JUDGMENT OF THE GENERAL COURT (Appeal Chamber)
27 October 2010 (*)
(Appeal – Civil service – Contract staff – Recruitment – Classification in grade – Experience – Qualifications – Equivalence)
In Case T‑65/09 P,
APPEAL against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 11 December 2008, in Case F-136/06 Reali v Commission [2008] ECR-SC I-A-1-0000 and II-A-1-0000, seeking to have that judgment set aside,
Enzo Reali, a member of the contractual staff of the European Commission, residing in Florence (Italy), represented by S. Pappas, lawyer,
appellant,
the other party to the proceedings being
European Commission, represented by J. Currall and B. Eggers, acting as Agents,
defendant at first instance,
THE GENERAL COURT (Appeal Chamber),
composed of M. Jaeger, President, N.J. Forwood and M.E. Martins Ribeiro (Rapporteur), Judges,
Registrar: E. Coulon,
gives the following
Judgment
1 By his appeal lodged pursuant to Article 9 of the Annex to the Statute of the Court of Justice, the appellant, Mr Enzo Reali, seeks annulment of the judgment of the European Union Civil Service Tribunal (Second Chamber) of 11 December 2008, in Case F-136/06 Reali v Commission [2008] ECR-SC I-A-1-0000 and II-A-1-0000 (‘the judgment under appeal’), in which the Tribunal dismissed the action for the annulment of the decision of the authority authorised to conclude contracts classifying him at grade 14, step 1 in function group IV, contained in his contract of employment as a member of contract staff (‘the contested decision’).
Legal context
2 Members of the contract staff constitute a category of staff included in the Conditions of Employment of Other Servants of the European Communities (‘CEOS’) in the third indent of the second paragraph of Article 1 of Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending the Staff Regulations of Officials of the European Communities and the CEOS (OJ 2004 L 124, p. 1), which entered into force on 1 May 2004.
3 Article 3a(1), of the CEOS provides:
‘For the purposes of these Conditions of Employment, “contract staff” means staff not assigned to a post included in the list of posts appended to the section of the budget relating to the institution concerned and engaged for the performance of full-time or part-time duties:
(a) in an institution to carry out manual or administrative support service tasks,
…’
4 The category of contract staff is the subject-matter of Title IV (‘Contract staff’) of the CEOS, which fixes, inter alia, their conditions of engagement, including the rules on classification.
5 Under Article 80(1) of the CEOS: ‘Contract staff shall be subdivided into four function groups corresponding to the duties to be performed. Each function group shall be subdivided into grades and steps.’
6 The table in Article 80(2) of the CEOS describes the duties covered by the various function groups. Thus, function group IV, which covers grades 13 to 18, encompasses the duties described as ‘[a]dministrative, advisory, linguistic and equivalent technical tasks, performed under the supervision of officials or temporary staff’.
7 Under Article 82(2) of the CEOS:
‘Recruitment as a member of the contract staff shall require at least:
…
(c) in function group IV:
(i) a level of education which corresponds to completed university studies of at least three years attested by a diploma, or
(ii) where justified in the interest of the service, professional training of an equivalent level.’
8 Article 82(6) of the CEOS provides:
‘Each institution shall adopt general provisions on the procedures for engagement of contract staff in accordance with Article 110 of the Staff Regulations [of Officials of the European Communities], as necessary.’
9 Article 86(1) of the CEOS provides:
‘Contract staff referred to in Article 3a shall only be recruited:
(i) in grades 13, 14, or 16 for function group IV;
…
The grading of such contract staff within each function group shall take account of the qualifications and experience of the persons concerned. To address specific needs of the institutions, labour market conditions prevailing in the Community may also be taken into account. Within their grade, such contract staff shall be recruited in the first step.’
10 The General Implementing Provisions of 7 April 2004 on the procedures governing the engagement and the use of contract staff at the Commission of the European Communities, published in Administrative Notice No 49-2004 of 1 June 2004, as amended by the Decisions of 27 July 2004, 17 December 2004 and 16 December 2005 (‘the GIP’), define, in Article 2(1)(d), the minimum qualifications required for access to Function Group IV as follows:
‘… completed university studies of at least three years attested by a diploma and appropriate professional experience of at least one year.’
11 Article 2(2) of the GIP provides:
‘Only diplomas and certificates that have been awarded in EU Member States or that are the subject of equivalence certificates issued by the authorities in the said Member States shall be taken into consideration.’
12 Article 7(1)(d) of the GIP governs the classification of the members of the contract staff referred to in Article 3a of the CEOS in function group IV as follows:
‘…
– in grade 13 if the person has professional experience of up to seven years;
– in grade 14 if the person has professional experience of more than seven years;
– in grade 16 if the person has professional experience of more than twenty years.’
13 Under Article 7(3) of the GIP, ‘[i]n order to be taken into account, professional experience must have been acquired in an activity corresponding at least to the level of qualification required for the access to the function group and having a link with one of the institution’s sectors of activity[;i]t shall be taken into account from the date on which the person fulfils the minimum qualifications for engagement set out in Article 2 (including, where applicable, any professional experience required by that Article)’.
14 Under Article 7(4) of the GIP, ‘[i]n the case of a doctorate/PhD the actual duration of the studies shall be taken into account, subject to an upper limit of three years[; i]n the case of other qualifications the statutory duration of the studies shall be taken into account’.
15 The ‘Bologna Process’, undertaken by the Ministers responsible for education in 29 European countries, concluded in the signature of the ‘Bologna Declaration’ of 19 June 1999, which advocates the introduction of a new structure of higher education in Europe featuring three cycles ending, as regards the first, with a ‘Bachelor’s’ degree, as regards the second, with a ‘Master’s’ degree and, as regards the third, with a ‘Doctoral’ degree (‘the Bologna Declaration’).
16 Article 3(1) of the Decreto del Ministro dell’Istruzione, dell’Università e della Ricerca 22 ottobre 2004, n. 270 (Decree of the Italian Minister for Education, Universities and Research of 22 October 2004, No 270, ‘the Decree of 22 October 2004’), which replaced the Decreto del Ministro dell’Università e della Ricerca Scientifica e Tecnologica 3 novembre 1999, n. 509, Regolamento recante norme concernenti l’autonomia didattica degli atenei (Decree of the Minister for Universities and Scientific and Technological Research of 3 November 1999, No 509, Regulation adopting certain provisions concerning the educational independence of universities, ‘the Decree of 3 November 1999’), provides:
‘Universities shall confer the following degrees:
(a) the Bachelor’s degree;
(b) the Master’s degree.’
17 Article 3(6) of the Decree of 22 October 2004 states that ‘the Master’s course is designed to give the student a high level of training, required for the exercise of highly qualified activities in specific fields’.
18 Article 7 of the Decree of 22 October 2004, relating to the award of degrees, reads as follows:
‘1. To obtain a Bachelor’s degree, the student must have acquired 180 credits, including those relating to the obligatory knowledge of the Italian language and another language of the European Union, subject to the special rules on the protection of linguistic minorities. That knowledge must be checked in accordance with the procedure laid down by the pedagogical rules of the university by reference to the levels required in respect of each language.
2. In order to obtain a Master’s degree, the student must have acquired 120 credits.
3. Ministerial Decrees establish the number of credits which the student must have acquired in order to obtain the specialist degree, subject to the provisions laid down by specific legislative provisions or European Union directives.
...’
19 Pursuant to Article 8 of the Decree of 22 October 2004, the normal duration of studies needed to obtain the ‘Laurea’ is three years, while two additional years of study are required to obtain the ‘Laurea magistrale’.
20 Article 13 of the Decree of 22 October 2004, on transitional and final provisions, provides:
‘1. The present Decree replaces the Decree [of 3 November 1999].
…
7. Those who have obtained, pursuant to the provisions referred to in paragraph (1), the degrees of “Laurea”, “Laurea magistrale” or “Laurea specialista”, or a research doctorate, may respectively use the academic titles of “Dottore”, “Dottore magistrale” and “Dottore di recerca”. The title of “Dottore magistrale” may also be used by those who have obtained the degree of “Laurea” under the provisions in force prior to the Decree ... of 3 November 1999.’
Factual background to the dispute
21 The facts giving rise to the dispute are set out as follows in paragraphs 21 to 24 of the judgment under appeal:
‘21 On 9 August 1985, the applicant obtained the “Laurea in scienze agrarie” (degree in agricultural sciences) at the University of Florence (Italy), on completion of four years of studies.
22 On 28 April 2006, the Commission offered the applicant, who had worked for it for several years, a fixed-term contract as a member of the contract staff which was to end on 30 April 2007. That contract was signed on the same day and took effect on 1 May 2006. It was stipulated in the contract that the applicant was employed in function group IV and classified at grade 14, step 1.
23 On 7 July 2006, the applicant brought a complaint under Article 90(1) of the Staff Regulations of Officials of the European Communities (“the Staff Regulations”) in which he contested his classification and requested classification at a higher grade, taking the view that his professional experience exceeded the 20 years required for classification at grade 16.
24 By decision of 30 August 2006, the [authority authorised to conclude contracts] rejected the complaint.’
22 By application lodged at the Registry of the Civil Service Tribunal on 30 November 2006, the appellant brought an action which was registered as Case F‑136/06.
23 The appellant claimed at first instance that the Civil Service Tribunal should annul the contested decision and should order the Commission to pay the costs
24 The Commission contended at first instance that the Civil Service Tribunal should dismiss the action and should make an appropriate order as to costs.
The judgment under appeal
25 In support of his application to the Civil Service Tribunal, the appellant relied on three pleas, alleging, first, infringement of the Community rules on the recognition of higher-education diplomas, second, infringement of the principle of non‑discrimination, and third, a manifest error of assessment and a failure to state reasons. In the context of the third plea, the appellant submitted that, since Article 82(6) of the CEOS empowers the Commission to adopt implementing measures of a procedural nature only, Article 2(1)(c) and Article 7(1)(d) and 7(3) and (4) of the GIP go beyond the limits of that authorisation by dealing with substantive requirements. Furthermore, Article 2(1) of the GIP modifies the requirements of Article 82(2)(c) of the CEOS.
26 The Civil Service Tribunal held that the first two pleas and the plea alleging a manifest error of assessment were closely linked, and that they should be considered jointly. As a preliminary point, it addressed the admissibility of the plea of illegality raised in the context of the third plea.
27 As regards, in the first place, that plea of illegality, the Civil Service Tribunal, in paragraphs 44 and 45 of the judgment under appeal, recalled that, if they are not to be inadmissible, forms of order sought may be based only on grounds of challenge having the same legal basis as those raised in the complaint and that a plea raised before the Community Courts must have already been raised in the pre-litigation procedure, with a view to clearly informing the appointing authority of the complaints raised and thus allowing for a possible amicable settlement. The Civil Service Tribunal also recalled, in paragraph 46 of the judgment under appeal, that the rule that the complaint must be consistent with the action must be applied with an open mind, so that the heads of claim raised in the complaint may be developed by submissions and arguments which do not necessarily appear in the complaint, but which are closely linked to it.
28 The Civil Service Tribunal found, in paragraphs 47 to 50 of the judgment under appeal, that the appellant is essentially raising a plea of illegality against, first, Article 2(1)(d) of the GIP and, second, Article 7(1)(d) and Article 7(3) and (4) of the GIP, although he had not raised the illegality of those provisions in the complaint, which are, moreover, not referred to in the complaint. It concluded, in paragraph 51 of the judgment under appeal, that the plea of illegality was inadmissible.
29 As regards, in the second place, the pleas alleging infringement of the Community rules on the recognition of higher-education diplomas, infringement of the principle of non-discrimination and a manifest error of assessment, the Civil Service Tribunal held in paragraphs 78 to 94 of the judgment under appeal as follows:
‘78 Under Article 82(2) of the CEOS, classification in function group IV requires, primarily, “a level of education which corresponds to completed university studies of at least three years attested by a diploma”.
79 Article 2(1)(d) of the GIP, which sets more stringent conditions than those laid down in Article 82(2) of the CEOS, requires, for access to function group IV, not only the completion of a full cycle of university studies of at least three years attested by a diploma, but also the acquisition of “appropriate professional experience of at least one year”.
80 Under Article 7(1)(d) of the GIP, the classification of members of the contract staff in function group IV takes place at grade 14, if the person concerned has professional experience of more than seven years, or at grade 16 if he has professional experience of more than 20 years. Article 7(3) of the GIP states that the professional experience is taken into account “from the date on which the person fulfils the minimum qualifications for engagement set out in Article 2 [of the GIP] (including, where applicable, any professional experience required by that Article)”.
81 Pursuant to Article 7(4) of the GIP, in the case of a doctorate the actual duration of the studies relating to it is to be taken into account, subject to an upper limit of three years. In the case of other qualifications, that article provides that the statutory duration of the studies is to be taken into account. It must be noted that the wording of that provision does not specify its purpose. However, taken in the general context of Article 7 of the GIP, paragraph 4 of that article must be understood as referring to the taking into account of qualifications for the purpose of calculating the professional experience of members of the contract staff. The parties are, moreover, in agreement on the meaning to be attributed to Article 7(4) of the GIP, as demonstrated by their answers to a question put by the Tribunal during the hearing.
82 Given that the plea of illegality raised by the applicant, which has been declared inadmissible, is to be disregarded, it must be observed that, pursuant to Article 7(3) of the GIP, the Commission took the applicant’s professional experience into account from 10 August 1985 (that is, the day after the date on which he obtained his “Laurea in scienze agrarie” diploma) until 30 April 2006, amounting to a total of 20 years and 8 months, from which one year was deducted, since the minimum qualifications for access to function group IV, set by Article 2(2)(d) of the GIP, already required one year of professional experience. Thus, pursuant to Article 7(1)(d) and 7(3) of the GIP, the Commission recognised the applicant as having 19 years and 8 months of professional experience, which was insufficient to classify him in grade 16.
83 The applicant nevertheless maintains that his “Laurea in scienze agrarie”, obtained in 1985, is equivalent, since the integration of the recommendations of the Bologna Declaration in Italian law, to a “Bachelor’s” degree plus a “Master’s” degree. Consequently, as he is the holder of a “Bachelor’s” degree and therefore fulfils the minimum conditions in terms of diplomas to be recruited as a member of the contract staff in function group IV, his “Master’s” degree should, under Article 7(4) of the GIP, be regarded as one year of professional experience, enabling him to reach the threshold of 20 years of professional experience required for classification in grade 16.
84 In support of his line of argument, the applicant submits that the equivalence of his “Laurea in scienze agrarie” should be examined in the light of Directive 89/48, the Italian legislation and the principle of non discrimination.
85 However, it must first be observed that Directive 89/48 cannot be relied on to support the applicant’s claims. The effect of the harmonisation carried out by Directive 89/48 is not to limit the discretion which an institution enjoys when comparing the respective value of diplomas in its recruitment policy. Under the scheme of Directive 89/48, the comparison of diplomas is carried out for the purpose of access to certain regulated activities in the different Member States. Such an assessment cannot be confused with the complex assessment of the respective academic value of the qualifications obtained in the different Member States for the purpose of determining the grade attached to a post within an institution of the European Communities (see, to that effect, Case T-299/97 Alonso Morales v Commission [1999] ECR-SC I-A-249 and II-1227, paragraphs 35 and 36, and [Case T-25/03] De Stefano v Commission [2005] [ECR-SC I-A-125 and II-573,] paragraph 53).
86 Secondly, as regards the question whether the Commission correctly took into account the Italian national law relating to the value of the “Laurea in scienze agrarie” diploma for the purpose of the applicant’s classification in grade, it must first be recalled that the Bologna Declaration to which the applicant refers was intended to set a common framework for European diplomas, based on three cycles of studies, attested by, respectively, the “Bachelor’s” degree, “Master’s” degree and “Doctoral” degree.
87 Next, according to the applicant, the Italian legislation, in particular Article 3(6) and Article 7 of the Decree of 22 October 2004 and the Decree of 5 May 2004, and the documents referred to in paragraph 53 of this judgment concerning his diploma, show that that diploma is equivalent to a “Laurea” (equivalent to a “Bachelor’s” degree, obtained on completion of three years of studies) plus a “Laurea Magistrale” (equivalent to a “Master’s” degree, obtained on completion of two years of studies after the award of the “Laurea”).
88 Even on the supposition that the Italian legislation entails equivalence as between the applicant’s diploma, obtained after four years of studies, and a “Master’s” degree, obtained after five years of studies, it cannot, however, be inferred, for the purposes of determining the applicant’s grade, that the Commission is under an obligation to treat the applicant’s diploma as equivalent to two diplomas, namely a “Bachelor’s” degree obtained after three years of studies and, subsequently, a “Master’s” degree, obtained on completion of two further years of studies. Furthermore, the documents issued by the University of Florence, dated 2 and 8 May 2006, on which the applicant relies, do not mention that his “Laurea in scienze agrarie” diploma is equivalent to obtaining two degrees. As regards the letter signed by Professor Mario Falciai, dated 9 May 2006, which states that the “Laurea in scienze agrarie” diploma obtained by the applicant is equivalent to a total of five years of studies, corresponding to a “Bachelor’s” degree plus a “Master’s” degree, this does not by itself constitute sufficient proof that, under the Italian legislation, his diploma is equivalent to two degrees.
89 In those circumstances, the applicant cannot successfully argue that the Commission failed to have regard for the Italian legislation by refusing to count the applicant’s “Master’s” degree as including one year of professional experience.
90 Since the arguments put forward in support of the plea alleging a manifest error of assessment are closely linked to those relied on in support of the head of claim alleging non-compliance with the Italian legislation, the plea alleging a manifest error of assessment must be rejected on the same grounds, without there being any need to consider its admissibility.
91 Thirdly, as regards the plea alleging infringement of the principle of non‑discrimination, suffice it to note, first, that the applicant’s position cannot be compared to that of persons who, having completed their studies after the introduction of the new system of degrees, are entitled to have their “Master’s” degree counted as one year of professional experience.
92 The applicant is not in a position where, after having obtained a first diploma satisfying the conditions set out in Article 2(1)(d) of the GIP, he continued his studies in order to obtain a higher level diploma, in which case the issue would arise as to whether the studies completed in order to obtain that second diploma are to be taken into account as professional experience, pursuant to Article 7(4) of the GIP.
93 Next, with regard to the head of claim that the applicant was the victim of discrimination by reason of the inconsistency between the positions adopted, first, by the Commission, which is the institution to which he is attached, and, secondly, by the other institutions, suffice it to point out that the applicant has not produced any hard factual or legal evidence to substantiate that claim, even if such evidence were capable of placing in issue the legality of the contested decision.
94 It follows from all the foregoing that the pleas alleging infringement of the Community rules on the recognition of higher-education diplomas, infringement of the principle of non-discrimination and manifest error of assessment must be rejected as unfounded.’
30 As regards, in the third place, the plea alleging failure to state adequate reasons, the Civil Service Tribunal, after reviewing the case-law in paragraphs 99 and 100 of the judgment under appeal, held, in paragraphs 102 and 103 of that judgment, that, although no reasons were given for the appellant’s classification, the decision rejecting the complaint showed clearly that the deduction of one year of professional experience results from the combined application of Article 2(1) and Article 7(3) of the GIP and gave the reason why the ‘Laurea in scienze agrarie’ diploma did not correspond to two degrees, with the result that the ‘Master’s’ degree could not be taken into account in the calculation of the appellant’s professional experience. The Civil Service Tribunal found, in paragraph 104 of the judgment under appeal, that the appellant was in a position to understand the scope of the contested decision, as was apparent from the explanations provided in the application.
31 Accordingly, the Civil Service Tribunal dismissed the action and ordered each party to bear its own costs.
The appeal
Procedure
32 By document lodged at the Registry of this Court on 14 February 2009, the appellant brought the present appeal.
33 Article 146 of the Rules of Procedure provides that, after the submission of pleadings, the General Court, acting on a report from the Judge-Rapporteur and after hearing the parties, may decide to rule on the appeal without an oral procedure unless one of the parties submits an application setting out the reasons for which he wishes to be heard. The application is to be submitted within a period of one month from notification to the party of the closure of the written procedure.
34 Acting on a report from the Judge-Rapporteur, the General Court (Appeal Chamber) held that no application for a hearing to be arranged had been submitted by the parties within the period of one month from notification of the closure of the written procedure and decided to give a ruling without an oral procedure, pursuant to Article 146 of the Rules of Procedure.
Forms of order sought by the parties
35 The appellant claims that the Court should:
– set aside the judgment under appeal and thus annul the contested decision;
– order the Commission to pay the costs.
36 The Commission contends that the Court should:
– dismiss the appeal;
– order the appellant to pay the costs of the appeal.
Law
37 The appellant claims that the judgment under appeal should be set aside and relies on four pleas: the first plea alleges that the plea alleging the illegality of certain of the GIP was erroneously rejected on the ground that it was inadmissible, the second, misinterpretation of the Italian legislation, the third, infringement of the principle of non-discrimination, and the fourth, a contradiction between the grounds of the judgement under appeal.
The first plea, alleging that the plea alleging the illegality of certain of the GIP was erroneously rejected on the ground that it was inadmissible
– Arguments of the parties
38 The appellant states that he claimed that the GIP was illegal, on the ground that, not only at procedural level, but substantively, they altered the CEOS, which were adopted in the form of a regulation. Thus, the GIP are without a legal basis and, in accordance with the case law, the Court should verify of its own motion any disputes related to the competence of the Commission. By declaring that plea inadmissible, the Civil Service Tribunal therefore committed an error of law.
39 In any event, even if it were not for the Civil Service Tribunal to raise that plea of its own motion, that plea is admissible. On that point, the appellant observes that, according to settled case-law, the distortion of evidence, which is the clearly incorrect assessment of the existing evidence, falls within the jurisdiction of the General Court in appeal proceedings. The Civil Service Tribunal rejected the admissibility of the plea of illegality raised on the grounds that ‘[t]he terms of the complaint show clearly that in it the applicant did not claim that the GIP were unlawful’ and that ‘[t]he articles of the GIP against which the plea of illegality invoked in the application is directed are, moreover, not referred to in any way in the complaint’.
40 According to the appellant, the purpose of his complaint was to establish the illegality of the criteria for his classification, as he stated in it that ‘the adoption of the above mentioned criteria don’t follow the general principles of law, they create discrimination and unfair treatment between European citizenships’. The appellant claims that he thus called into question the legality of the specific criterion set out in Article 2(1)(c) of the GIP, in so far as that article states that the conditions for appointment in function group IV are ‘a level of education which corresponds to completed university studies of at least three years attested by a diploma’. The fact that the complaint did not contain any reference to that article is irrelevant, since the requirement of consistency between the complaint and the action should be applied with an open mind. The substance of the complaint is not intended to be strictly and definitively binding for the purposes of the contentious stage of the procedure, provided always that the legal action does not modify the legal basis or the subject-matter of the complaint. The heads of claim set out in the complaint may be developed by pleas and arguments which do not necessarily appear in the complaint, but which are closely linked to it. According to the appellant, since the complaint and the application were consistent, the Civil Service Tribunal distorted the facts and committed an error of law.
41 The Commission contends that the plea should be rejected.
– Findings of the Court
42 By his first plea, the appellant essentially complains that the Civil Service Tribunal, first, failed to consider of its own motion the plea alleging the Commission’s lack of competence to adopt the provisions on the basis of which it adopted the contested decision, next, considered that that plea of illegality had not been raised in the complaint and finally, did not take into consideration the fact that, although there was no reference in the complaint to Article 2(1) of the GIP, the complaint should have been examined with an open mind, which should have led to the plea of illegality being regarded as admissible.
43 As regards the first complaint, it must be recalled that, according to settled case‑law, pleas contesting the formal legality of an act or pleas of inadmissibility may be raised by the Court of its own motion, so that a finding which touches on the competence of the institution which adopted the act must be raised by the Court of its own motion even though none of the parties has asked it to do so (see, to that effect, Case 19/58 Germany v High Authority [1960] ECR 225, 233, and Case C‑210/98 P Salzgitter v Commission [2000] ECR I‑5843, paragraph 56).
44 However, it must be found that, in the present case, the appellant did not contest the Commission’s competence to adopt the GIP, but essentially raised, as the Civil Service Tribunal rightly held in paragraph 47 of the judgment under appeal, a plea of illegality against, first, Article 2(1)(d) of the GIP and, second, Article 7(3) and (4) of the GIP, on the ground that they were contrary to the CEOS.
45 It follows that the appellant did not contest the Commission’s competence, but raised a plea of illegality against the GIP with regard to the CEOS.
46 As regards the second complaint, according to which the appellant should have raised the illegality of those provisions in the context of the complaint, it need merely be pointed out, first, that the Civil Service Tribunal rightly held, in paragraphs 44 to 46 of the judgment under appeal, that the case‑law according to which, if they are not to be inadmissible, forms of order may be based only on grounds of challenge having the same legal basis as those relied on in the complaint and, second, that it was possible, without distortion of the complaint, for the Tribunal to find, in paragraphs 48 and 49 of the judgment under appeal, that the provisions against which the plea of illegality were directed were not referred to in the complaint and that no head of claim was formulated expressly or implicitly with regard to them. The Civil Service Tribunal therefore correctly concluded that the plea of illegality had not been raised in the complaint.
47 With regard to the third plea, according to which, although there was no reference in the complaint to Article 2(1)(d) of the GIP, the Civil Service Tribunal had not examined the complaint with an open mind, it must be held that, having regard to the arguments set out in paragraph 46 above, even with an open mind, the Civil Service Tribunal could infer from the complaint that the appellant had not raised a plea of illegality against the GIP.
48 It follows that the Civil Service Tribunal correctly held that, first, the appellant raised a plea of illegality and not a plea of lack of competence, next, the plea of illegality, to be admissible, should have been raised in the complaint and, finally, even with an open mind, it cannot be considered that the appellant had raised the plea of illegality.
49 It follows from the foregoing that the first plea must be rejected.
The second plea, alleging misinterpretation of the Italian legislation
– Arguments of the parties
50 The appellant recalls that the General Court has already held that in the absence of an express reference, the application of Community law may sometimes necessitate a reference to the laws of the Member States, where the European Union judicature cannot identify in European Union law criteria enabling it to define the meaning and scope of such a provision by way of independent interpretation. According to the appellant, the determination of the value of a diploma is to be made with respect to the national legislation of the place where that diploma was obtained, as that determination lies within the exclusive competence of Member States. The Civil Service Tribunal should therefore have interpreted the criteria according to Italian legislation and held that the diploma obtained by the appellant was equivalent to a ‘Master’s’, in order to ensure that the rules on admission to a competition are identical whether the diploma had been obtained before or after the Bologna reform. The Civil Service Tribunal therefore committed an error in ruling that, although Italian legislation provides for the equivalence of diplomas, it is irrelevant. In that regard, the appellant points out that the European Ombudsman found in a separate case that the Commission did not take the differences in the Member States’ university systems sufficiently into account and that it should take the necessary appropriate action in this regard as soon as possible. By failing to observe the Italian legislation, the Civil Service Tribunal erred in law.
51 The Commission contends that this plea should be rejected.
– Findings of the Court
52 First of all it should be observed that, in paragraph 84 of the judgment under appeal, the Civil Service Tribunal notes that the appellant submits that the equivalence of his ‘Laurea in scienze agrarie’ should be examined in the light of Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years’ duration (OJ 1989 L 19, p. 16), the Italian legislation and the principle of non discrimination.
53 The Civil Service Tribunal held, as regards Directive 89/48 (paragraph 85 of the judgment under appeal), that it was not intended to limit the discretion which an institution enjoys when comparing the respective value of diplomas in its recruitment policy and, as regards the principle of non-discrimination (paragraphs 91 to 93 of the judgment under appeal), that it had not been infringed.
54 With regard to, more specifically, the alleged infringement of the Italian legislation, the Civil Service Tribunal held, first, in paragraph 86 of the judgment under appeal, that the Bologna Declaration was intended only to set a common framework for European diplomas, based on three cycles of studies and, second, in paragraphs 87 and 88 of the judgment under appeal, even if it were to appear from the Italian legislation that the appellant’s diploma, obtained after four years of studies, was equivalent to a ‘Master’s’ degree, a diploma obtained after five years of studies, it cannot be inferred, for the purposes of establishing the appellant’s grade, that the Commission is under an obligation to treat that diploma as equivalent to two diplomas, namely a ‘Bachelor’s’ degree, obtained after three years’ of study, and a ‘Master’s’ degree, obtained after two further years of studies. Furthermore, the Civil Service Tribunal added that the documents issued by the University of Florence, dated 2 and 8 May 2006, do not support such a finding and that the letter signed by an Italian professor, dated 9 May 2006, cannot by itself constitute sufficient proof.
55 In that regard, it was without distorting the Italian legislation that the Civil Service Tribunal held that it does not result from the legislation, that for the purposes of establishing the appellant’s grade, it must be considered that he completed university studies of three years (‘Bachelor’s’) and of two further years (‘Master’s’).
56 Although it appears from the Italian legislation that the holder of a ‘Laurea’ obtained before the introduction of the new system of diplomas may, like the holder of a ‘Master’s’ obtained after the introduction of that system, use the title of ‘Dottore magistrale’, it must none the less be held that it is not clear from that legislation, notwithstanding the equivalence of a ‘Laurea’ diploma obtained before the introduction of the new system of diplomas and a ‘Master’s’ degree obtained after the introduction of that system, that a ‘Laurea’ diploma, such as the appellant’s diploma, corresponds to two degrees, namely a ‘Bachelor’s’ degree, obtained after three years’ of study, and a ‘Master’s’ degree, obtained after two further years of studies.
57 Furthermore, it should be pointed out that the appellant did not dispute the Civil Service Tribunal’s finding, set out in paragraph 88 of the judgment under appeal that, first, the documents issued by the University of Florence, dated 2 and 8 May 2006, do not mention that the ‘Laurea in scienze agrarie’ diploma is equivalent to obtaining two degrees and, second, the letter signed by an Italian professor, dated 9 May 2006, cannot by itself constitute sufficient proof that his diploma is equivalent to two degrees. However, he did not claim that the Civil Service Tribunal distorted those documents.
58 Accordingly, the second plea must be rejected.
The third plea, alleging infringement of the principle of non-discrimination
– Arguments of the parties
59 The appellant complains that the Civil Service Tribunal held, in paragraph 92 of the judgment under appeal, that he is not in a position where, after having obtained a first diploma satisfying the conditions set out in Article 2(1)(d) of the GIP, he continued his studies in order to obtain a higher level diploma, in which case the issue would arise as to whether the studies completed in order to obtain that second diploma are to be taken into account as professional experience, pursuant to Article 7(4) of the GIP. Accordingly, the appellant alleges that the Civil Service Tribunal erred in law when it held, in paragraph 91 of the judgment under appeal, that his position cannot be compared to that of persons who, having completed their studies after the introduction of the new system of diplomas, are entitled to have their ‘Master’s’ degree counted as one year of professional experience.
60 According to the appellant, the objective of the Italian legislation is precisely to place the holders of diplomas, whether obtained before or after the Bologna reform, in the same legal position. Even supposing that the judgment under appeal is well founded, the appellant points out that discrimination occurs not only where identical situations are treated differently, but also where different situations are treated identically, as in the present case. The appellant alleges that his situation cannot be compared to that of a person who only completed a three-year course. Since he has completed a four-year course and is legally holder of a diploma equivalent to a ‘Master’s’, he cannot be treated in an identical manner to a person holding a first cycle degree.
61 The Commission contends that the plea should be rejected.
– Findings of the Court
62 It is settled case-law that the principle of non-discrimination requires that comparable situations must not be treated differently and different situations must not be treated alike unless such treatment is objectively justified (see Case T‑373/94 Werners v Council and Commission [2006] ECR II-4631, paragraph 98, and the case-law cited).
63 According to the appellant, his situation is identical to the situation of those who completed their studies after the introduction of the new system of diplomas, since the objective of the Italian legislation is to place holders of diplomas in the same legal position irrespective of the date on which the diplomas were obtained. The Civil Service Tribunal erred in law by comparing the appellant’s situation to that of a person who had only completed a three‑year course, although the appellant is in the same situation as persons who had obtained their diplomas after the Bologna reform.
64 In that regard, it must be found that, notwithstanding the grant of the title of ‘Dottore Magistrale’ to holders of a ‘Laurea’ before the introduction of a new system of diplomas, in the same manner as to holders of a ‘Master’s degree obtained after the introduction of that system, it cannot be concluded that these two situations are identical. The conditions for obtaining those diplomas, in particular the time required for obtaining them, are different. It cannot therefore be legitimately held that the appellant obtained two diplomas, a ‘Bachelor’s’ degree and a ‘Master’s’ degree, since the ‘Master’s’ degree is to be regarded as one year of professional experience.
65 It follows that, as the Civil Service Tribunal found in paragraph 92 of the judgment under appeal, the appellant cannot be considered to be in a position where, after having obtained a first diploma satisfying the conditions set out in Article 2(1)(d) of the GIP, he continued his studies in order to obtain a higher level diploma, in which case the issue would arise as to whether the studies completed in order to obtain that second diploma are to be taken into account as professional experience, pursuant to Article 7(4) of the GIP.
66 Since the situations are different, the Civil Service Tribunal was right to hold that the principle of non-discrimination had not been infringed.
The fourth plea, alleging a contradiction between the grounds of the judgment under appeal
– Arguments of the parties
67 The appellant refers to an alleged inconsistency between paragraphs 35 and 88 of the judgment under appeal. Whereas, in paragraph 35 of that judgment, the Civil Service Tribunal established the relevance of having regard to the Italian legislation in the present case, it is clear from paragraph 88 of the judgment under appeal, that it did not apply that same legislation for the purposes of deciding the case. The Civil Service Tribunal thus took the Italian legislation into account, but did not apply it for the purpose of resolving the dispute.
68 The Commission contends that the plea should be rejected.
– Findings of the Court
69 It should be recalled that, in paragraph 35 of the judgment under appeal, the Civil Service Tribunal held that ‘it is relevant to have regard to the Italian legislation on university qualifications for the purpose of applying the provisions of the CEOS’. In paragraph 88 of the judgment under appeal, the Civil Service Tribunal held, ‘[e]ven on the supposition that the Italian legislation entails equivalence as between the applicant’s diploma, obtained after four years of studies, and a “Master’s” degree, obtained after five years of studies, it cannot, however, be inferred, for the purposes of determining the applicant’s grade, that the Commission is under an obligation to treat the applicant’s diploma as equivalent to two diplomas, namely a “Bachelor’s” degree obtained after three years of studies and, subsequently, a “Master’s” degree, obtained on completion of two further years of studies.’ It went on to state, first, that ‘the documents issued by the University of Florence, dated 2 and 8 May 2006, on which the applicant relies, do not mention that his “Laurea in scienze agrarie” diploma is equivalent to obtaining two degrees’ and, second, that, ‘[a]s regards the letter signed by Professor Mario Falciai, dated 9 May 2006, which states that the “Laurea in scienze agrarie” diploma obtained by the applicant is equivalent to a total of five years of studies, corresponding to a “Bachelor’s” degree plus a “Master’s” degree, this does not by itself constitute sufficient proof that, under the Italian legislation, his diploma is equivalent to two degrees.’
70 Having regard to paragraph 35 of the judgment under appeal and to the second and third sentences of paragraph 88 of the judgment under appeal, it must be noted that the Civil Service Tribunal correctly and without being inconsistent held, relying on the Italian legislation, that even if the Civil Service Tribunal were to find that a ‘Laurea’ diploma obtained before the introduction of the new system of diplomas is equivalent to a ‘Master’s’ obtained after the introduction of that system, it cannot, in any event, be inferred from that legislation that the appellant’s diploma must be deemed equivalent to two degrees, namely a ‘Bachelor’s’ and a ‘Master’s’. That interpretation is supported by the last two sentences of paragraph 88, in which the Civil Service Tribunal pointed out, first, that the equivalence to two degrees is not apparent from the documents issued by the University of Florence, dated 2 and 8 May 2006, and, second, that the letter signed by an Italian professor, dated 9 May 2006, produced by the appellant, cannot by itself constitute proof that, according to Italian legislation, the appellant’s diploma is equivalent to two degrees.
71 It must therefore be held that there is no contradiction between paragraphs 35 and 88 of the judgement under appeal, and that the fourth plea cannot be upheld.
72 Therefore, the appeal must be dismissed.
Costs
73 Pursuant to the first paragraph of Article 148 of the Rules of Procedure, where the appeal is unfounded, the General Court is to make a decision as to costs.
74 Under the first subparagraph of Article 87(2) of the same rules, which apply to the procedure on appeal pursuant to Article 144 thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the appellant has been unsuccessful and the Commission has asked for costs, the appellant must be ordered to bear his own costs and to pay those incurred by the Commission on the appeal.
On those grounds,
THE GENERAL COURT (Appeal Chamber)
hereby:
1. Dismisses the appeal.
2. Orders Mr Enzo Reali to bear his own costs and to pay those incurred by the European Commission on the appeal.
Jaeger | Forwood | Martins Ribeiro |
Delivered in open court in Luxembourg on 27 October 2010.
[Signatures]