6 July 2022 (*)

(Action for annulment and for damages – Civil service – Open competition – Notice of Competition EPSO/AD/363/18 for the recruitment of administrators in the field of taxation (AD 7) – Non-inclusion on the reserve list – Lis pendens – Manifest inadmissibility)

In Case T‑638/20,

JP,

represented by S. Rodrigues and A. Champetier, lawyers,

applicant,

European Commission,

represented by D. Milanowska and T. Lilamand, acting as Agents,

defendant,

THE GENERAL COURT (Eighth Chamber),

composed of J. Svenningsen, President, R. Barents (Rapporteur) and T. Pynnä, Judges,

Registrar: E. Coulon,

makes the following

Background to the dispute

By her action under Article 270 TFEU, the applicant, JP, seeks, first, annulment of the decision of 10 December 2019 by which the selection board for Competition EPSO/AD/363/18 refused, after review, to include her name on the reserve list of successful candidates in that competition (‘the contested decision’), and, secondly, compensation for the damage which she claims to have suffered as a result of that decision.

On 13 November 2018, the applicant applied to take part in Competition EPSO/AD/363/18 for the recruitment of administrators (grade AD 7) in the field of taxation. She sat the case study test on 4 April 2019 and the tests at the assessment centre on 22 May 2019.

On 17 July 2019, she was informed by the European Personnel Selection Office (EPSO) that her name had not been included on the relevant reserve list since she had not obtained the minimum number of points required, which was 116.5. In an attachment to that letter, EPSO provided the applicant with her competency passport, which awarded her a total score of 99 points out of 180.

On 25 July 2019, the applicant submitted a request for review of the decision of 17 July 2019 pursuant to point 4.2.2 of Annex III to the notice of competition and an application for access to certain documents relating to the competition in question.

On 12 October 2019, the applicant submitted an application for access to other documents relating to the competition in question, inter alia with a view to obtaining the weighting applied to the marks obtained in each field.

On 29 October 2019, EPSO refused to grant her access to the requested documents.

On 19 November 2019, the applicant submitted a confirmatory application to the Secretary-General of the European Commission asking the latter to reconsider its position on her applications for access to documents, pursuant to Article 7(2) of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).

On 10 December 2019, by a letter signed by the Head of Unit of EPSO in the name of the chairperson of the selection board, EPSO confirmed its decision not to include the applicant’s name on the reserve list and refused to grant her access to other documents.

On 3 February 2020, the Commission granted her partial access to two documents, entitled, respectively, ‘Field-related interview (FRI) – Building the interview grid – (AD/363)’ and ‘Interview in the field – EPSO/AD/363/18 – Taxation (confidential)’.

On 5 March 2020, pursuant to point 4.3.2 of Annex III to the notice of competition, the applicant submitted to the Director of EPSO, by registered letter and by email, a complaint against the contested decision in accordance with Article 90(2) of the Staff Regulations of Officials of the European Union. That complaint was rejected by decision of 7 July 2020 (‘the decision rejecting the complaint’).

By application lodged at the Court Registry on 18 March 2020, the applicant brought an action seeking annulment of the contested decision and compensation for the damage which she claims to have suffered as a result of that decision. The action was registered as Case T‑179/20.

By application lodged at the Court Registry on 15 October 2020, the applicant brought the present action.

Forms of order sought

The applicant claims, in essence, that the Court should:

–annul the contested decision;

–annul the decision rejecting the complaint;

–order the Commission to pay damages in compensation for the harm suffered;

–order the Commission to pay the costs.

The Commission contends that the Court should:

–dismiss the action;

–order the applicant to pay the costs.

Law

Without formally raising a plea of inadmissibility under Article 130(1) of the Rules of Procedure of the General Court, the Commission raises an objection of lis pendens, since, in its view, the applicant is seeking to raise questions similar to those brought before the Court in the case which gave rise to the judgment delivered today, JP v Commission (T‑179/20, not published), and thereby to avoid the risk that the latter case might be declared inadmissible.

According to the Commission, if the Court were to declare that the case which gave rise to the judgment delivered today, JP v Commission (T‑179/20, not published), is admissible, the present case should be declared inadmissible, since it would be the same applicant challenging the same administrative decision(s) for a second time. If the Court were to hold that the case which gave rise to the judgment delivered today, JP v Commission (T‑179/20, not published), is inadmissible, the Commission would have no observations to make as regards the admissibility of the present case.

The applicant explains in the application that the present action is brought ‘on a conservatory basis’, depending on the outcome of the case which gave rise to the judgment delivered today, JP v Commission (T‑179/20, not published), and suggests that the Court join the present case with Case T‑179/20 under Article 68 of the Rules of Procedure, since, she argues, they concern the same subject matter.

Under Article 126 of the Rules of Procedure, where it is clear that the Court has no jurisdiction to hear and determine an action or where the action is manifestly inadmissible or manifestly lacking any foundation in law, that 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.

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

According to settled case-law, an action which is between the same parties, has the same purpose and is brought on the basis of the same submissions as an action brought previously must be dismissed as inadmissible on the ground of lis pendens (see judgments of 16 September 2013, De Nicola v EIB, T‑418/11 P, EU:T:2013:478, paragraph 59 and the case-law cited, and of 8 September 2021, AH v Eurofound, T‑630/19, not published, EU:T:2021:538, paragraph 31 and the case-law cited).

In the present case, first, it is common ground that the present action and the action in the case which gave rise to the judgment delivered today, JP v Commission (T‑179/20, not published), were brought by the same applicant and concern the same defendant.

Secondly, it is evident from the paragraphs dealing with the subject matter of the action in the applications lodged in the case which gave rise to the judgment delivered today, JP v Commission (T‑179/20, not published), and in the present case, and from the applicant’s first head of claim in those applications, that the actions seek, in each of the two cases, annulment of the same decision, namely the contested decision.

In the present case, in addition to the foregoing, the applicant seeks, in a second head of claim, annulment of the decision rejecting the complaint. The administrative complaint and its rejection, whether express or implied, by the appointing authority constitute an integral part of a complex procedure. However, the action, even if formally directed against the rejection of the official’s complaint, has the effect of bringing before the Court the act adversely affecting the applicant against which the complaint was submitted (see, to that effect, judgment of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 8). It must therefore be held that the present application, which is also directed against the decision rejecting the complaint, seeks, like the application in the case which gave rise to the judgment delivered today, JP v Commission (T‑179/20, not published), the annulment of the contested decision (see, by analogy, judgment of 23 March 2004, Theodorakis v Council, T‑310/02, EU:T:2004:90, paragraph 19).

As regards the claim for damages in the present action, it is seeking, as in the action brought in the case which gave rise to the judgment delivered today, JP v Commission (T‑179/20, not published), compensation for damage which the applicant claims to have suffered as a result of the contested decision (see, by analogy, order of 19 September 2006, Vienne and Others v Parliament, F‑22/06, EU:F:2006:89, paragraph 16).

Thirdly, the action brought in the present case and the action brought in the case which gave rise to the judgment delivered today, JP v Commission (T‑179/20, not published), are based on the same submissions. It follows from settled case-law that, if the pleas raised by the applicant in two different cases are similar, the later action brought on the basis of those pleas must be dismissed as inadmissible on the ground of lis pendens (judgment of 16 September 2013, De Nicola v EIB, T‑618/11 P, EU:T:2013:479, paragraph 98; see also, to that effect, judgment of 22 September 1988, France v Parliament, 358/85 and 51/86, EU:C:1988:431, paragraph 12). In the present case, the applicant relies on three pleas in law in the two actions, alleging, respectively, (i) that the members of the selection board must have the necessary abilities to make an objective assessment of her performance and professional qualifications during the field-related interview and breach of the principles of equal treatment and the protection of legitimate expectations; (ii) infringement of the principle according to which the composition of the selection board must be sufficiently stable; and (iii), in the alternative, manifest error of assessment.

In the light of the foregoing, it must be concluded that the action brought in the present case and the action brought in the case which gave rise to the judgment delivered today, JP v Commission (T‑179/20, not published), are between the same parties, are brought on the basis of the same submissions, and have the same purpose, namely annulment of the contested decision and compensation for the damage allegedly suffered by the applicant as a result of that decision.

It follows from all the foregoing that the action must be dismissed as manifestly inadmissible in its entirety.

Costs

Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

Since the applicant has been unsuccessful, she must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

On those grounds,

hereby orders:

1.The action is dismissed.

2.JP shall pay the costs.

Luxembourg, 6 July 2022.

Registrar

President

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Language of the case: English.