Barata v Parliament (Civil service - Officials - Promotion - Judgment) [2018] EUECJ T-854/16 (20 November 2018)

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(Civil service — Officials — Promotion — 2015 promotion exercise — Certification procedure — Exclusion of the applicant from the final list of officials authorised to take part in the training programme — Article 45a of the Staff Regulations — Obligation to state reasons — Manifest error of assessment — Equal treatment — Rights of defence)

João Miguel Barata, official of the European Parliament, residing in Evere (Belgium), represented by G. Pandey and D. Rovetta, lawyers, and by J. Grayston, Solicitor,

European Parliament, represented by D. Nessaf and Í. Ní Riagáin Düro, acting as Agents,

APPLICATION under Article 270 TFEU seeking annulment of (i) the decision of the Parliament of 29 January 2016 and of the confirmatory decision of 29 March 2016 not to include the applicant in the list of officials authorised to take part in the 2015 training programme under the 2015 certification exercise, (ii) the decision dismissing the complaint of 25 August 2016, (iii) the notice of Internal Competition 2015/023, distributed to staff on 18 September 2015, and (iv) the draft list of officials selected to take part in the training programme in question.

composed of M. Prek, President, E. Buttigieg and F. Schalin (Rapporteur), Judges,

having regard to the written part of the procedure and further to the hearing on 5 March 2018,

1 On 18 September 2015, the notice of Internal Competition 2015/023 (‘the competition notice’) for the 2015 certification exercise was published within the European Parliament. The purpose of that certification procedure was to select officials in function group AST, from grade 5 and above, who were suitable for appointment to a post in function group AD. On 7 October 2015, the applicant, Mr João Miguel Barata, a Parliament official of grade AST 8, submitted his application.

2 By letter of 29 January 2016, the appointing authority informed the applicant that his name did not appear on the draft list of officials selected to take part in the certification programme, as he had scored 31.7 points, whereas the seven candidates selected had obtained a score of between 33.8 and 34.7 points.

3 Following an appeal lodged on 3 February 2016 by the applicant with the Joint Certification Procedure Committee (‘the COPAC’), the appointing authority informed the applicant by letter of 29 March 2016 that it was confirming the result that he had been informed of by the letter of 29 January 2016 (the letters of 29 January and 29 March 2016 together referred to as the ‘contested decisions’).

4 On 27 April 2016, the applicant lodged a complaint under Article 90(2) of the Staff Regulations of Officials of the European Union.

5 By letter of 25 August 2016 (‘the decision rejecting the complaint’), the Secretary-General of the Parliament, in his capacity as appointing authority, revised the result the applicant had obtained as a result of errors in assessing the ‘adaptability’ and ‘management duties’ criteria included in the marking scheme, bringing his result to 31.9 points. However, the Secretary-General confirmed the decision not to include the applicant’s name in the list of officials selected, as that new result was still insufficient to call that decision into question. The decision rejecting the complaint was sent by registered letter with acknowledgement of receipt and was received by the applicant on 30 August 2016.

6 On 5 December 2016, the applicant brought the present action for annulment of the contested decisions, confirmed by the decision rejecting the complaint, informing him of the non-inclusion of his name in the list of officials selected to take part in the 2015 certification exercise.

7 By application lodged at the Court Registry on 5 December 2016, the applicant brought the present action, including, in accordance with Article 54 et seq. of the Rules of Procedure of the General Court, a request that measures of organisation of procedure or of inquiry be ordered at the beginning of the present proceedings in order to obtain a copy of the COPAC’s administrative file and detailed minutes of the meeting of 1 March 2016 regarding the 2015 certification procedure announced in the competition notice.

8 The defence, the reply and the rejoinder were lodged at the General Court Registry on 24 February, 10 May, and 3 July 2017 respectively.

– annul the contested decisions, together with the decision rejecting the complaint;

– annul the competition notice and annul in its entirety the draft list of officials selected to take part in the training programme in question (‘the second head of claim’);

– dismiss the main action as inadmissible in part and, in any event, as unfounded;

– order the applicant to pay the costs in their entirety, including the costs incurred by the Parliament.

11 In support of the action, the applicant relies on five pleas in law which themselves comprise a number of complaints. By the first plea in law, the applicant puts forward the following complaints: a complaint alleging manifest errors of assessment, a complaint alleging failure to state reasons and, in essence, a complaint alleging a breach of the principle of equal treatment. By the second plea in law, the applicant puts forward the following complaints: a complaint alleging infringement of the principle of effective judicial protection, a complaint alleging infringement of his rights of defence and a complaint alleging infringement of the right to be heard and of Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’), as well as a complaint alleging illegality of Article 90 of the Staff Regulations pursuant to Article 277 TFEU. In the third plea in law, the applicant relies on the lack of competence of the COPAC, infringement of the competition notice, infringement of Article 30 of the Staff Regulations read in conjunction with Annex III thereto, and failure to observe the principle of sound administration; In the fourth plea in law, the applicant alleges failure to observe the principles of proportionality and non-discrimination. In the fifth plea in law, the applicant alleges breach of the notice of competition circulated among the staff, failure to observe the principles of sound administration, legitimate expectations and equal treatment.

12 The Parliament contends that the first plea is partially inadmissible and the second to fifth pleas are inadmissible. It also contends that the second head of claim is inadmissible.

13 First, the Parliament contends that some of the complaints raised in the pleas in law referred to in paragraph 11 above and the second head of claim were not raised in the complaint and are therefore inadmissible before the Court. Secondly, it contends that certain complaints put forward by the applicant are inadmissible pursuant to Article 76(d) of the Rules of Procedure.

14 The applicant submits, in essence, that he is not at all obliged to extensively raise all of his pleas in law at the Article 90(2) Staff Regulation complaint stage, and that some of the grounds of challenge raised may even emerge implicitly from that complaint, and may be drafted ‘in a short and non-specialised manner’. In that regard, one should take into account the fact that usually at the Article 90(2) Staff Regulation complaint stage, officers of the European Institutions draft the complaints alone without the benefit of external lawyers. The same applies to the second head of claim which, it is alleged, follows implicitly from the complaint in so far as the list of selected officials would have to be amended if the appeal were to be allowed.

15 It should first be recalled that the rule of correspondence requires that, for a complaint brought before the Courts of the European Union to be admissible, it must have already been raised in the pre-litigation procedure, thus enabling the appointing authority to know in sufficient detail the criticisms made of the contested decision (see judgment of 7 July 2004, Schmitt v EAR, T‑175/03, EU:T:2004:214, paragraph 42 and the case-law cited).

16 That rule is justified by the very purpose of the pre-litigation procedure, which is to allow for an amicable settlement of disputes arising between officials and the administration (judgments of 14 March 1989, Del Amo Martinez v Parliament, 133/88, EU:C:1989:124, paragraph 9, and of 29 March 1990, Alexandrakis v Commission, T‑57/89, EU:T:1990:25, paragraph 8). The appointing authority must therefore have been clearly informed of the complaints raised by the applicant in order to be in a position to offer him an amicable settlement.

17 It follows that, in actions brought by officials, claims before the Courts of the European Union may contain only heads of claim based on the same matters as those raised in the complaint, although those heads of claim may be developed before the Courts of the European Union by the presentation of pleas in law and arguments which, whilst not necessarily appearing in the complaint, are closely linked to it (judgments of 20 May 1987, Geist v Commission, 242/85, EU:C:1987:234, paragraph 9; of 26 January 1989, Koutchoumoff v Commission, 224/87, EU:C:1989:38, paragraph 10; and of 14 March 1989, Del Amo Martinez v Parliament, 133/88, EU:C:1989:124, paragraph 10).

18 It should be stressed that the latter requirement should not have the effect of binding, strictly and absolutely, the judicial stage of the proceedings, provided that the claims submitted at the latter stage change neither the cause nor the object of the complaint (judgments of 1 July 1976, Sergy v Commission, 58/75, EU:C:1976:102, paragraph 33, and of 19 November 1998, Parliament v Gaspari, C‑316/97 P, EU:C:1998:558, paragraph 17). It should also be noted that, since the pre-litigation procedure is informal in character and those concerned act, in general, without the assistance of a lawyer at that stage, the administration must not interpret the complaints restrictively but must, on the contrary, examine them with an open mind (judgment of 25 October 2013, Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, paragraph 76).

19 However, the fact remains that, according to established case-law, in order for the pre-litigation procedure provided for in Article 91(2) of the Staff Regulations to be capable of achieving its objective, it is necessary for the appointing authority to be in a position to know in sufficient detail the criticisms which those concerned make of the contested decision (see judgment of 25 October 2013, Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, paragraph 77 and the case-law cited).

20 It should also be recalled that, under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, which is applicable to the procedure before the General Court in accordance with the first paragraph of Article 53 thereof, and Article 76(d) of the Rules of Procedure, all applications must contain the subject matter of the dispute and a summary of the pleas in law relied on. That summary must nevertheless be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any other supporting information. Accordingly, it is necessary, in order for an action to be admissible, that the basic legal and factual particulars relied on be indicated coherently and intelligibly in the application itself, even if only in summary form.

21 It is in the light of those principles that the pleas in law, complaints and the heads of claim that the Parliament contends are inadmissible should be examined.

The admissibility of the complaint alleging breach of the principle of equal treatment

22 In the first plea in law, the applicant complains that the Parliament failed to observe the principle of equal treatment. The applicant claims that he was discriminated against because he has worked in several EU institutions — namely the Council of the European Union, the European Commission and now the Parliament — and not exclusively within the Parliament. The applicant thus asks the Court to adopt measures of organisation of procedure in order to determine how many candidates who have not worked mainly within the Parliament, and who have thus worked in those other EU institutions, have been authorised by the Parliament to take part in the certification procedure in recent years.

23 The Parliament contends that the allegation raised by the applicant, that it has breached the principle of equal treatment, is not substantiated. It follows that that allegation is not admissible in so far as it does not meet the requirements of Article 76(d) of the Rules of Procedure.

24 It must be held, contrary to the Parliament’s contention, that the applicant’s allegation in that regard is admissible. In accordance with Article 76(d) of the Rules of Procedure, the applicant explains in a sufficiently clear and precise manner how he claims that the assessment of his professional experience demonstrates discrimination against him in the light of the situation of other candidates.

The admissibility of the second plea in law, alleging failure to observe the principle of effective judicial protection, breach of the rights of the defence and of the applicant’s right to be heard, infringement of Article 41 of the Charter, and a plea of illegality of Article 90 of the Staff Regulations under Article 277 TFEU

25 In the first place, the applicant considers that the Parliament failed to observe the principle of sound administration, as referred to in the second indent of Article 41(2) of the Charter, by refusing him access to documents that are crucial for understanding the assessment of his staff reports.

26 In the second place, the Parliament should have given him the opportunity to submit his observations on the possible rejection of the complaint before it was rejected. By failing to give him that opportunity, the Parliament infringed the first indent of Article 41(2) of the Charter, which provides that every person has the right to be heard before any individual measure which would affect him or her adversely is taken.

27 In the third place, the applicant raises an objection of illegality in respect of Article 90(2) of the Staff Regulations, in so far as it does not allow him to be heard prior to the adoption of a decision to reject the complaint.

28 As regards the allegation that the applicant did not have access to the documents before the Parliament, it should be noted that, in the complaint, the applicant states that he requested access to certain documents, but that that was refused. However, he does not allege any consequences of that refusal. Even if the complaint were interpreted with an open mind, it is not possible to understand that complaint as meaning that the applicant implicitly alleges against the Parliament an infringement of the second subparagraph of Article 41(2) of the Charter. That complaint must therefore be dismissed as inadmissible under the rule of correspondence within the meaning of the case-law cited in paragraph 15 above.

29 As regards the right to be heard, it must be held that, as the applicant claims, any breach of the rights of the defence can only be the result of a defect in the administrative procedure which only materialises when that procedure has ended, namely by the decision on the complaint which makes the contested act final. In those circumstances, the applicant could only raise such a breach before the General Court, thereby rendering the complaint admissible. A contrary approach would deprive the applicant of effective judicial protection.

30 With regard to the plea of inadmissibility, based on the lack of consistency between the content of the complaint and that of the application because the complaint does not mention the plea of illegality under Article 90(2) of the Staff Regulations, it should be recalled that considerations relating, respectively, to the purpose of the pre-litigation procedure, the nature of the plea of illegality and the principle of effective judicial protection preclude a plea of illegality raised for the first time in an action being declared inadmissible on the sole ground that it was not raised in the complaint that preceded the action (judgment of 12 March 2014, CR v Parliament, F‑128/12, EU:F:2014:38, paragraph 32; see also, to that effect, judgment of 27 October 2016, ECB v Cerafogli T‑787/14 P, EU:T:2016:633, paragraphs 67 and 68).

31 Only the European Union judicature is entitled, under the terms of Article 277 TFEU, to rule that an act of general application is unlawful and to draw the consequences of the inapplicability which results from this with regard to the act of individual scope contested before it. The institution or agency to which the complaint is made is not afforded such jurisdiction by the Treaties. Consequently, in the context of the pre-litigation procedure, the administration cannot effectively rule on a plea of illegality (see, to that effect, judgment of 2 March 2017, DI v EASO, T‑730/15 P, not published, EU:T:2017:138, paragraph 51) since, so long as the invalidity of acts of general application, in respect of which a plea of illegality may be raised, has not been declared by a competent court, all persons subject to EU law are obliged to acknowledge that those acts are fully effective (see judgment of 2 March 2017, DI v EASO, T‑730/15 P, not published, EU:T:2017:138, paragraph 51 and the case-law cited; see also, to that effect, judgment of 27 October 2016, ECB v Cerafogli T‑787/14 P, EU:T:2016:633, paragraphs 67 and 68).

32 It thus appears from the case-law that the Parliament cannot criticise the applicant for failing to mention a plea of illegality in respect of which the appointing authority did not have the competence to rule. Consequently, that plea of inadmissibility cannot be upheld.

33 Finally, it should be pointed out that the applicant does not explain how the Parliament infringed his right to effective judicial protection. The complaint put forward in that respect must therefore be dismissed as inadmissible pursuant to Article 76(d) of the Rules of Procedure.

The admissibility of the third plea in law, alleging lack of competence of the COPAC, breach of the competition notice, infringement of Article 30 of the Staff Regulations read in conjunction with Annex III thereto, and failure to observe the principle of sound administration

34 The applicant submits that the appointing authority did not perform its tasks as far as the choice, evaluation and assessment of the questions at issue were concerned. According to the applicant, in the light of all the documents in his possession, the COPAC and the appointing authority committed manifest errors when assessing the facts.

35 For the applicant, it is clear that the choice relating to the evaluation of his professional experience was made unlawfully, thereby rendering the whole of the 2015 certification procedure unlawful. Consequently, the COPAC and the appointing authority should have examined and annulled the decision rejecting the applicant’s application on the ground that that evaluation was unlawful. Their failure to do so, it is claimed, constitutes a manifest error of assessment and a breach of both the Staff Regulations and the competition notice.

36 Since all the applicants were wrongly assessed, and most of them were eliminated, the applicant submits not only that the rejection of his application is unlawful, but also that the list drawn up within the framework of that procedure is unlawful. That list is also based on an unlawful procedure and should therefore be annulled.

37 The applicant asks the Court to order the General Secretariat of the Parliament and the COPAC to produce the relevant documents used for making the above assessment in the present proceedings, and reserves the right to raise further pleas for annulment on the basis of those documents.

38 It should be noted that the applicant’s complaint challenging the contested decisions does not refer to a breach of the principle of sound administration, a breach of the competition notice or the lack of competence of the COPAC. That complaint only refers to a manifest error of assessment allegedly committed by the appointing authority. However, the objections raised in the third plea cannot therefore be closely linked to a manifest error of assessment. Moreover, the applicant does not claim that this is the case, but refers to the fact that he was not represented by a lawyer during the administrative procedure. It follows that the objections put forward in the third plea must be rejected as inadmissible under the case-law cited in paragraph 15 above.

39 More specifically, with regard to the complaint alleging lack of competence of the COPAC, the applicant merely set this out in the summary of the application, but did not elaborate on it. Examination of the competence of the authority issuing a measure is a matter of public interest and as such must be raised by the Court of its own motion (judgment of 14 December 2016, SV Capital v EBA, C‑577/15 P, EU:C:2016:947, paragraph 32). However, it should be noted that Article 4(4) to (6) of the general implementing provisions (‘the GIPs’) provides that the COPAC may hear an action brought by an official whose name does not appear on the draft list of officials selected to participate in the training programme and then deliver an opinion on that action. In the present case, it is apparent from the file that the COPAC, having been addressed by the applicant, acted in accordance with that provision. It follows that the complaint alleging the incompetence of the COPAC must be dismissed as unfounded.

The admissibility of the fourth plea in law, alleging failure to observe the principles of proportionality and non-discrimination

40 According to the applicant, the Parliament committed multiple manifest errors of assessment regarding his skills relating to the nature of his professional experience, as compared with that of other candidates who took part in the 2015 certification procedure. Consequently, the applicant considers that there are ‘reasons to believe’ that he has been the victim of discrimination, since the COPAC clearly did not observe the principle of equal treatment referred to in Articles 1d and 4 of the Staff Regulations.

41 The applicant considers that he has provided sufficient evidence to establish that the COPAC committed manifest errors of assessment and infringed the principle of proportionality in the exercise of its decision-making power. The same applies to the Parliament’s unfavourable response to his complaint lodged under Article 90 of the Staff Regulations, endorsing the position of the COPAC.

42 It should be noted, in accordance with the case-law cited in paragraph 15 above, that the fourth plea must be dismissed as inadmissible in so far as none of the objections put forward were raised in the complaint and that there is no close link between that complaint and those objections.

43 Moreover, the alleged infringement of the principle of non-discrimination is not developed by the applicant in the context of the application. The applicant merely refers to the annexes to the complaint. In order to guarantee legal certainty and the sound administration of justice, it is appropriate, in order for a plea to be declared admissible, that the essential matters of law and fact relied on are stated, at least in summary form, coherently and intelligibly in the application itself. Whilst the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which, in accordance with the abovementioned provisions, must appear in the application. The Court cannot substitute its own assessment for that of the applicant and attempt to seek and identify in the annexes the grounds on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function (see, to that effect, judgment of 14 September 2011, Tegebauer v Parliament, T‑308/07, not published, EU:T:2011:466, paragraph 18).

44 It follows that the complaint alleging a breach of the principle of non-discrimination, as developed in the fourth plea in law, must be dismissed as inadmissible pursuant to Article 76(b) of the Rules of Procedure.

The admissibility of the fifth plea in law, alleging breach of the competition notice, failure to observe the principle of sound administration, the principle of the protection of legitimate expectations and the principle of equal treatment

45 According to the applicant, the numerous inconsistencies concerning the assessment process listed in the complaint, the fact that no proper review was carried out by the Certification Secretariat and that his 2004 staff report was not taken into account show that neither the COPAC nor the appointing authority properly discharged the burden of proof imposed on them under Article 45 of the Staff Regulations. Likewise, in the absence of a response, in the decision rejecting the complaint, the appointing authority endorsed the breach of the applicant’s right to sound administration, committed a manifest error of assessment and unlawfully treated the applicant differently from the other candidates.

46 It should be noted, in accordance with the case-law cited in paragraph 15 above, that the fifth plea in law must be dismissed as inadmissible in so far as none of the objections put forward were raised in the complaint and that there is no close link between that complaint and those objections.

48 As is apparent from paragraph 13 above, the Parliament contends that the second head of claim is inadmissible on the ground that it was not raised at the complaint stage. It also submits that, even if the action were to be successful, this would not result in the annulment of the competition notice and the list of officials selected to participate in the training programme in question.

49 The applicant submits that the second head of claim follows implicitly from the complaint in so far as the annulment of the competition notice and of the list of officials selected to participate in the certification procedure will, by definition, result from any annulment of the contested decisions.

50 It should be noted that the complaint does not contain a request to annul the competition notice and the list of candidates selected to participate in the certification programme. Even an open-minded interpretation of the complaint would not enable such a request to be identified. It should also be noted that the annulment of the contested decisions does not necessarily imply that the list of selected officials is annulled (see, to that effect, judgment of 27 November 2012, Italy v Commission, C‑566/10 P, EU:C:2012:752, paragraph 103).

51 It follows that the second head of claim must be rejected as inadmissible under the case-law cited in paragraph 15 above.

52 For reasons of clarity, the examination of the merits of the first plea should be considered in three parts: the first, alleging manifest errors of assessment, the second, alleging a breach of the principle of equal treatment and the third, alleging a breach of the obligation to state reasons.

– The first part of the first plea in law, alleging manifest errors of assessment

53 The first part is divided into two complaints: the first alleging the Parliament’s failure to take the staff reports of 2004 and 2005 into account, and the second alleging manifest errors in the assessment of the criteria for evaluating the applicant’s professional experience.

54 With regard to the first complaint, the applicant complains that the Parliament did not take his 2004 staff report into consideration, which must be read together with the 2005 staff report given that one supplements the other.

55 The Parliament contends that the staff reports of 2004 and 2005 were, in fact, both taken into account in the assessment of the applicant’s application. The appointing authority noted that the 2005 staff report, as is apparent from that report, constituted a restatement of the 2004 staff report. The Parliament contends, in that regard, that it is apparent from the file consulted by the applicant on 5 April 2016 that he even initialled all the staff reports consulted, including the 2004 staff report.

56 The Parliament also argues that the applicant received 0.1 points for the year 2005 under the ‘level of responsibility’ criterion. However, the 2005 staff report does not contain any comments from the assessors concerning that criterion. Such an allocation of points would thus not have been possible unless the 2004 staff report — which contains comments made by the applicant’s assessor in that regard — had been taken into account. The applicant’s argument should, accordingly, be rejected as unfounded.

57 In the first place, it should be noted that, since the 2005 staff report is only three pages long, it is significantly shorter than the applicant’s other staff reports and that the title of the report states that it is the ‘[r]econduction No 88507’. It should also be noted that, as the Parliament contends, the appointing authority awarded 0.1 points to the 2005 staff report under the ‘level of responsibility’ criterion, whereas the latter report did not contain any comments in that regard from the assessors, unlike the 2004 staff report. In view of those findings, there is no reason to call into question the arguments that the appointing authority had actually taken into consideration the 2004 staff report.

58 In the second place, it must be considered that the applicant relies on the minutes of 5 April 2016 regarding the consultation of his 2015 certification application file and on his personal assessment form to call into question the actual consideration of his 2004 staff report. However, it should be pointed out that the consultation of the application file by the applicant covered all the staff reports taken into account in the context of the 2015 certification exercise. It is apparent from the file that those minutes were completed and signed by the applicant himself. Accordingly, the latter counted the number of pages in the file and added the following statement: ‘Staff reports 2005-2014: 92 pages’.

59 However, as the Parliament contends, it should be noted that this reference to ‘Staff reports 2005-2014: 92 pages’ is the result of a material error. An examination of the file shows that the 2004 staff report was included in the applicant’s application. Furthermore, as is apparent from the file consulted as a whole, the applicant initialled all the staff reports, including the 2004 staff report. It follows that there is no evidence to suggest that the appointing authority did not take into account the 2004 and 2005 staff reports as a whole when assessing the applicant’s professional experience.

60 In the light of the foregoing considerations, the complaint alleging a manifest error of assessment, relating to the alleged failure to take into consideration the 2004 staff report in conjunction with the 2005 staff report, must be dismissed as unfounded.

61 With regard to the second complaint, the applicant submits, in essence, that the Parliament committed manifest errors when assessing his staff reports in relation to the criteria set out in sections (b) (nature of experience) and (c) (professional experience acquired in the institutions) of the marking scheme. More specifically, the appointing authority committed manifest errors when assessing the applicant against the criteria of use of multiple skills, adaptability, management duties, level of responsibility and duties performed outside normal duties.

62 The applicant complains that the Parliament failed to take some important professional experience into account when assessing the above criteria. He submits that a holistic reading of the assessment carried out by the COPAC and endorsed by the appointing authority shows that some of his qualities and duties were systematically selected, while others were wrongly omitted, without an adequate explanation of the reasons for their omission.

63 The applicant claims, in essence, that the appointing authority made discriminatory assessments so far as concerns the scores for the ‘use of multiple skills’ and ‘management duties’ criteria. That discrimination is reflected, in particular, in the fact that some types of experience or positions (head of administration), for which more points should be awarded by reason of their importance, received the same scores as other, less important types of experience or positions (administrator).

64 The Parliament emphasises, in essence, that the assessment of all the criteria was carried out on the basis of predefined criteria, specifically provided for in the call for applications, with a view to evaluating the applicants’ potential to carry out an administrator’s function. Accordingly, as regards the criteria of use of multiple skills, adaptability, management duties, level of responsibility and duties performed outside normal duties, the Parliament explains how that potential was assessed and argues, in essence, that the applicant is not demonstrating the existence of any manifest error of assessment, but is substituting his own assessment for that of the appointing authority.

65 According to settled case-law, the appointing authority has a wide discretion in assessing the merits to be taken into consideration in a decision on promotion under Article 45 of the Staff Regulations, and review by the European Union judicature must be confined to determining whether, regard being had to the various considerations which have influenced the administration in making its assessment, it has remained within reasonable bounds and has not used its power in a manifestly incorrect way. The European Union judicature cannot therefore substitute its assessment of the qualifications and merits of officials for that of the appointing authority. It must confine itself to verifying that the consideration of comparative merits provided for in Article 45(1) of the Staff Regulations was conducted objectively and correctly in the light of the details provided by the appointing authority on the promotion procedure prior to that consideration. Consequently, it is not for the European Union judicature to review the merits of the administration’s appraisal of the professional abilities of an official where it involves complex value judgments which, by their very nature, are not amenable to objective verification (see judgments of 16 May 2013, Canga Fano v Council, T‑281/11 P, EU:T:2013:252, paragraph 41 and the case-law cited, and of 15 January 2014, Stols v Council, T‑95/12 P, EU:T:2014:3, paragraphs 29 to 31 and the case-law cited).

66 The discretion thereby conferred on the administration is, however, circumscribed by the need to undertake a consideration of comparative merits with care and impartiality, in the interests of the service and in accordance with the principle of equal treatment. While the appointing authority has the power under the Staff Regulations to conduct that consideration according to the procedure or method it deems most appropriate, in practice it must be undertaken on a basis of equality, using comparable sources of information (see judgment of 16 May 2013, Canga Fano v Council, T‑281/11 P, EU:T:2013:252, paragraph 42 and the case-law cited).

67 Finally, the General Court recalls that, in the context of the review by the European Union judicature of the promotion choices made by the administration, an error is manifest where it is easily recognisable and can be readily detected, in the light of the criteria to which the legislature intended decisions on promotion to be subject (judgment of 16 May 2013, Canga Fano v Council, T‑281/11 P, EU:T:2013:252, paragraph 127).

68 As regards the criterion of use of multiple skills, the argument that the appointing authority did not take into consideration the 2005 staff report, in so far as it should have been read in conjunction with the 2004 staff report, must be rejected. It is apparent from the considerations set out in paragraphs 57 to 60 above that there is no evidence to suggest that the appointing authority has not taken those staff reports into consideration. Moreover, as regards the assessment of the experiences taken into consideration by the appointing authority, it falls within the broad discretion of the latter and the applicant has not demonstrated that the appointing authority committed a manifest error in that respect.

69 As regards the adaptability criterion, the applicant criticises the Parliament for failing to take into account the tasks he has carried out in various institutions. However, it appears from the case file and the decision rejecting the complaint that the appointing authority took into consideration his interinstitutional transfers of 2006 and 2009 by granting him, in that regard, a total of 0.4 points.

70 The fact that the appointing authority awarded points only to transfers that were positively assessed in the staff reports and not to transfers that were not so assessed does not constitute a manifest error of assessment.

71 As regards the criterion relating to management tasks, the applicant complains that the Parliament did not take into account his 2006 staff report, which contains the following entry (as do the 2007-2009 staff reports): ‘Title of post: Head of Administration — Imprest Account Holder’. However, it must be noted that the appointing authority granted the applicant 0.1 points per year for the years 2007 to 2009, in so far as those reports mention supervisory tasks under the heading ‘Team leader’ in the applicant’s job description, whereas the 2006 staff report refers to a post of ‘assistant’. It follows that the Parliament did not commit a manifest error of assessment by not awarding the applicant additional points for 2006. As regards the argument that the Parliament committed a manifest error of assessment with regard to the ‘level of responsibility’ criterion, it must be noted that the applicant does not put forward any arguments making it possible to determine what that error consists of. It should be noted, in that regard, that the appointing authority, within the framework of its discretionary power, awarded the applicant 0.1 points per year for the years 2005 to 2014. As the appointing authority explains in the decision rejecting the complaint, that award was made on the basis of evidence such as the analysis of complex files, the drafting of complex documents and the management of complex projects and taking initiatives. The applicant does not specify in what way that report is vitiated by a manifest error of assessment. In order to demonstrate a manifest error of assessment, the applicant relies solely on an alleged inconsistency of the assessment of that criterion with respect to previous certification exercises. However, as the Parliament points out, previous certification exercises cannot demonstrate the existence of a manifest error of assessment in the applicant’s current assessment.

72 Finally, with regard to the criterion relating to the ‘duties performed outside normal duties’, the applicant fails to indicate how the Parliament committed a manifest error of assessment. The fact that the appointing authority decided not to take into consideration the applicant’s work while performing his duties as Local Security Officer falls within the broad discretion of the appointing authority. The same applies to the applicant’s workload during the Portuguese Presidency of the European Union in 2007, which the appointing authority considered to be part of his duties and, therefore, did not constitute the performance of exceptional tasks. In that regard, it should be recalled that it is not for the General Court, within the meaning of the case-law cited in paragraph 65 above, to review the merits of that assessment, since such a review would amount to substituting its assessment for that of the appointing authority. It should also be noted that the appointing authority decided to award 0.1 points for the 2012 to 2014 staff reports, amounting to a total of 0.3 points.

73 In general, since the appointing authority has explained how it graded and selected certain experiences contained in the applicant’s staff reports, it cannot be accused of having granted the points in a discriminatory manner as claimed by the applicant. Under its broad discretionary power, the appointing authority may assess and grade the applicant’s professional experience and the General Court cannot substitute its assessment for that of the appointing authority, which, moreover, is not vitiated by a manifest error of assessment.

74 In view of all the above, the complaints based on a manifest error of assessment of the criteria for evaluating the applicant’s professional experience must be rejected and, consequently, the first part of the first plea in law in its entirety.

– The second part of the first plea in law, alleging an infringement of the principle of equal treatment

75 The applicant claims that the Parliament infringed the principle of equal treatment in that candidates who had a career path only within the Parliament were treated more favourably than he was, whereas he had an interinstitutional career path.

76 The Parliament stresses that the claims alleging a breach of the principle of equal treatment and discrimination are unfounded since several of the seven candidates selected in the context of the 2015 certification exercise have had an interinstitutional career path. It would therefore follow that the request for measures of organisation of procedure or measures of inquiry to request the Parliament to report the number of candidates who had an interinstitutional career path and who were selected in the context of the last certification exercises should be rejected as irrelevant.

77 It should be noted that the applicant does not substantiate his allegations of discrimination, but merely argues that he is ‘convinced’ that this is the case. In the absence of evidence, arguments based on possible discrimination must be rejected. The Parliament further maintains that, of the seven candidates selected as part of the 2015 certification exercise, several have pursued their careers in different institutions. There is no reason to call that assertion into question. Furthermore, even if it were assumed that all the successful candidates had pursued their careers in the Parliament only, that in itself cannot prove that this is discrimination. It follows that the request for measures of organisation of procedure to request the Parliament to report the number of candidates who pursued their careers in different institutions and who were selected in the context of the last certification exercises must be rejected as irrelevant.

78 In the light of the foregoing considerations, the second part of the first plea must be rejected as unfounded.

– The third part of the first plea in law, alleging infringement of the obligation to state reasons

79 The applicant complains that the Parliament infringed its obligation to provide a statement of reasons. According to him, the appointing authority did not explain why some of his qualities and duties, despite evidence and documents having been produced before the Parliament in that regard, had been completely disregarded, thus contradicting previous staff reports, including reports from other EU institutions. More specifically, the applicant complains that the Parliament failed to explain why it had not taken some types of experience into consideration. In the context of the third part of the first plea in law, the applicant states that the Parliament incorrectly assessed the facts and committed a manifest error of assessment ‘by disregarding the professional experience of the [a]pplicant as enshrined in the [a]pplicant’s 2004 evaluation report stating that: “(he) performed exclusively budget and financial tasks”’.

81 It should be recalled that, although the duty to state reasons is intended to enable the addressee of the measure to ascertain whether it is well founded and, accordingly, whether it is appropriate to bring proceedings before the General Court, and to enable the General Court to review the legality of that measure (see judgment of 10 September 2009, Behmer v Parliament, F‑124/07, EU:F:2009:104, paragraph 58 and the case-law cited), a statement of reasons for a decision is adequate if the decision was taken in a context which is known to the official concerned and which enables him to understand the scope of the measure which has been adopted in regard to him (judgment of 23 November 2010, Gheysens v Council, F‑8/10, EU:F:2010:151, paragraph 63). It is also apparent from the case-law that the statement of reasons for a decision to reject an application in the context of a certification procedure must be produced, at the latest, at the time the complaint against that decision is rejected (judgment of 2 December 2014, Migliore v Commission, F‑110/13, EU:F:2014:257, paragraph 77).

82 It should be noted, as a preliminary remark, that the applicant’s arguments, alleging breach of the obligation to state reasons, seek, in essence, to challenge the validity of the reasons for the decision rejecting the complaint and the contested decisions. However, according to the case-law, that question goes to the substantive legality of the appointing authority’s reasoning. Indeed, the fact that a statement of reasons is incorrect does not mean that it does not exist (see, to that effect, judgment of 8 July 2010, Sevenier v Commission, T‑368/09 P, EU:T:2010:300, paragraphs 24 and 25 and the case-law cited).

83 In the present case, it should also be noted that the appointing authority, in its decision rejecting the complaint, described the reason why it had taken some types of experience into account more than others. It should be noted that the appointing authority explained in the decision rejecting the complaint in a sufficiently clear manner the reasons why certain types of professional experience had received scores, and not others. That reasoning was sufficient to enable the applicant to challenge the merits of the contested decisions by bringing the present action and to enable the General Court to carry out its review of legality.

84 In the light of those considerations, this part of the first plea in law must be rejected, as must the first plea in law in its entirety.

The second plea in law alleging a breach of the rights of the defence and the plea of illegality under Article 90(2) of the Staff Regulations

85 According to the applicant, when the appointing authority took the decision to reject the complaint that he had presented under Article 90 of the Staff Regulations, it should have granted to him in advance the right to be heard and to lodge observations.

86 The applicant claims that if his rights of defence had been respected, he would have been able to try to convince the Parliament to review his file to ensure that it had all the documents it should have had in its possession and to point out all the inaccuracies concerning his evaluation. According to the applicant, this would have led to an ‘open and frank discussion’ with the Parliament which could have solved the matter at hand. The absence of such a mechanism to protect the rights of the defence in the Article 90 complaint system of the Staff Regulations deprived the applicant of such possibility.

87 That is why the applicant claims that the contested decisions and the decision rejecting the complaint should be annulled.

88 According to the Parliament, the complaint alleging breach of the applicant’s rights of the defence and the right to be heard must be rejected as unfounded. The applicant had the opportunity effectively to make known his views by lodging an appeal under Article 4(5) of the GIPs, which is consistent with Article 41 of the Charter.

89 With regard to the right to be heard before the decision to reject the complaint is taken, the Parliament stresses that the decision rejecting the complaint is not one of the contested decisions. The purpose of that decision, it contends, is to assess the compliance of the contested decisions with the legal framework. In that respect, the Parliament claims that the contested decisions were assessed in the light of the legal framework which is made up of the call for applications and the rules governing the certification procedure.

90 The Parliament also argues that, if the complaint alleging infringement of the applicant’s right to be heard were to be upheld, this would result in the extension of the deadline for a ‘superfluous step’ since the mechanism established in Article 90(2) of the Staff Regulations already permits officials to effectively make known their views and to present arguments against the administrative decision they are challenging.

91 It should be recalled that the rights of defence and the right to be heard as enshrined in Article 41 of the Charter are guaranteed by the GIPs, which provide, in Article 4(5), that ‘officials who have submitted applications but whose names do not appear on the draft list may lodge a duly reasoned appeal, accompanied by all requisite supporting documents, with the COPAC’.

92 With regard to the plea of illegality made under Article 90(2) of the Staff Regulations, it should be noted that the applicant refers to the arguments according to which he should have had the opportunity to comment on the draft negative decision before the decision rejecting the complaint was adopted.

93 However, it should be noted that, as the Parliament contends, the decision to reject the complaint does not constitute a definitive act adversely affecting him. In that context, the prior notification of a draft rejection of the complaint which confirms the contested decisions is not relevant from the point of view of the rights of the defence and the right to be heard. The complaint provided for in Article 90(2) of the Staff Regulations does not constitute an individual measure such as that referred to in the first paragraph of Article 41 of the Charter. The applicant was, in any event, by means of his complaint, in a position in which he could effectively make known his views.

94 As regards the complaint alleging infringement of the applicant’s rights of defence and right to be heard in so far as the Parliament did not communicate the draft negative decision to him before adopting the decision rejecting the complaint, it must be noted that such an obligation does not arise from Article 90(2) of the Staff Regulations, which governs the pre-contentious procedure.

95 In the light of all the foregoing considerations, the second plea in law alleging a breach of the rights of the defence and of illegality under Article 90(2) of the Staff Regulations must be dismissed as unfounded.

96 The applicant claims that the Court should order measures of organisation of procedure in order to obtain a copy of the COPAC’s administrative file and detailed minutes of the meeting of 1 March 2016 regarding the 2015 certification procedure announced in the competition notice.

97 In particular, the applicant considers that it would be useful for him and for the Court to be able to access the documents held by the COPAC and the Parliament concerning:

(b) the duties of the selection board with reference to point IV of the competition notice, as well as the comparative assessment and the decision regarding the candidate under assessment;

(c) the documents held by the COPAC concerning the meeting of 1 March 2016 on the selection of candidates invited to those tests.

98 The applicant considers that, in order to be able effectively to defend his rights, he would need to have had access to the abovementioned documents from the beginning of the present proceedings.

99 The applicant also considers that, in order to ascertain what really happened in the context of the abovementioned competition, it would be appropriate for the Court to order the chairman of the selection board and the file manager within the COPAC to give oral testimony during the proceedings.

100 The Parliament contends that the requests for measures of organisation of procedure and measures of inquiry must be rejected as unfounded.

101 As regards the appointment of the members of the COPAC and the tasks of that committee, these are detailed in the internal rules of 10 March 2006, adopted pursuant to Article 9(3) of the GIPs relating to the certification procedure, and are accessible to the applicant via the intranet of the Parliament.

102 With regard to the other documents — the applicant’s assessment sheet and the minutes of the COPAC meeting of 1 March 2016 — the Parliament contends that the applicant does not give any reasons to justify such a request. In addition, the Parliament recalls that Article 5 of the internal rules of the COPAC provides that the deliberations of that committee are confidential. Indeed, those deliberations concern comparative elements in the context of a selection procedure. They are therefore, by analogy with the proceedings of a selection board as referred to in Article 6 of Annex III to the Staff Regulations, covered by confidentiality. Consequently, the Parliament considers that the request for measures of organisation of procedure, in so far as it concerns those documents, must be rejected.

103 The Parliament notes the vagueness of the request for the chairman of the ‘selection board/jury’ and the file manager within the COPAC to be called as witnesses by means of measures of inquiry. The question arises as to whether, by the expression ‘selection board/jury’, the applicant was referring to the chairman of the COPAC. In any event, the Parliament does not consider this request to be necessary, as required in Article 93 of the Rules of Procedure. Indeed, the contested decision is based solely on the predefined criteria which are included in the marking scheme of the call for applications, which were thus known to the applicant.

104 It must be pointed out that assessment of the appropriateness of adopting measures of organisation of procedure or measures of inquiry is a matter for the court, not the parties and the latter may, if they see fit, challenge the choice made at first instance in the framework of an appeal (judgment of 12 May 2010, Commission v Meierhofer, T‑560/08 P, EU:T:2010:192, paragraph 61).

105 In the present case, the Court considers that it has sufficient information and, as can be seen from all the foregoing, was able to rule without ordering the measures of organisation of procedure requested by the applicant. Consequently those claims and, accordingly, the entire action must be dismissed.

106 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

107 Since the applicant has been unsuccessful, he must be ordered to pay the costs, as applied for by the Parliament.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Barata v Parliament (Civil service - Officials - Promotion - Judgment) [2018] EUECJ T-854/16 (20 November 2018) URL: http://www.bailii.org/eu/cases/EUECJ/2018/T85416.html Cite as: EU:T:2018:809, [2018] EUECJ T-854/16, ECLI:EU:T:2018:809

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