ZR v EUIPO (Civil service - Recruitment - Notice of competition - Judgment) [2024] EUECJ T-634/22 (23 October 2024)

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( Civil service - Recruitment - Notice of competition - Open Competition EUIPO/AD/01/17 - Article 266 TFEU - Decision to award financial compensation adopted in compliance with a judgment of the General Court - Measures necessary to comply with a judgment delivered in an action for annulment - Unlimited jurisdiction - Liability )

European Union Intellectual Property Office (EUIPO), represented by A. Lukošiūtė and E. Lekan, acting as Agents,

composed of O. Porchia, President, P. Nihoul (Rapporteur) and S. Verschuur, Judges,

having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,

1 By her action under Article 270 TFEU, the applicant, ZR, seeks, first, the annulment of the decision of the European Union Intellectual Property Office (EUIPO) of 14 December 2021 by which it awarded her a sum of EUR 5 000 in compliance with the judgment of 13 January 2021, ZR v EUIPO (T-610/18, not published, EU:T:2021:5; ‘the contested decision’), and, if necessary, EUIPO’s decision of 28 June 2022 rejecting her complaint (‘the decision rejecting the complaint’) and, secondly, compensation for the damage she claims to have suffered as a result of those decisions.

2 On 12 January 2017, the European Personnel Selection Office (EPSO) published in the Official Journal of the European Union the notice of Open Competition EUIPO/AD/01/17 - Administrators (AD 6) in the field of intellectual property (OJ 2017 C 9A, p. 1; ‘the notice of competition’). The purpose of that competition, organised by EPSO, was to draw up a reserve list for the recruitment of administrators by EUIPO. A corrigendum to that notice was published in Official Journal C 315A of 22 September 2017.

3 The notice of competition stated that candidates who satisfied the eligibility requirements and had obtained one of the highest marks in the pre-selection based on qualifications would be invited to attend ‘EPSO’s assessment centre’ where they would be assessed, by means of a series of ‘multiple choice questions’, on their verbal, numerical and abstract reasoning skills and then, by means of an interview, an e-tray exercise, a group exercise and a written test, on eight general competencies and finally, by means of an interview, on their specific competencies in the field covered by the competition.

4 The notice of competition stated that general competencies would be assessed out of 80 points, the pass mark required for those general competencies being 40 points, and that the specific competencies would be assessed out of 100 points, the pass mark required for those specific competencies being 50 points.

5 The applicant applied to take part in the competition in question. She was informed by EPSO, on 12 July 2017, that she had been invited to the assessment centre, where she took part in the tests on 12 and 13 September 2017.

6 By letter of 1 December 2017, EPSO informed the applicant that the selection board had decided not to place her on the reserve list of successful candidates in the competition (‘the list at issue’). The reason for this was that, having obtained 97.5 points for the tests taken at the assessment centre, the applicant was not among the candidates who had obtained the highest marks. The overall mark obtained by the last candidate on the reserve list following those tests was 102 points out of 180.

7 On 11 December 2017, the applicant submitted a request for review to the selection board.

9 On 1 March and 7 June 2018, the applicant lodged a complaint pursuant to Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) against the decision not to admit of 1 December 2017.

10 Her request for review and her complaint were rejected on 7 March 2018 and on 27 June 2018 respectively.

11 By application lodged at the Registry of the General Court on 9 October 2018, the applicant brought an action under Article 270 TFEU seeking (i) annulment of the selections board’s decision of 1 December 2017 not to place the applicant on the list at issue for the recruitment of grade AD 6 administrators in the field of intellectual property and, in so far as necessary, annulment of that selection board’s decision of 7 Mars 2018 rejecting her request for review and also of the decision of 27 June 2018 rejecting her complaint, and (ii) an order that EUIPO pay all the costs incurred in respect of that action.

12 Furthermore, as is apparent from paragraph 119 of the judgment of 13 January 2021, ZR v EUIPO (T-610/18, not published, EU:T:2021:5), in the body of her application, the applicant requested that if it were impossible to reopen the competition, which she argued was not the case, EUIPO should find ‘a just solution in order to redress the situation and the damage [she had] suffered’.

13 By judgment of 13 January 2021, ZR v EUIPO (T-610/18, not published, EU:T:2021:5), the Court annulled the selection board’s decision of 7 March 2018 refusing, after review, to place the applicant on the list at issue and dismissed the action as to the remainder.

14 In paragraphs 117 and 118 of that judgment, the Court upheld the applicant’s complaint alleging breach of the rule requiring stability in the composition of the selection board and found that, given the significance of the principles of equal treatment of the candidates, consistent marking and objectivity of the assessment, the failure on the part of the selection board to ensure stability in its composition constituted a breach of the essential procedural requirements which should entail the annulment of the selection board’s decision of 7 March 2018, without its being necessary to examine the other complaints put forward in support of that plea and the other pleas raised by the applicant.

15 As regards the request that, if it were impossible to reopen the competition, EUIPO should find ‘a just solution in order to redress the situation and the damage suffered by the applicant’, the Court dismissed it, in paragraphs 121 to 123 of that judgment, on the ground that it was addressed to EUIPO and not to the Court, and that, even though that claim was to be understood as meaning that the applicant was requesting the Court to issue instructions to EUIPO, it was not for the Court to do so or to make statements of principle, ‘bearing in mind, however, that, in accordance with Article 266(1) TFEU, the EU institution, body, office or entity whose act has been declared void is required to take the necessary measures to comply with the judgment annulling that act’.

16 By letter of 27 July 2021, EUIPO invited the applicant to a meeting in order to discuss the implementation of the judgment of 13 January 2021, ZR v EUIPO (T-610/18, not published, EU:T:2021:5), and, in particular, an offer of ‘fair compensation’.

17 On 15 September 2021, a meeting took place online between the Director of EUIPO’s Human Resources Department, accompanied by a legal specialist from that department, and the applicant, accompanied by her lawyer.

18 By email of 21 September 2021, the applicant stated that it was difficult for her to consider the compensation of EUR 5 000, proposed by EUIPO during that meeting, as fair given her objective, which was to work for that agency, and that there were, in her view, other appropriate solutions for implementing the judgment of 13 January 2021, ZR v EUIPO (T-610/18, not published, EU:T:2021:5).

19 By email of 30 September 2021, EUIPO replied to the applicant’s comments and offered to pay her a sum of EUR 10 000, explaining that, if that new offer was not accepted within one week, it would be considered as rejected and EUIPO would then adopt a decision to comply with its obligation to implement the judgment of 13 January 2021, ZR v EUIPO (T-610/18, not published, EU:T:2021:5), by granting her compensation which it would consider fair.

20 By email of 7 October 2021, the applicant submitted additional comments and claimed that the new offer could not be considered as a fair solution, while indicating that she was still prepared to continue the dialogue.

21 By email of 26 October 2021, EUIPO considered that the applicant had rejected its new offer and informed her that it was going to adopt a decision to comply with its legal obligation to implement the judgment of 13 January 2021, ZR v EUIPO (T-610/18, not published, EU:T:2021:5).

22 On 14 December 2021, EUIPO adopted the contested decision, in which it stated that, given the impossibility of implementing the judgment of 13 January 2021, ZR v EUIPO (T-610/18, not published, EU:T:2021:5), without entailing the same or new irregularities, and the degree of uncertainty about the outcome which the applicant would have obtained in the absence of the procedural irregularity sanctioned by the Court, a payment of EUR 5 000 was the form of reparation which best redressed that situation and implemented that judgment.

23 On 14 March 2022, the applicant lodged a complaint under Article 90(2) of the Staff Regulations against the contested decision. The decision rejecting the complaint was adopted on 28 June 2022 and was notified to the applicant on the same day.

The content of the contested decision and of the decision rejecting the complaint

24 In the contested decision and the decision rejecting the complaint, EUIPO, in the first place, found that the solution consisting in reopening the competition and organising new oral tests would not restore the applicant, in a satisfactory and legal manner, to the legal situation in which she would have found herself in the absence of the irregularity found in the judgment of 13 January 2021, ZR v EUIPO (T-610/18, not published, EU:T:2021:5).

25 In EUIPO’s view, the mark which would be thus awarded to the applicant and the decision concerning the list at issue would be vitiated by the same defect as the contested decision, consisting in the fact that each of the members of the selection board had not attended a sufficient number of oral tests to be able to compare the applicant’s performance in new oral tests with that of the other candidates during their own tests. What is more, such a solution could aggravate the irregularities found by the Court since the total points obtained by the applicant at the end of the new tests would be compared with the total points awarded to the last candidate on the list at issue at the end of the irregular selection procedure. Moreover, retaking the oral tests before all the members of the selection board would make those tests more difficult for the applicant than for the other candidates and EUIPO has no power to nominate either the members of the selection board who are not EUIPO staff, or a member of the selection board who had since left EUIPO. Lastly, the oral tests contain a group exercise which could not be carried out since the applicant would have to sit it alone.

26 In the second place, EUIPO rejected the solution consisting in applying a corrective factor, on the ground that it would not make it possible to compensate for the disadvantage caused by the irregularity of the initial tests resulting from the unstable composition of the selection board. According to EUIPO, it was not possible to identify a specific group of candidates who were favoured or disadvantaged compared to other candidates as a result of that irregularity, or to set objective criteria for rectifying that irregularity. Moreover, those corrective factors would have to be decided by a new selection board, which would not ensure equal treatment of the candidates and consistency in the marking.

27 In the third place, EUIPO found that the principle of equal treatment had not been breached as a result of the treatment of the applicant in the case which gave rise to the judgment of 13 January 2021, Helbert v EUIPO (T-548/18, EU:T:2021:4), which also concerned the decision of the selection board in competition EUIPO/AD/01/17, because the procedures for implementing that judgment and the judgment of 13 January 2021, ZR v EUIPO (T-610/18, not published, EU:T:2021:5), had been carried out separately and because the parties concerned were not in the same situation on account of, for example, the statutory link, function group and grade concerned.

28 Consequently, EUIPO decided to grant the applicant fair compensation assessed ex aequo et bono at EUR 5 000.

29 In determining that compensation, EUIPO refused to take into account the applicant’s loss of opportunity, which she assessed at 90%, on the grounds (i) that the fair compensation could not be regarded as repairing damage; (ii) that the applicant had not lost any opportunity because it remained open to her to participate in another procedure and it was not certain that, in the absence of the procedural irregularity found by the Court in the judgment of 13 January 2021, ZR v EUIPO (T-610/18, not published, EU:T:2021:5), her name would have been on the list at issue or that she would have been recruited; and (iii) that, in the judgment of 13 January 2021, Helbert v EUIPO (T-548/18, EU:T:2021:4), the Court had found that the annulment of the contested decision constituted sufficient compensation for the damage that decision may have caused.

30 In the decision rejecting the complaint, EUIPO also took the view that interinstitutional transfer was not among the options for implementing the judgment of 13 January 2021, ZR v EUIPO (T-610/18, not published, EU:T:2021:5), because the possibility of such a transfer did not stem from the implementation of that judgment, and that implementation was an issue distinct from that of interinstitutional transfer. Moreover, EUIPO indicated in that regard that it preferred to wait for the outcome of the case which gave rise to the judgment of 29 March 2023, ZR v EUIPO (T-400/21, not published, under appeal, EU:T:2023:169).

- annul the contested decision and, in so far as is necessary, the decision rejecting the complaint;

- order EUIPO to pay all the costs incurred by the applicant in respect of the present action;

- order EUIPO to pay the applicant a sum of EUR 5 000 as compensation for the non-material damage she suffered on account of a lack of care with which her file was dealt with.

32 In the reply, the applicant removed the last head of claim and replaced it with a claim for compensation for the ‘material and moral [prejudice]’ she suffered.

34 The applicant seeks the annulment of the contested decision and, in so far as is necessary, of the decision rejecting the complaint.

35 In that regard, it should be borne in mind that claims for annulment formally directed against the rejection of a complaint has the effect of bringing before the Court the act against which the complaint was submitted, where that claim, as such, lacks any independent content (see, to that effect, judgments of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 8, and of 6 April 2006, Camós Grau v Commission, T-309/03, EU:T:2006:110, paragraph 43).

36 In the present case, it should be observed that the decision rejecting the complaint lacks any independent content. It merely confirms, in essence, the contested decision. Therefore, the action must be considered as being directed against that latter act, the lawfulness of which must be examined by also taking into account the statement of grounds in the decision rejecting the complaint (see, to that effect, judgment of 14 July 2021, Carbajo Ferrero v Parliament, T-670/19, not published, EU:T:2021:435, paragraph 28 and the case-law cited).

37 The applicant puts forward two pleas in law. The first plea alleges infringement of Article 266 TFEU and breach of the principle of equal treatment. The second plea alleges infringement of the rights of the defence and the right to a fair trial, as enshrined in Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), and of the principle of good administration, the duty of care and the duty to state reasons, as enshrined in Article 41 of the Charter. In the first plea, the applicant criticises, in the alternative, the lawfulness of the financial compensation awarded to her by EUIPO.

38 It must be held that the applicant in fact puts forward four pleas in law, the first alleging infringement of Article 266 TFEU; the second, breach of the principle of equal treatment; the third, put forward as an alternative to the first two, alleging unlawfulness of the financial compensation which she was awarded; and the fourth, alleging infringement of the rights of the defence and the right to a fair trial, as enshrined in Article 47 of the Charter, and of the principle of good administration, the duty of care and the duty to state reasons, as enshrined in Article 41 of the Charter.

39 The applicant submits that, by rejecting the solutions consisting in reopening the competition and organising new tests or in applying corrective factors and by deciding to grant her, as the only solution, compensation set ex aequo et bono at EUR 5 000, EUIPO has not implemented the judgment of 13 January 2021, ZR v EUIPO (T-610/18, not published, EU:T:2021:5) in a manner consistent with Article 266 TFEU.

41 In that regard, it should be borne in mind that, following a judgment delivered in an action for annulment, the institution or body concerned is required, under Article 266 TFEU, to take the necessary measures to eliminate the effects of the illegalities found, which, in the case of an act which has already been implemented, consists in restoring the applicant to the legal situation that person was in before that act was adopted (see judgment of 23 April 2002, Campolargo v Commission, T-372/00, EU:T:2002:103, paragraph 109 and the case-law cited).

42 It is for the administration, in the exercise of the discretion conferred on it by Article 266 TFEU, to choose between the various possible measures which are consistent with the grounds of the judgment annulling the original act and with the principles and rules of EU law, in order to reconcile the interests of the service and the need adequately to protect the rights of the applicant (judgments of 8 October 1992, Meskens v Parliament, T-84/91, EU:T:1992:103, paragraph 78, and of 5 June 2014, Brune v Commission, T-269/13 P, EU:T:2014:424, paragraph 51).

43 According to the case-law of the Court of Justice, an applicant’s rights will be adequately protected, where a test is annulled in an open competition for the purpose of drawing up a reserve for future recruitment, if the institution or body concerned reconsiders its decisions and seeks a just solution in his or her case without its being necessary to call into question all the results of the competition or to annul the appointments made as a result thereof (see, to that effect, judgments of 14 July 1983, Detti v Court of Justice, 144/82, EU:C:1983:211, paragraph 33, and of 6 July 1993, Commission v Albani and Others, C-242/90 P, EU:C:1993:284, paragraph 13).

44 That principle is based on the need to reconcile the interests of the candidates put at a disadvantage by an irregularity committed in the course of a competition and those of the other candidates, the Court being required to take into account the legitimate expectations of the candidates already selected, and not just the need to restore the rights of the candidates who have been adversely affected (see, to that effect, judgment of 6 July 1993, Commission v Albani and Others, C-242/90 P, EU:C:1993:284, paragraph 14).

45 In deciding on the implementing measure, the institution or body concerned must, in particular, ensure, in order to comply with the principles and rules of EU law, that the measures adopted are not vitiated by the same irregularities as those identified in the judgment annulling the original act (see, to that effect, judgments of 13 September 2005, Recalde Langarica v Commission, T-283/03, EU:T:2005:315, paragraph 51, and of 28 February 2013, Pachtitis v Commission, F-51/11, EU:F:2013:26, paragraph 45 and the case-law cited).

46 It is in the light of those principles that it is appropriate to examine whether the solutions envisaged by the applicant, namely, first, reopening the competition and organising a new oral test for her and, secondly, applying a corrective factor and placing the applicant on the list at issue, would have constituted adequate implementation of the judgment of 13 January 2021, ZR v EUIPO (T-610/18, not published, EU:T:2021:5).

47 In the judgment of 13 January 2021, ZR v EUIPO (T-610/18, not published, EU:T:2021:5, paragraphs 48 and 116), the Court found that the fragmentation of the selection board into various two-person selection committees in order to question candidates in the oral tests and the fact that the members of the selection board had not attended a sufficient number of oral tests was deemed as not ensuring consistent marking and objectivity of the assessment of the candidates’ performance (see, to that effect, judgment of 13 January 2021, ZR v EUIPO, T-610/18, not published, EU:T:2021:5, paragraphs 44 to 48, 69, 116 and 117).

48 Generally, organising a new test for the applicant alone does not make it possible to remedy the defect found. Indeed, since each of the members of the selection board did not attend a sufficient number of tests to be in a position to be able to compare the applicant’s performance with that of the other candidates during the initial tests, the mark which would be awarded to the applicant at the end of a new test carried out by the members of the same selection board, were there to be more than those who awarded her initial mark, and, accordingly, the decision which would follow, would necessarily be vitiated by the same defect which led to the annulment of the initial decision (see, to that effect, judgments of 13 December 2012, Honnefelder v Commission, F-42/11, EU:F:2012:196, paragraph 48, and of 21 March 2013, Brune v Commission, F-94/11, EU:F:2013:41, paragraph 62).

49 However, the case-law recognises, as regards, as in the present case, an open competition for the purpose of drawing up a reserve for future recruitment, that organising such a test makes it possible to restore the prior prevailing situation where the test is organised so that the level and the assessment criteria for the new test are identical or at least equivalent to those for the initial oral test and the candidate is thus placed in the closest possible position to that which he or she would have been in had the defect found in the annulling judgment not occurred but is still not given an excessive advantage over the other candidates (see, to that effect, judgments of 5 June 2014, Brune v Commission, T-269/13 P, EU:T:2014:424, paragraphs 37 and 40 and the case-law cited, and of 13 December 2012, Honnefelder v Commission, F-42/11, EU:F:2012:196, paragraphs 49 and 51).

50 In the present case, EUIPO claims that that solution could not be implemented on the ground, in particular, that the applicant’s performance would not be examined by a selection board composed of the same number of people as that which had examined the other candidates.

51 That ground must be upheld. Since the principle of the stability of the selection board was infringed due to the fact that each of the members of that board had attended too few oral tests (see paragraph 47 above), if those oral tests had been restarted for the applicant, she would need to have been questioned by a large number of members of the selection board in order to ensure the consistency of those tests with those of the other candidates, who, for their part, had been questioned by only two members of the board. That disparity between the initial tests and the new tests would have been too significant for it to be possible to consider that the principle of equality had been respected, even though that principle does not require perfect equality between the conditions of the two types of test.

52 Consequently, EUIPO was correct, in the contested decision, to reject the solution consisting in organising new oral tests for the applicant in order to implement the judgment of 13 January 2021, ZR v EUIPO (T-610/18, not published, EU:T:2021:5).

- The application of a corrective factor and the placement of the applicant on the list at issue

53 According to the case-law, applying a corrective factor in the assessment of tests may be considered where it appears that irregularities or errors have occurred in the course of a competition and cannot be rectified by a repetition of the tests. A corrective factor must therefore be applied unequivocally and in accordance with objective and transparent criteria (see, to that effect, judgments of 14 July 1983, Detti v Court of Justice, 144/82, EU:C:1983:211, paragraph 29, and of 5 June 2014, Brune v Commission, T-269/13 P, EU:T:2014:424, paragraph 33 and the case-law cited).

54 That method requires that both a specific group of candidates favoured as a result of the irregularity found and a group of candidates disadvantaged compared to other candidates as a result of that irregularity be identified, and that a corrective factor be applied to the latter group (see, to that effect, judgment of 5 June 2014, Brune v Commission, T-269/13 P, EU:T:2014:424, paragraph 34).

55 In the present case, the applicant claims that the favoured group must be the candidates on the list at issue, whereas the disadvantaged group is made up of the candidates who passed all the tests but who did not obtain high enough marks to be placed on that list. In order to rectify that irregularity, she argues, it is sufficient to remove the pass mark required to be placed on the list at issue and to place the candidates in the second group, of which she is part, on that list.

56 That solution would amount to directly placing the applicant on the reserve list.

57 In that regard, it must be observed that, according to the case-law, direct inclusion of an applicant who has not passed an oral test on the reserve list would not be a fair solution because it is contrary:

- secondly, to Article 27 of the Staff Regulations, read in conjunction with Article 29 of those regulations, from which it is apparent that officials are to be recruited by means of competitions, under the conditions laid down in Annex III to the Staff Regulations, in order to select candidates with the highest standard of ability, efficiency and integrity;

- thirdly, to the principle of equal treatment and of objective marking, in so far as that solution would excuse the applicant, by contrast with the other candidates who were not placed on the reserve list, from sitting one of the tests of the competition (judgments of 5 June 2014, Brune v Commission, T-269/13 P, EU:T:2014:424, paragraphs 57 and 60 to 62, and of 21 March 2013, Brune v Commission, F-94/11, EU:F:2013:41, paragraph 67).

58 In the applicant’s view, the case-law cited in paragraph 57 above does not apply in the present case because the situation is different, since, by contrast with the applicant in that case, she passed all the tests and is not on the reserve list merely due to not being amongst the highest ranked candidates.

59 That argument cannot be accepted. EUIPO could not grant the applicant’s request and place her directly on the list at issue without infringing the objective of the competition. According to Article 27 of the Staff Regulations, that objective is to select candidates with the highest standard of ability, efficiency and integrity. However, nothing guarantees that, if the principle of the stability of the selection board had been respected, the applicant would have been ranked amongst the best candidates, since a candidate’s ultimate placement on the list at issue was largely dependent on the performance of the other candidates.

60 EUIPO was accordingly correct, in the contested decision, when it also rejected the solution consisting in applying a corrective factor, thereby placing the applicant on the list at issue, in order to implement the judgment of 13 January 2021, ZR v EUIPO (T-610/18, not published, EU:T:2021:5).

62 The applicant claims that EUIPO breached the principle of equal treatment by granting her compensation of EUR 5 000, even though, in order to give effect to the judgment of 13 January 2021, Helbert v EUIPO (T-548/18, EU:T:2021:4), which concerned the same competition as that in question in the judgment of 13 January 2021, ZR v EUIPO (T-610/18, not published, EU:T:2021:5), and which had led to the annulment of the decision not to place the applicant in that case on the reserve list for the same reasons, EUIPO had promoted that applicant to grade AST 6.

64 According to settled case-law, the principle of equal treatment, enshrined in Article 20 of the Charter, 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 judgment of 25 March 2021, Alvarez y Bejarano and Others v Commission, C-517/19 P and C-518/19 P, EU:C:2021:240, paragraphs 51 and 52 and the case-law cited).

65 In the defence, EUIPO does not deny that the applicant in the case which gave rise to the judgment of 13 January 2021, Helbert v EUIPO (T-548/18, EU:T:2021:4), was promoted.

66 Furthermore, it is apparent from the judgment of 13 January 2021, Helbert v EUIPO (T-548/18, EU:T:2021:4), that that person was an official and, from the defence, that, during the negotiations which followed that judgment, that person concluded an agreement with EUIPO concerning that promotion as a solution.

67 The situation in which that person was therefore differs, on two points, from that of the applicant in the present case.

68 In the first place, when the list at issue was published, that applicant was already an official at EUIPO, whereas the applicant in the present case was only a temporary agent. In that regard, contrary to what the latter maintains, the fact that she was already an official at the European Commission is irrelevant, since it is her situation within EUIPO - where she is on secondment - which is at issue in the present action.

69 In the second place, during the dialogue which was established between EUIPO and each of the two people concerned, an agreement was able to be reached with the applicant in the case which gave rise to the judgment of 13 January 2021, Helbert v EUIPO (T-548/18, EU:T:2021:4), whereas that was not the case for the applicant in the present case. Moreover, in the negotiation which was carried out with her, promotion was never in question and the applicant never requested that that solution be applied.

70 Since the situations of the two people concerned were different, it must be held, without its being necessary to adopt measures of organisation of procedure, that the solution adopted by EUIPO in the present case was allowed, in accordance with the case-law recalled in paragraph 64 above, to be different from that which it adopted in the implementation of the judgment of 13 January 2021, Helbert v EUIPO (T-548/18, EU:T:2021:4).

71 In addition, EUIPO cannot be criticised for not having organised an additional meeting in order to continue the dialogue initiated with the applicant. Indeed, since, as is apparent from the emails of 7 and 26 October 2021, she had rejected the new offer of EUIPO, which considered that the other options for implementing the judgment were not feasible, the dialogue that had commenced seemed to have stalled, such that EUIPO had to adopt a decision to comply with the judgment of 13 January 2021, ZR v EUIPO (T-610/18, not published, EU:T:2021:5). Moreover, it must be borne in mind that, since it acts unilaterally, the administration is able, but not obliged, to establish a dialogue with the staff member in order to reach an agreement offering the latter fair compensation (judgment of 5 June 2014, Brune v Commission, T-269/13 P, EU:T:2014:424, paragraph 52).

The third plea in law, put forward in the alternative and alleging infringement of Article 266 TFEU in determining the financial compensation awarded to the applicant in order to implement the judgment of 13 January 2021, ZR v EUIPO (T-610/18, not published, EU:T:2021:5)

73 In the alternative, the applicant criticises EUIPO for not taking into account, in assessing the compensation which it granted her in the contested decision, the loss of opportunity to be recruited which she suffered as a result of the illegality found by the Court in the judgment of 13 January 2021, ZR v EUIPO (T-610/18, not published, EU:T:2021:5).

74 EUIPO disputes that plea on the ground, first, that the compensation awarded to the applicant was not intended to compensate for the damage which she had suffered and, secondly, that the applicant had not lost any opportunity.

75 In that regard, it should be borne in mind that, in accordance with Article 266 TFEU, the institution whose act has been declared void by an EU Court is to be required to take the necessary measures to comply with the judgment annulling that act in order to make reparation for the illegality which it committed (judgment of 13 September 2011, AA v Commission, F-101/09, EU:F:2011:133, paragraph 41).

76 Where, as in the present case, the other possible solutions have been rejected, it is appropriate to grant the party concerned a sum of money intended to compensate for the damage he or she suffered (see, to that effect, judgments of 10 May 2000, Simon v Commission, T-177/97, EU:T:2000:124, paragraphs 22 and 23, and of 13 September 2011, AA v Commission, F-101/09, EU:F:2011:133, paragraph 81).

77 As the applicant indicates, the damage she suffered in the present case consists in having been denied an opportunity to be appointed as an official within EUIPO and, in any event, of an opportunity to be so appointed from January 2018, with the benefits relating to salary and promotion which that status would have included and, in the longer term, the possibility of claiming a higher old-age pension.

78 According to the case-law, in order to be taken into account, the opportunity lost must have been real and such loss must be definitive (see judgment of 24 October 2018, Fernández González v Commission, T-162/17 RENV, not published, EU:T:2018:711, paragraph 110 and the case-law cited).

79 In the present case, those requirements are met. Indeed, the applicant lost the opportunity to become an official within EUIPO in the months which followed competition EUIPO/AD/01/17. That opportunity was real, since the applicant was, among the candidates who obtained the pass mark, the best placed candidate after the last candidate accepted. In addition, she successfully participated in competitions EXT/20/38/AD 6 and EXT/21/69/AD 6 organised for intellectual property specialists. Furthermore, the loss of opportunity is definitive, because the possibility of becoming an official as a result of that competition is foreclosed.

80 Consequently, the loss of opportunity should have been taken into account in determining the financial compensation. It follows that, by disregarding that loss, despite its not being feasible to implement the other possible methods of giving effect to the judgment annulling the original act, EUIPO infringed Article 266 TFEU.

81 Without its being necessary to examine the fourth plea in law, the contested decision must therefore be annulled in so far as it awards a sum of EUR 5 000 to the applicant in compliance with the judgment of 13 January 2021, ZR v EUIPO (T-610/18, not published, EU:T:2021:5).

The compensation to be paid to the applicant, in accordance with the unlimited jurisdiction conferred on the EU judicature

82 In annulment proceedings, the EU judicature cannot, without encroaching upon the prerogatives of the administration, order an EU institution or body to adopt specific measures necessary for the enforcement of a judgment by which a decision is annulled (judgments of 9 June 1983, Verzyck v Commission, 225/82, EU:C:1983:165, paragraph 19, and of 24 November 2021, KL v EIB, T-370/20, EU:T:2021:822, paragraph 109).

83 Nevertheless, under the second sentence of Article 91(1) of the Staff Regulations, the EU judicature has, in disputes of a financial character, unlimited jurisdiction, pursuant to which it has the power, if need be, of its own motion to order the defendant to pay compensation for the damage caused by the defendant’s wrongful act and, in such a case, taking account of all of the circumstances of the case, to assess the damage suffered ex aequo et bono (see judgments of 20 May 2010, Gogos v Commission, C-583/08 P, EU:C:2010:287, paragraph 44, and of 24 November 2021, KL v EIB, T-370/20, EU:T:2021:822, paragraph 111).

84 The unlimited jurisdiction thus conferred on the EU judicature by the second sentence of Article 91(1) of the Staff Regulations entrusts it with the task, inter alia, of providing a complete solution to the disputes brought before it and of guaranteeing the effectiveness of the judgments by which it annuls decisions in staff cases (see, to that effect, judgment of 20 May 2010, Gogos v Commission, C-583/08 P, EU:C:2010:287, paragraphs 49 and 50 and the case-law cited).

85 ‘Disputes of a financial character’ include actions brought by staff members seeking to have an institution held liable (see judgment of 18 December 2007, Weißenfels v Parliament, C-135/06 P, EU:C:2007:812, paragraph 65 and the case-law cited), it being appropriate to treat a body such as EUIPO in the same way. It is therefore for the EU judicature to recognise the existence of a right to compensation (see, to that effect, judgment of 19 June 2007, Asturias Cuerno v Commission, T-473/04, EU:T:2007:184, paragraph 23 and the case-law cited).

86 It follows that the Court has jurisdiction in the present case to rule on the necessary consequences of the annulment of the contested decision for the applicant’s financial situation, since that annulment was due to the fact that EUIPO did not take into account, in its decision on financial compensation, the damage consisting in the applicant’s loss of opportunity to become an official in the months which followed the drawing up of the list at issue.

87 In order to determine the compensation due based on the loss of opportunity, it is appropriate, in accordance with the case-law:

- to specify the loss of earnings suffered by the applicant by establishing the difference between the earnings which she would have received if she had been recruited and appointed as a permanent official following the drawing up of the reserve list for recruitment, and the earnings which she actually received following the unlawful act;

- and to assess, as a percentage, the chance the applicant had of being recruited following the drawing up of the reserve list for recruitment, in order to weight the loss of earnings thus calculated (see, to that effect, judgments of 21 February 2008, Commission v Girardot, C-348/06 P, EU:C:2008:107 paragraphs 67 and 73, and of 6 June 2006, Girardot v Commission, T-10/02, EU:T:2006:148, paragraph 58).

88 However, it is apparent from the file that such a percentage cannot be determined in the present case.

89 Admittedly, the applicant, was the best placed, among the candidates who obtained the pass mark, after the last candidate accepted, to be included on the reserve list. Furthermore, she successfully participated in competitions EXT/20/38/AD 6 and EXT/21/69/AD 6.

90 However, other candidates, who were not accepted in the procedure as it was carried out, could have been marked better if the principle of the stability of the selection board had been respected.

91 Accordingly, it is impossible to assert that, had the selection board been constituted in a more stable manner, the applicant would have been placed on the list at issue. In addition, had she been placed on that list, it is impossible to ascertain the place she would have obtained. Lastly, it cannot be guaranteed that, had she been placed on that list, she would have been recruited as an official. Indeed, the selection board’s decision adopting the reserve list does not confer on successful candidates a right to be appointed, but only eligibility to be appointed.

92 In those circumstances, it is impossible to determine precisely when, if at all, the applicant would have been appointed as an official within EUIPO and which benefits she lost by being a member of the temporary staff at grade AD 6, step 2, from 1 March 2019 to 28 February 2021 and at grade AD 6, step 3 from 1 March 2021.

93 It follows that the loss of opportunity suffered by the applicant cannot be assessed in the light of the criteria set by the case-law and recalled in paragraph 87 above.

94 In such a case, the case-law provides that the disadvantage stemming from that loss of opportunity may be determined ex aequo et bono, that is to say on equitable principles (see, to that effect, judgments of 6 June 2006, Girardot v Commission, T-10/02, EU:T:2006:148, paragraph 95, and of 14 July 2021, Carbajo Ferrero v Parliament, T-670/19, not published, EU:T:2021:435, paragraph 167).

95 In the light of the foregoing, the Court finds that the loss of opportunity suffered by the applicant will be fairly assessed by setting the financial compensation, ex aequo et bono, at the sum of EUR 10 000.

96 In the form of order sought in the application, the applicant made a claim for compensation in addition to the claim for annulment of the contested decision. In that claim for compensation, she maintains that the lack of care displayed by EUIPO when dealing with her file resulted in significant stress and strong feelings of injustice for her. In addition, she criticises EUIPO for not having sought to settle the case amicably and avoid further litigation. On the basis of those two complaints, she claims compensation of EUR 5 000 for non-material damage.

97 The applicant also claims compensation for material damage, but does not describe it.

99 As regards the non-material damage, it must be observed that, according to the applicant, it does not stem from the annulled decision, but from both a lack of care on the part of the administration when dealing with her file and an unwillingness to settle the case amicably.

100 As far as the alleged unwillingness to settle the case amicably is concerned, it is appropriate to refer to paragraph 71 above, from which it is apparent that EUIPO was entitled to end the dialogue with the applicant if it was of the opinion that that dialogue could not meaningfully continue.

101 With regard to EUIPO’s lack of care when dealing with the file, the applicant’s claim for compensation is inadmissible for two reasons.

102 In the first place, the applicant does not specify in what EUIPO’s lack of care consisted. As EUIPO notes, under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union and Article 76(d) of the Rules of Procedure of the General Court, each application is required to state the subject matter of the proceedings and a summary of the pleas in law on which the application is based. That statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary, without any further information. Accordingly, it is necessary, in order for an action to be admissible, that the basic legal and factual particulars relied on be indicated, at least in summary form, coherently and intelligibly in the application itself (see, to that effect, order of 11 March 2021, Techniplan v Commission, T-426/20, not published, EU:T:2021:129, paragraph 19 and the case-law cited).

103 In order to meet those requirements, an application seeking compensation for damage allegedly caused by an EU institution or agency must state the evidence from which the conduct which the applicant alleges against the institution can be identified and the reasons why the applicant considers that there is a causal link between the conduct and the damage which the applicant claims to have suffered, and the nature and extent of that damage (judgment of 10 November 2004, Vonier v Commission, T-165/03, EU:T:2004:331, paragraph 75).

104 In the second place, according to settled case-law, where the damage for which compensation is claimed stems from conduct on the part of the administration which does not involve it adopting a decision, the administrative procedure must commence with the submission of a request, within the meaning of Article 90(1) of the Staff Regulations, for compensation, and continue, where appropriate, with a complaint against the decision rejecting that request (see, to that effect, judgment of 17 December 2003, McAuley v Council, T-324/02, EU:T:2003:346, paragraph 91, and order of 18 October 2006, Staelen v Parliament, T-32/05, not published, EU:T:2006:328, paragraph 32).

105 However, the applicant’s complaint of 14 March 2022 does not refer to a claim for compensation based on EUIPO’s alleged delay in implementing the judgment of 13 January 2021, ZR v EUIPO (T-610/18, not published, EU:T:2021:5), and does not contain any evidence from which EUIPO could have deduced, even by endeavouring to interpret the complaint with an open mind, that the applicant intended to claim such compensation.

106 As regards the material damage, it should be noted that it is not described in the application, with the result that the claim relating to it must be rejected as inadmissible in accordance with the case-law cited in paragraph 102 above.

108 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.

109 Since EUIPO has essentially been unsuccessful with its arguments, it must be ordered to bear its own costs and to pay those incurred by the applicant, in accordance with the form of order sought by the latter.

1. Annuls the decision of the European Union Intellectual Property Office (EUIPO) of 14 December 2021 in so far as it awards a sum of EUR 5 000 to ZR in compliance with the judgment of 13 January 2021, ZR v EUIPO (T-610/18);

3. Orders EUIPO to pay ZR financial compensation in the amount of EUR 10 000;

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> ZR v EUIPO (Civil service - Recruitment - Notice of competition - Judgment) [2024] EUECJ T-634/22 (23 October 2024) URL: http://www.bailii.org/eu/cases/EUECJ/2024/T63422.html Cite as: [2024] EUECJ T-634/22, ECLI:EU:T:2024:746, EU:T:2024:746

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