JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
8 March 2023 (*)
(Civil service – Members of the temporary staff – Recruitment – Commission’s pilot programme for recruiting junior administrators– Rejection of application – Eligibility conditions – Criterion of a maximum of three years of professional experience – Equal treatment – Discrimination based on age)
In Case T‑763/21,
SE, represented by L. Levi and A. Blot, lawyers,
applicant,
v
European Commission, represented by B. Schima, L. Vernier and I. Melo Sampaio, acting as Agents,
defendant,
THE GENERAL COURT (Fourth Chamber),
composed of R. da Silva Passos, President, N. Półtorak (Rapporteur) and I. Reine, Judges,
Registrar: E. Coulon,
having regard to the written part of the procedure,
having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,
gives the following
Judgment
1 By his action based on Article 270 TFEU, the applicant, SE, seeks, first, annulment of the decision of the European Commission of 23 April 2021 by which the Commission rejected his application for the pilot ‘Junior Professionals Programme’ (‘the JPP’) and, second, compensation for the damage which he claims to have suffered as a result of that decision.
Background to the dispute
2 On 16 May 2018, the applicant took up his duties at the Commission as a member of the temporary staff in grade AST 3 under Article 2(b) of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’) for a period of three years. On 18 January 2021, the applicant’s fixed-term contract was extended for a period of two years, until 15 May 2023.
3 In March 2021, the Commission issued a call for expressions of interest (‘the CEI’) with the aim of recruiting junior administrators, otherwise known as ‘young professionals’, for the JPP.
4 On 23 March 2021, following publication of the CEI, the applicant submitted his application to the relevant Commission services.
5 On 23 April 2021, the Commission adopted its decision in which it rejected the applicant’s application for the JPP on the ground that he was ineligible for the programme.
6 On 27 April 2021, the applicant lodged a complaint pursuant to Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) against the decision rejecting his application.
7 On 27 August 2021, the Commission adopted the decision rejecting his complaint against the decision rejecting his application.
Forms of order sought
8 The applicant claims that the Court should:
– annul the decision rejecting his application;
– annul, in so far as is necessary, the decision rejecting his complaint;
– order the Commission to pay, first, the sum of EUR 42 592, to which a coefficient of 50% is to be applied, as compensation for the loss of the opportunity to be reclassified as a member of the temporary staff at grade AD 5 from 1 October 2021 and, second, the sum of EUR 600 000 as compensation for the loss of the opportunity to become an official by participating in internal competitions reserved for temporary staff in the administrators’ function group (AD);
– order the Commission to pay the costs.
9 The Commission contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
Subject matter of the action
10 It is clear from the claim for annulment that the applicant is asking the Court to annul not only the decision rejecting his application but also, in so far as is necessary, the decision rejecting his complaint.
11 In that regard, the applicant submits that the decision rejecting the complaint cannot be regarded as a mere confirmation of the decision rejecting his application because it is in that decision that the authority empowered to conclude contracts of employment (‘the AECE’) replies, for the first time, to the allegations of discrimination based on age set out in the complaint of 27 April 2021.
12 The Commission contends that the decision rejecting the complaint merely confirms and supplements the statement of reasons for the decision rejecting his application, as it responds to the allegations made in the applicant’s complaint. Since it does not examine a new application for the first time, the decision rejecting the complaint cannot, as such, adversely affect the applicant.
13 According to settled case-law, an administrative complaint, such as that referred to in Article 90(2) of the Staff Regulations, and its rejection, whether express or implied, constitute an integral part of a complex procedure and are no more than a precondition for bringing the matter before the judicature. Consequently, the action before the judicature, even if formally directed against the rejection of the complaint, has the effect of bringing before the judicature the act adversely affecting the applicant against which the complaint was submitted, except where the scope of the rejection of the complaint would differ from that of the measure against which that complaint was made (see judgment of 27 October 2016, CW v Parliament, T‑309/15 P, not published, EU:T:2016:632, paragraph 27 and the case-law cited).
14 Moreover, in view of the evolving nature of the pre-litigation procedure, an express decision rejecting a complaint which contains only further particulars and thus merely reveals, in a detailed manner, the grounds for confirming the earlier act, does not constitute an act adversely affecting the person concerned. Nevertheless, that same evolving nature of the pre-litigation procedure means that those further particulars must be taken into consideration in assessing the lawfulness of the contested act (judgment of 13 July 2022, TL v Commission, T‑677/21, not published, EU:T:2022:456, paragraph 17).
15 In the present case, the Court notes that the decision rejecting the complaint confirms the decision rejecting the application, by setting out the grounds for the AECE’s position with regard to that decision. Therefore, the fact that, in response to the arguments put forward by the applicant in the complaint, the AECE was prompted to provide further details concerning the grounds for that decision cannot justify the decision rejecting the complaint being regarded as a separate measure adversely affecting the applicant.
16 Thus, in accordance with the case-law cited in paragraph 13 above, the Court finds that the measure adversely affecting the applicant is the decision rejecting his application (‘the contested decision’) and that the claim for annulment must be regarded as being directed against that decision alone, the lawfulness of which must be examined also taking into account the statement of reasons in the decision rejecting the complaint.
The claim for annulment
17 In support of his claim for annulment, the applicant raises three pleas in law, alleging, first, discrimination based on age contrary to Article 21(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’), Article 1d of the Staff Regulations and Article 10(1) of the CEOS, second, misuse of powers and lack of competence and, third, that the CEI was unlawful.
18 As regards the first plea, the Commission submits that this is, in essence, a plea of illegality in respect of point II.2 of the CEI, which establishes that, in order to be admitted to the JPP, candidates must have a maximum of three years of professional experience (‘the criterion at issue’), since, in the contested decision, the administration merely applied that provision of the CEI. For that reason, the Commission contends that the third plea, based on a plea of illegality raised against the CEI, is no different from the line of argument developed by the applicant in the first plea as regards the allegations of infringement of Article 21(1) of the Charter, Article 1d of the Staff Regulations and Article 10(1) of the CEOS. The applicant acknowledges that the first plea in law involves a plea of illegality raised against the CEI, which requires that candidates have a maximum of three years of professional experience.
19 On that point, the Court observes that, in the context of the third plea, as regards the plea of illegality raised against the CEI, the applicant merely refers to the arguments which he submitted in the first plea in the application. In those circumstances, and as the applicant himself acknowledges in the reply, those two pleas in law contain a plea of illegality raised against the CEI and are based on the same arguments.
20 That conclusion is not called into question by the applicant’s argument that the first plea and the arguments set out therein also seek the annulment of the contested decision, independently of the plea of illegality raised against the CEI. By that decision, the AECE merely applied point II.2 of the CEI to the applicant. Furthermore, in the first plea, the applicant does not put forward any argument which does not concern the application of the CEI in the contested decision.
21 In the light of the foregoing, it is appropriate to examine the first and third pleas together.
First and third pleas in law
22 By putting forward arguments against the contested decision, the applicant pleads, in essence – as mentioned in paragraphs 19 and 20 above – that the CEI is unlawful and raises two complaints in that regard. By the first complaint, the applicant submits that the Commission discriminated against persons in a similar situation in the context of the JPP selection procedure. In that regard, he submits that the criterion at issue gives rise to discrimination based on age, in that young professionals are overwhelmingly favoured in recruitment matters.
23 By the second complaint, the applicant submits that the Commission discriminated against persons in a similar situation during the JPP as regards the application of certain provisions of the Staff Regulations and the CEOS to members of the temporary staff recruited on the basis of Article 2(b) of the CEOS. He explains that JPP participants enjoy, as members of the temporary staff, an ‘array of rights’ of which he himself was deprived due to his status as a member of the temporary staff recruited on the basis of Article 2(b) of the CEOS, namely a certain degree of mobility, the possibility of reassignment without a new contract, an increase in pay, and access to internal competitions.
– Admissibility
24 The Commission contends that the second complaint and a number of arguments raised by the applicant in the first and third pleas are inadmissible. According to the Commission, they do not relate to provisions of the CEI which form the basis of the contested decision or which have a direct link with that decision.
25 The Court notes that under Article 277 TFEU, any party may, in proceedings in which an act of general application adopted by an institution, body, office or agency of the European Union is at issue, plead the grounds specified in the second paragraph of Article 263 TFEU in order to invoke before the Court of Justice of the European Union the inapplicability of that act (see judgment of 8 September 2020, Commission and Council v Carreras Sequeros and Others, C‑119/19 P and C‑126/19 P, EU:C:2020:676, paragraph 66 and the case-law cited).
26 According to settled case-law, the scope of a plea of illegality provided for under Article 277 TFEU is limited to what is necessary for determination of the dispute. Further, the Court has held previously that, in the context of a recruitment procedure, an applicant could, in an action challenging steps in such procedure, contest the legality of earlier steps which were closely linked to them (see judgment of 23 March 2004, Theodorakis v Council, T‑310/02, EU:T:2004:90, paragraph 48 and the case-law cited).
27 Thus, in an action for annulment brought against individual decisions, the provisions of an act of general application that constitute the basis of those decisions or that have a direct legal connection with such decisions may legitimately form the subject matter of a plea of illegality (judgments of 17 December 2020, BP v FRA, C‑601/19 P, not published, EU:C:2020:1048, paragraph 29, and of 21 September 2022, Casanova v EIB, T‑266/21, not published, EU:T:2022:566, paragraph 27).
28 By contrast, it is clear from case-law that a plea of illegality covering an act of general application in respect of which the individual decision being challenged does not constitute an implementing measure is inadmissible (judgments of 17 December 2020, BP v FRA, C‑601/19 P, not published, EU:C:2020:1048, paragraph 30, and of 21 September 2022, Casanova v EIB, T‑266/21, not published, EU:T:2022:566, paragraph 28).
29 In the first place, as regards the inadmissibility of the second complaint, the Commission submits that it is unconnected to the grounds of the contested decision, since it does not concern the criterion at issue on which eligibility for the JPP is contingent, but rather the rules governing the functioning of the programme.
30 First, the Court notes that, in the contested decision, clarified by the decision rejecting the complaint, the AECE informed the applicant that he did not fulfil the criterion at issue, which is set out in point II.2 of the CEI. Second, the applicant’s allegations that the candidates recruited for the JPP enjoy an ‘array of rights’ which he is denied are intended to criticise provisions of the CEI other than point II.2 thereof, which was applied in the contested decision.
31 Therefore, since the contested decision is a decision rejecting an application on the ground that the applicant was ineligible because he did not fulfil the criterion at issue, the potential unlawfulness of the JPP rules is not capable of affecting the validity of the contested decision. Those rules do not constitute the legal basis for the contested decision and are not linked directly or indirectly to it (see, to that effect, judgments of 17 December 2020, BP v FRA, C‑601/19 P, not published, EU:C:2020:1048, paragraph 40, and of 12 September 2018, De Geoffroy and Others v Parliament, T‑788/16, not published, EU:T:2018:534, paragraph 82). Thus, in accordance with the case-law cited in paragraphs 26 to 28 above, and in the absence of a close link between the unlawfulness relied on vis-à-vis the rules governing the JPP and the grounds of the contested decision, the plea of illegality must be declared inadmissible in that regard.
32 Consequently, the second complaint must be dismissed as inadmissible.
33 In the second place, the Commission submits that the allegations of infringement of Articles 2 and 9 of the CEOS are inadmissible, on the same grounds as those set out in paragraph 29 above. By those allegations, the applicant submits, in essence, that the fact that JPP participants obtain contracts as members of the temporary staff on the basis of Article 2(a) or (b) of the CEOS, even if their recruitment does not enable a vacant post to be filled, is contrary to Articles 2 and 9 of the CEOS. It follows that the objective of the JPP is unlawful.
34 In that regard, as mentioned in paragraphs 26 to 28 above, the scope of a plea of illegality must be limited to what is necessary for determination of the dispute and, in the absence of a close link between the unlawfulness of the measure of general application relied on and the grounds of the contested decision, the plea of illegality must be declared inadmissible.
35 In the present case, when he alleges that the fact that participants in the JPP obtain contracts as members of the temporary staff on the basis of Article 2(a) or (b) of the CEOS is contrary to Articles 2 and 9 of the CEOS, the applicant is in fact challenging the lawfulness of the conditions of employment of participants in the JPP, and not the criterion at issue as applied in the contested decision. Therefore, those arguments do not seek to call into question the provisions of the CEI which constitute the legal basis of the contested decision, nor do they have any direct legal connection with that decision.
36 In those circumstances, the applicant’s claims alleging that the CEI is unlawful on the basis that it infringes Articles 2 and 9 of the CEOS must be held to be inadmissible.
37 In the third place, the Commission contends that, as regards the argument alleging infringement of Article 29 of the Staff Regulations, the applicant does not put forward any evidence in his application in support of the third plea, with the result that that argument is inadmissible since it infringes Article 76(d) of the Rules of Procedure of the General Court.
38 In that regard, it must be observed that, in the reply, the applicant clarified that argument by stating that the infringement of Article 29 of the Staff Regulations was evident in that the Commission should first have sought to fill the posts occupied by participants in the JPP on the basis of the procedure laid down in Article 29 of the Staff Regulations. However, even if that argument as explained above could have been understood to that effect from the application and was such as to enable the Commission to prepare its defence, the fact remains that it also seeks, in essence, to challenge the lawfulness of the conditions of employment of participants in the JPP, and not the criterion at issue as applied in the contested decision. Consequently, that argument does not have a direct legal link with the contested decision. It follows that it is inadmissible on the same grounds as those set out in paragraphs 34 to 36 above.
39 In the fourth place, the applicant claims that the requirement to have a maximum of three years of professional experience overwhelmingly favours one category of Commission trainees, namely so-called ‘blue book’ trainees (‘“blue book” trainees’), in breach, first, of Commission Decision C(2005) 458 of 2 March 2005 laying down rules governing the official traineeships scheme of the Commission and, second, Article 1 of the CEOS. The Commission contends that those arguments are inadmissible, for the same reason as that set out in paragraph 29 above.
40 In that regard, the Court notes that, by those allegations, the applicant is not seeking, contrary to the Commission’s assertions, to dispute the lawfulness of the JPP as such, but to claim that the objective of the JPP, which, according to the Commission, is the reason for the criterion at issue, is ‘illegitimate’ in so far as it seeks to favour ‘blue book’ trainees. The Court therefore finds that those allegations are put forward to substantiate the claim of unlawfulness resulting from discrimination based on age which is relied on by the applicant in the context of the first complaint. It follows that those arguments, which seek to challenge the grounds of the contested decision and, therefore, the criterion at issue laid down by the CEI, which is alleged to be unlawful, are admissible.
– Substance
41 The applicant submits, in essence, that the application, in the contested decision, of the criterion at issue led to discriminatory treatment between persons in a similar situation. In that sense, the criterion at issue constitutes a hidden age limit and is therefore a form of direct discrimination. In support of his line of argument, the applicant claims that the average age of the candidates selected was 26.7. Such discrimination is neither justified by a legitimate aim, nor is it appropriate and necessary.
42 He argues, in that context, that the criterion at issue is contrary to the general principle of non-discrimination based on age as enshrined in Article 21(1) of the Charter, Article 1d of the Staff Regulations and Article 1 and Article 10(1) of the CEOS.
43 The Commission disputes the applicant’s line of argument and contends that that plea should be rejected.
44 In that regard, it should be noted that the principle of equal treatment is a general principle of EU law, enshrined in Article 20 of the Charter, of which the principle of non-discrimination laid down in Article 21(1) of the Charter is a particular expression (judgment of 7 February 2019, RK v Council, T‑11/17, EU:T:2019:65, paragraph 60).
45 The Court of Justice has consistently held that the general principle of equal treatment requires that comparable situations must not be treated differently, and different situations must not be treated in the same way, unless such treatment is objectively justified (see judgment of 1 March 2011, Association belge des Consommateurs Test-Achats and Others, C‑236/09, EU:C:2011:100, paragraph 28 and the case-law cited). A difference in treatment is justified if it is based on an objective and reasonable criterion, that is, if the difference is linked to a legally permitted aim pursued by the rules in question, and it is proportionate to the aim pursued by the treatment concerned (see judgment of 22 May 2014, Glatzel, C‑356/12, EU:C:2014:350, paragraph 43 and the case-law cited).
46 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 if 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).
47 Article 1d of the Staff Regulations, which was applicable at the material time, prohibits any discrimination, particularly that based on age, in the application of the Staff Regulations.
48 In addition, in support of his argument that the discrimination resulting from the application of the criterion at issue constitutes direct discrimination, the applicant relies on Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).
49 In that regard, it should be recalled that it is clear from the third paragraph of Article 288 TFEU that directives are binding, as to the result to be achieved, upon each Member State. It follows that Directive 2000/78, as is stated, moreover, in Article 21 thereof, is addressed to the Member States, and not to the institutions. The provisions of that directive cannot, therefore, be treated, as such, as imposing any obligations on the institutions in the exercise of their legislative or decision-making powers, nor can they, as such, justify a plea of illegality of point II.2 of the CEI (see, to that effect, judgment of 7 February 2019, RK v Council, T‑11/17, EU:T:2019:65, paragraph 67).
50 However, even if Directive 2000/78 cannot, as such, be a source of obligations for the EU institutions in the exercise of their legislative or decision-making powers for the purposes of governing employment relationships between them and their staff, the fact remains that the rules or principles laid down or established in that directive may be relied on against those institutions where those rules or principles themselves appear only as the specific expression of fundamental rules of the Treaties and of general principles imposed directly on those institutions (judgment of 7 February 2019, RK v Council, T‑11/17, EU:T:2019:65, paragraph 68).
51 The General Court recalls that the Court of Justice has previously acknowledged that Directive 2000/78 gave specific expression, in the field of employment and occupation, to the principle of non-discrimination on grounds of age (judgment of 19 January 2010, Kücükdeveci, C‑555/07, EU:C:2010:21, paragraph 21), and was a source of inspiration in disputes concerning the staff of the EU institutions as regards determining the obligations of the competent regulatory authority with regard to the principle of non-discrimination on grounds of age (judgment of 26 March 2020, Teeäär v ECB, T‑547/18, EU:T:2020:119, paragraph 69).
52 It follows that, even if the provisions of Directive 2000/78 cannot, as such, justify a plea of illegality raised against point II.2 of the CEI, they may be a source of inspiration for determining the obligations of the EU institutions and agencies as regards the enactment of measures in the field of the European Union civil service, while taking into account the specific aspects of the civil service (see, by analogy, judgment of 7 February 2019, RK v Council, T‑11/17, EU:T:2019:65, paragraph 70).
53 It is therefore necessary to assess the lawfulness of the criterion at issue by taking account of Directive 2000/78 within the limits set out in paragraph 52 above.
54 In the present case, as stated in paragraph 18 above, the criterion at issue provides that, in order to be eligible for the JPP, candidates must have a maximum of three years of professional experience on the closing date of the CEI.
55 The Court notes that that criterion gives markedly less favourable treatment to all other potential candidates for the JPP with more than three years’ professional experience. Accordingly, it establishes a difference in treatment between all candidates wishing to be recruited to the JPP whose status within the Commission falls within one of the four categories referred to in point II.1 of the CEI and who are thus in a comparable situation.
56 The Court finds that that difference in treatment is indirectly based on age. Although the criterion at issue does not expressly refer to the age of candidates eligible for the JPP, it is likely to place older people at a particular disadvantage vis-à-vis other people. In practice and save in marginal situations, notwithstanding the appearance of neutrality, that criterion is tantamount to allowing only young professionals to join the JPP.
57 That conclusion is corroborated by the JPP evaluation report for the period from 2018 to 2020, from which it is apparent that, for the period taken into account for the purposes of the assessment, first, the average age of the candidates selected to participate in the JPP was 26.7 and, second, no participant in the JPP was over 33 years old when his or her application was successful (see, to that effect, judgment of 9 February 1999, Seymour-Smith and Perez, C‑167/97, EU:C:1999:60, paragraph 60). Moreover, the Commission itself acknowledged that the criterion at issue involves a difference in treatment on grounds of age.
58 It follows from all those considerations that facts from which it may be presumed that discrimination based on age has occurred have been established.
59 In the light of the foregoing, the Court must examine whether the indirect discrimination based on age resulting from the criterion at issue may be justified under the first sentence of Article 1d(6) of the Staff Regulations, which provides that ‘while respecting the principle of non-discrimination and the principle of proportionality, any limitation of their application must be justified on objective and reasonable grounds and must be aimed at legitimate objectives in the general interest in the framework of staff policy’.
60 As regards the question of the objectives pursued by the criterion at issue, the Commission explained, in the CEI, that the JPP was a professional development programme and that it was intended in particular better to retain and develop new resources from the known talent pool. It stated therein that it had the benefit of diversifying the sources of recruitment of the European Commission, contributing inter alia to a more balanced composition of staff, and providing an additional tool to make its employment offer more attractive to EU citizens. In addition, it was also made clear that that programme was especially aimed at allowing better integration of junior staff into the EU civil service by providing a space to develop a European and, in particular, ‘Commission’ spirit, while equipping the participants with the necessary knowledge and skills needed by the institution.
61 Those considerations are borne out by the other documents relating to the JPP which were placed on the file, which include, in particular, the flyer for that programme and the evaluation report on it for the period from 2018 to 2020. Thus, it is apparent in particular from that report that the JPP pursues the following five objectives: diversifying sources for recruitment; contributing to a balanced mix of staff in terms of age; equipping participants with a better understanding of the functioning of the Commission and with the knowledge and skills needed by the institution; developing a European and, in particular, a ‘Commission’ spirit among the participants; and modernising recruitment at the Commission and increasing its competitiveness against other employers which already have such a programme in place.
62 First, one of the main objectives of the JPP which was expressly identified was that of ensuring a more balanced composition of Commission staff by enabling junior staff to join. In that regard, in the decision rejecting the complaint, the Commission informed the applicant that traditional recruitment methods failed to achieve such an objective, as demonstrated, in its view, by the high average age of members of staff who took up employment in 2021 as officials in an AD grade without managerial duties and as members of the temporary staff.
63 Second, another objective which was expressly identified was to enable JPP participants to develop skills related to work within the EU civil service and, specifically, within the Commission. In that regard, it is apparent from the CEI that the JPP is a programme intended better to integrate junior staff, in particular through a system of professional training and a mobility programme. To that effect, point VII of the CEI, headed ‘Recruitment and content of the programme’, states that the selected candidates are to participate in a mentoring programme and a compulsory learning and development programme. In addition, in its pleadings, the Commission states, in essence, with regard to the ‘nature’ of the JPP that it offers professional training to those of the participants who are at an early stage of their career and that it is intended to offer them interesting opportunities for career development.
64 In the light of the foregoing, the Court finds that the two objectives pursued by the JPP, which are described in paragraphs 62 and 63 above, correspond, respectively, to an objective of promoting employment to candidates eligible for the programme who, by definition, have little experience, and a professional training objective.
65 In that context, the Court observes that, in the decision rejecting the complaint, first, the Commission explains, inter alia, that the criterion at issue, which is a condition for participation in the JPP, was defined in the light of the very nature of that programme, which is intended for persons who do not have significant professional experience, but who have the qualities that it wishes to maintain and develop taking into account the objectives of the programme. The considerations above are linked to the objective of professional training which, as was stated in paragraph 64 above, was part of the justification for the JPP. Second, the Commission explains that that criterion is also justified in the light of its desire to ensure a more balanced composition of staff, including in terms of the latter’s age structure. Such considerations are linked to the objective of promoting employment to the least experienced members of the Commission’s staff, which was also established in paragraph 64 above as being one of the justifications for the JPP.
66 Consequently, the Court must determine whether the objectives of promoting employment and professional training at which the criterion at issue is aimed may be regarded as legitimate objectives in the general interest in the framework of staff policy, in accordance with Article 1d(6) of the Staff Regulations.
67 In the first place, as regards the objective of promoting employment to members of Commission staff with the least experience, which was identified in paragraph 62 above, the Court notes that it is clear from the case-law that, in the context of a given profession, facilitating the natural turnover and rejuvenation of that profession may be regarded as a legitimate general interest objective (see, to that effect, judgment of 3 June 2021, Ministero della Giustizia (Notaries), C‑914/19, EU:C:2021:430, paragraph 36).
68 In addition, the Court of Justice has held that the encouragement of recruitment constituted a legitimate aim of Member States’ social or employment policy, in particular when the promotion of access of young people to a profession was involved. In that regard it held, inter alia, that the mix of different generations of employees could also contribute to the quality of the activities carried out, inter alia by promoting the exchange of experience (judgment of 21 July 2011, Fuchs and Köhler, C‑159/10 and C‑160/10, EU:C:2011:508, paragraph 49 and the case-law cited).
69 Further, the Court of Justice has stated that the aim of establishing an age structure that balances young and older civil servants in order to encourage the recruitment and promotion of young people and to improve personnel management could constitute a legitimate aim of employment and labour market policy (judgment of 21 July 2011, Fuchs and Köhler, C‑159/10 and C‑160/10, EU:C:2011:508, paragraph 50).
70 Furthermore, Article 6(1)(a) of Directive 2000/78 mentions, among the legitimate objectives which may justify national measures introducing differences of treatment on grounds of age, the objective of ‘the setting of special conditions on access to employment and vocational training, employment and occupation, including dismissal and remuneration conditions, for young people … in order to promote their vocational integration or ensure their protection’.
71 Such considerations can be applied, by analogy, to the composition of the staff of an EU institution, in particular with regard to its age structure, in accordance with Article 1d(6) of the Staff Regulations, which sets out, for the purpose of ensuring a European public service, in ‘the framework of staff policy’, legitimate objectives in the general interest which must be pursued in order to justify a limitation of the principles set out in the preceding paragraphs of that article.
72 It therefore follows from paragraphs 67 to 71 above that, by seeking to ensure a more balanced composition of Commission staff by allowing its junior staff to be integrated, the criterion at issue is aimed at an objective of promoting employment which must be regarded as legitimate and of general interest in the context of that institution’s staff policy.
73 That conclusion is not called into question by the applicant’s argument that the objective of obtaining a more balanced composition of staff, as relied on by the Commission, cannot be regarded as being in the general interest, since it concerns only the latter in its capacity as an employer. It is clear from case-law that the interests of the service, which also concern a given institution as an employer, may constitute a legitimate objective which may be taken into consideration for the purposes of the examination provided for in Article 1d(6) of the Staff Regulations (see, to that effect, judgment of 16 June 2021, Italy and Spain v Commission, T‑695/17, not published, EU:T:2021:374, paragraph 76).
74 In the second place, as regards the objective of professional training, it should be noted that the first subparagraph of Article 6(1) of Directive 2000/78, as indicated in paragraph 70 above, mentions, among the legitimate objectives which may justify differences of treatment on grounds of age established by national measures, the objective of vocational training.
75 Consequently, for the reasons set out in paragraph 51 above, the Court holds that, in so far as it seeks better to integrate the less experienced staff of the Commission, the criterion at issue is aimed at a legitimate vocational training objective of general interest within the framework of the Commission’s staff policy, which is capable of justifying a difference of treatment on grounds of age.
76 In the light of the foregoing, the Court observes that, in accordance with the requirements of Article 1d(6) of the Staff Regulations, the criterion at issue is aimed at legitimate objectives in the general interest in the framework of staff policy.
77 That conclusion is not called into question by the applicant’s other claims.
78 In the first place, the applicant alleges that the objectives underlying the JPP are unlawful because of the treatment they grant to ‘blue book’ trainees. In that regard, first, the applicant claims that the college of Commissioners was wrong to regard ‘blue book’ trainees as members of Commission staff. However, the Court notes in that regard that, during their traineeship, those trainees do actually work for the Commission. As the latter points out, they can therefore be regarded as forming part of that staff, because they conclude a traineeship contract with the Commission which applies throughout their traineeship. Consequently, the college of Commissioners was fully entitled to state, in essence, at a meeting of 28 October 2020, that trainees could apply to participate in the JPP since they fell within one of the four categories of staff working for the Commission.
79 Second, the applicant maintains that the criterion at issue had, in reality, been illegitimately drafted in order to favour current ‘blue book’ trainees by enabling them to become officials through internal competitions.
80 In that regard, he claims that ‘blue book’ trainees represent 91% of the candidates eligible to participate in the JPP and 79% of the candidates selected. He then states that it was initially intended that the JPP would be open only to ‘blue book’ trainees. Lastly, he argues that such an objective is incompatible with Commission Decision C(2005) 458, since it gives those trainees priority to become members of the temporary staff to the detriment of its staff, successful candidates in competitions organised by the European Personnel Selection Office (EPSO) and external candidates.
81 However, since the possibility of applying for the JPP is not limited to ‘blue book’ trainees and the requirement to satisfy that criterion does not, in any case, have as a consequence that access to that programme is open only to those trainees, the applicant’s argument on that point has no factual basis. That is confirmed by the fact that, first, JPP candidates coming from the Commission’s ‘blue book’ traineeships have no advantage as compared with the other candidates during the selection procedure and, second, it is apparent from the information provided by the Commission in its written pleadings that the composition of the sixth session of the JPP was balanced between successful candidates who were ‘blue book’ trainees and other applicants. Consequently, the Commission’s ‘blue book’ trainees cannot be regarded as having priority when they apply to join the JPP.
82 In the second place, the applicant maintains that there is now a general trend that the population of Europe is ageing, from which it follows that the ageing of Commission staff is a natural and normal phenomenon. However, that argument must be rejected, since it is apparent from the documents before the Court that, despite the context that the population is ageing, the median age of Commission staff currently remains higher than that of the active population in the European Union. Consequently, that general trend towards an ageing population cannot be regarded as being sufficient to explain that the Commission’s staff is also ageing. As the Commission rightly submits, it is important that the youngest layers of that population should also be represented in its services.
83 In the third place, in so far as the applicant submits, in essence, that improving the competitiveness of the Commission’s employment offer cannot be regarded as a legitimate objective in the general interest capable of justifying a difference of treatment on grounds of age, suffice it to state that such an objective is not the only objective pursued by the JPP and that the introduction of the criterion at issue is not aimed only at that objective, as is apparent from paragraphs 72 and 75 above.
84 In the light of all of the foregoing, the Court finds that the difference of treatment on grounds of age established by the criterion at issue is aimed at legitimate objectives in the general interest in the framework of staff policy, within the meaning of Article 1d(6) of the Staff Regulations. It is therefore necessary to examine whether that difference of treatment on grounds of age, established by the criterion at issue, is proportionate, in accordance with that same provision.
85 According to case-law, the principle of proportionality requires that measures adopted by EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question, it being understood that, when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see judgment of 26 February 2016, Bodson and Others v EIB, T‑240/14 P, EU:T:2016:104, paragraph 116 and the case-law cited).
86 In the present case, it is clear from all of the foregoing that, in order to ensure a more balanced composition of its staff in terms of age, the Commission adopted the JPP, which allows candidates with less than three years’ professional experience who join it to enjoy various benefits relating, inter alia, to professional training throughout the duration of that programme.
87 The Court notes, in the first place, that the average age of participants in the JPP is 26.7 and that it is therefore significantly below the average age of successful candidates in EPSO competitions who were put on reserve lists in competitions for generalist AD 5 competitions in 2015, 2017, 2018 and 2019, according to the information provided by the Commission. Those average ages were, respectively, 33 in 2015, 33.52 in 2017, 33.05 in 2018 and 33.97 in 2019; no generalist competition was organised for that grade in 2016.
88 In the second place, the criterion at issue relates to years of professional experience rather than the age of potential candidates. As the Commission has rightly pointed out, that shows that it took care to limit the disadvantages caused by the adoption of the JPP, provided that it nonetheless made it possible to attain the general interest objective pursued. Furthermore, in so far as the applicant criticises the number of years of experience stipulated in the criterion at issue, the Commission correctly explains, first, that three years’ professional experience allows it to meet one of the objectives it set itself of promoting a balanced composition of its staff in terms of age structure and, second, that that period of experience is equal to the duration of experience required to be eligible to be recruited at grade AD 5, which is the exact grade to which JPP participants are admitted, whereas individuals who have more professional experience are already eligible for generalist competitions for higher grades.
89 In the light of the foregoing, the Court finds that the criterion at issue is objectively and reasonably justified in the light of the objectives which it pursues, in observance of the principle of proportionality, within the meaning of Article 1d(6) of the Staff Regulations.
90 Consequently, the first and third pleas must be rejected in their entirety.
The second plea in law, alleging misuse of powers and lack of competence
91 The applicant claims that, by establishing the criterion at issue without express authorisation from the college of Commissioners, the Commission’s Directorate-General (DG) for Human Resources and Security went beyond its mandate and misused its powers. In any event, any approval by the college of the establishment of that criterion constitutes a misuse of powers, since the college does not have the authority to provide for derogations from the Staff Regulations or the Charter.
92 The Commission disputes that line of argument.
93 The Court notes that the CEI was adopted by DG Human Resources and Security in accordance with the mandate given to it by Commission Decision PV(2018) 2257 final of 3 July 2018 and confirmed by Commission Decision PV(2020) 2355 final of 28 October 2020.
94 While it is true that Decision PV(2018) 2257 final does not expressly refer to a particular limit on the number of years’ professional experience, it does refer to Commission information note PERS(2018) 38/2 of 4 June 2018, which provides, in the Point 6, that ‘for the proposed JPP pilot, the Commission will select 40 candidates having a maximum of 3 years of professional experience by the closure of the call for expression of interests that will launch the procedure’.
95 Therefore, since the college approved the content of information note PERS(2018) 38/2 by referring to it in Decision PV(2018) 2257 final, the Court finds that the establishment of the criterion at issue falls fully within the remit of DG Human Resources and Security, as the Commission correctly points out.
96 That conclusion is not called into question by the applicant’s argument that the college of Commissioners is not entitled to provide for derogations from the Staff Regulations or the Charter, since the Court found, in the context of the first plea, that the criterion at issue did not infringe either the Charter or the Staff Regulations as regards the provisions relied on.
97 In view of the foregoing, the second plea must be rejected.
The claim for compensation
98 By his claim for compensation, the applicant alleges that, because his application was rejected, he suffered material damage in two respects: first, he lost the opportunity to obtain a contract as a member of the temporary staff at grade AD 5 for a period of two years and, second, he lost the opportunity to become an official by participating in internal competitions reserved for members of the temporary staff at an AD grade.
99 The applicant claims that, assessed ex aequo et bono, the first head of loss amounts to EUR 42 592, to which a 50% loss of opportunity coefficient should be applied, and the second head of loss amounts to EUR 600 000.
100 The Commission submits that both heads of loss are closely linked to the claim for annulment, which should be dismissed. In those circumstances, the rejection of the claim for annulment also entails the rejection of the claim for compensation. In any event, the condition of unlawfulness is not met in the present case.
101 The Court notes that, where the damage on which an applicant relies arises from the adoption of a decision whose annulment is sought, the rejection of the claim for annulment entails, as a matter of principle, the rejection of the claim for damages, as those claims are closely linked (judgment of 15 September 2017, Commission v FE, T‑734/15 P, EU:T:2017:612, paragraph 120).
102 In the present case, the material damage allegedly resulting from the loss of opportunity on which the applicant relies arises from the contested decision, by which the Commission found that the applicant was not eligible for the JPP. Since the claim for annulment of the contested decision has been rejected, the applicant’s claim for compensation must be rejected and, consequently, the action must be dismissed in its entirety.
Costs
103 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. Since the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1. Dismisses the action;
2. Orders SE to pay the costs.
da Silva Passos | Półtorak | Reine |
Delivered in open court in Luxembourg on 8 March 2023.
E. Coulon | | M. van der Woude |