Vilija Balionyte-Merle, v European Commission [2013] EUECJ F-113/12 (11 December 2013)

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(Civil service – Open competition – Notice of competition EPSO/AD/204/10 – Failure to include the applicant on the reserve list – Assessment of candidates’ general competencies – Assessment on the basis of performance in tests at the assessment centre – Consistency between the mark obtained and comments appearing in the competency passport)

Vilija Balionyte-Merle, residing in Auderghem (Belgium), represented by L. Levi and A. Tymen, lawyers,

European Commission, represented by B. Eggers and G. Gattinara, acting as Agents,

1 By application received at the Civil Service Tribunal Registry on 9 October 2012, Ms Balionyte-Merle brought the present action for annulment of the decision of the selection board of competition EPSO/AD/204/10 (‘the selection board’) not to include her on the reserve list of that competition.

2 On 28 October 2010, the European Personnel Selection Office (EPSO) published in the Official Journal of the European Union the Notice of open competition EPSO/AD/204-205/10, to establish a reserve pool from which to recruit grade AD 6 administrators in the field of the European Structural Funds and related instruments (open competition EPSO/AD/204/10), and to establish a reserve pool from which to recruit grade AD 7 administrators in the field of customs/taxation at the European Commission (open competition EPSO/AD/205/10) (OJ 2010 C 292 A, p. 1, ‘the Notice of competition’).

3 The Notice of competition provided, in Section V, that the candidates who fulfilled the general and specific conditions for admission set out in Section III, and who had obtained the highest points in the selection based on qualifications provided for in Section IV thereof, would be invited to the EPSO assessment centre where they would be assessed, by means of verbal, numerical and abstract reasoning tests, on their reasoning competencies and – by means of a case study in the chosen field, a group exercise and a structured interview – on their specific competencies in the chosen field and on eight general competencies, namely: analysis and problem solving, communication, delivering quality and results, learning and development, prioritising and organising, resilience, working with others and leadership.

4 Section V of that Notice of competition also indicated that more information on those competencies could be found in point 1.2 of the Guide to open competitions, in the present case the guide applicable to open competitions published in the Official Journal of the European Union of 8 July 2010 (OJ 2010 C 184 A, p. 1).

5 Finally, with regard to the marking, Section V, point 4, of the Notice of competition established that the general competencies would be marked from 0 to 80 points in total for them all (10 points per competency) with a pass mark of 3 points for each competency and an aggregate pass mark of 40 points for all eight competencies.

6 On 1 November 2010, the applicant applied for competition EPSO/AD/204/10 and was informed by EPSO on 14 April 2011 that she had been invited to the assessment centre.

7 On 26 May 2011, the applicant took part in the case study and, on 11 July 2011, in the verbal, numerical and abstract reasoning tests and in the group exercise and structured interview.

8 By letter of 20 January 2012, a member of staff of EPSO informed the applicant, on behalf of the board, that she had not obtained ‘the minimum mark in one or several tests for general and/or specific skills’ and that, consequently, the selection board could not include her name on the reserve list. A document entitled ‘competency passport’ (‘the competency passport’) was annexed to that letter stating that, for the eight general competencies, the applicant had obtained between 4 and 5.5 points for each competency and 39.6 points out of 80 for those eight competencies together.

9 It is apparent from the competency passport that, for the competency entitled ‘Leadership’, the board had awarded the applicant the mark of 4 points out of 10, with the following remark:

‘The candidate has limited experience of situations in which she has to lead or motivate other people. She needs to improve her personal and professional competencies in this area in order to influence, inspire and coordinate the members of a group.’

10 As regards the competency entitled ‘Resilience’, the selection board awarded the applicant a mark of 5 points out of 10, with the following remark:

‘The candidate adapts to a new working environment or unfamiliar situations. Furthermore, she approaches her hierarchical superiors to discuss solutions to problems. Under pressure, the candidate keeps her self-control and stays calm. She handles difficult questions without showing outward signs of stress.’

11 On 23 January 2012, the applicant submitted a request to the chairman of the selection board to review the marks which had been awarded for her general competencies and, in particular, for ‘Leadership’ and ‘Learning and Development’.

12 By letter of 17 February 2012, a staff member of EPSO informed the applicant that the selection board had decided to reject her request for review, that it wished to emphasise that the competencies entitled ‘Learning and Development’ and ‘Leadership’ had been assessed during the group exercise and the structured interview, and that it had pointed out that evidence submitted outside of the competition procedure could not be taken into consideration. In the same letter, the applicant was informed that the selection board, ‘[a]fter reviewing [her] marks … confirm[ed] that no manifest error in law or in fact [had] been made regarding the assessment of [her] competencies. The results already communicated to [her were] indeed the scores [which had been] awarded to [her] for the assessment centre items’.

13 By letter of 4 March 2012, supplemented by e-mails of 16 March and 23 April 2012, the applicant lodged a complaint pursuant to Article 90(2) of the Staff Regulations of the European Union (‘the Staff Regulations’) against the decision of the selection board not to include her name in the reserve list.

14 By decision of 6 July 2012, EPSO, acting in its capacity as appointing authority, rejected the complaint.

15 By letter of 15 September 2012, the applicant requested a clarification of the decision of 6 July 2012 rejecting her complaint. No reply to that letter was received.

– annul the decision of the selection board, communicated to her on 20 January 2012, not to include her on the reserve list of competition EPSO/AD/204/10;

18 By letter from the Registry of 2 May 2013, the Tribunal asked the Commission to submit certain documents to it, in particular the written assessment under the heading ‘Resilience’ in the competency passport of all candidates who obtained at least five points for that competence, in anonymous form if appropriate.

19 The Commission replied in part to that measure of organisation of procedure by submitting to the Tribunal, annexed to the letter of 17 May 2013, extracts from 11 competency passports out of the total of 96 passports concerned. According to the Commission, the comments in the competency passports are personal data within the meaning of Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ 2001 L 8, p. 1) and, even submitting an anonymous version of those comments, there is a risk that the candidates could be identified by the language in which the competency passports were written, by specific comments concerning certain behaviour during the tests at the assessment centre and by particularly high points obtained which would indicate that that candidate is on the reserve list. In that letter, the Commission stated that it was willing to submit the extracts of the other 85 competency passports concerned on the basis of a reasoned order from the Tribunal, justifying the need for and proportionality of such a measure of organisation of procedure in the light of the complaints made by the applicant.

20 Without it being necessary to rule on the merits of the arguments put forward by the Commission in its letter of 17 May 2013 regarding the possible application of Regulation 45/2001 in the present proceedings, the Tribunal considers that it has sufficient information from the written submissions of the parties and from the submissions made at the hearing and decides that there is no need to ask the Commission to submit other extracts from competency passports to supplement the measure of organisation of procedure adopted.

21 Furthermore, in an annex to the letter of 17 May 2013, the Commission submitted to the Tribunal the list of candidates, including their names, and the marks they obtained in each test. However, by letter of 5 June 2013, the Commission asked the Court to consider that document confidential and to remove it from the case-file. At the hearing, after obtaining the consent of the applicant, the Tribunal decided to grant the Commission’s request for confidential treatment.

22 Following the hearing, the oral procedure was not closed in order to allow the Commission to send an anonymous version of the list of candidates submitted on 17 May 2013 in response to the measure of organisation of procedure ordered by the Court, in the form of a table, which also included the heading of each column of the table. Once that document had been sent to the Registry of the Tribunal on 12 June 2013, the Tribunal closed the oral procedure by decision of 18 June 2013 and the case entered the deliberation stage.

23 First, although the applicant seeks the annulment of the initial decision of the selection board not to include her on the reserve list for competition EPSO/AD/204/10, notified by letter from EPSO on 20 January 2012, it should be noted, having regard to the case-law, that the applicant is adversely affected only by the decision not to include her on the reserve list taken by the selection board after review of the initial decision and sent to the applicant by letter dated 17 February 2012, (judgment of 20 June 2012 in Case F-66/11 Cristina v Commission, paragraph 26, and the case-law cited). It must therefore be held that it is against that latter decision (‘the contested decision’) that the applicant directs her claim for annulment.

24 Secondly, it should be borne in mind that a claim for annulment formally directed against the rejection of a complaint has the effect of bringing before the Tribunal the act against which the complaint was submitted, where that claim, as such, lacks any independent content (see, to that effect, Case 293/87 Vainker v Parliament [1989] ECR 23, paragraph 8, judgment of 15 September 2011 in Case F-6/10 Munch v OHIM, paragraphs 24 and 25). In the present case, the Tribunal finds that the decision to reject the complaint merely confirms the contested decision since it does not contain a review of the situation of the applicant in the light of new elements of law or of fact, nor does it alter or add to that situation (judgment of 23 January 2013 in Case F-24/11 Katrakasas v Commission, paragraph 51). As the claim for annulment of the decision rejecting the complaint lacks, as such, any independent content, it is in reality indissociable from the claim for annulment of the contested decision.

25 In those circumstances, the action must be regarded as being directed against the contested decision only.

26 The pleadings of the applicant must be interpreted as raising, in essence, six pleas in support of the claim for annulment of the contested decision alleging (i) an error as to the facts, (ii) infringement of the notice of competition, (iii) manifest error of assessment, (iv) breach of the principle of equal treatment, (v) infringement of the obligation to state reasons, and (vi) infringement of the procedural rules.

28 In the first part of the plea, the applicant observes that at page 2 of her competency passport it is stated that ‘[t]his report is based on the assessment centre for level AD 7’, whereas she was registered in the competition for grade AD 6. According to the applicant, her specific competencies were therefore assessed on a wrong basis, which amounts to an error of fact which must lead to annulment of the contested decision.

29 In the second part of the plea, the applicant alleges that there was a case of mistaken identity and that the marks and comments attributed to her by the selection board actually correspond to those of another candidate, who has a name similar to hers, is of the same nationality, was part of the same group of candidates during the group exercise, was more or less the same size and weight, wore the same outfit and who had the same haircut. The applicant contends that the marks and comments that the selection board attributed to her more closely correspond to the performance of that other candidate during the group exercise, and to the other candidate’s professional experience, than to her own performance and her own professional experience. According to the applicant, that mistaken identity prevented her from being included on the reserve list and also infringed Article 27 of the Staff Regulations, in that the mistaken identity prevented the institution from recruiting officials of the highest standard of ability. At the hearing, the applicant stated that she could not know when the alleged mistaken identity occurred and that it was possible that it happened after the tests at the assessment centre, when attributing marks and comments to the various candidates.

30 The Commission considers that the organisational arrangements for the group exercise make any confusion between the candidates highly unlikely, if not impossible, and that the applicant’s allegations concerning mistaken identity are pure speculation.

31 The Tribunal observes, at the outset, that it is settled case-law that an administrative act is presumed to be lawful and the burden of proof lies, as a matter of principle, on the person claiming it to be unlawful, so that it is for the 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 claims. Consequently, an applicant challenging competition decisions who has no evidence or no body of indicia, at the very least, must accept the presumption of lawfulness attached to those decisions (judgments of 4 February 2010 in Case F-15/08 Wiame v Commission, paragraph 21, and of 24 April 2013 in Case F-88/11 BX v Commission, paragraph 33, which is the subject of an appeal before the General Court, Case T-352/13 P).

32 As regards the first part of the plea, the Tribunal finds that the reference to ‘AD 7’ appears on page 2 of the competency passports of all candidates on the reserve list for competition EPSO/AD/204/10, which were submitted by the Commission as a measure of organisation of procedure. That fact, which was not contested by the applicant at the hearing, constitutes sufficient proof in law of the Commission’s assertion that the reference to ‘AD 7’ on page 2 of the applicant’s competency passport is a simple clerical error that occurred when configuring the model competency passport.

33 It follows that the first part of the first plea must be rejected as unfounded.

34 As for the second part of the plea, the Tribunal notes that the applicant puts forward mere assumptions which are not supported by any information or evidence.

35 First, the applicant cannot derive any useful argument from her personal assessment of the performance of the candidate whose results, it is alleged, were swapped for hers. According to settled case-law on competitions concerning candidates challenging the marks obtained in the oral test, the applicant’s belief that he correctly answered the questions asked does not constitute irrefutable proof of a manifest error of assessment (Katrakasas v Commission, paragraph 185). Such a finding is a fortiori applicable when an applicant, rather than merely expressing personal beliefs about his own answers, relies on the assessments he has made concerning the performance of another candidate to try to show that his results have been swapped with those of that other candidate, as the applicant does in the present case.

36 Nor can the applicant validly base any useful argument on her personal assessment of the professional experience, prior to the competition, of the candidate whose results have been allegedly been swapped with hers. Indeed, it must be pointed out that the assessment of the performance of candidates in the group exercise was not based on their previous professional experience, but on their performance in that test.

37 Finally, having regard to the measures adopted by EPSO for the conduct of the competition at the assessment centre, the allegations of the applicant concerning the alleged similarity between her name and that of the candidate whom the selection board allegedly confused her with, and concerning their respective physical appearances, are completely irrelevant and cannot be considered as evidence of swapping of results between candidates. In particular, the Commission stated, in its defence and at the hearing, that the candidates were all associated with a number and they were identified by means of that number throughout the competition procedure, even if, as the applicant has argued during the hearing, they wore a badge during the tests at the assessment centre indicating not only their number, but also their name.

38 It follows that, as the applicant has not provided the Tribunal with any evidence that her results were swapped with those of another candidate, the second part of the first plea must be rejected.

40 In the context of the second plea, the applicant claims that, as regards the competency entitled ‘Leadership’, the comments of the selection board in her competency passport do not constitute an assessment of her performance during the tests which took place at the assessment centre, but rather an assessment of her professional experience prior to the competition, which is not within the scope of the responsibilities of the selection board.

41 The Commission contends that the competency entitled ‘Leadership’ was assessed in the context of the group exercise and the structured interview which took place at the assessment centre and that the comments in the competency passport reflect the performance of the applicant during those two tests. In that regard, the Commission adds that, although at the beginning of the structured interview the selection board invites each candidate to introduce himself briefly and to describe his training and career path, the sole purpose of that information is to provide the selection board with the general information needed to understand the examples the candidate might give and to facilitate the conversation. However, during the structured interview, the selection board does not assess the objective elements of the actual professional experience of the candidates and it does not have available their curricula vitae.

42 In that regard, the Tribunal finds that the comments of the selection board in the applicant’s competency passport relating to the competency entitled ‘Leadership’ are drafted in rather general terms; they do not explicitly state that they refer to the performance of the applicant during the structured interview and group exercise, and not to the professional experience which the applicant described during the structured interview or that she declared when registering for the competition. However, the applicant has provided no information or evidence in support of her allegation that the selection board, in its comments on the competency entitled ‘Leadership’, assessed not only her performance in the two abovementioned tests, but also the professional experience that she had actually acquired prior to the competition and, therefore, infringed the competition notice.

43 Furthermore, the applicant did not dispute the Commission’s assertion that the selection board did not have the candidates’ application forms during the oral tests, which means that it was impossible for the selection board to assess factors other than the performance and statements of the applicant during the oral tests.

44 It follows that, as the applicant has failed to submit to the Tribunal any evidence or information which could rebut the presumption of legality attached to the contested decision (see paragraph 31 of the present judgment and the case-law cited) and therefore failed to demonstrate that the selection board had infringed the notice of competition, the second plea must be rejected as unfounded.

45 The applicant claims that the selection board committed a manifest error in the assessment of the competencies entitled ‘Leadership’ and ‘Resilience’, since the marks obtained for those competencies are inconsistent with her previous professional experience and her staff reports.

47 The Tribunal recalls that it is settled case-law that, in its assessment of the candidates’ professional knowledge and of their abilities and motivation, a selection board must base its decision exclusively and independently on the candidates’ performance alone, in accordance with the requirements of the Notice of competition (judgment of 14 July 2000 in Case T-146/99 Teixeira Neves v Court of Justice, paragraph 41, judgment of 11 December 2012 in Case F-65/10 Mata Blanco v Commission, paragraph 97). Furthermore, as has been pointed out in paragraph 35 of the present judgment, an applicant’s belief that he has correctly answered the questions asked, the fact that questions were asked during the oral test concerning performance of duties prior to the competition, or the satisfaction of the applicant’s hierarchical superiors with the performance of his duties prior to submitting his application, do not constitute irrefutable evidence of a manifest error of assessment (Katrakasas v Commission, paragraph 185).

48 In light of the case-law cited in the preceding paragraph, the present plea, which alleges a manifest error of assessment by the selection board and relies solely on the professional experience of the applicant and the positive assessment in her probation report, must be declared unfounded and therefore rejected.

49 The applicant considers that there is blatant inconsistency between the positive comments of the selection board contained in her competency passport for the competence entitled ‘Resilience’ and the mark of 5 out of 10 that has been awarded to her, which infringes the principle of equal treatment.

50 The Commission contends that there is no inconsistency between the mark awarded to the applicant for the competency entitled ‘Resilience’ and the written assessments contained in her competency passport. In fact, the written assessments of the selection board do not indicate a particularly strong or remarkable performance and indicate only that the applicant merely acted competently and conducted herself as might be expected. Accordingly, the mark of 5 points out of 10 is entirely consistent with the written assessments.

51 At the hearing, the Commission stated that it did not contest the case-law on the consistency required between the marks awarded and the written assessments of the competition selection board. However, it considers that, when applying that case-law to the assessment centre tests, it is necessary to bear in mind, first, that in the context of the current organisation of competitions, EPSO provides candidates with much more information than it did before and, secondly, that the only factor relied upon by the competition selection board to decide between the candidates during the preparation of the reserve list is the final mark that they have obtained. However, the purpose of the written assessments contained in the competency passport is to give candidates feedback, which is of use in their personal development. Furthermore, the Commission stated that the marks awarded are discussed by all the members of the competition selection board, while the written assessments in the competency passport are drafted by the assessors who were present at the tests and after the marks have been awarded by the competition selection board. Accordingly, the written assessments in the competency passport cannot be considered a ‘specific statement of reasons’ for the mark awarded to the candidates for each competency.

52 At the outset, the Tribunal recalls that the consistency between the mark and the written assessments of the competition selection board, which guarantees the equal treatment of candidates (judgment of 11 September 2008 in Case F-127/07 Coto Moreno v Commission, paragraph 34), may be reviewed by the Tribunal independently of review of the selection board’s assessment of the candidates’ performance, provided the review of consistency is limited to verifying the absence of manifest inconsistency (judgment of 13 December 2012 in Case F-101/11 Mileva v Commission, paragraph 42).

53 In the context of the present case, it is not necessary for the Tribunal to rule either on the purpose of the written assessments, or on how they are adopted, or, for the reasons explained above (see paragraph 20 of the present judgment), to examine the competency passports of the other candidates. It suffices to note that, although the applicant’s competency passport does not contain negative elements in the comments relating to the competency entitled ‘Resilience’, those comments are not drafted in particularly glowing terms and their wording is consistent with the mark awarded to the applicant for that competency.

54 Consequently, it cannot be inferred from the comparison between the mark awarded to the applicant for the competency entitled ‘Resilience’ and the comments of the selection board for the same competency that there is a manifest inconsistency, so that the fourth plea must be rejected as being unfounded.

56 By the first part of the plea, she considers that the brief reference, in the contested decision, to the competency passport did not, in itself, give her sufficient information to allow her to assess whether the mark and comments relating to the assessment of the competency entitled ‘Resilience’ were consistent.

57 By the second part of the plea, the applicant claims that the appointing authority did not respond, in the decision rejecting the claim, to the argument alleging mistaken identity, despite evidence that she had presented in that regard.

59 As regards the first part of the plea, according to settled case-law, given the secrecy that must surround the proceedings of the competition selection board, the communication of the marks obtained in the various tests constitutes an adequate statement of the reasons for the decisions of the selection board. Such a statement of reasons is not prejudicial to the candidates’ rights, since it enables them to know how their performance was evaluated and to ascertain, if such is the case, that they have not in fact obtained the number of marks required by the notice of competition in order to be admitted to certain tests or to all the tests (Mileva v Commission, paragraph 29).

60 In the present case, the Tribunal finds that the selection board communicated to the applicant, along with the contested decision, the marks obtained in the various tests and the marks that were awarded to her for each competency. In those circumstances, the applicant cannot validly claim that the selection board infringed the obligation to state reasons for the contested decision.

61 It follows that the first part of the plea is unfounded and must be rejected.

62 As regards the second part of the plea, the Tribunal recalls that, according to settled case-law, in relation to a decision of a competition selection board, it is possible, first, to compensate for an inadequate – but not a totally absent – statement of reasons even during the course of the proceedings where, before bringing his application, the person concerned already had information constituting the initial elements of a statement of reasons, and, secondly, to regard a decision as having an adequate statement of reasons if it was adopted in a context known to the official concerned, enabling him to understand its scope (judgment of 2 March 2010 in Case T-248/08 P Doktor v Council, paragraph 93 and the case-law cited).

63 In the present case, it must be noted that, in the decision rejecting the complaint, the appointing authority responded to the applicant’s complaint concerning the alleged swapping of her results with those of another candidate by stating, first, that her complaint was based on her own assessment of her performance in comparison with that of the other candidate who had – according to her – a name similar to hers and that, in light of the case-law, such a belief does not constitute irrefutable proof of a manifest error of assessment and, secondly, that the selection board had already confirmed to her in the contested decision, notified to her by the EPSO letter of 17 February 2012, that, having reviewed her results, no manifest error in law or in fact had been committed in the assessment of her competencies.

64 It is true that the EPSO letter of 17 February 2012 precedes the email by which the applicant expressed for the first time her doubts concerning the swapping of her results with those of the other candidate and which is dated 23 April 2012.

65 However, it is clear that, in the letter of 17 February 2012, EPSO informed the applicant, clearly and explicitly, that according to the selection board, the results which had already been communicated to her were in fact the results that had been awarded to her for her tests at the assessment centre. A simple reading of the letter of 17 February 2012 thus enabled the applicant to understand that the selection board had, in fact, already checked that the notified results corresponded to her performance, so that the contested decision was, in itself, sufficiently reasoned and the decision rejecting the complaint was adopted in a context that was already known to the applicant.

66 In any event, the Tribunal notes, for the sake of completeness, that the Commission supplemented the statement of reasons for the decision rejecting the complaint in its defence, detailing the precautions that had been taken by EPSO to avoid the risk of confusion between candidates in the group exercise and during the assessment of the performance of the candidates by the selection board after that test (see paragraph 37 of the present judgment).

67 It follows from the foregoing that the second part of the plea is unfounded and must be rejected and that the fifth plea must be rejected in its entirety.

68 The Tribunal notes that the sixth plea is a mere assertion and that the applicant does not develop any independent argument to support it. Consequently, that plea must be declared manifestly inadmissible pursuant to Article 35(1)(e) of the Rules of Procedure.

69 It follows from the foregoing that the action must be dismissed in its entirety.

70 Under Article 87(1) of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title 2 of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 87(2) the Tribunal may, if equity so requires, decide that an unsuccessful party is to pay only part of the costs or even that he or she is not to be ordered to pay any.

71 It is apparent from the reasons set out in the present judgment that the applicant has been unsuccessful. Furthermore, in its pleadings the Commission has expressly requested that the applicant be ordered to pay the costs. Since the circumstances of the present case do not warrant the application of Article 87(2) of the Rules of Procedure, the applicant should bear her own costs and pay those incurred by the Commission.

2. Declares that Ms Balionyte-Merle is to bear her own costs and orders her to pay the costs incurred by the European Commission.

The texts of the present decision and the texts of the decisions of the Courts of the European Union cited in it are available on the internet site www.curia.europa.eu.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Vilija Balionyte-Merle, v European Commission [2013] EUECJ F-113/12 (11 December 2013) URL: http://www.bailii.org/eu/cases/EUECJ/2013/F11312.html Cite as: [2013] EUECJ F-113/12

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