JUDGMENT OF THE GENERAL COURT (Second Chamber)
2 April 2020 (*)
(Civil service — Officials — Promotion — Certification procedure — 2016 promotion exercise — 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 the defence)
In Case T‑81/18,
João Miguel Barata, residing in Evere (Belgium), represented by G. Pandey, D. Rovetta and V. Villante, lawyers,
applicant,
v
European Parliament, represented by J. Steele and I. Terwinghe, acting as Agents,
defendant,
APPLICATION pursuant to Article 270 TFEU seeking annulment, first, of the decision of 30 October 2017 by which the Parliament rejected the applicant’s complaint, secondly, the letter of 20 March 2017 containing the opinion of the Joint Certification Procedure Committee recommending that the appointing authority reject the applicant’s appeal, thirdly, the letter of 14 February 2017 notifying him of his results and informing him that a draft list of seven officials selected to take part in the training programme had been drawn up, fourthly, the letter of 8 December 2016 informing the applicant of his results following the first stage of the 2016 certification procedure, fifthly, the letter of 21 December 2016 informing the applicant of the action taken following his request for review and, sixthly, the notice of internal competition 2016/014 of 7 October 2016 communicated to staff on 20 October 2016 and the full draft list of officials admitted for participation in the resulting training programme,
THE GENERAL COURT (Second Chamber),
composed F. Schalin (Rapporteur), acting as President, B. Berke and M. J. Costeira, Judges,
Registrar: P. Cullen, Administrator,
having regard to the written part of the procedure and further to the hearing on 17 September 2019,
gives the following
Judgment
Background to the dispute
1 On 12 October 2016, by the notice of internal competition 2016/014 (‘the internal competition notice’), a call for applications for the 2016 certification procedure 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 the same day, the applicant, Mr João Miguel Barata, a Parliament official of grade AST 8, submitted his application.
2 By letter of 8 December 2016, the appointing authority of the Parliament (‘the appointing authority’) informed the applicant of his results for the first stage of the 2016 certification procedure. The Parliament thus informed him that he had obtained a total of 28.9 points and was ranked 36 out of 87 and was accordingly not among the 28 highest ranked applicants and would therefore not be included in the next stage of the 2016 certification procedure.
3 On 14 December 2016 the applicant received a detailed analysis of his results and, on 15 December 2016, was entitled to consult his application file for the 2016 certification procedure and make copies of his last 10 staff reports and his evaluation sheet.
4 On 15 December 2016, the applicant also sent an email to the appointing authority, in the person of the Director for Human Resources Development of the Directorate-General for Personnel of the Parliament asking whether five or six sub-criteria of the main criterion relating to ‘nature of experience’ had been evaluated and weighted differently compared with previous years.
5 Although the appointing authority considered that the applicant did not formally request a review within the deadline of 10 working days, it decided to treat his email of 15 December 2016 as constituting such a request. The appointing authority concluded that the evaluation of the first part of the applicant’s application had been evaluated in accordance with the provisions of the call for applications and informed the applicant of the results of his request for review by letter of 21 December 2016.
6 By letter of 14 February 2017, the appointing authority informed the applicant that it had established a draft list of seven officials (which did not include the applicant) selected to take part in the training programme and that he could lodge an appeal with the Joint Certification Procedure Committee (‘COPAC’).
7 On 1 March 2017, the applicant lodged an appeal with COPAC, contesting the number of points awarded, based on the evaluation of his performance for 2014 and 2015 and the number of points awarded for the nature of his professional experience.
8 By letter of 20 March 2017, COPAC informed the applicant that his appeal had been examined during the meetings of 7 and 8 March 2017 and that following a detailed analysis of his file, COPAC considered that the administration had correctly followed all of the procedural steps set out in the call for applications in assessing his application. Consequently, the applicant was informed that COPAC had advised the appointing authority to reject his appeal as unfounded.
9 By letter of 29 March 2017, the appointing authority informed the applicant that it had taken due note of COPAC’s opinion and stated that his application had been properly assessed. The result of the selection process was thus confirmed.
10 On 19 June 2017, the applicant lodged a complaint under Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’).
11 The Secretary-General of the Parliament, as appointing authority, confirmed the decision not to include the name of the applicant on the list of officials selected (‘the decision rejecting the complaint’). The decision rejecting the complaint was sent by registered letter with acknowledgement of receipt on 30 October 2017 and was received by the applicant the next day.
Procedure and forms of order sought
12 By application lodged at the Court Registry on 9 February 2018, 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 for measures of organisation of procedure.
13 The defence, the reply and the rejoinder were lodged at the Court Registry on 4 May, 17 July, and 11 September 2018 respectively.
14 The applicant claims, in essence, that the Court should:
– annul the letter of 30 October 2017 rejecting the complaint of 19 June 2017;
– annul the letter of 20 March 2017, containing the opinion of COPAC in which the appointing authority was advised to reject the applicant’s appeal;
– annul the letter of 14 February 2017 notifying him of his results and informing him that a draft list of seven officials selected to participate in the training programme had been drawn up;
– annul the letter of 8 December 2016 informing him of his results for the first stage of the 2016 certification procedure;
– annul the letter of 21 December 2016 informing him of the action taken following his request for review;
– annul the notice of internal competition and annul in its entirety the resulting draft list of officials selected to take part in the training programme;
– order the Parliament to pay him the sum of EUR 50 000 as compensation for the non-material damage suffered;
– order the Parliament to pay the costs.
15 The Parliament contends, in essence, that the Court should:
– reject the action in the main proceedings as inadmissible and, in any event, as entirely unfounded;
– reject the applicants’ requests for measures of inquiry as unfounded;
– order the applicant to pay all of the costs.
Law
16 In support of his action, the applicant raises five pleas in law alleging (i) a manifest error of assessment and infringement of the obligation to state reasons; (ii) infringement of the principle of effective judicial protection, rights of the defence and the right to be heard; (iii) lack of competence on the part of COPAC, infringement of Article 30 of the Staff Regulations, read in conjunction with Annex III to those regulations, infringement of the principle of sound administration and infringement of the 2016 certification procedure; (iv) infringement of the principle of sound administration referred to in Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’), a manifest error of assessment and infringement of the principle of equality, and (iv) infringement of Articles 1 to 4 of Regulation No 1 of the Council of 15 April 1958 determining the languages to be used by the European Economic Community (OJ English Special Edition: Series I Volume 1952-1958, p. 59), as last amended by Council Regulation (EU) No 517/2013 adapting certain regulations and decisions in the fields of free movement of goods, freedom of movement for persons, company law, competition policy, agriculture, food safety, veterinary and phytosanitary policy, transport policy, energy, taxation, statistics, trans-European networks, judiciary and fundamental rights, justice, freedom and security, environment, customs union, external relations, foreign, security and defence policy and institutions, by reason of the accession of the Republic of Croatia (OJ 2013 L 158, p. 1) (‘the amended Regulation 1/58), Article 1d and Article 28 of the Staff Regulations and Article 1(1)(f) of Annex III to the Staff Regulations and the principles of equal treatment and non-discrimination.
Admissibility
17 The Parliament maintains that the third head of claim, the second plea in law, in so far as it, by way of an objection, alleges the illegality of Article 90 of the Staff Regulations, and the third and fourth pleas in law must be rejected as inadmissible. In addition, the Court considers that it is necessary to examine of its own motion the admissibility of the second, fourth and fifth heads of claim.
18 It is necessary first to examine the admissibility of the heads of claim and then to examine the admissibility of the pleas in law.
Admissibility of the heads of claim
19 As referred to above, the Parliament claims that the third head of claim is inadmissible. The Court, having considered furthermore that it was necessary to examine of its own motion the admissibility of the second, fourth and fifth heads of claim, consequently questioned the parties, by way of a measure of organisation of procedure, regarding the admissibility of those heads of claim.
Admissibility of the third head of claim
20 The Parliament considers that the third head of claim must be declared inadmissible in so far as the letter referred to therein is a preparatory act and not an act or measure adversely affecting the applicant.
21 The applicant maintains that the third head of claim is admissible and submits the fact that the interviews between the 14 highest ranking applicants and COPAC were held between 31 January and 1 February 2017 and that under no circumstances therefore can the letter referred to in the third head of claim and by which the applicant was notified of his results be regarded as a preparatory act.
22 It must be recalled that, in accordance with settled case-law, only measures producing binding legal effects of such a kind as to affect the applicant’s interests by bringing about a distinct change in his legal position constitute acts against which an action for annulment may be brought. In the case of acts or decisions adopted by a procedure involving several stages, in particular where they were the culmination of an internal procedure, a measure will be open to review only if it is a measure definitively laying down the position of the institution upon conclusion of that procedure, and not a provisional measure intended to pave the way for that final decision (see judgment of 19 March 2003, Tsarnavas v Commission, T‑188/01 to T‑190/01, EU:T:2003:77, paragraph 72 and the case-law cited).
23 It should be noted that the third head of claim concerns a letter informing the applicant of the progress of the selection procedure. As the Parliament submits, the letter referred to in the third head of claim contains the following:
‘According to section 6 of the call for applications you may now appeal to the Joint Certification Procedure Committee (COPAC). Any such appeal, duly substantiated and accompanied by the appropriate supporting documents, must reach COPAC within 10 working days of the date on which you received this letter. Appeals should be sent electronically to COPAC@europarl.europa.eu.’
24 The applicant followed that procedure and COPAC, having examined the file, submitted its opinion to the appointing authority, which adopted its final position in the letter of 29 March 2017. That letter is in fact the one that the applicant referred to in his complaint.
25 Accordingly, the letter referred to in the third head of claim must be regarded as a preparatory act which does not producing binding legal effects of such a kind as to affect directly and immediately the applicant’s interests by bringing about a distinct change in his legal position.
26 The third head of claim must therefore be rejected as inadmissible.
Admissibility of the second, fourth and fifth heads of claim
27 In the present case, it should be noted that the second, fourth and fifth heads of claim are also inadmissible.
28 As regards, in the first place, the letter referred to in the second head of claim, it must be noted that it concerns a letter of 20 March 2017 containing COPAC’s opinion recommending that the appointing authority reject the applicant’s appeal of 1 March 2017. In so far as it was only in the letter of 29 March 2017 that the appointing authority confirmed definitively that it had followed that opinion given by COPAC, that is the letter adversely affecting the applicant, and not the letter of 20 March 2017, referred to in the second head of claim. The second head of claim must therefore be rejected as inadmissible.
29 As regards, in the second place, the two letters whose annulment is sought in the context of the fourth and fifth heads of claim, it should be noted that they, by informing the applicant of various stages of the procedure, did not in any way establish the final list of candidates selected for the certification procedure and did not definitively establish that the applicant would be excluded from the certification procedure. Although those letters informed the applicant of his position among the applicants, the selection procedure was not yet complete. That is moreover confirmed by the final paragraphs of those letters. The letter of 8 December 2016 contains very similar wording to that set out in paragraph 23 above and, in the letter of 21 December 2016, it was indicated, in essence, that the applicant could lodge an appeal with COPAC when the list of the seven candidates selected was established and he was informed of it.
30 Consequently, the letters referred to in the fourth and fifth heads of claim must be regarded as purely informative preparatory acts which do not produce binding legal effects of such a kind as to affect directly and immediately the applicant’s interests by bringing about a distinct change in his legal position.
31 The fourth and fifth heads of claim must accordingly be rejected as inadmissible.
Admissibility of the second plea in law, in so far as it, by way of an objection, alleges the illegality of Article 90 of the Staff Regulations, and of the third and fourth pleas in law
32 The Parliament, in essence, claims that the line of argument concerning the plea of illegality raised against Article 90 of the Staff Regulations in the context of the second plea in law must be rejected as inadmissible, since it does not meet the requirements of Article 76(d) of the Rules of Procedure. The same applies to the fourth plea in law. The Parliament also contends that the third plea in law must be rejected as inadmissible, first, on account of its lack of clarity for the purposes of Article 76(d) of the Rules of Procedure and, secondly, on account of the fact that it is not included in the complaint, which is contrary to the correspondence principle.
33 It should first 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 proceedings, the pleas in law and arguments relied on and a summary of those pleas in law. 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.
34 It should next be recalled that the rule of correspondence requires that, for a complaint brought before the EU Courts to be admissible, it must have already been raised in the pre-litigation procedure, thus enabling the appointing authority in question 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).
35 That rule is justified by the very objective of the pre-litigation procedure, which is to permit an amicable settlement of the differences which have arisen 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.
36 It follows that, in actions brought by officials, claims for relief before the EU Courts 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 EU Courts by the presentation of pleas in law and arguments which, whilst not necessarily appearing in that 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).
37 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).
38 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).
39 It is in the light of those principles that the pleas in law and complaints that the Parliament contends are inadmissible should be examined.
Admissibility of the second plea in law, in so far as it, by way of an objection, alleges the illegality of Article 90 of the Staff Regulations
40 The applicant claims that Article 90 of the Staff Regulations is unlawful and inapplicable. In support of that complaint, he refers to the arguments raised on the subject of the first part of the second plea in law, concerning the rights of the defence and the right to be heard.
41 The Parliament considers that that objection of illegality must be rejected as inadmissible, given that it does not satisfy the requirements of Article 76(d) of the Rules of Procedure.
42 It must be noted that the reason why the applicant considers that Article 90 of the Staff Regulations should be declared unlawful is clearly set out in the application. The applicant maintains that the complaint procedure laid down in that article infringes Article 41(2) of the Charter in so far as it does not allow him to comment on the draft decision rejecting the complaint before its adoption.
43 Accordingly, that plea of illegality must be declared admissible and will be assessed as to its substance.
The admissibility of the third plea in law, alleging lack of competence on the part of COPAC, infringement of Article 30 of the Staff Regulations, read in conjunction with Annex III to those regulations, infringement of the principle of sound administration and infringement of the 2016 certification procedure
44 The applicant maintains that the EU institutions are obliged to observe the principle of sound administration as enshrined in Article 41 of the Fundamental Rights Charter.
45 The applicant relies in that regard on paragraph 47 of the judgment of 11 December 2013, Balionyte-Merle v Commission (F‑113/12, EU:F:2013:191) in which a selection board, in its assessment of candidates’ professional knowledge and of their abilities and motivation, must base its decision exclusively and independently on the candidates’ performance alone, in accordance with the requirements of the notice of competition.
46 In the light of those considerations, it ‘appears’, according to the applicant, that the choice of the assessment of professional experience was performed unlawfully thereby rendering the entire 2016 certification procedure unlawful. Therefore, the appointing authority should have examined and annulled the decision rejecting his application on the ground that that assessment was unlawful. Their failure to do so constitutes a manifest error of assessment and an infringement of both the Staff Regulations and the competition notice.
47 In the applicant’s view, since, on the basis of COPAC’s assessment, all the applicants have been wrongly evaluated and most of them eliminated, it is clear that the rejection of his application must be declared unlawful and that the list drawn up in the context of that procedure must therefore be annulled.
48 The applicant claims that the Parliament should have carried out an independent examination of COPAC’s assessment rather than approving it without further evaluation. The applicant maintains that, while the procedure laid down in Article 90 of the Staff Regulations is linked to an administrative complaint, EU institutions must also, in the context of administrative appeals, act impartially with the objective of correctly applying the law, rather than accepting the views of other administrative bodies that may have previously been involved in a given case.
49 The Parliament maintains, in essence, that the complaints put forward in support of this plea in law should be rejected as inadmissible. First, contrary to the principle of correspondence established by the case-law, the plea put forward is new and does not present a clear link with the plea relating to the manifest error of assessment set out in the complaint. Moreover, that plea is also inadmissible under Article 76(d) of the Rules of Procedure.
50 It should be noted that the applicant refers, in the heading of the third plea, alleging incompetence on the part of COPAC, infringement of Article 30 of the Staff Regulations, read in conjunction with Annex III to those regulations, infringement of the principle of sound administration and infringement of the 2016 certification procedure.
51 In the first place, as regards the complaint alleging that COPAC lacks competence, the applicant has, as indicated above, confined himself to formulating that complaint in the summary of the application and in the heading of the third plea, without elaborating on it in the text of the application. Examination of the competence of the authority issuing a measure is, however, 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). It will therefore be necessary to examine the substance of that complaint.
52 In the second place, as regards the alleged infringement of Article 30 of the Staff Regulations, read in conjunction with Annex III thereto, laying down, in essence, the rules applicable to competition procedures, it must be held that the applicant confined himself to setting out the claim in the summary of the application and in the heading of the third plea in law. However, he did not put forward any arguments on that point in the text of the application itself. Consequently, that claim must be rejected as inadmissible pursuant to Article 76(d) of the Rules of Procedure.
53 In the third place, as regards the alleged infringement of the principle of sound administration, as laid down in Article 41 of the Charter, it must be noted that the applicant merely makes vague and unsubstantiated statements. The applicant complains that the appointing authority, like COPAC, rejected his application. However, apart from referring to a manifest error of assessment, he does not explain how those rejections would infringe the principle of sound administration. It follows that the claim alleging an infringement of the principle of sound administration, must be dismissed as inadmissible pursuant to Article 76(b) of the Rules of Procedure.
54 In the fourth place, as regards the claim alleging infringement of the 2016 certification procedure, it must be rejected as inadmissible. The applicant’s complaint challenging the decision not to include his name on the list of successful candidates for the 2016 certification procedure did not refer to an infringement of the certification procedure. That complaint related mainly to a manifest error of assessment made by the appointing authority in assessing the criteria set out in the notice of internal competition. However, the complaint alleging infringement of the 2016 certification procedure cannot be closely linked to a manifest error of assessment. It follows that that claim must be rejected as inadmissible under the case-law cited in paragraph 34 above.
Admissibility of the fourth plea in law, alleging infringement of the principle of sound administration referred to in Article 41 of the Charter, manifest error of assessment and infringement of the principle of equality
55 The applicant claims, in essence, that the Parliament not only failed to correctly assess his ability, efficiency and conduct in the service of which he is a part in light of the information specifically provided in all the staff reports, but that it also disregarded its due diligence obligations in terms of investigating his application in a broader context.
56 In the light of his appraisal score, he has also been discriminated against in infringement of Article 1d and Article 4 of the Staff Regulations that lay down the principle of equal treatment.
57 The Parliament contends that the applicant merely refers to alleged discrimination and an alleged infringement of the principle of sound administration, but fails to state exactly how the contested decision brought about any such discrimination or constituted such an infringement. He does not explain why he believes that he was treated differently to other candidates and does not give reasons why all the candidates were not treated in the same manner.
58 Accordingly, the Parliament takes the view that the fourth plea does not meet the requirements of Article 76(d) of the Rules of Procedure and must be dismissed as inadmissible.
59 It should be noted, as the Parliament has claimed, that the arguments relied on in support of the present plea, alleging discrimination and infringement of the principle of sound administration, are not sufficiently clear and precise to enable the Parliament to prepare its defence and the General Court to give judgment. No explanation to enable an understanding of how the Parliament discriminated against him or infringed the principle of diligence and sound administration in assessing his ability, efficiency and conduct in the service in the light of the information contained in his staff reports is apparent from the applicant’s pleadings. He also does not explain why he believes he was treated differently to the other applicants and why all applicants were not treated in the same manner.
60 Accordingly, that plea does not meet the requirements of Article 76(d) of the Rules of Procedure and must be dismissed as inadmissible.
Substance
61 It should be noted that, according to settled case-law, claims for annulment formally directed against a decision rejecting a complaint, where that decision has no independent content, have the effect of bringing before the General Court the act against which the complaint was submitted (see, to that effect, judgment of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 8).
62 In the present case, the decision rejecting the complaint confirms the decision to not include the applicant’s name in the list of successful applicants for the 2016 certification procedure in specifying the grounds in support thereof. Consequently, the present action must be regarded as directed against the decision contained in the letter of 29 March 2017, the reasoning for which is specified by the decision rejecting the complaint, contained in the letter of 30 October 2017 (see, to that effect, judgments of 25 February 2010, Pleijte v Commission, F‑91/08, EU:F:2010:13, paragraph 28, and of 14 November 2012, Bouillez v Council, F‑75/11, EU:F:2012:152, paragraph 23).
The first plea in law
63 The first plea is divided into two parts, alleging, first, a manifest error of assessment and, second, infringement of the obligation to state reasons and of the principle of equal treatment. The second part should be dealt with first.
The second part of the first plea in law, alleging infringement of the obligation to state reasons and of the principle of equal treatment
64 The second part is divided into two claims, the first alleging infringement of the obligation to state reasons and the second alleging infringement of the principle of equal treatment.
– Second part of the first plea, alleging failure to state reasons
65 The applicant criticises the Parliament for not having explained why certain of his qualities and certain tasks he performed, which are supported by the evidence and documents before it, have completely been disregarded, running against his previous evaluation sheets, even those coming from other EU institutions. The applicant criticises the Parliament in that regard for having disregarded his professional experience.
66 The Parliament contests the applicant’s arguments.
67 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).
68 It should be pointed out that the applicant’s argument that the Parliament did not consider or did not explain why some of his qualities and certain tasks which he had carried out had not been taken into consideration is in fact an attempt to demonstrate the necessary reassessment of his evaluation sheets and experience, which in fact falls within the first part, alleging a manifest error of assessment, and will be dealt with below. Thus, the applicant’s arguments, alleging infringement of the obligation to state reasons, seek, in essence, to challenge the merits of the reasons given for the decision rejecting the complaint and the decision not to include his name on the list of candidates selected for the 2016 certification exercise. 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).
69 In the present case, it should also be noted that the appointing authority duly set out, in the decision rejecting the complaint, the reasons for its decision not to include the applicant’s name on the list of candidates selected for the 2016 certification exercise and the reasons for rejecting the complaint. In the decision rejecting the complaint, the appointing authority sets out the reasons why the draft list does not constitute a challengeable act. It also explains why it considers that the applicant’s rights of defence have not been infringed, how the evaluation criteria called into question by the applicant were assessed in relation to his application, why it considers that the obligation to state reasons has been complied with, why the language rules for the internal competition should not be regarded as unlawful and, finally, why it considers that the applicant actually had access to the file.
70 In the light of those considerations, it must be held that the statement of reasons for the contested decision was sufficient to enable the applicant to challenge the merits of the contested decision by bringing the present action and to enable the Court’s review of legality.
71 Therefore, the first complaint of the second part of the first plea must be rejected.
– The second claim of the second part of the first plea, alleging infringement of the principle of equal treatment
72 According to the applicant, the Parliament infringed the principle of equal treatment since it favoured those candidates having acquired professional experience within the European Parliament to the detriment of those candidates having worked in different EU institutions.
73 The Parliament contests the applicant’s line of argument and emphasises that four out of the seven candidates selected under the 2016 certification procedure have pursued their careers partly in other institutions. Accordingly, any claim that there is discrimination in favour of those who have worked only in the Parliament is completely unfounded.
74 It must be stated that the applicant has failed to provide any evidence to substantiate an infringement of the principle of equal treatment. In any event, 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.
75 Accordingly, the second claim alleging infringement of the principle of equal treatment and the second part of the first plea must be rejected.
First part of the first plea, alleging a manifest error of assessment
76 In the first place, the applicant criticises the Parliament for not having carried out a genuine re-examination of his file, which, in his view, constitutes a manifest error of assessment of the facts. In support of that argument, he cites the letters referred to in the second, third, fourth and fifth heads of claim. Those letters show that the draft list appearing therein is in fact a definitive list which adversely affects the applicant. In that regard, he refers in particular to the letter of 21 December 2016, referred to in the fifth head of claim, in which it was stated that ‘it [appeared] that [his] application [had been] evaluated in accordance with the provisions in the Call for applications’. For the applicant, that sentence is standardised and shows that the Parliament did not effectively examine his application and did not comply with its duty to state reasons.
77 In the second place, the applicant also claims that the Parliament infringed the principle of proportionality since it waited until 30 October 2017 to respond to his complaint that was brought on 19 June 2017. The issues raised in the complaint are not in his view sufficiently complex to justify such a delay.
78 In the third place, the applicant claims, in essence, that the main manifest error of assessment lies in an incorrect assessment of his application. The applicant explains, in essence, that his application was assessed, inter alia, on the basis of two main criteria, namely, the first main criterion, entitled ‘Three most recent staff reports’, and the second main criterion, entitled ‘Professional experience’. The first main criterion was assessed on the basis of two sub-criteria, one of which is entitled ‘Overall assessment’. The second main criterion was assessed in particular on the basis of the sub-criterion entitled ‘Assessment of professional experience’. The applicant first notes that the 2013 staff report was rated ‘excellent’, with a score of 2 out of 2 for the sub-criterion entitled ‘Overall assessment’. The 2014 and 2015 staff reports, on the other hand, were rated ‘very good’, giving them a score of 1 out of 2 for the same criterion. The applicant further notes that, for the sub-criterion entitled ‘Assessment of professional experience’, he was awarded overall marks of 0.4 points for the 2013 staff report, 0.4 points for the 2014 staff report and 0.5 points for the 2015 staff report respectively.
79 The applicant therefore submits, in essence, that the Parliament should have taken into account the points awarded under the sub-criterion ‘Professional experience’ of the second main criterion when awarding marks under the sub-criterion ‘Overall assessment’ of the first main criterion in the 2014 and 2015 staff reports. Indeed, the two main criteria are not completely separate, but there is some interdependence between them.
80 The applicant takes the view, moreover, that the Parliament committed a manifest error of assessment by awarding 0.1 points for each of his 2009 and 2010 staff reports in respect of his ‘adaptability’. The same is true of the award of points for the 2013 staff report concerning the applicant’s ‘responsibility’.
81 The Parliament disputes the applicant’s arguments in stating that he has not shown the existence of any manifest error of assessment but instead has simply substituted his own assessment for that of the appointing authority.
82 In the first place, it should be noted that the applicant does not explain how his arguments based on the fact that the Parliament did not really re-examine his file and that the letter of 21 December 2016 does not state the reasons on which it is based, which support the second, third, fourth and fifth heads of claim, which have been found to be inadmissible, affect the legality of the decision not to include his name on the list of successful candidates for the 2016 certification procedure. Accordingly, those arguments must be rejected as ineffective.
83 In the second place, as regards the period which elapsed between the lodging of the complaint and the decision rejecting it, it should be recalled that, under Article 90 of the Staff Regulations, the appointing authority has a period of four months from the date on which the complaint was lodged to notify the official concerned of a reasoned reply. Failure to reply within this period constitutes an implied rejection, against which an action may be brought before the courts.
84 It is also important to recall that the time limit for bringing an action before the General Court must be within three months. That period shall run from the date of expiry of the period prescribed for reply where the action concerns an implied decision rejecting a complaint. Nevertheless, according to the second indent of Article 91(3) of the Staff Regulations where a complaint is rejected by express decision after being rejected by implied decision but before the period for lodging an appeal has expired, the period for lodging the appeal is to start to run afresh.
85 In the present case, the appointing authority notified the applicant of the decision to lodge a complaint at the end of a period of 4 months and 11 days. The appointing authority therefore adopted an explicit decision rejecting the complaint after the implicit decision rejecting it, but within the three-month time limit for bringing an appeal before the General Court.
86 First, it should be noted that the applicant does not put forward any argument calling into question the appointing authority’s right to make use of the four-month period available to it, under Article 90 of the Staff Regulations, to reply to the complaint.
87 Secondly, as regards the decision rejecting the complaint, it must be noted that that decision merely confirms the act complained of by the applicant and does not, taken in isolation, constitute an act which can be challenged (see, to that effect, judgment of 10 December 1992, Williams v Court of auditors, T‑33/91, EU:T:1992:114, paragraph 23 and the case-law cited). Moreover, even if that decision was adopted after the expiry of the four-month period for reply, that delay does not adversely affect the applicant, since, in the present case, the only effect of that delay was to start time running afresh within the meaning of the second indent of Article 91(3) of the Staff Regulations.
88 Therefore, the argument based on an infringement of the reasonable time limit should be rejected as unfounded.
89 As regards, in the third place, the evaluation of the applicant’s application, it should be borne in mind that it follows from the case-law that, in view of the broad discretion enjoyed by the administration in evaluating and comparing the merits of candidates in any selection procedure, and in particular the certification procedure laid down in Article 45a of the Staff Regulations, the General Court’s review in that field must be limited to the question whether, in the light of the factors which the administration relied on to establish its assessment, the administration has remained within the bounds of its discretion and did not use its power in a manifestly erroneous manner or for purposes other than those for which it had been conferred on it (see, to that effect, judgment of 11 November 2003, Faita v CES, T‑248/02, EU:T:2003:298, paragraph 71 and the case-law cited). The General Court cannot therefore substitute its assessment of the merits and qualifications of the candidates for that of the administration where there is nothing in the file to suggest that, in assessing those merits and qualifications, the administration committed a manifest error (see, to that effect, judgment of 4 February 1987, Bouteiller v Commission, 324/85, EU:C:1987:59, paragraph 6).
90 Moreover, according to the case-law, an error is manifest where it is easily perceptible and can be clearly detected by reference to the criteria to which the exercise of the decision-making power in question is subject (judgment of 16 May 2013, Canga Fano v Council, T‑281/11 P, EU:T:2013:252, paragraph 127).
91 It should be noted, at the outset, that the applicant’s staff reports were assessed according to three main criteria, two of which are at issue in the present case, namely the first main criterion, entitled ‘Three most recent staff reports’, and the second main criterion, entitled ‘Professional experience’. Each of these main criteria contains sub-criteria that allow an overall numerical score to be determined for each main criterion. For the first main criterion, entitled ‘Three most recent staff reports’, one of the sub-criteria was entitled ‘Overall assessment’. A maximum of two points could be awarded for that sub-criterion.
92 The second main criterion, entitled ‘Professional experience’, contained two sub-criteria, one of which was entitled ‘Assessment of professional experience’. Points for this sub-criterion were awarded based on an evaluation of the following categories: versatility, adaptability, management, responsibility, beyond normal duties, communication.
93 In the present case, as regards the first main criterion, entitled ‘Three most recent staff reports’, it should be noted that the appointing authority took the view, in the context of its broad discretion, that, for the year 2013, the applicant’s application had been awarded two points for the sub-criterion entitled ‘Overall assessment’, whereas the staff reports for 2014 and 2015 had respectively led to the award of one point for the same criterion. It should be noted that the assessment of the sub-criterion ‘Overall assessment’ of the first main criterion ‘Three most recent staff reports’ corresponds to an overall assessment of the staff report as a whole. In this respect, the Parliament’s staff reports are divided, according to the Parliament, into several sections covering, inter alia:
– assigned duties;
– participation in projects included in the ‘Parliamentary Project Portfolio’;
– work performed outside normal duties;
– participation in the work of committees or administrative bodies;
– knowledge of languages;
– analytical assessments on the basis of the tasks performed;
– extent to which the targets set have been achieved;
– changes in performance since the previous assessment year.
94 However, the assessment of the sub-criterion ‘Assessment of professional experience’ under the second main criterion ‘Professional experience’ covers six separate categories as set out in the marking grid:
– communication;
– versatility;
– adaptability;
– management;
– responsibility;
– beyond normal duties.
95 The first main criterion, entitled ‘Three most recent staff reports’, and the second main criterion, entitled ‘Professional experience’, were assessed differently. The sub-criterion ‘Overall assessment’ of the first main criterion is indeed based on an evaluation of the entire evaluation sheet, taking into account the various sections in it, unlike the second main criterion, which is based, inter alia, on the sub-criterion ‘Assessment of professional experience’ and contains a very precise marking grid. Naturally, there may be an overlap between the sub-criterion ‘Overall assessment’ of the first main criterion and the sub-criterion ‘Assessment of professional experience’ of the second main criterion, to the extent that certain experience is taken into account in both cases. However, that does not mean that the result of the assessment carried out in the context of the first main criterion depends on the result of the assessment carried out in the context of the second main criterion. If that were the case, there would no longer be two distinct criteria. Therefore, the applicant misread the criteria when he, in essence, argued that the assessment of one depended on the assessment of the other.
96 Therefore, the arguments that the Parliament committed a manifest error of assessment in that it should have considered that the assessment of its 2014 and 2015 staff reports should have been assessed in the same way as the 2013 staff report as regards the sub-criterion ‘Overall assessment’ of the first main criterion ‘Three most recent staff reports’ must be rejected.
97 As regards the assessment of the applicant’s ‘adaptability’ (staff reports for 2009 and 2010) and ‘responsibility’, it must be noted that the applicant does not put forward any argument to show that it is vitiated by a manifest error. Furthermore, an examination of the file and, in particular, of the decision rejecting the complaint does not make it possible to find that the Parliament committed a manifest error of assessment when it awarded points for those assessment factors.
98 In the light of the foregoing, it must be held that the appointing authority did not commit a manifest error of assessment as regards the evaluation of the applicant’s staff reports.
99 Consequently, the first part of the first plea in law must be rejected in its entirety as partly ineffective and partly unfounded.
100 In the light of the foregoing considerations, the first plea in law must be rejected in its entirety.
The second plea in law
101 The applicant complains that the Parliament did not allow him access to all the documents relating to his evaluation and to the rejection of his complaint, so that he now finds himself in the difficult position of having to mount a legal challenge with incomplete knowledge of the existing documentation, which constitutes an infringement of the principle of sound administration referred to in Article 41 of the Charter.
102 The applicant claims that his rights of defence and his right to be heard have been infringed by the Parliament twice on two counts.
103 First of all, before rejecting his application to the certification procedure the applicant should have been provided with the relevant draft decision and statement of reasons by the Parliament and should have been granted an appropriate deadline in which to reply to the Parliament’s draft negative decision. The same, he argues, holds true of the rejection of the complaint. The Parliament should have summarised its intention to reject the applicant’s complaint in a document or letter served on him and should have given him a reasonable period in which to reply to the Parliament’s draft negative decision and the relevant statement of reasons.
104 The Parliament contests the applicant’s arguments.
105 As regards, in the first place, access to the application file, it should be noted that such access has not been refused by the Parliament. Indeed, it follows from the application, that applicant was granted access to the file on 15 December 2016. It should also be noted that the Parliament explained to the applicant why it had been unable to provide him with certain information, in particular because of the confidentiality of the deliberations and the fact that the statistics requested were not yet available. The Parliament also provided, in a letter of 28 February 2018, answers to a number of questions which the applicant had asked on 7 and 13 December 2017 concerning the certification procedure. In those circumstances, even if that access and those replies did not enable the applicant to have the information which he would have wished to have on the assessment of his application, it must be held that that cannot in itself constitute an infringement of the principle of sound administration. Furthermore, the applicant does not specify which documents he should have had access to.
106 As regards, in the second place, the rights of the defence, it should be recalled that Article 4(5) of the General Implementing Provisions on the certification procedure provides 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 COPAC’. On the basis of the information on the file, it should be observed that that provision has been complied with in the present case. Indeed, as stated in paragraphs 6 to 9 above, it is apparent from the file that, on the basis of that provision and before the contested decision became final, the appointing authority went beyond what it was required to do, in so far as it regarded a request for information as a request for review, whereas nothing in the wording of that request required it to do so. Later, on 1 March 2017, the applicant was able to make his views known by lodging an appeal, to which COPAC replied on 20 March 2017. This claim must therefore be rejected as being unfounded.
107 As regards, in the third place, the plea of illegality raised against 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.
108 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 confirming the decision which is the subject of the complaint 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 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. Accordingly, the plea of illegality raised by the applicant must be dismissed as unfounded.
109 As regards, in the fourth place, 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 should be noted that no such obligation arises from Article 90(2) of the Staff Regulations, which governs the pre-contentious procedure. It should also be noted that 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 claimed by the applicant that, in accordance with the principles of respect for the rights of the defence and sound administration, the appointing authority was required to hear him again before deciding on that complaint or giving him the opportunity to supplement it.
110 In the light of all the foregoing considerations, the second plea must be rejected in its entirety as unfounded.
The third plea in law
111 As stated in paragraph 51 above, the examination of the competence of the author of the contested measure is a matter of public policy and, as such, must be raised ex officio. The General Court thus considers that the complaint alleging that COPAC lacked competence, raised in the context of the third plea, must be examined on the merits, even though the applicant has not put forward any argument in support of it.
112 It should be noted that it is apparent from Article 4(4) to (6) of the general implementing provisions relating to the certification procedure that 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.
113 In the present case, it is apparent from the file that COPAC, having been addressed by the applicant, acted in accordance with that provision. It follows that the complaint alleging that COPAC lacked competence must be dismissed as unfounded, as must the third plea in its entirety.
The fifth plea in law
114 The applicant argues that the 24 official languages of the Union should have been used in the selection procedure and in the subsequent certification programme.
115 Moreover, the applicant claims that under Regulation No 1 of 1958, he has a fully fledged right to choose the second language to be relied upon during the selection procedure and the subsequent certification programme, between all official languages of the Union, other than Portuguese, which is his mother tongue. This is a genuine right, which cannot be restricted by the Parliament’s in concreto arguments relating to the practicalities of the selection process and the certification programme. Therefore, from a legal point of view, the applicant could, for example, perfectly be entitled to perform the tasks required in a second language, which could be Italian or Spanish. Obliging the applicant to choose between French and English, or between French, English and German amounts to unjust discrimination compared to the other official languages of the Union and to an infringement of Regulation No 1/58.
116 The Parliament contests the applicant’s arguments.
117 It should be noted that the reason why the applicant was not included on the list of candidates selected for the 2016 certification procedure is linked to the fact that he did not obtain sufficient points under the criteria pre-established by the notice of internal competition. Thus, the rules governing languages in no way prevented him from submitting his application. Moreover, the applicant does not put forward any argument or evidence to establish that the language scheme provided for had any influence whatsoever on the outcome of the assessment of his application.
118 Accordingly, the argument raised by the applicant must be rejected as ineffective in its entirety, as must the fifth plea.
The claim for damages
119 The applicant seeks compensation, in the amount of EUR 50 000, for the non-material harm which he claims to have suffered. He argues, in essence, that his career opportunities have greatly been damaged by his exclusion from the 2016 certification procedure, and that this has caused him stress and therefore emotional harm.
120 The Parliament contests the applicant’s arguments.
121 As regards the claim for damages, suffice it to bear in mind that the claim seeking compensation for material or non-material harm must be rejected if it presents, as in the present case, a close link with the claim for annulment which has, in itself, been rejected as unfounded (see judgment of 19 December 2019, ZQ v Commission, T‑647/18, not published, EU:T:2019:884, paragraph 202 and the case-law cited).
122 It follows from all of the foregoing that the applicant was not wrongly excluded from the 2016 certification procedure.
123 Thus, in so far as the examination of all the pleas in law made in support of the claim for annulment has not revealed any illegality committed by the Parliament, and therefore any fault of such a kind as to give rise to liability on its part, and since those claims have been rejected, the claim for damages must also be rejected as unfounded.
124 Accordingly, the appeal should be dismissed in its entirety, without it being necessary to rule on the applicant’s request for measures of organisation of procedure.
Costs
125 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.
126 Since the applicant has been unsuccessful, he must be ordered to pay the costs, as applied for by the Parliament.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby:
1. Dismisses the action;
2. Orders Mr João Miguel Barata to pay the costs.
Delivered in open court in Luxembourg on 2 April 2020.
E. Coulon | | M. van der Woude |