Judgment of the General Court (Appeal Chamber) of 5 July 2016. – European Commission v Emil Hristov.

JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

5 July 2016 ( *1 )

‛Appeal — Civil service — Appointment — Procedure for selection and appointment of the executive director of a regulatory agency — EMA — Pre-selection by a pre-selection panel — Appointment by the EMA’s Management Board — Composition of the pre-selection panel — Combination of functions as a member of the pre-selection panel and as a member of the EMA’s Management Board — Impartiality’

In Case T‑26/15 P,

appeal brought against the judgment of the Civil Service Tribunal of the European Union (Second Chamber) of 13 November 2014, Hristov v Commission and EMA (F‑2/12, EU:F:2014:245), seeking to have that judgment set aside in part,

European Commission, represented initially by J. Currall, N. Nikolova and S. Petrova, and subsequently by Nikolova and Petrova, acting as Agents,

applicant,

the other parties to the proceedings being

Emil Hristov, residing in Sofia (Bulgaria), represented by M. Ekimdzhiev, K. Boncheva and G. Chernicherska, lawyers,

applicant at first instance,

and

European Medicines Agency (EMA), represented initially by J. Currall, N. Nikolova and S. Petrova, and subsequently by Nikolova and Petrova, acting as Agents,

defendant at first instance,

THE GENERAL COURT (Appeal Chamber),

composed of M. Jaeger, President, H. Kanninen (Rapporteur) and M. van der Woude, Judges,

Registrar: E. Coulon,

gives the following

Judgment

By its appeal brought under Article 9 of Annex I to the Statute of the Court of Justice of the European Union, the European Commission seeks the setting aside of the judgment of the Civil Service Tribunal of the European Union (Second Chamber) of 13 November 2014, Hristov v Commission and EMA (F‑2/12, ‘the judgment under appeal’, EU:F:2014:245), by which the Civil Service Tribunal annulled the Commission’s decision of 20 April 2011 in which the Commission presented to the Management Board of the European Medicines Agency (EMA) a list of four candidates recommended by the pre-selection panel and confirmed by the Consultative Committee on Appointments (‘the Commission’s decision of 20 April 2011’).

Background to the dispute

The judgment under appeal described the factual background to the dispute in the following terms:

‘13

On 10 December 2009 Mr A, a member of the EMA’s Management Board, was appointed by the Board to represent it as an observer on the pre-selection panel, in accordance with point 7.1 of the [Commission Guidelines of 12 January 2009 on the selection and appointment of directors of regulatory agencies, executive agencies and joint undertakings]. Under that provision, the pre-selection panel is composed of three senior management officials from the Commission, who must have at least the same grade and function level as the Director of the EMA.

On 15 January 2010 the Commission published in the Official Journal of the European Union the vacancy notice for Executive Director (Grade AD 14) of the European Medicines Agency (EMEA) (OJ 2010 C 9 A, p. 1). The post offered was a temporary post at Grade AD 14 and the time-limit for applying for it was 17 February 2010. [Mr Emil Hristov] applied for the post on 16 February 2010.

15	On 31 March 2010 the pre-selection panel examined the applications received, in accordance with point 7.2.1 of the Guidelines. At that point the panel considered that the vacancy notice had not been adequately advertised. Subsequently, the Commission decided to publish the vacancy notice again.

…

On 7 October 2010 the EMA’s Management Board met. That meeting, which was attended, inter alia, by Mr B and Mr C, acting as chair and member of the Management Board, and member of the Management Board, respectively, adopted the decision to initiate the procedure for the selection of the Executive Director of the EMA, a decision which set out the various stages of that procedure and stated that it would be published on the EMA website.

On 30 October 2010 the Commission published the vacancy notice in question. Candidates were required to satisfy the same selection and eligibility criteria as were contained in the earlier vacancy notice, with the exception of one selection criterion. Whereas the first vacancy notice stated that candidates must have “a proven record of managing staff at a senior level in a multicultural environment”, the vacancy notice in question called for “a proven record of managing large teams at a senior level[,] experience gained in a multicultural environment [being] considered an advantage”.

[Mr Hristov] was informed of publication of the vacancy notice in question by an e-mail from the Deputy Head of the Human Resources Unit of DG Health of 3 November 2010. In that e-mail, the latter suggested that [Mr Hristov] should resend the supporting documents that he had attached to his application in response to the first vacancy notice in order to bring his professional data up to date, which the applicant did by letter of 23 November 2010, received by the Commission on the following day.

…

In that instance, the pre-selection panel was composed of the chair and three other members. The chair of the pre-selection panel was taken by the Director-General of DG Health, which, being the EMA’s parent Directorate-General, was responsible for supervising its activities. Of the three other members, two were officials of DG Health and the third an official of the Directorate-General for Research and Innovation. The chair of the pre-selection panel, namely Ms D, and one of the two officials from DG Health were also members of the EMA’s Management Board as representatives of the Commission, in accordance with Article 65(3) of Regulation No 726/2004.

On 12 January 2011 the pre-selection panel examined the 62 applications received for the post of Executive Director of the EMA. Following that examination, the pre-selection panel decided to call for interview nine candidates, including [Mr Hristov]. One of the nine candidates, however, was excluded by the pre-selection panel before attending the interview.

24	On 8 February 2011 [Mr Hristov] and the seven other short-listed candidates were interviewed by the pre-selection panel. On that occasion the panel used the evaluation grid which it had prepared.

25	At the end of the interviews the eight candidates were given a mark out of 100 and rated in ascending order of the marks awarded. [Mr Hristov] obtained the lowest score, 61 marks out of 100. The seven other candidates obtained between 69 and 85 marks out of 100.

26	On 7 March 2011 the pre-selection panel drew up its report, which provided information on each of the candidates interviewed, and decided to recommend the applications of the four candidates who obtained the best results (between 75 and 85 marks out of 100) …

Having received the pre-selection panel’s report, the Commission’s Consultative Committee on Appointments (‘the CCA’) also examined the files on the 62 applications which had been received for the post of Executive Director of the EMA. On completion of that examination, the CCA delivered, on 14 March 2011, the preliminary opinion provided for in point 8.2.1 of the Guidelines. According to the CCA’s preliminary opinion, only the four candidates recommended by the pre-selection panel were to be invited to take part in tests at the assessment centre and attend an interview with the CCA. By letter of that date, the acting secretary of the CCA informed [Mr Hristov] that the CCA had decided not to depart from the opinion of the pre-selection panel, which was that other candidates offered a better combination of the qualifications and experience required by the vacancy notice in question, and, consequently, not to invite him to attend an interview.

The four candidates recommended by the pre-selection panel, after taking the assessment tests, were called for an interview with the CCA, which took place on 7 April 2011. That same day, the CCA delivered an opinion in which it stated that the four candidates recommended by the pre-selection panel fulfilled the conditions required in order to carry out the duties of Executive Director of the EMA.

The Commissioner for Health and Consumer Protection (‘the portfolio Commissioner’) interviewed the four candidates recommended by the pre-selection panel and by the CCA. Subsequently, DG Human Resources and Security proposed to the members of the Commission, with the agreement of the President of the Commission and the portfolio Commissioner, that those four candidates should be recommended to the EMA’s Management Board.

30	On 20 April 2011, the Commission formally decided to propose to the EMA’s Management Board a list of the four candidates recommended by the pre-selection panel and by the CCA …

On 5 May 2011, the EMA’s Management Board held an extraordinary meeting to choose the new Executive Director of the EMA. At that meeting, the procedure for selecting the Executive Director, which had been adopted on 7 October 2010, was amended and the four candidates proposed by the Commission were interviewed. Since no agreement could be reached on one name it was decided that the EMA’s Management Board would meet again the next month to decide between the four candidates proposed by the Commission.

32	By letter dated 27 May 2011, registered by the Commission on 9 June 2011, [Mr Hristov] lodged a complaint “against the way in which the competition [had] been run [within the Commission]”.

33	On 8 June 2011, the EMA’s Management Board chose Mr C to become the Executive Director of the EMA.

34	On 13 July 2011, Mr C was interviewed by the European Parliament Committee on the Environment, Public Health and Food Safety.

35	By letter of 22 September 2011, the President of the European Parliament informed the EMA that, following the interview which Mr C had with the abovementioned committee, the Parliament had endorsed the appointment of Mr C as the new Executive Director of the EMA.

36	By decision of the Commission of 6 October 2011, [Mr Hristov]’s complaint, lodged by letter of 27 May 2011, was rejected.

37	By decision also adopted on 6 October 2011, the EMA’s Management Board appointed Mr C to be the Executive Director (“the Management Board’s decision of 6 October 2011”).

38	By letter of 6 January 2012, sent on the same day by fax and by post, [Mr Hristov] lodged a complaint with the EMA’s authority empowered to conclude contracts of employment against the Management Board’s decision of 6 October 2011.

By application lodged at the Registry of the Tribunal on 9 January 2012, [Mr Hristov] applied, by way of interim relief, for the suspension of the Management Board’s decision of 6 October 2011. That application for interim relief was dismissed by order of 20 March 2012 in Hristov v Commission and EMA (F‑2/12 R, EU:F:2012:35).

40	By decision of the EMA’s authority empowered to conclude contracts of employment of 16 May 2012, the complaint of 6 January 2012 was dismissed.’

Procedure at first instance and the judgment under appeal

By an application lodged at the registry of the Civil Service Tribunal on 9 January 2012 and registered under reference number F‑2/12, Mr Emil Hristov brought an action firstly seeking the annulment of (1) the decision of the pre-selection panel drawing up a list of four candidates, of which he was not one; (2) the decision of the Commission’s Consultative Committee on Appointments (‘the CCA’) of 14 March 2011 to invite for interview only those four candidates appearing on the pre-selection panel’s list; (3) the decision of the CCA of 7 April 2011 to adopt the pre-selection panel’s recommendations; (4) the Commission’s decision of 20 April 2011; (5) the Commission’s decision of 6 October 2011 rejecting the complaint of 27 May 2011; (6) the Management Board’s decision of 6 October 2011 to appoint Mr C to the post of Executive Director of the EMA; secondly, seeking compensation for the non-material damage allegedly suffered as a result of the adoption of those decisions; and, finally, seeking the organisation of another ‘competition’ compliant with legal procedures.

The Civil Service Tribunal found the claim seeking the organisation of another ‘competition’ to be inadmissible, to the extent that it constituted a claim for directions. It also found Mr Hristov’s claim seeking annulment of the preparatory acts for the Commission’s decision of 20 April 2011, namely the pre-selection panel’s decision to adopt a list of four candidates and the CCA’s two decisions of 14 March and 7 April 2011, to be inadmissible (paragraphs 58 to 63 of the judgment under appeal). It also held that the claim seeking annulment of the Management Board’s decision of 6 October 2011 was inadmissible in so far as it was directed against the Commission since the latter was not the author of that decision (paragraph 69 of the judgment under appeal).

In addition, the Civil Service Tribunal observed that the Commission’s decision of 6 October 2011 rejecting the complaint of 27 May 2011 contained detailed information concerning the preparatory acts for the Commission’s decision of 20 April 2011, and the reasons on the basis of which the Commission had adopted that decision. The conclusion drawn was therefore that the Tribunal should examine the claim for annulment of the Commission’s decision of 20 April 2011, as clarified by the decision of 6 October 2011 dismissing the complaint of 27 May 2011 (paragraph 68 of the judgment under appeal).

In support of his claim for annulment of the Commission’s decision of 20 April 2011, Mr Hristov put forward four pleas. The Civil Service Tribunal found that the first plea should be understood as alleging infringement of the rules on the composition of the pre-selection panel, the first part of the plea concerning the appointment of an even number of members of the pre-selection panel and the second part concerning the combination of the functions of member of the EMA’s Management Board and member of the pre-selection panel.

The Civil Service Tribunal began by examining the second part of the first plea and upheld it in the following terms:

‘81

With regard to competitions, it has been held that the wide discretion enjoyed by a competition selection board in determining the procedures for and detailed content of the oral tests to be undergone by the candidates must be counterbalanced by scrupulous observance of the rules governing the organisation of those tests (judgments in Girardot v Commission, T‑92/01, EU:T:2002:220, paragraph 24, and Christensen v Commission, T‑336/02, EU:T:2005:115, paragraph 38).

82	It is settled case-law that a selection board in a competition is required to ensure that its assessments of all the candidates examined in the oral tests are made in conditions of equality and objectivity (judgment in Pantoulis v Commission, T‑290/03, EU:T:2005:316, paragraph 90).

Although in the present case the pre-selection panel is not a selection board and its opinion is not binding either on the CCA or on the Commission, that case-law may still be applied in the present case, since the purpose of the pre-selection panel, like that of a selection board, was to choose the best candidates from among those who applied following the publication of the vacancy notice in question and it had significant discretion when organising the pre-selection tests (see, with regard to an internal recruitment selection panel, judgment in CG v EIB, F‑115/11, EU:F:2014:187, paragraph 60).

Consequently, it was for the Commission, pursuant to the principles of sound administration and equal treatment, to ensure that the first stage of the selection procedure, taking place before the pre-selection panel, was properly organised. That required that all members of the pre-selection panel appointed by the Commission had the necessary independence to preclude any doubt as to their objectivity (see judgment in CG v EIB, EU:F:2014:187, paragraph 61).

Moreover, it should be noted that the principle of sound administration, entailing a duty on the competent institution to examine carefully and impartially all the relevant aspects of the individual case, is enshrined in the Charter of Fundamental Rights of the European Union, which, since the entry into force on 1 December 2009 of the Treaty of Lisbon, has the same legal value as the Treaties, and Article 41 thereof, entitled “Right to good administration”, provides that every person has the right to have his or her affairs handled impartially by the institutions, bodies, offices and agencies of the Union.

The Tribunal must therefore ascertain whether the pre-selection panel was formed and functioned properly, complying in particular with its duty to act impartially, compliance with such duty being one of the rules which govern the proceedings of selection boards in competitions and, by analogy, the proceedings of pre-selection panels, and which are amenable to review by the Courts of the European Union (see, with regard to selection boards, order in Meierhofer v Commission, F‑74/07 RENV, EU:F:2011:63, paragraph 62).

In the present case, it is clear, first, from point 7.2 of the Guidelines, that the pre-selection panel starts the selection procedure by examining with the aid of a check-list whether candidates meet the eligibility criteria and then, on the basis of the selection criteria contained in the vacancy notice, draws up an evaluation grid which allows it to compare the candidates’ profiles with the profile sought and with the specific qualifications required in that notice. At the end of that assessment, the pre-selection panel draws up an initial short-list of candidates who are considered to correspond most closely to the profile sought and calls them for interview. After the interviews, it sends a full report to the CCA containing information on each interview, a qualitative assessment of all the candidates, whether or not they have been interviewed, and a draft list of the candidates considered to be best qualified. Secondly, it is clear from Article 64 of Regulation No 726/2004 and from point 10.3 of the Guidelines that the EMA’s Management Board, for its part, is required to select the Executive Director from among the candidates proposed by the Commission.

The pre-selection panel is therefore competent to recommend several candidates to the CCA, although the decision on the appointment of the Executive Director of the EMA lies with the EMA’s Management Board. Consequently, the question is whether Ms D and Mr E, who were at the same time members of the pre-selection panel, the body making the proposal, and members of the EMA’s Management Board, the body taking the decision, complied with their duty of impartiality in the light of the very distinct competences of the pre-selection panel and the EMA’s Management Board.

In that regard, the Tribunal notes that, although the draft list of candidates recommended by the pre-selection panel is not binding either on the CCA or on the Commission, that draft list and the qualitative assessment of all the candidates which the pre-selection panel includes in its report have a definite importance as regards the ensuing stage of the pre-selection procedure, since, first, the CCA is required to take them into consideration and, secondly, the portfolio Commissioner will, according to point 8.3 of the Guidelines, only interview candidates who have been short-listed by the CCA in its final opinion. Consequently, there is no denying that the pre-selection panel exerts a decisive influence over the final list of candidates proposed to the EMA’s Management Board by the Commission.

Similarly, the Tribunal finds, first, that the members of the pre-selection panel who are also members of the EMA’s Management Board will be able to vote, at the meeting of the Management Board, in person or through their alternate, in favour of the appointment of one of the candidates short-listed by the Commission. The Tribunal notes, secondly, that the members of the EMA’s Management Board may play a particularly important part in the Management Board’s discussions, irrespective of whether or not they exercise their right to vote, and that in any event they are in direct contact with the other members of the Management Board.

91	In the light of the above considerations, the conclusion must be drawn that combination of the functions of member of the pre-selection panel with those of member of the EMA’s Management Board may compromise the independence and objectivity of the persons who combine those functions.

Consequently, without passing any judgment on the content of the discussions which took place among the members of the pre-selection panel and on the positions taken by the individual members of that panel, including those taken by Ms D and Mr E, the conclusion must be drawn that Ms D and Mr E, by the mere fact of sitting on the pre-selection panel, infringed their duty of impartiality. As a consequence, since each of the members of the pre-selection panel must possess the necessary independence to preclude the objectivity of the pre-selection panel as a whole being compromised, it must be held that the duty of impartiality of the pre-selection panel as a whole was infringed.

93	That finding cannot be called into question by the Commission’s arguments.

First, as regards the argument that the members of the EMA’s Management Board who had been appointed as members of the pre-selection panel did not in any event represent the EMA’s Management Board on the pre-selection panel and did not act on its behalf, since the EMA’s Management Board was in fact represented on the pre-selection panel by the observer, in the present case Mr A, suffice it to say that Mr A’s participation in the proceedings of the pre-selection panel as an observer is not called into question by [Mr Hristov]. As was held in paragraph 92 [above], the mere fact that Ms D and Mr E, both members of the EMA’s Management Board, sat on the pre-selection panel constituted an infringement of their duty of impartiality. Moreover, it is apparent from the documents in the case that on 5 May and 8 June 2011 Ms D took part in meetings of the EMA’s Management Board whose purpose was to appoint the new Executive Director of the EMA and that she therefore took part in interviewing the four candidates proposed in the Commission’s decision of 20 April 2011, and in the discussions leading up to the appointment of Mr C. This shows that [Mr Hristov] was fully entitled to doubt the impartiality with which Ms D chaired the proceedings of the pre-selection panel.

Next, the Commission’s argument that the fact that only two of the 35 members of the EMA’s Management Board were also members of the pre-selection panel does not support the allegation that members of the EMA’s Management Board substituted their assessment for that of the pre-selection panel must also be rejected. Even if neither Ms D nor Mr E had taken part in the meetings of the EMA’s Management Board on 5 May and 8 June 2011, they did nonetheless take part in meetings of the pre-selection panel and were able, as members of that panel, to exert an influence over the assessment of each of the candidates by the other members of the pre-selection panel.

It is also necessary to reject the Commission’s argument that the appointment of Ms D and Mr E as members of the pre-selection panel was objectively justified, and even necessary, since they were both experts in the field. As the Commission acknowledged at the hearing, it was not impossible to appoint as participants on the pre-selection panel experts who were not members of the EMA’s Management Board. Moreover, the Tribunal observes that under the Guidelines it is possible to avoid members of the pre-selection panel also being members of the EMA’s Management Board. First, point 7.1 of the Guidelines, allows the parent Directorate-General to select members of the pre-selection panel from among a number of senior management officials, stating that the pre-selection panel is to comprise the Director General or the Deputy Director General of the parent Directorate-General, a Director from the parent Directorate-General and a Director from another Directorate-General. Secondly, that provision also states that the members of the pre-selection panel are to be appointed “[a]s a general rule” from among the abovementioned officials. Consequently, if it happens, as in the present case, that the persons listed in point 7.1 of the Guidelines, namely the Director General, the Deputy Director General and a Director from the parent Directorate-General, are already members of the Management Board of the agency concerned, other persons may be appointed as members of the pre-selection panel.

Similarly, it is necessary to reject the Commission’s argument that there is no rule that prevents members of the EMA’s Management Board from being appointed as members of the pre-selection panel. The combination of both those functions in a single person, as the Tribunal found above, constitutes an infringement of the pre-selection panel’s duty of impartiality and is therefore in breach of Article 41 of the Charter.

Lastly, the Commission’s argument that Article 11a of the Staff Regulations constitutes a safeguard for the impartiality of members of the pre-selection panel must also be rejected. Although, Article 11a of the Staff Regulations provides that an official is required not to deal with a matter in which he has any personal interest such as to impair his independence, and although it is clear from the documents in the case that Mr A and a member of the pre-selection panel did not take part in an interview with one of the candidates, nonetheless Ms D and Mr E, regardless of Article 11a of the Staff Regulations, raised no objection to their appointment as members of the pre-selection panel, took part in all the interviews with the candidates and, in the case of Ms D, did not declare, under Article 11(3) of the Rules of Procedure of the Management Board, any interest that could potentially be prejudicial to her independence at the meetings of the EMA’s Management Board on 5 May and 8 June 2011.

99	In the light of the above considerations, the second part of the first plea, based on combination of the functions of member of the EMA’s Management Board and member of the pre-selection panel, must be declared well-founded.’

The Civil Service Tribunal held that the claim for annulment of the Commission’s decision of 20 April 2011 must be upheld, without the need to examine either the first part of the first plea, or the other pleas put forward in support of the claims for annulment of the said decision (paragraph 100 of the judgment under appeal).

In relation to the claim for annulment of the Management Board’s decision of 6 October 2011, the Civil Service Tribunal first found that the Management Board was only permitted to appoint as Executive Director of the EMA one of the candidates on the short-list adopted in the Commission’s decision of 20 April 2011. The Tribunal then stated that, since the Commission’s decision of 20 April 2011 must be annulled, it must also be found that the Management Board’s decision of 6 October 2011 should similarly be annulled (paragraph 101 of the judgment under appeal).

The Civil Service Tribunal rejected the claim for compensation, finding that any non-material damage that Mr Hristov might have suffered due to the unlawfulness of the Commission’s decision of 20 April 2011 and the Management Board’s decision of 6 October 2011 was appropriately and sufficiently compensated for by their annulment (paragraphs 105 to 108 of the judgment under appeal).

Procedure before the General Court and forms of order sought

11	By application lodged at the Court Registry on 20 January 2015, the Commission brought the present appeal.

12	On 3 April 2015, Mr Hristov lodged a response.

13	On 5 May 2015, on the basis of Article 143(1) of the Rules of Procedure of the General Court of 2 May 1991, the President of the Appeal Chamber authorised the Commission to lodge a reply.

14	The Commission lodged its reply on 12 June 2015 and Mr Hristov lodged his rejoinder on 28 July 2015.

15	The oral part of the procedure was closed on 28 July 2015.

Acting on a report from the Judge-Rapporteur, the General Court (Appeal Chamber) noted that no application for a hearing to be arranged had been submitted by the parties within three weeks after service on the parties of notification of the close of the written part of the procedure as provided in Article 207(1) of its Rules of Procedure and decided, pursuant to Article 207(2) of those Rules, to give a ruling without an oral part of the procedure.

The Commission contends that the Court should:

—	set aside the judgment under appeal;

—	refer the case back to the Civil Service Tribunal for a ruling on the other pleas in law;

—	reserve the costs.

In its application, the Commission specifies that its appeal is directed against paragraphs 81 to 98 of the judgment under appeal, which support point 1 of the operative part of that judgment annulling the Commission’s decision of 20 April 2011, although the Commission maintains that setting that aside would necessarily also entail setting aside point 2 of the operative part of the same judgment, which annulled the decision of the EMA’s Management Board of 6 October 2011.

Mr Hristov claims that the Court should:

—	dismiss the appeal;

—	order the Commission to pay the costs incurred during the administrative proceedings and the litigation.

The appeal

It must be held that, by its appeal, which is stated to be directed against paragraphs 81 to 98 of the judgment under appeal, the Commission is seeking the setting aside of the judgment under appeal in so far as it annulled the Commission’s decision of 20 April 2011, pursuant to which the Commission proposed a list of four candidates to the EMA’s Management Board.

The Commission advances three pleas in law in support of its appeal. The first plea in law alleges infringement of Article 30 and of Annex III to the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), of the principles of impartiality and of sound administration and of Article 41 of the Charter of Fundamental Rights of the European Union, as well as a failure to state grounds. The second and third pleas in law, put forward in the alternative, allege infringement of EU law and, in particular, of the principle of proportionality in that, respectively, the Civil Service Tribunal failed to determine whether, if the infringement in question had not occurred, the content of the contested decision would have been different and also failed to balance the respective interests and to limit the effects of the judgment under appeal.

22	The first plea will be examined first.

Arguments of the parties

In essence, the Commission’s complaint lies in the fact that the Civil Service Tribunal found that the Commission had infringed the principle of impartiality and sound administration, on the basis of a mere presumption of bias on the part of one person, Ms D, for the sole reason that she had sat on the pre-selection panel whilst being a member of the EMA’s Management Board.

According to the Commission, bias on the part of a person cannot be presumed but must be proven ‘on the basis of objective, relevant and consistent evidence’, as is clear from the case-law and, in particular, from the judgment of 10 July 2014, CG v EIB (F‑115/11, EU:F:2014:187, paragraph 65). That requirement, which applies to a member of a competition selection board with actual decision-making powers, should also apply to a member of a pre-selection panel that simply gives an opinion. There was no such proof in the present case. In addition, during the hearing at first instance, Mr Hristov indicated that he did not know Ms D and that he therefore did not have a bad relationship with her.

The Commission adds that paragraph 88 of the judgment under appeal could be interpreted as implying that two Commission officials, Ms D and Mr E, had sat on the pre-selection panel and had both voted on the Management Board of the EMA. That was not in fact the case since Mr E was Ms D’s alternate member and could therefore not vote on the EMA’s Management Board at the same time as her.

26	In addition, according to the Commission, the presumption of bias, raised in paragraphs 91 and 92 of the judgment under appeal, is based on several errors of law.

The first error is said to consist in likening the pre-selection panel to a competition selection board, in paragraphs 81 to 84 of the judgment under appeal. In the present case, since the recruitment was not of a civil servant, neither Article 30 of nor Annex III to the Staff Regulations was applicable. The Commission considers only Article 12 of the Conditions of employment of other servants of the Union to be applicable to the present case in so far as it related to the recruitment of temporary staff, and that article does not provide any particular procedure for the engagement of temporary staff. The Commission accepts that the procedure for the engagement of temporary staff must be objective and impartial. However, it submits that the requirement for impartiality and objectivity should not, in the case of temporary staff, be based on Article 30 of and Annex III to the Staff Regulations.

Likening the pre-selection panel to a competition selection board is also incorrect, according to the Commission, in that a competition selection panel, which has an actual and wholly independent decision-making power and the decisions of which can be amended only by the appointing authority, is different from a pre-selection panel which is a purely consultative body the decisions of which do not bind the authority which makes the decision. The Commission claims that, in any event, the judgment under appeal fails to state sufficient grounds in that regard.

Next, the Commission criticises paragraph 85 of the judgment under appeal, according to which the duty of impartiality forms part of the principle of sound administration appearing in Article 41 of the Charter of Fundamental Rights. According to the Commission, the rank of one provision in the hierarchy of norms is not sufficient to explain why it should apply to the particular circumstances of the present case. In any event, infringement of the principle of sound administration is not a relevant ground for annulment.

The Commission submits that there is a further error of law in paragraph 89 of the judgment under appeal, in which the Civil Service Tribunal first recognised, rightly, that the opinion of the pre-selection panel was not binding either on the CCA or on the Commission, but then concluded that the pre-selection panel ‘exert[ed] a decisive influence over the final list of candidates proposed to the EMA’s Management Board by the Commission’. That contradiction is said to constitute an error of law, if not a distortion of the evidence or inconsistent reasoning.

As for paragraph 90 of the judgment under appeal, according to which the members of the EMA’s Management Board who sat on the pre-selection panel may play a particularly important part in the Management Board’s discussions, there is said to be a failure to state sufficient grounds in that the Civil Service Tribunal did not provide any explanation in this respect. Furthermore, there is no evidence to support the statement contained in paragraph 90 of the judgment under appeal.

32	For all the above reasons, the Commission is of the opinion that the conclusion drawn by the Civil Service Tribunal in paragraphs 91 and 92 of the judgment under appeal, as well as lacking sufficient grounds, is manifestly wrong in law.

Mr Hristov submits, first, that, to the extent that the existence of a personal conflict between Ms D and himself was not alleged before the Civil Service Tribunal and was not examined in the judgment under appeal, that element of fact raised by the Commission is not relevant to the Court’s examination of the dispute.

Mr Hristov goes on to state that the Commission’s clarification that, despite the contrary indication in the judgment under appeal, Mr E was unable to vote at the same time as Ms D at meetings of the EMA’s Management Board, given that he acted as her alternate when she was absent, is not relevant to the dispute either. Mr Hristov observes that, as is clear from paragraphs 90 and 95 of the judgment under appeal, the Civil Service Tribunal drew its own conclusions as to an infringement of the requirement for impartiality, independently from the question of whether Mr E and Ms D exercised their right to vote on the EMA’s Management Board and whether they both participated in the meetings of the Management Board on 5 May and 8 June 2011. In addition, it is clear from paragraph 94 of the judgment under appeal that only Ms D participated in the meetings of the Management Board of 5 May and 8 June 2011.

Mr Hristov also states that the infringement of the principles of impartiality and sound administration arises from the fact, which is not disputed by the parties, that two of the four members of the pre-selection panel were also members of the EMA’s Management Board, without there being any need to prove that the combination of these two functions had influenced the behaviour of Ms D and Mr E or their decisions during the selection procedure, nor any need to take a view on the content of the discussions that took place between the members of the pre-selection panel.

36	Mr Hristov also submits that, despite the Commission’s claims to the contrary, the Civil Service Tribunal did not refer, in paragraphs 81, 82 and 83 of the judgment under appeal, to either Article 30 of or Annex III to the Staff Regulations.

Finally, Mr Hristov adds that accepting the Commission’s submission that, to the extent that decisions of pre-selection panels are non-binding, there is no requirement for equal treatment and objectivity in the procedure before that panel would be to make a nonsense of that stage of the procedure. Mr Hristov also comments that it is clear from paragraph 89 of the judgment under appeal that the CCA was obliged to take into account the draft list of candidates, the assessment of the candidates and the report of the pre-selection panel and that the panel had a decisive influence on the final list of candidates proposed by the Commission to the EMA’s Management Board.

Findings of the Court

It must be recalled that, according to the Civil Service Tribunal, in the context of the procedure for selecting and appointing the Executive Director of the EMA, Ms D and Mr E, who sat on the pre-selection panel and who were members of the EMA’s Management Board, infringed their duty of impartiality on the pre-selection panel ‘by the mere fact of sitting on [that] panel’ (paragraph 92 of the judgment under appeal). The Civil Service Tribunal took the view that ‘combination of the functions of member of the pre-selection panel with those of member of the EMA’s Management Board may compromise the independence and objectivity of the persons who combine those functions’ (paragraph 91 of the judgment under appeal). The Civil Service Tribunal concluded that ‘the duty of impartiality of the pre-selection panel as a whole [had been] infringed’ (paragraph 92 of the judgment under appeal).

In that regard, it is important to note that the case-file before the Civil Service Tribunal and the parties’ submissions before the Court make it clear that Mr E was Ms D’s alternate member on the EMA’s Management Board. It is also clear from paragraph 94 of the judgment under appeal that it was Ms D who took part in the discussions at meetings of the EMA’s Management Board that led to the appointment of Mr C.

Next, it is appropriate to consider that, before the Civil Service Tribunal, Mr Hristov did not question the subjective impartiality of Ms D or Mr E, which has been confirmed by both parties before the Court. Thus, the Civil Service Tribunal ruled only on the question of whether the pre-selection panel was not objectively impartial as a result of the combination of functions of Ms D and Mr E.

It is therefore for the Court to check whether the Civil Service Tribunal committed any error of law in concluding that there was a lack of impartiality on the part of Ms D and Mr E and, therefore, of the pre-selection panel as a whole, for the simple reason of their being members of the pre-selection panel and also members (respectively full member and alternate member) of the EMA’s Management Board.

For that purpose, it is necessary to examine whether the considerations set out in paragraphs 83 to 90 of the judgment under appeal, on which the Civil Service Tribunal based its conclusion that there had been an infringement of the duty of impartiality by the pre-selection panel as a whole, as set out in paragraph 92 of that judgment, are incorrect in law.

Firstly, despite the Commission’s submission to the contrary, invoking paragraphs 81 to 84 of the judgment under appeal, the Civil Service Tribunal did not base its finding that members of the pre-selection panel must be impartial and objective on the provisions of Article 30 of or Annex III to the Staff Regulations. Neither paragraphs 81 to 84 of the judgment under appeal nor the ‘Legal context’ part of that judgment indicate that the Civil Service Tribunal based its conclusion on those provisions in the present case.

Secondly, the Commission cannot maintain that the Civil Service Tribunal ‘likened’ the pre-selection panel to a competition selection board by recognising that the case-law applicable to competition selection boards was also applicable to pre-selection panels. It should be noted that the Civil Service Tribunal expressly stated, in paragraph 83 of the judgment under appeal, that ‘the pre-selection panel [was] not a selection board’. However, it found that, since the purpose of the pre-selection panel, like that of a selection board, was to choose the best candidates and that it had significant discretion when organising the pre-selection tests and that, consequently, it was for the Commission, pursuant to the principles of sound administration and equal treatment, to ensure that the selection procedure that took place before the pre-selection panel was properly organised, by requiring that all members of the pre-selection panel had the necessary independence to preclude any doubt as to their objectivity (paragraphs 83 and 84 of the judgment under appeal).

Neither can the Commission claim that the Civil Service Tribunal did not explain the reasons why the requirements for independence and objectivity imposed on competition selection boards also apply to pre-selection panels. Those explanations are clear from paragraph 83 and from paragraphs 84 and 85 of the judgment under appeal.

It must, in addition, be noted that the Commission has not advanced any legal argument that would call into question the considerations set out in paragraphs 83 and 84 of the judgment under appeal. The Commission merely confirms that a competition selection board, which exercises actual decision-making powers, should not be likened to a pre-selection panel, which is a purely consultative body. Not only was that not overlooked by the Civil Service Tribunal, which makes it clear in paragraph 83 of the judgment under appeal that ‘the pre-selection panel is not a selection board and its opinion is not binding either on the CCA or on the Commission’, but in addition the Commission has failed to show how that consideration could call into question the need to ensure that the members of the pre-selection panel act wholly independently and objectively.

Thirdly, despite the Commission’s claim to the contrary, the Civil Service Tribunal does not seek to justify applying the duty of impartiality to the present case by the rank held by that duty in the hierarchy of norms. In that regard, it should be noted that, in paragraph 85 of the judgment under appeal, the Civil Service Tribunal merely recalls that the principle of sound administration, entailing a duty of impartiality on the institutions, is enshrined in the Charter of Fundamental Rights which, since the entry into force of the Treaty of Lisbon, has the same legal value as the Treaties. That is not, per se, disputed by the Commission.

Fourthly, as to the Commission’s statement that alleged infringement of the principle of sound administration ‘is not a recognised ground for annulment’, suffice it to say that it is clear from the judgment under appeal that, in examining the second part of the first plea in law raised before it by Mr Hristov, the Civil Service Tribunal took into account the duty of impartiality and did not merely rely on the principle of sound administration.

Fifthly, it must be held that there was no contradiction in the Civil Service Tribunal stating firstly that the draft list of candidates recommended by the pre-selection panel is not binding on either the CCA or on the Commission whilst also recognising that the pre-selection panel has a ‘decisive influence’ on the final list of candidates proposed by the Commission to the EMA’s Management Board. Even though it is undisputed between the parties that the draft list of candidates proposed by the pre-selection panel to the CCA is not binding to the extent that, as the Commission points out, the CCA and the Commission may shortlist candidates other than those appearing on the draft list, it remains the case, as is clear from points 8.2.1 and 8.3 of the Commission Guidelines of 12 January 2009 on the selection and appointment of directors of regulatory agencies, executive agencies and joint undertakings, as cited in paragraphs 9 and 89 of the judgment under appeal, that the draft list ‘[has] a definite importance as regards the ensuing stage of the [selection] procedure’ to the extent that the CCA must take that list into consideration and also that the portfolio Commissioner, being the Commissioner for Health and Consumer Protection, interviews only those candidates who have been shortlisted by the CCA in its final opinion.

It must, therefore, be held that there is no contradiction contained in paragraph 89 of the judgment under appeal. However, although the Civil Service Tribunal rightly found that the draft list of candidates drawn up by the pre-selection panel had a definite importance for the ensuing stage of the selection procedure, it did not show that the fact that Ms D sat on the EMA’s Management Board, as a full member, as did Mr E, as Ms D’s alternate member, could have affected their freedom to act with full objectivity and independence on the pre-selection panel and thus cast any legitimate doubt on the impartiality of that panel. As the Commission states in its application, it was not shown by the Civil Service Tribunal that Ms D’s seat on the EMA’s Management Board had any ‘practical meaning’ with regard to her role on the pre-selection panel.

In that respect, it is important to remember that, in ruling on the lawfulness of the Commission’s decision of 20 April 2011 with regard to the requirement for the pre-selection panel to be impartial, the Civil Service Tribunal had to consider the situation at the time when the pre-selection panel recommended the four candidates who had obtained the best results.

During that phase of the procedure for selecting candidates, leading to the appointment of the Executive Director of the EMA, the fact that Ms D and Mr E were also, respectively, full member and alternate member of the EMA’s Management Board, cannot, per se, cast doubt on their impartiality as members of the pre-selection panel. The mere fact of sitting on the pre-selection panel and on the EMA’s Management Board cannot be used as a basis for a presumption of bias on the part of the members of the pre-selection panel in relation to the procedure before the panel.

It must be noted that, in the present case, the issue is not the impartiality of the EMA’s Management Board or whether Ms D or Mr E were able to participate in taking the decision to appoint the Executive Director of the EMA when they had been involved in an earlier stage of the appointment procedure.

In addition, it follows from the above that the grounds given by the Civil Service Tribunal in paragraph 90 of the judgment under appeal, concerning the hypothetical behaviour of members of the pre-selection panel at meetings of the EMA’s Management Board, has no relevance to the examination of the lawfulness of the Commission’s decision of 20 April 2011.

As a result of all the foregoing, the Civil Service Tribunal was wrong to find, first, that Ms D and Mr E, who were, respectively, a full member and alternate member of the EMA’s Management Board, had infringed their duty of impartiality by the mere fact of sitting on the pre-selection panel, and secondly, that the duty of impartiality of the pre-selection panel as a whole had therefore been infringed.

56	It follows that the first plea of the appeal must be upheld, without there being any need to examine the other pleas in law or arguments invoked by the Commission in that appeal.

57	Consequently, the judgment under appeal must be set aside to the extent that it involves the annulment of the Commission’s decision of 20 April 2011.

Consequences of the partial setting aside of the judgment under appeal

Under Article 13(1) of Annex I to the Statute of the Court of Justice of the European Union, if the appeal is well founded, the General Court shall quash the decision of the Civil Service Tribunal and itself give judgment in the matter. It shall refer the case back to the Civil Service Tribunal for judgment where the state of the proceedings does not permit a decision by the Court.

In the present case, it shall be for the Civil Service Tribunal to verify whether there is still a need to examine the arguments raised by Mr Hristov in the context of the second part of the first plea in law, other than the ones that led the Tribunal to hold, in the judgment under appeal, that the second part of the first plea was well founded.

60	In addition, it must be noted that the Civil Service Tribunal did not examine the first part of the first plea, nor the second, third or fourth pleas relied on by Mr Hristov.

Therefore, the case must be referred back to the Civil Service Tribunal and it should be specified that, if appropriate, it will be for that Tribunal to draw the consequences of any potential unlawfulness of the Commission’s decision of 20 April 2011 on the lawfulness of the decision of the EMA’s Management Board of 6 October 2011.

Costs

62	Since the case has been referred back to the Civil Service Tribunal, the costs relating to the present appeal proceedings must be reserved.

On those grounds,

THE GENERAL COURT (Appeal Chamber)

hereby:

Sets aside in part the judgment of the Civil Service Tribunal of the European Union (Second Chamber) of 13 November 2014 in Hristov v Commission and EMA (F‑2/12), in so far as it annulled the decision of the European Commission of 20 April 2011, pursuant to which the Commission proposed to the Management Board of the European Medicines Agency (EMA) a list of four candidates recommended by the pre-selection panel and approved by the Consultative Committee on Appointments;

Refers the case back to the Civil Service Tribunal for a ruling to be given on the claim for annulment of the Commission’s decision of 20 April 2011, by which it proposed to the Management Board of the EMA a list of four candidates recommended by the pre-selection panel and approved by the Consultative Committee on Appointments, in view of the heads of claim and pleas in law relied on by Mr Emil Hristov on which the Civil Service Tribunal did not adjudicate;

3.	Reserves the costs.

Jaeger

Kanninen

Van der Woude

Delivered in open court in Luxembourg on 5 July 2016.

[Signatures]

( *1 ) Language of the case: Bulgarian.