Gyarmathy v FRA (Civil service - Judgment) [2018] EUECJ T-196/15 (31 January 2018)

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(Appeal — Civil service — Members of the temporary staff — Recruitment — Notice of vacancy — Rejection of an application — Selection procedure — Distortion of the clear sense of the evidence — Duty to provide reasons — Rule of correspondence between the application and the complaint — Impartiality of the Civil Service Tribunal)

APPEAL brought against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 5 March 2015, Gyarmathy v FRA (F‑97/13, EU:F:2015:7), seeking to have that judgment set aside,

Valéria Anna Gyarmathy, residing in Györ (Hungary), represented by A. Cech, lawyer,

European Union Agency for Fundamental Rights (FRA), represented by C. Manolopoulos, acting as Agent, assisted by B. Wägenbaur, lawyer,

composed of M. Jaeger, President, G. Berardis and S. Papasavvas (Rapporteur), Judges,

1 By her appeal, lodged pursuant to Article 9 of Annex I to the Statute of the Court of Justice of the European Union, the appellant, Ms Valéria Anna Gyarmathy, asks the Court to set aside the judgment of the European Union Civil Service Tribunal (Second Chamber) of 5 March 2015, Gyarmathy v FRA (F‑97/13, ‘the judgment under appeal’, EU:F:2015:7) by which the Civil Service Tribunal dismissed, first, her applications for annulment of a number of decisions adopted by the European Union Agency for Fundamental Rights (FRA), in particular the decision of 5 February 2013 of the Head of the Human Resources Department of the FRA informing her of the decision of the FRA Director to recruit another candidate for the position of ‘Senior Programme Manager — Social Research’ (‘the decision of 5 February 2013’), and secondly, her claims for compensation.

2 The facts which gave rise to these proceedings are set out in paragraphs 2 to 21 of the judgment under appeal in the following terms:

‘The [appellant’s] career at the European Monitoring Centre for Drugs and Drug Addiction

2 From 1 May 2008 to 30 April 2013, the [appellant] worked at the European Monitoring Centre for Drugs and Drug Addiction (“the EMCDDA” or “the Observatory”) as a drug analyst and scientific writer, as a member of the temporary staff in grade AD 8.

3 On 27 July 2012, the [appellant] contested her mid-term appraisal and, claiming that her Head of Unit had created a hostile environment, requested a transfer to another unit.

4 By letter of 11 September 2012, the Director of the Observatory informed the [appellant] of his decision to reject the transfer request.

5 By letter of 14 September 2012, the Head of the Human Resources Management Sector of the Observatory reminded the [appellant] that her contract as a member of the temporary staff would expire on 30 April 2013.

6 By letter of 10 December 2012 the [appellant], first, alleged that her Head of Unit had engaged in psychological harassment and, secondly, claimed that there had been no appropriate response from the Director of the Observatory. Moreover, she stated that the non-renewal of her contract seemed to be a “retaliation measure” and challenged the decision of the Director of the [Observatory] to reject her transfer request.

7 Following the [appellant’s] letter of 10 December 2012, the [Observatory] opened an administrative enquiry into the conduct of the [appellant’s] Head of Unit and another into the conduct of the Director of the Observatory.

8 By decisions of the President of the Board of the [Observatory] of 13 May 2013 and of the Director of the [Observatory] of 25 June 2013, the two enquiries were closed without further action. Those decisions are the subject of two actions brought by the [appellant], respectively on 12 November 2013 and 26 May 2014 and registered as Cases F‑79/13 and F‑22/14.

9 On 17 June 2012, the FRA published a vacancy notice for a post as a member of the temporary staff in grade AD 8, as “Senior Programme Manager — Social Research” (“the vacancy notice”). The vacancy notice stated that “[t]he job holder [would work] under the supervision of the Head of Department Freedoms and Justice, and in close cooperation with other staff”. Furthermore, it stated, under the heading “Functions and duties”, the responsibilities that would be assigned to the “successful candidate”.

10 The vacancy notice stated that, after a selection committee had been appointed by the authority empowered to conclude contracts of employment (“the AECCE”), the selection procedure would take place in several stages. First, the selection committee would examine the applications of candidates in accordance with the selection criteria set out in the vacancy notice. Secondly, the Agency would invite the eight best candidates to the selection tests. Thirdly, after the selection tests, the successful candidates would be placed on a reserve list drawn up by the selection committee and proposed to the AECCE. Fourthly, the AECCE could offer a contract of engagement on the basis of the reserve list. In particular, the vacancy notice provided that “[a] temporary agent contract [would] be offered pursuant to Article 2(a) of the Conditions of Employment of Other Servants of the European Communities”.

12 By letter of 20 November 2012, the Head of the “Human Resources and Planning” department of the FRA (“the Head of the HR Department”) invited the [appellant] to take part in the selection tests organised by the selection committee on 17 December 2012.

13 The [appellant] accepted that invitation. It is apparent from the case-file that the selection tests consisted of three written tests and an interview with the selection committee.

14 In a note of 20 December 2012, the Head of the HR Department informed the [appellant] that she had been selected to be included in the reserve list of candidates for the post advertised.

15 The [appellant] was subsequently invited for an interview with the Director of the FRA, which took place on 11 January 2013.

16 By letter of 5 February 2013, the Head of the HR Department informed the [appellant] of the decision of the Director of the FRA to recruit another candidate (“the contested decision”).

17 By e-mail of 4 March 2013 sent to the Head of the HR Department, the [appellant] requested her score and the scores obtained by the other two candidates who had been invited to an interview with the Director of the FRA. By e-mail of 19 March 2013, the Head of the HR Department informed the [appellant] that she had obtained 27 points, whereas the other two candidates on the reserve list had obtained 30.5 and 33.7 points respectively.

18 By letter of 9 April 2013, the [appellant] lodged a complaint under Article 90(2) of the Staff Regulations of Officials of the European Union, in the version then applicable … against the contested decision. Pointing out that her complaint against the contested decision would be handled by the Director of the FRA in his capacity as AECCE, in other words by the author of that contested decision, the [appellant] requested that an “independent and impartial” investigator be appointed.

19 By decision of 11 July 2013, the Director of the FRA, in his capacity as AECCE, adopted a decision on the complaint and rejected it ….

20 On 28 September 2013, the [appellant] submitted an application for legal aid to bring [an] action [before the Civil Service Tribunal].

21 By order of 9 December 2013 in Gyarmathy v FRA, F‑97/13 AJ, the President of the [Civil Service] Tribunal granted the [appellant] legal aid within the limit of EUR 2 000 for the written procedure and EUR 1 000 for the oral procedure. The [appellant] received notice of that order on 11 December 2013.’

3 By application lodged at the Registry of the Civil Service Tribunal on 20 December 2013, registered as Case F–97/13, the appellant brought an action seeking, first, annulment of a number of decisions adopted by the FRA, including the decision of 5 February 2013, and secondly, compensation for the losses which she allegedly suffered.

6 Following the hearing on 10 July 2014, the oral phase of the procedure was not closed and the FRA was requested to submit to the Civil Service Tribunal, by way of a measure of organisation of procedure, the evaluation grid used by the selection committee, information on the identity of the person who was recruited and the documents concerning the role of the Staff Committee member in the selection procedure.

7 After the FRA had filed the documents requested and provided the information required within the specified period, and the appellant had submitted her comments on the documents produced, the Civil Service Tribunal informed the parties that the oral phase of the proceedings was closed and that the case had entered the deliberation stage.

8 In the judgment under appeal, the Civil Service Tribunal, first, examined the admissibility of the claims for annulment. In that respect, it found that the decision of 11 July 2013 lacked any independent content in that it dismissed the complaint lodged by the appellant on 9 April 2013, pursuant to Article 90(2) of the Staff Regulations of Officials of the European Union, in the version then applicable (‘the Staff Regulations’), against the decision of 5 February 2013 (‘the complaint’). It thus concluded that the action, in that respect, had to be regarded as being directed solely against the decision of 5 February 2013. In addition, the Civil Service Tribunal rejected as inadmissible the claim for annulment of the decision of 11 July 2013, in so far as it rejected the request that the complaint be examined by way of an independent and impartial investigation, and of ‘any decision adopted’ on the basis of the decision of 5 February 2013 and the decision of 11 July 2013.

9 Next, the Civil Service Tribunal ruled on the claim for annulment of the decision of 5 February 2013 and of ‘the undated implicit decision not to appoint [the appellant] to the other position as Senior Programme Manager in the vacancy notice’.

10 In support of the claim for annulment, the appellant put forward five pleas alleging, in essence: (i) infringement of the vacancy notice for a post as a member of the temporary staff within the FRA (‘the vacancy notice’) and of the principle of the protection of legitimate expectations and the principle of legal certainty; (ii) breach of the duty to provide reasons; (iii) breach of the duty of impartiality of the Director of the FRA; (iv) infringement of the guidelines of the FRA regarding seconded national experts, and (v) irregularities in the composition of the selection committee.

11 With regard to the first plea, the Civil Service Tribunal found that it was based on a false factual premiss and that it had to be rejected. Accordingly, it also rejected the claim against ‘the undated implicit decision not to appoint [the appellant] to the other position as Senior Programme Manager in the vacancy notice’ on the ground that no such decision existed.

12 With regard to the second plea, the Civil Service Tribunal held that the FRA had satisfied its duty to provide reasons and that that conclusion could not be called into question by the various arguments put forward by the appellant in the context of her claims alleging infringement of the principles of legal certainty and transparency. It also rejected the ground of complaint that there was a manifest error of assessment, given that the appellant had merely stated that she performed ‘exceptionally well’ in the written tests and ‘well’ in the oral test, and therefore had not established that the authority empowered to conclude contracts of employment had committed a manifest error of assessment.

13 With regard to the third plea, the Civil Service Tribunal found that the appellant had not provided any evidence to suggest that the Director of the FRA had actually contacted the Director of the European Monitoring Centre for Drugs and Drug Addiction (‘the Observatory’) concerning the appellant’s participation in the selection procedure at issue. The Civil Service Tribunal then rejected that plea.

14 With regard to the fourth and fifth pleas, the Civil Service Tribunal held that an examination of the content of the complaint showed that those pleas had not been raised in that complaint and that they were not closely related to any plea or argument of the complaint. The Civil Service Tribunal therefore rejected those pleas as inadmissible.

15 With regard to the claim for compensation, the Civil Service Tribunal dismissed this, holding that it was closely related to the claim for annulment which it had rejected.

16 Consequently, the Civil Service Tribunal dismissed the action in its entirety, and ordered the appellant to bear her own costs and to pay those of the FRA, pursuant to Article 101 of its Rules of Procedure.

17 By letter lodged at the Court Registry on 15 April 2015, the appellant applied for legal aid for the purposes of lodging an appeal against the judgment under appeal. The President of the Court granted that application by order of 26 January 2016, Gyarmathy v FRA, (T‑196/15 P-AJ, not published, EU:T:2016:71).

18 By application lodged at the Court Registry on 24 November 2016, the appellant brought the present appeal.

20 On 9 June 2017, the appellant lodged a reply, and on 27 July 2017 the FRA lodged a rejoinder.

21 On a proposal from the Judge-Rapporteur, the Court (Appeals Chamber), considering that it had sufficient information available to it from the documents in the file, decided to rule on the appeal without an oral part of the procedure, pursuant to Article 207(2) of the Rules of Procedure of the General Court.

– alternatively, if the General Court decides not to refer the case back, carry out an examination of the merits of the grounds of appeal and give judgment in the matter by:

– annulling the decision of 5 February 2013 in accordance with the reasons set out in the present appeal;

– ordering the FRA to pay compensation for the material losses suffered in the sum of EUR 550 651 together with default interest, or in the alternative, to take such measures as will provide due compensation for the losses which she has suffered as a result of the decision of 5 February 2013;

– in any event, ordering the payment of compensation for the non-material losses suffered assessed ex aequo et bono at EUR 70 000;

– in the alternative, give a ruling in accordance with the form of order which it sought at first instance;

– order the appellant to pay the costs of the proceedings before the Civil Service Tribunal and those of the present action.

24 In support of her claim to have the judgment under appeal set aside, in so far as the Civil Service Tribunal ruled on the claim for annulment, the appellant raises, in essence, six grounds of appeal alleging: (i) distortion of the evidence relating to the vacancy notice and the substantive inaccuracy of the findings of the Civil Service Tribunal when the first plea was examined; (ii) the substantive inaccuracy of the findings of the Civil Service Tribunal when the second plea was examined, breach of the duty to provide reasons and the contradictory nature of the reasoning; (iii) breach of the duty to provide reasons and the substantive inaccuracy of the findings of the Civil Service Tribunal when the third plea was examined; (iv) breach of the duty to state reasons in the response to the fourth plea; (v) an error in law committed by the Civil Service Tribunal when the fifth plea was examined, and (vi) infringement of the right to a fair hearing, of the requirement for impartiality and of the principle of equality of arms.

The first ground of appeal: distortion of the evidence relating to the vacancy notice and the substantive inaccuracy of the findings of the Civil Service Tribunal when the first plea was examined

25 In the first place, the appellant claims that the Civil Service Tribunal distorted the evidence relating to the vacancy notice which she had produced, in particular, the screenshot of the announcement of the publication of the vacancy notice which appeared in the FRA’s website.

26 In that regard, it follows from settled case-law that the court at first instance has exclusive jurisdiction, first, to find the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and second, to assess those facts. The appraisal of the facts by the first instance court therefore does not, except in the case of distortion of the evidence submitted to that court, constitute a question of law which, as such, is subject to review by the General Court. Where the court of first instance has found or assessed the facts, the appeal court has jurisdiction to review the legal characterisation of those facts and the legal inferences drawn by the court of first instance (see judgment of 21 May 2014, Commission v Macchia, T‑368/12 P, EU:T:2014:266, paragraph 28 and the case-law cited).

27 In the present case, it must be pointed out that the Civil Service Tribunal held that the first plea was based on the appellant’s assertion that the vacancy notice which appeared in the FRA’s website had clearly announced the recruitment of two agents. However, the Civil Service Tribunal found that claim to be manifestly false, if not misleading. It added that the screenshot of the announcement of the publication of the vacancy notice which appeared in the FRA’s website, produced by the appellant, was incomplete and that such behaviour, whether intentional or not, was potentially deceptive. The Civil Service Tribunal observed that, in any event, the text on which the appellant based her plea was that appearing in the publication announcement, which in fact contained a clerical error. The Civil Service Tribunal found that it was clear beyond doubt from the text of the vacancy notice, annexed by the appellant herself to the application, that the FRA intended to recruit only one temporary member of staff. The Civil Service Tribunal stated that that fact was confirmed by two emails sent by the FRA to the appellant on 5 October and 20 December 2012.

28 In support of the claim relating to the alleged distortion of the evidence, the appellant merely criticises the fact that the Civil Service Tribunal considered that, by claiming that the vacancy notice had clearly announced the recruitment of two agents and by providing an incomplete screenshot in support of that claim, she may have misled the Tribunal.

29 In doing so, the appellant does not establish that the Civil Service Tribunal distorted the evidence, but criticises it solely for having stated that she had sought to mislead the Tribunal. Even if the Civil Service Tribunal was wrong to consider that she had sought to mislead it, it must be stated that such a situation, first, had no effect on the response which the Tribunal made to the first plea, and secondly, does not amount to a distortion of the evidence. In addition, and in any event, the appellant herself acknowledges that the screenshot which she produced before the Civil Service Tribunal was incomplete. Therefore, the Civil Service Tribunal cannot be accused of having distorted the evidence in that respect.

30 In the second place, the appellant claims that, by stating that the publication announcement for the vacancy notice contained a clerical error and that it was clear beyond doubt from the text of the vacancy notice that the FRA intended to recruit only one temporary agent, the Civil Service Tribunal vitiated its findings by substantive inaccuracy. She adds that that inaccuracy is manifestly clear from the documents in the file. It must be observed that, by her line of argument, the appellant is relying on a distortion of the facts.

31 In that regard, it must be pointed out that it is clear, both from the vacancy notice and from the email and letter sent to the appellant by the FRA respectively on 5 October and 20 December 2012, that the selection procedure initiated by the FRA sought to recruit only one agent. Therefore, the Civil Service Tribunal did not distort the facts, and so this ground of complaint must be rejected.

33 First, the appellant claims that the Civil Service Tribunal made a procedural error, relating to her, by reversing the burden of proof. In that regard, she claims that the Civil Service Tribunal placed the burden of proof on her when it was for the FRA to demonstrate that, contrary to the established facts, it wished to fill only one post. On that issue, it must be pointed out that the Civil Service Tribunal merely assessed the information on the file and drew a conclusion from that as to the outcome of the plea. In that respect, it cannot be accused of having reversed the burden of proof.

34 Secondly, the appellant claims that the Civil Service Tribunal should have carried out a more in-depth investigation and examination of the facts and evidence, instead of just accepting the submissions made by the FRA. More specifically, she criticises the Civil Service Tribunal for not taking investigative measures to establish the accuracy of the facts.

35 In that regard, it must be recalled, as was stated in paragraph 26 above, that the court of first instance alone has jurisdiction to establish the facts and examine the evidence. It follows with even greater force that, in assessing the facts and the evidence, it is for the court of first instance alone to decide whether and to what extent measures of organisation of procedure or measures of inquiry are necessary. The Civil Service Tribunal is therefore the sole arbiter of whether it is necessary to supplement the information it possesses in relation to the matters before it, and what measures of organisation of procedure or measures of inquiry are appropriate (see order of 21 February 2013, Marcuccio v Commission, T‑85/11 P, EU:T:2013:90, paragraph 93 and the case-law cited).

36 In the present case, it follows from what was stated in paragraph 31 above that it was clear from the documents in the file that the publication announcement for the vacancy notice contained a simple clerical error. As a result, by refraining from taking an additional measure of its own motion in order to elicit evidence, the Civil Service Tribunal did not carry out an incomplete examination of the facts resulting in it distorting those facts.

37 Thirdly, the appellant’s arguments that the FRA should have taken more care in drafting the vacancy notice were ineffective, given that it was common ground that the vacancy notice referred to only one post. In that regard, the appellant submits that, at the hearing on 10 July 2014, the FRA stated that the publication announcement for the vacancy notice was part of the vacancy notice and that both documents were inseparable. The appellant concludes from that that, if it is accepted that there was a clerical error, the FRA should have been held responsible for that, and adds that under no circumstances should the Civil Service Tribunal have used that error to her disadvantage. On that point, the Court considers that, although it is regrettable that the publication announcement for the vacancy notice contained a clerical error, and although it is common ground that such an error could not be imputed to the appellant, it must be observed that the Civil Service Tribunal, having rightly found that the vacancy notice did not contain any clerical error, came to the only possible conclusion by rejecting the plea at issue.

38 It follows from all of the foregoing considerations that the first ground of appeal must be rejected.

The second ground of appeal: the substantive inaccuracy of the findings of the Civil Service Tribunal when the second plea was examined, breach of the duty to provide reasons and the contradictory nature of the reasoning

39 In the first place, the appellant claims that the finding in paragraph 45 of the judgment under appeal that ‘there [was] nothing in the case-file to suggest that the outcome of the tests had any influence on the reserve list’ is manifestly vitiated by substantive inaccuracy and submits that it is obvious from the documents in the file that the total amount of points scored in the oral part of the interview with the selection committee was the decisive factor for selecting the eventually successful candidate for the vacant post. She submits that that substantive inaccuracy led the Civil Service Tribunal to adopt contradictory reasoning. It must be observed that, by her line of argument, the appellant is relying on a distortion of the facts.

40 The FRA contends that the Civil Service Tribunal rightly stated that the results of the tests, that is to say, the total amount of points scored by the various candidates in the three written tests and in the interview with the selection committee, did not, as such, prejudice the final decision on the choice of candidate for the vacant post.

41 In that regard, it must be recalled that, according to well-established case-law on the recruitment of civil servants applicable a fortiori to the recruitment of temporary agents, the appointing authority has a very wide discretion with regard to the recruitment of candidates included on the list of suitable candidates, in that it is under no obligation to pursue a recruitment procedure once it has begun, by filling the vacancy concerned, or to follow the precise order of merit of the successful candidates in a competition (see judgment of 17 November 1998, Fabert-Goossens v Commission, T‑217/96, EU:T:1998:262, paragraphs 28 and 29 and the case-law cited).

42 Nevertheless, in the present case, it is clear from the extracts of the FRA’s pleadings cited by the appellant that her non-selection was explained essentially by the fact that she was placed in third position on the reserve list. Thus, in paragraph 82 of the defence submitted by the FRA to the Civil Service Tribunal, the FRA points out that ‘the [appellant] came third on the reserve list, with 27 points, whilst the other candidates [had] 30.5 and 33.7 points.’ The FRA added that, ‘against this background, the [appellant’s] statement, that the reason why she was not selected “can therefore only be explained by the discussion that presumably took place between the Director” (sic) is not only an intrinsically speculative assertion, but also far from convincing, since the first candidate on the reserve list was almost 6 points ahead of her, this being a difference of approximately 21%’. In addition, in paragraph 107 of the defence submitted by the FRA to the Civil Service Tribunal, the FRA stated that ‘the [appellant] needs to be reminded that … she took part in the selection procedure, she was ranked third on the reserve list and she was not selected for the post.’

43 As a result, the finding of the Civil Service Tribunal set out in paragraph 39 above is the result of a distortion of the evidence.

44 Nevertheless, that distortion had no impact on the solution adopted in the judgment under appeal.

45 It is clear from the application at first instance that the appellant claimed, in support of the second plea, that, even taking account of the fact that she had been informed of the score which she and the other candidates had obtained in the oral test before the selection committee, the reasoning of the decision of 5 February 2013, according to which her application was unsuccessful because the profile of the successful candidate was better suited to the required qualifications, did not satisfy either the requirement to give reasons set out in the second paragraph of Article 25 of the Staff Regulations, or Article 41 of the Charter of Fundamental Rights of the European Union. The appellant added that the candidates had not been informed in advance of how the tests would be marked or of the scores required to pass.

46 Although the Civil Service Tribunal concluded, on the basis of its finding that the outcome of the tests had had no influence on the final classification of the appellant, that the plea alleging a failure to provide reasons in the decision of 5 February 2013 was ineffective, it nevertheless examined the substance of that plea before dismissing it, without adopting contradictory reasoning in that respect. Thus, it found that, in the present case, the appellant had been informed of her success in the written tests, of the score she obtained in the oral test, of the fact that the candidates had to obtain at least 60% of the points in order to be included on the reserve list and that the other two candidates on the reserve list had also passed all of the tests, and of the score obtained by those two candidates in the oral test. The Civil Service Tribunal concluded from all of those findings that the FRA had satisfied its duty to provide reasons under the second paragraph of Article 25 of the Staff Regulations and Article 41 of the Charter of Fundamental Rights of the European Union.

48 In the second place, the appellant criticises the Civil Service Tribunal for not ruling on the authenticity of the evaluation grid submitted by the FRA or on the fact that only the scores of three members of the selection committee appeared in that grid, when the selection committee was composed of five members, four of whom had a right to vote. The appellant had raised those complaints in support of the plea alleging a failure to provide reasons in the contested decision, arguing, in essence, that the evaluation grid’s lack of authenticity, on the one hand, and the fact that the appointing authority was based solely on the scores of three members of the jury, on the other, did not support the conclusion that that decision was sufficiently reasoned.

49 In that regard, it must be pointed out that, following the hearing on 10 July 2014, the Civil Service Tribunal did not close the oral procedure but invited the FRA to submit to the Tribunal, by way of a measure of organisation of procedure, the evaluation grid used by the selection committee, information on the identity of the person who was recruited and the documents concerning the role of the Staff Committee member in the selection procedure. The FRA therefore submitted, inter alia, the evaluation grid as requested and the appellant presented her observations on all of the new documents produced by the FRA in respect of which she, first, called into question the official nature of that grid, and secondly, stated that only three members of the selection committee had rated the candidates, when that committee was, according to the appellant, composed of five members.

50 Nevertheless, it must be recalled that, according to settled case-law, the duty of the Civil Service Tribunal to provide reasons for its judgments does not require it to provide an account that follows exhaustively and one by one all the arguments articulated by the parties to the case. The reasoning may therefore be implicit on condition that it enables the party concerned to know why the court of first instance has not upheld his arguments and provides the appeal court with sufficient material for it to exercise its power of review (judgment of 25 February 2015 in Walton v Commission, T‑261/14 P, EU:T:2015:110, paragraph 17 and the case-law cited).

51 It follows from paragraphs 45 to 58 of the judgment under appeal that the Civil Service Tribunal was right to find that the information received by the appellant when her application was rejected, not including the evaluation grid, was sufficient. It concluded that the FRA had satisfied its duty to provide reasons. Those reasons enabled the appellant to know why the court of first instance did not uphold her arguments and provide the appeal court with sufficient material for it to exercise its power of review. Therefore, this ground of complaint is inoperative. Consequently, the Civil Service Tribunal did not err and did not infringe the provisions of Article 47 and Article 52(3) of the Charter of Fundamental Rights, or those of Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, when it did not rule on either the authenticity of the evaluation grid submitted by the FRA or on the fact that only the scores of three members of the selection committee appeared in that grid.

52 It follows from all the foregoing that the second ground of appeal must be rejected.

The third ground of appeal: breach of the duty to provide reasons and the substantive inaccuracy of the findings of the Civil Service Tribunal when the third plea was examined

53 The appellant claims that the Civil Service Tribunal did not set out the reasons why it ignored her request to call Ms X as a witness. It adds that the findings of the Civil Service Tribunal that she had not produced any evidence, or even prima facie evidence, to suggest that the Director of the FRA actually contacted the Director of the Observatory concerning her participation in the selection procedure at issue squarely conflict with the facts and the content of the documents in the case file.

54 In the first place, with regard to the lack of reasoning in the decision of the Civil Service Tribunal for not granting the appellant’s request for examination of a witness, it must be recalled that, although in the light of its rules of procedure it falls to the Civil Service Tribunal to appraise the usefulness of measures of inquiry for the purpose of resolving the dispute before it, it nevertheless falls to the General Court to verify whether the Civil Service Tribunal has erred in law by refusing to order or to adopt those measures (judgment of 19 June 2015, Z v Court of Justice, T‑88/13 P, EU:T:2015:393, paragraph 87).

55 In the present case, it must be held that the appellant, by merely claiming that the Civil Service Tribunal did not set out the reasons why it ignored her request for examination of a witness, does not claim that it erred in law. The fact that the Civil Service Tribunal did not set out the reasons why it had decided not to proceed with the examination of a witness despite the appellant’s request to that effect does not, in that respect, demonstrate that there was such an error.

56 In any event, it must be stated that the investigative measures sought by the appellant did not make it possible to determine whether the Director of the FRA and the Director of the Observatory had discussed together the appellant’s situation. It is clear from the appellant’s written pleadings submitted to the Civil Service Tribunal that Ms X’s testimony was intended to show that, at the interview before the Director of the FRA to which the appellant was invited, the Director mentioned that he intended to contact his ‘good friend’ the Director of the Observatory, the appellant’s employer at the material time, in order to ask him for information about her. Since Ms X was present at the interview, the appellant considered that she could have confirmed the content of the conversation which the Director of the FRA intended to have with the Director of the Observatory.

57 However, it must be stated that the examination of Ms X could not have established the content of the conversation which the Director of the FRA and the Director of the Observatory ultimately had. Since Ms X was not present at that conversation, she was not in a position to provide evidence of what was said.

58 In the second place, the appellant claims that the findings of the Civil Service Tribunal that she had not produced any evidence, or even prima facie evidence, to suggest that the Director of the FRA had actually contacted the Director of the Observatory concerning her participation in the selection procedure at issue squarely conflicted with the facts and the content of the documents in the case file.

59 In that regard, it must be recalled that, as was set out in paragraph 26 above, the appeal before the General Court is limited to questions of law, the Civil Service Tribunal having exclusive jurisdiction, first, to find the facts, except where the substantive inaccuracy of its findings is apparent from the documents in the case file and, second, to assess those facts, save where the clear sense of that evidence has been distorted.

60 In the present case, the appellant states that the findings of the Civil Service Tribunal, recalled in paragraph 58 above, contradict, first, the statements of the FRA’s representative at the hearing on 10 July 2014 before the Civil Service Tribunal from which it is apparent that there was indeed contact between the Director of the FRA and the Director of the Observatory between the date of the appellant’s interview and the date on which she was informed that she had not obtained the post, and secondly, the written observations which she filed with the Civil Service Tribunal after the hearing on 10 July 2014, in which she referred to that admission. On that final point, she adds that the FRA never called into question the accuracy of those observations.

61 Nevertheless, the evidence relied upon by the appellant and referred to in paragraph 60 above, assuming that it is conclusive, merely establishes that there was contact between the Director of the FRA and the Director of the Observatory. None of the evidence makes it possible to establish with certainty that the appellant’s case was raised during that exchange. Therefore, assuming that such a situation could have had any bearing on the legality of the decision of 5 February 2013, by stating in paragraph 63 of the judgment under appeal that the appellant had not produced any evidence, or even prima facie evidence, to suggest that the Director of the FRA had actually contacted the Director of the Observatory concerning her participation in the selection procedure at issue, the Civil Service Tribunal did not vitiate its findings by a distortion of the evidence.

62 It follows from the foregoing that this ground of complaint must be rejected and that the third ground of appeal must be rejected in its entirety.

The fourth ground of appeal: breach of the duty to provide reasons in the Civil Service Tribunal’s response to the fourth plea

63 The appellant claims that the rejection of the fourth plea by the Civil Service Tribunal for inadmissibility due to the lack of consistency between the complaint and the application is unlawful. With regard to the rejection of that plea on its merits, examined in any event by the Civil Service Tribunal, the appellant claims that the Tribunal did not ascertain whether the person selected for the post for which she had submitted her application, and who was, at the time of the recruitment, a national expert seconded to the FRA, had completed the ‘minimum six-month period of secondment’ before being appointed to the vacant post. She adds that the Civil Service Tribunal was in breach of its obligation to provide reasons by not responding to all of the arguments which she relied on.

64 Without there being any need to rule on the appellant’s arguments seeking to demonstrate that the fourth plea raised before the Civil Service Tribunal was admissible, it must be stated that the Civil Service Tribunal did not err in law by rejecting that plea on its merits.

65 First, it must be stated that the Civil Service Tribunal did not err in law by refraining from verifying whether the person selected for the post at issue had previously completed a minimum six-month period of secondment as a seconded national expert. Although it is clear from Article 4 of Decision C(2008) 6866 final of the European Commission of 12 November 2008 laying down rules on the secondment to the Commission of national experts and national experts in professional training that ‘the initial period of secondment may not be less than six months or more than two years’, it must be recalled that that period is the same as the one initially set by the European Commission when it launches the procedure for selecting a seconded national expert. Nevertheless, that initial period is without prejudice to the actual length of that detachment. Thus, Article 10 of Decision C(2008) 6866 provides that the secondment may be brought to an end at the request of the Commission, the employer or the seconded national expert with or without prior notice. In those circumstances, the fact that the person ultimately selected for the post at issue did not complete a six-month secondment period as a seconded national expert had no effect on the lawfulness of that appointment. As a result, in refraining from ruling on an ineffective ground of complaint, the Civil Service Tribunal did not err in law.

66 Secondly, with regard to the breach of the duty to provide reasons, the appellant claims that the Civil Service Tribunal did not rule on the argument alleging that the internal and external candidates were not able to compete on an equal footing.

67 In that regard, it was recalled in paragraph 50 above that, according to settled case-law, the duty to provide reasons does not require the Civil Service Tribunal to provide an account that follows exhaustively and one by one all the arguments articulated by the parties to the case (see order of 21 June 2011, Rosenbaum v Commission, T‑452/09 P, EU:T:2011:295, paragraph 26 and the case-law cited).

68 In addition, it must be noted that, in the application at first instance, the appellant claimed that ‘the violation by the Director of the Commission rules and the FRA internal guidelines on SNE [had] adversely affected [her] since it put her at a clear disadvantage against a candidate who was an “insider candidate”.’ Therefore, in the application at first instance, the appellant claimed that that lack of equality had been caused by the FRA’s infringement both of the rules laid down by the Commission and its own internal guidelines.

69 It must be observed that, in paragraph 75 of the judgment under appeal, the Civil Service Tribunal held that the FRA’s rule that ‘[the secondment could not] lead to employment with the [FRA]’ cannot prevent a former seconded national expert from being recruited as a member of the temporary staff, as the person concerned was not recruited because of his status as a seconded national expert, but because he succeeded in the selection process for the recruitment of a member of the temporary staff. It concluded from that that the above-mentioned provision had not been infringed. In addition, the Civil Service Tribunal considered that the appellant’s argument, based on the Commission’s rules regarding seconded national experts, that the national expert appointed to the contested post ‘was supposed to return to his home country and implement his knowledge and experience acquired while working at the [the FRA]’ at the end of his contract, must also be rejected. The Civil Service Tribunal held that the person concerned ceased to be a seconded national expert, at the latest, upon appointment as a member of staff of the FRA.

70 It follows from the foregoing that the Civil Service Tribunal ruled on the arguments alleging infringement of the FRA’s rules and the Commission’s rules regarding seconded national experts and found that those rules had not been infringed. In that respect, it must be made clear that, even if the response of the Civil Service Tribunal does not satisfy the appellant, that circumstance is irrelevant in the context of the plea alleging a breach of the duty to provide reasons. Therefore, the appellant cannot validly claim that the Civil Service Tribunal did not rule on her argument that the infringement of those rules by the FRA had placed her at a disadvantage against a candidate who was inside that agency.

72 The appellant claims that the Civil Service Tribunal erred in law by rejecting as inadmissible, for infringement of the rule of correspondence between the pleas raised in the application and those set out in the complaint, her fifth plea alleging the irregular composition of the selection committee and infringement of the principle of non-discrimination on grounds of sex and of the standards of the European Personnel Selection Office regarding gender balance in selection committees.

73 In that regard, it must be recalled that, according to settled case-law, the rule of correspondence between the complaint, within the meaning of Article 91(2) of the Staff Regulations, and the subsequent application requires a plea raised before the Courts of the European Union to have been raised during the pre-litigation procedure, so that the appointing authority has already been made aware of the criticisms levelled by the person concerned against the contested decision, failing which the application will be inadmissible (see judgment of 25 October 2013, Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, paragraph 71 and the case-law cited).

74 That rule is justified by the very purpose of the pre-litigation procedure, which is to allow for an amicable settlement of disputes arising between officials and the administration (judgment of 25 October 2013, Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, paragraph 72 and the case-law cited).

75 It follows that, as is apparent from settled case-law, in civil service actions, claims before the Courts of the European Union may contain only heads of claim based on the same matters as those raised in the complaint, although those heads of claim may be developed before the Courts of the European Union by the presentation of pleas in law and arguments which, whilst not necessarily appearing in the complaint, are closely linked to it (see judgment of 25 October 2013 in Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, paragraph 73 and the case-law cited).

76 It must be recalled that, in the application at first instance, the appellant claimed, first, that it was clear, both from the applicable rules and the case-law, that the FRA selection committee should have ‘a more or less balanced representation of both genders’. The appellant stated that, in the present case, the jury was not composed of two members of each gender. In addition, she claimed that all the other candidates included on the reserve list were men and that the authority empowered to conclude contracts was a man who chose a male candidate against the appellant. She concluded from that that it followed from all of those findings that there was a gender imbalance in the selection procedure which did not guarantee the fairness of the procedure or of the final decision. The appellant claimed, secondly, that, although the Staff Committee was represented on the selection committee, she did not know whether that member had a right to vote or whether that member was present solely as an observer. In the latter situation, the appellant claimed that it followed from a combined reading of Article 3(1)(b) and (2)(c) of Decision 2009/3 of the Executive Board of the FRA of 18 November 2009, on general implementing provisions on the procedures governing the engagement and the use of temporary agents at the FRA, that the Staff Committee had to designate an active member of the selection committee.

77 In addition, it should be noted that, in paragraph 83 of the judgment under appeal, the Civil Service Tribunal declared that the fifth plea raised by the appellant did not appear in the complaint and that it was not closely linked to any of the pleas in the complaint, in breach of the rule of correspondence between the pleas raised in the action and the pleas set out in the complaint, as established by settled case-law. The Civil Service Tribunal therefore rejected the fifth plea raised before it as inadmissible.

78 The appellant claims that she clearly raised in her complaint a plea alleging infringement of Article 3 of Decision 2009/3. She infers from that that the Director of the FRA was in a position to identify precisely the unlawful act committed against her in the course of the selection procedure against which the complaint was, inter alia, directed.

79 In the present case, it must be pointed out that it is clear from the appellant’s complaint that she, first, relied on infringement of Article 3 of Decision 2009/3 and, secondly, claimed that the selection procedure may have been vitiated by serious irregularities including, but not limited to, infringement of the principles of objectivity, transparency and legal certainty, infringement of the principle of sound administration, breach of confidentiality and the protection of personal data, and a manifest abuse of power.

80 In that regard, first, it must be stated that Article 3 of Decision 2009/3, referred to in Article 4 of that decision on the selection procedure for a temporary member of staff for a short-term position, contains a description of the entire selection procedure for a long-term position within the FRA. However, the appellant did not set out precisely the reasons why she considered that the selection procedure had infringed Article 3 of Decision 2009/3.

81 Secondly, it is clear from the list in paragraph 79 above that, in her complaint, the appellant did not rely on either the infringement of the principle of non-discrimination on the ground of sex or on the irregularity of the composition committee. The appellant was aware, when she drafted her complaint, both of the fact that the selection committee contained only one woman and of the presence of the delegate of the Staff Committee on that committee. It is true that the appellant could not have known by that presence alone whether the delegate had a right to vote or whether the delegate was present solely as an observer. Nevertheless, it is clear from the application at first instance that the appellant still did not have that information when she brought the action before the Civil Service Tribunal and that she nevertheless raised a plea to that effect. Thus in paragraph 103 of the application at first instance, she claimed that, if that delegate was present solely as an observer, it was clear from a combined reading of Article 3(1)(b) and (2)(c) of Decision 2009/3 that the Staff Committee had to designate an active member of the selection committee. In those circumstances, the appellant had the same information at the complaint stage and at the application stage.

82 The appellant could therefore have set out with minimal precision the grievances which she then formulated in the application at first instance challenging the selection procedure.

83 It follows from the foregoing that the authority empowered to conclude contracts of employment was not in a position to know with sufficient precision the criticisms which the appellant formulated against the decision of 5 February 2013. Therefore, the Civil Service Tribunal did not err in law when it found that the plea had not been raised at the complaint stage and that it was, accordingly, inadmissible.

84 The appellant’s other arguments do not lead to the conclusion that the fifth plea which she raised before the Civil Service Tribunal was admissible.

85 First, the appellant criticises the Civil Service Tribunal for not identifying in her statement of reasons for the complaint the substantive irregularities in the conduct of the selection procedure, when she had in fact relied on that reason in her complaint. In that regard, suffice it to state that, in the examination of the fifth plea, the Civil Service Tribunal did not list the reasons set out in the complaint and merely stated that the fifth plea raised by the appellant did not appear in the complaint and that it was not closely linked to any of the pleas in the complaint, in breach of the rule of correspondence between the pleas raised in the action and the pleas set out in the complaint. The appellant’s argument is therefore ineffective and must be rejected.

86 Secondly, the appellant claims that the fifth plea was admissible in that, in her complaint, she had challenged the FRA’s decisions both on procedural grounds and on the merits. However, it must be stated that the fact that pleas contained in the application and in the pre-action complaint seek to challenge the substantive legality or, alternatively, the procedural legality of a measure does not, in itself, mean that those pleas may be regarded as being closely linked, as is required by the settled case-law referred to in paragraph 75 above. The concepts of substantive legality and procedural legality are too broad and abstract, in view of the precise purpose of the head of claim in question, to ensure that such a link may exist between pleas based exclusively on one or other of those concepts (see, to that effect, judgment of 25 October 2013 in Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, paragraph 79).

87 For the sake of completeness, it must be pointed out that, even if the ground of complaint based on infringement of the principle of non-discrimination on the ground of sex were admissible, it would still have to be rejected. Contrary to what the appellant argued before the Civil Service Tribunal, although there may have been a gender imbalance in the selection committee, that did not automatically mean that the selection procedure was unfair or, therefore, that the decision of 5 February 2013 was unlawful.

88 It follows from all of the foregoing that the fifth ground of appeal must be rejected.

The sixth ground of appeal: infringement of the right to a fair hearing, of the requirement for impartiality and of the principle of equality of arms

89 The appellant claims that she was not treated fairly and equally by the Civil Service Tribunal and that her right to a fair trial has been infringed.

90 In the first place, the appellant claims that the FRA was in a manifestly advantageous position in the proceedings before the Civil Service Tribunal. In that regard, she argues that the FRA had access to all the registers and documents pertaining to the selection procedure, whereas, for her part, she did not have access to the documents which she needed in order to verify the relevant facts concerning the present case. She adds that the Civil Service Tribunal did not order a sufficient number of investigative measures with the purpose of verifying the facts and did not grant her request to that effect, that is to say, the request for an examination of a witness, referred to in paragraph 53 above.

91 In that regard, it must be noted, first of all, that the appellant merely makes a general criticism, without specifying the type of documents which she allegedly lacked in the present case. It is common ground that the appellant was informed of her success in the written tests, of the score she obtained in the oral test, of the fact that the candidates had to obtain at least 60% of the points in order to be included on the reserve list and that the other two candidates on the reserve list had also passed all of the tests, and of the score obtained by those two candidates in the oral test. Next, as was pointed out in paragraph 49 above, following the hearing on 10 July 2014, the Civil Service Tribunal invited the FRA to submit to it, by way of a measure of organisation of procedure, the evaluation grid used by the selection committee, information on the identity of the person who was ultimately recruited and the documents concerning the role of the Staff Committee member in the selection procedure. The FRA produced the documents requested and the appellant was able to present observations. Finally, with regard to the witness examination to which the appellant refers, it was pointed out in paragraph 57 above that the examination of Ms X could not have determined the content of the conversation between the Director of the FRA and the Director of the Observatory, and so the investigative measure in question was of no benefit.

92 It follows from all of those considerations that, since the appellant failed to specify which piece of information or which document she required in the present case, the view must be taken that she had access to the information and the documents needed to enable her to present her case properly.

93 In the second place, the appellant states that the minutes of the hearing on 10 July 2014 were particularly short and that she was never provided with a full transcript of the hearing, even though she expressly requested one in the observations of 14 August 2014. She states that those minutes, in particular, left out the parts of the hearing on 10 July 2014 where the failures of the FRA in the conduct of the selection procedure were pointed out, while they over-emphasised the screenshot which she herself adduced in evidence.

94 First, it must be stated that, under Article 53 of the Rules of Procedure of the Civil Service Tribunal, in the version then applicable, only the minutes of the hearing on 10 July 2014 could be brought to the attention of the parties. The fact that the Civil Service Tribunal did not provide the appellant with the full transcript of that hearing is therefore not an indication of its impartiality, but a simple application of the rules of procedure then applicable. In any event, it is clear from the appellant’s observations submitted to the Civil Service Tribunal on 14 August 2014 that her request for a full transcript of the hearing on 10 July 2014 appeared in a footnote in which she stated that, if necessary, she was requesting that that transcript be made available to her. That footnote was included in the arguments in which the appellant claimed that the FRA had admitted at the hearing on 10 July 2014 that its Director and the Director of the Observatory had communicated with each other for strictly professional reasons between the date of her interview with the Director of the FRA and the date when she was informed that the post had not been awarded to her. Even if such a circumstance could have any effect on the lawfulness of the decision of 5 February 2013, and since it was not possible to know whether that professional conversation concerned the appellant’s job application to the FRA, the fact that both Directors had a discussion during the period in question was irrelevant in the present case. As a result, the fact that the appellant did not have access to the full transcript of the hearing on 10 July 2014 for the purpose of demonstrating that such a conversation took place had no effect on the operative part of the judgment under appeal.

95 Secondly, with regard to the fact that the minutes of the hearing do not contain any trace of certain exchanges which took place at the hearing on 10 July 2014 relating to the failures of the FRA in the conduct of the selection procedure and over-emphasise the screenshot which the appellant adduced in evidence, suffice it to state that that fact is of no relevance as such. In any event, it must be pointed out that the appellant has not demonstrated, nor even claimed, that she requested that the exchanges at issue be mentioned in the minutes after she had read them. Therefore, she has no real grounds for complaining that that was not the case. Furthermore, it must be recalled that the minutes of the hearing are not verbatim and are therefore not intended to recount all of the submissions made at the hearing on 10 July 2014.

96 In the third place, the appellant questions the impartiality of the Civil Service Tribunal based on the conduct of its Second Chamber and, in particular, that of the Judge Rapporteur.

97 In that respect, it must be recalled, first of all, that the existence of guarantees concerning the composition of a court or tribunal are the cornerstone of the right to a fair trial, compliance with which must be verified by the Union judicature if an infringement of that right is complained of and that the challenge on that point does not appear from the outset manifestly devoid of merit (see judgment of 19 June 2015, Z v Court of Justice, T‑88/13 P, EU:T:2015:393, paragraph 44 and the case-law cited).

98 It is important to add that there are two aspects to the requirement of impartiality. In the first place, the tribunal must be subjectively impartial, that is, none of its members must show bias or personal prejudice, there being a presumption of personal impartiality in the absence of evidence to the contrary. In the second place, the judge must be objectively impartial, that is to say, he must offer guarantees sufficient to exclude any legitimate doubt in this respect (see judgment of 19 June 2015, Z v Court of Justice, T‑88/13 P, EU:T:2015:393, paragraph 45 and the case-law cited).

99 It appears from paragraphs 90 to 95 above that no evidence has been adduced by the appellant that calls into question the personal impartiality of the members of the Second Chamber of the Civil Service Tribunal, or which casts any doubt over its impartiality.

100 It follows from all of the foregoing that the appellant has not demonstrated that the judgment under appeal is unlawful having regard to the fairness of the proceedings before the Civil Service Tribunal, the impartiality of the Tribunal and that of its members, and the principle of equality of arms.

101 As a result, the sixth ground of appeal must be rejected, and the claim that the judgment under appeal be set aside, in so far as the Civil Service Tribunal ruled on the claim for annulment, must be dismissed.

102 It follows from settled case-law that a claim for compensation for damage must be dismissed where there is a close connection between that claim and a claim for annulment which has been rejected as unfounded (see judgment of 9 September 2010, Carpent Languages v Commission, T‑582/08, not published, EU:T:2010:379, paragraph 84 and the case-law cited).

103 The appellant claims that the losses which she suffered are the result of the unlawfulness of the decision of 5 February 2013.

104 It follows from paragraphs 24 to 101 above that the Civil Service Tribunal was right to reject the claim for annulment submitted to it, since none of the pleas raised was held to be well founded in the present case. As a result, the Civil Service Tribunal did not err when it dismissed the appellant’s claim for compensation as a consequence of its dismissal of the claim for annulment.

106 In accordance with Article 211(2) of the Rules of Procedure, where an appeal is unfounded, the Court is to make a decision as to costs.

107 Under Article 134(1) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 211(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

108 Since the appellant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the FRA.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Gyarmathy v FRA (Civil service - Judgment) [2018] EUECJ T-196/15 (31 January 2018) URL: http://www.bailii.org/eu/cases/EUECJ/2018/T19615.html Cite as: EU:T:2018:47, [2018] EUECJ T-196/15, ECLI:EU:T:2018:47

Court of Justice of the European Communities (including Court of First Instance Decisions)