Contents
Judgment of the General Court (Seventh Chamber)14 December 2022note(Civil service — Recruitment — Notice of competition — Open competition EPSO/AD/374/19 — Decision not to include the applicant’s name on the competition reserve list — Action for annulment — Amendment of the notice of competition after a part of the eligibility tests have been completed — Lack of legal basis — Legitimate expectations — Legal certainty — Force majeure — Equal treatment — Entitlement to special arrangements — Organisation of remote tests — High pass rate of internal candidates — Action for failure to act)In Case T‑312/21,SY, represented by T. Walberer, lawyer,vEuropean Commission, represented by L. Hohenecker, T. Lilamand and D. Milanowska, acting as Agents,THE GENERAL COURT (Seventh Chamber),Composed, in the deliberations, by R. da Silva Passos (Rapporteur), President, V. Valančius and L. Truchot, judges,Registrar: E. Coulon,having regard to the written procedure,having regard to the absence of a request for a hearing submitted by the parties within three weeks after service of notification of the close of the written part of the procedure and having decided, in application of Article 106(3) of the Rules of Procedure of the General Court, to rule on the action without an oral part of the procedure,gives the following
JudgmentOnly the paragraphs of the present judgment which the General Court considers it appropriate to publish are reproduced.
1By his action based on Article 270 TFEU and Article 91 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), the applicant, SY, seeks, in essence, first, annulment of the Addendum to Notice of open competition EPSO/AD/374/19 (OJ 2020 C 374 A, p. 3), which amended the procedure for the tests in that competition because of the COVID-19 pandemic; of the invitation from the European Commission of 20 November 2020 to take a test; of the reserve list drawn up following that competition in the field of competition law; of the decisions relating to the recruitment of candidates drawn up on the basis of that reserve list; and of the reconsideration decision of the competition selection board confirming the decision not to include his name on the reserve list. He asks, second, and in the alternative, that the forthcoming judgment should set out the specific requirements that must be met by the Commission in order to reinstate the applicant in his legal position prior to the illegality committed by the selection board, so that the selection board may include his name on the reserve list. He asks the Court, third, to declare that the Commission infringed Article 265 TFEU by failing to issue a decision in respect of his administrative complaint of 17 January 2021.
I.Background to the dispute
2On 6 June 2019, the European Personnel Selection Office (EPSO) published in the Official Journal of the European Union Notice of open competition EPSO/AD/374/19, based on qualifications and tests, for the recruitment of administrators (function group AD) in the fields of Competition Law, Financial Law, EU Economic and Monetary Law, Financial rules applicable to the EU budget and Protection of euro coins against counterfeiting (OJ 2019 C 191 A, p. 1; ‘the notice of competition’), with a view to drawing up five reserve lists from which the Commission would recruit new members of the civil service as administrators. The notice of competition and its annexes, in particular Annex III, formed the legally binding framework for the related selection procedures.
3The notice of competition provided for a procedure in six stages. First, candidates submitted an online application form. Second, they were invited to take a series of computer-based multiple-choice question tests in one of EPSO’s accredited centres. If that invitation was not issued ahead of the competency tests organised at the test centres, it was envisaged that the tests would be taken at the same time as the competency tests. Third, candidates’ files were checked to ensure that they satisfied the eligibility requirements for the competition. Fourth, candidates who satisfied the eligibility requirements were subject to selection based on qualifications, on the basis of the qualifications stated in their application form. Fifth, candidates with the highest total marks following the selection based on qualifications were invited to take four competency tests held at the assessment centre. Sixth, the competition selection board drew up a reserve list for each of the five fields of the open competition – until the number of successful candidates sought was reached in each of those fields – containing the names of the eligible candidates who had obtained all pass marks as well as the highest overall marks following the assessment centre tests.
4In particular, under the heading ‘How will I be selected?’ in the notice of competition, the following was stated, in point 5, entitled ‘Assessment centre’:‘Eight general competencies, and the field-related competencies required for each field, will be tested at the assessment centre through four tests (general competency-based interview, field-related interview, group exercise, and case study) …’.
5First, it follows from the tables reproduced in point 5 under the heading ‘How will I be selected?’ of the notice of competition that the assessment of the general competencies and the field-related competencies was allocated between the tests held at the assessment centre as follows:Competency | Tests1. Analysis and problem-solving | Group exercise | Case study2. Communication | Case study | General competency-based interview3. Delivering quality and results | Case study | General competency-based interview4. Learning and development | Group exercise | General competency-based interview5. Prioritising and organising | Group exercise | Case study6. Resilience | Group exercise | General competency-based interview7. Working with others | Group exercise | General competency-based interview8. Leadership | Group exercise | General competency-based interviewPass marks 3/10 per competency and 40/80 in totalCompetency | Tests | Pass markField-related competencies | Field-related interview | 50/100
6Second, in accordance with those tables, each general competency was marked out of 10 points, with a pass mark of 3/10 per competency and a pass mark for all of those competencies of 40/80, while the field-related competencies were marked out of 100 points with a pass mark of 50/100.
7On 26 June 2019, the applicant applied to take part in the competition.
8In his application form, the applicant stated, in accordance with point 1.3 of the General rules applicable to open competitions attached to Annex III to the notice of competition, entitled ‘Equal opportunities and special adjustments’, that he needed special adjustments in order to take part in the tests, including computer tests, paper tests and oral tests, owing to a disability or a medical condition that might hinder his ability to participate, [confidential].
9By email of 9 December 2019, the EPSO accessibility team informed the applicant that he was authorised, for the case study test, [confidential].
10During the selection procedure, the applicant was invited to take four competency tests organised at the assessment centre and at the same time the computer-based multiple-choice tests.
11On 10 January 2020, the applicant took the first test to assess general competencies, namely the case study test, at an external assessment centre at [confidential]. By email of 18 January 2020, he informed the EPSO eligibility team that a problem had arisen during that test, namely that the service provider engaged by EPSO to organise the test had not allowed him [confidential]. By email of 22 January 2020, the EPSO eligibility team acknowledged to the applicant that there had been an error in communication with that provider.
12On 3 March 2020, the applicant took part, at an assessment centre in Brussels (Belgium), in the computer-based multiple-choice question tests and the three other competency tests, namely the general competency-based interview, the group exercise and the field-related interview.
13On 6 March 2020, the selection procedure was suspended because of the COVID‑19 pandemic and the ensuing health crisis. On that date, not all the candidates had taken the tests organised at the assessment centre.
14By letter of 1 July 2020, signed by a head of unit of EPSO on behalf of the president of the competition selection board, the applicant was informed that it had been ‘decided to resume the tests at the assessment centre during the second half of September’ and that ‘candidates who [had] already taken their tests [would] not be invited again’.
15By email of 28 August 2020, EPSO’s candidate contact service informed the candidates that it was envisaged that the marks which they had obtained before March following the competency tests organised at the assessment centre which they had taken in person would remain valid, apart from the mark obtained following the group exercise, which would be replaced by an online test in which all candidates were to participate, including those who had already taken the competition tests in March 2020.
16In two complaints of 28 August and 15 October 2020, registered, respectively as EPSOCRS-50590 and EPSOCRS-52914, the applicant objected to those proposed new test procedures, emphasising, in particular, the disadvantage which they would cause to candidates who had already taken the tests in March 2020 and the potential health risks that candidates would face when those new tests were held. He also emphasised that EPSO was required to comply with the notice of competition. He nonetheless stated that he was willing to take part in the new test that replaced the group exercise, without prejudice to his complaints in that respect.
17By letter of 26 October 2020, signed by a head of unit of EPSO on behalf of the president of the selection board, candidates were informed that the selection procedure would be resumed, following publication in the Official Journal of an addendum to the notice of competition.
18On 5 November 2020, the addendum to the notice of competition was published in the Official Journal (OJ 2020 C 374 A, p. 3; ‘the addendum to the notice of competition’).
19The addendum to the notice of competition stated, first of all, that candidates who had not already taken the tests in person at the assessment centre before 6 March 2020 were to take all of those tests remotely. Next, the group exercise was replaced by a situational competency-based interview, ‘the SCBI’, organised remotely using online videoconferencing. Last, candidates who had taken all of the tests organised at the assessment centre before 6 March 2020 were also required to take the SCBI, the mark for which would replace the mark obtained following the group exercise.
20By letter of 20 November 2020, the applicant received an invitation, signed by a head of unit of EPSO on behalf of the president of the selection board, to take the SCBI on 14 December 2020. The letter stated that by accepting that invitation the applicant agreed to the conditions of the competition and of the addendum to the notice of competition.
21The applicant took part in the SCBI on 14 December 2020.
22By letter of 14 January 2021, signed by a head of unit of EPSO on behalf of the president of the competition selection board, the applicant was informed of the competition selection board’s decision not to enter his name on the reserve list, on the ground that he was not among the candidates who had received the best total marks at the assessment centre, namely at least 119.5 points (‘the decision not to include the applicant’s name on the reserve list’).
23By email of 17 January 2021, the applicant requested a reconsideration of the decision not to include his name on the reserve list and lodged a complaint, on the basis of Article 90(2) of the Staff Regulations, against that decision, relying, in particular, on unequal treatment owing to EPSO’s failure to comply with the special adjustment of the tests provided for in his favour, non-compliance by the addendum with the notice of the open competition and unequal treatment by comparison with other candidates on the ground that the tests initially scheduled to take place at the assessment centre were held on line.
24By letter of 21 April 2021, signed by a head of unit of EPSO on behalf of the president of the competition selection board, the applicant was informed of the competition selection board’s decision confirming the decision not to include the applicant’s name on the reserve list (‘the reconsideration decision’).
25On 22 March 2021, the applicant lodged an online complaint with EPSO’s candidate contact service, registered as EPSOCRS-61721, seeking information about the outcome of his complaint of 17 January 2021.
26By a new complaint of 8 May 2021, registered as EPSOCRS-65320, the applicant filed a request for access to the information in EPSO’s documentation relating to the competition about the number of candidates on the reserve list who were working or who had worked as members of the contract staff under contracts of limited duration or contracts of unlimited duration, as members of the temporary staff or as national experts on secondment, in Directorate-General (DG) Competition, in the team of the Legal Service responsible for competition cases or in any other service or directorate-general of the Commission, for at least one year before the beginning of the competition procedure.
II.Forms of order sought
27The applicant claims that the Court should:– annul the reserve list, the decisions relating to the recruitment of the candidates included on that list, the decision not to include the applicant’s name on the reserve list, the reconsideration decision and also the addendum to the notice of competition and the invitation of 20 November 2020 to take the SCBI;– in the alternative, first, annul the decision not to include the applicant’s name on the reserve list and the reconsideration decision, and clarify in the forthcoming judgment the actual requirements to be met by the Commission in order to restore the legal situation in which the applicant was before the illegality committed by the selection board, which will enable the Commission to include his name on the reserve list immediately or following a reassessment of his performance, and, second, annul the addendum to the notice of competition and the invitation of 20 November 2020 to take the SCBI;– declare that the Commission infringed Article 265 TFEU by failing to issue a decision in respect of his complaint of 17 January 2021;– order the Commission to pay the costs.
28The Commission contends that the Court should:– dismiss the action;– order the applicant to pay the costs.
III.Law
…
B.The first head of claim
32By his first head of claim, the applicant seeks the annulment of the reserve list, the decisions relating to the recruitment of the candidates included on that list, the decision not to include the applicant’s name on the reserve list, the reconsideration decision and also the notice of competition and the invitation of 20 November 2020 to take the SCBI.…
2.The substance of the first head of claim
36In support of his first head of claim, the applicant puts forward four pleas in law alleging, first, illegality of the amendment of the rules applicable to the selection procedure; second, unequal treatment owing to a pre-existing disease and failure to comply with the arrangements envisaged in that respect when he took part in the competition tests; third, unequal treatment by comparison with the candidates who took all the tests online; and, fourth, unequal treatment by comparison with candidates who were employed by the Commission before the competition and whose names were included on the reserve list.
(a)First plea: illegality of the amendment of the rules applicable to the selection procedure
37The applicant maintains that the amendment of the rules applicable to the selection procedure by the addendum to the notice of competition is unlawful in that that addendum replaced the group exercise test by the SCBI. He maintains that that amendment of the nature of the tests, when a number of the candidates, himself included, had already taken the tests specified in the notice of competition, has no legal basis as it was made ex post facto and had retroactive effect.
38In that regard, first, the applicant submits that the Commission’s argument alleging force majeure connected with the COVID-19 pandemic cannot contradict that assertion. In his submission, if the Commission had not wrongly failed to continue the selection procedure in the spring and summer of 2020, a period when the summer health conditions were more favourable, it would not have been faced with the fact that it was impossible to organise the tests taken in person during the period when the tests were actually resumed after November 2020. He further submits that the Commission’s decision that the tests should be taken online as from the winter period was justified by the unfair intention to favour candidates who were also working at the Commission and whose contracts were likely to expire in the short and medium term.
39Second, the amendment of the rules applicable to the selection procedure by the addendum to the notice of competition is contrary to Article 1(1) and (2) of Annex III to the Staff Regulations, which confers on candidates a right for the rules applicable to the tests to be maintained, by providing, first, that the nature of the tests and how they will be marked must be specified in the notice of competition and, second, that that notice is to be published in the Official Journal not less than one month before the closing date for applications and not less than two months before the date of the tests. In addition, that amendment runs counter to the requirement of transparency that is derived from Article 1(2) of Annex III to the Staff Regulations, read in the light of Article 1d, Article 28(d) and Article 29(1) of the Staff Regulations, which guarantee that candidates in a competition will have the benefit of a consistent and foreseeable selection procedure before the procedure begins.
40Third, the SCBI is not another test, suitable for the group exercise, with a view to ensuring an objective selection. In the applicant’s submission, the documents produced by the Commission in order to prove the equivalence of the tests are not capable of contradicting that assertion.
41Fourth, the applicant maintains that EPSO committed an infringement of its duty of care and of the right to good administration, protected by Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’), and also of the principles of legal certainty and the protection of legitimate expectations. On the latter point, he relies on the assurance he had been given that he would not have to retake the tests, which arose from the letter of 1 July 2020 whereby a head of unit of EPSO had informed him that the tests were to be resumed at the assessment centre in September and that candidates who had already taken the tests would not be invited again.
42Fifth, the applicant submits that EPSO acted without a legal basis, unilaterally and unfairly, and misused its powers when it ordered all candidates to take the SCBI and considered that by taking that test they consented to the addendum to the notice of competition. In that regard, the applicant emphasises that his consent to take the tests in accordance with the new rules could not be assumed, having regard in particular to his complaints and to the fact that taking the tests amounted to an obligation because of the threat of being excluded from the procedure that failure to take them would have entailed.
43Sixth, and in the alternative, the applicant relies on an infringement by EPSO of the obligation to state reasons, as it failed to set out the legal basis and the specific grounds of the decision to amend the notice of competition.
44The Commission disputes the applicant’s arguments.…
(2)The complaint alleging that there is no legal basis for the amendment by the addendum to the notice of competition of the rules applicable to the selection procedure
50It should be borne in mind that Article 7(1) to (3) of Annex III to the Staff Regulations provides:1. The institutions shall, after consultation of the Staff Regulations Committee, entrust [EPSO] with responsibility for taking the necessary measures to ensure that uniform standards are applied in the selection procedures for officials of the Union …2.[EPSO’s] task shall be to:(a) organise, at the request of individual institutions, open competitions;(b) provide, at the request of individual institutions, technical support for internal competitions organised by them;…3. [EPSO] may, at the request of individual institutions, perform other tasks linked to the selection of officials.’
51Thus, in application of Article 7(1) to (3) of Annex III to the Staff Regulations, EPSO provides its assistance to the various institutions by defining and organising the selection procedures for officials in accordance with the general rules adopted by those institutions (see, to that effect, judgment of 29 September 2009, Aparicio and Others v Commission, F‑20/08, F‑34/08 and F‑75/08, EU:F:2009:132, paragraph 57).
52Consequently, it is within the framework of the power to define and organise the competition tests which it derives from Article 7(1) to (3) of Annex III to the Staff Regulations that EPSO was able to decide to adopt the addendum to the notice of competition. That legal basis therefore allowed EPSO to amend, by means of that addendum, the rules applicable to the selection procedure.
(3)The complaint alleging failure to observe the principle of proportionality
53It should be borne in mind that the principle of proportionality is recognised by settled case-law as being among the general principles of EU law. In accordance with that principle, the lawfulness of a measure adopted by an EU institution is subject to the condition that, where there is a choice between a number of appropriate measures, the least onerous measure should be chosen and the disadvantages caused must not be disproportionate to the objective pursued (see judgment of 21 October 2004, Schumann v Commission, T‑49/03, EU:T:2004:314, paragraph 52 and the case-law cited).
54The EU institutions have a wide discretion with regard to the procedure for organising a competition and the Courts of the European Union may censure those procedures only to the extent necessary to ensure equal treatment of candidates and objectivity in the choice made between them (judgment of 13 January 2021, Helbert v EUIPO, T‑548/18, EU:T:2021:4, paragraph 30). Furthermore, the case-law recognises that the competition selection board has a wide discretion, within the same limits, when it is confronted with irregularities or errors which have occurred in the course of an open competition involving a large number of candidates and which, under the principles of proportionality and good administration, cannot be rectified by a repetition of the tests in the competition (see, to that effect, judgment of 2 May 2001, Giulietti and Others v Commission, T‑167/99 and T‑174/99, EU:T:2001:126, paragraph 58). The competition selection board must also be recognised as having such a wide discretion when it is confronted with force majeure.
55It is not for the Courts of the European Union to censure the detailed content of a test, unless the test goes beyond the framework indicated in the notice of competition or is inconsistent with the objectives of the test or the competition (see judgment of 7 February 2002, Felix v Commission, T‑193/00, EU:T:2002:29, paragraph 45 and the case-law cited).
56In the present case, although EPSO is not a selection board, the principles referred to in paragraphs 53 and 54 above may be extended to it, since it has a significant discretion in organising the selection tests, in order, inter alia, to ensure that uniform standards are applied in the procedures for the selection of EU officials (see, to that effect, judgment of 29 September 2009, Aparicio and Others v Commission, F‑20/08, F‑34/08 and F‑75/08, EU:F:2009:132, paragraphs 77 and 78). That discretion must be assessed in the context of the COVID-19 pandemic, which severely disrupted the organisation of the tests in competitions involving a large number of candidates.
57In that regard, the COVID-19 pandemic in the winter of 2020, an abnormal and unforeseeable epidemiological situation that was outside EPSO’s control, amounting to force majeure, led the Member States to adopt measures that restricted the movements and gatherings of their nationals, together with health measures. EPSO was required to comply with those measures, which were outside its control, when organising the tests in the competition. Consequently, for EPSO the pandemic amounted to force majeure that severely disrupted the organisation of the tests, that is to say, according to settled case-law, an abnormal and unforeseeable circumstance which was outside its control and the consequences of which could not have been avoided in spite of the exercise of all due care (see, by analogy, judgment of 28 April 2022, C and CD (Legal obstacles to the execution of a decision on surrender), C‑804/21 PPU, EU:C:2022:307, paragraph 44 and the case-law cited).
58In that context, points 1 and 2 of the addendum to the notice of competition, referred to in paragraph 47 above, state, first of all, that, due to the COVID-19 pandemic, EPSO had to interrupt and suspend all of its assessment centre activities from 6 March 2020, in order to ensure that all appropriate precautionary measures were taken. It is then stated that, when the selection procedure was resumed, in spite of the COVID-19 pandemic, for public health reasons it was not possible to organise tests with physical presence in EPSO premises in the near future and that, last, in order to conclude the competition within a reasonable period, EPSO had decided to organise online testing (remotely) for the tests that were initially intended to be held at the assessment centre.
59Therefore, EPSO was confronted with force majeure that made it impossible to plan the tests in a reliable way because of the unforeseeable development of the COVID-19 pandemic after 6 March 2020 and the fact that it was extremely unlikely that the selection procedure could be resumed in the autumn of 2020 in conditions similar to those that had prevailed before the COVID-19 pandemic. In the exercise of its wide discretion and of its powers under Article 7(1) to (3) of Annex III to the Staff Regulations, first, EPSO was thus able to take the view that the procedure for the competition tests had to be adapted, in order to ensure that the procedure could continue while protecting candidates’ health and in order to limit any adverse effects that might result from the suspension or the resumption of the procedure, both for candidates and for the institution concerned. Second, EPSO was able to decide that that adaptation must be applied only to the extent that was strictly necessary in the light of that objective.
60On the latter point, first of all, it is apparent from the case file that, on 13 March 2020, out of 385 candidates invited to the tests organised at the assessment centre for the two selection procedures then in progress, but suspended, the vast majority – 289 candidates – had already taken the tests in person.
61It should be observed that, in those circumstances, EPSO focused on taking account of the interest of those candidates who had already taken the tests – the majority of the candidates entered – in not being required to retake them, that interest thus requiring that the tests in principle and the associated results, obtained before the selection procedure was suspended, be maintained. It therefore rightly considered that the solution involving all the candidates taking all the tests again remotely would have been disproportionate and contrary to the principles of proportionality and good administration in the light of the interest of those candidates.
62Next, it is apparent from preliminary general studies supplied by EPSO that the remote testing procedure had already been tried and tested in previous selection procedures and that they had then been considered by the administration and the candidates to be technically reliable and not to entail significant differences in the accuracy of the assessment and the results obtained by the candidates, in addition to being endorsed by the candidates. In those circumstances, taking account of those preliminary studies, EPSO could reasonably envisage favouring a remote testing procedure with a view to protecting candidates’ health and, moreover, consider that, for candidates who on the date on which the procedure was suspended had not yet taken the tests consisting in the general competency-based interview, the field-related interview and the case study, remote testing would not demand an excessive effort of adaptation on their part that would be contrary to the principle of proportionality.
63Last, as regards the group exercise test, it should be observed that EPSO, after consulting specialists and scientific publications, took account of the fact that remote testing, which would involve a specific dynamic linked with the candidates’ physical presence and used for the purpose of assessment in that framework of specific competencies, would be technically complex and inappropriate. Thus, in the exercise it its wide discretion, EPSO was entitled to take the view that those difficulties meant that the group exercise test had to be redefined.
64In that regard, is should be borne in mind that point 5, entitled ‘Assessment centre’, under the heading ‘How will I be selected’, of the notice of competition provided for the allocation between the tests of the assessment of the eight competencies covered by the competition and that, thus, a test similar to the group exercise test was essential in order to ensure the reliability of the results obtained according to an additional double assessment of the following six competencies: ‘analysis and problem-solving’, ‘learning and development’, ‘prioritising and organising’, ‘resilience’, ‘working with others’ and ‘leadership’ (see paragraph 5 above).
65Consequently, EPSO could not envisage simply abandoning the group exercise test, as to do so would mean that the selection board would make an incomplete assessment of the candidates’ competencies that were assessed. EPSO was therefore entitled to consider, still within the framework of its wide discretion, that it was necessary to organise a test aimed at assessing those six competencies in order to ensure the validity of candidates’ overall results.
66In those circumstances, the SCBI was conceived by EPSO as a test to assess competencies similar to those assessed in the group exercise, while having the advantage of being much simpler to organise and providing a more reliable assessment technique than the group exercise when those tests are organised remotely.
67It must therefore be concluded that EPSO’s adoption of the addendum to the notice of competition putting in place the SCBI is the result of EPSO’s decision to employ the test method that was least onerous for all the candidates in the light of the exceptional circumstance represented by the COVID-19 pandemic.
68The amendment at issue is therefore not contrary to the principle of proportionality.
(4)The complaint alleging failure to observe the principle of equal treatment
69According to settled case-law, the principle of equal treatment 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 (judgments of 11 September 2007, Lindorfer v Council, C‑227/04 P, EU:C:2007:490, paragraph 63, and of 20 March 2012, Kurrer and Others v Commission, T‑441/10 P to T‑443/10 P, EU:T:2012:133, paragraph 53). Furthermore, in a matter which comes within the exercise of a discretion, there is an infringement of the principle of equal treatment when the institution concerned makes a distinction that is arbitrary or manifestly inappropriate by reference to the objective pursued by the regulations in question (see judgment of 20 March 2012, Kurrer and Others v Commission, T‑441/10 P to T‑443/10 P, EU:T:2012:133, paragraph 54 and the case-law cited).
70An infringement of the principle of equal treatment assumes that the treatment at issue entails a disadvantage for some persons as opposed to others (see, to that effect, judgment of 16 December 2008, Arcelor Atlantique et Lorraine and Others, C 127/07, EU:C:2008:728, paragraph 39 and the case-law cited).
71The selection board must ensure strict compliance with the principle of equal treatment for candidates in the course of a competition. Although the selection board has a wide discretion with regard to the detailed content of the tests and the way in which they are carried out, it is nonetheless for the Courts of the European Union to exercise their power of review to the extent necessary to ensure equal treatment of candidates and objectivity in the choice made between them by the selection board (judgment of 12 March 2008, Giannini v Commission, T‑100/04, EU:T:2008:68, paragraph 132). In that context, it is also for the appointing authority, as the organiser of the competition, as well as for the selection board, to act in such a way that all the candidates in the same competition must take the same test in the same conditions. Thus, it is for the competition selection board to ensure that the tests present substantially the same degree of difficulty for all the candidates (see, to that effect, judgments of 24 March 1988, Goossens and Others v Commission, 228/86, EU:C:1988:172, paragraph 15, and of 12 February 2014, De Mendoza Asensi v Commission, F‑127/11, EU:F:2014:14, paragraph 44 and the case-law cited).
72Furthermore, in order to ensure equal treatment of candidates, consistency in marking and objectivity in the assessment, the selection board is required to ensure that the assessment criteria are applied consistently to all candidates (judgment of 13 January 2021, Helbert v EUIPO, T‑548/18, EU:T:2021:4, paragraph 32). That requirement is particularly important in the oral tests, since those tests are by nature less uniform than the written tests (judgment of 13 January 2021, Helbert v EUIPO, T‑548/18, EU:T:2021:4, paragraph 33).
73It nonetheless follows from the first sentence of Article 1d(6) of the Staff Regulations that the principle of non-discrimination may be limited, provided that any limitation of its application is ‘justified on objective grounds’ and is aimed at legitimate objectives in the general interest in the framework of staff policy (judgment of 6 July 2022, MZ v Commission, T‑631/20, EU:T:2022:426, paragraph 62).
74Thus, the wide discretion which the EU institutions enjoy in organising their services and, in particular, in determining the ability criteria required by the posts to be filled and, in accordance with those criteria and in the interest of the service, the conditions and procedures for the organisation of the competition, is necessarily circumscribed by Article 1d of the Staff Regulations, so that differences in treatment are permissible only if they are justified on objective grounds and proportionate to the genuine needs of the service (see, to that effect, judgment of 6 July 2022, MZ v Commission, T‑631/20, EU:T:2022:426, paragraph 63 and the case-law cited).
75In the present case, it should be observed that EPSO organised the oral SCBI test for all candidates, that is to say, irrespective of their situation on the date on which the selection procedure was resumed, in place of the group exercise test, for the purpose of assessing the same competencies as those specifically covered by the group exercise test.
76In the light of the particular organisation of the new SCBI test, first, it must be concluded that EPSO ensured that, by that test, the selection board would allow all candidates to be assessed consistently and fairly on the six competencies referred to in the notice of competition, in accordance with the case-law referred to in paragraphs 71 and 72 above. It must therefore be concluded that EPSO treated all the candidates equally.
77Second, it is true that, in the light of the general organisation of the competition, EPSO treated in the same way candidates who were in different situations, namely candidates who had already taken the tests initially envisaged in the notice of competition and candidates who had not yet taken those tests.
78It is therefore necessary to examine whether that infringement of the principle of equal treatment was justified on objective grounds by a legitimate objective in the public interest in the framework of staff policy.
79It is apparent from point 4 of the addendum to the notice of competition that the reason for that equal treatment was that EPSO was under an obligation to ensure that all candidates would be treated in the same way as regards the taking of the SCBI test. Such equal treatment was therefore consistent with the objectives of EPSO’s involvement in the selection procedure, set out in Article 7(1) of Annex III to the Staff Regulations, which consisted in taking the necessary measures to ensure that uniform standards were applied in the selection procedures for officials of the European Union. It therefore appears to be justified on objective grounds within the meaning of the case-law referred to in paragraphs 69 and 73 above.
80In those circumstances, it must be concluded that EPSO did not infringe, within the meaning of the case-law referred to in paragraph 70 above, the principle of equal treatment when it invited the applicant to take the SCBI test.
(5)The complaint alleging failure to comply with the principles of legal certainty and protection of legitimate expectations
81It should be borne in mind that Article 1(1) and (2) of Annex III to the Staff Regulations is worded as follows:1.Notice of open competitions shall be drawn up by the appointing authority after consulting the Joint Committee. The notice shall state:(a) the nature of the competition (competition internal to the institution, competition internal to the institutions, open competition, where appropriate, common to two or more institutions);(b) the kind of competition (whether on the basis of either qualifications or tests, or of both qualifications and tests);(c) the type of duties and tasks involved in the posts to be filled and the function group and grade offered;…(e) where the competition is on the basis of tests, what kind they will be and how they will be marked;…Notice of open competitions common to two or more institutions shall be drawn up by the appointing authority referred to in Article 2(2) of the Staff Regulations, after consulting the common Joint Committee.2. Notice of open competitions shall be published in the [Official Journal] not less than one month before the closing date for applications and, where applicable, not less than two months before the date of the tests.’
82Thus, pursuant to Article 1(1)(e) of Annex III to the Staff Regulations, the notice of competition must state, where the competition is on the basis of tests, what kind they will be and how they will be marked (judgment of 21 March 2013, Taghani v Commission, F‑93/11, EU:F:2013:40, paragraph 65; see also, to that effect, judgment of 14 July 1983, Detti v Court of Justice, 144/82, EU:C:1983:211, paragraph 27).
83Furthermore, although the selection board has a wide discretion to fix the conditions of a competition, it is bound by the wording of the notice of competition as published. The terms of the notice of competition constitute the framework of lawfulness and also the framework of discretion for the competition selection board (see, to that effect, judgment of 21 October 2004, Schumann v Commission, T‑49/03, EU:T:2004:314, paragraph 63 and the case-law cited).
84In the present case, it is common ground that the addendum to the notice of competition amended, after the eligibility tests had been concluded for some of the candidates, the procedure for the assessment of the competencies covered by the group exercise test, by altering the nature of that test, defined in advance in accordance with Article 1(1)(e) of Annex III to the Staff Regulations, and replaced it by an individual exercise carried out remotely in the form of the SCBI.
85In that regard, according to settled case-law, the principle of the protection of legitimate expectations is the corollary of the principle of legal certainty, which requires that legal rules be clear and precise, and aims to ensure that situations and legal relationships governed by EU law remain foreseeable (judgments of 15 February 1996, Duff and Others, C 63/93, EU:C:1996:51, paragraph 20, and of 5 September 2014, Éditions Odile Jacob v Commission, T‑471/11, EU:T:2014:739, paragraph 90). Those principles preclude an EU measure from taking effect from a point in time before its publication, save, exceptionally, where the purpose to be achieved so demands and where the legitimate expectations of those concerned are duly respected (see judgment of 10 November 2010, OHIM v Simões Dos Santos, T‑260/09 P, EU:T:2010:461, paragraph 48 and the case-law cited).
86It must therefore be ascertained whether, as the applicant maintains, the unforeseeable amendment of the nature of the test after it had been conducted in part constitutes an infringement of the principles of protection of legitimate expectations and legal certainty within the meaning of the case-law referred to in paragraph 85 above.
87In the present case, first, as regards the condition relating to the aim to be achieved, it should be borne in mind that the exceptional circumstance represented by the COVID-19 pandemic justified the adoption of the addendum to the notice of competition, in order to allow, for the benefit of candidates and of the institution, the selection procedure to continue in circumstances that were possible, proportionate and acceptable from a health viewpoint (see paragraphs 58 to 67 above). In doing so, it was aimed, ultimately, at the effectiveness of the recruitment on the basis of a competition. Since the amendment in question of the selection procedure was required, exceptionally, by the objective of ensuring, in spite of the difficulties of the health context, the recruitment covered by that procedure, it must be considered that the first exceptional condition established in the case-law referred to in paragraph 85 above is satisfied.
88Second, as regards the second exceptional condition relating to respect for the applicant’s legitimate expectations, it is true that, in accordance with settled case-law, the right to rely on the principle of the protection of legitimate expectations extends to any person with regard to whom an institution of the European Union has given rise to justified hopes. Three conditions must be satisfied in order for a claim to entitlement to the protection of legitimate expectations to be well founded. First, precise, unconditional and consistent assurances originating from authorised and reliable sources must have been given to the person concerned by the EU authorities. Second, those assurances must be such as to give rise to a legitimate expectation on the part of the person to whom they are addressed. Third, the assurances given must comply with the applicable rules (see judgment of 5 September 2014, Éditions Odile Jacob v Commission, T‑471/11, EU:T:2014:739, paragraph 91 and the case-law cited).
89Clearly, however, in the present case, as is apparent from paragraph 57 above, EPSO was confronted, during the procedure, with force majeure connected with the COVID-19 pandemic that meant that it was impossible in those circumstances to maintain the detailed rules of the selection procedure that were initially defined in the notice of competition. In the exceptional circumstances of the present case, therefore, the applicant cannot rely on an alleged failure to respect the principle of protection of the legitimate expectation that those rules would be applied to him.
90It should be added, moreover, that although EPSO altered the nature of the group exercise test, it nonetheless endeavoured to design that amendment in such a way as to make it possible to respect the objective of that test as defined in point 5 under the heading ‘How will I be selected?’ of the notice of competition, namely that of assessing the six competencies described in that point. Furthermore, it should be observed that the amendment of the rules relating to the nature of that test did not affect the possibility for the applicant actually to be assessed on those six competencies, since he was invited to take the new SCBI test in the same way as all the other candidates.
91In those circumstances, and since Article 7(1) and (2) of Annex III to the Staff Regulations confers on EPSO the power to organise open competitions and to take the necessary measures to ensure that uniform standards are applied in the selection procedures, having a wide discretion in that regard, EPSO was under no obligation to obtain the consent of candidates, including the applicant, to an amendment of the test procedures. Accordingly, applicant’s complaint that his consent to take the tests could not be assumed (see paragraph 42 above) is inoperative and must be rejected.
92In addition, as regards the letter of 1 July 2020 (see paragraphs 14 and 41 above), EPSO stated in that letter that, ‘in the light of recent developments and the policies adopted by the Member States with regard to the COVID-19 situation, [it had] decided to plan a resumption [of the procedure] in the assessment centres around the second half of September’. Thus, while that letter does in fact state that ‘candidates who have already taken [the tests] at the assessment centre [will] not be invited again’, the fact remains that that information is expressly stated to be subject to an improvement in the epidemiological situation previously described and mentions the resumption of the procedure in person at the assessment centres, that is to say, according to the rules set out in the notice of competition. That conditionality cannot cause the applicant to have a legitimate expectation that the procedure involving attendance in person will be maintained in the event that the epidemiological situation should deteriorate and circumstances of force majeure should make it necessary to adapt it in order to allow the procedure to continue.
93In the light of all of the foregoing, the first plea must be rejected.…
(c)The third plea, alleging unequal treatment by comparison with candidates who took all the tests remotely
115The applicant emphasises that he took, in person, the general competency-based interview test and the field-related interview test at the assessment centre on 3 March 2020, whereas candidates who had not taken those tests by that date took them subsequently, remotely by videoconferencing, when the procedure was resumed from the autumn of 2020. He maintains that, owing to that difference in the procedure for taking the tests, EPSO did not treat him in the same way as those other candidates and, in addition, made procedural errors.
116First, the applicant submits that, if the exercises set and the questions put to the candidates during the remote tests were the same as those used with candidates who had already taken in person the tests organised at the assessment centre, the former would have been at an advantage by comparison with the latter because they were given additional time to answer the questions, that additional time being inherent in the electronic retransmission provided for according to the new rules on remote testing. By virtue of that additional time, those candidates would have had access to better interview conditions likely to have had positive effects on their marks. The applicant observes that EPSO did not seek to correct or to make allowances for that disadvantage, even though such measures would be legally acceptable in the context of a selection procedure on the basis of qualifications.
117Second, the applicant claims that the introduction by EPSO of objectively unequal examination conditions between candidates means that it made a procedural error by adopting the addendum to the notice of competition, without taking account of the applicant’s interest, or of the interest of the other candidates who had taken the tests in person. He maintains that the fact that the reconsideration decision contains no justification in that respect, whereas that had been the purpose of the request for a reconsideration, would entail the infringement by EPSO of the obligation to state reasons laid down in Article 296 TFEU.
118The Commission disputes the applicant’s arguments.…
124In the second place, as regards what is alleged to be the unequal treatment linked with the organisation of the online tests, it should be borne in mind that, where it is required to review the legality of a decision of a selection board refusing to include the name of a candidate on a reserve list, the Court checks whether the relevant legal rules have been observed, that is to say, the rules, in particular the procedural rules, laid down in the Staff Regulations and the notice of competition and those governing the proceedings of the selection board, in particular the selection board’s duty of impartiality and its observance of the principle of equal treatment of candidates, and also the absence of any misuse of powers (judgment of 6 July 2022, JP v Commission, T‑179/20, not published, EU:T:2022:423, paragraph 67).
125According to the case-law referred to in paragraphs 69 to 74 above, the principle of equal treatment requires that comparable situations must not be treated differently unless such treatment is objectively justified and meets legitimate objectives of general interest in the framework of staff policy. Furthermore, it is for the selection board, which is required to ensure that the assessment criteria are applied consistently to all candidates, to act in such a way that all candidates for the same competition take the same test in the same conditions, and thus to ensure that the tests present substantially the same degree of difficulty for all candidates. That requirement is particularly important in the oral tests.
126Furthermore, it follows from the case-law that every competition embodies, generally and inherently, a risk of unequal treatment. Thus, an infringement of the principle of equal treatment can be established only when the selection board, when choosing the tests, did not limit the risk of inequality of opportunities that is generally inherent in any test (see, to that effect, judgment of 12 March 2008, Giannini v Commission, T‑100/04, EU:T:2008:68, paragraph 133). Consequently, the decision not to include a candidate on a reserve list must be annulled if it transpires that the competition was organised in a way that that led to a risk of unequal treatment that was greater than that inherent in any competition, without the candidate concerned being required to provide evidence of the fact that some candidates were actually at an advantage (judgment of 12 February 2014, De Mendoza Asensi v Commission, F‑127/11, EU:F:2014:14, paragraph 46).
127In the present case, it should be borne in mind that the change in the rules governing the test is the result of the need for EPSO, confronted with the COVID‑19 pandemic, which constituted force majeure, to ensure that the selection procedure could continue in circumstances that were the same for all candidates, while adapting, in a proportionate manner, the test procedures in order to limit any harmful effects arising from the suspension or resumption of the procedure, as much for candidates as for the recruiting institution (see paragraph 59 above). Accordingly, if some candidates in comparable situations from the viewpoint of the competition were treated differently when taking the tests because several procedures were followed, such treatment was nonetheless justified on objective grounds and met a legitimate objective of general interest in the context of the staff policy.
128Furthermore, preliminary studies, on which EPSO relied in order to amend the test procedures, show that the remote testing procedures in the context of the COVID‑19 pandemic had been tried during previous tests and had subsequently been considered to be technically reliable and not to entail significant differences in the accuracy of the assessments and candidates’ results, and were also approved by the candidates (see paragraph 62 above). In addition, it follows, in essence, from points 2 and 4 of the addendum to the notice of competition, that candidates took substantially the same tests, with the particular case of the group exercise that was replaced by the SCBI taken by all candidates and that, accordingly, only the form and the environment in which the tests were taken had changed, while the tests remained identical in content, methodology and difficulty.
129Furthermore, it should be borne in mind that when the tests were taken by each candidate, although the assessment criteria were the same for all candidates whatever the procedure for taking the tests, the examiners nonetheless had a wide discretion in the conduct of the interviews, the subjects and fields addressed within the scope of the notice of competition and the questions put. The assessments made by a competition selection board when it assesses the knowledge and aptitudes of candidates constitute the expression of a value judgment of the performance of each candidate in the test and come within the wide discretion of the selection board. Those assessments can be reviewed by the Court only where there is a clear infringement of the rules governing the proceedings of the selection board. The Court cannot substitute its own assessment for that of the selection board (judgment of 12 March 2008, Giannini v Commission, T‑100/04, EU:T:2008:68, paragraph 275).
130It must therefore be considered that the different treatment of candidates relating to the fact that the tests initially planned to be held at the assessment centre did not all take place in person was not capable, in the present case, of conferring an advantage on some as opposed to others, nor did it lead to a higher risk of unequal treatment than that inherent in any competition. As that different treatment was put in place in response to force majeure, it must be concluded that, for all of those reasons, that difference in treatment, which was reasonably justified on objective grounds, did not lead to an infringement of the principle of equal treatment.
131It follows that the third plea must be rejected.…
Operative part
On those grounds,THE GENERAL COURT (Seventh Chamber)hereby:
1.Dismisses the action;
2.Orders SY to bear his own costs and to pay one half of those incurred by the European Commission;
3.Orders the Commission to bear one half of its own costs.
Delivered in open court in Luxembourg on 14 December 2022.
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