Case T‑312/21

SY

v

Commission

Judgment of the General Court (Seventh Chamber), 14 December 2022

(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 admission tests have been carried out – Lack of legal basis – Legitimate expectations – Legal certainty – Force majeure – Equal treatment – Entitlement to special arrangements – Organisation of the tests remotely – High pass rate of internal candidates – Action for failure to act)

1. Actions brought by officials – Act adversely affecting an official – Decision adopted after reconsideration of a previous decision – Decision adopted by a competition selection board after reviewing the file of a candidate not included on the reserve list – Failure of the administration to reply to the complaint against the initial decision – Omission not constituting a failure to act

   (Art. 265 TFEU; Staff Regulations of Officials, Arts 90 and 91)

   (see paragraphs 33, 157, 159, 160, 163)

2. Officials – Competitions – European Personnel Selection Office (EPSO) – Conduct of competitions for the recruitment of officials – EPSO’s role – Assistance given to the selection board – Amendment, by addendum to a notice of competition, of the rules of the selection procedure – Whether permissible

   (Staff Regulations of Officials, Annex III, Art. 7(1) to (3))

   (see paragraphs 51, 52)

3. Officials – Competitions – European Personnel Selection Office (EPSO) – Powers – Organisation of selection tests – Scope – Adoption of an addendum to a notice of competition in order to replace the group exercise test with an interview organised remotely via videoconference – Whether permissible – No breach of the principles of proportionality and equal treatment of candidates

   (Staff Regulations of Officials, Annex III, Art. 7(1) to (3))

   (see paragraphs 53, 57-67, 75-80)

4. Officials – Competitions – Organisation and content of tests – Selection board’s discretion – Judicial review – Limits

   (Staff Regulations of Officials, Annex III)

   (see paragraphs 54, 55)

5. Officials – Competitions – European Personnel Selection Office (EPSO) – Powers – Organisation of selection tests – EPSO’s discretion – Judicial review – Limits

   (Staff Regulations of Officials, Annex III, Art. 7(1) to (3))

   (see paragraph 56)

6. Officials – Competitions – Organisation and content of tests – Selection board’s discretion – Limits – Observance of the principle of equal treatment of candidates – Scope

   (Staff Regulations of Officials, Art. 1d(6) and Annex III, Art. 1(1)(e))

   (see paragraphs 69-74)

7. Officials – Competition based on tests – Requirements for passing – Fixing by the competition notice – Amendment of the group exercise test after a part of the admission tests have been carried out – Replacement with an interview organised remotely via videoconference – Justification relating to the outbreak of the COVID-19 pandemic – No breach of the principle of protection of legitimate expectations

   (Staff Regulations of Officials, Annex III, Art. 1(1))

   (see paragraphs 82-92)

8. Officials – Competitions – Organisation and content of tests – Arrangements for candidates with disabilities – Obligation of the European Personnel Selection Office (EPSO) – Scope – Infringement – Consequences – Annulment of the decision not to include a candidate on the competition reserve list – Condition

   (Charter of Fundamental Rights of the European Union, Art. 21(1); Staff Regulations of Officials, Art. 1d)

   (see paragraphs 103-108)

9. Officials – Competitions – Organisation and content of tests – Amendment of the group exercise test after a part of the admission tests have been carried out – Replacement with an interview organised remotely via videoconference – Obligation to state reasons – Scope

   (Staff Regulations of Officials, Annex III, Art. 1(1)(e))

   (see paragraphs 119-122)

10. Officials – Competitions – Organisation and content of tests – Respect for the principle of equal treatment – Amendment of the rules on account of the outbreak of the COVID-19 pandemic – Difference in treatment of candidates because the tests originally scheduled to take place at the assessment centre were not all held in person – No breach of the principle of equal treatment

    (Staff Regulations of Officials, Art. 1d(6); Annex III, Art. 1(1)(e))

    (see paragraphs 125-130)

11. Officials – Competitions – Assessment of the aptitudes of candidates – Respect for the principle of equal treatment – Pass rate among candidates from within the EU institutions higher than among those from outside – Fact not in itself constituting a breach of the principle of equal treatment

    (Staff Regulations of Officials, Art. 1d and Annex III, Art. 5)

    (see paragraphs 137-139)

Résumé

On 26 June 2019, the applicant, SY, applied to take part in Open Competition EPSO/AD/374/19, the purpose of which was to draw up several reserve lists with a view to the recruitment of administrators by the European Commission.

During the selection procedure, the applicant was invited to take part in the competency tests organised at the assessment centre, which included a group exercise.

On 6 March 2020, the selection procedure was suspended on account of the outbreak of the COVID-19 pandemic and of the ensuing health crisis. On that date, not all candidates had taken the tests organised at the assessment centre.

Following the publication in the Official Journal in November 2020 of an addendum to the notice of competition, the selection procedure was resumed. The addendum provided, first of all, that the candidates who had not taken the tests at the assessment centre in person before 6 March 2020 were to take all of those tests remotely. Next, the group exercise was replaced with a situational competency-based interview organised remotely via videoconference (‘the SCBI’). Lastly, the candidates who, like the applicant, had taken all of the tests organised at the assessment centre before 6 March 2020 also had to take that interview, the mark for which was to replace that obtained at the end of the group exercise.

The applicant was invited to and sat the SCBI. According to the invitation letter, by accepting the invitation, the applicant accepted the conditions of the competition and of the addendum to the notice of competition.

Subsequently, the applicant was informed of the decision of the selection board of the competition not to include his name on the reserve list on the ground that he was not among the candidates who obtained the highest overall marks in the assessment centre.

The selection board of the competition confirmed that decision after the review requested by the applicant, with the result that the latter brought an action for annulment before the General Court.

The Court dismisses the action and supplements, on this occasion, the existing case-law related to the wide discretion of the European Personnel Selection Office (EPSO) and of the selection board for a competition with regard to the procedure for organising a competition. The judgment extends the wide discretion enjoyed by the selection board where it is confronted with irregularities or errors which have occurred in the course of a competition to situations of force majeure such as, in the case at hand, the outbreak of the COVID-19 pandemic. More generally, it defines the scope of the possibility for EPSO to amend, in such a situation, the rules for the tests in a competition by recalling the legal basis of such an amendment and the observance of the principles of proportionality, equal treatment, legal certainty and protection of the legitimate expectations of candidates.

Findings of the Court

The Court notes, as a preliminary point, that, pursuant to the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), ( 1 ) EPSO is to provide assistance to the different institutions by defining and organising the selection procedures for officials whilst complying with the general provisions adopted by the institutions. Accordingly, that legal basis enabled EPSO to amend, by the addendum to the notice of competition, the rules of the selection procedure.

As regards, in the first place, the observance of the principle of proportionality, the Court notes that the EU institutions have a wide discretion with regard to the procedure for organising a competition and the EU Courts may therefore review those procedures only in so far as is necessary to ensure equal treatment of candidates and objectivity in the choice made between them. Furthermore, as recognised in the case‑law, a wide discretion that is subject to the same limits must be afforded to the selection board where 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 cannot, under the principles of proportionality and sound administration, be rectified by a repetition of the tests in the competition. The competition selection board must also be afforded such a wide discretion where it is confronted with situations of force majeure.

Thus, the EU Courts may not review the detailed content of a test, unless that content is not confined within the limits laid down in the notice of competition or is not consonant with the purposes of the test or of the competition.

In the case at hand, the SCBI was designed by EPSO as a test to assess competencies similar to those assessed in the context of the group exercise, whilst having the advantage of being easier to organise and of ensuring a more reliable assessment from a technical perspective than the group exercise where those tests are organised remotely. Accordingly, the adoption by EPSO of the addendum to the notice of competition establishing the SCBI is the result of the choice made by EPSO to use the least onerous method of testing for all candidates in the light of the exceptional circumstance caused by the COVID-19 pandemic. Therefore, the amendment at issue is not contrary to the principle of proportionality.

As regards, in the second place, the observance of the principle of equal treatment, the Court notes that it is for the competition selection board to ensure that the tests display substantially the same degree of difficulty for all the candidates. Furthermore, in order to ensure equal treatment of candidates, consistent marking and objectivity of the assessment, the selection board is obliged to ensure consistent application of the assessment criteria to all the candidates. That requirement is particularly necessary in the oral tests, since those tests are by their nature less uniform than the written tests.

In the case at hand, EPSO treated equally candidates who were in different situations, namely candidates who had already taken the tests originally provided for in the notice of competition and candidates who had not yet taken them. However, that identical treatment of candidates was based on EPSO’s obligation to ensure that all candidates were treated equally as regards the taking of the SCBI test. Such identical treatment was therefore consistent with the objective of EPSO’s involvement in the selection procedure, which was to take the necessary measures to ensure that uniform standards are applied in the selection procedures for officials of the European Union.

Furthermore, the difference in treatment of candidates due to the fact that the tests that were originally scheduled to take place at the assessment centre did not all take place in person was not capable of putting some of them in an advantageous position compared to others, nor did it create a risk of inequality of treatment that was greater than that inherent in any competition. Since that difference in treatment was established, moreover, in response to a situation of force majeure, that difference in treatment, which was justified on objective and reasonable grounds, did not lead to a breach of the principle of equal treatment.

As regards, in the last place, the observance of the principles of legal certainty and protection of legitimate expectations, the Court notes that, in the case at hand, EPSO was faced, in the course of the procedure, with a situation of force majeure arising from the outbreak of the COVID-19 pandemic, making it impossible in those circumstances to maintain the rules of the selection procedure originally set out in the notice of competition. Accordingly, in the exceptional circumstances of the case at hand, the applicant cannot rely on an alleged failure to observe the principle of protection of legitimate expectations in order to have those rules applied to him.

( 1 ) See Article 7(1) to (3) of Annex III to the Staff Regulations.