Judgments nº T-548/18 of Tribunal General de la Unión Europea, January 13, 2021
| Resolution Date | January 13, 2021 |
| Issuing Organization | Tribunal General de la Unión Europea |
| Decision Number | T-548/18 |
(Civil service - Recruitment - Notice of competition - Open Competition EUIPO/AD/01/17 - Decision not to place the applicant’s name on the reserve list for the competition - Composition of the selection board - Stability - Liability)
In Case T-548/18,
Lars Helbert, residing in Alicante (Spain), represented by H. Tettenborn, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by A. Lukošiūtė and K. Tóth, acting as Agents, assisted by B. Wägenbaur, lawyer,
defendant,
ACTION pursuant to Article 270 TFEU seeking, on the one hand, annulment, first, of the decision of 1 December 2017 of the selection board for Competition EUIPO/AD/01/17 - Administrators (AD 6) in the field of intellectual property not to place the applicant’s name on the reserve list drawn up with a view to the recruitment of administrators by EUIPO and, second, of the decision of that selection board of 7 March 2018 rejecting the applicant’s request for review in its final form following EUIPO’s decision of 8 June 2018 rejecting his complaint, and, on the other hand, compensation for the damage that the applicant claims to have suffered as a result,
THE GENERAL COURT (Fourth Chamber),
composed of S. Gervasoni, President, P. Nihoul (Rapporteur) and J. Martín y Pérez de Nanclares, Judges,
Registrar: P. Cullen, Administrator,
having regard to the written part of the procedure and further to the hearing on 2 July 2020,
gives the following
Judgment
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Background to the dispute
1 On 12 January 2017, the European Personnel Selection Office (EPSO) published in the Official Journal of the European Union the notice of Open Competition EUIPO/AD/01/17 - Administrators (AD 6) in the field of intellectual property (OJ 2017 C 9 A, p. 1; ‘the notice of competition’). The purpose of that competition, organised by EPSO, was to draw up a reserve list for the recruitment of administrators by the European Union Intellectual Property Office (EUIPO). A corrigendum to that notice was published in Official Journal C 315 A of 22 September 2017.
2 The notice of competition stated, under the heading ‘How will I be selected?’, that candidates who satisfied the eligibility requirements and had obtained one of the highest marks in the pre-selection based on qualifications would be invited to attend ‘EPSO’s assessment centre’ where they would be assessed, by means of a series of ‘multiple choice questions’, on their verbal, numerical and abstract reasoning skills and then, by means of an interview, an e-tray exercise, a group exercise and a written test, on eight general competencies and finally, by means of an interview, on their specific competencies in the field covered by the competition.
3 The notice of competition stated that general competencies were assessed out of 80 points, the pass mark required for those general competencies being 40 points, and that the specific competencies were assessed out of 100 points, the pass mark required for those specific competencies being 50 points.
4 Annex III to the notice of competition concerning the ‘general rules governing open competitions’ stated, in point 6.4, that candidates could request a review of any decision taken by the selection board and, in point 6.5, that candidates had the right to address an administrative complaint to the appointing authority, namely the Executive Director of EUIPO.
5 The applicant, Mr Lars Helbert, applied to take part in the competition in question. He was informed by EPSO, on 12 July 2017, that he had been invited to the assessment centre, where he took part in the tests on 11 and 12 October 2017.
6 By letter of 1 December 2017, EPSO informed the applicant that the selection board had decided not to place him on the reserve list of successful candidates in the competition (‘the initial decision of the selection board’). The reason for this was that, having obtained 99.5 points for the tests taken at the assessment centre, the applicant was not among the candidates who had obtained the highest marks. The overall mark obtained by the last candidate on the reserve list following those tests was 102 points out of 180.
7 A document entitled ‘competency passport’ was attached to EPSO’s letter of 1 December 2017. It was apparent from that document that the applicant had obtained a total of 44.5 points out of 80 on completion of the tests designed to assess his general competencies and 55 points out of 100 in the specific competencies interview, that is to say, an overall mark of 99.5 points out of 180 for all those tests.
8 On 10 December 2017, the applicant submitted a request for review to the selection board.
9 The reserve list was published in Official Journal C 14 A of 16 January 2018.
10 On 26 February 2018, the applicant lodged a complaint with EUIPO pursuant to Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) against the initial decision of the selection board.
11 By letter of 7 March 2018, the chairperson of the selection board informed the applicant that the selection board had reviewed the applicant’s file following his request for review and that it confirmed its initial decision (‘the decision taken after review’).
12 On 29 April 2018, the applicant, at EUIPO’s suggestion, lodged a supplement to his complaint with EUIPO against the initial decision of the selection board, which had been confirmed by the decision taken after review.
13 By decision of 8 June 2018, notified to the applicant on the same date, EUIPO rejected that complaint (‘the decision rejecting the complaint’).
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Procedure and forms of order sought
14 By application lodged at the Court Registry on 18 September 2018, the applicant brought the present action.
15 By decision of the President of the General Court of 9 July 2019, taken pursuant to Article 27(1) of the Rules of Procedure of the General Court, the present case was assigned to a new Judge-Rapporteur sitting in the First Chamber.
16 By decision of the Court of 17 October 2019, taken pursuant to Article 27(5) of the Rules of Procedure, the present case was re-assigned to the Fourth Chamber.
17 Acting on a proposal from the Judge-Rapporteur, the Court decided to open the oral procedure and, by way of the measures of organisation of procedure provided for in Article 89 of the Rules of Procedure, requested the parties to lodge certain documents and put to them written questions, inviting them to respond in writing or at the hearing. The parties complied with those requests within the period prescribed.
18 The parties presented oral argument and answered the questions put to them by the Court at the hearing on 2 July 2020.
19 The applicant claims that the Court should:
- annul the initial decision of the selection board and the decision taken after review, in its final form, following the decision rejecting the complaint;
- order EUIPO to pay him compensation for the ‘moral and immaterial’ damage suffered because of the initial decision of the selection board and the decision taken after review;
- order EUIPO to pay the costs.
20 EUIPO contends that the Court should:
- dismiss the action in its entirety;
- order the applicant to pay the costs.
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Law
A. The application for annulment
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The subject matter of the application for annulment
21 By his first head of claim, the applicant seeks annulment of the initial decision of the selection board and of the decision taken after review, in its final form, following the decision rejecting the complaint. The application states that the initial decision of the selection board and the decision taken after review together form the ‘contested decision’.
22 In that regard, it should be noted that, on 10 December 2017, the applicant submitted a request for review of the initial decision of the selection board, in accordance with point 6.4 of Annex III to the notice of competition. By the decision taken after review, the selection board confirmed its initial decision.
23 According to settled case-law, where a person whose application for admission to a competition has been rejected seeks review of that decision on the basis of a specific provision which is binding on the administration, it is the decision taken by the selection board, after review, which constitutes the act adversely affecting that person, within the meaning of Article 90(2) of the Staff Regulations or, where applicable, Article 91(1) of those regulations (judgment of 16 May 2019, Nerantzaki v Commission, T-813/17, not published, EU:T:2019:335, paragraph 25; see also, to that effect, order of 3 March 2017, GX v Commission, T-556/16, not published, EU:T:2017:139, paragraph 21, and judgment of 12 February 2014, De Mendoza Asensi v Commission, F-127/11, EU:F:2014:14, paragraph 29).
24 The decision taken after review therefore replaces the initial decision of the selection board (judgment of 16 May 2019, Nerantzaki v Commission, T-813/17, EU:T:2019:335, paragraph 25; see also, to that effect, order of 3 March 2017, GX v Commission, T-556/16, not published, EU:T:2017:139, paragraph 22, and judgment of 12 February 2014, De Mendoza Asensi v Commission, F-127/11, EU:F:2014:14, paragraph 29).
25 It follows from the foregoing that the application for annulment must be interpreted as relating to the decision taken after review (‘the contested decision’).
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Substance
26 In support of his claim for annulment, the applicant raises, in essence, four pleas in law alleging, respectively:
- lack of stability in the composition of the selection board during the oral tests of the competition and lack of sufficient coordination measures implemented to ensure a consistent and objective assessment, equal opportunity and equal treatment of candidates;
- breach of the obligation to carry out a comparative and objective assessment of candidates, and breach of the principles of equal treatment and equal opportunity;
- manifest errors of assessment in the applicant’s evaluation;
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