JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
20 September 2019 (*)
(Action for annulment — Civil service — Selection procedure for contract staff — Recruitment — Call for expressions of interest EP/CAST/S/16/2016 — Drivers — Practical and theoretical tests organised following the establishment of a database — Failure in the theoretical test — Annulment of the call for expressions of interest and voiding of the database — Action which has become devoid of purpose — Continuing interest in bringing proceedings — No need, in part, to adjudicate — Inadmissibility in part)
In Case T‑467/17,
Carlos Manuel Henriques Barata, residing in Lisbon (Portugal), represented by G. Pandey, D. Rovetta and V. Villante, lawyers,
applicant,
v
European Parliament, represented by J. Steele, I. Terwinghe and M. Windisch, acting as Agents,
defendant,
APPLICATION under Article 270 TFEU seeking annulment of the call for expressions of interest EP/CAST/S/16/2016, issued by the Parliament for the recruitment of drivers, and of various acts adopted by the Parliament in connection with that selection procedure, including, in particular, the decision of 26 October 2016 informing the applicant that he was not among the candidates selected for a post as a driver and the decision of 25 April 2017 rejecting the complaint lodged by the applicant against that decision.
THE GENERAL COURT (Sixth Chamber),
composed of G. Berardis, President, D. Spielmann and Z. Csehi (Rapporteur), Judges,
Registrar: E. Artemiou, Administrator,
having regard to the written part of the procedure and further to the hearing on 11 April 2019,
gives the following
Judgment
Background to the dispute
1 The applicant, Mr Carlos Manuel Henriques Barata, was a candidate in the selection procedure EP/CAST/S/16/2016, which was organised for the purpose of establishing a database of candidates eligible for recruitment by the European Parliament under Article 3a of the Conditions of Employment of Other Servants of the European Union as contract staff in Function Group I to perform duties as a driver.
2 The call for expressions of interest, published in the Official Journal of the European Union of 14 April 2016 (OJ 2016 C 131 A, p. 1), stated, inter alia, that the selection procedure was to be based solely on qualifications, in the form of an assessment of the answers given by candidates to the ‘Talent screener’ questions set out in the application form (‘the first stage of the selection procedure’).
3 At the end of the first stage of the selection procedure, the applicant’s name was entered in the database referred to in Section VIII of the call for expressions of interest concerned.
4 Subsequently, at the recruitment stage, in accordance with Section IX of the call for expressions of interest concerned, the applicant was invited to sit theoretical and practical tests, which took place in Brussels (Belgium) on 19 October 2016 (‘the second stage of the selection procedure’). The organisation, carrying out and assessment of those tests were delegated by the Parliament to an external service provider. The theoretical test, in the form of multiple-choice questions, consisted in answering 30 questions selected by the candidates themselves from a total of 67 questions.
5 By letter of 26 October 2016, regarding the ‘follow up to procedure EP/CAST/S/16/2016’ (‘the decision of 26 October 2016’), the Head of the Personnel Unit of the Resources Directorate of the Directorate-General (DG) for Infrastructure and Logistics of the Parliament informed the applicant that, due to the insufficient marks obtained in the practical and theoretical tests, he had not been included among the selected candidates. The applicant was also informed that his name would remain in the database referred to in paragraph 3 above, which would be valid for 3 years.
6 By email of 7 November 2016, the applicant requested access to the marks he had obtained in the practical and theoretical tests, the required thresholds and additional information to enable him to understand those marks. He was given access to those marks and the required thresholds by email of 21 November 2016. Out of the three tests taken, it was only in the theoretical test that the applicant failed to reach the threshold set (15 points), since he obtained only 14 points out of 30.
7 By email of 21 November 2016, the applicant requested access to his detailed results in the theoretical test. In that regard, he expressly asked to be sent the questions that he had answered, with an indication of the questions that he had answered incorrectly, and the correct answers to those questions. The applicant repeated his request in a further email on that same day. In response to those requests, he was given access, by email of 25 November 2016, to an answer sheet that was said to be his, and to a grid indicating, using letters of the alphabet, the correct answers for the theoretical test.
8 By email of 25 November 2016, the applicant lodged a complaint regarding the assessment of his theoretical test. Following that complaint, the Personnel Unit of the Resources Directorate of the DG for Infrastructure and Logistics of the Parliament confirmed, by email of 28 November 2016, the decision of 26 October 2016 (‘the email of 28 November 2016’). More specifically, reference was made to the response provided by the undertaking responsible for organising the tests on behalf of the Parliament informing the latter that, immediately after the theoretical test, it had been noted that the applicant had answered 31 questions instead of 30 and that, following a request from the examiner, the applicant had chosen to delete his answer to question 63.
9 On 28 November 2016 the applicant asked, via email, to be sent the 31 questions that he had answered. By email of 1 December 2016, he repeated his request.
10 On 9 January 2017 the applicant lodged a complaint, under Article 90(2) of the Staff Regulations of Officials of the European Union, against the decision of 26 October 2016. In that complaint, he called into question the authenticity of the answer sheet that had been sent to him on 25 November 2016. In addition, he pointed out that he had not been given access to the theoretical test questions. Lastly, he disputed the description of the facts as set out in the email of 28 November 2016. According to the applicant, the examiner had asked him to delete the answers to two questions, not just one. Moreover, he asked for his answer to question 63, which had been deleted on the answer sheet that had been sent to him, to be taken into account, enabling him to reach the threshold set for the theoretical test.
11 By letter of 25 April 2017, the applicant’s complaint was rejected by the Secretary General of the Parliament (‘the decision rejecting the complaint’).
Procedure and forms of order sought
12 By application lodged at the Court Registry on 26 July 2017, the applicant brought the present action.
13 In the application and in the reply, the applicant requested the adoption of measures of organisation of procedure and measures of inquiry.
14 On 12 April 2018 the applicant submitted a request for a hearing.
15 Acting on a proposal of the Judge-Rapporteur, the Court (Sixth Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure provided for under Article 89 of the Rules of Procedure of the General Court, ex officio requested the parties to answer certain questions in writing. The parties complied with those measures of organisation of procedure within the prescribed period.
16 Following the delivery of the judgment of 26 March 2019, Spain v Parliament (C‑377/16, EU:C:2019:249), by which the Court of Justice annulled the call for expressions of interest concerned and declared void the database established pursuant to that call for expressions of interest in the first stage of the selection procedure, the General Court, by way of a measure of organisation of procedure, invited the parties to comment at the hearing on the possible inferences to be drawn from that judgment in relation to the present case.
17 The parties presented oral argument and answered written and oral questions put by the Court at the hearing on 11 April 2019. In the course of that hearing, the debate focused, in particular, on the question of whether the applicant continued to have an interest in bringing proceedings following the delivery of the judgment of 26 March 2019, Spain v Parliament (C‑377/16, EU:C:2019:249).
18 The applicant claims, in view of the details provided in the course of the hearing, that the Court should:
– as a preliminary matter, declare that the call for expressions of interest concerned does not apply to the applicant under Article 277 TFEU;
– annul the decision rejecting the complaint;
– annul the decision of 26 October 2016;
– annul the decision notified by the email of 28 November 2016;
– annul the abovementioned call for expressions of interest;
– annul ‘any other decision which had the effect of confirming the non-inclusion of [the applicant] in the draft list of candidates for [recruitment as] contract staff … under the … procedure [concerned]’;
– order the Parliament to pay the costs.
19 The Parliament contends that the Court should:
– dismiss the action as inadmissible in part and unfounded in part;
– in the alternative, dismiss the action as unfounded;
– order the applicant to pay the costs.
Law
The first head of claim, seeking a declaration that the call for expressions of interest concerned does not apply to the applicant under Article 277 TFEU, and the fifth head of claim, seeking annulment of that call for expressions of interest
20 As regards the fifth head of claim, seeking annulment of the call for expressions of interest concerned, it should be borne in mind that, according to the case-law, an applicant’s interest in bringing proceedings must, in the light of the purpose of the action, exist at the stage of lodging the action, failing which the action will be inadmissible. That purpose must, like the interest in bringing proceedings, continue until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be liable, if successful, to procure an advantage for the party bringing it (judgment of 7 June 2007, Wunenburger v Commission, C‑362/05 P, EU:C:2007:322, paragraph 42, and order of 27 March 2017, Palos Caravina v CdT, T‑725/16, not published, EU:T:2017:238, paragraph 11).
21 In the present case, as has already been stated, the Court of Justice, by its judgment of 26 March 2019, Spain v Parliament (C‑377/16, EU:C:2019:249), annulled the call for expressions of interest concerned. Consequently, that act has disappeared, ex tunc and erga omnes, from the legal order. Accordingly, the fifth head of claim must be regarded as having become devoid of purpose and there is no longer any need to adjudicate on it, without it being necessary to rule on its admissibility, which has been challenged by the Parliament (see, to that effect, order of 25 October 2018, Cheverny Investments v Commission, T‑585/11, not published, EU:T:2018:748, paragraph 22).
22 As regards the first head of claim, seeking a declaration that the call for expressions of interest concerned does not apply to the applicant under Article 277 TFEU, it should be noted that that provision does not create an entitlement to take action independently and may be relied on only as an incidental plea in the context of an application for annulment of an individual act. In any event, that head of claim seeks a declaration of inapplicability regarding an act which has disappeared from the legal order (see paragraph 21 above). Thus there is also no need to adjudicate on the first head of claim.
The second head of claim, seeking annulment of the decision rejecting the complaint, and the third head of claim, seeking annulment of the decision of 26 October 2016
23 As a preliminary point, with regard to the request for annulment of the decision rejecting the complaint, it should be noted that that decision confirms the decision of 26 October 2016 by providing additional clarifications in response to the arguments raised by the applicant in the complaint. The decision rejecting the complaint also contains independent content in so far as it rejects the applicant’s request for access to the theoretical test questions. It follows that the two decisions at issue (‘the contested decisions’) are complementary and may adversely affect the applicant (see, to that effect, order of 18 September 2018, Dreute v Parliament, T‑732/17, not published, EU:T:2018:582, paragraphs 39 to 41).
24 In those circumstances, and in view of the fact that the applicant relies on the same arguments in relation to the contested decisions, it is appropriate to examine together the requests for annulment of those decisions.
25 In support of the annulment of the contested decisions, the applicant relies on four pleas in law and it should be noted that, in the Parliament’s view, the second, third and fourth pleas, and certain complaints put forward in the context of the first plea, are inadmissible.
26 The first plea, formally divided into two parts, consists, in essence, of five complaints. The first complaint alleges breach of the duty to state reasons, the second alleges breach of the rights of the defence and of the right to effective judicial protection, the third alleges manifest errors of assessment, the fourth alleges, in essence, breach of the right to sound administration and the fifth alleges breach of the invitation to tender that led to an external service provider being chosen to carry out the driving tests during the second stage of the selection procedure.
27 The second plea alleges, in essence, a lack of competence on the part of the Parliament to mandate an external service provider and a breach of the call for expressions of interest concerned.
28 In the third and fourth pleas, the applicant relies on Article 277 TFEU in arguing that the call for expressions of interest concerned is unlawful. In support of the first part of the third plea, the applicant alleges breach of Council Regulation No 1 of 15 April 1958 determining the languages to be used by the European Economic Community (OJ 1958 17, p. 385), as amended, in so far as the call for expressions of interest concerned restricted the choice of the second language for the selection procedure at issue to German, English or French. In support of the second part of the third plea, the applicant challenges the lawfulness of the criteria used for assessing the abilities of drivers in the context of that call for expressions of interest. In the fourth plea, which also concerns the restriction on the choice of the second language, the applicant claims a breach of Article 1d of the Staff Regulations of Officials of the European Union and of the principles of non-discrimination and proportionality.
29 As a preliminary point, as has already been stated above (see paragraph 20), it should be noted that the purpose of the action must, like the interest in bringing proceedings, continue until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be liable, if successful, to procure an advantage for the party bringing it.
30 In the present case, in view of the judgment of 26 March 2019, Spain v Parliament (C‑377/16, EU:C:2019:249), it is necessary to determine whether a judgment on the substance of the contested decisions is liable to procure an advantage for the applicant.
31 In that respect, in the first place, concerning the subject matter of the present dispute, it should be noted that the contested decisions have not been repealed or withdrawn, so that the present action retains its purpose as regards those decisions (see, to that effect, judgments of 7 June 2007, Wunenburger v Commission, C‑362/05 P, EU:C:2007:322, paragraph 48, and of 6 April 2017, Regione autonoma della Sardegna v Commission, T‑219/14, EU:T:2017:266, paragraph 57).
32 In the second place, as regards the continuing interest in bringing proceedings, it should be borne in mind that, according to the case-law, the applicant must retain a personal interest in the annulment of the contested act and that, in the absence of a present interest in bringing proceedings, there is no longer any need to adjudicate on the dispute (see, to that effect, judgment of 8 November 2018, Cocchi and Falcione v Commission, T‑724/16 P, not published, EU:T:2018:759, paragraph 50 and the case-law cited).
33 It is also apparent from the case-law that the question whether an applicant retains an interest in bringing proceedings must be assessed in the light of the specific circumstances, taking account, in particular, of the consequences of the alleged unlawfulness and of the nature of the damage claimed to have been sustained (judgments of 28 May 2013, Abdulrahim v Council and Commission, C‑239/12 P, EU:C:2013:331, paragraph 65, and of 7 November 2018, BPC Lux 2 and Others v Commission, C‑544/17 P, EU:C:2018:880, paragraph 45).
34 In the present case, it is not disputed that, at the time of bringing the action, the applicant still had an interest in bringing proceedings for the annulment of the contested decisions. Admittedly, their annulment would not have directly resulted in the applicant being recruited as a driver by the Parliament, as acknowledged by the applicant at the hearing. Nevertheless, their annulment would have been liable to procure an advantage for the applicant. Depending on the type of illegality found, the Parliament could have conceded that the applicant had reached the necessary threshold in the theoretical test, which would have meant that the applicant’s results in the practical and theoretical tests would have been sufficient overall, or invited the applicant to re-sit the theoretical test. In both cases, a judgment annulling those decisions would have been liable to change the applicant’s legal position as a candidate in the selection procedure at issue and procure him an advantage.
35 In the present instance, the question arises as to whether that interest in bringing proceedings continues to exist following the delivery of the judgment of 26 March 2019, Spain v Parliament (C‑377/16, EU:C:2019:249).
36 In that regard, it should be noted that it follows from the judgment of 26 March 2019, Spain v Parliament (C‑377/16, EU:C:2019:249), inter alia, that the selection procedure at issue was vitiated by illegality from the outset since the Parliament failed to establish that the restriction on the choice of the second language in that selection procedure to English, French or German was objectively and reasonably justified in the light of a legitimate objective of general interest in the framework of staff policy. It follows that the theoretical test organised at the recruitment stage, including that taken by the applicant, is also vitiated by illegality (see, to that effect, order of 2 December 2013, Pachtitis v Commission, F‑49/12, not published, EU:F:2013:197, paragraph 31), given that it took place in the second language chosen by the candidates for the purposes of that selection procedure.
37 In addition, it should be borne in mind that, by its judgment of 26 March 2019, Spain v Parliament (C‑377/16, EU:C:2019:249), the Court of Justice annulled the call for expressions of interest concerned and declared void the database at issue. The applicant’s name had also been entered in that database which was declared void. It is apparent from the decision of 26 October 2016 that his name continued to be included in that database, despite the fact that he had not reached the threshold set for the theoretical test, which was organised at the recruitment stage and therefore in the context of the second stage of the selection procedure.
38 It follows that, since the database at issue has been declared void, the Parliament can no longer recruit persons whose names had been entered in that database, irrespective of whether or not the candidates in question had passed the practical and theoretical tests held in 2016.
39 Accordingly, even if it were to be found that the applicant’s pleas are well founded, such a finding would not have any consequences for him as a candidate in the selection procedure at issue and, in particular, could in no way improve his prospects of being recruited in the context of that procedure, as emphasised by the Parliament at the hearing.
40 Consequently, following the judgment of 26 March 2019, Spain v Parliament (C‑377/16, EU:C:2019:249), the contested decisions, in themselves, can no longer have effect and have become void.
41 Nevertheless, the fact that the contested decisions have ceased to have effect since the bringing of the action does not in itself place the Court under an obligation to declare that the interest in bringing proceedings has disappeared in the course of those proceedings (see, to that effect, judgment of 15 December 2016, Gul Ahmed Textile Mills v Council, T‑199/04 RENV, not published, EU:T:2016:740, paragraph 50). It is still necessary to examine whether the applicant has retained an interest in bringing proceedings even though the contested decisions are void.
42 According to the case-law, an applicant may retain an interest in seeking the annulment of an act of an EU institution in order to prevent its alleged unlawfulness recurring in the future independently of the circumstances of the case which gave rise to the action brought by that applicant (see, to that effect, judgment of 7 June 2007, Wunenburger v Commission, C‑362/05 P, EU:C:2007:322, paragraphs 50 to 52 and the case-law cited). In addition, an applicant may retain an interest in seeking the annulment of the contested act in order to obtain a finding, by the Courts of the European Union, that an unlawful act has been committed against him, so that such a finding can then be the basis for any action for damages aimed at properly compensating for the damage caused by the contested act (see, to that effect, judgments of 29 May 1997, Contargyris v Council, T‑6/96, EU:T:1997:76, paragraph 32, and of 10 April 2013, GRP Security v Court of Auditors, T‑87/11, not published, EU:T:2013:161, paragraph 47). Moreover, an applicant may, in certain cases, have an interest in having negative statements relating to him expunged in order to restore his reputation (see, to that effect, judgments of 10 June 1980, M. v Commission, 155/78, EU:C:1980:150, paragraph 6, and of 28 May 2013, Abdulrahim v Council and Commission, C‑239/12 P, EU:C:2013:331, paragraphs 70 and 72).
43 The interest in securing the annulment of the contested act is retained where its annulment is such as to procure an advantage for the applicant, irrespective of whether it will be unnecessary or in practice impossible for the defendant institution to adopt measures under Article 266 TFEU to comply with the judgment annulling that act (see judgment of 6 June 2013, Ayadi v Commission, C‑183/12 P, not published, EU:C:2013:369, paragraph 77 and the case-law cited).
44 It is also apparent from the case-law that it is for the applicant to prove that he has an interest in bringing proceedings, which is an essential and fundamental prerequisite for any legal proceedings (see judgment of 23 October 2012, Vanhecke v Parliament, T‑14/09, not published, EU:T:2012:560, paragraph 26 and the case-law cited). It is therefore for the applicant to establish the existence of a particular fact demonstrating that he retains a current, personal interest in bringing annulment proceedings (judgment of 8 December 2005, Rounis v Commission, T‑274/04, EU:T:2005:442, paragraph 25).
45 In the course of the hearing, the applicant put forward, in essence, three sets of arguments for the purposes of establishing his continuing interest in bringing proceedings. First, he argued that he had a legitimate expectation that he would be recruited if the contested decisions were to be annulled, secondly, he referred to his reputation as a driver being restored in such circumstances and, thirdly, he made reference to a future action for damages.
46 In that regard, it should be noted at the outset that the applicant did not argue that he retained an interest in seeking the annulment of the contested decisions in order to prevent their alleged unlawfulness from recurring in the future.
47 In addition, as regards the arguments raised by the applicant in the course of the hearing, it must be held that those arguments cannot succeed.
48 First, as regards the applicant’s claim that he has a legitimate expectation of being recruited if the contested decisions are annulled, it should be borne in mind that such annulments would not in any event entail his automatic recruitment (see paragraph 34 above). It is apparent from the call for expressions of interest concerned that neither the entry of a candidate’s name in the database at issue nor a pass in the tests organised at the recruitment stage constituted a guarantee of being recruited as a driver; a fortiori after that database was declared void by the judgment of 26 March 2019, Spain v Parliament (C‑377/16, EU:C:2019:249) (see paragraph 38 above).
49 In that respect, it should be emphasised that the Court of Justice has recognised a legitimate expectation only in the case of candidates who have already been offered a contract agent post on the basis of their inclusion in the database in question (judgment of 26 March 2019, Spain v Parliament, C‑377/16, EU:C:2019:249, paragraph 86). In addition, given that the applicant has no guarantee of being recruited in the event of the contested decisions being annulled, he cannot establish his interest in bringing proceedings against those decisions on the basis of the protection granted to candidates that were recruited by the Parliament following the call for expressions of interest concerned, which was subsequently held to be unlawful by the Court of Justice and thus annulled.
50 Moreover, in so far as the applicant, as part of his argument relating to his legitimate expectations, has made reference to his right to effective judicial protection, it is sufficient to state that that right is subject to certain conditions and, as is apparent from the case-law cited in paragraph 44 above, the interest in bringing proceedings is an essential and fundamental prerequisite for any legal proceedings.
51 Secondly, as regards the applicant’s argument that, in essence, his reputation as a driver would be restored if the contested decisions were annulled, it should be noted that the applicant has not specified how those decisions harm his reputation.
52 In any event, apart from the fact that the contested decisions were not publicly available, they stated, in essence, that the applicant had failed the theoretical test, organised as part of the selection procedure at issue in the form of multiple-choice questions, and therefore did not call in question the applicant’s ability as a driver except in a very indirect way. In other words, the fact that the applicant did not obtain sufficient marks in that test and therefore was not among the candidates selected by the Parliament does not pass judgment on his ability to work as a driver in general. In that respect, it should be noted that the comments on the assessment sheet relating to the applicant’s interview of 19 October 2016 were highly complimentary.
53 Moreover, the applicant has not sought to protect his reputation by requesting to remain anonymous in the context of the present proceedings.
54 Thirdly, as regards the possible interest in obtaining a judgment confirming the unlawfulness alleged by the applicant for the purposes of a future action seeking compensation for damages resulting from that unlawfulness, it should be borne in mind (see paragraph 42 above) that an applicant may retain an interest in seeking the annulment of the contested act in order to obtain a finding, by the Courts of the European Union, that an unlawful act has been committed against him, so that such a finding can then be the basis for any action for damages aimed at properly compensating for the damage caused by the contested act.
55 In the present case, it should be noted that, by its judgment of 26 March 2019, Spain v Parliament (C‑377/16, EU:C:2019:249), the Court of Justice has already held that the selection procedure in question was vitiated by illegality (see paragraph 36 above). Thus, the finding, by the General Court, of that same illegality, by upholding the applicant’s third and fourth pleas relating to the language regime, assuming that they are admissible, would not confer an advantage on the applicant with a view to the possible bringing of an action for damages.
56 In addition, as has already been recalled above, the question whether an applicant retains his interest in bringing proceedings must be assessed in the light of the specific circumstances, taking account, in particular, of the consequences of the alleged unlawfulness and of the nature of the damage claimed to have been sustained (see paragraph 33 above). The applicant, by merely relying, without further specification, on a future action for damages, has failed to establish that the finding of an illegality other than that already found by the Court of Justice in the judgment of 26 March 2019, Spain v Parliament (C‑377/16, EU:C:2019:249), would help him succeed in a future action seeking compensation for the damage allegedly caused by the contested decisions.
57 In the light of all the foregoing considerations, it must be concluded that there is no longer any need to adjudicate on the request for annulment of the contested decisions, without it being necessary to rule on the admissibility of the second, third and fourth pleas or on the admissibility of certain complaints included in the first plea that were raised by the applicant in the reply.
The fourth head of claim, seeking annulment of the decision notified by the email of 28 November 2016, and the sixth head of claim, seeking annulment of ‘any other decision which had the effect of confirming the non-inclusion of [the applicant] in the draft list of candidates for [recruitment as] contract staff … under the … procedure [concerned]’
58 As regards the sixth head of claim, seeking annulment of ‘any other decision which had the effect of confirming the non-inclusion of [the applicant] in the draft list of candidates for [recruitment as] contract staff … under the … procedure [concerned]’, it should be borne in mind that it follows from Article 21 of the Statute of the Court of Justice of the European Union, applicable to the General Court in accordance with Article 53 of that statute, and from Article 76 of the Rules of Procedure, that an application must state clearly and precisely the subject matter of the dispute, the form of order sought and a brief statement of the pleas in law on which the application is based, so as to enable the defendant to prepare a defence and the Court to rule on the application. It follows therefrom that the heads of claim must be set out unambiguously so that the court does not rule ultra petita or indeed fail to rule on a complaint (see judgment of 26 January 2017, GGP Italy v Commission, T‑474/15, EU:T:2017:36, paragraph 31 and the case-law cited). However, in the present case, as is argued by the Parliament, the sixth head of claim clearly does not satisfy those requirements and is therefore inadmissible.
59 As regards the fourth head of claim, seeking annulment of the decision notified to the applicant by the email of 28 November 2016, it should be borne in mind that that email confirmed the decision of 26 October 2016 (see paragraph 8 above). Even if that communication could be interpreted as making a decision, its content merely confirms the decision of 26 October 2016, as acknowledged by the applicant at the hearing. Moreover, it has not been preceded by a genuine and detailed re-examination of the applicant’s situation and is not based on any new factors. Consequently, the fourth head of claim must be rejected as inadmissible. In any event, for the reasons set out in paragraphs 30 to 56 above, the applicant no longer has an interest in bringing proceedings against the email of 28 November 2016.
60 It follows from all the foregoing that there is no longer any need to adjudicate on the first, second, third and fifth heads of claim. In addition, the fourth and sixth heads of claim must be rejected as inadmissible. Consequently, the applicant’s requests for measures of organisation of procedure and measures of inquiry must be rejected.
Costs
61 Under Article 134(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the parties are to bear their own costs. However, if it appears justified in the circumstances of the case, the Court may order that one party, in addition to bearing his own costs, pay a proportion of the costs of the other party.
62 According to Article 137 of the Rules of Procedure, where a case does not proceed to judgment, the costs are to be in the discretion of the Court.
63 In the present case, the Court considers that it is a fair assessment of the circumstances of the case to order the Parliament to bear its own costs and to pay those incurred by the applicant.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1. Declares that there is no longer any need to adjudicate on the request for annulment of the call for expressions of interest EP/CAST/S/16/2016, of the decision of 26 October 2016 informing Mr Carlos Manuel Henriques Barata that he was not among the candidates selected for a post as a driver, and of the decision of 25 April 2017 rejecting the complaint lodged by Mr Barata against that decision;
2. Declares that there is also no longer any need to adjudicate on the request for a declaration that the call for expressions of interest EP/CAST/S/16/2016 does not apply to Mr Barata;
3. Dismisses the remainder of the action as inadmissible;
4. Orders the European Parliament to bear its own costs and to pay those incurred by Mr Barata.
Delivered in open court in Luxembourg on 20 September 2019.