ORDER OF THE GENERAL COURT (Fourth Chamber)
8 February 2024 (*)
(Civil service – Members of the temporary staff – Frontex staff – Dismissal before the end of the probationary period – Obvious inadequacy – Action manifestly lacking any foundation in law)
In Case T‑595/22,
Carlos Miguel Ferreira de Macedo Silva, residing in Cercal do Alentejo (Portugal), represented by L. Cosme Nunes Rolo, lawyer,
applicant,
v
European Border and Coast Guard Agency (Frontex), represented by S. Karkala and W. Szmidt, acting as Agents, and by B. Wägenbaur, lawyer,
defendant,
THE GENERAL COURT (Fourth Chamber),
composed of R. da Silva Passos, President, N. Półtorak and I. Reine (Rapporteur), Judges,
Registrar: V. Di Bucci,
having regard to the order of 14 February 2023, Ferreira de Macedo Silva v Frontex (T‑595/22 R, not published, EU:T:2023:79),
makes the following
Order
1 By his action based on Article 270 TFEU, the applicant, Mr Carlos Miguel Ferreira de Macedo Silva, seeks, first, annulment of the decision of the European Border and Coast Guard Agency (Frontex) of 29 August 2022 terminating his contract as a member of the temporary staff before the end of the probationary period, and, second, compensation for the damage which he allegedly suffered as a result.
Background to the dispute and events subsequent to the bringing of the action
2 On 16 August 2021, the European Border and Coast Guard Agency (Frontex) published recruitment notice RCT‑2021-00071 for the post of ‘European Border and Coast Guard’ (intermediate level), with those recruited to become members of the European Border and Coast Guard standing corps (‘the recruitment notice’).
3 According to the recruitment notice, successful candidates would be engaged as members of the temporary staff (AST, grade 4) for a period of five years, with a probationary period of nine months. Annex I to that notice provided that applications received by Frontex would be divided into groups of 1 200 eligible applications according to the chronological order of their submission. The applicant was part of ‘Group 8’.
4 Point 4(a) of the title ‘Essential professional competencies’ of the recruitment notice specified, first, that one of the essential professional competencies required was proof of the candidate’s ability to swim at least 100 metres in less than four minutes using any stroke or combination of strokes, without stopping, without any assistance and without allowing one’s feet to touch the bottom of the pool at any time, and, second, that a certificate or diploma would be required in that regard.
5 The applicant applied for the post in question and stated, in his application form, that he possessed the required professional competence specified in point 4(a) of the heading ‘Essential professional competencies’ of the recruitment notice.
6 On 16 February 2022, the applicant received an email from Frontex containing two attachments, entitled, respectively, ‘Guidelines for the physical fitness test’ and ‘Location directions – physical test’.
7 On 13 April 2022, the applicant entered into a contract of employment with Frontex, which took effect on 16 May 2022, in accordance with Article 3 of that contract. Under Article 4 of that contract, the applicant was required to serve a probationary period of nine months and could be dismissed during the probationary period or upon its expiry, in accordance with Article 14 of the Conditions of Employment of Other Servants of the European Union.
8 On 16 May 2022, the applicant started his probationary period of nine months, which was thus due to end on 15 February 2023.
9 On 31 May 2022, the Executive Director of Frontex adopted the decision on the adoption of the ‘Basic Training Programme for the European Border and Coast Guard standing corps, (Category 1) and the Assessment Strategy of the Basic Training Programme for the European Border and Coast Guard standing corps, (Category 1)’ (‘the Basic Training Programme’). That programme was to be followed by members of the ‘European Border and Coast Guard’ following their recruitment.
10 The Basic Training Programme, which comprised eight modules, provided, at page 89, that swimming sessions during module 0 were dedicated primarily to the assessment of entry requirements for learners and to provide information on their swimming skills for learners’ further division into groups according to their level, if possible. The sessions covered the acquisition of basic self-rescue skills and basic swimming survival skills. That programme specified, at page 464, that the water rescue assessment strategy included a first assessment exercise that would take place during module 0 consisting in a practical assessment of the ability to swim 100 metres freestyle in a maximum of four minutes, without stopping during each 25-metre length, but with a stop after each 25-metre length. The learner would have to swim in a ventral position, controlling his or her breathing, but was allowed to change swimming style every 25 metres.
11 Module 0 started on 1 June 2022.
12 By email of 7 June 2022, the applicant was informed that a swimming test would take place during module 0, which consisted of swimming a distance of 100 metres in less than 4 minutes in a ventral position, with control over breathing (‘the swimming test’).
13 The applicant failed the swimming test at his first assessment on 14 June 2022 and at the two reassessments, of 23 and 30 June 2022.
14 On 29 July 2022, the applicant received his probationary report. According to that report, the applicant’s ability to perform the tasks associated with his job and his efficiency were unsatisfactory because he had failed the swimming test three times and, therefore, module 0.
15 On 8 August 2022, the applicant submitted his comments on the probationary report.
16 By letter of 9 August 2022, the applicant was informed by the authority empowered to conclude contracts of employment (‘the AECE’) that, as a result of his unsatisfactory performance during the probationary period, as documented in the probationary report, he might be dismissed before the end of the probationary period, with one month’s notice. In that letter, the AECE invited the applicant to submit his comments in writing before it made a decision.
17 On 11 August 2022, the applicant submitted his written comments.
18 On 18 August 2022, a meeting took place between the applicant and the AECE.
19 On 29 August 2022, the AECE adopted the contested decision, by which it decided to dismiss the applicant before the end of the probationary period, with one month’s notice.
20 On 2 September 2022, the applicant lodged a complaint against the contested decision, pursuant to Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), applicable to members of the temporary staff under Article 46 of the Conditions of Employment of Other Servants of the European Union. That complaint was rejected by a decision of 30 December 2022.
Forms of order sought
21 The applicant claims that the Court should:
– annul the contested decision;
– order that Frontex, if it is not possible for him to be reinstated in time within the eighth batch, pay him all the costs related to the fulfilment of ‘the [five-year] contract’, and his legal costs;
– order that the operation of the contested decision be suspended.
22 Frontex contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
23 Under Article 126 of the Rules of Procedure of the General Court, where it is clear that the Court has no jurisdiction to hear and determine an action or where the action is manifestly inadmissible or manifestly lacking any foundation in law, the Court may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings.
24 In the present case, the Court, considering that it has sufficient information from the documents in the file, has decided to give a decision without taking further steps in the proceedings.
Admissibility
25 The applicant puts forward two pleas in law, each of which has two parts. The first plea alleges infringement of the principle of the protection of legitimate expectations and of the principle of equal treatment. The second plea alleges infringement of the right to good administration and of the right to be heard.
26 Without formally raising a plea of inadmissibility under Article 130 of the Rules of Procedure, Frontex contends that the action is inadmissible on account, first, of non-compliance with the rule of correspondence between the complaint and the application and, second, of failure to comply with the requirements laid down by Article 76(d) of the Rules of Procedure.
Non-compliance with the rule of correspondence between the complaint and the application
27 It should be noted that it is clear from settled case-law that the rule of correspondence between a complaint, within the meaning of the first indent of Article 91(2) of the Staff Regulations, and the subsequent application requires that, for a plea before the Courts of the European Union to be admissible, it must have already been raised in the pre-litigation procedure, allowing the AECE to know the criticisms made by the person concerned of the contested decision (see, to that effect, judgment of 25 October 2013, Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, paragraph 71 and the case-law cited).
28 It follows, as is also apparent from settled case-law, that claims submitted before the Courts of the European Union may contain only heads of claim based on the same matters as those forming the basis of the heads of claim put forward in the complaint, although those heads of claim may be developed before the Courts of the European Union by the presentation of pleas and arguments which do not necessarily appear in the complaint but are closely linked to it (see judgment of 28 September 2022, Zegers v Commission, T‑663/21, not published, EU:T:2022:589, paragraph 63 and the case-law cited).
29 It should also be noted that, since the pre-litigation procedure is informal in character and those concerned are generally acting without the assistance of a lawyer at that stage, the administration must not interpret complaints restrictively but must, on the contrary, examine them with an open mind. It is not the purpose of Article 91 of the Staff Regulations to bind strictly and absolutely the contentious stage of the proceedings, if any, provided that the claims submitted at that stage change neither the legal basis nor the subject matter of the complaint (judgment of 25 October 2013, Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, paragraph 76).
30 However, in order for the pre-litigation procedure provided for under Article 91(2) of the Staff Regulations to achieve its objective, it is necessary that the authority in question be in a position to know with sufficient precision the criticisms formulated by the persons concerned against the contested decision (judgment of 25 October 2013, Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, paragraph 77).
31 It is in the light of that case-law that it is appropriate to examine whether the rule of correspondence between the complaint and the application has indeed been complied with in the present case.
32 In his complaint, prepared by a lawyer, the applicant claimed, in essence, that new rules had been introduced after publication of the recruitment notice as regards the conduct of the swimming test. In that regard, he argued that he had not been informed in sufficient time to be able to prepare for that test and to train to swim in a ventral position, with control over breathing. He also stated that his colleagues in the sixth group at the Ávila training centre in Spain had been trained for more than one month for a swimming test.
33 In his comments on the probationary report (see paragraph 15 above) and on the letter of the AECE of 9 August 2022 (see paragraph 17 above), made without the assistance of a lawyer, the applicant confines himself, in essence, to maintaining that holding him accountable for his inability to swim in a different way from that required by the recruitment notice, with no prior training, does not seem fair.
34 As regards the first plea, in the first place, so far as concerns the alleged infringement of the principle of the protection of legitimate expectations, that grievance is to be linked to the arguments put forward by the applicant in his complaint concerning the introduction, after the publication of the recruitment notice, of new rules concerning the conduct of the swimming test and the failure to provide information in good time in that regard.
35 In the second place, as regards the infringement of the principle of equal treatment, that grievance is to be linked to the argument, relied on by the applicant in his complaint, that his colleagues in the sixth group at the Ávila training centre in Spain had been trained for more than one month for the swimming test. Moreover, in its decision of 30 December 2022 rejecting the complaint, Frontex itself examined that argument in the light of the principle of equal treatment.
36 In view of the arguments referred to in paragraphs 32 and 33 above, it must be held that Frontex was in a position to link them in a sufficiently precise manner to the substance of the grievances relating to the infringement of the principle of the protection of legitimate expectations and of the principle of equal treatment, put forward in support of the first plea, even though, as Frontex states, the complaint did not contain any legal characterisation of the applicant’s claims referred to in those paragraphs.
37 Consequently, it must be concluded that the first plea, alleging infringement of the principle of the protection of legitimate expectations and of the principle of equal treatment, complies with the rule of correspondence between the complaint, within the meaning of the first indent of Article 91(2) of the Staff Regulations, and the application.
38 As regards the second plea, in view of the arguments set out in paragraphs 32 and 33 above, it is clear that, in the complaint, the applicant did not put forward any grievance alleging infringement of the right to be heard. In addition, in the application, the applicant alleges an infringement of the right to be heard because he had not been given an interview before receiving his probationary report. However, that is unconnected with the arguments put forward in the complaint. Consequently, since it is apparent from the application that the alleged infringement of the right to good administration is linked to the infringement of the right to be heard, the second plea should be rejected as inadmissible in its entirety, for failure to comply with the rule of correspondence between the complaint and the application.
Failure to comply with the requirements laid down by Article 76(d) of the Rules of Procedure
39 Under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, which is applicable to proceedings before the General Court by virtue of the first paragraph of Article 53 of that statute, and under Article 76(d) of the Rules of Procedure, the application must state, inter alia, the subject matter of the dispute, the pleas in law and arguments relied on and a summary of those pleas in law. Those particulars must 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 further information. In order to guarantee legal certainty and the sound administration of justice, it is necessary, for an action to be admissible, that the basic legal and factual particulars on which it is based be indicated coherently and intelligibly in the text of the application itself (see judgment of 16 June 2021, Lucaccioni v Commission, T‑316/19, EU:T:2021:367, paragraph 84 (not published and the case-law cited)). The application must, accordingly, specify the nature of the grounds on which the action is based, with the result that a mere abstract statement of the grounds does not satisfy the requirements of the Rules of Procedure. Similar requirements are called for where a submission is made in support of a plea in law (see judgment of 25 March 2015, Belgium v Commission, T‑538/11, EU:T:2015:188, paragraph 131 and the case-law cited; order of 27 November 2020, PL v Commission, T‑728/19, not published, EU:T:2020:575, paragraph 64).
40 It follows that the applicant is required to set out in a sufficiently systematic manner the arguments relating to each plea which it puts forward, and the Court cannot be obliged, due to a lack of structure in the application or lack of rigour on the part of the applicant, to reconstruct the legal structure intended to support a plea by bringing together various diffuse elements of the application, at the risk of reconstructing that plea by giving it a scope which it did not have in the mind of that party. To decide otherwise would be contrary to the sound administration of justice, the principle that the subject matter of an action is delimited by the parties and the defendant’s rights of defence (judgment of 2 April 2019, Fleig v EEAS, T‑492/17, EU:T:2019:211, paragraph 44 (not published)).
41 In that regard, as regards the first plea, it must be observed that the heading of that plea sets out intelligibly an ‘infringement of the principle of the protection of legitimate expectations, and … of the principle of equal treatment’. It is also apparent from the application that the applicant complains of having taken a test that ‘was entirely different, with added technical conditions, than the ones mentioned either on the [r]ecruitment [n]otice or on the [a]pplication [f]orm, when he applied in August 2021, which naturally he was not prepared for’. In addition, he states that his colleagues in the sixth group at the Ávila training centre in Spain were trained for more than one month for the swimming test. Furthermore, on reading the defence, it should be held that Frontex was able to understand the content of the grievances raised in the context of the first plea and to prepare its defence.
42 Accordingly, the first plea is set out intelligibly and, consequently, Frontex’s argument alleging failure to comply with the requirements laid down by Article 76(d) of the Rules of Procedure as regards that plea must be rejected.
43 As regards the second plea, in view of the conclusion drawn in paragraph 38 above regarding the inadmissibility of that plea on account of failure to comply with the rule of correspondence between the complaint and the application, there is no longer any need to examine whether that plea complies with the requirements laid down by Article 76(d) of the Rules of Procedure.
44 It follows from all of the foregoing that only the second plea is inadmissible. Therefore, it is appropriate to examine only the merits of the first plea.
The claim for annulment of the contested decision
45 In support of the first plea, the applicant alleges infringement of the principle of the protection of legitimate expectations on the ground that he had to take a swimming test that was ‘entirely different, with added technical conditions, than the ones mentioned either on the [r]ecruitment [n]otice or on the [a]pplication [f]orm, when he applied in August 2021, which naturally he was not prepared for’. The applicant also alleges infringement of the principle of equal treatment on the ground that his colleagues from the sixth group at the Ávila training centre in Spain were trained for more than one month for the swimming test.
46 Frontex disputes those arguments.
47 First, as regards the alleged infringement of the principle of the protection of legitimate expectations, it should be noted that the recruitment notice provided that candidates had to ‘be able to swim for at least 100 m under four minutes using any stroke or combination of strokes, without stopping, without any assistance and without allowing [their] feet to touch the bottom of the pool at any time’. Regarding that swimming test, the Basic Training Programme referred to the basic swimming skills set out in the recruitment notice, stating the following: ‘swimming 100 m in a ventral position, with respiratory control, under 4 minutes’.
48 It follows that, by providing, in the Basic Training Programme, that the swimming test of 100 metres is to be carried out in a ventral position, Frontex gave only further details on the nature of that test, without changing the rules set out in the recruitment notice.
49 Moreover, as Frontex explains, water rescue is an essential professional competency for European border and coast guards and one of the purposes of the swimming test to be taken in that context by candidates is to ensure that, at the end of the basic training, the candidate can self-rescue and rescue a person in the water. Frontex adds that, for water rescue purposes, candidates must always maintain eye contact with the person to be rescued, which in turn implies swimming in a ventral position, while leaving it to the candidate to choose the swimming technique (breaststroke, crawl, butterfly). According to Frontex, if the water rescue test were to be performed using backstroke, the candidate would be looking upwards, namely to the sky, and would thus not see the person who needs to be rescued.
50 Consequently, it should be held that the applicant makes an error of interpretation as regards an alleged change in the rules applicable to the swimming test between the recruitment notice and the Basic Training Programme, adopted by Frontex before the tests were carried out.
51 In addition, it should be noted that the applicant does not explain more precisely to what extent the Basic Training Programme lays down different rules and adversely affects his interests. He does not specify any objective criterion that could lead to the conclusion that a change in the rules for the swimming test has actually taken place, in particular in view of the need for candidates to be proficient in water rescue, which is, as Frontex states, an essential professional competency for European border and coast guards (see paragraph 49 above). Nor does the applicant claim that the Basic Training Programme imposes stricter criteria and that swimming in a ventral position is a more difficult test for him than swimming on his back. In particular, he does not complain that the recruitment notice precludes him from stopping after each 25 metres to catch his breath, whereas such a rule is no longer apparent from the Basic Training Programme.
52 In that regard, it must be noted that, during the written part of the procedure before the General Court, the applicant had been requested to lodge a reply, which would have enabled him to provide more precise explanations in response to Frontex’s defence. However, a reply was not lodged.
53 Furthermore, it is true that, in his comments during the pre-litigation procedure (see paragraphs 15 and 17 above), the applicant described in detail certain objective reasons that, in his view, prevented him from succeeding in the swimming test. He states, in essence, that, before his arrival at the location of the swimming test, he had been training in a swimming pool in his home town using a combination of strokes, including backstroke, and that he did not have sufficient time and proper training to improve his swimming abilities after he had learned that the swimming test was to be performed in a ventral position.
54 Nevertheless, those arguments do not in any way support the applicant’s claim regarding the change in the rules applicable to the swimming test between the recruitment notice and the Basic Training Programme, adopted by Frontex before the tests were carried out. The possible lack of sufficient time and proper training to prepare for the swimming test is intended to call into question the general organisation of the assessments by Frontex, and not the rules of that test.
55 Second, as regards the infringement of the principle of equal treatment, it should be borne in mind that, according to settled case-law, the principle of equal treatment is infringed only where comparable situations are treated differently or different situations are treated in the same way, unless such difference in treatment is objectively justified (judgments of 13 December 1984, Sermide, 106/83, EU:C:1984:394, paragraph 28, and of 28 June 1990, Hoche, C‑174/89, EU:C:1990:270, paragraph 25; see also, to that effect, judgment of 14 May 1998, BPB de Eendracht v Commission, T‑311/94, EU:T:1998:93, paragraph 309).
56 It follows from the case-law that it is the person who considers himself or herself to have been wronged because the principle of equal treatment has not been applied to him or her who must initially establish the facts from which it may be presumed that there has been direct or indirect discrimination. It is only where that person has established such facts that it is then for the defendant to prove that there has been no breach of the principle of non-discrimination (judgment of 19 April 2012, Meister, C‑415/10, EU:C:2012:217, paragraph 36).
57 In the present case, as Frontex states in its defence, the applicant compares himself to certain candidates in Group 6, namely contract staff in function group FG IV. According to Frontex’s explanations, those persons, being at basic level, in general undergo training of one year, while the applicant, a category AST 4-SC agent at intermediate level, receives training of six months, based on the entry requirement of previous law enforcement experience. The applicant did not dispute those explanations of Frontex even though, during the written part of the procedure before the Court, he had been requested to lodge a reply, which would have enabled him to respond, in that regard, to Frontex’s arguments and to expand his own arguments. However, as noted in paragraph 52 above, a reply was not lodged.
58 It must therefore be held that the applicant does not establish facts from which it may be presumed that there has been discrimination within the meaning of the case-law cited in paragraph 56 above. In any event, the contract staff with whom the applicant compares himself are clearly in a different situation in that, as opposed to the applicant, who is at intermediate level, they are at basic level.
59 In the light of the circumstances established in paragraphs 48 and 58 above, the claims made by the applicant in his first plea are, in their entirety, manifestly lacking any foundation in law, with the result that that plea must be rejected as being manifestly unfounded.
60 It follows from all of the foregoing that the first head of claim, in so far as it seeks annulment of the contested decision, must be rejected as manifestly lacking any foundation in law.
The claims for reinstatement and for suspension of operation of the contested decision
61 Assuming that, in making his second head of claim subject to the condition that it is not possible for him to be reinstated in time within the eighth batch, the applicant intended to seek his reinstatement, it is sufficient to bear in mind that, according to settled case-law, the Courts of the European Union cannot, in principle, issue directions to an institution, body, office or agency of the European Union without encroaching upon the prerogatives of the administration (see judgments of 2 October 2014, Strack v Commission, C‑127/13 P, EU:C:2014:2250, paragraph 145 and the case-law cited, and of 9 September 2020, P. Krücken Organic v Commission, T‑565/18, not published, EU:T:2020:395, paragraph 23 and the case-law cited). That principle applies, in general, both in the context of a review of legality under Article 91 of the Staff Regulations and Article 270 TFEU (judgment of 5 December 2017, Spadafora v Commission, T‑250/16 P, not published, EU:T:2017:866, paragraph 48) and in an action for damages by which an applicant seeks an order requiring the defendant institution to take specific measures to compensate for the alleged damage (see, to that effect, orders of 14 January 2004, Makedoniko Metro and Michaniki v Commission, T‑202/02, EU:T:2004:5, paragraph 53, and of 17 December 2008, Portela v Commission, T‑137/07, not published, EU:T:2008:589, paragraph 46). It follows that the claim for reinstatement must be rejected on the ground of lack of jurisdiction.
62 As regards the third head of claim seeking suspension of operation of the contested decision, it should be noted that the application for interim measures seeking suspension of operation of the contested decision was rejected (order of 14 February 2023, Ferreira de Macedo Silva v Frontex, T‑595/22 R, not published, EU:T:2023:79). If the applicant intended to reiterate that claim in the context of the present proceedings, it is sufficient to note that the present order rejects the head of claim seeking annulment of the contested decision without there being any need to suspend its operation.
The claim for compensation
63 The applicant claims that the Court should order that he be paid all the costs related to the fulfilment of his ‘[five-year] contract’ in the event that he cannot be reinstated in time within the eighth batch.
64 Frontex disputes the applicant’s arguments.
65 It must be borne in mind that, according to settled case-law concerning civil service proceedings, where an application for damages is closely linked with an application for annulment, the rejection of the latter, either as inadmissible or as unfounded, also results in the rejection of the application for damages (see judgments of 30 September 2003, Martínez Valls v Parliament, T‑214/02, EU:T:2003:254, paragraph 43 and the case-law cited, and of 16 October 2019, Palo v Commission, T‑432/18, EU:T:2019:749, paragraph 73 and the case-law cited).
66 Since the present claim for compensation is closely linked with the claim for annulment of the contested decision, which has been rejected as manifestly lacking any foundation in law, it must be rejected, in accordance with the case-law referred to in paragraph 65 above.
67 In the light of all of the foregoing, the action must be dismissed in its entirety as manifestly lacking any foundation in law.
Costs
68 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.
69 In the present case, since the applicant has been unsuccessful in the present action, he should be ordered to pay the costs, in accordance with the form of order sought by Frontex.
70 Since the applicant was also unsuccessful in the procedure for interim relief and the costs were reserved, he must be ordered to bear his own costs and to pay those incurred by Frontex in that procedure, in accordance with the form of order sought by Frontex.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby orders:
1. The action is dismissed as manifestly lacking any foundation in law.
2. Mr Carlos Miguel Ferreira de Macedo Silva shall bear his own costs and pay those incurred by the European Border and Coast Guard Agency (Frontex), including those relating to the procedure for interim relief.
Luxembourg, 8 February 2024.
V. Di Bucci | | R. da Silva Passos |