Contents
Judgment of the General Court (Fourth Chamber)5 September 2018note(Civil Service — Recruitment — Open competition — Competition notice EPSO/AD/303/15 (AD 7) — Verification by EPSO of the conditions for admission to the competition — Professional experience of a period shorter than the minimum period required — Nature of the check of the eligibility condition relating to professional experience — Obligation to state reasons — Manifest error of assessment by the selection board of the competition — Equal treatment)In Case T‑671/16,Vincent Villeneuve, residing in Montpellier (France), represented by C. Mourato, lawyer,vEuropean Commission, represented by G. Gattinara and L. Radu Bouyon, acting as Agents,THE GENERAL COURT (Fourth Chamber),composed of H. Kanninen (Rapporteur), President, J. Schwarcz and C. Iliopoulos, Judges,Registrar: G. Predonzani, Administrator,having regard to the written procedure and further to the hearing on 8 November 2017,gives the following
Judgment
Background to the dispute
1The notice of open competition, based on qualifications and tests, EPSO/AD/303/15 — Development cooperation and managing aid to non-EU countries (AD 7) (OJ 2015 C 150A, p. 1, ‘the competition notice’), contained four separate sections entitled, respectively, ‘What tasks can I expect to perform?’, ‘Am I eligible to apply?’, ‘How will I be selected?’ and ‘When and where can I apply?’
2Under the section ‘Am I eligible to apply?’, it was stated that all of the ‘general conditions’ and the ‘specific conditions’ — relating to languages, qualifications and work experience — had to be met when the candidate validated the application form.
3The following were required under the special conditions relating to candidates’ qualifications and work experience:‘At least 4 years’ completed university studies attested by a diploma, and a minimum of 6 years’ professional experience in the field of the competition after obtaining the diplomaorAt least 3 years’ completed university studies attested by a diploma, and a minimum of 7 years’ professional experience in the field of the competition after obtaining the diploma.’
4Under the ‘How will I be selected?’ section of the competition notice, point 1, entitled ‘Computer-based Multiple-Choice Question (MCQ) tests’, stated that candidates who had validated their application form would be invited to sit a series of computer-based MCQ tests and that those tests would be eliminatory. Point 2 of that section, entitled ‘Selection based on qualifications’, was worded as follows:‘First, the eligibility requirements will be checked on the basis of the data provided in the candidates’ online application. There are two possible scenarios:If the computer-based MCQ tests are organised upfront, the files of the candidates will be checked for eligibility in descending order of the marks obtained until the number of eligible candidates reaches the threshold mentioned in point 1. The other files will not be checked.If the computer-based MCQ tests are not organised upfront, the files of all candidates will be checked for eligibility.Second, only for the eligible candidates selected as described above; the selection based on qualifications will be carried out using the information provided by the candidates in the application form’s Talent Screener tab. The selection board will assign each selection criterion a weighting that reflects its relative importance (1 to 3) and each of the candidate’s responses will be awarded between 0 and 4 points.The selection board will then multiply the points by the weighting for each criterion and add these to identify those whose profiles best match the duties to be performed.Please see Annex III for the list of criteria.’
5Annex I to the competition notice described indicatively the tasks that the administrators recruited following the competition would be expected to fulfil in the field of development cooperation.
6Annex III to the competition notice listed the criteria on the basis of which the selection board was to carry out the selection based on qualifications, in accordance with point 2 of the ‘How will I be selected?’ section of the competition notice.
7On 8 May 2015, the applicant, Mr Vincent Villeneuve, applied to take part in competition EPSO/AD/303/15.
8In the applicant’s application form, the ‘Professional Experience’ tab contained three entries, the first two of which were worded as follows:Entry 1 |Dates (YYYY-MM-DD) | From 2012-10-01 to 2015-05-08Experience month and day count | Computed values: Months: 31 Days: 7Type of experience | OtherAdditional details if |Other | Public relationsClassification | Self-employed… |Type of business or sector | Public relations and consultancy in services advocating population and development issues… |Occupation | ConsultantNature of duties | Collaboration with elected and non-elected representatives, parliamentary authorities, international organisations, national and international non-governmental organisations and members of civil society on parliamentary advocacy activities supporting policy development and implementation.| Development, design and management of project proposals, dissemination of parliamentary advocacy materials (bilingual newsletter, manuals, information reports) and assistance in parliamentary initiatives (hearings, round tables, amendments, questions, speeches, letters, editorials)Entry 2 |Dates (YYYY-MM-DD) | From 2008-08-31 to 2012-09-30Experience month and day count | Computed values: Months: 49 Days: 0Type of experience | OtherAdditional details if |Other | Advocacy servicesClassification | Non-governmental organisationAdditional details if |Other | European Parliamentary Forum on Population and Development (EPF)Type of business or sector | EPF is a network of members of parliaments from across Europe who are committed to protecting the sexual and reproductive health of the world’s most vulnerable people.Name and address of employer | European Parliamentary Forum on Population and Development — EPF23 rue Montoyer1000 BrusselsBelgiumOccupation | 2008-2010 Advocacy services assistant2011-2012 Project managerNature of duties | Organisation, management and coordination of international parliamentary conferences. Organisation, management and coordination of parliamentary delegations.| Support for fundraising and resource mobilisation activities.| Policy analysis and research in the field of development cooperation and demographic issues.| Publications.
9On 16 June 2015, the European Personnel Selection Office (EPSO) informed the applicant that, inter alia, ‘the candidates with the highest marks in the computer-based MCQ admission tests (and at least the minimum score required) and who satisfy the general and specific conditions for admission will proceed to the phase of the selection based on qualifications’.
10On 3 September 2015, the applicant passed the MCQ tests.
11On 3 November 2015, EPSO informed the applicant that he had obtained the minimum number of points required in the MCQ tests.
12On 5 November 2015, EPSO informed the applicant that, after having verified whether he satisfied all of the conditions for admission set out in the competition notice, the selection board had decided that he could not be admitted to the next stage of the competition (‘the decision of the selection board of 5 November 2015’). EPSO stated that, on the closing date for online applications, the applicant did not have at least 6 years’ experience in the field of the competition, after obtaining a diploma for at least 4 years’ completed university studies.
13On the same day, the applicant informed EPSO that, on his application form, he had declared 85 months’ experience in total in development cooperation issues within the International Organisation for Migration (IOM), and then as an implementing partner of the United Nations Population Fund (UNFPA).
14On 15 November 2015, the applicant submitted a request for re-examination of the decision of the selection board of 5 November 2015.
15On 25 January 2016, EPSO informed the applicant that the selection board confirmed its decision not to admit him to the next stage of the competition.
16On 5 February 2016, the applicant lodged a complaint, under Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), against the decision of the selection board of 5 November 2015.
17By decision of 10 June 2016, the Director of EPSO rejected the complaint (‘the decision of 10 June 2016 rejecting the complaint’).
Procedure and forms of order sought
18By document lodged at the General Court Registry on 20 September 2016, the applicant brought the present action. The European Commission lodged its defence on 6 December 2016. The written part of the procedure was closed after the applicant lodged the reply and the Commission lodged the rejoinder on 24 January and 13 March 2017 respectively.
19By document lodged at the General Court Registry on 4 April 2017, the applicant requested that a hearing be held, in accordance with Article 106(2) of the Rules of Procedure of the General Court. The Commission did not submit such a request.
20The applicant claims that the Court should:– annul the decision of the selection board of 5 November 2015;– order the Commission to pay the costs.
21In response to a question put by the General Court at the hearing, the applicant stated that he also sought the annulment of the decision of the selection board of 25 January 2016.
22The Commission contends that the Court should:– dismiss the action;– order the applicant to pay the costs.
Law
23In support of the action, the applicant relies on four pleas in law alleging, first, infringement of the obligation to state reasons; second, a manifest error of assessment; third, the unlawfulness of the competition notice and, fourth, infringement of the principle of equal treatment of candidates in the competition. It is appropriate to start by examining the first plea, then the third, the second and, finally, the fourth plea.
Preliminary observations
24According to the case-law, where a candidate in a competition seeks review of a decision taken by a selection board, it is the decision taken by the latter after the review of the candidate’s situation that constitutes the act adversely affecting him within the meaning of Article 90(2) or, where applicable, Article 91(1) of the Staff Regulations (judgment of 13 December 2006, Heus v Commission, T‑173/05, EU:T:2006:392, paragraph 19). The decision taken after the review therefore replaces the selection board’s original decision (see, to that effect, order of 28 April 2015, Garcia Minguez v Commission, F‑72/14, EU:F:2015:40, paragraph 26).
25In this case, it must be considered that the present action is directed against the decision of the selection board of 25 January 2016, adopted following the request for re-examination of the decision of the selection board of 5 November 2015, which replaces that decision (‘the contested decision’).
The first plea in law, alleging infringement of the obligation to state reasons
26The applicant submits that neither the decision of the selection board of 5 November 2015 nor the contested decision make it possible to understand why the selection board did not consider that he had 6 years’ experience in the field of development cooperation.
27The applicant assumes, on the basis of the decision of 10 June 2016 rejecting the complaint, that the problem lies in his consultancy work — where he was self-employed — on population and development issues. However, no explanation has been provided as to whether that work was problematic because he was self-employed, or on account of the quality of the consultations or the nature of the tasks performed. In that regard, the applicant submits that his professional experience as a consultant is materially the same as that gained by an employee in the same organisation, namely the European Parliamentary Forum on Population and Development (EPF). Therefore, there is an inconsistency in the assessment of that experience and, accordingly, a contradiction in the statement of reasons.
28The applicant submits, furthermore, that the specific eligibility requirement stipulated in the competition notice states only that the experience must be ‘in the field of the competition’ and that, at this stage, there is no requirement ‘for it to fall directly within the field of the competition … or for that experience to be relevant to the objectives of the competition’.
29Finally, the applicant claims that the statement of reasons in the decision of 10 June 2016 rejecting the complaint is provided by EPSO, and not by the selection board, and therefore it cannot be taken into account when examining compliance with the obligation to state reasons.
30The Commission disputes the applicant’s arguments.
31It should be noted, in the first place, that a number of the arguments put forward by the applicant in connection with the first plea in law are in fact intended to challenge the substance of the contested decision and, in particular, the selection board’s assessment of his professional experience. It should be recalled that the obligation to state the reasons for decisions is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure (see to that effect, judgments of 7 March 2002, Italy v Commission, C‑310/99, EU:C:2002:143, paragraph 48, and of 17 September 2015, Ricoh Belgium v Council, T‑691/13, not published, EU:T:2015:641, paragraph 32).
32Accordingly, the applicant’s arguments which relate to the substance of the contested decision will be examined in connection with the second plea in law, alleging a manifest error of assessment.
33With regard to the applicant’s arguments that concern the statement of reasons in the contested decision, it should be noted that, in accordance with the second paragraph of Article 25 of the Staff Regulations, ‘any decision adversely affecting an official shall state the grounds on which it is based’.
34It should be noted, in addition, that, in accordance with settled case-law, the purpose of the obligation to state reasons, laid down in the second paragraph of Article 25 of the Staff Regulations, is, first, to provide the person concerned with sufficient details to allow him to ascertain whether or not the decision is well founded and, secondly, to make it possible for the decision to be the subject of judicial review (see, to that effect, judgment of 19 January 2017, Commission v Frieberger and Vallin, T‑232/16 P, not published, EU:T:2017:15, paragraph 40 and the case-law cited).
35As regards, in particular, decisions refusing a candidate admission to a competition, the EU Courts have made it clear that the selection board was required for this purpose to indicate precisely which conditions in the notice of competition were considered not to have been satisfied by the candidate (see, to that effect, judgment of 13 December 1990, Gonzalez Holguera v Parliament, T‑115/89, EU:T:1990:84, paragraph 43, and of 14 June 2007, De Meerleer v Commission, F‑121/05, EU:F:2007:102, paragraphs 145 and 146). In this regard it should be noted that, according to settled case-law, the selection board in a competition in which there is a large number of applicants may confine itself, at the stage of admission to the tests for such a competition, to stating the reasons for its refusal in a summary manner by informing the candidates only of the selection criteria and the selection board’s decision, unless those candidates expressly request that it provides individual explanations (see, to that effect, judgments of 19 July 1999, Carrión v Council, T‑168/97, EU:T:1999:154, paragraph 32, and of 13 December 1990, Gonzalez Holguera v Parliament, T‑115/89, EU:T:1990:84, paragraph 43).
36In the present case, the decision of the selection board of 5 November 2015 informed the applicant that he could not be admitted to the next stage of the competition on the ground that he did not have at least 6 years’ experience in the field of the competition (see paragraph 12 above).
37The contested decision notes that, in accordance with the competition notice, only those candidates who have met all of the eligibility requirements on the basis of the information provided in their application form could be admitted to the competition. The contested decision also states that the selection board had carefully examined his application form, paying particular attention to the section on professional experience and that it reached the conclusion that the applicant did not meet the eligibility requirements on the ground that the professional experience of working in the field of the competition, namely development cooperation, was insufficient. It also states that the applicant’s personal beliefs as to how his experience should have been taken into account is subjective and cannot replace the assessment made by the selection board.
38In addition, it must be held that the decision of 10 June 2016 rejecting the complaint confirms the contested decision by providing the reasons in support of that decision. In that situation, the lawfulness of the measure adversely affecting him, in this case the contested decision, must be examined taking into consideration the statement of reasons contained in the decision rejecting the complaint, those reasons being considered to be identical to those for the contested decision. By the decision rejecting the complaint, the appointing authority was prompted to supplement the statement of reasons in the contested decision, in particular by responding to grievances put forward by the applicant in his complaint. Thus, in view of the evolving nature of the pre-litigation procedure, the statement of reasons contained in the decision rejecting the complaint cannot be rejected (see, to that effect, judgment of 13 June 2012, Mocová v Commission, F‑41/11, EU:F:2012:82, paragraph 21; order of 12 April 2016, Beiner v Commission, F‑135/15, EU:F:2016:77, paragraph 24, and judgment of 10 June 2016, HI v Commission, F‑133/15, EU:F:2016:127, paragraph 87).
39It is clear from the decision of 10 June 2016 rejecting the complaint that, according to the selection board, the applicant’s experience, described in ‘entry 1’ of his application form, did not fall directly within the field of the competition, in view of the nature of the duties described in Annex I to the competition notice.
40In those circumstances, it must be considered that the statement of reasons in the contested decision, as supplemented by the statement of reasons in the decision of 10 June 2016 rejecting the complaint, states in a sufficiently precise manner the condition laid down in the competition notice that had not been satisfied by the applicant at the admissibility stage, namely the condition relating to professional experience.
41It must be added, furthermore, that the arguments put forward by the applicant in connection with the second plea in law, alleging a manifest error of assessment, show that he had a sufficient understanding of the ground on the basis of which he was refused at the next stage of the competition.
42It is therefore concluded that the first plea in law must be rejected.
The third plea in law, alleging the unlawfulness of the competition notice
43The applicant claims that, in so far as it concerns the first stage of checking the eligibility requirements, point 2 of the competition notice, entitled ‘Selection based on qualifications’, is unlawful.
44Contrary to what the Commission claims, the applicant considers that the third plea in law is admissible since the link between the unlawfulness of the competition notice and the contested decision cannot be disputed. Without the first paragraph of point 2 of the competition notice, the selection board would not have been able to reject the applicant’s application at the end of the first stage of eligibility.
45The applicant also disputes the Commission’s argument that a possible declaration that point 2 of the competition notice is unlawful would not directly result in the annulment of the contested decision in so far as the consideration of the responses given in the Talent Screener tab of the application form would in any event have led to the applicant being eliminated. The applicant wonders how the Commission can reach such a conclusion given that the selection board specifically did not take account of the content of that tab.
46In essence, the applicant submits that the consideration of qualifications, and in particular professional experience ‘in the light of the objectives of the competition’ and, accordingly, the post to be filled, necessarily implies that the information contained in the Talent Screener tab of the application form will be used, so that an examination of the candidates which is comparative, complete, concrete, careful and objective may be carried out. The applicant considers that such an examination cannot seriously be carried out without a specific and concrete analysis based on objective and weighted criteria of all of the diplomas, all of the professional experience and all of the language skills declared by each candidate. In that regard, the applicant cites point 2.4 of the General rules governing open competitions (OJ 2015 C 70A, p. 1), which provides that the selection must be made ‘solely’ on the basis of responses to specific questions in the Talent Screener tab of the application form (fourth paragraph) and that the latter is a ‘structured framework’ which enables ‘a careful objective assessment of the comparative merits of all candidates’ (second paragraph).
47An incomplete approach to the comparison of qualifications, candidates or selection criteria would be contrary to Article 27 of the Staff Regulations and the fundamental objective of recruiting officials of ‘the highest standard of ability [and] efficiency’.
48Moreover, Article 5 of Annex III to the Staff Regulations, adopted pursuant to Article 29(1) of the Staff Regulations, clearly states that, where the competition is on the basis of qualifications, the Selection Board, after determining how candidates’ qualifications are to be assessed, is to ‘consider the qualifications’ of the candidates admitted.
49Moreover, although the second paragraph of point 2 of the competition notice provides for a selection based on qualifications in an ‘alleged second phase’ on the basis of the evidence set out in the Talent Screener tab of the application form and the comparison of the total marks awarded to each candidate on the basis of the points received in respect of the 14 weighted selection criteria to keep those whose profiles best match the duties to be performed, that provision would lose all of its effectiveness if that selection could have been made in part when checking eligibility requirements, which is incorrectly referred to as the ‘first’ stage of the selection based on qualifications, without any procedure to guarantee a comparative and objective examination of the candidates and that the best candidates are chosen.
50The Commission disputes the applicant’s arguments.
51As a preliminary point, it should be observed that, in the context of the third plea, alleging the unlawfulness of the competition notice, the applicant puts forward arguments for the purpose of demonstrating that the competition notice disregards the provisions of the Staff Regulations and the General rules governing open competitions, but also arguments which seek to demonstrate that the selection board applied the competition notice incorrectly.
52In the context of the third plea in law, the applicant submits that, during the first stage of eligibility, the selection board incorrectly checked whether his experience was appropriate for the post to be filled, which, in the applicant’s view, falls under the second stage of the selection based on qualifications. The line of argument must be regarded as being put forward in support of the first complaint raised under the second plea in law, alleging a manifest error of assessment. It will therefore be examined below as part of the examination of that plea.
53Before examining whether the third plea in law is well founded, it should be assessed whether it is admissible, which is disputed by the Commission.
54It should be recalled, first of all, that, although an applicant is entitled to lodge a direct action, within the prescribed period, against a competition notice where it constitutes a decision by the appointing authority adversely affecting him within the meaning of Articles 90 and 91 of the Staff Regulations, he is not barred from bringing an action directed against the decision not to admit him to the competition solely on the grounds that he did not challenge the competition notice in due time (see, to that effect, judgments of 16 September 1993, Noonan v Commission, T‑60/92, EU:T:1993:74, paragraph 21, and of 31 January 2006, Giulietti v Commission, T‑293/03, EU:T:2006:37, paragraph 40). A candidate in a competition must not be deprived of the right to challenge all the elements, including those defined in the competition notice, comprising the justification for the individual decision concerning him taken on the basis of the conditions laid down in the notice, inasmuch as only the decision applying them affects his legal position individually and enables him to ascertain with certainty how and to what extent his personal interests are affected (see, to that effect, judgments of 16 September 1993, Noonan v Commission, T‑60/92, EU:T:1993:74, paragraph 23, and of 31 January 2006, Giulietti v Commission, T‑293/03, EU:T:2006:37, paragraph 41). As long as the applicants’ applications have not been rejected by the selection board, they cannot be sure whether they have an interest in bringing proceedings against the competition notice, so that they cannot be criticised for not having contested the competition notice within the time limits provided for in Articles 90 and 91 of the Staff Regulations. An applicant may therefore, in the event of an action brought against subsequent measures, plead the irregularity of previous measures which are closely connected with them (see, to that effect, judgment of 15 September 2017, Commission v FE, T‑734/15 P, EU:T:2017:612, paragraph 115).
55However, where there is no close connection between the statement of reasons for the challenged decision and the plea alleging irregularities in the competition notice, which has not been challenged in good time, that plea must be declared inadmissible, in accordance with the mandatory rules governing time limits for bringing proceedings, which cannot be derogated from in such a case as this without offending against the principle of legal certainty (see, to that effect, judgments of 11 March 1986, Adams and Others v Commission, 294/84, EU:C:1986:112, paragraph 17; of 16 September 1993, Noonan v Commission, T‑60/92, EU:T:1993:74, paragraph 27; and of 31 January 2006, Giulietti v Commission, T‑293/03, EU:T:2006:37, paragraph 42).
56In the light of all of those considerations, it must be determined whether, in the present case, there is a close connection between the statement of reasons in the contested decision and the third plea in law, alleging the unlawfulness of point 2 of the competition notice.
57In that regard, it follows from the statement of reasons in the contested decision that that decision was adopted on the ground that the applicant’s professional experience in the field of the competition was not long enough.
58Such a statement of reasons, which comes exclusively from the selection board’s assessment of the eligibility requirements, was adopted pursuant to point 2 of the competition notice, which provides specifically that the board must, first, check the eligibility requirements before proceeding to the selection based on qualifications, which is only for eligible candidates.
59The applicant criticises the lawfulness of point 2 of the competition notice in so far as he should have been rejected following a complete and comparative examination of his application with those of other candidates, and not following a mere check for eligibility. In other words, the applicant submits that point 2 of the competition notice, under which his application has been rejected, is unlawful in so far as it provides for a first elimination stage solely on the basis of eligibility checks, whereas, in his view, his application should have been rejected only following a complete and comparative examination thereof, on the basis of the information contained in the Talent Screener tab of his application form.
60Accordingly, the applicant pleads that point 2 of the competition notice, pursuant to which the contested decision did not permit him to continue in the competition, is unlawful. The third plea in law must therefore be declared admissible and the plea of inadmissibility raised by the Commission must be rejected.
61As regards the validity of the third plea in law, it must be recalled, first of all, that the purpose of organising a competition is to fill vacant posts within the institutions and that, as follows in particular from the first paragraph of Article 1 and Article 4 of Annex III to the Staff Regulations, it is therefore the appointing authority’s task to draw up the competition notice and, for that purpose, to decide on the most suitable method for selecting candidates, in the light of the requirements attaching to the posts to be filled and, more generally, of the interests of the service (see, to that effect, judgment of 27 September 2006, Blackler v Parliament, T‑420/04, EU:T:2006:282, paragraph 45).
62However, it must be noted that the exercise by the appointing authority of that discretion, regardless of the number of people likely to apply for the competition in question, is necessarily circumscribed by the need to observe the rules in force and general principles of law. It follows that the method chosen by the appointing authority must, first, aim to recruit persons of the highest standard of ability and efficiency, in accordance with Article 27 of the Staff Regulations, second, in accordance with Article 5 of Annex III to the Staff Regulations, reserve for an independent selection board the task of determining, case by case, whether the diplomas submitted or the professional experience presented by each candidate correspond to the level required by the Staff Regulations and the notice of competition and, third, result in the consistent and objective selection of candidates (judgment of 16 September 2013, Glantenay and Others v Commission, F‑23/12 and F‑30/12, EU:F:2013:127, paragraph 70).
63The applicant submits, in essence, that eliminating candidates following the eligibility check without having assessed their application on the basis of the information they provided in the Talent Screener tab of their application form is contrary to Articles 27 and 29 of the Staff Regulations and Article 5 of Annex III to the Staff Regulations and to the General rules governing open competitions.
64Therefore, in the applicant’s view, the competition notice is unlawful as the candidates were eliminated at an early stage without having been the subject of a complete and concrete review of their application in relation to the post to be filled.
65First of all, it should be noted that there is a contradiction between the arguments put forward by the applicant in the context of the third plea and those set out below with regard to the first complaint raised under the second plea, alleging a manifest error of assessment. In the context of the latter, the applicant, by contrast, complains that the selection board did not confine itself to an abstract review of the minimum eligibility requirements and did not defer the examination of the relevance of his experience in relation to the post to be filled to a later stage.
66Moreover, it is necessary to ascertain whether the strict separation introduced in point 2 of the competition notice, under the section ‘How will I be selected?’, between the eligibility stage and the stage of the selection based on qualifications is contrary to the Staff Regulations and the General rules governing open competitions.
67First, it is important to note that, although, as the applicant points out, it is clear from point 2.4 of the General rules governing open competitions that the second stage ‘is [carried out] solely on the basis of responses to specific questions in the “talent screener” tab of the online application form’, it is also clear from that point that ‘the “selection based on qualifications” takes place after the verification of eligibility on the basis of the online applications is completed’ and that ‘the selection board only assesses the qualifications of those candidates who were found to satisfy all eligibility conditions’.
68Secondly, it must be held that the elimination of candidates at the end of the stage checking eligibility requirements is expressly provided for by the procedure for competitions, as set out in the first paragraph of Article 5 of Annex III to the Staff Regulations, which provides that, ‘after examining [the candidates’] files, the Selection Board shall draw up a list of candidates who meet the requirements set out in the notice of competition’, and the fourth paragraph of Article 5 of that same annex, in accordance with which, where the competition is on the basis of both tests and qualifications, as in the present case, ‘the Selection Board shall state which of the candidates on the list shall be admitted to the tests’.
69Furthermore, it should be noted that the third paragraph of Article 5 of Annex III to the Staff Regulations, to which the applicant refers, concerns competitions based on qualifications and, therefore, does not apply to the competition at issue which was a competition based on qualifications and tests. In any event, that provision, to which the applicant refers, provides that the selection board is to consider only the qualifications ‘of the candidates appearing on the list provided for in the first paragraph’, that is to say the list of candidates who meet the eligibility requirements set out in the competition notice.
70It therefore follows from Article 5 of Annex III to the Staff Regulations and from point 2.4 of the General rules governing open competitions that the second stage concerns only those candidates who satisfy the eligibility conditions. Thus, under the applicable provisions, the competition notice not only could have, but should have provided for the prior checking of the eligibility requirements before the selection board went on to examine qualifications.
71The applicant does not put forward any arguments which are intended to prove that, in satisfying the conditions provided for in the abovementioned provisions of Annex III to the Staff Regulations and the General rules governing open competitions, the appointing authority has nevertheless infringed the more general requirements laid down in Articles 27 and 29 of the Staff Regulations. In any event, the applicant does not plead, including in the alternative, that point 2.4 of the General rules governing open competitions and Article 5 of Annex III to the Staff Regulations are unlawful, in the light, in particular, of those articles of the Staff Regulations.
72In those circumstances, the third plea in law, alleging the unlawfulness of the competition notice, must be rejected in its entirety.
The second plea in law, alleging a manifest error of assessment
73The second plea is divided into two complaints.
74The first complaint is that the selection board did not confine itself, in the context of the stage checking eligibility requirements, to checking whether the applicant satisfied the condition relating to the existence of professional experience in the field of the competition, but it also assessed whether his professional experience was appropriate for the post to be filled, which, in the applicant’s view, falls under the subsequent stage of the selection based on qualifications only.
75By the second complaint, the selection board is criticised for not having considered that the experience described in ‘entry 1’ of the applicant’s application form was ‘in the field of the competition’.
76The Commission disputes the applicant’s arguments.
The first complaint
77The applicant submits, in essence, that the selection board committed an error of assessment in not differentiating, with regard to the subject matter of its checks, between the first stage — regarding eligibility — and the second — regarding the selection based on qualifications. According to the applicant, in the context of the first stage, the selection board should have confined itself to checking whether his professional experience fell within the field of the competition. Only in the context of the second stage was the selection board required to examine whether candidates’ professional experience was appropriate for the post to be filled, on the basis of the information contained in the application form’s Talent Screener tab. However, according to the applicant, the selection board confused those two stages by checking, during the first stage, whether his experience was appropriate for the post to be filled.
78It is important to note, first, that the applicant’s reading of the competition notice which, moreover, is also the same as the Commission’s, is correct.
79The competition notice contains a section entitled ‘How will I be selected?’, point 2 of which, entitled ‘Selection based on qualifications’, is worded as follows:‘First, the eligibility requirements will be checked on the basis of the data provided in the candidates’ online application.…Second, only for the eligible candidates selected as described above; the selection based on qualifications will be carried out using the information provided by the candidates in the application form’s Talent Screener tab. The selection board will assign each selection criterion a weighting that reflects its relative importance (1 to 3) and each of the candidate’s responses will be awarded between 0 and 4 points.The selection board will then multiply the points by the weighting for each criterion and add these to identify those whose profiles best match the duties to be performed.’
80It is clear from point 2 of the competition notice that the description of the stage checking eligibility requirements, which is introduced by the expression ‘first’, precedes the description of the stage of the selection based on qualifications, introduced by the expression ‘second’. It is also clear that the candidates who do not satisfy the eligibility requirements, and who are not therefore considered to be eligible, are not admitted to the stage of the selection based on qualifications.
81Indeed, as the applicant notes and the Commission acknowledges, the title of point 2, namely ‘Selection based on qualifications’, leads to confusion by suggesting that that point concerns only the stage of the selection based on qualifications. However, as is clear from its actual content, the stage of the selection based on qualifications follows the eligibility stage and each of those stages gives rise to a specific type of check by the selection board. In the context of the eligibility stage, the selection board must check whether the eligibility conditions defined under the section ‘Am I eligible to apply?’ are satisfied and, in the present case, whether candidates’ professional experience is in the field of the competition. In the context of the stage of the selection based on qualifications, and only for the candidates who satisfy the eligibility conditions, the selection board selects candidates using the information provided by the candidates in the Talent Screener tab of their application form.
82There is therefore no difference of opinion between the parties with regard to the interpretation of the competition notice and, in particular, the existence of a distinction between the stage checking eligibility requirements and the stage of the selection based on qualifications: the second stage applies only to candidates who have passed the first stage.
83What the applicant is criticising the selection board for is, in the context of the first stage, namely the eligibility stage, having checked whether his professional experience was appropriate for the post to be filled, which, in his view, falls under the second stage, namely the selection based on qualifications.
84In that regard, it must first be noted that, in the context of the first stage, the selection board had to check, in particular, whether the candidates satisfied the specific conditions mentioned under the ‘Am I eligible to apply?’ section of the competition notice, relating to qualifications and professional experience. According to those conditions, candidates had to have:‘At least 4 years’ completed university studies attested by a diploma, and a minimum of 6 years’ professional experience in the field of the competition after obtaining the diplomaorAt least 3 years’ completed university studies attested by a diploma, and a minimum of 7 years’ professional experience in the field of the competition after obtaining the diploma.’
85The section board therefore had to check whether the candidates had, inter alia, (depending on the case, six or 7 years’) professional experience ‘in the field of the competition’, which is defined in the competition’s title as ‘Development cooperation and managing aid to non-EU countries’.
86As is clear from the decision of 10 June 2016 rejecting the complaint and the evaluation sheet for the applicant’s qualifications, annexed to the defence, the selection board took the view that the applicant did not satisfy the condition of a minimum of 6 years’ experience in the field of the competition, in view of the nature of the duties described in Annex I to the competition notice. Therefore, to establish whether the applicant’s professional experience was ‘in the field of the competition’, the selection board relied on the duties of the post to be filled, as described in Annex I to the competition notice.
87However, if, in the context of the first stage, the selection board must check only whether the candidate has experience in the field of the competition, it must, to that end, compare the activities pursued by the candidate, as set out in his application form, with the duties of the post to be filled. Moreover, that course of conduct is expressly provided for in point 1.3 of the General rules governing open competitions, to which the applicant refers and which state:‘Your professional experience will be taken into account only if it is relevant to the nature of the duties described in the competition notice.…Please note that if the competition notice requires professional experience in the field of the competition, any elements of your professional experience … will only be taken into account if they are relevant to that field.It is important that you specify in your application form the nature of the duties you performed in as much detail as possible so that the selection board can assess the relevance of your experience for the duties for which you are applying.’
88That approach taken by the selection board is also consistent with settled case-law, in accordance with which it is necessary to interpret the conditions for admission in the light of the aims of the competition at issue, as they result from the description of the duties relating to the posts to be filled, and therefore the part concerning the nature of the duties and that concerning the conditions for admission set out in the competition notice concerned must be considered together (see, to that effect, judgment of 14 July 2000, Teixeira Neves v Court of Justice, T‑146/99, EU:T:2000:194, paragraph 34 and the case-law cited).
89By comparing the activities pursued by the candidate, described in the ‘Professional Experience’ tab of his application form, with the duties of the post to be filled, as described in Annex I to the competition notice, the selection board, contrary to the applicant’s claims, did not assess whether his experience was appropriate for the post to be filled. That assessment falls under the stage of the selection based on qualifications, which is a second stage. As is clear from point 2 of the competition notice, in the context of that second stage, the selection board selects candidates who have passed the first stage by taking into account the information provided in the Talent Screener tab of their application form and the selection criteria listed in Annex III to the competition notice. It is in the context of that second stage that, as is stated in point 2 of the application form, the selection board identifies ‘those whose profiles best match the duties to be performed’.
90Moreover, the fact remains that the applicant merely states that, in the context of the eligibility stage, the selection board took account of the information contained in the Talent Screener tab of the application form and therefore the selection criteria listed in Annex III to the competition notice, without providing any evidence in that regard.
91It follows that the applicant’s first complaint is based on confusion regarding the subject matter of the checks made by the selection board, which, contrary to what the applicant submits, did not check, in the context of the first stage, whether his professional experience was appropriate for the post to be filled in the light of the selection criteria laid down in Annex III to the competition notice, but confined itself to checking whether his experience was in the field of the competition by comparing the experience set out in his application form with the duties described in Annex I to the competition notice.
92In the light of the foregoing considerations, the first complaint must therefore be rejected.
The second complaint
93It should be noted, as a preliminary point, that, in accordance with the decision of 10 June 2016 rejecting the complaint and the evaluation sheet for the applicant’s qualifications, annexed to the defence, the selection board did not take the view that the applicant’s experience, described in ‘entry 1’ of his application form, was ‘directly “in the field of the competition”, namely development cooperation and managing aid to non-EU countries’.
94By the second complaint, the applicant disputes that assessment by the selection board. He criticises in particular the difference in the assessment by the selection board with regard to the experience described in ‘entry 1’ and that described in ‘entry 2’ of his application form.
95It must therefore be ascertained whether the selection board committed a manifest error of assessment in taking the view that the applicant’s professional experience described in ‘entry 1’ of his application form was not in the field of the competition.
96In that regard, it must first be noted that the selection board is bound by the wording of the competition notice as published. The essential function of the competition notice is to inform the persons concerned in as precise a way as possible of the nature of the conditions required to fill the post in question, in order to enable them to judge, first, whether they should apply and, second, what supporting documents are required by the selection board and must, consequently, be attached to the application (see, to that effect, order of 3 April 2001, Zaur-Gora and Dubigh v Commission, T‑95/00 and T‑96/00, EU:T:2001:114, paragraph 47, and judgment of 13 September 2010, Spain v Commission, T‑156/07 and T‑232/07, not published, EU:T:2010:392, paragraph 87).
97With regard, more specifically, to a condition for admission to the competition regarding professional experience, it has been held that the function of the competition notice, which aims to ‘inform the persons concerned in as precise a way as possible’ did not preclude the selection board from being responsible for determining in each case whether the professional experience declared by each candidate corresponds to the level required by the competition notice (see, to that effect, judgments of 12 July 1989, Belardinelli and Others v Court of Justice, 225/87, EU:C:1989:309, paragraph 13, and of 25 March 2004, Petrich v Commission, T‑145/02, EU:T:2004:91, paragraph 37).
98The selection board enjoys broad discretion in that regard, under the provisions of the Staff Regulations concerning competition procedures, when assessing the nature and duration of the previous professional experience of candidates and its relevance to the post to be filled. In its review of legality, the General Court must therefore confine itself to ascertaining whether the selection board’s exercise of that discretion was free from manifest errors (see, to that effect, judgments of 13 December 1990, Gonzalez Holguera v Parliament, T‑115/89, EU:T:1990:84, paragraph 54, and of 30 June 2005, Eppe v Parliament, T‑439/03, not published, EU:T:2005:266, paragraph 36).
99In the context of that review, the EU Court must take account of the fact that the onus is, in principle and in accordance with the settled case-law, on a candidate in a competition to provide the selection board with all information and documents he considers relevant for the appraisal of his application in order to enable the selection board to verify whether he fulfils the conditions laid down in the competition notice, a fortiori if he has been expressly or formally requested to do so (see, to that effect, judgments of 12 July 1989, Belardinelli and Others v Court of Justice, 225/87, EU:C:1989:309, paragraph 24, and of 20 June 1990, Burban v Parliament, T‑133/89, EU:T:1990:36, paragraphs 31 and 34). The selection board, when giving its decision on the admission or exclusion of candidates to or from a competition, is therefore entitled to limit its examination to the application forms and the documents annexed thereto (see, to that effect, judgments of 13 March 2002, Martínez Alarcón v Commission, T‑357/00, T‑361/00, T‑363/00 and T‑364/00, EU:T:2002:66, paragraph 76, and of 28 November 2002, Pujals Gomis v Commission, T‑332/01, EU:T:2002:289, paragraphs 42 to 44).
100In the context of the present dispute, it should also be clarified that, in view of the broad discretion granted to the selection board, in order to establish that it committed a manifest error in assessing the facts such as to justify the annulment of the decision taken, the evidence, which it is for the applicant to adduce, must be sufficient to make the findings of the administration implausible (see, to that effect, judgment of 24 April 2013, Demeneix v Commission, F‑96/12, EU:F:2013:52, paragraph 45, and order of 12 April 2016, Beiner v Commission, F‑135/15, EU:F:2016:77, paragraph 38).
101As can be seen from paragraphs 87 and 88 above, the conditions for admission must be interpreted in the light of the aims of the competition at issue, as they result from the description of the duties relating to the posts to be filled, and therefore the part concerning the nature of the duties and that concerning the conditions for admission set out in the competition notice must be considered together.
102In the present case, Annex I to the competition notice, which describes the duties of the post to be filled, states that administrators will be expected to fulfil tasks in the field of development cooperation such as, inter alia, to ‘contribute to the analysis of development related issues and policies, the elaboration of national and regional development policies … and policy dialogues with relevant partners and stakeholders’, ‘participate in the identification and formulation of development cooperation projects and programmes’, ‘participate in the operational management of development cooperation projects and programmes including drafting terms of reference, tendering, contracting and supervision of the implementation of contracts’, ‘participate in the operational management of budget support programmes for development cooperation’, ‘monitor and evaluate the development cooperation projects and programmes’ and to ‘liaise with all the relevant actors such as government counterparts, international and regional organisations, Member States and civil society in the field of development cooperation’.
103Under ‘entry 1’ of the applicant’s application form, which relates to his professional experience for the period from 1 October 2012 to 8 May 2015, the type of experience is defined as ‘public relations’ and the activities performed by the applicant are described as follows: ‘Collaboration with elected and non-elected representatives, parliamentary authorities, international organisations, national and international non-governmental organisations and members of civil society on parliamentary advocacy activities supporting policy development and implementation. Development, design and management of project proposals, dissemination of parliamentary advocacy materials (bilingual newsletter, manuals, information reports) and assistance in parliamentary initiatives (hearings, round tables, amendments, questions, speeches, letters, editorials)’.
104Under the section ‘Type of business or sector’ in ‘entry 1’, he stated that that business concerns ‘public relations and consultancy in services advocating population and development issues’.
105Thus, the business sector recorded in ‘entry 1’ refers to population and development issues, which, it is not denied, relate to the field of the competition, which concerns development cooperation and managing aid to non-EU countries.
106At the same time, as noted by the Commission, the duties described under ‘entry 1’ were consultancy activities the purpose of which was to provide support for ‘parliamentary advocacy activities’. Moreover, the sections ‘Type of experience’ and ‘Type of business or sector’, in conjunction with which the wording of the duties must be read, refer to either ‘public relations’ activities or to activities in the field of ‘public relations and consultancy in advocacy services’.
107In accordance with the principles set out in paragraphs 87 and 88 above, those duties must be compared with the duties of the post to be filled as described in Annex I to the competition notice, which consist inter alia in designing and ensuring the operational management and monitoring and evaluating the development cooperation programmes or budget support for such cooperation programmes.
108However, the duties that the applicant mentions under ‘entry 1’ may have been understood by the selection board as not appearing to involve responsibilities in the operational implementation of a cooperation programme or a budget support programme. Consequently, the selection board, which has a broad discretion in particular with regard to the extent to which the candidate’s experience meets the requirements of the post to be filled, was entitled to take the view that the duties as described by the applicant differed from the duties set out in Annex I to the competition notice.
109Therefore, the selection board did not commit a manifest error of assessment in concluding that the experience recorded in ‘entry 1’ was not in the field of the competition and its aims, as set out in the description of the duties relating to the post to be filled.
110None of the other arguments put forward by the applicant can call that conclusion into question. With regard to the applicant’s argument alleging an inconsistency in the assessment of ‘entry 1’ and ‘entry 2’ of his application form, first of all it should be noted that the applicant himself acknowledges that the activities described under ‘entry 1’ and ‘entry 2’ are not identically worded. Moreover, he claims that his activities described under ‘entry 1’ and ‘entry 2’ were performed for a single entity, namely EPF, which is not in any way apparent from the application form. In the reply, the applicant submits that his activities described under ‘entry 1’ and ‘entry 2’ concerned all policies concerning development cooperation and managing aid to non-EU countries, but did not, however, provide evidence to substantiate that claim. Moreover, he claims, again without establishing the facts, that his duties, as described under ‘entry 1’ and ‘entry 2’, all involved thematic activities in the EU’s developing-country partners and publications in the field of development cooperation focusing specifically on population issues.
111With regard to the applicant’s argument that the selection board wrongly took account of his self-employed status when he performed the activities described under ‘entry 1’ of the application form, it should be noted that it does not follow from any decision by the selection board, or even from the decision of 10 June 2016 rejecting the complaint, that the activities described under ‘entry 1’ did not fall within the field of the competition on the ground that the applicant performed them as an independent consultant and not as an employee.
112With regard to the applicant’s arguments which are based on the information contained in the Talent Screener tab of his application form, it should be noted that, at the stage of checking the conditions required for admission to the competition, the selection board was not obliged to take into account the information contained in that tab (see, to that effect, order of 12 April 2016, Beiner v Commission, F‑135/15, EU:F:2016:77, paragraph 47). As indicated above, it is clear from point 2 of the ‘How will I be selected?’ section of the competition notice that the selection based on qualifications using the information provided by the candidates in the Talent Screener tab of the application form was ‘second, only for the eligible candidates’. It is important to note, however, that the applicant contradicts himself on this point since he submits, in the context of the first complaint raised under the third plea, that, for the first stage of eligibility, the selection board cannot take into account the information contained in the Talent Screener tab of his application form.
113In the light of the foregoing, the second complaint and, consequently, the whole of the second plea in law, alleging a manifest error of assessment, must be rejected.
The fourth plea in law, alleging infringement of the principle of equal treatment
114The applicant submits that the misinterpretation of the competition notice by the selection board and the decision of the selection board of 5 November 2015 arising therefrom results in the candidates not being treated equally, in particular between him, whose professional experience was not examined by taking into account the information contained in the Talent Screener tab of his application form, and those candidates whose experience and other qualifications were the subject of that comparative examination.
115The applicant claims that not only was the relevance of the other candidates’ qualifications examined, which was not the case in his regard, but also the total number of points that he could have been awarded. If the relevance of all of his qualifications had been examined, the total number of points would have been equal to or greater than the total number of points awarded to other candidates.
116That difference in treatment cannot be justified. By having excluded him from the competition unlawfully even before the selection based on qualifications using the information from the Talent Screener tab of his application form, in contrast to other admissible candidates, the selection board caused ‘unlawful discrimination’ against the applicant on the basis of the eligibility checks, which were also unlawful, in addition to the error of assessment and the infringement of the applicable rules and procedures for the selection based on qualifications.
117The Commission disputes the applicant’s arguments.
118According to the case-law, the principle of equal treatment, as a general principle of EU law, requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see, to that effect, judgments of 11 September 2007, Lindorfer v Council, C‑227/04 P, EU:C:2007:490, paragraph 63, and of 17 July 2008, Campoli v Commission, C‑71/07 P, EU:C:2008:424, paragraph 50).
119In a matter which involves the exercise of a discretion, that principle is infringed where the institution concerned makes a differentiation which is arbitrary or manifestly inappropriate in relation to the objective pursued by the rules (see, to that effect, judgments of 8 January 2003, Hirsch and Others v ECB, T‑94/01, T‑152/01 and T‑286/01, EU:T:2003:3, paragraph 51; of 8 November 2006, Chetcuti v Commission, T‑357/04, EU:T:2006:339, paragraph 54; and of 29 November 2006, Campoli v Commission, T‑135/05, EU:T:2006:366, paragraphs 95 to 97).
120In the present case, as already stated, the competition notice drew a distinction between the stage checking eligibility requirements and the stage of the selection based on qualifications and the latter stage took effect only in respect of the candidates chosen at the end of the previous stage.
121It follows from the considerations set out in paragraphs 43 to 72 above, relating to the third plea in law, alleging the unlawfulness of the competition notice, that that distinction drawn by the competition notice is not unlawful.
122It is also clear from the considerations set out in paragraphs 73 to 113 above that, in accordance with the competition notice and without committing a manifest error of assessment, the selection board excluded the applicant’s application at the end of the eligibility stage.
123Accordingly, the applicant cannot compare his situation with that of admissible candidates, whose application has been examined in the context of the second stage of the selection based on qualifications and who, therefore, were not in the same situation as him.
124It follows that the fourth plea in law, alleging infringement of the principle of equal treatment, must be rejected.
125It follows from all of the foregoing considerations that the action must be dismissed.
Costs
126Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with form of order sought by the Commission.
Operative part
On those grounds,THE GENERAL COURT (Fourth Chamber)hereby:
1.Dismisses the action;
2.Orders Mr Vincent Villeneuve to pay the costs.
Delivered in open court in Luxembourg on 5 September 2018.
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