Judgment summary
The applicant, a Commission official in grade AST 7, applied for the 2022-2023 certification exercise under Article 45a of the Staff Regulations, seeking selection for a training programme that could lead to appointment in a higher function group (1, 3). After an initial non-inclusion decision was annulled following a successful complaint, her candidature was re-examined and on 13 March 2024 the appointing authority again decided not to include her on the final list (8, 10, 14). She challenged that decision, and the subsequent rejection of her complaint, on multiple grounds including breach of the Staff Regulations, the implementing provisions (the GIPs), equal treatment, legal certainty, duty of care, obligation to state reasons and the right to be heard (25).
The Court examined four pleas in turn and rejected each of them, along with the plea of illegality of point II.5 of the guidelines and the claim for compensation (157, 161). The action was dismissed in its entirety (168).
Background
The applicant, an AST 7 official, applied in October 2022 for the 2022-2023 certification exercise, a procedure under Article 45a of the Staff Regulations allowing 50 AST officials to be selected for a training programme leading to eligibility for AD posts (2, 3, 5).
She was shortlisted for interview and interviewed online by the joint certification panel on 1 March 2023 (6, 7). On 4 April 2023, the Commission published the final list of officials authorised to take part in the training programme; her name was not included (8).
She lodged a first complaint on 4 July 2023, which the appointing authority upheld on 31 October 2023, annulling the first non-inclusion decision and informing her that her candidature would be re-examined (9, 10). Following re-examination by the joint certification committee, the appointing authority adopted the contested decision on 13 March 2024, again confirming her non-inclusion (14). She was given her latest evaluation sheet but not the internal 'note on the follow-up of the complaints' (15). A second complaint, lodged on 12 June 2024, was rejected on 25 October 2024, in a decision that for the first time explained that the first non-inclusion decision had been annulled because the joint certification panel had failed to consider her latest appraisal reports (16, 17).
Core dispute
The applicant sought annulment of the contested decision of 13 March 2024, and in so far as necessary the decision rejecting her complaint, together with EUR 8 000 in compensation for non-pecuniary damage (1, 18).
She raised four pleas: breach of Article 45a of the Staff Regulations, the GIPs, the 2022-2023 guidelines, the principles of equal treatment and legal certainty, and the duty of care and diligence; in the alternative, illegality of point II.5 of the guidelines; breach of the obligation to state reasons; and breach of the right to be heard (25).
Her substantive arguments concerned whether appraisal reports (hers and other candidates') had been properly taken into account, whether two different evaluation grid templates had been used within the same exercise, and whether the absence of a weighting system for assessment criteria was unlawful (56).
Court findings
On the obligation to state reasons, the Court held that the choice to hold interviews online was a mere organisational detail, not part of the decision adversely affecting the applicant, and in any event no procedural irregularity was shown to have affected the outcome (31-35). The reasons given in the applicant's evaluation grid were found to be clear, precise and unequivocal, sufficient to let her understand and challenge the decision (38-44).
On the right to be heard, the Court held that lodging a complaint under Article 90(2) of the Staff Regulations gave the applicant a full opportunity to raise her arguments, so a further hearing was not required before the decision rejecting the complaint was adopted (51-54).
On the substantive pleas, the Court applied a limited standard of review given the broad discretion conferred on the administration under Article 45a (57-59). It rejected the claim that the appraisal reports of other candidates were disregarded, finding no evidence for that premiss (78-82). It found that the applicant's own appraisal reports had in fact been taken into account, as shown by references in her evaluation grid, and that the Commission was entitled to place emphasis on oral performance criteria such as motivation and clarity (89-102).
As to the alleged use of two different evaluation grid templates, the Court found the Commission's denial of this to be unexplained and in tension with the note on the follow-up of the complaints, but held that the applicant had not shown she suffered any disadvantage, nor that it altered the outcome of her case (115-124). As to weighting, the Court held there was no legal obligation to establish a weighting system for assessment criteria, and the Commission had complied with its duties by setting out clear criteria and guidance in advance (130-135).
On the plea of illegality of point II.5 of the guidelines, the Court held the Commission was entitled to add assessment criteria beyond those in Article 6(2) of the GIPs, provided it remained within the framework of Article 45a(2) of the Staff Regulations, and that the guidelines did not depart from the criterion of merit as reflected in appraisal reports (144-156).
Outcome
The Court dismissed all claims for annulment as unfounded (157). The claim for compensation for non-pecuniary damage was rejected as closely linked to the unsuccessful annulment claims (160, 161). The applicant's request for measures of organisation of procedure, seeking production of a second evaluation grid template and the note on the follow-up of the complaints, was also rejected (167).
The action was dismissed in its entirety (168). However, owing to delays in the procedure attributable in part to the Commission's error and its failure to clarify a contradiction concerning the evaluation grid templates, the Court ordered the parties to bear their own costs (170-172).
Major issues / areas of contention
- Whether the Commission adequately stated reasons for the contested decision, including the choice of online interview format and the content of the applicant's evaluation grid (27-44)
- Whether the applicant's right to be heard was breached by the absence of a further hearing before rejection of her complaint (45-54)
- Whether the joint certification panel sufficiently took into account the applicant's and other candidates' appraisal reports under Article 45a(2) of the Staff Regulations and Article 6(2) of the GIPs (68-103)
- Whether the use of two different evaluation grid templates for the same certification exercise breached equal treatment and legal certainty (104-126)
- Whether the absence of a weighting system for assessment criteria breached the duty of diligence, legal certainty and equal treatment (127-139)
- Whether point II.5 of the guidelines relating to the 2022-2023 certification exercise was unlawful for adding criteria not expressly in Article 6(2) of the GIPs and omitting express reference to the merit criterion (140-157)
- Whether the applicant was entitled to compensation for non-pecuniary damage linked to the alleged illegalities (158-161)