7 September 2022 (*1)

(Appeal – Article 181 of the Rules of Procedure of the Court of Justice – Competition notice – Open Competition EPSO/AD/363/18 – Decision not to admit the appellant to the next stage of the competition)

In Case C‑802/21 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 19 December 2021,

Ioana-Felicia Rosca, residing in Vienna (Austria), represented by L.-O. Tufler, avocat,

appellant,

the other party to the proceedings being:

European Commission,

defendant at first instance,

THE COURT (Seventh Chamber),

composed of J. Passer, President of the Chamber, F. Biltgen and M.L. Arastey Sahún (Rapporteur), Judges,

Advocate General: N. Emiliou,

Registrar: A. Calot Escobar,

having decided, after hearing the Advocate General, to rule by reasoned order, pursuant to Article 181 of the Rules of Procedure of the Court of Justice,

makes the following

1By her appeal, the appellant seeks to have set aside the judgment of the General Court of the European Union of 20 October 2021, Rosca v Commission (T‑434/19, not published, ‘the judgment under appeal’, EU:T:2021:717), by which the General Court dismissed her action for annulment of the decision of the selection board in Open Competition EPSO/AD/363/18 of 22 March 2019, based on qualifications and tests, rejecting the appellant’s application and excluding her from the assessment centre for that competition (‘the decision at issue’).

The appeal

2Pursuant to Article 181 of the Rules of Procedure of the Court of Justice, where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal in whole or in part.

3It is appropriate to apply that provision in the present case.

4On 2 June 2022, the Advocate General took the following position:

The first ground of appeal

Second and third grounds of appeal

24.In that context, the selection board is required to guarantee that its assessments of all the candidates examined are made in conditions of equality and objectivity, and it is important that the scoring criteria are uniform and applied in a consistent manner to all candidates (judgment of 22 September 2015, Gioria v Commission, F‑82/14, EU:F:2015:108, paragraph 50).

25.In the present case, as the General Court pointed out in paragraph 44 of the judgment under appeal, the selection board annexed to the decision at issue a document containing the questions corresponding to the selection criteria set out in Annex II to the competition notice at issue, the weighting factors for each question, the marks awarded to the appellant for each answer, as revised after review, the overall mark obtained and the minimum threshold required in order to be invited to the next stage of the competition. In addition, in the decision at issue, it stated not only that the appellant’s mark had been revised, but also specified the minimum threshold required, as well as the scoring method for the Talent Screener stage.

26.Thus, in my view, the General Court rightly found that, in the present case, the appellant was made aware of the points awarded for her answers as regards each selection criterion, before and after her request for review, and could see that only her score for Question 1 had been revised during the review. She also received information on the procedure and the criteria used by the selection board to score her answers to the questions under the Talent Screener tab of her application form. In addition, the appellant knew her answers to questions 1, 5 and 7. To my mind, those elements constituted an adequate statement of reasons.

27.In those circumstances, I consider that the second and third grounds of appeal should be rejected as manifestly unfounded.

The fourth ground of appeal

28.By her fourth ground of appeal, the appellant alleges that the General Court erred in law, in paragraphs 88, 95 and 111 of the judgment under appeal, concerning the interpretation of Article 27 of the Staff Regulations and of the competition notice as regards the discretion of the selection board.

29.The appellant maintains, in that regard, that the task of the selection board was to assess the merits of the candidates by comparing them, not with those of other candidates, but with the conditions laid down in the competition notice in question. In those circumstances, the appellant claims that she should have received the maximum score for questions 1, 5 and 7 in so far as she satisfied the prescribed criteria. She submits that the selection board exceeded the limits of its discretion in assessing the answers which she gave to the questions set in the competition notice.

30.More specifically, the appellant criticises the General Court’s assessment in paragraph 95 of the judgment under appeal regarding the teaching experience which she mentioned in response to question 5 of the Talent Screener stage. She submits that the selection board exceeded its discretion in considering that her participation in conferences on subjects identical to those in the competition notice was not relevant. In addition, she claims that the selection board did not apply the same scoring criteria for question 7 as for question 8, regarding the submission of one or more diplomas, even though it was not at all apparent from the competition notice that different scoring criteria would be applied to those questions. In general, she submits that the selection board applied those scoring criteria inconsistently. In that regard, she refers in particular to the difference in scoring between her own application and that of another candidate.

31.I should point out that, according to settled case-law, the selection board in a competition has a wide discretion with regard to the detailed content of the tests which form part of a competition. It is not for the EU Courts to review that content unless it goes beyond the limits laid down in the competition notice or is not consonant with the purposes of the test or competition (judgment of 8 March 1988, Sergio and Others v Commission, 64/86, 71/86 to 73/86 and 78/86, EU:C:1988:119, paragraph 22).

32.Furthermore, the assessments made by a selection board in a competition when it evaluates the candidates’ knowledge and abilities are the expression of a value judgement on each candidate’s performance in the test and fall within the wide discretion of the selection board. They cannot be subject to review by the EU Courts unless there has been an obvious infringement of the rules governing the proceedings of the selection board (judgment of 9 October 1974, Campogrande and Others v Commission, 112/73, 144/73 and 145/73, EU:C:1974:97, paragraph 53). It is not for the General Court to substitute its own assessment for that of the selection board.

33.I note that, by her fourth ground of appeal, the appellant seeks to call into question the actual outcome of the selection board’s assessment of her abilities.

34.In those circumstances, in the absence of a clear breach of the rules governing the proceedings of the selection board, I consider that the General Court was right to find that it could not be concluded that the selection board had exceeded its discretion. Accordingly, the fourth ground of appeal must be rejected as manifestly unfounded.

The fifth ground of appeal

35.By her fifth ground of appeal, the appellant alleges that the General Court erred in law, in paragraphs 69 and 76 of the judgment under appeal, concerning the interpretation of Article 27 of the Staff Regulations. In that regard, she submits, in essence, that, if that provision is not to be infringed, a candidate who has submitted the same qualification multiple times cannot be treated more favourably than another candidate with a comparable qualification submitted only once as a sole individual answer to a single question of the Talent Screener stage. In the present case, the selection board specifically allowed candidates who had mentioned the same qualification on multiple occasions in their applications to receive a double scoring.

36.First, the appellant takes issue with the General Court’s finding in paragraph 69 of the judgment under appeal in which it criticises her for failing to explain, on the one hand, how the double scoring contravenes Article 27 of the Staff Regulations and, on the other, how the double scoring has an impact on her individual score. Secondly, the appellant reiterates her line of argument put forward in paragraph 49 of her application at first instance, claiming that that double scoring infringes the principle of equal treatment. Thirdly, as regards her individual mark, the appellant claims that that mark again demonstrates that the double scoring applied by the selection board runs counter to the mechanism of the selection procedure described in the competition notice, given that she received a score below the score awarded to other candidates solely because she did not assert her merits twice.

37.As regards the admissibility of the fifth ground of appeal, it appears that, under the guise of alleging that the General Court erred in law, the appellant is in reality seeking a fresh assessment of the facts by the Court of Justice.

38.In that regard, I should point out that the jurisdiction of the Court of Justice to review the findings of fact by the General Court extends, inter alia, to the substantive inaccuracy of those findings as apparent from the documents in the file, distortion of the evidence, the legal characterisation of the evidence, and whether the rules relating to the burden of proof and the taking of evidence have been observed (see, inter alia, judgments of 25 January 2007, Sumitomo Metal Industries and Nippon Steel v Commission, C‑403/04 P and C‑405/04 P, EU:C:2007:52, paragraph 39; of 11 May 2017, Dyson v Commission, C‑44/16 P, EU:C:2017:357, paragraph 31, and of 29 November 2018, Bank Tejarat v Council, C‑248/17 P, EU:C:2018:967, paragraph 37). Furthermore, it follows, in particular, from Article 168(1)(d) and Article 169(2) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the decision which the appellant seeks to have set aside, and also the legal arguments specifically advanced in support of the appeal.

39.That requirement is not satisfied by an appeal which, without even including an argument specifically identifying an error of law allegedly vitiating the judgment under appeal, confines itself to reproducing the pleas in law and arguments previously submitted to the General Court. Such an appeal is in fact a request for a simple re-examination of the application submitted to the General Court (see, to that effect, judgments of 12 September 2006, Reynolds Tobacco and Others v Commission, C‑131/03 P, EU:C:2006:541, paragraphs 49 to 51; of 17 May 2017, Portugal v Commission, C‑338/16 P, EU:C:2017:382, paragraph 19, and of 20 December 2017, Comunidad Autónoma de Galicia and Retegal v Commission, C‑70/16 P, EU:C:2017:1002, paragraph 48).

40.In the present case, although the appellant alleges that the General Court erred in law in paragraphs 69 and 76 of the judgment under appeal, it seems to me that it is apparent from the arguments developed in the fifth ground of appeal that she actually repeats a number of arguments already submitted for examination by the General Court.

41.In my view, it follows that the fifth ground of appeal must be regarded as amounting to no more than a request for a re-examination of the complaints submitted for examination by the General Court in support of the application for annulment. I therefore consider that it must be rejected as manifestly inadmissible.

The sixth ground of appeal

42.By her sixth ground of appeal, alleging infringement of the principle of equal treatment of candidates in the selection based on qualifications, the appellant criticises paragraphs 89, 117 and 129 of the judgment under appeal.

43.The appellant criticises the General Court for having held, in paragraph 89 of the judgment under appeal, that, in the context of its judicial review, it could not compare the scoring of the appellant’s professional experience with that of another anonymous candidate. She also disputes the General Court’s conclusion that such a comparison cannot, in any event, prove the existence of unequal treatment. Finally, she submits that the General Court was wrong to hold, in paragraph 117 of the judgment under appeal, that the alleged difference in treatment in the context of question 7, which led to candidates with diplomas from different Member States being given an advantage over candidates with diplomas from a single Member State, could not affect her mark.

44.I should point out that, according to the case-law, the principle of equal treatment, as a general principle of EU law, requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see, to that effect, judgments of 11 September 2007, Lindorfer v Council, C‑227/04 P, EU:C:2007:490, paragraph 63, and of 17 July 2008, Campoli v Commission, T‑671/07, EU:T:2008:424, paragraph 50).

45.In the present case, it follows, in the first place, that it is only if the appellant and the anonymous candidate were in a comparable situation that the points awarded for their professional experience should be assessed in the same way. The appellant does not put forward any argument in that respect. Moreover, she does not in any way call into question the General Court’s assessment, in paragraph 89 of the judgment under appeal, that the anonymous candidate concerned had different professional experience from her own.

46.In the second place, I note that the General Court concluded, in paragraph 117 of the judgment under appeal, that the appellant referred, in the answer to question 7, to only one diploma, which, moreover, the appellant does not dispute. In those circumstances, it cannot be concluded, in my view, that she was in a situation comparable to that of candidates who mentioned several diplomas from different Member States, with the result that the General Court was obliged to treat them equally. In the light of those factors, the General Court was also right to conclude that the fact that, in general, candidates who mentioned several diplomas from different Member States were treated more favourably than those who mentioned several diplomas from a single Member State cannot adversely affect the appellant.

47.In those circumstances, I consider that the sixth ground of appeal, alleging infringement of the principle of equal treatment, must be rejected as manifestly unfounded.

The seventh ground of appeal

48.By her seventh ground of appeal, alleging infringement, stemming from the competition notice, of the principle of legal certainty and infringement of the principle of the protection of legitimate expectations, the appellant criticises paragraphs 111 and 114 of the judgment under appeal. She submits, in essence, that the General Court’s conclusion that the wording of question 7 was not drafted in such a way as to give rise to a legitimate expectation that she would obtain a maximum mark by indicating a single diploma in her answer is based on a misinterpretation of the term “a … diploma” used in that question. In her view, the General Court also opted for an interpretation of those terms which would lead to discrimination depending on whether the diplomas were awarded in different Member States or in a single Member State.

49.I note, first, that, since question 7b referred to each diploma obtained (“If so, please specify for each diploma …”), the General Court was fully entitled to conclude that the wording of question 7 did not require candidates to mention only one diploma, but, on the contrary, allowed them to list several diplomas, so that the appellant could not legitimately expect to obtain the maximum score by mentioning only one diploma in response to that question. Secondly, I note that the arguments put forward by the appellant in the context of her seventh ground of appeal largely overlap with the arguments put forward in her sixth ground of appeal. As is apparent from point 46 above, I am of the opinion that the General Court did not err in concluding, in paragraph 117 of the judgment under appeal, that, since the appellant did not mention, in the answer to question 7, a different diploma from the same country as the diploma on the basis of which she was admitted to the competition and merely mentioned a single diploma, she could not validly argue that the fact that, in general, candidates who mention diplomas from different Member States are treated more favourably than those who mention a number of diplomas from a single Member State.

50.Accordingly, I consider that the seventh ground of appeal should be rejected as manifestly unfounded.

The eighth ground of appeal

51.By her eighth ground of appeal, alleging an omission and a distortion of the facts and evidence, the appellant criticises paragraphs 86 and 100 of the judgment under appeal.

52.First, the appellant criticises the General Court for having held, in paragraph 86 of the judgment under appeal, that she had not adduced sufficient evidence to demonstrate the existence of a diversity of employers for whom she worked, “in particular in relation to the various aspects of direct and indirect taxation mentioned in Question 1”. Secondly, as regards the finding of the General Court in paragraph 100 of the judgment under appeal that the appellant did not give sufficient details of the points of the competition notice which, in her view, were infringed, the appellant refers to documents lodged at first instance and maintains that, contrary to what the General Court stated, she sufficiently identified the points of the competition notice which, in her view, were infringed.

53.I should point out, as mentioned in point 38 above, that the jurisdiction of the Court of Justice to review the findings of fact by the General Court extends, inter alia, to the substantive inaccuracy of those findings as apparent from the documents in the file, distortion of the evidence, the legal characterisation of the evidence, and whether the rules relating to the burden of proof and the taking of evidence have been observed.

54.More specifically, as regards distortion of the evidence, I should point out that it is clear from settled case-law that such distortion exists, in particular, where the General Court has manifestly exceeded the limits of a reasonable assessment of the evidence (see, inter alia, judgment of 10 February 2011, Activision Blizzard Germany v Commission, C‑260/09 P, EU:C:2011:62, paragraph 57).

55.Furthermore, such distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence (judgments of 26 October 2016, Westermann Lernspielverlage v EUIPO, C‑482/15 P, EU:C:2016:805, paragraph 36 and the case-law cited, and of 12 May 2022, Klein v Commission, C‑430/20 P, EU:C:2022:377, paragraph 23).

56.In the present case, I note that the appellant’s reasoning to establish the distortions alleged against the General Court does not support the conclusion that the General Court manifestly exceeded the limits of a reasonable assessment of the evidence contained in the documents in the file. The appellant has not put forward any argument to show that the General Court manifestly exceeded those limits. She merely claims that the General Court should have adopted an interpretation of the evidence submitted. Thus, under the guise of a distortion of the evidence, the appellant is in reality seeking a fresh assessment of the evidence submitted, which is beyond the jurisdiction of the Court of Justice at the appeal stage (see, by analogy, judgments of 2 September 2010, Calvin Klein Trademark Trust v OHIM, C‑254/09 P, EU:C:2010:488, paragraph 49, and of 19 March 2015, MEGA Brands International v OHIM, C‑182/14 P, EU:C:2015:187, paragraph 47 and the case-law cited).

57.In those circumstances, I take the view that the eighth ground of appeal should be rejected as manifestly unfounded.

The ninth ground of appeal

58.By her ninth ground of appeal, alleging infringement of the rights of the defence, of the adversarial principle and of the right to a fair hearing, the appellant criticises paragraphs 76, 86, 100 and 107 of the judgment under appeal.

59.In that ground of appeal, the appellant claims that the General Court infringed her right to a fair hearing in that, first, it failed to take into consideration arguments and evidence, second, it based its judgment on new arguments which were never discussed or advanced by the Commission, third, it acknowledged that the Commission’s false statement in paragraph 38 of the rejoinder should be rejected and, fourth, it decided not to ask the Commission to provide evidence. That being so, she does not develop any of those different aspects of her line of argument.

60.Although the appellant identifies the paragraphs of the judgment under appeal which she criticises, her arguments advanced in the ninth ground of appeal are not sufficiently precise, so that the appellant does not show how the paragraphs of the judgment under appeal which she criticises constitute an infringement of the rights of the defence, of the adversarial principle and of the right to a fair hearing. According to settled case-law of the Court of Justice, it follows from Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, and Article 168(1)(d) and Article 169 of the Rules of Procedure of the Court of Justice that an appeal must, if it is not to be found inadmissible, indicate precisely the contested elements of the judgment or order which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of that appeal (judgment of 9 December 2020, Groupe Canal + v Commission, C‑132/19 P, EU:C:2020:1007, paragraph 18 and the case-law cited).

61.Accordingly, I consider that the ninth ground of appeal must be rejected as manifestly inadmissible.

The tenth ground of appeal

62.By her tenth ground of appeal, alleging an error of law concerning the interpretation of Article 81 of the Rules of Procedure of the General Court, the appellant criticises paragraphs 27 and 132 of the judgment under appeal.

63.More specifically, the appellant submits that the General Court did not verify whether an extension of the period for lodging the defence should have been requested under Article 81(3) of the Rules of Procedure of the General Court.

64.I should say at the outset that the tenth ground of appeal, alleging an error of law concerning the interpretation of Article 81 of the Rules of Procedure of the General Court, must, in my view, be understood as being directed solely against paragraph 27 of the judgment under appeal in so far as paragraph 132 of that judgment does not concern the lodging of the defence.

65.Next, as regards the merits of that ground of appeal, I note that the General Court found, in paragraphs 25 to 27 of the judgment under appeal, that the Commission complied with the time limit laid down in Article 81 of the Rules of Procedure of the General Court for lodging the defence. In those circumstances, the General Court was not required, in my view, to verify whether an extension had to be requested under Article 81(3) of the Rules of Procedure of the General Court.

66.Accordingly, the tenth ground of appeal should be rejected as manifestly unfounded.’

5

For the same reasons as those given by the Advocate General, the appeal must be dismissed as being in part manifestly inadmissible and in part manifestly unfounded.

Costs

Under Article 137 of the Rules of Procedure of the Court of Justice, applicable to the procedure on appeal pursuant to Article 184(1) thereof, a decision as to costs is to be given in the order which closes the proceedings. In this instance, since the present order was adopted before the appeal was served on the Commission and, therefore, before it could have incurred costs, it is appropriate to decide that the appellant is to bear her own costs.

On those grounds, the Court (Seventh Chamber) hereby orders:

Luxembourg, 7 September 2022.

Registrar

President of the Chamber

*

Language of the case: English.