Barata v Parliament (Appeal - Rules of Procedure of the Court of Justice - Civil service - Order) [2019] EUECJ C-71/19P

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(Appeal — Article 181 of the Rules of Procedure of the Court of Justice — Civil service — Officials — 2015 certification procedure — Staff Regulations of Officials — Article 45a — Complaint — Rights of defence — Article 90(2))

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 30 January 2019,

João Miguel Barata, residing in Evere (Belgium), represented by G. Pandey and D. Rovetta, avocats, and by J. Grayston, Solicitor,

composed of K. Jürimäe, President of the Chamber, M. Vilaras (Rapporteur) and D. Šváby, Judges,

having decided, after hearing the Advocate General, to give a decision by reasoned order, in accordance with Article 181 of the Rules of Procedure of the Court,

1 By his appeal, the appellant, Mr João Miguel Barata, seeks to have set aside the judgment of the General Court of the European Union of 20 November 2018, Barata v Parliament (T‑854/16, not published, EU:T:2018:809; ‘the judgment under appeal’), by which it dismissed Mr Barata’s action seeking annulment, first, of the decision of the appointing authority of the European Parliament (‘the appointing authority’) of 29 January 2016 (‘the decision of 29 January 2016’), and of the appointing authority’s confirmatory decision of 29 March 2016 (‘the confirmatory decision’) not to include the appellant on the list of officials authorised to take part in the training programme in 2015 under the 2015 certification exercise, second, of the decision of 25 August 2016 rejecting the complaint (‘the decision rejecting the complaint’), third, of the notice of Internal Competition 2015/023 (‘Notice 2015/023’), distributed to staff on 18 September 2015, and, fourth, of the draft list of officials selected to take part in the training programme in question (together, ‘the contested acts’).

2 Article 1d of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) states:

‘1. In the application of these Staff Regulations, any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age, or sexual orientation shall be prohibited.

5. Where persons covered by these Staff Regulations, who consider themselves wronged because the principle of equal treatment as set out above has not been applied to them, establish facts from which it may be presumed that there has been direct or indirect discrimination, the onus shall be on the institution to prove that there has been no breach of the principle of equal treatment. This provision shall not apply in disciplinary proceedings.

‘1. By way of derogation from Article 5(3)(b) and (c), an official in function group AST may, from grade 5, be appointed to a post in function group AD, on condition that:

(a) he has been selected in accordance with the procedure laid down in paragraph 2 of this Article to take part in a compulsory training programme as set out in point (b) of this paragraph,

(b) he has completed a training programme defined by the Appointing Authority comprising a set of compulsory training modules, and

(c) he is on the list drawn up by the Appointing Authority of candidates who have passed an oral and written examination demonstrating that he has successfully taken part in the training programme mentioned under point (b) of this paragraph. The contents of this examination shall be determined in accordance with Article 7(2)(c) of Annex III.

2. The Appointing Authority shall draw up a draft list of AST officials selected to take part in the aforesaid training programme on the basis of the annual reports referred to in Article 43 and their level of education and training and taking account of the needs of the services. This draft shall be submitted to a joint committee for its opinion.

This committee may hear officials who have applied to take part in the aforesaid training programme, and representatives of the Appointing Authority. It shall, by a majority vote, deliver a reasoned opinion on the draft list proposed by the Appointing Authority. The Appointing Authority shall adopt the list of officials who are entitled to take part in the aforesaid training programme.’

‘Any person to whom these Staff Regulations apply may submit to the appointing authority a complaint against an act affecting him adversely, either where the said authority has taken a decision or where it has failed to adopt a measure prescribed by the Staff Regulations. …’

– the appointing authority has previously had a complaint submitted to it pursuant to Article 90(2) within the period prescribed therein, and

– the complaint has been rejected by express decision or by implied decision.’

6 The background to the dispute, as set out in paragraphs 1 to 6 of the judgment under appeal, may, for the purposes of the present proceedings, be summarised as follows.

7 On 18 September 2015, Notice 2015/023 for the 2015 certification exercise was published within the 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 under Article 45a of the Staff Regulations. On 7 October 2015, the appellant, Mr Barata, a Parliament official of grade AST 8, submitted his application.

8 By its decision of 29 January 2016, the appointing authority informed the appellant that his name did not appear on the draft list of officials selected to take part in the certification programme, as he had scored a lower number of points than each of the other seven selected candidates.

9 Following an appeal lodged on 3 February 2016 by the appellant with the Joint Certification Procedure Committee, the appointing authority informed Mr Barata by the confirmatory decision that the result of which he had been informed by letter of 29 January 2016 was confirmed.

10 On 26 April 2016, the appellant lodged a complaint under Article 90(2) of the Staff Regulations (‘the complaint of 26 April 2016’).

11 By the decision rejecting the complaint, the Secretary-General of the Parliament, acting as appointing authority, while revising the result obtained by the appellant, confirmed the decision not to include the appellant’s name on the list of selected officials, since that new result was still insufficient to justify Mr Barata’s selection.

12 By application lodged at the Registry of the General Court on 5 December 2016, the appellant brought an action for annulment of the contested acts, together with the decision rejecting the complaint.

13 It is apparent from paragraph 11 of the judgment under appeal that, in support of his action, the appellant raised five pleas in law, which in turn were divided into a number of complaints.

14 In the first place, in paragraphs 12 to 51 of the judgment under appeal, the General Court examined the admissibility, contested by the Parliament, of certain pleas and complaints raised by the appellant, and of the second head of claim submitted by him, seeking annulment of Notice 2015/023, as well as annulment of the draft list of officials selected to take part in the training programme concerned by that notice.

15 In that examination, the General Court held, first, in paragraph 24 of the judgment under appeal, that the complaint alleging breach of the principle of equal treatment, raised by the appellant in the first plea of his action, was admissible, contrary to what the Parliament contended.

16 Second, the General Court rejected as inadmissible the complaint, put forward by the appellant in his second plea, that the Parliament had failed to have regard to the principle of sound administration, referred to in the second subparagraph of Article 41(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’), by refusing him access to documents that were crucial for understanding the assessment of his staff reports.

17 In this respect, the General Court found, in paragraph 28 of the judgment under appeal, that, in the complaint of 26 April 2016, the appellant stated that he had requested access to certain documents and that he had been refused such access, without, however, drawing any conclusion from that refusal. The General Court therefore took the view that, even if that complaint were interpreted with an open mind, it was not possible to understand it as meaning that the appellant was implicitly alleging that the Parliament had infringed the second subparagraph of Article 41(2) of the Charter.

18 Consequently, pursuant to the rule of correspondence between a complaint and an action within the meaning of the first indent of Article 91(2) of the Staff Regulations (‘the rule of correspondence’), which requires that, for a complaint brought before the Courts of the European Union to be admissible, it must already have been raised in the pre-litigation procedure, the General Court rejected as inadmissible the complaint under the second subparagraph of Article 41(2) of the Charter, raised in the second plea of the action.

19 Third, in paragraphs 29 and 32 of the judgment under appeal respectively, the General Court found admissible, on the one hand, the appellant’s complaint alleging infringement of his right to be heard by the Parliament, raised in the second plea of the action and, on the other, the plea of illegality under Article 90(2) of the Staff Regulations, raised in that second plea.

20 Fourth, in paragraph 33 of the judgment under appeal, the General Court found that the appellant had not explained how the Parliament had infringed his right to effective judicial protection. Consequently, pursuant to Article 76(d) of its Rules of Procedure, according to which the application must contain the subject matter of the proceedings, the pleas in law and arguments relied on and a summary of those pleas in law, the General Court rejected as inadmissible the appellant’s complaint alleging infringement of the principle of effective judicial protection, raised in the second plea in law.

21 Fifth, in paragraph 38 of the judgment under appeal, the General Court found that the complaint of 26 April 2016 did not refer to the complaints raised in the third plea of the action, which were also not linked closely enough to the manifest error of assessment by the Parliament, alleged in the complaint of 26 April 2016. Accordingly, the General Court rejected those complaints as being inadmissible under the rule of correspondence.

22 Sixth, it is clear from paragraphs 43 and 44 of the judgment under appeal that, according to the General Court, the complaint alleging infringement of the principle of non-discrimination, put forward in the fourth plea of the action, was not developed in the application, the appellant having merely referred to the annexes to the complaint of 26 April 2016. The General Court accordingly rejected that complaint as inadmissible.

23 Seventh, it is apparent from paragraphs 46 and 47 of the judgment under appeal that the General Court also rejected as inadmissible the fifth plea of the appellant’s action, for infringement of the rule of correspondence, on the ground that none of the complaints put forward in that plea had been raised in the complaint of 26 April 2016.

24 Lastly, in paragraphs 48 to 51 of the judgment under appeal, the General Court also rejected as inadmissible, for failure to comply with the rule of correspondence, the appellant’s second head of claim seeking annulment of Notice 2015/023 and of the draft list of officials selected to take part in the training programme concerned by that notice.

25 In the second place, the General Court examined the merits of the pleas in law and complaints raised by the appellant which had been deemed admissible. The General Court rejected all of them.

26 In particular, in paragraphs 53 to 74 of the judgment under appeal, the General Court examined the first part of the first plea, alleging manifest errors of assessment and divided into two complaints, the first alleging failure by the Parliament to take the appellant’s staff reports for 2004 and 2005 into account, and the second alleging manifest errors in the assessment of the criteria for evaluating the appellant’s professional experience.

27 In paragraph 60 of the judgment under appeal, the General Court rejected the first of those two complaints as being unfounded. In this respect, it noted, first, in paragraph 57 of the judgment under appeal, that the appellant’s 2005 staff report, which was very concise, was marked ‘reconduction’ and the appointing authority had awarded 0.1 points to that report under the ‘level of responsibility’ criterion, whereas that report did not contain any comments in that regard, unlike the 2004 staff report. In the light of those findings, the General Court took the view that there was no reason to call into question the arguments that the appointing authority had actually taken the 2004 staff report into consideration.

28 Second, in paragraph 59 of the judgment under appeal, the General Court noted, in essence, that the appellant’s 2004 staff report was indeed included in his application file and had been initialled by the appellant when he consulted that file. According to the General Court, a reference in the minutes of that consultation from which it was apparent that the 2004 staff report did not appear in that file was the result of a material error on the part of the appellant, who had himself completed and signed those minutes.

29 The second complaint developed in the context of the first part of the appellant’s first plea was analysed in paragraphs 65 to 73 of the judgment under appeal. On the basis of that analysis, the General Court concluded, in paragraph 74 of that judgment, that it had to be rejected.

30 The second part of the first plea, alleging a breach of the principle of equal treatment, was rejected by the General Court, in paragraph 78 of the judgment under appeal, as being unfounded. In paragraph 77 of the judgment under appeal, the General Court found that the appellant had not substantiated his allegations of discrimination, but that he had merely claimed to be ‘convinced’ that this was the case.

31 The General Court added that the Parliament had maintained that, of the seven candidates selected as part of the 2015 certification exercise, several of those candidates had pursued, in different institutions, careers similar to that of the appellant. In the General Court’s view, even if it were assumed that all the successful candidates had pursued their careers in the Parliament alone, that could not suffice to prove that this constituted discrimination.

32 The General Court therefore took the view that the appellant’s request for the adoption of measures of organisation of procedure designed to request the Parliament to report the number of candidates who had pursued their careers in different institutions and who had been selected in the context of the last certification exercises had to be rejected as being irrelevant.

33 The third part of the first plea, alleging breach of the duty to state reasons, was also rejected. As is apparent from paragraph 83 of the judgment under appeal, the General Court held that the appointing authority had, in the decision rejecting the complaint, described the reason why it had taken some types of experience into account more than others. According to the General Court, that reasoning was sufficient to enable the appellant to challenge the merits of the decisions covered by his action and for the General Court to carry out its review of legality.

34 In addition, in paragraphs 91 to 95, the General Court examined and rejected, as being unfounded, the admissible part of the second plea of the action, alleging a breach of the appellant’s rights of defence and the right to be heard, and alleging illegality under Article 90(2) of the Staff Regulations.

35 In this respect, paragraphs 93 and 94 of the judgment under appeal show that the General Court found that the decision rejecting the complaint constituted neither a definitive act adversely affecting the appellant nor an individual measure within the meaning of the first paragraph of Article 41 of the Charter. The General Court added that, in that context, the prior notification of a draft decision rejecting the complaint of 26 April 2016 was not relevant from the point of view of the rights of defence and the right to be heard and that, in any event, by means of his complaint of 26 April 2016, the appellant had been in a position in which he could have effectively made known his views. Additionally, according to the General Court, such an obligation to notify does not arise from Article 90(2) of the Staff Regulations.

36 Finally, in the third place, in paragraph 105 of the judgment under appeal, the General Court rejected the appellant’s request for the adoption of certain measures of organisation of procedure, as it took the view that it had sufficient information and was in a position to rule on the action without adopting those measures.

– as a preliminary matter, pursuant to Article 277 TFEU, declare, where appropriate, Article 90 of the Staff Regulations invalid and inapplicable in the present proceedings,

– order the Parliament to pay the costs of the appeal and of the proceedings at first instance.

38 Pursuant to Article 181 of the Rules of Procedure of the Court, where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal in whole or in part.

39 It is appropriate to apply that provision in the context of the present appeal.

40 In support of his appeal, the appellant relies on four grounds, the first alleging infringement of Article 90(2) of the Staff Regulations and an error of law in the interpretation and application of the rule of correspondence; the second alleging an error of law by the General Court, in so far as it rejected the second plea of the appellant’s action without adopting measures of organisation of procedure; the third alleging an error of law in the interpretation and application of Article 90(2) of the Staff Regulations and the right to be heard, enshrined in Article 41 of the Charter; and the fourth alleging a manifest error of assessment of the facts and the application of an incorrect legal standard in the analysis of the Parliament’s conduct.

The first ground of appeal, alleging infringement of Article 90(2) of the Staff Regulations and an error of law in the interpretation and application of the rule of correspondence

41 By the first ground relied on in support of his appeal, the appellant disputes the statement, in paragraph 33 of the judgment under appeal, that he did not set out the adverse consequences resulting from the Parliament’s infringement of his right to effective judicial protection. He claims that it was clear from paragraphs 59 to 62 of his application at first instance how the Parliament had infringed that right.

42 In particular, in paragraphs 61 and 62 of that application, he claims that he stated that he had not been able to secure access to all the documents related to his evaluation and that, therefore, he was in a situation of ‘legal weakness’ by reason of the conduct of the Parliament’s services. He adds that, because of the Parliament’s refusal to provide him with access to the requested documents, the General Court’s adoption of the measures of organisation of procedure which he had suggested was essential for an understanding of the organisation of the 2015 certification procedure.

43 Moreover, the appellant submits that, as shown in paragraphs 33, 38, 44, 46, 47 and 51 of the judgment under appeal, the General Court interpreted the rule of correspondence too narrowly, which led it to reject, pursuant to Article 76(d) of its Rules of Procedure, ‘the first plea’ of the action pending before it. In particular, the General Court failed to take into account the fact that the complaints raised by the appellant in his action either constituted a development of those set out in the complaint of 26 April 2016 or were based on the documents to which the appellant had access after having submitted his complaint of 26 April 2016.

44 Lastly, the appellant claims that his right to be heard in the complaints procedure was infringed and led to the rejection of several of his complaints for breach of the rule of correspondence between the complaint and the action. If he had been granted the right to be heard at the stage of the complaints procedure, he could have provided the Parliament, in response to its invitation to submit his observations, with all the complaints which he had subsequently raised before the General Court.

45 As regards the appellant’s argument relating to paragraph 33 of the judgment under appeal, it should be noted that he alleges that the General Court erred in considering that he had not explained how the Parliament had infringed his right to effective judicial protection. According to him, such an explanation was included in the part of his application at first instance in which he referred to the Parliament’s alleged refusal to provide him with access to documents concerning his evaluation and the rejection of his complaint of 26 April 2016.

46 However, it appears from the judgment under appeal that that part of the appellant’s argument was correctly understood by the General Court as raising a different complaint, alleging a breach by the Parliament of the principle of sound administration, enshrined in Article 41(2) of the Charter. That latter complaint, summarised in paragraph 25 of the judgment under appeal, was rejected as inadmissible by the General Court in paragraph 28 of that judgment, not on the ground that it was insufficiently developed, but for breach of the rule of correspondence, since, even if the complaint of 26 April 2016 were interpreted with an open mind, it was not possible to understand it as raising such a complaint.

47 It follows that the appellant’s argument calling into question the statement in paragraph 33 of the judgment under appeal is based on an incorrect reading of that judgment and must be rejected as being manifestly unfounded.

48 Nor can the appellant succeed in his arguments that, if the Parliament had heard him before rejecting his complaint of 26 April 2016, or if the General Court had adopted the measures of organisation of procedure which he had requested, he could have further developed his complaints.

49 First, an official who has lodged a complaint under Article 90(2) of the Staff Regulations has, by definition, been fully in a position to raise any argument that he wished to submit in respect of the appointing authority’s decision to which that complaint relates. It cannot therefore be argued that, pursuant to the principles of respect for the rights of the defence and of sound administration, the appointing authority is obliged to hear the appellant again before deciding on that complaint, or to provide him with the opportunity to supplement his complaint (see, by analogy, order of 4 March 2010, Kaul v OHIM, C‑193/09 P, not published, EU:C:2010:121, paragraph 66).

50 The argument alleging that the Parliament failed to hear the appellant again, before rejecting his complaint of 26 April 2016, must therefore be rejected as manifestly unfounded.

51 Second, as regards the argument based on the General Court’s failure to adopt the measures of organisation of procedure requested by the appellant, it must be rejected. It is sufficient to note that such measures cannot be intended to remedy the inadmissibility of a plea or of an argument raised in the application.

52 Moreover, in accordance with settled case-law of the Court of Justice, the General Court is the sole judge of whether the information available to it concerning the cases before it needs to be supplemented. Whether or not the evidence before it is sufficient is a matter to be appraised by the General Court alone and is not subject to review by the Court of Justice on appeal, except where that evidence has been distorted or the substantive inaccuracy of the findings of the General Court is apparent from the documents in the case (judgment of 11 June 2015, EMA v Commission, C‑100/14 P, not published, EU:C:2015:382, paragraph 80 and the case-law cited). In the context of this argument, however, the appellant has not alleged any distortion of the evidence submitted to the General Court or any substantive inaccuracy in the findings of the General Court which is apparent from the documents in the case.

53 Finally, the appellant’s arguments relating, first, to the alleged rejection of the first plea of his action on grounds of inadmissibility, and, second, to paragraphs 33, 38, 44, 46, 47 and 51 of the judgment under appeal, which, according to the appellant, demonstrate an overly narrow reading of the rule of correspondence by the General Court, must also be rejected.

54 The first of those two arguments is manifestly unfounded, since, as is apparent from paragraph 24 of the judgment under appeal, the first plea of the appellant’s action before the General Court was not rejected as being inadmissible, but was deemed admissible.

55 As regards the second of those arguments, it must be declared manifestly inadmissible, since the appellant has not explained in any way how precisely the General Court’s perception of the rule of correspondence was ‘too narrow’ and how that alleged narrow conception of the rule in question could have led to the rejection of certain of his pleas and complaints.

56 According to the settled case-law of the Court, it follows from Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Articles 168(1)(d) and 169 of the Rules of Procedure of the Court, that an appeal must indicate precisely the contested elements of the judgment or order which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of that appeal, failing which the appeal will be inadmissible (order of 24 November 2016, Petraitis v Commission, C‑137/16 P, not published, EU:C:2016:904, paragraph 16 and the case-law cited).

57 It follows from all of the foregoing considerations that the first ground of appeal must be rejected as being in part manifestly unfounded and in part manifestly inadmissible.

The second ground of appeal, alleging an error of law by the General Court, in so far as it rejected the second plea of the appellant’s action without adopting measures of organisation of procedure

58 By the first part of the second ground relied on in support of his appeal, the appellant challenges the rejection, on the ground of inadmissibility, of the complaint put forward in the second plea of his action at first instance, alleging a breach of the principle of sound administration and of the rights guaranteed in Article 41 of the Charter. He submits that the General Court placed an impossible burden of proof on him and thus declared certain complaints put forward in the second plea to be unfounded, without ordering measures of organisation of procedure.

59 The appellant requested the General Court to adopt such measures because, given the Parliament’s refusal to provide him with the documents necessary to mount his challenge to the acts covered by his action before the General Court, he had unsuccessfully exhausted all avenues that might have allowed him to secure access to those documents. The General Court itself acknowledged, in paragraph 29 of the judgment under appeal, that any breach of the right to be heard ‘only materialises when [the] procedure has ended, namely by the decision on the complaint which makes the contested act final’.

60 By the second part of the second ground, the appellant criticises the General Court for having relied on a narrow reading of the rule of correspondence in order to reject as inadmissible, in paragraph 46 of the judgment under appeal, the fifth plea of his action at first instance, without taking into account the presumption established in Article 1d of the Staff Regulations. The General Court thus accepted the Parliament’s argument at face value, which is evident from paragraphs 57 to 60 and 77 of the judgment under appeal.

61 By the first part of the second ground of appeal, the appellant contests the rejection, on the ground of inadmissibility, of the complaint put forward in the second plea of his action at first instance, alleging a breach of the principle of sound administration and of the rights guaranteed in Article 41 of the Charter. In essence, the appellant criticises the General Court for having rejected that complaint without adopting the measures of organisation of procedure which he had requested and which, in his view, would have enabled him to obtain the documents necessary to develop and substantiate his line of argument.

62 In this respect, it should be recalled that the General Court, in paragraph 28 of the judgment under appeal, rejected that complaint as inadmissible on the ground that it failed to comply with the rule of correspondence. According to the General Court, even in interpreting the complaint of 26 April 2016 with an open mind, it was not possible to understand it as meaning that the appellant was raising a complaint alleging a breach of the principle of sound administration, as enshrined in Article 41(2) of the Charter.

63 The appellant does not challenge that finding of the General Court and merely criticises the General Court for having failed to adopt the measures of organisation which he had requested. As already noted in paragraph 51 of the present order, on the one hand, such measures, even if they had been adopted, could not have remedied the inadmissibility found by the General Court and, on the other, in the absence of any allegation that the evidence submitted to the General Court may have been distorted or that the findings of the General Court may have been materially inaccurate, the General Court cannot be criticised for not having adopted such measures.

64 Consequently, the first part of the second ground must be rejected as being manifestly inadmissible.

65 As regards the second part of the second ground of appeal, it must be rejected as being manifestly inadmissible, in accordance with the case-law cited in paragraph 56 of the present order. The appellant confines himself to vaguely relying on a ‘narrow reading’ by the General Court of the rule of correspondence, without indicating clearly and precisely what error of law the General Court, in his view, had committed in the two parts of the judgment under appeal covered by that second part of the second ground of appeal.

66 It follows that the second ground of appeal must be rejected as being manifestly inadmissible.

The third ground of appeal, alleging an error of law in the interpretation and application of Article 90(2) of the Staff Regulations and of the appellant’s right to be heard under Article 41 of the Charter

67 The appellant claims that the General Court neither correctly interpreted nor addressed the complaints which he had raised in the second plea of his action at first instance. In particular, he alleges that the General Court overlooked the detailed explanations submitted in paragraphs 59 to 62 of his application at first instance concerning the efforts which he had made to exercise his rights under Article 41 of the Charter.

68 It follows, according to the appellant, that the General Court’s finding that he did not draw any conclusion from the Parliament’s refusal to grant access to certain documents has no factual basis. It is clear from his arguments raised before the General Court that his efforts to obtain those documents were intended to enable him to prepare his action against the Parliament and to protect his legal position. In addition, the General Court erred in law in that it required the drawing of ‘conclusions’ or negative effects from a breach of the appellant’s fundamental rights, whereas the mere breach of such rights should be regarded as sufficient.

69 According to the appellant, the General Court simply avoided ruling on the interpretation of Article 90 of the Staff Regulations in the light of Article 41 of the Charter and applied a restrictive and literal interpretation of that provision. As is apparent from his application to the General Court, the appellant claimed that the Parliament has twice breached his rights of defence and his right to be heard. First, before rejecting his application for the certification procedure, the Parliament should have informed him of its negative draft decision and granted him a deadline to reply to it. Second, the appellant is of the opinion that, after having taken the decision to reject his complaint of 26 April 2016, the Parliament should have granted him the right to submit observations. Only after consideration of such observations could the Parliament have adopted a final decision on that complaint.

70 Because of the Parliament’s failure to do so, the appellant was obliged to initiate proceedings before the General Court in order to obtain access to the necessary documents. In addition, he was deprived of the possibility of raising any further complaints with the Parliament, such as those submitted to the General Court. By contrast, according to the appellant, if his right to be heard had been respected, he could have already raised, at the pre-litigation stage of the proceedings, all the complaints raised before the General Court, which would thus have been declared admissible.

71 The opposite interpretation of Article 90 of the Staff Regulations, such as that adopted by the General Court, infringes Article 41 of the Charter and the right of any official to submit observations to the appointing authority.

72 Lastly, the appellant claims that he could have decided to apply to the General Court without filing a complaint. Had he acted in such a manner, there would have been no issue as to the admissibility of certain of his complaints. The rule of correspondence applies only in cases where the application of the pre-litigation procedure is mandatory, such as in internal cases not linked to competitions of the institutions. By contrast, that rule does not apply in cases, such as the present one, where the use of the pre-litigation procedure is merely optional. By failing to take that consideration into account, the General Court erred in law in its interpretation of the rule of correspondence.

73 The third ground of appeal is composed, in essence, of three parts. By the first part of that third ground, the appellant challenges paragraph 28 of the judgment under appeal, in which the General Court rejected, as inadmissible for failure to comply with the rule of correspondence, the complaint advanced in the second plea of the action at first instance alleging a breach of Article 41(2) of the Charter. The General Court noted, in this respect, that, although the appellant stated in his complaint of 26 April 2016 that he had unsuccessfully requested access to certain documents held by the Parliament, he did not draw any conclusion from that statement, with the result that it could not be understood as advancing a complaint alleging an infringement of Article 41(2) of the Charter.

74 The appellant merely argues that, in his application to the General Court, he had provided detailed explanations concerning the efforts invested in exercising his rights under Article 41 of the Charter. However, those claims, assuming that they are proven, are not such as to call into question the finding made by the General Court that, in his complaint of 26 April 2016, the appellant had not drawn any conclusion from the Parliament’s alleged refusal to provide him with certain documents which he had requested.

75 The appellant’s reading of paragraph 28 of the judgment under appeal is incorrect. Contrary to what he appears to claim, the General Court did not allege that the appellant had not drawn any conclusions from the Parliament’s alleged refusal to provide him with certain documents in his application at first instance. It simply observed that, while the appellant admittedly referred to that refusal in his complaint of 26 April 2016, he did not, however, develop an objection in that complaint alleging that refusal and that, consequently, the complaint alleging an infringement of Article 41(2) of the Charter, put forward in the application at first instance, was inadmissible because it failed to comply with the rule of correspondence.

76 In the light of all of the foregoing, the first part of the third ground of appeal must be rejected as being manifestly unfounded.

77 By the second part of the third ground of appeal, the appellant alleges that the General Court, in essence, erred in law in not interpreting Article 90(2) of the Staff Regulations in such a way that, in order to ensure his rights of defence, the Parliament should have heard him again before rejecting his complaint of 26 April 2016.

78 For the reasons set out in paragraph 49 of the present order, this second part must be rejected as being manifestly unfounded.

79 Finally, by the third part of the third ground of appeal, the appellant claims, in essence, that it was as a result of an error of law that the General Court applied the rule of correspondence to him, since he could have chosen not to lodge a complaint but to bring an action directly before the General Court, in which case the rule of correspondence would not be applicable.

80 In this respect, it should be recalled that it follows from Article 91(2) of the Staff Regulations that, in principle, an appeal to the EU Courts by an official is admissible only if that official has previously submitted a complaint to the appointing authority in accordance with Article 90(2) of the Staff Regulations.

81 It is true that a complaint directed against a decision of a selection board would appear to be pointless, since the institution concerned has no authority to annul or amend the decision of a selection board, and therefore the only legal remedy open to those concerned by such a decision normally lies in a direct application to the EU Courts (see, inter alia, judgment of 7 May 1986, Rihoux and Others v Commission, 52/85, EU:C:1986:199, paragraph 9). In such a situation, the lodging of a complaint by the person concerned prior to bringing the matter before the EU Courts is merely optional (see, to that effect, judgment of 30 November 1978, Salerno and Others v Commission, 4/78, 19/78 and 28/78, EU:C:1978:216, paragraph 10).

82 However, that case-law did not apply to the appellant’s case, in so far as the act to which his complaint and, subsequently, his action relate was not any decision of a selection board, but a decision of the appointing authority.

83 It follows that the third part of the third ground is manifestly unfounded, with the result that the third ground of appeal must be rejected as being manifestly unfounded.

The fourth ground of appeal, alleging a manifest error of assessment of the facts and the application of an incorrect legal standard in the analysis of the Parliament’s conduct

84 The fourth ground of appeal is composed of three parts. By the first part of the fourth ground, the appellant contests the General Court’s rejection, in paragraph 60 of the judgment under appeal, of his complaint alleging failure to take into consideration his 2004 staff report in conjunction with that of 2005.

85 In this regard, he submits that the General Court committed a manifest error in the assessment of the evidence, since it decided that the 2004 staff report had necessarily to be included in his application file. The documents contained in the file at first instance did not allow the General Court to accept the Parliament’s allegations in that regard without adopting measures of organisation of procedure.

86 The appellant points out that, when he consulted his application file, the 2004 staff report did not appear in it, a fact which, he claims, is also confirmed by the minutes of that consultation, signed without objection by the Parliament official present during that consultation. Moreover, at the hearing before the General Court, the appellant denied having initialled his 2004 staff report during that same consultation.

87 According to the appellant, the General Court ought at least to have explained why it accepted the Parliament’s arguments, as set out in paragraph 59 of the judgment under appeal. He considers that the approach adopted by the General Court has had the effect of depriving him of effective judicial protection, and of the right to know the reasons why the General Court did not uphold his claims.

88 By the second part of the fourth ground, the appellant contests the rejection by the General Court, in paragraph 74 of the judgment under appeal, of the second complaint developed in the first part of the first plea of his action before the General Court. He takes the view that he fulfilled his obligations as regards the burden of proof to convince the General Court that the Parliament had committed a manifest error in the assessment of his professional experience. The General Court’s findings relating to the assessment of the multiple skills criterion, as set out in paragraph 68 of the judgment under appeal, are not substantiated and are contrary to the evidence submitted by the appellant.

89 As regards the assessment of the adaptability criterion, the management tasks and duties performed outside of normal duties, the appellant claims that, contrary to what the General Court found in paragraphs 69 and 71 of the judgment under appeal, he had challenged not the institution’s discretion to determine the tasks which fall within that criterion, but the consistency in the application of the criteria listed in Notice 2015/023 in relation to all candidates. The General Court could have obtained confirmation of that consistency by adopting a measure of organisation of procedure.

90 The appellant also criticises the General Court for having oversimplified his complaint, to the extent that the considerations set out in paragraphs 70 and 71 of the judgment under appeal do not address that complaint. The fact that some aspects of the criteria set out in Notice 2015/023 were taken into account does not mean that all relevant aspects of those criteria were appropriately assessed. The appellant also claims that it is apparent from paragraphs 70 to 73 of the judgment under appeal that the General Court accepted the Parliament’s arguments without verifying whether they were well founded by means of a measure of organisation of procedure, intended to convey anonymised data relating to successful candidates who had performed functions comparable to those which he himself had carried out.

91 The appellant points out that he had disputed not the appointing authority’s discretionary power, but the manner in which that power was exercised. He adds that, in accordance with Article 1d of the Staff Regulations, the burden of proof in relation to the observance of the principle of equal treatment is a matter for the EU institutions and complains that the General Court erred in law in that regard.

92 The appellant also disputes the rejection, in paragraph 77 of the judgment under appeal, of the second part of the first plea of his action, alleging a breach of the principle of equal treatment and failure to respect his request for measures of organisation of procedure, which the General Court considered to be ‘irrelevant’. He claims that he was unable to provide the General Court with additional evidence. In particular, the results of the assessment of the other candidates were held by the Parliament’s services and the General Court could obtain access to them only by ordering measures of organisation of procedure.

93 By the third part of the fourth ground of appeal, the appellant contests the rejection of the third part of the first plea of his action, for the reasons set out in paragraph 83 of the judgment under appeal. He argues that the reasoning provided by the Parliament was based on general assumptions and standards. The General Court did not take into account the Parliament’s failure to explain certain of its choices. In particular, according to the appellant, the reasoning relating to his experience as head of administration and to the tasks which he performed during the Portuguese presidency was illogical and contradictory. The Parliament should have explained why those tasks were not found to be ‘exceptional’, despite the fact that they entailed a lot of effort and great responsibility for the appellant.

94 In addition, the appellant requests the Court to adopt measures of organisation of procedure intended to convey certain documents contained in the file of the Joint Certification Procedure Committee and to hear as witnesses the official in charge of the case in the file and the chairman of the selection board or jury.

95 As regards the first part of the fourth ground of appeal, which seeks, in essence, to challenge the General Court’s rejection, in paragraph 60 of the judgment under appeal, of the appellant’s complaint that the Parliament did not take his 2004 staff report into consideration during the assessment of his application, it should be noted that it is evident from the assessments set out in paragraphs 57 to 59 of the judgment under appeal that, in the light of the evidence placed before it, the General Court concluded that there was nothing to suggest that the appointing authority had not taken that staff report into account, contrary to what the appellant asserts.

96 This is a factual assessment which, in principle and save in the event of distortion, is not open to review by the Court of Justice at the appeal stage.

97 According to settled case-law, it follows from the second subparagraph of Article 256(1) TFEU and from the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that the Court of Justice has no jurisdiction to establish the facts or, in principle, to examine the evidence which the General Court accepted in support of those facts. Provided that that evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced before it. That appraisal therefore does not, save where that evidence has been distorted, which has not in any way been alleged in the present case, constitute a point of law which is subject, as such, to review by the Court of Justice (order of 20 July 2016, Staelen v Ombudsman, C‑338/15 P, not published, EU:C:2016:599, paragraph 13 and the case-law cited).

98 In the present case, however, it must be noted that the appellant’s arguments do not contain anything to support the conclusion that the General Court manifestly distorted the evidence submitted to it.

99 Moreover, while the appellant’s argument that the General Court should have explained why it accepted the Parliament’s argument concerning the taking into account of the 2004 staff report must be understood as meaning that the appellant alleges a breach of the duty to state reasons, it suffices to note that, in paragraphs 57 to 59 of the judgment under appeal, the General Court set out a detailed exposition of the reasons which led it to conclude that the 2004 staff report had been taken into consideration by the Parliament when it assessed the appellant’s application.

100 Consequently, the first part of the fourth ground of appeal must be rejected as being in part manifestly inadmissible and in part manifestly unfounded.

101 The second part of the fourth ground concerns, on the one hand, paragraphs 61 to 74 of the judgment under appeal, in which the General Court analysed the appellant’s complaint alleging manifest errors by the Parliament in the assessment of the criteria for evaluating his professional experience and, on the other, paragraphs 77 and 78 of that judgment, which concern the second part of the appellant’s first plea, alleging a breach of the principle of equal treatment.

102 The appellant’s arguments relating to paragraphs 61 to 74 of the judgment under appeal must, however, be rejected as being manifestly inadmissible, in so far as they seek to call into question the General Court’s assessment of the facts, without even claiming any element of distortion.

103 The same applies with regard to the appellant’s argument, summarised in paragraph 90 of the present order, by which he alleges, in essence, that the General Court failed in its duty to state reasons.

104 The appellant does not explain how the General Court allegedly ‘bluntly simplified’ his complaint or why the response to that complaint in the judgment under appeal was insufficient, with the result that, in accordance with the case-law cited in paragraph 56 of the present order, such arguments must be rejected as being manifestly inadmissible.

105 As regards the General Court’s rejection, in paragraphs 77 and 78 of the judgment under appeal, of the second part of the appellant’s first plea, alleging breach of the principle of equal treatment, the appellant alleges that the General Court infringed, in essence, Article 1d(5) of the Staff Regulations, which provides, under certain conditions, for the reversal of the burden of proof in matters of alleged discrimination.

106 Assuming that discrimination such as that alleged by the appellant, between officials with an ‘interinstitutional career path’, that is to say, those who have worked in different EU institutions, and those who have spent their entire careers in the Parliament, may be covered by Article 1d of the Staff Regulations, it is sufficient to state that paragraph 5 of that article reverses the burden of proof in respect of discrimination only if the person concerned has established facts from which it may be presumed that there has been discrimination.

107 It is, however, apparent from paragraph 77 of the judgment under appeal that the appellant had not adduced any evidence before the General Court capable of substantiating his allegations of discrimination, but that he had merely stated that he was ‘convinced’ that such discrimination existed. In view of that finding of the General Court, which, moreover, the appellant has not contested before the Court of Justice, it cannot be claimed that the General Court infringed Article 1d(5) of the Staff Regulations.

108 Consequently, the appellant’s argument to the contrary must be rejected as being manifestly unfounded.

109 It follows from all of the foregoing considerations that the second part of the fourth ground of appeal must be rejected as being in part manifestly inadmissible and in part manifestly unfounded.

110 As regards the third part of the fourth ground, which refers to the rejection, in paragraph 83 of the judgment under appeal, of the third part of the first plea in the appellant’s action before the General Court, alleging a breach by the Parliament of its duty to state reasons, it should be noted that, in paragraph 82 of the judgment under appeal, the General Court found, in essence, that, under the guise of an alleged breach by the Parliament of its duty to state reasons, the appellant was in fact challenging the merits of that reasoning, which goes to the substantive legality of the appointing authority’s reasoning, examined in the analysis of the first two parts of the appellant’s first plea.

111 In addition, in paragraph 83 of the judgment under appeal, the General Court found, in essence, that the appointing authority had provided the appellant with sufficient reasons to justify the rejection of his application.

112 The arguments put forward by the appellant in the third part of the fourth ground of appeal are limited to vague and general statements and do not make it possible to understand how the General Court might have erred in law in forming the view that the Parliament had provided sufficient reasoning for its decision to reject the appellant’s application. Consequently, that third part of the fourth ground does not comply with the formal requirements referred to by the case-law cited in paragraph 56 of the present order and must therefore be rejected as being manifestly inadmissible.

113 Consequently, the fourth ground of appeal must be rejected as being in part manifestly inadmissible and in part manifestly unfounded.

114 Since none of the grounds relied on in support of the appeal have been upheld, the appeal must be dismissed as being in part manifestly inadmissible and in part manifestly unfounded.

115 Under Article 137 of the Rules of Procedure of the Court of Justice, applicable to the procedure on appeal pursuant to Article 184(1) thereof, a decision as to costs is to be given in the order which closes the proceedings. In this case, since the present order has been adopted before the appeal was served on the defendant and therefore before the latter could have incurred costs, the appellant must be ordered to bear his own costs.

1. The appeal is dismissed as being in part manifestly inadmissible and in part manifestly unfounded.

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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 (Appeal - Rules of Procedure of the Court of Justice - Civil service - Order) [2019] EUECJ C-71/19P_CO (26 September 2019) URL: http://www.bailii.org/eu/cases/EUECJ/2019/C7119P_CO.html Cite as: ECLI:EU:C:2019:793, EU:C:2019:793, [2019] EUECJ C-71/19P_CO

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