JUDGMENT OF THE COURT (First Chamber)

8 May 2019 ( *1 )

(Appeal – Civil service – Officials – Competition – Judgment annulling a decision – Extent of the annulment – Weighing up of interests involved – Annulment of reserve lists – Annulment of the decisions to appoint successful candidates from those lists)

In Case C‑243/18 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 3 April 2018,

European Joint Undertaking for ITER and the Development of Fusion Energy , represented by G. Poszler and R. Hanak, acting as Agents,

appellant,

the other party to the proceedings being:

Yosu Galocha , residing in Madrid (Spain), represented by A. Asmaryan Degtyareva, abogada,

applicant at first instance,

THE COURT (First Chamber),

composed of J.-C. Bonichot, President of the Chamber, C. Toader, A. Rosas (Rapporteur), L. Bay Larsen and M. Safjan, Judges,

Advocate General: M. Bobek,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after hearing the Opinion of the Advocate General at the hearing on 29 January 2019,

gives the following

Judgment

1By its appeal, the European Joint Undertaking for ITER and the Development of Fusion Energy (‘Fusion for Energy’) asks the Court to set aside the judgment of the General Court of the European Union of 25 January 2018, Galocha v Joint undertaking Fusion for Energy ( T‑561/16 , the judgment under appeal, EU:T:2018:29 ), by which the General Court, inter alia, annulled the reserve lists for selection procedure F4E/CA/ST/FGIV/2015/001 and the decisions of Fusion for Energy to appoint successful candidates from those lists.

The background to the dispute and the decisions challenged before the General Court

2Fusion for Energy, a ‘joint undertaking’ under Article 45 of the Euratom Treaty, was established by Council Decision 2007/198/Euratom of 27 March 2007 ( OJ 2007 L 90, p. 58 ). Under Article 4 of the Annex to that decision, headed ‘Legal personality’, the undertaking has legal personality and enjoys, in the territory of each of its members, the most extensive legal capacity granted to legal persons under their respective national laws.

3Mr Yosu Galocha worked on the premises of Fusion for Energy in Barcelona (Spain) from 23 April 2014 as a temporary worker and from 5 May 2015 as an external subcontractor. In February 2016, Fusion for Energy’s contract with the company for which Mr Galocha worked came to an end and, since that date, he has no longer worked on the premises of Fusion for Energy.

4On 5 February 2015, Fusion for Energy published, on its website, vacancy notice F4E/CA/ST/FGIV/2015/001 in order to create two reserve lists for the recruitment of Cost Control Support Officers, one containing four candidates for its site in Barcelona, and the other, also containing four candidates, for its site at Cadarache (France).

5The successful candidates were to be recruited as contract staff under Article 3a of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’) for a non-renewable period of a maximum of three years. Section 3 of the vacancy notice in question made reference to a ‘Guide for Applicants’ for more information on the selection process for contract staff. That guide was available on the Fusion for Energy website and in the CEOS.

6Section 5 of the Guide for Applicants, which was available throughout the selection procedure, was headed ‘Overview of Selection Procedure’.

7It provided, inter alia, for the creation of a Selection Committee.

8Subsection 1 of Section 5 of the Guide for Applicants, headed ‘Assessment of applications’, provided, in its third paragraph, that eligible applicants who had the best profiles would be invited to sit oral and written tests. The fifth paragraph of Section 5 provided that further details of the date, time and address of the written and oral tests would be specified in the invitation letters sent to the eligible applicants. Finally, the sixth paragraph of Section 5 made it clear that applicants might be invited to take the oral and written tests on the same day or over a number of days, depending on the number of applicants there were.

9Section 5, subsection 2, of the Guide for Applicants, headed ‘Selection’, contained the headings ‘Oral test’ followed by ‘Written test’ and ‘Procedural aspect of the tests’.

10In the ‘Oral test’ section, it was stated that that test was designed to help the members of the Selection Committee to assess the candidate’s general presentation and motivation, his suitability to carry out the duties described under the ‘Responsibilities’ section of the vacancy notice, his specialist knowledge in the field in question, his capacity of expression in the working languages of Fusion for Energy and his ability to adjust to working in a multicultural environment.

11Under ‘Written test’, Section 5 provided that, in the test, account would be taken of specific competencies for the vacant post to which the selection procedure related, the quality of the candidate’s writing style and presentation, and his general aptitudes and language abilities to the extent necessary for the performance of his duties.

12Under ‘Procedural aspect of the tests’, the second paragraph stated that the assessment of applicants would be completed only after all candidates had taken both the written and oral tests, and would be based on the score achieved in both tests. The fifth paragraph pointed out, inter alia, that any contact with the members of the Selection Committee was forbidden.

13On 26 February 2015, Mr Galocha submitted his application for the selection procedure initiated by the vacancy notice at issue.

14By an email of 17 April 2015, the Human Resources Unit of Fusion for Energy invited Mr Galocha to an interview. In a letter attached to that email, he was informed that the interview would last approximately 45 minutes and would be carried out mainly in English, with the aim of helping the members of the Selection Committee to assess his general presentation and motivation, his suitability to carry out the duties described under the ‘Responsibilities’ section of the vacancy notice, his specialist knowledge in the field in question, his capacity for expression in the working languages of Fusion for Energy and his ability to adjust to working in a multicultural environment. The letter made no reference to a written test.

15On 11 May 2015, Mr Galocha sat the oral test of the selection procedure in question.

16Neither he nor the other applicants were sent any invitation to a written test.

17By an email of 4 June 2015, the Head of the Human Resources Unit of Fusion for Energy informed Mr Galocha, on behalf of the Selection Committee, that in the light of the oral and written tests which he had attended, the Selection Committee had decided not to place his name on the reserve list.

18On the same date, Mr Galocha submitted a request to the Selection Committee to review that decision. He pointed out that no written test had been held and he asked that the outcome of the selection made solely on the basis of the oral test be annulled and that a written test be held before the Selection Committee took a final decision.

19On the same date, Mr Galocha lodged a complaint under Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), applicable to contract staff under Article 117 of the CEOS, with the authority empowered to conclude contracts of employment (‘the AECE’), namely the Director of Fusion for Energy. His complaint contained the same arguments and the same requests for annulment and for written tests to be held as those he had put to the Selection Committee.

20By email of 3 July 2015, the Selection Committee rejected Mr Galocha’s request for a review.

21The reserve lists drawn up on the basis of the outcome of the selection procedure at issue each contained the names of four successful candidates. Mr Galocha’s name was not among them.

22On 25 June 2015, one of the successful candidates on those lists received an offer of employment from Fusion for Energy. He started work on 1 August 2015 at Cadarache. On 10 July 2015, another of the successful candidates received an offer of employment from Fusion for Energy. He started work on 1 November 2015 at Cadarache.

Proceedings at first instance

23By application received at the Registry of the European Union Civil Service Tribunal on 18 August 2015, Mr Galocha brought an action in which he requested the Tribunal to:

–

annul the selection procedure for the posts of Cost Control Support Officer organised by Fusion for Energy under reference No F4E/CA/ST/FGIV/2015/001;

–

annul the reserve lists drawn up as a result of the selection procedure at issue;

–

annul the appointment of the applicants selected for those vacant posts and the entry into service of the candidates proposed by the Selection Committee and chosen by the director of Fusion for Energy;

–

recognise the merits of organising a new selection procedure for the posts of Cost Control Support Officer;

–

recognise that a written test forms an appropriate part of the new selection procedure for the posts of Cost Control Support Officer, and recognise the merits of organising it immediately in order to select applicants;

–

declare wrongful and void Fusion for Energy’s failure to organise a written test as part of selection procedures, as was provided for in the updated version of the Guide for Applicants;

–

order any measures that the Court deems appropriate in order to repeat the selection procedure in accordance with the rules laid down in the vacancy notice at issue and those set out in the Guide for Applicants referred to in that notice, the organisation of an oral test and a written test being compulsory, and

–

order Fusion for Energy to pay the costs.

24In accordance with Article 51(2) of the Rules of Procedure of the Civil Service Tribunal of 21 May 2014 ( OJ 2014 L 206, p. 1 ), notice was given in the Official Journal of the European Union of 5 October 2015 ( OJ 2015 C 328, p. 37 ) of the date on which the application was lodged, the defendant, the subject matter and description of the proceedings and the form of order sought by the applicant.

25By an application for interim measures, also lodged on 18 August 2015, Mr Galocha sought an order of the President of the Civil Service Tribunal suspending the operation of Fusion for Energy’s decisions relating to the appointment of Cost Control Support Officers and, in the alternative, in the event that those appointed had taken up their duties, suspending the performance of those duties.

26On 20 August 2015, the proceedings in the main action were suspended pursuant to the second sentence of Article 91(4) of the Staff Regulations pending a response to Mr Galocha’s complaint. The complaint was rejected on 30 September 2015.

27In his application for interim measures, Mr Galocha had claimed, inter alia, that, if the disputed appointments were annulled and a new selection procedure organised, the agents who had been appointed would have the advantage of the theoretical and practical knowledge acquired since their appointment in the course of their duties. According to Mr Galocha, there is also ‘a potential risk’ that, in the new selection procedure, Fusion for Energy would give the agents in question preferential treatment, as it would be advantageous to Fusion for Energy to recruit a candidate who had already acquired experience in the post to be filled.

28The application for interim measures was dismissed by an order of 1 October 2015, Galocha v Joint undertaking Fusion for Energy ( F‑117/15 R , EU:F:2015:114 ), and the costs were reserved. In that order, the President of the Civil Service Tribunal found that Mr Galocha’s plea in law alleging failure to comply with the vacancy notice at issue and with the Guide for Applicants was, ‘at first sight’, well-founded, and that a prima facie case therefore existed. In paragraph 30 of that order, the President noted that ‘the unlawfulness which is identified prima facie does not concern only [Mr Galocha’s] situation, but affects the selection procedure as a whole’.

29In that order, the President of the Civil Service Tribunal ruled as follows:

‘29

According to settled case-law, the decisions taken following a competition organised in order to create a reserve list are not such as to cause irreparable harm to a candidate who is disadvantaged by an irregularity occurring during that competition, since where, in the course of such a competition, a test is judged to be unlawful, a candidate’s rights are adequately protected if the selection board and the [Appointing Authority (‘AA’)] reconsider their decisions and seek a fair resolution for that candidate, and it is unnecessary to call the competition results into question in their entirety, or to annul the appointments made following the competition (order of 1 February 2007, Bligny v Commission, F‑142/06 R , EU:F:2007:20 , paragraph 24 , and the case-law cited).

30The case-law referred to in the preceding paragraph, however, concerns action taken following general competitions, as opposed to more limited selection tests such as that in which [Mr Galocha] participated. Moreover, although, in his application in the main proceedings, Mr Galocha requested the annulment of the reserve list and of the appointments made, it is clear from the facts of the case that the selection procedure at issue merely led to the creation of two reserve lists containing the names of a total of eight successful candidates, and to the appointment of one of those candidates, with a second appointment in progress at the time the present application was lodged. Furthermore, the unlawfulness identified prima facie does not concern only [Mr Galocha’s] situation, but affects the selection procedure as a whole. Therefore, the case-law [established by the order of 1 February 2007, Bligny v Commission ( F‑142/06 R , EU:F:2007:20 )], which is based on the principle of proportionality, does not apply here and cannot lead to the rejection of the application for a suspension of operation on grounds of lack of urgency.

31That being so, a body which recommences or resumes a selection procedure following a judgment annulling the appointments made as a result of that procedure cannot, in assessing the qualifications and merits of the candidates, take account of the experience those candidates have acquired carrying out the duties attaching to their annulled appointments. In such cases, the seniority and experience acquired by the successful candidates who are appointed, but whose appointments are subsequently annulled, is deemed never to have existed. Where the selection procedure is resumed, it is, on the other hand, incumbent on those bodies, when assessing the applicants’ merits, to ensure that they do not grant the interested parties an undue advantage. As regards the “potential risk” that the AECE might give preferential treatment to the agents appointed following the selection procedure at issue, it is a mere assertion and it cannot be presumed that the AECE would act unlawfully by taking into account the experience acquired by the candidates whose appointments have been annulled.’

30On 1 October 2015, the Civil Service Tribunal lifted the stay of the proceedings in the main action.

31Pursuant to Article 3 of Regulation (EU, Euratom) 2016/1192 of the European Parliament and of the Council of 6 July 2016 on the transfer to the General Court of jurisdiction at first instance in disputes between the European Union and its servants ( OJ 2016 L 200, p. 137 ), the present case was transferred to the General Court as it stood on 31 August 2016.

32In its defence, Fusion for Energy stated that only two applicants had concluded a contract with Fusion for Energy, the first having taken up his duties on 1 August 2015, and the second on 1 November 2015. It stated, moreover, that, as a result of the application for interim measures, it had decided to suspend appointments from the reserve lists pending a decision in the present case. In response to a request from the General Court, Fusion for Energy stated that there was only one reserve list divided into two parts, one concerning the applicants for Barcelona and the other concerning the applicants for Cadarache, and that the same successful candidates were included in both parts of the list.

33A hearing was held on 14 September 2017.

The judgment under appeal

34The General Court found that, in conducting its assessment of Mr Galocha and the other eligible applicants without having held a written test, the Selection Committee had not followed the procedure laid down in the vacancy notice at issue, whereas it was obliged to do so, even though there was an irregularity in the selection procedure at issue.

35Consequently, it annulled the Selection Committee’s decision not to include Mr Galocha’s name in the reserve lists for selection procedure F4E/CA/ST/FGIV/2015/001.

36As regards Mr Galocha’s heads of claim seeking the annulment of the reserve lists drawn up as a result of the selection procedure and the annulment of the decisions to appoint successful candidates from those lists, the General Court recalled, in paragraph 65 of the judgment under appeal, that, theoretically, Mr Galocha should be restored to the legal position he was in prior to the unlawful act committed by the Selection Committee.

37In paragraph 66 of the judgment under appeal, the General Court recalled that, where restoring the applicant to his previous legal position involves not only the annulment of an act addressed to the applicant and adversely affecting him, but also the annulment of subsequent acts relating to third parties and favourable to them, the annulment of those subsequent acts will be ordered only if it does not appear excessive, particularly in the light of the unlawful act committed, the interests of the third parties and the interests of the service (judgment of 31 March 2004, Girardot v Commission, T‑10/02 , EU:T:2004:94 , paragraph 85 ).

38As regards the interests of the third parties, the General Court also recalled, in paragraph 67 of the judgment under appeal, that, in the light of the principles of proportionality and the protection of legitimate expectations, account must be taken of their legitimate expectations, which may relate in particular to the inclusion of their name on the reserve list and their appointment to the post to be filled (judgment of 31 March 2004, Girardot v Commission, T‑10/02 , EU:T:2004:94 , paragraph 86 ) or, as the case may be, the decision to offer them employment.

39In paragraphs 68 and 69 of the judgment under appeal, the Court made the following assessment of the situation at issue:

‘68.

In the circumstances of the present case, the successful candidates whose names were included on the reserve lists, including those who received offers of employment from Fusion for Energy, cannot rely on legitimate expectations. The vacancy notice at issue provided that a written test would be held. The reserve lists were drawn up and the offers of employment sent out without those applicants having sat such a test.

69.Furthermore, given the nature of the irregularity, it also cannot be considered that annulment of the reserve lists and of the decisions appointing successful candidates from those lists would be excessive in the light of the interests of the service. First of all, the irregularity affected the assessment of all the applicants and cannot therefore be remedied by measures concerning only [Mr Galocha]. Secondly, the present selection procedure was only small in scale.’

40Accordingly, the Court upheld Mr Galocha’s heads of claim and annulled the reserve lists for selection procedure F4E/CA/ST/FGIV/2015/001 and Fusion for Energy’s decisions to appoint successful candidates from those reserve lists. It dismissed the action as to the remainder and ordered Fusion for Energy to pay the costs.

Form of order sought in the appeal

41By its appeal, Fusion for Energy submits that the Court of Justice should:

–

set aside the judgment under appeal in so far as, in that judgment, the General Court annulled the reserve lists for selection procedure F4E/CA/ST/FGIV/2015/001 and Fusion for Energy’s decisions to appoint the successful candidates from those reserve lists, and

–

in so far as, by its final judgment, the Court of Justice sets aside the judgment under appeal, order Mr Galocha to bear the costs of the appeal and the costs incurred at first instance.

42Mr Galocha, applicant at first instance, has not submitted a response to the appeal.

The appeal

43In support of its appeal, Fusion for Energy relies on a single ground of appeal alleging infringement of the principle of proportionality. It submits that the General Court wrongly annulled the reserve lists created as a result of the selection procedure at issue and the decisions to appoint persons from that reserve list.

The first part of the single ground of appeal

The appellant’s submissions

44By the first part of its single ground of appeal, Fusion for Energy claims that the General Court failed to comply with the principle of proportionality, laid down in the case-law, according to which, in a competition for the selection of officials, the annulment of all the results of a competition constitutes, in principle, an excessive penalty for the irregularity committed, irrespective of the nature of the irregularity and the extent to which it affects the results of the competition. By contrast, it is only where promotions are concerned that the EU Courts undertake a case-by-case examination.

45Fusion for Energy submits that such a principle should have been applied in the present case, given the similarity between the selection of officials and the selection of other agents. Those procedures pursue the same objective, in so far as they constitute the beginning of the relationship between the institution and the applicant, unlike a promotion decision, which does not alter the relationship between an official and his institution.

The findings of the Court

46As recalled by the Court, when deciding on the consequences arising from the annulment of a measure relating to the selection procedures for EU staff, the EU Courts must seek to reconcile the interests of candidates disadvantaged by an irregularity which occurred during that procedure with the interests of other candidates, as a result of which it must take into account not only the need to restore the injured candidates’ rights, but also the legitimate expectations of the candidates already selected (see, to that effect, judgments of 6 July 1993, Commission v Albani and Others, C‑242/90 P , EU:C:1993:284 , paragraph 14 , and of 26 March 2019, Spain v Parliament, C‑377/16 , EU:C:2019:249 , paragraph 83 ).

47In order to do so, the EU Courts must take into consideration the nature and effects of the irregularity in question and the various possible measures to reconcile the need to restore the rights of the injured applicant with the situation of third parties and the interests of the service. As was rightly held by the President of the Civil Service Tribunal in the proceedings for interim measures in the present case (order of 1 October 2015, Galocha v Joint undertaking Fusion for Energy, F‑117/15 R , EU:F:2015:114 , paragraph 30 ), the number of persons affected by the irregularity of the selection procedure and the number of successful candidates may be relevant factors in such an assessment.

48It is apparent from that case-law that the consequences of the annulment of a measure relating to the selection procedures for EU staff must be established taking into account the specific circumstances of each particular situation. It follows that there is no rule of law under which the results of competitions can never be annulled, because such annulment necessarily constitutes an excessive consequence for the irregularity committed.

49That conclusion is supported by the recent case-law of the Court, in particular by the case which gave rise to the judgment of 26 March 2019, Spain v Parliament ( C‑377/16 , EU:C:2019:249 , paragraph 86 ), by which the Court annulled not only a call for expressions of interest in driver positions because of the discriminatory conditions imposed on applicants in respect of their language skills, but also the database containing the names of the candidates for recruitment, because it could be considered to be tainted by the same discriminatory conditions.

50In the light of the foregoing, it must be held that the General Court’s annulment of all the results of the competition is not, in the circumstances of the present case, vitiated by an error of law.

51Consequently, the first part of the single ground of appeal raised by Fusion for Energy must be rejected as unfounded.

The second part of the single ground of appeal

The appellant’s submissions

52By the second part of its single ground of appeal, Fusion for Energy claims that the General Court erred in its characterisation of the nature of the unlawful act committed by Fusion for Energy when assessing the consequences of that unlawful act. Fusion for Energy states that all the participants in the selection procedure were treated identically, that the error had no impact on the selection criteria and that it was entitled to organise a selection procedure without a written test. There was therefore no substantive illegality – such as that referred to in the judgment of 27 November 2012, Italy v Commission ( C‑566/10 P , EU:C:2012:752 ) – justifying the annulment of subsequent acts concerning third parties.

53Fusion for Energy criticises the position taken by the General Court in paragraph 69 of the judgment under appeal, in that the Court held that the annulment of subsequent decisions was not an excessive measure, since the irregularity committed had affected the assessment of all the applicants. It claims that that irregularity may have had no effects on certain applicants, or have had both negative and positive effects. The circumstances are therefore not comparable with those of a competition annulled on account of an infringement of language rules favouring some applicants over others.

The findings of the Court

54In that regard, it should be recalled that the illegality of the selection procedure alleged against Fusion for Energy consists not of discrimination against the applicants in that procedure, but rather, as is clear from paragraph 46 of the judgment under appeal, of the fact that the Selection Committee did not follow the procedure laid down in the vacancy notice which it was required to observe.

55Moreover, Fusion for Energy has not shown that the General Court erred in law when it responded to the argument that Fusion for Energy was entitled to organise a selection procedure without a written test by stating, in paragraph 53 of the judgment under appeal, that it was the vacancy notice at issue that constituted the legal framework within which Fusion for Energy was to undertake consideration of the comparative merits of the applicants, and not the notice that it meant to publish or might have published.

56Moreover, as is apparent from paragraph 14 of the present judgment, Mr Galocha was invited, by email of 17 April 2015, to an interview organised with the aim of helping the members of the Selection Committee to assess his general presentation and motivation, his suitability to carry out the duties described under the ‘Responsibilities’ section of the vacancy notice in question, his specialist knowledge in the field in question, his capacity for expression in the working languages of Fusion for Energy and his ability to adjust to working in a multicultural environment. Those criteria correspond to the criteria for the oral test described in the Guide for Applicants, referred to in paragraph 10 of the present judgment.

57However, as recalled in paragraph 11 of the present judgment, it was stated in the Guide for Applicants that, in the written test, account would be taken of specific competencies for the vacant post to which the selection procedure related, the quality of the candidate’s writing style and presentation, and his general aptitudes and language abilities to the extent necessary for the performance of his duties.

58It follows from the foregoing that each test served a different purpose, so, since no written test took place, the applicants were assessed on the basis of only some of the factors to be taken into account in accordance with the Guide for Applicants.

59Therefore, Fusion for Energy’s criticism of paragraph 69 of the judgment under appeal cannot call into question the conclusion that the irregularity committed affected the assessment of all the applicants. The absence of effects, or the existence of negative or positive effects as a result of holding a written test, could have led to different applicants being selected from the reserve lists, or to those applicants being ranked differently.

60It follows that the second part of the single ground of appeal must be rejected as unfounded.

The third part of the single ground of appeal

The appellant’s submissions

61By the third part of its single ground of appeal, Fusion for Energy claims that the General Court failed properly to balance the interests of Mr Galocha, those of the candidates employed or on the reserve lists and those of the service. The judgment under appeal has no positive effect on Mr Galocha, since he has not sought damages and the General Court did not grant the request to organise a new selection procedure. By contrast, the judgment under appeal has negative effects on the third parties. The contracts concluded with some of those third parties would have to be terminated and the other applicants would be removed from the reserve lists.

62Fusion for Energy criticises the General Court for considering, in paragraph 68 of the judgment under appeal, that the successful candidates whose names were included on the reserve lists, including those who received offers of employment from Fusion for Energy, cannot rely on legitimate expectations, since the vacancy notice at issue stated that a written test would be held, and no such test had taken place before the offers of employment were sent.

63Such an argument, which is based on the fact that those applicants should have been aware of the unlawful act committed since they had not taken a written test, is contrary to case-law in which decisions favourable to third parties have not been annulled in circumstances in which the error committed by the administration was much more serious than that committed by Fusion for Energy. In that regard, Fusion for Energy cites the judgments of 5 June 1980, Oberthür v Commission ( 24/79 , EU:C:1980:145 ), and of 27 November 2012, Italy v Commission ( C‑566/10 P , EU:C:2012:752 ). Fusion for Energy submits that, in the present case, it infringed its own rules, namely the Guide for Applicants, and not rules of a higher rank in the hierarchy of norms which are more familiar to applicants, who would then be apprised of the existence of the illegality.

64As regards the interests of the service, Fusion for Energy submits that having to terminate the contract of an agent, who would then have to relocate to another Member State, clearly threatens to cause a deterioration in the social environment of the institution concerned.

The findings of the Court

65As is clear, in essence, from the case-law cited in paragraphs 46 and 47 of the present judgment, where restoring the applicant to his previous legal position involves the annulment of subsequent acts relating to third parties, the annulment of those subsequent acts will be ordered only if it does not appear excessive, particularly in the light of the nature of the unlawful act committed and the interests of the service. The principles of proportionality and the protection of legitimate expectations make it necessary to reconcile the interests of the victim of the unlawful act in having his rightful position restored with the interests of third parties, whose legal position may have led them to entertain legitimate expectations.

66In the present case, the General Court did not err in law when it held, in paragraph 68 of the judgment under appeal, that the successful candidates whose names were included on the reserve lists, including those who received offers of employment from Fusion for Energy, cannot rely on legitimate expectations, since the vacancy notice at issue stated that a written test would be held, whereas the reserve lists were drawn up and the offer of employment sent out without those candidates having sat such a test.

67Moreover, it should be pointed out that Mr Galocha had brought an action for annulment, of which the subject matter and the form of order sought were published in the Official Journal of the European Union of 5 October 2015 ( OJ 2015 C 328, p. 37 ), and an application for interim measures, which gave rise to the order of the President of the Civil Service Tribunal of 1 October 2015, Galocha v Joint undertaking Fusion for Energy ( F‑117/15 R , EU:F:2015:114 ), made prior to the date on which one of the successful candidates took up his duties, and in which the President of Civil Service Tribunal stated that ‘at first sight’ the plea in law raised by Mr Galocha, alleging failure to comply with the vacancy notice at issue and with the Guide for Applicants, was well-founded.

68The General Court took into consideration the interests of the service when it held, in paragraph 69 of the judgment under appeal, that annulment of the reserve lists and of the decisions appointing successful candidates from those lists cannot be considered an excessive consequence of the annulment of the selection procedure, since the irregularity at issue affected the assessment of all the applicants and cannot therefore be remedied by measures concerning only Mr Galocha. Moreover, the General Court took into account the very limited scale of the selection procedure, which suggests that resuming the selection procedure, or organising a new procedure, could be considered to be straightforward.

69As regards Fusion for Energy’s arguments relating to the absence of any positive effect of the judgment under appeal in favour of Mr Galocha, in so far as he had not made a claim for damages and the form of order he sought in respect of the organisation of a new selection procedure was rejected, the General Court did not err in law when it recalled, in paragraph 74 of that judgment, that, in an action brought under Article 270 TFEU and Article 91 of the Staff Regulations, the Courts of the European Union do not have jurisdiction to issue injunctions to the administration (see, to that effect, judgment of 9 August 1994, Parliament v Meskens, C‑412/92 P , EU:C:1994:308 , paragraph 71 ). However, the fact that the General Court could not, therefore, grant Mr Galocha’s request to organise a new selection procedure is not capable, in itself, of causing Mr Galocha to lose his interest in the annulment of the selection procedure in question.

70In that connection, it should be recalled, in so far as concerns the award of damages, that, according to settled case-law, under the second sentence of Article 91(1) of the Staff Regulations, the General Court 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 the circumstances of the case, to assess the damage suffered ex aequo et bono (see, inter alia, judgments of 5 June 1980, Oberthür v Commission, 24/79 , EU:C:1980:145 , paragraph 14 ; of 21 February 2008, Commission v Girardot, C‑348/06 P , EU:C:2008:107 , paragraph 58 ; and of 20 May 2010, Gogos v Commission, C‑583/08 P , EU:C:2010:287 , paragraph 44 ).

71However, it is apparent from the submissions lodged by Mr Galocha that he was not pursuing a claim for damages, but seeking the annulment of the results of the selection procedure so that he would have the opportunity to participate in the procedure when it was restarted or resumed. Moreover, by annulling, first, the decision not to include Mr Galocha’s name in the reserve lists and, secondly, both the reserve lists themselves and the decisions to appoint successful candidates from those lists, the General Court held implicitly that, in the present case, it was appropriate to restore Mr Galocha to the legal position he was in before the unlawful act, rather than to award him damages.

72As regards the two applicants on the reserve lists, if the appellant had restarted or resumed the selection procedure in accordance with the vacancy notice, those applicants would have had the opportunity to participate in it. As regards the candidates employed by the appellant, it is noteworthy that although, under the first paragraph of Article 60 of the Statute of the Court of Justice, an appeal does not have suspensory effect, the appellant did not apply for suspension of operation of the decision of the General Court. Moreover, as stated in paragraph 68 of the present judgment, the successful candidates cannot, in the present case, rely on legitimate expectations, which are of particular relevance in the assessment of the interests of third parties. In any event, the first two contracts, one of which started on 1 August 2015 and the other on 1 November 2015, were of a non-renewable term of three years. Accordingly, the part of the ground of appeal relating to the protection of the two successful candidates employed by the appellant is no longer relevant.

73It follows from all the foregoing that the General Court did not err in law when it determined the interests to take into consideration, weighed those interests against each other, concluded that the decision to annul the reserve lists for the selection procedure and the decisions of Fusion for Energy to employ successful candidates from those reserve lists did not constitute an excessive consequence of the annulment of the selection procedure and decided to uphold Mr Galocha’s second and third heads of claim.

74It follows that the third part of the single ground of appeal must be rejected as unfounded.

75Since the single ground of appeal is unfounded, the appeal must be dismissed.

Costs

76In accordance with the first paragraph of Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to costs. Under Article 138(1) of those rules, applicable to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

77Since Mr Galocha has not submitted a response, Fusion for Energy must bear its own costs.

On those grounds, the Court (First Chamber) hereby:

1.Dismisses the appeal;

2.Orders the European Joint Undertaking for ITER and the Development of Fusion Energy to bear its own costs.

[Signatures]

( *1 ) Language of the case: Spanish.