Judgments nº T-81/18 of Tribunal General de la Unión Europea, April 02, 2020

• Resolution Date: April 02, 2020
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-81/18

(Civil service - Officials - Promotion - Certification procedure - 2016 promotion exercise - Exclusion of the applicant from the final list of officials authorised to take part in the training programme - Article 45a of the Staff Regulations - Obligation to state reasons - Manifest error of assessment - Equal treatment - Rights of the defence)

In Case T-81/18,

João Miguel Barata, residing in Evere (Belgium), represented by G. Pandey, D. Rovetta and V. Villante, lawyers,

applicant,

v

European Parliament, represented by J. Steele and I. Terwinghe, acting as Agents,

defendant,

APPLICATION pursuant to Article 270 TFEU seeking annulment, first, of the decision of 30 October 2017 by which the Parliament rejected the applicant’s complaint, secondly, the letter of 20 March 2017 containing the opinion of the Joint Certification Procedure Committee recommending that the appointing authority reject the applicant’s appeal, thirdly, the letter of 14 February 2017 notifying him of his results and informing him that a draft list of seven officials selected to take part in the training programme had been drawn up, fourthly, the letter of 8 December 2016 informing the applicant of his results following the first stage of the 2016 certification procedure, fifthly, the letter of 21 December 2016 informing the applicant of the action taken following his request for review and, sixthly, the notice of internal competition 2016/014 of 7 October 2016 communicated to staff on 20 October 2016 and the full draft list of officials admitted for participation in the resulting training programme,

THE GENERAL COURT (Second Chamber),

composed F. Schalin (Rapporteur), acting as President, B. Berke and M. J. Costeira, Judges,

Registrar: P. Cullen, Administrator,

having regard to the written part of the procedure and further to the hearing on 17 September 2019,

gives the following

Judgment

Background to the dispute

1 On 12 October 2016, by the notice of internal competition 2016/014 (‘the internal competition notice’), a call for applications for the 2016 certification procedure was published within the European Parliament. The purpose of that certification procedure was to select officials in function group AST, from grade 5 and above, who were suitable for appointment to a post in function group AD. On the same day, the applicant, Mr João Miguel Barata, a Parliament official of grade AST 8, submitted his application.

2 By letter of 8 December 2016, the appointing authority of the Parliament (‘the appointing authority’) informed the applicant of his results for the first stage of the 2016 certification procedure. The Parliament thus informed him that he had obtained a total of 28.9 points and was ranked 36 out of 87 and was accordingly not among the 28 highest ranked applicants and would therefore not be included in the next stage of the 2016 certification procedure.

3 On 14 December 2016 the applicant received a detailed analysis of his results and, on 15 December 2016, was entitled to consult his application file for the 2016 certification procedure and make copies of his last 10 staff reports and his evaluation sheet.

4 On 15 December 2016, the applicant also sent an email to the appointing authority, in the person of the Director for Human Resources Development of the Directorate-General for Personnel of the Parliament asking whether five or six sub-criteria of the main criterion relating to ‘nature of experience’ had been evaluated and weighted differently compared with previous years.

5 Although the appointing authority considered that the applicant did not formally request a review within the deadline of 10 working days, it decided to treat his email of 15 December 2016 as constituting such a request. The appointing authority concluded that the evaluation of the first part of the applicant’s application had been evaluated in accordance with the provisions of the call for applications and informed the applicant of the results of his request for review by letter of 21 December 2016.

6 By letter of 14 February 2017, the appointing authority informed the applicant that it had established a draft list of seven officials (which did not include the applicant) selected to take part in the training programme and that he could lodge an appeal with the Joint Certification Procedure Committee (‘COPAC’).

7 On 1 March 2017, the applicant lodged an appeal with COPAC, contesting the number of points awarded, based on the evaluation of his performance for 2014 and 2015 and the number of points awarded for the nature of his professional experience.

8 By letter of 20 March 2017, COPAC informed the applicant that his appeal had been examined during the meetings of 7 and 8 March 2017 and that following a detailed analysis of his file, COPAC considered that the administration had correctly followed all of the procedural steps set out in the call for applications in assessing his application. Consequently, the applicant was informed that COPAC had advised the appointing authority to reject his appeal as unfounded.

9 By letter of 29 March 2017, the appointing authority informed the applicant that it had taken due note of COPAC’s opinion and stated that his application had been properly assessed. The result of the selection process was thus confirmed.

10 On 19 June 2017, the applicant lodged a complaint under Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’).

11 The Secretary-General of the Parliament, as appointing authority, confirmed the decision not to include the name of the applicant on the list of officials selected (‘the decision rejecting the complaint’). The decision rejecting the complaint was sent by registered letter with acknowledgement of receipt on 30 October 2017 and was received by the applicant the next day.

Procedure and forms of order sought

12 By application lodged at the Court Registry on 9 February 2018, the applicant brought the present action, including, in accordance with Article 54 et seq. of the Rules of Procedure of the General Court, a request for measures of organisation of procedure.

13 The defence, the reply and the rejoinder were lodged at the Court Registry on 4 May, 17 July, and 11 September 2018 respectively.

14 The applicant claims, in essence, that the Court should:

- annul the letter of 30 October 2017 rejecting the complaint of 19 June 2017;

- annul the letter of 20 March 2017, containing the opinion of COPAC in which the appointing authority was advised to reject the applicant’s appeal;

- annul the letter of 14 February 2017 notifying him of his results and informing him that a draft list of seven officials selected to participate in the training programme had been drawn up;

- annul the letter of 8 December 2016 informing him of his results for the first stage of the 2016 certification procedure;

- annul the letter of 21 December 2016 informing him of the action taken following his request for review;

- annul the notice of internal competition and annul in its entirety the resulting draft list of officials selected to take part in the training programme;

- order the Parliament to pay him the sum of EUR 50 000 as compensation for the non-material damage suffered;

- order the Parliament to pay the costs.

15 The Parliament contends, in essence, that the Court should:

- reject the action in the main proceedings as inadmissible and, in any event, as entirely unfounded;

- reject the applicants’ requests for measures of inquiry as unfounded;

- order the applicant to pay all of the costs.

Law

16 In support of his action, the applicant raises five pleas in law alleging (i) a manifest error of assessment and infringement of the obligation to state reasons; (ii) infringement of the principle of effective judicial protection, rights of the defence and the right to be heard; (iii) lack of competence on the part of COPAC, infringement of Article 30 of the Staff Regulations, read in conjunction with Annex III to those regulations, infringement of the principle of sound administration and infringement of the 2016 certification procedure; (iv) infringement of the principle of sound administration referred to in Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’), a manifest error of assessment and infringement of the principle of equality, and (iv) infringement of Articles 1 to 4 of Regulation No 1 of the Council of 15 April 1958 determining the languages to be used by the European Economic Community (OJ English Special Edition: Series I Volume 1952-1958, p. 59), as last amended by Council Regulation (EU) No 517/2013 adapting certain regulations and decisions in the fields of free movement of goods, freedom of movement for persons, company law, competition policy, agriculture, food safety, veterinary and phytosanitary policy, transport policy, energy, taxation, statistics, trans-European networks, judiciary and fundamental rights, justice, freedom and security, environment, customs union, external relations, foreign, security and defence policy and institutions, by reason of the accession of the Republic of Croatia (OJ 2013 L 158, p. 1) (‘the amended Regulation 1/58), Article 1d and Article 28 of the Staff Regulations and Article 1(1)(f) of Annex III to the Staff Regulations and the principles of equal treatment and non-discrimination.

Admissibility

17 The Parliament maintains that the third head of claim, the second plea in law, in so far as it, by way of an objection, alleges the illegality of Article 90 of the Staff Regulations, and the third and fourth pleas in law must be rejected as inadmissible. In addition, the Court considers that it is necessary to examine of its own motion the admissibility of the second, fourth and fifth heads of claim.

18 It is necessary first to examine the admissibility of the heads of claim and then to examine the admissibility of the pleas in law.

Admissibility of the heads of claim

19 As...