, unclear, ambiguous, inconsistent and contradictory information.

131 Whilst acknowledging that it does not have binding force, the applicant also relies on recital 11 of the Parliament resolution of 9 June 2016 for an open, efficient and independent European Union administration (2016/2610(RSP)), under which maladministration may result from the existence of contradictory, inconsistent or unclear rules and procedures. He claims that that recital holds high interpretative value.

132 The Commission refers to its arguments set out in paragraph 93 above and contends that the second part of the second plea is unfounded.

133 With regard to the alleged interpretative value held by recital 11 of the Parliament resolution of 9 June 2016 for an open, efficient and independent European Union administration (2016/2610(RSP)), the applicant provides no evidence to support giving such a value to that recital, especially since he himself acknowledges that it has no binding force.

134 As regards the allegation that EPSO should have, pursuant to the right to good administration enshrined in Article 41 of the Charter, taken into consideration the alleged discrepancies in the description of the oral presentation test as well as the applicant’s interests, it should be observed that the applicant does not provide, in connection with this part of the plea, any evidence capable of establishing a breach of his right to good administration. In any event, it must be held that the only documents forming the binding legal framework in the present case, namely the notice of competition and its annexes, are not contradictory, inconsistent or ambiguous. In view of the fact that it has been established that the applicant had been duly informed, by the notice of competition and the letter of invitation of 31 May 2022, of the binding legal framework applicable to the competition in question, the second part of the second plea must be rejected as unfounded.

– The third part of the second plea, alleging breach of the Code of Good Administrative Behaviour

135 According to the applicant, the provision of inaccurate, unclear, ambiguous, inconsistent and contradictory information constitutes a breach of the principle of consistency, since EPSO was not consistent with its own administrative behaviour.

136 It must be recalled that, as is apparent from paragraph 37 above, the Code of Good Administrative Behaviour does not apply to the applicant’s situation.

137 In any case, it must be held that the applicant does not produce any specific evidence to support a conclusion that the principle of consistency was breached. He simply states that such a breach stems from the communication of inaccurate, unclear, ambiguous, inconsistent and contradictory information. It is sufficient in that regard to recall that, as is apparent from paragraph 134 above, the only documents forming the binding legal framework in the present case, that is, the notice of competition and its annexes, are not contradictory, inconsistent or ambiguous.

138 The third part of the second plea must therefore be rejected as ineffective and, in any case, unfounded.

– The fourth part of the second plea, alleging breach of the principles of legal certainty, the protection of legitimate expectations and good faith

139 In the first place, the applicant submits that, by providing him with inaccurate, unclear, ambiguous, inconsistent and contradictory information, EPSO breached the principle of legal certainty as defined in paragraph 102 above.

140 In the second place, the applicant relies on a breach of the principle of the protection of legitimate expectations and repeats his arguments reproduced in paragraphs 103 to 105 above.

141 In the third place, the applicant relies on a breach of the principle of good faith and repeats his arguments reproduced in paragraph 106 above.

142 It must be held that, in this part of the plea, the applicant does not produce any specific evidence from which it may be concluded that the principles of legal certainty, the protection of legitimate expectations and good faith were breached, and therefore those complaints cannot be upheld.

143 Accordingly, the fourth part of the second plea must be rejected as unfounded and, therefore, the application for annulment of the decision of 28 February 2023 must be dismissed in its entirety.

144 In the context of his claim for damages, the applicant states that he suffered non-material damage as a result of EPSO’s negligence, as a consequence of which his name could not be placed on the reserve list. That fact gave rise to ‘a feeling of grave injustice, waste of effort, deceit, discouragement and anxiety’. The applicant calculates the harm suffered by him ex æquo et bono at EUR 7 000.

146 According to settled case-law, claims for compensation of material or non-material damage must be rejected where they are closely linked with the claims seeking annulment, which themselves have been rejected as inadmissible or unfounded (see judgment of 19 October 2022, MV v Commission, T‑624/20, not published, EU:T:2022:653, paragraph 145 and the case-law cited).

147 In the present case, it is apparent from the application that the claim for damages is closely linked to the claim for annulment, as the non-material damage for which the applicant seeks compensation arises from the unlawfulness vitiating the decision of 28 February 2023.

148 Since the application for annulment of the decision of 28 February 2023 has been rejected as unfounded, the claim for compensation must also be rejected and, therefore, the action must be dismissed in its entirety.

149 Under Article 135(1) of the Rules of Procedure of the General Court, if equity so requires, the Court may decide that an unsuccessful party is to pay only a proportion of the costs of the other party in addition to bearing his or her own costs, or even that he or she is not to be ordered to pay any.

150 In the present case, the Court finds that EPSO allowed the period of four months, provided for in Article 90(2) of the Staff Regulations, to expire without adopting a decision explicitly rejecting the complaint. The explicit decision rejecting the complaint was in fact adopted on 27 October 2023, that is, more than 7 months after the applicant lodged the complaint and only 3 days before the expiry of the 10-day extension of the time limit on account of distance provided for in Article 60 of the Rules of Procedure, which is added to the 3-month time limit for initiating proceedings. In those circumstances, the applicant cannot be criticised for not having waited to receive the decision explicitly rejecting the complaint or to learn of the statement of reasons contained therein before bringing the present action. Consequently, it is appropriate to order the parties to bear their own costs.

2. Orders Mr Yavor Markov and the European Commission to bear their own costs.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Markov v Commission (Civil service - Officials - Recruitment - Notice of competition - Judgment) [2024] EUECJ T-1050/23 (13 November 2024) URL: http://www.bailii.org/eu/cases/EUECJ/2024/T105023.html Cite as: [2024] EUECJ T-1050/23, EU:T:2024:824, ECLI:EU:T:2024:824

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