(Civil service– Officials– Recruitment– Open Competition EPSO/AST/147/19

20As a preliminary point, the reference in the application to Article263 TFEU notwithstanding, it is appropriate to consider that the present action has been brought under Article270 TFEU and to reclassify it accordingly.

21Moreover, under Article126 of the Rules of Procedure, where it is clear that the Court has no jurisdiction to hear and determine an action or where an action is manifestly inadmissible or manifestly lacking any foundation in law, the Court may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings.

22In the present case, the Court considers that it has sufficient information from the documents in the file and therefore has decided to give a decision without taking further steps in the proceedings.

Subject matter of the action

23According to settled case-law, claims for annulment formally directed against the decision rejecting a complaint have the effect of bringing before the Court the act against which the complaint was submitted, where those claims, in themselves, have no independent content (see judgment of 26March 2020, Teeäär v ECB, T‑547/18, EU:T:2020:119, paragraph24 and the case-law cited).

24In the present case, given that the decision rejecting the complaint merely confirms the decision of 5February 2020, it must be held that the claim for annulment of the decision rejecting the complaint has no independent content and that there is therefore no need to rule specifically on that claim, even though, in examining the lawfulness of the decision of 5February 2020, account should be taken of the statement of reasons provided in the decision rejecting the complaint, since that statement of reasons is deemed to be the same as that contained in the decision of 5February 2020 (see, to that effect, judgment of 26March 2020, Teeäär v ECB, T‑547/18, EU:T:2020:119, paragraph25 and the case-law cited).

Substance

25In support of the action, the applicant raises four pleas alleging (i) breach of the principles of equal treatment, transparency, objectivity and Article1d(5) of the Staff Regulations, (ii) breach of the principle of good administration, (iii) infringement of the obligation to state reasons and (iv) infringement of Article27 of the Staff Regulations.

26The Court considers it appropriate to examine the third plea before the first, second and fourth pleas.

The third plea, alleging infringement of the obligation to state reasons

27The applicant submits that in the decision rejecting the complaint, the appointing authority failed to disclose, in a clear and unambiguous manner, the reasoning followed in such a way as to make it possible for him to be aware of the reasons which led to the finding that the final selection was not vitiated by unequal treatment. According to the applicant, it also did not make it possible for him to ascertain whether the exercise of remedies would be necessary in order to safeguard his rights.

28The Commission disputes those arguments.

29At the outset, it should be borne in mind that, according to settled case-law, the obligation to state reasons provided for in the second paragraph of Article25 of the Staff Regulations and, more generally, by Article41(2) of the Charter of Fundamental Rights of the European Union is intended, on the one hand, to provide the person concerned with sufficient details to determine whether the act adversely affecting him or her was well founded and whether it is appropriate to bring proceedings before the Court and, on the other, to enable that court to review the legality of the act (see, to that effect, judgments of 26November 1981, Michel v Parliament, 195/80, EU:C:1981:284, paragraph22, and of 22November 2018, Brahma v Court of Justice of the European Union, T‑603/16, EU:T:2018:820, paragraph165 (not published)).

30In the present case, it is apparent from the decision of 5February 2020 that the applicant was informed of the reason why his name was not included on the reserve list, namely that his aggregate mark, that is, 88 points, fell below the required threshold, namely 102 points. A document, entitled ‘Competency passport’, containing information on his marks and performance in relation to the competences assessed during the tests at the assessment centre, was attached to that decision.

31In addition, it is apparent from the decision rejecting the complaint that the Commission rejected the arguments set out by the applicant in his complaint on the ground that, according to the Commission, he had not provided sufficient evidence to give rise to a presumption that the principle of equal treatment had been breached during the competition. That finding and the reasons for that finding were set out sufficiently clearly to make it possible for the applicant to ascertain whether the decision of 5February 2020 was well founded and whether it was appropriate to bring an action before the Court, and to allow the Court to review the lawfulness of that decision.

32In so far as the applicant disputes, through his arguments, the fact that the appointing authority failed to demonstrate that the principle of equal treatment had been respected, which relates rather to whether the Commission’s reasoning was well founded, those arguments must be rejected as ineffective in so far as they are made in support of the present plea. It is settled case-law 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 judgment of 5September 2018, Villeneuve v Commission, T‑671/16, EU:T:2018:519, paragraph31 and the case-law cited).

33Having regard to the foregoing, the third plea alleging infringement of the obligation to state reasons must be rejected as manifestly unfounded.

The first plea, alleging infringement of the principles of equal treatment, transparency, objectivity and of Article1d(5) of the Staff Regulations

–The subject matter and admissibility of the first plea

34Regarding the first plea, it must be stated that, even though the applicant refers to Article1d of the Staff Regulations, he does not base his arguments on the claim that he has been discriminated against on one of the grounds set out in paragraph1 of that provision or another comparable factor such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age, or sexual orientation. Rather, he alleges infringement of the principle of equal treatment arising from the fact that the selection board treated more favourably the candidates who were still working for an EU institution, body, office or agency after their application was lodged and specifically at the time of the tests at the assessment centre.

35In addition, the Commission calls into question the admissibility of the first plea, in so far as the applicant had declared in his application that he had worked at the European Parliament from 1July 2014 to 22February 2019 and where he, according to the Commission, continued in all likelihood to work until the end of the parliamentary term in June 2019. The Commission submits– assuming that such an advantage had existed– that the applicant himself was thus treated more favourably as a candidate working for the EU institutions or agencies during the competition period, namely from 26February 2019 to 6April 2020. For that reason, it claims that the Court should make an order for a measure of inquiry asking the applicant to state whether he was employed at an EU institution or agency during that period.

36In that connection, it must be borne in mind that the EU judicature is entitled to assess, in the circumstances of the case, whether the proper administration of justice justifies dismissal of the action on the merits without first ruling on its admissibility (see, to that effect, judgment of 26February 2002, Council v Boehringer, C‑23/00P, EU:C:2002:118, paragraph52). In the present case, for reasons of procedural economy, it is appropriate to examine the first plea without first ruling on the plea of inadmissibility raised by the Commission, without there being any need to order the measure of inquiry sought by the Commission.

–The merits of the first plea in law

37The applicant claims that the decision of 5February 2020 is vitiated by a breach of the principle of equal treatment, in so far as the candidates employed by the EU institutions, bodies, offices or agencies were treated more favourably during the tests at the assessment centre, without objective reasons. He observes that at least 61.5% of the candidates whose names were included on the reserve list were already employed by those institutions as members of the contract or temporary staff, a number at which he arrived after examining the professional email addresses of the successful candidates, the lists on the websites of the institutions and professional social media and through his professional and personal network. In addition, he submits that the procedure described in the competition notice was not safeguarded against manipulation, in the context of the mainly oral tests at the assessment centre in particular, during which the selection board has a wide discretion.

38According to the applicant, the approximate figure of 60% of ‘internal’ candidates whose names were included on the reserve list is sufficient to establish a presumption of discrimination, meaning that it is for the Commission to prove that the decision of 5February 2020 is not vitiated by a breach of the principle of equal treatment. He submits that this is particularly the case here, as the situation in which he finds himself is one of a complete lack of transparency. In the decision rejecting the complaint, the appointing authority merely declared that the procedural requirements had been complied with, without providing statistics or specific evidence to rebut that presumption.

39The Commission disputes those arguments.

40At the outset, it must be stated that the applicant does not put forward any arguments regarding the selection board’s assessment or grading of his own performance in the tests. However, he claims that candidates who were already employed by the EU institutions, bodies, offices or agencies were treated more favourably during the tests and the decision of 5February 2020 is thus vitiated by a breach of the principle of equal treatment.

41In that connection, it must be borne in mind that, according to settled case-law, a breach of the principle of equal treatment, applicable to the law relating to the employment of EU officials, occurs when two categories of person whose factual and legal circumstances disclose no essential difference are treated differently at the time of their recruitment and that difference in treatment is not objectively justified (see judgment of 4March 2010, Angé Serrano and Others v Parliament, C‑496/08P, EU:C:2010:116, paragraph99 and the case-law cited).

42In addition, it must be borne in mind that, according to settled case-law, first, an administrative act is presumed to be lawful and, second, the burden of proof lies, in principle, with the person claiming it to be unlawful, so that it is for an applicant to provide at the very least sufficiently precise, objective and consistent information to corroborate the truth or likelihood of the facts in support of his or her claim (see judgment of 12May 2021, Alba Aguilera and Others v EEAS, T‑119/17RENV, EU:T:2021:254, paragraph105 and the case-law cited).

43It must be stated from the outset that the applicant’s claims regarding the proportion of successful candidates whose names were included on the reserve list and who are allegedly already employed by the European Union or regarding the lack of ‘safeguarding against manipulation’ are not borne out by any evidence to corroborate the truth or likelihood of the facts in support of the first plea.

44In the first place, according to the case-law, failing any firm evidence, statistical indications alone relating to a list of successful candidates are not sufficient to prove that the selection board applied a discriminatory criterion in the course of the competition or acted in breach of the principle of impartiality (see, to that effect, judgment of 5April 2005, Christensen v Commission, T‑336/02, EU:T:2005:115, paragraph55 and the case-law cited, and of 14July 2005, Le Voci v Council, T‑371/03, EU:T:2005:290, paragraph89).

45Thus, it cannot be accepted that the number referred to by the applicant– that at least 61.5% of the successful candidates were working for the EU institutions at the time of the tests– or the statistics submitted by the Commission relating to a larger group of candidates– that 71% of successful candidates have prior experience in the EU institutions– can establish a presumption of a difference in treatment during the competition without more concrete evidence relating to the treatment of candidates.

46In the second place, regarding the claim that the selection procedure described in the competition notice is not transparent and does not make it possible to avoid procedural ‘manipulation’ by the selection board, it is sufficient to note that that claim is imprecise and is not supported by any evidence. The applicant did not refer to any incident during the tests at the assessment centre that could support his reasoning or call into question the explanations provided in that respect by the appointing authority in the decision rejecting the complaint. Moreover, even assuming that the selection board was aware of the employment situation of the candidates after they submitted their applications, which the applicant has not established, the mere fact that the selection board has a wide discretion is not an indication of unequal treatment or lack of objectivity on its part.

47In those circumstances, as the applicant has not provided any evidence to corroborate the truth or likelihood of the facts in support of his plea alleging breach of the principle of equal treatment, breach of the principle of transparency and breach of the principle of objectivity, the first plea must be rejected as manifestly unfounded.

The second plea, alleging breach of the principle of good administration

48The applicant submits that, even assuming that the burden of proof lies with him to demonstrate that there has been a breach of the principle of equal treatment, where doubts are raised regarding the credibility of the administration, particularly where those doubts relate to its ethics, a good administration is expected to be as transparent and explicit as possible in removing any suspicion raised against it. It is not enough to observe that ‘no trace of any anomaly could be detected’, as, according to the applicant, a good administration is required to verify the number of candidates already working for the EU institutions and to compare their written tests with the oral results and the file of each candidate.

49The Commission disputes those arguments.

50As observed in paragraph47 above, the applicant has not provided any evidence to corroborate the truth or likelihood of the facts in support of his claim that the candidates who were employed by the EU institutions, bodies, offices or agencies at the time of the tests in the assessment centre were treated more favourably without objective reasons. Accordingly, it is not for the Commission to prove that there has not been a breach of the principle of equal treatment in that regard.

51That finding is not called into question by the applicant’s arguments regarding the principle of good administration. He was, at the very least, required to produce evidence to support his case before the question of the qualification of the burden of proof could be raised (see, to that effect, judgment of 8September 2021, JA v Parliament, T‑156/20, not published, EU:T:2021:551, paragraph124). In those circumstances, the appointing authority was not required to provide explanations or statistical data on the candidates in the competition.

52Having regard to the foregoing, the second plea must be rejected as manifestly unfounded.

The fourth plea, alleging infringement of Article27 of the Staff Regulations

53The applicant claims that the decision of 5February 2020 infringes Article27 of the Staff Regulations. According to the applicant, by treating more favourably the candidates who were already employed in the EU institutions, the selection board applied, in practice, the arbitrary criterion of employment within those institutions and thus failed to conduct a comparative examination of the candidates’ knowledge and abilities, solely on the basis of the requirements of the posts to be filled, of the interest of the service and in accordance with that article.

54The Commission disputes those arguments.

55In that connection, it suffices to note that the applicant’s claim that the candidates who were employed by the EU institutions, bodies, offices or agencies at the time of the tests in the assessment centre were treated more favourably without objective reasons was rejected in the context of the first plea, as the applicant has not provided any evidence to corroborate the truth or likelihood of the facts in support of his plea alleging breach of the principle of equal treatment, breach of the principle of transparency and breach of the principle of objectivity.

56Having regard to the foregoing, the fourth plea must be rejected as manifestly unfounded and, as a result, the action in its entirety must be dismissed as manifestly lacking any foundation in law.