ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

24 June 2016

Case F‑142/11 RENV

Erik Simpson

v

Council of the European Union

(Civil service — Referral back to the Tribunal after setting aside — Officials — Upgrade — Decision not to award the applicant grade AD 9 after he had passed a grade AD 9 open competition — Obligation to state grounds — Equal treatment –Manifest error of assessment — Article 81 of the Rules of Procedure — Action manifestly unfounded)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Erik Simpson seeks, first, the annulment of the decision of 9 December 2010 by which the Council of the European Union rejected his request for an upgrade to grade AD 9 after he had passed Open Competition EPSO/AD/113/07 organised for the recruitment of heads of unit at grade AD 9 in the field of translation, inter alia those with Estonian as their main language, and of the decision of 7 October 2011 rejecting his complaint and, secondly, an order that the Council pay compensation for the harm suffered and pay the costs.

Held:      The action is dismissed. Mr Erik Simpson is to bear his own costs in Cases F‑142/11, T‑130/14 P and F‑142/11 RENV, respectively, and is ordered to pay the costs incurred by the Council of the European Union in Case F‑142/11. The Council of the European Union is to bear its own costs in Cases T‑130/14 P and F‑142/11 RENV.

Summary

Officials — Equal treatment — Concept — Limits

Differences in treatment which are justified on the basis of objective and reasonable criteria and proportionate to the aim pursued by the differential treatment in question do not constitute an infringement of the principle of equal treatment. The criterion of the interest of the service is included among the objective and reasonable criteria which may justify a difference in treatment between officials. The administration enjoys a wide discretion to decide on the measures to take in the interest of the service, so that the EU judicature, when reviewing compliance with the principle of non-discrimination, must confine itself to checking that the differentiation made by the institution concerned was not arbitrary or manifestly contrary to the interest of the service.

(see paras 46- 47)

See:

Judgment of 16 March 2004 in Afari v ECB, T‑11/03, EU:T:2004:77, para. 65

Judgments of 19 October 2006 in De Smedt v Commission, F‑59/05, EU:F:2006:105, para. 76; of 23 January 2007 in Chassagne v Commission, F‑43/05, EU:F:2007:14, para. 91; and of 25 February 2010 in Pleijte v Commission, F‑91/08, EU:F:2010:13, para. 58 and the case law cited