Yosu Galocha v European Joint Undertaking for ITER and the Development of Fusion Energy (T-561/16)

Contents

Judgment of the General Court (Fifth Chamber)25 January 2018^note(Civil service — Contract staff — Selection procedure for the Fusion for Energy Joint Undertaking — Reserve lists — Irregularity of the selection procedure — Subsequent measures relating to third parties — Interest of third parties — Interests of the service)In Case T‑561/16,Yosu Galocha, residing in Madrid (Spain), represented by A. Asmaryan Degtyareva and R.-B. Dan, lawyers,vEuropean Joint Undertaking for ITER and the Development of Fusion Energy, represented by R. Hanak, G. Poszler and S. Bernal Blanco, acting as Agents, assisted by D. Waelbroeck and A. Duron, lawyers,THE GENERAL COURT (Fifth Chamber),composed of D. Gratsias, President, A. Dittrich (Rapporteur) and P. G. Xuereb, Judges,Registrar: J. Palacio González, Principal Administrator,having regard to the written part of the procedure and further to the hearing on 14 September 2017,gives the following

Judgment

Background to the dispute and contested decisions

1The European Joint Undertaking for ITER and the Development of Fusion Energy (‘Fusion for Energy’), a joint undertaking within the meaning of Article 45 of the Euratom Treaty, was established by Council Decision 2007/198/Euratom of 27 March 2007 (OJ 2007 L 90, p. 58). Under Article 4 of the Annex to that decision, headed ‘Legal personality’, the undertaking has legal personality and enjoys, in the territory of each of its Members, the most extensive legal capacity granted to legal persons under their respective laws.

2The applicant, Mr Yosu Galocha, worked on the premises of Fusion for Energy in Barcelona (Spain) from 23 April 2014 as a temporary worker and from 5 May 2015 as an external subcontractor. In February 2016, Fusion for Energy’s contract with the company for which the applicant worked came to an end and after that date he no longer worked on the premises of Fusion for Energy.

3On 5 February 2015, Fusion for Energy published, on its website, vacancy notice F4E/CA/ST/FGIV/2015/001, for the constitution of two reserve lists for the recruitment of Cost Control Support Officers, one containing four candidates for its site in Barcelona, and the other, also containing four candidates, for its site at Cadarache (France). The successful candidates were to be recruited as contract staff under Article 3a of the Conditions of Employment of Other Servants of the European Union (‘the Conditions of Employment’) for a non-renewable period of a maximum of three years. In Section 3 of the vacancy notice in question, reference was made, for more information on the selection process for contract staff, to a Guide for Applicants, available on the Fusion for Energy website, as well as to the Conditions of Employment.

4Section 5 of the Guide for Applicants, which was available throughout the selection procedure, was headed ‘Overview of Selection Procedure’.

5Among other things, it provided for the setting up of a Selection Committee.

6The third paragraph of Section 5, subsection 1, of the Guide for Applicants, headed ‘Assessment of applications’, provided that eligible candidates who had the best profiles would be invited to sit oral and written tests. The fifth paragraph provided that further details of the date, time and address of their written and oral test appointments would be specified in the invitation letters sent to the eligible candidates. Finally, the sixth paragraph made it clear that, depending on the number of candidates, they might be invited to take the oral and written tests on the same day or on a few days in a row.

7Section 5, subsection 2, of the Guide for Applicants, entitled ‘Selection’, contained the headings ‘Oral test’ followed by ‘Written test’ and ‘Procedural aspect of the tests’.

8Under ‘Oral test’ it was stated that the test was designed to help the members of the Selection Committee to assess the candidate’s general presentation and motivation, his suitability to carry out the duties described under the ‘Responsibilities’ section of the vacancy notice, his specialist knowledge in the field of expertise, his capacity of expression in the working languages of Fusion for Energy and his ability to adjust to working in a multicultural environment.

9Under ‘Written test’ it was stated that, in the test, account would be taken of specific competencies for the vacant post to which the selection procedure related, the quality of the candidate’s writing style and presentation, and his general aptitudes and language abilities to the extent necessary for the performance of his duties.

10Under ‘Procedural aspect of the tests’, the second paragraph stated that the assessment of applicants would be completed only after all candidates had completed both the written and oral tests, and would be based on the score achieved in both tests. The fifth paragraph pointed out, inter alia, that any contact with the members of the Selection Committee was forbidden.

11On 26 February 2015, the applicant submitted his application for the selection procedure initiated by the vacancy notice at issue.

12By an email of 17 April 2015, the Human Resources Unit of Fusion for Energy invited the applicant to an interview. In a letter attached to that email, the applicant was informed that the interview would last approximately 45 minutes and would be carried out mainly in English, with the aim of helping the members of the Selection Committee to assess his general presentation and motivation, his suitability to carry out the duties described under the ‘Responsibilities’ section of the vacancy notice in question, his specialist knowledge in the field of expertise, his capacity for expression in the working languages of Fusion for Energy and his ability to adjust to working in a multicultural environment. The letter made no reference to a written test.

13On 11 May 2015, the applicant sat the oral test of the selection procedure in question.

14Neither the applicant nor the other candidates were sent any invitation to a written test.

15By an email of 4 June 2015, the Head of the Human Resources Unit of Fusion for Energy informed the applicant, on behalf of the Selection Committee, that in the light of the oral and written tests which he had attended, the Selection Committee had decided not to place his name on the reserve list.

16On the same date, the applicant submitted a request for review of that decision to the Selection Committee. In the request, he pointed out that no written test had been held and he asked that the outcome of the selection made solely on the basis of the oral test be annulled and that a written test be held before the Selection Committee took a final decision.

17Also on that same date, the applicant lodged a complaint under Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), applicable to contract staff under Article 117 of the Conditions of Employment, with the authority empowered to conclude contracts of employment (‘the AECE’), namely the Director of Fusion for Energy. In that complaint, he pointed out that no written test had been held and he asked that the outcome of the selection made solely on the basis of the oral test be annulled and that a written test be held before the Selection Committee took a final decision.

18By an email of 3 July 2015 the Selection Committee rejected the applicant’s request for review.

19The reserve lists drawn up on the basis of the outcome of the selection procedure at issue each contain the names of four successful candidates. The applicant’s name is not among them.

20On 25 June 2015, one of the successful candidates on those lists received an offer of employment from Fusion for Energy. He started work on 1 August 2015 at Cadarache. On 10 July 2015, another of the successful candidates was offered employment by Fusion for Energy. He started work on 1 November 2015 at Cadarache.

Procedure and forms of order sought

21By application lodged at the Registry of the European Union Civil Service Tribunal on 18 August 2015, the applicant brought the present action. The case was registered as Case F‑117/15.

22By a separate document lodged at the Registry of the Civil Service Tribunal on the same date, the applicant lodged an application for interim measures seeking an order of the President of the Civil Service Tribunal suspending the operation of Fusion for Energy’s decisions relating to the appointment of Cost Control Support Officers or, alternatively, in the event that those appointed had taken up their duties, suspending the performance of those duties.

23As a result of the application for interim measures, Fusion for Energy decided to suspend appointments from the reserve lists pending a decision in the present case.

24On 20 August 2015, the proceedings in the main action were suspended pursuant to the second sentence of Article 91(4) of the Staff Regulations pending a response to the applicant’s complaint.

25On 30 September 2015, Fusion for Energy rejected the applicant’s complaint.

26The application for interim measures was dismissed by an order of 1 October 2015, Galocha v Fusion for Energy Joint Undertaking (F‑117/15 R, EU:F:2015:114), and the costs were reserved. In the order, the President of the Civil Service Tribunal found that the applicant’s plea in law alleging failure to comply with the vacancy notice at issue and with the Guide for Applicants was, ‘at first sight’, well founded and that a prima facie case therefore existed. However, the applicant had not established that the condition of urgency was met.

27On 1 October 2015, the Civil Service Tribunal lifted the stay of the proceedings in the present case.

28On 10 December 2015, Fusion for Energy filed its defence.

29On 25 February 2016, the applicant filed his reply.

30On 7 April 2016, Fusion for Energy filed its rejoinder.

31Pursuant to Article 3 of Regulation (EU, Euratom) 2016/1192 of the European Parliament and of the Council of 6 July 2016 on the transfer to the General Court of jurisdiction at first instance in disputes between the European Union and its servants (OJ 2016 L 200, p. 137), the present case was transferred to the General Court as it stood on 31 August 2016. The case was registered under number T‑561/16 and assigned to the Fifth Chamber.

32On a proposal from the Judge-Rapporteur, the Court (Fifth Chamber) decided to open the oral part of the procedure and, in the context of the measures of organisation of procedure provided for in Article 89 of its Rules of Procedure, put written questions to the parties and requested Fusion for Energy to produce documents relating to the case. The parties replied to those questions and Fusion for Energy produced those documents within the time limits set.

33The parties presented oral argument and answered the questions put by the Court at the hearing on 14 September 2017.

34The applicant claims that the Court should:– annul the selection procedure at issue;– annul the reserve lists drawn up as a result of the selection procedure at issue;– annul the decisions to appoint successful candidates from those lists;– recognise the merits of organising a new selection procedure for the posts of Cost Control Support Officer;– recognise that a written test forms an appropriate part of the new selection procedure for the posts of Cost Control Support Officer, and recognise the merits of organising it immediately in order to select candidates;– declare wrongful and void Fusion for Energy’s failure to organise a written test as part of the selection procedures, as was provided for in the updated version of the Guide for Applicants;– order any measures that the Court deems appropriate in order to repeat the selection procedure in accordance with the rules laid down in the vacancy notice at issue and those set out in the Guide for Applicants referred to in that notice, the organisation of an oral test and a written test being compulsory;– order Fusion for Energy to pay the costs.

35Fusion for Energy contends that the Court should:– declare the action partially inadmissible;– in any event, dismiss the action as unfounded;– reject all the measures sought by the applicant by declaring them inadmissible or unfounded;– order the applicant to pay the costs and all the other expenses relating to the proceedings.

Law

The single plea alleging the irregularity of the selection procedure at issue

36The applicant puts forward a single plea, alleging the irregularity of the selection procedure at issue. In that regard, he maintains, among other things, that the Selection Committee failed to hold a written test, whereas the vacancy notice in question provided for such a test to be organised.

37Fusion for Energy disputes that argument.

38While conceding that the vacancy notice in question referred to the Guide for Applicants, which provided for the organisation of a written test, Fusion for Energy claims that the reference to a written test was the result of an inadvertent administrative error. It had never intended to hold a written test as part of the selection procedure in question. Since the procedure related to fixed-term posts designed to meet urgent needs, a shorter, less complicated selection method was required.

39Furthermore, according to Fusion for Energy, it was not clear beyond all doubt from the Guide for Applicants and the context of the selection procedure in question that a written test would be held. The applicant could have asked questions to obtain clarification on this point prior to or during the interview. According to Fusion for Energy, it is surprising that the applicant, if he had genuinely prepared for the oral and written tests following the instructions given in the Guide for Applicants, the rules on selection procedures at Fusion for Energy and the selection procedure plan for new staff, did not seek clarification on this point.

40In addition, Fusion for Energy contends that, for posts such as that of Cost Control Support Officer, preparation for an oral test was no different from preparation for a combined oral and written test. The Guide for Applicants did not establish any priority between the different tests that might be organised in a selection procedure. In accordance with the model general implementing provisions, for a post of member of the short-term contract staff, candidates were to be selected on the basis of their letters stating their reasons for applying, their curricula vitae and oral tests.

41Furthermore, all applicants in the selection procedure in question were subject to the same requirements, since none of them sat a written test. That being so, according to Fusion for Energy, the applicant was not in an unfavourable situation compared with the other candidates.

42Finally, Fusion for Energy adds that, as far as the applicant is concerned, the outcome of the selection procedure in question would not have been different had he been aware that no written test was to be held.

43In that regard, it should be noted that, under Article 6 of Decision 2007/198 and the first subparagraph of Article 10(2) of the Annex to that Decision, read in the light of recital 15 of the Decision, the Conditions of Employment are applicable to Fusion for Energy’s contract staff and successful candidates in the selection procedure in question were to be recruited as contract staff under Article 3a of the Conditions of Employment.

44It should also be pointed out that the vacancy notice at issue indicated that a written test was to be organised. First of all, the notice clearly refers to the Guide for Applicants for more information on the selection procedure in question. That Guide must therefore be regarded as forming an integral part of the vacancy notice. Secondly, according to the version of the Guide that was applicable during the selection procedure, provision was made for a written test and an oral test to be held. Thirdly, it must be noted that neither the vacancy notice nor the Guide contains information suggesting that the oral test might be eliminatory or that it might be decided to dispense with the written test in the course of the selection procedure concerned.

45Furthermore, it must be pointed out that the information given in the vacancy notice at issue, and therefore also the information given in the Guide for Applicants to which that notice referred, was binding on Fusion for Energy and should therefore have been respected by the Selection Committee and the AECE. The function of the vacancy notice is, first, to give those interested the most accurate information possible as to the conditions of eligibility for the post to be filled in order to enable them to assess whether it is appropriate for them to apply, and, second, to establish the legal framework within which the institution will undertake consideration of the comparative merits of the candidates (see, to that effect, judgment of 21 January 2004, Robinson v Parliament, T‑328/01, EU:T:2004:13, paragraph 55 and the case-law cited therein). The binding nature of the notice at issue is also confirmed by Part A, Section 2.1, of Fusion for Energy’s rules to guide selection procedures of 1 April 2013.

46It must therefore be concluded that, in conducting an assessment of the applicant and the other eligible candidates without having held a written test, the Selection Committee did not follow the procedure laid down in the vacancy notice at issue, whereas it was obliged to do so. The applicant is therefore right to claim that, in that respect, the selection procedure at issue was flawed.

47None of the arguments put forward by Fusion for Energy is capable of challenging that conclusion.

48First of all, Fusion for Energy maintains that the references to a written test in the Guide for Applicants and the email of 4 June 2015 were the result of an administrative error. The Selection Committee and the AECE were not consulted about the Guide for Applicants and had not signed it. In that context, Fusion for Energy also contends that, under Article 5(4) and (5) of the model general implementing provisions, the organisation of a written test is not compulsory for fixed-term posts that have to be filled quickly. Furthermore, according to Fusion for Energy, it was not clear beyond all doubt from the Guide for Applicants that a written test would be held, and the applicant should have realised that fact when he received his invitation letter and at the interview itself.

49Those arguments must be rejected.

50First of all, it must be noted that neither the vacancy notice in question nor the Guide for Applicants contained information that would have enabled candidates to realise that Fusion for Energy did not intend to organise a written test and that the information in the Guide about the organisation of a written test was the result of an administrative error. Contrary to the argument advanced by Fusion for Energy, the mere fact that Section 5 of the Guide for Applicants stated that further details about the selection procedure would be given in the invitation letter does not permit the conclusion that there was some doubt about whether a written test would be organised. The fifth paragraph of Part 5, Section 1 of the Guide, headed ‘Assessment of applications’, merely stated that further details of the date, time and address of their written and oral test appointments would be given in their invitation letter. It could not, however, be deduced from this that there were no plans to hold a written test or that Fusion for Energy could dispense with organising one.

51Next, in the light of the information in the Guide for Applicants, the mere fact that the invitation to attend an interview gave no details about the date, time or address of the written test did not permit the inference that the vacancy notice in question had been amended. At the very least, any such amendment would not have been publicised adequately. That finding is not called into question by the fact that the sixth paragraph of Part 5, Section 1 of the Guide stated that, for practical reasons, candidates might be invited to take the oral and written tests on the same day or on a few days in a row. Even taking account of that paragraph, it cannot be considered that the applicant should have suspected that no written test would be held, contrary to the clear information given in the Guide for Applicants.

52Furthermore, with regard to Fusion for Energy’s argument that, at the start of each interview conducted as part of the selection procedure at issue, the procedure to be applied was explained to all the candidates and the organisation of a written test was not mentioned, it need only be stated that that cannot be regarded as an amendment of the vacancy notice in question, since such an amendment was not, in any event, given adequate publicity and, besides, was not made in good time.

53Moreover, as regards Fusion for Energy’s arguments that it was entitled to organise a selection procedure without a written test, it should be noted that it was the vacancy notice at issue that constituted the legal framework within which it was to undertake consideration of the comparative merits of the candidates, and not the notice that it meant to publish or might have published. To take account of the notice which it meant to publish or might have published would be to deprive the vacancy notice at issue of the fundamental role that it must play in the recruitment procedure (see paragraph 45 above).

54Finally, as for Fusion for Energy’s argument that the Selection Committee and the AECE were not consulted about the Guide for Applicants, it need only be noted that the vacancy notice at issue referred expressly to the Guide and that, as a result of that reference, the information on the organisation of a written test contained in the Guide formed an integral part of that notice (see paragraph 44 above).

55Secondly, Fusion for Energy maintains that, even if a written test had been organised, it is unlikely that the final result would have been different as far as the applicant is concerned. In that regard, it need only be noted that, in the absence of any indication of the weighting between the written test and the oral test, it cannot be assumed that, if a written test had been held, the applicant’s name would not, on any view, have been included on the reserve lists.

56Thirdly, the fact that no written test was organised and that all the candidates were therefore treated in the same way does not call into question the fact that the selection procedure at issue was flawed in respect of all the candidates.

57Fourthly, the mere fact that Fusion for Energy acknowledged that it had made a mistake and apologised to the applicant is not sufficient to correct the breach of the selection procedure at issue.

58In the light of the foregoing, the single plea in law must be upheld, without there being any need to adjudicate on the other arguments advanced by the applicant in support of that plea.

The applicant’s heads of claim

59Since the single plea in law raised by the applicant has been upheld, it must now be considered to what extent that justifies upholding the applicant’s heads of claim (see paragraph 34 above).

60The applicant’s first head of claim seeks the annulment of the selection procedure at issue. In the light of the fact that the applicant does not seek the annulment of the vacancy notice at issue and that, in his second and third heads of claim, he seeks the annulment of the reserve lists drawn up as a result of that procedure and the annulment of the decisions to appoint successful candidates from those lists, the applicant’s first head of claim must be interpreted as seeking the annulment of the Selection Committee’s decision not to include his name on the reserve lists, which was notified to him by the email of 4 June 2015 from the Head of Fusion for Energy’s Human Resources Unit (see paragraph 15 above).

61The upholding of the single plea alleging the irregularity of the selection procedure at issue entails the annulment of that decision.

62In the second and third heads of claim, the applicant seeks the annulment of the reserve lists drawn up as a result of the selection procedure at issue and the annulment of the decisions to appoint successful candidates from those lists.

63Fusion for Energy contends that the annulment of the reserve lists and of the decisions appointing successful candidates from those lists would be a disproportionate penalty for the irregularity at issue. In that regard, it argues that two successful candidates have already concluded a contract with Fusion for Energy and have already taken up their duties. According to Fusion for Energy, even had such an irregularity not occurred, the applicant would not have had a greater chance of his name being included on the reserve lists, given the large number of candidates and the fact that he had not provided any evidence that the organisation of a written test would have altered the final outcome. In any event, it argues, the issue is one of, at the most, a loss of opportunity of being included in the reserve lists, which is not, in itself, any guarantee of future employment and warrants no more than limited financial compensation. In that context, account should also be taken of the fact that the applicant could have mitigated the alleged harm by requesting further information on the organisation of the written test.

64The applicant disputes those arguments.

65In that regard, it must be recalled that, theoretically, the applicant must be restored to the legal position he was in before the unlawful act committed by the Selection Committee.

66However, where restoring the applicant to his previous legal position involves not just the annulment of an act addressed to the applicant and adversely affecting him, but also the annulment of subsequent acts relating to third parties and favourable to them, the annulment of those subsequent acts will be ordered only if it does not appear excessive, particularly in the light of the unlawful act committed, the interests of the third parties and the interests of the service (judgment of 31 March 2004, Girardot v Commission, T‑10/02, EU:T:2004:94, paragraph 85).

67As regards the interests of third parties, it must be recalled that, in the light of the principles of proportionality and the protection of legitimate expectations, account must be taken of their legitimate expectations, which may relate in particular to the inclusion of their name on the reserve list and their appointment to the post to be filled (judgment of 31 March 2004, Girardot v Commission, T‑10/02, EU:T:2004:94, paragraph 86) or, as the case may be, the decision to offer them employment.

68In the circumstances of the present case, the successful candidates whose names were included on the reserve lists, including those who received offers of employment from Fusion for Energy, cannot rely on legitimate expectations. The vacancy notice at issue provided that a written test would be held. The reserve lists were drawn up and the offers of employment sent out without those candidates having sat such a test.

69Furthermore, given the nature of the irregularity, it also cannot be considered that annulment of the reserve lists and of the decisions appointing successful candidates from those lists would be excessive in the light of the interests of the service. First of all, the irregularity affected the assessment of all the candidates and cannot therefore be remedied by measures concerning only the applicant. Secondly, the present selection procedure was only small in scale.

70Consequently, the second and third heads of claim must be upheld.

71In the fourth to seventh heads of claim, the applicant requests the Court to recognise the merits of organising a new selection procedure for the posts of Cost Control Support Officer, to recognise that a written test forms an appropriate part of that new selection procedure, and recognise the merits of organising it immediately in order to select candidates, to declare wrongful and void Fusion for Energy’s failure to organise a written test as part of the selection procedures, as was provided for in the updated version of the Guide for Applicants, and to order any measures that the Court deems appropriate in order to repeat the selection procedure in accordance with the rules laid down in the vacancy notice at issue and those set out in the Guide for Applicants referred to in that notice, the organisation of an oral test and a written test being compulsory.

72Fusion for Energy maintains that those heads of claim are inadmissible.

73The applicant disputes those arguments.

74In that regard it should be recalled that, in an action brought under Article 270 TFEU and Article 91 of the Staff Regulations, the Courts of the European Union do not have jurisdiction to issue injunctions to the administration or to make declaratory rulings (judgment of 5 November 1996, Mazzocchi-Alemanni v Commission, T‑21/95 and T‑186/95, EU:T:1996:158, paragraph 44).

75Clearly, the fourth to seventh heads of claim go beyond annulment of the decision not to include the applicant’s name on the reserve lists, annulment of those lists and annulment of the decisions to appoint successful candidates from them, and their aim, in essence, is for the Court to issue injunctions to Fusion for Energy or to make a declaratory ruling.

76The fourth head of claim requests the Court to find that a new selection procedure must be organised for the posts of Cost Control Support Officer. The fifth head of claim requests the Court to find that a written test forms an appropriate part of a new selection procedure and should be organised by Fusion for Energy. The sixth head of claim seeks a finding from the Court that a selection procedure is not possible without a written test. Finally, in the seventh head of claim, the applicant requests the Court to order measures to ensure that the selection procedure is in accordance with the rules laid down in the vacancy notice at issue and in the Guide for Applicants.

77Consequently, the fourth to seventh heads of claim must be dismissed as inadmissible.

78In the light of the foregoing, the first to third heads of claim must be upheld, and therefore the decision not to include the applicant’s name on the reserve lists, the reserve lists themselves and the decisions appointing successful candidates from those lists must be annulled, and the remainder of the action dismissed.

Costs

79Under Article 134(1) of the Rules of Procedure, the unsuccessful party must be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

80Since Fusion for Energy has failed in its main submissions, it must bear its own costs and be ordered to pay those incurred by the applicant, in accordance with the form of order sought by the applicant.

Operative part

On those grounds,THE GENERAL COURT (Fifth Chamber)hereby:

1.Annuls the decision of the Selection Committee, notified to the applicant by the email of 4 June 2015 from the Head of the Human Resources Unit of the European Joint Undertaking for ITER and the Development of Fusion Energy, not to include Mr Yosu Galocha’s name on the reserve lists of selection procedure F4E/CA/ST/FGIV/2015/001;

2.Annuls the reserve lists of selection procedure F4E/CA/ST/FGIV/2015/001;

3.Annuls the decisions of the European Joint Undertaking for ITER and the Development of Fusion Energy to appoint successful candidates from the reserve lists of selection procedure F4E/CA/ST/FGIV/2015/001;

4.Dismisses the action as to the remainder;

5.Orders the European Joint Undertaking for ITER and the Development of Fusion Energy to pay the costs, including those incurred in the proceedings for interim measures.

Delivered in open court in Luxembourg on 25 January 2018.