Background
The European Personnel Selection Office (EPSO) conducted open competition EPSO/AD/380/19 to recruit administrators at grades AD 7 and AD 9 in international cooperation and development aid. Written assessment tests were held on 9 September 2021 but experienced significant technical problems affecting numerous candidates. On 4 October 2021, EPSO offered all candidates who participated the option to either retain their first-session results or participate in a second test session on 10 November 2021. Eight appellants participated in the second session; three others retained their first-session results. Following additional technical difficulties in the second session, a third session was organized on 10 December 2021 for affected candidates.
On 5 May 2022, the selection board notified each appellant that they would not be included on the AD 7 reserve list. The appellants lodged complaints under the EU Staff Regulations, which were rejected on 13 March 2023. They then brought an action in the General Court seeking annulment of the decisions not to include their names on the reserve list. The General Court dismissed their action in full on 10 July 2024, rejecting their claims that the competition procedures infringed the principle of equal treatment.
The Court’s Holding
The Court of Justice partially upheld the appeal, finding that the General Court erred in law regarding the principle of equal treatment. While EU institutions possess broad discretion to adopt measures remedying competition irregularities, the solution implemented—offering all candidates the opportunity to retake tests regardless of whether they experienced technical problems—was disproportionate to the legitimate aim of remedying irregularities. The Court held that the measure created a new inequality exceeding that inherent in any competition: candidates seriously affected by technical failures had effectively only one genuine opportunity to compete, whereas unaffected candidates gained a second chance plus the discretion to choose whether to participate, conferring upon them a significant advantage.
The Court upheld the appeal in part for five appellants (UJ, UL, UP, UU, and UV) who reported technical difficulties and participated in the second session, finding the General Court’s error affected them personally. The Court also upheld the appeal for UN and US regarding the written test scenario, noting that the additional preparation time available to second-session candidates could confer an objective advantage independent of the selection board’s intentions. However, the appeal was rejected for UT, who failed to achieve minimum marks and therefore lacked personal interest in the equal treatment claim.
Key Takeaways
- Equal treatment in competitions requires that all candidates be subject to equivalent tests under equivalent conditions presenting substantially the same degree of difficulty.
- Selection boards must limit the risk of inequality of opportunity to that which is generally inherent in any examination, even when adopting remedial measures for competition irregularities.
- A proportionality assessment applies to remedial measures: a solution that creates new inequalities greater than the original irregularity may breach equal treatment principles.
- Offering all candidates a second chance without restricting it to those actually affected by technical problems may constitute disproportionate treatment, creating advantage rather than remedying harm.
- Candidates must have personal interest to rely on alleged breaches of equal treatment; those unaffected by irregularities cannot assert claims benefiting others.
Why It Matters
This judgment establishes important limits on EU institutions’ discretion to remedy competition irregularities. While broad discretion exists to adopt corrective measures, that discretion is not unlimited—proportionality constraints apply. The decision clarifies that blanket remedial approaches offering opportunities to all participants, irrespective of whether they suffered harm, may breach equal treatment protections. Rather than offering optional second chances, completely invalidating a flawed test session and conducting a new session for all candidates may be the legally safer approach.
The ruling impacts civil service recruitment across EU institutions. It signals that EPSO and other appointing authorities must carefully tailor remedial measures to the actual scope of harm caused by irregularities. The judgment also reinforces standing requirements: only candidates whose interests were adversely affected can challenge procedural breaches, preventing individuals from asserting broader regulatory violations without personal prejudice.
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