European Commission v Ana Calhau Correia de Paiva.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2023:208
• Docket Number: C-511/21
• Celex Number: 62021CJ0511
• Date: 16 March 2023

JUDGMENT OF THE COURT (Second Chamber)

16 March 2023 ( *1 )

(Appeal – Rules on languages – Open Competition EPSO/AD/293/14 – Notice of competition – Limitation of the choice of the second language of the competition to English, French or German – Non-inclusion on the reserve list – Plea of illegality of the notice of competition – Admissibility)

In Case C‑511/21 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 19 August 2021,

European Commission, represented by I. Melo Sampaio, B. Schima and L. Vernier, acting as Agents,

appellant

the other party to the proceedings being:

Ana Calhau Correia de Paiva, residing in Brussels (Belgium), represented by D. Rovetta and V. Villante, avvocati,

applicant at first instance,

THE COURT (Second Chamber),

composed of A. Prechal, President of the Chamber, K. Lenaerts, President of the Court, acting as a Judge of the Second Chamber, M.L. Arastey Sahún (Rapporteur), F. Biltgen and J. Passer, Judges,

Advocate General: L. Medina,

Registrar: M. Longar, Administrator,

having regard to the written procedure and further to the hearing on 21 September 2022,

after hearing the Opinion of the Advocate General at the sitting on 17 November 2022,

gives the following

Judgment

1 By its appeal, the European Commission seeks to have set aside the judgment of the General Court of the European Union of 9 June 2021, Calhau Correia de Paiva v Commission (T‑202/17, ‘the judgment under appeal’, EU:T:2021:323) by which the General Court annulled the decision of the selection board of open competition EPSO/AD/293/14 of 23 June 2016, rejecting the request for review made by Ms Ana Calhau Correia de Paiva following her exclusion from the reserve list of the competition (‘the decision at issue’).

Background to the dispute

2 The background to the dispute is set out in paragraphs 1 to 14 of the judgment under appeal and can be summarised as follows.

3 On 23 October 2014, the European Personnel Selection Office (EPSO) published the notice of open competition EPSO/AD/293/14 in the Official Journal of the European Union to draw up reserve lists from which to recruit officials as administrators of grade AD 7 for the Commission in the fields of competition law, corporate finance, financial economics, industrial economics and macroeconomics (OJ 2014 C 376 A, p. 1, and corrigendum OJ 2014 C 425 A, p. 1) (‘the notice of competition at issue’).

4 The notice of competition at issue provided, in Section IV thereof, for three computer-based admission tests that were multiple-choice questions and, in Section VI thereof, for tests to be held at an assessment centre and consisting of a case study, a group exercise and a structured interview.

5 In addition, in respect of the specific conditions for admission, the notice of competition required, in Section III.2.3 thereof, entitled ‘Knowledge of languages’, first, as regards the main language (language 1), a thorough knowledge, corresponding to at least level C1 of the Common European Framework of Reference for Languages (CEFR), of one of the official languages of the European Union and, secondly, as regards the second language (language 2), a satisfactory knowledge, corresponding to at least level B2 of the CEFR, of English, French or German, it being required that that second language be different from the main language.

6 Section VI.3 stated that the assessment centre tests would be held in the second language of the competition.

7 On 25 November 2014, Ms Calhau Correia de Paiva, a Portuguese national, submitted an application to take part in competition EPSO/AD/293/14 in the field of competition law. She chose Portuguese, her mother tongue, as her main language and French as her second language.

8 By letter of 19 March 2015, Ms Calhau Correia de Paiva was informed that she had successfully passed the computer screening tests.

9 She was invited, by letter of 15 April 2015, to the assessment centre tests.

10 By letter of 16 April 2015, Ms Calhau Correia de Paiva was invited by EPSO to attend a case study and for which she was offered the use of an Azerty FR keyboard, whilst being given option of choosing, alternatively, a Qwerty UK, Azerty FR/BE or Qwertz DE keyboard. She exercised that option and requested a change of keyboard in order to take the test using a Qwerty UK keyboard.

11 Ms Calhau Correia de Paiva took part in the tests held at the assessment centre on 13 May and 11 June 2015.

12 By letter of 9 November 2015, Ms Calhau Correia de Paiva was informed that the selection board for the competition had decided not to include her name on the reserve list (‘the decision of non-inclusion on the reserve list’) on the ground that she ‘[was] not among the candidates who obtained the highest aggregate marks in the Assessment Centre (at least 68.59 [points])’, her total score being 61.13 points.

13 On 19 November 2015, Ms Calhau Correia de Paiva requested a review of the decision of non-inclusion on the reserve list. By the decision at issue, the selection board for the competition rejected that request.

14 On 24 August 2016, Ms Calhau Correia de Paiva filed a complaint, within the meaning of Article 90(2) of the Staff Regulations of Officials of the European Union , against the decision of non-inclusion on the reserve list. In that complaint, she claimed that the limitation of the choice of the type of keyboard to be used for carrying out the case study constituted unequal treatment. She also alleged a failure to state reasons as regards the limitations relating to the types of keyboard made available to candidates and to the choice of the second language of the competition. Furthermore, she complained about the length of the review procedure.

15 By a decision of 22 December 2016, EPSO rejected that complaint as being both inadmissible, on the ground that it was out of time, and unfounded.

The procedure before the General Court and the judgment under appeal

16 By an application lodged with the registry of the General Court on 31 March 2017, Ms Calhau Correia de Paiva brought an action for the annulment of the decision at issue, through upholding, as necessary, a plea of illegality directed against the notice of competition at issue and the language regime it established.

17 In support of her action, she raised five pleas in law. The first plea alleged, in essence, an infringement of the principles of non-discrimination, proportionality and equal opportunities in that EPSO had required a Qwerty UK, Azerty FR/BE or Qwertz DE keyboard to be used for the case study. The second to fourth pleas alleged, in essence, the illegality of the notice of competition on account of the limitation of the choice of the second language of the competition to English, French or German. The fifth plea alleged, in essence, that EPSO failed to state reasons for its decision to endorse and promote a particular language regime, a breach of the competition notice and the breach of the right to sound administration.

18 By the judgment under appeal, the General Court examined, first of all, the plea of illegality raised by the second to fourth pleas against the notice of competition at issue, the admissibility and the merits of which were disputed by the Commission.

19 As regards the admissibility of that plea of illegality, the General Court recalled, in paragraph 46 of the judgment under appeal, that, in an action for annulment brought against individual decisions, the Court of Justice 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).

20 As regards, in particular a notice of competition, the General Court recalled, in paragraph 47 of the judgment under appeal, by referring in that respect to the settled case-law of the Court of Justice and, more particularly, to paragraph 17 of the judgment of 11 August 1995, Commission v Noonan (C‑448/93 P, EU:C:1995:264), that, in the context of a recruitment procedure, which is a complex administrative operation composed of a series of decisions, a candidate in a competition may, in an action brought against a subsequent step taken in that process, challenge the legality of earlier steps that are closely linked to it. Citing its own case-law, the General Court likewise recalled, also in paragraph 47 of the judgment under appeal, that such a candidate must, in particular, be able challenge the legality of the competition notice pursuant to which the step in question was taken.

21 Referring to paragraphs 28 and 29 of its judgment of 14 December 2017, PB v Commission (T‑609/16, EU:T:2017:910), the General Court recalled in paragraphs 49 and 50 of the judgment under appeal, that, where the plea alleging irregularities in the notice of competition, which has not been challenged in good time, concerns the statement of reasons for the contested individual decision, the action is accepted as admissible. However, if there is no close connection between the reasoning of the contested decision and the plea of illegality raised against the notice of competition which has not been challenged in good time, that plea must be declared inadmissible.

22 In the...