Order No. 0305 of 2021

IDENTIFIER
62021CO0305 | ECLI:EU:C:2022:253
LANGUAGE
English
COURT
Court of Justice
ADVOCATE GENERAL
Rantos
AG OPINION
NO
REFERENCES MADE
0
REFERENCED
0
DOCUMENT TYPE
Order

Judgment



ORDER OF THE COURT (Eighth Chamber)

31 March 2022 (*)

(Appeal – Article 181 of the Rules of Procedure of the Court of Justice – Civil service – Officials – Article 45a of the Staff Regulations of Officials of the European Union – Certification procedure – 2017 promotion exercise– Exclusion from the final list of officials entitled to take part in the training programme – Notice of competition – Obligation to include a list of annexes with the application form – Non-compliance – Rejection of the application – Principle of sound administration – Proportionality – Regulation No 1 – Rules on languages)

In Case C‑305/21 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 12 May 2021,

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

appellant,

the other party to the proceedings being:

European Parliament,

defendant at first instance,

THE COURT (Eighth Chamber),

composed of N. Jääskinen, President of the Chamber, N. Piçarra and M. Gavalec (Rapporteur), Judges,

Advocate General: A. Rantos,

Registrar: A. Calot Escobar,

having decided, after hearing the Advocate General, to give a decision by reasoned order, pursuant to Article 181 of the Rules of Procedure of the Court of Justice,

makes the following

Order

1        By his appeal, Mr João Miguel Barata seeks to have set aside the judgment of the General Court of the European Union of 3 March 2021, Barata v Parliament (T‑723/18, ‘the judgment under appeal’, EU:T:2021:113), by which the General Court rejected as unfounded his action for annulment, first, of the call for applications published on 22 September 2017 by the European Parliament for the 2017 certification exercise (‘the notice of competition’), secondly, of the act of 7 December 2017 by which the appointing authority at the Parliament rejected his application as inadmissible, thirdly, of the act of 21 December 2017 by which the appointing authority confirmed the act of 7 December 2017, fourthly, of the letter of 1 March 2018 by which the appointing authority reiterated that the appellant was not admitted to participate in the 2017 certification procedure, fifthly, of the letter of 22 March 2018 by which the Joint Certification Procedure Committee indicated to the appellant that it had advised the appointing authority to reject the appeal he had lodged before that committee, sixthly, of the decision of 23 July 2018 by which the appointing authority, first, rejected his complaints of 2 February and 13 April 2018 against the act of 21 December 2017 by which the appointing authority confirmed the act of 7 December 2017, and the decision of 28 March 2018 by which the appointing authority confirmed the rejection of the appellant’s candidacy (‘the decision of 28 March 2018’) and, secondly, confirmed its decision not to admit him to the selection procedure for officials eligible for appointment to a post in the AD function group.

2        The appellant also asks the Court, in the event that it upholds the appeal, to give final judgment in the matter and, in that context, to annul all the acts referred to in the preceding paragraph, including the decision of 28 March 2018 and, if necessary, declare the notice of competition unlawful and inapplicable, pursuant to Article 277 TFEU, and award him compensation in the amount of EUR 50 000 for the harm which he claims to have suffered.

3        In the alternative, the appellant claims that the Court should set aside the judgment under appeal, refer the case back to the General Court pursuant to Article 170 of the Rules of Procedure of the Court of Justice and order measures of organisation of procedure.

4        Lastly, the appellant asks the Court to order the Parliament to pay the costs of the proceedings at first instance and on appeal.

 The appeal

5        Pursuant to Article 181 of the Rules of Procedure of the Court of Justice, where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal in whole or in part.

6        It is appropriate to apply that provision in the present case.

7        On 4 February 2022, the Advocate General took the following position:

‘…

2.      In support of his appeal, the appellant raises two grounds of appeal, alleging, first, misinterpretation of the principle of sound administration, of Article 45a of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) and of the principle of proportionality and, secondly, infringement of Articles 1 and 6 of Council Regulation No 1 of 15 April 1958 determining the languages to be used by the European Economic Community (OJ, English Special Edition 1952-58, p. 59), as amended by Council Regulation (EU) No 517/2013 of 13 May 2013 (OJ 2013 L 158, p. 1) (‘Regulation No 1/58’) and Article 1d of the Staff Regulations.

 Admissibility of the appellant’s claims

3.      As a preliminary point, I note that the appellant asks the Court, inter alia, first, to annul the decision of 28 March 2018 and, secondly, to uphold a claim for damages. Those claims, submitted for the first time in the present appeal, were not invoked in the procedure provided for in Article 90 of the Staff Regulations or in the action for annulment before the General Court.

4.      In that regard, it should be borne in mind that, under Article 170(1) of the Rules of Procedure of the Court of Justice, the subject matter of the proceedings before the General Court may not be changed in the appeal and the appeal must not seek a different form of order (see, to that effect, judgment of 9 June 2016, Repsol Lubricantes y Especialidades and Others v Commission, C‑617/13 P, EU:C:2016:416, paragraph 58).

5.      Accordingly, since none of the claims referred to in point 3 of this position were made at first instance, they must be dismissed as manifestly inadmissible.

 The first ground of appeal

6.      By his first ground of appeal, directed against paragraphs 78 to 105 of the judgment under appeal, the appellant submits, in essence, that the General Court made several errors of law in rejecting the third plea which he put forward at first instance, alleging infringement of the principles of sound administration and proportionality in the rejection of his application as inadmissible, on the ground that it was not accompanied by the required list of annexes.

 First part of the first ground of appeal

7.      By the first part of his first ground of appeal, the appellant complains, in essence, that the General Court interpreted the principle of sound administration too restrictively and, therefore, infringed that principle by finding, in paragraph 93 of the judgment under appeal, that the Parliament was in no way required, under the duty to have regard for the welfare of officials or the principle of sound administration, to alert the appellant to the defect in his application and that, in any event, the principle of equal treatment did not allow it to request a candidate to put his application form, which did not contain the required list of annexes, in order.

8.      In the first place, the appellant submits that, in holding, in paragraph 84 of that judgment, that where the clear provisions of a competition notice unequivocally require candidates to attach supporting documents to the application form, a candidate’s failure to comply with that requirement cannot enable or, a fortiori, oblige the selection board or the appointing authority to act contrary to that notice of competition, the General Court incorrectly classified the list of annexes as a ‘supporting document’ and, consequently, wrongly applied the legal criterion applicable to supporting documents, without taking account of the fact that that list is intended merely to allow the selection board and the appointing authority to identify at a glance the substantive documents which have to be examined in order to decide whether candidates can take part in the certification procedure.

9.      In the second place, the General Court misinterpreted and infringed the principle of sound administration by holding, in paragraphs 88 to 93 of the judgment under appeal, that that principle was not applicable, on the ground that point 5.3 of the competition notice was clear, precise and unambiguous as to the type of supporting documents to be produced and the fact that failure to produce them would lead to rejection of the application. The appellant maintains that, even if the requirements set out in point 5.3 of the competition notice were to be interpreted literally, that notice does not prevent the appointing authority or the selection board from alerting a candidate, before the closing date for submitting applications, to the absence of one or more documents required in order to allow him to put his application form in order. In his view, the relevant time for checking whether such documents have been submitted is the time when the deadline for lodging applications expires. He concludes that, until that deadline, the appointing authority and the selection board are required, under the principle of sound administration, to alert a candidate to the defect affecting his application. In that regard, he alleges that the Parliament infringed point 5.3 of the competition notice by interpreting it strictly and not in accordance with the principle of sound administration.

10.      In the third place, the appellant submits that the fact that an appointing authority alerted a candidate to such a defect before the closing date for submitting applications does not infringe the principle of equal treatment, since any candidate in the same situation as him should be alerted.

11.      In the fourth and last place, he submits, in essence, that the strict interpretation by the General Court of the principle of sound administration and the duty to have regard for the welfare of officials is neither reasonable nor balanced and runs counter to the very objective of the certification procedure, which is not to train clerical assistants or secretaries capable of drafting a list of annexes, but rather to select and train candidates suitable for performing the duties of administrators within the EU institutions. That interpretation thus risks excluding competent candidates from that procedure on account of a purely formal error.

12.      In order to strengthen his arguments, the appellant points out that an application for an internal certification procedure within the Parliament would, in the end, be treated more strictly than an action for annulment brought before the General Court, since it is possible to put an application in order by producing missing documents or by correcting a procedural error, within a reasonable period set by the Court Registrar. It is true that, unlike the certification procedure at issue, that option to put a procedural document in order before the General Court is expressly provided for in the Rules of Procedure of the General Court. However, that option is merely a specific application of the principle of sound administration and the duty to have regard for the welfare of staff, with the aim that access to justice and the guarantee of effective judicial protection should not be called into question by purely formal errors.

13.      None of the arguments raised by the appellant in the first part of his first ground of appeal can be upheld.

14.      As a preliminary point, it should be noted that the administration’s duty to have regard for the welfare of its staff reflects the balance of the reciprocal rights and obligations established by the Staff Regulations in the relationship between civil servants and their administration. Together with the principle of sound administration, that balance implies in particular that when the administration takes a decision concerning the situation of an official, it should take into consideration all the factors which may affect its decision and that when doing so it should take into account not only the interests of the service but also those of the official concerned (judgment of 10 June 2021, Commission v De Esteban Alonso, C‑591/19 P, EU:C:2021:468, paragraph 61).

15.      It is, in principle, for the competition candidate to make a careful reading of the competition notice (see, to that effect, judgment of 28 June 1979, Anselme and Constant v Commission, 255/78, EU:C:1979:175, paragraph 10) and to provide the selection board with all the information and documents enabling it to verify that the candidate fulfils the conditions laid down in that notice. A selection board cannot be required to carry out itself inquiries in order to ascertain whether the candidates satisfy all of those conditions. It is incumbent on the candidates to provide the selection board with all the information they consider pertinent to the appraisal of their applications, all the more so if they have been expressly and formally invited to do so (see, to that effect, judgment of 12 July 1989, Belardinelli and Others v Court of Justice, 225/87, EU:C:1989:309, paragraph 24).

16.      Thus, when clear provisions in a notice of competition unequivocally require candidates to enclose supporting documents with their application form, a candidate’s failure to comply with that obligation cannot enable or, a fortiori, oblige the selection board or the appointing authority to act contrary to that notice of competition (see, to that effect, judgment of 31 March 1992, Burban v Parliament, C‑255/90 P, EU:C:1992:153, paragraph 12).

17.      By contrast, if the terms of a competition notice are vague or ambiguous, then the administration is obliged to exercise its discretion in the interests of the candidate, in accordance with its duty to have regard for the welfare of staff and the principle of sound administration (see, to that effect, judgments of 25 April 1978, Allgayer v Parliament, 74/77, EU:C:1978:89, paragraph 4, and of 23 October 1986, Schwiering v Court of Auditors, 321/85, EU:C:1986:408, paragraph 20).

18.      It is in the light of those principles of case-law, which the General Court rightly observed, in paragraph 88 of the judgment under appeal, were firmly established, that the first part of the first ground of appeal should be examined.

19.      In that regard, it should be noted at the outset that the appellant does not call into question the factual assessment in paragraph 92 of the judgment under appeal, according to which the terms of the competition notice and the application form were clear, precise and entirely unambiguous. The appellant does not therefore dispute that the provisions of that notice and of the declaration appearing at the end of that form laid down unequivocally that every application form had to be accompanied by a list of the annexes, failing which the corresponding application would be rejected. Nor does the appellant dispute the General Court’s finding in paragraph 93 of that judgment that, having submitted his application form on 27 September 2017, he still had nine days to regularise it before the expiry of the time limit for submitting applications on 6 October 2017.

20.      In those circumstances, the General Court did not err in law in rejecting, in paragraph 93, that there was any breach of the duty to have regard for the welfare of officials and of the principle of sound administration.

21.      None of the arguments put forward by the appellant can call that conclusion into question.

22.      First, without it being necessary to rule on whether the list of annexes is a ‘supporting document’ in the strict sense, the fact remains that the production of that list was a mandatory requirement for admission to the competition, since failure to comply with that requirement resulted in rejection of the application. As the General Court observed, in paragraphs 90 and 91 of the judgment under appeal, that condition was reiterated in the declaration at the end of the application form, immediately preceding the position reserved for the candidate’s signature. In signing the application form, the candidates thus confirmed that they had been informed, inter alia, of the fact that that form had to be accompanied by all the supporting documents requested, including a list in which each supporting document annexed to the application is numbered and briefly described. Thus, it can be clearly deduced from that declaration, and in particular from the use of the word ‘including’, that the list of annexes was one of the ‘supporting’ documents, within the meaning of the notice of competition, and should, as such, be attached to the application form, failing which the application concerned would be rejected.

23.      Secondly, contrary to the appellant’s claims and as is shown by paragraphs 101 and 103 of the judgment under appeal, the General Court did indeed take into consideration, in its assessment, the fact that the list of annexes was intended to enable the administration to have, in summary form, an overview of all the documents produced in support of each application, while acknowledging that the absence of that list did not constitute an obstacle to the assessment of the candidates’ individual merits.

24.      Thirdly, in so far as the appellant infers from paragraph 93 of the judgment under appeal that, although compliance with the terms of the notice of competition and the principle of equal treatment did not allow the Parliament to invite a candidate to regularise his or her application form on expiry of the deadline for submitting applications, there was nothing to prevent the Parliament from doing so before that date, it must be borne in mind, without it being necessary to examine whether or not the Parliament had such an option, that, in the light of the case-law referred to in points 14 to 17 above, the Parliament was not in any way required to alert the appellant to the defect in his application form, either before or after the expiry of that deadline.

25.      Fourthly, the appellant cannot compare the power of the Court Registrar to request applicants for annulment before the General Court to produce, within a specified period, certain documents which are missing, to the absence of such a power in the context of certification procedures. As, moreover, the appellant acknowledges, that power of the Court Registrar is expressly provided for by the Rules of Procedure of the General Court, whereas there is no provision which imposes a similar obligation on the EU institutions in certification procedures.

26.      In the light of all the foregoing considerations, the first part of the first ground of appeal must be rejected as manifestly unfounded.

 Second part of the first ground of appeal

27.      By the second part of his first ground of appeal, the appellant complains, in essence, that the General Court, in paragraph 95 of the judgment under appeal, infringed Article 45a of the Staff Regulations by holding that those regulations conferred on the appointing authority a wide discretion in the organisation of a certification procedure.

28.      In that regard, it should first of all be borne in mind that Article 45a of the Staff Regulations lays down derogating provisions for the appointment of officials in the assistants’ function group (AST) to posts in the administrators’ function group (AD) under the special conditions laid down in those provisions. The provisions of Article 45a of the Staff Regulations must, as derogating provisions, be interpreted and applied strictly (see, to that effect, judgment of 22 January 2020, Pensionsversicherungsanstalt (Cessation of activity after reaching retirement age), C‑32/19, EU:C:2020:25, paragraph 38 and the case-law cited).

29.      It is also appropriate to recall the settled case-law of the Court of Justice according to which the EU institutions have a wide discretion in the organisation of their departments and, in particular, in the determination of the criteria of ability required for the positions to be filled and, in the light of these criteria and in the interests of the service, the conditions and procedure for organising competitions (judgment of 26 March 2019, Commission v Italy, C‑621/16 P, EU:C:2019:251, paragraph 88 and the case-law cited).

30.      In those circumstances, the appellant cannot validly dispute that the EU institutions, in this case the Parliament, have a broad discretion in the organisation of a certification procedure and, by extension, in determining the conditions for admission to that procedure.

31.      Accordingly, the second part of the first ground of appeal must be rejected as manifestly unfounded.

 Third part of the first plea in law

32.      By the third part of his first ground of appeal, the appellant alleges, in essence, that the General Court infringed the principle of proportionality by interpreting the condition set out in point 5.3 of the notice of competition too strictly. In that regard, he submits, in essence, that the Court started from the premiss that the penalty of excluding any candidate who had failed to attach a list of annexes to his application form from the certification procedure was consistent with the principle of proportionality, whereas less restrictive measures would have made it possible to attain the objectives pursued by that condition, namely to ensure that that procedure was conducted properly and the interest of the EU institutions in selecting, by means of that procedure, the best candidates was served.

33.      Contrary to what is claimed by the appellant, the General Court noted, in paragraph 94 of the judgment under appeal, that 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 legitimate objectives pursued by the legislation in question; where a choice is available between several appropriate measures, recourse must be had to the least onerous. It thus held, first of all, in paragraphs 96, 97 and 99 of that judgment, without being challenged by the appellant in the appeal, that the legitimate objectives pursued by the rule set out in point 5.3 of the notice of competition were, first, to manage applications effectively by facilitating their administrative processing and, secondly, to determine the ability of candidates to follow clear, precise and unambiguous instructions. Taking the view, next, in paragraphs 98 and 101 to 103 of that judgment, that the proper conduct of a certification procedure requires that a significant number of administrative tasks be carried out over a fairly short period of time, involving, inter alia, a variety of documents in different languages, submitted by a not insignificant number of candidates, it concluded, in paragraph 102 of that judgment, that the obligation to provide a list of supporting documents appears to be an appropriate means of contributing to the proper management of the certification procedure, without imposing an excessive or unreasonable burden on candidates. Finally, the General Court considered that the consequence of failure to comply with that obligation, namely the rejection of the application, was intended to encourage candidates to comply with that obligation in order, in essence, to avoid making the administration’s task more onerous and giving rise to an ambiguity as to whether such an omission could be rectified.

34.      In that context, and in any event, it is difficult to see how the measure proposed by the appellant, consisting of alerting candidates to the defect in their application form and inviting them to regularise it within a specified period, could be regarded as less onerous in the light of the objectives pursued referred to in the preceding paragraph, since such a measure would clearly be likely to make the administration’s task more burdensome.

35.      Consequently, the third part of the first ground of appeal is manifestly unfounded and that ground of appeal must therefore also be rejected in its entirety as manifestly unfounded.

 The second ground of appeal

36.      By his second ground of appeal, directed against paragraphs 106 to 124 of the judgment under appeal, the appellant claims that the General Court misinterpreted and infringed Articles 1 and 6 of Regulation No 1/58 and Article 1d of the Staff Regulations. He complains, in essence, that the General Court confirmed that it was open to the appointing authority, in the context of the certification procedure, to limit the choice of languages of communication between candidates in a competition and the administration to a limited number of official languages other than Portuguese.

 First part of the second ground of appeal

37.      By the first part of that ground of appeal, the appellant submits that the General Court erred in law in relying, in paragraph 122 of the judgment under appeal, on the internal nature of the competition in order to hold that the provisions of Regulation No 1/58 were not applicable and to reject the plea of illegality in respect of the notice of competition. On the contrary, according to the appellant, the certification procedure at issue should be classified as a ‘hybrid procedure’, since its purpose is to enable officials in function group AST to take up posts in function group AD, which, as a general rule, takes place by means of an external competition. The certification procedure at issue is of such a hybrid nature that the General Court erred in law by not applying Article 6 of that regulation.

38.      It should be noted that Article 1 of Regulation No 1/58 lists the official languages and working languages of the EU institutions and Article 6 of that regulation provides that they may stipulate in their rules of procedure which of the languages are to be used in specific cases. However, it must be noted that, as the General Court, in essence, observes in paragraph 110 of the judgment under appeal, the institutions and, in particular, the Parliament, did not determine those procedures on the basis of Article 6. In that regard, the Court of Justice has held that, in the absence of special rules applicable to officials and servants in the internal rules of the institutions, there is no provision making it possible for them to conclude that relations between those institutions and their officials and servants are totally excluded from the scope of those rules (judgments of 27 November 2012, Italy v Commission, C‑566/10 P, EU:C:2012:752, paragraph 68, and of 26 March 2019, Commission v Italy, C‑621/16 P, EU:C:2019:251, paragraph 118).

39.      That said, it must be stated that, in the present case, the appellant does not appear to dispute the inapplicability of Regulation No 1/58 to internal competitions, but seeks, in essence, to classify the certification procedure as a hybrid procedure, to which that regulation might possibly apply.

40.      In support of his argument, the appellant relies on the purpose of the certification procedure, which is to enable officials in function group AST to take up posts in function group AD, which takes place, as a general rule, by means of an external competition. He therefore concludes that it would be unreasonable for candidates taking part in an external competition to be able to benefit from the provisions of Regulation No 1/58, when those participating in an internal competition could not.

41.      That argument cannot, however, succeed.

42.      The appellant attempts to compare two separate procedures, which are aimed at different candidates. More specifically, internal competitions are open only to officials and other staff within the institutions, whereas open competitions are addressed to citizens of the European Union, the vast majority of whom are unfamiliar with the institutions (see, to that effect, judgment of 27 November 2012, Italy v Commission, C‑566/10 P, EU:C:2012:752, paragraph 92).

43.      Thus, in so far as the appellant seeks, by his arguments, to rely on a difference in treatment between participants in internal competitions and participants in external competitions as regards the applicability of Regulation No 1/58, it should be noted that, according to settled case-law, the principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (judgment of 9 October 2008, Chetcuti v Commission, C‑16/07 P, EU:C:2008:549, paragraph 40). Since the participants in both types of competition are not in a comparable situation as regards their relationship with the institutions, the appellant’s argument must be rejected as manifestly unfounded.

44.      Consequently, his argument that the General Court should have taken into consideration the objective of linguistic diversity pursued by that regulation, which it did, moreover, in paragraph 110 of the judgment under appeal, and applied Article 6 of that regulation, must also be rejected.

45.      Accordingly, the first part of the second ground of appeal must be rejected as manifestly unfounded.

 Second part of the second ground of appeal

46.      By the second part of his second ground of appeal, the appellant complains, in essence, that the General Court erred in law in holding that the discrimination based on language that candidates whose mother tongue was other than English, French and German suffered was justified, under Article 1d of the Staff Regulations, by the specific objective pursued by the certification procedure concerned, which was to recruit candidates with the best command of English and French. According to the appellant, the competition notice merely set out the languages in which the tests relating to the certification procedure, namely English or French, would take place.

47.      That argument, which is based on a misreading of the judgment under appeal, cannot succeed.

48.      Contrary to what the appellant appears to claim, the General Court correctly held, in paragraph 114 of the judgment under appeal, that, in the context of a notice of competition reserved to officials and staff employed by an institution, the requirement of knowledge of certain languages may be justified in the light of the internal nature of the competition, as candidates in such a competition are in a position to understand the reasons for the languages required for the tests and the Court is able to review the choice of those languages. Thus, in paragraph 118 of that judgment, the General Court merely found that the notice of competition referred to the importance, for candidates, to have an adequate command of at least one of the languages in which the training programme and the tests in which the successful candidates would be invited to take part were organised, having regard to the fact that that programme and those tests were conducted in French and English. In so doing, the General Court did not hold that the certification procedure at issue was intended to recruit candidates with the best command of those languages, but merely explained the reasons justifying the requirement of an adequate command of at least one of those languages.

49.      Accordingly, the second part of the second ground of appeal must be rejected as manifestly unfounded.

 Third part of the second ground of appeal

50.      By the third part of his second ground of appeal, the appellant alleges, in essence, discrimination based on language, on the ground that the contested notice of competition had not been published in his mother tongue, namely Portuguese, which prevented him from understanding the importance of attaching a list of annexes to his application form. He points out, in that regard, that the fact that he allegedly possessed a very good level of English cannot justify discrimination as regards the possibility of using his mother tongue, of which he has a considerably better command than English and French.

51.      In that regard, it must be stated that, unlike the notices of competition published in full, in all official languages, in the Official Journal of the European Union, in accordance with Article 1(2) of Annex III to the Staff Regulations, read in conjunction with Article 5 of Regulation No 1/58, internal competition notices are not subject to that requirement.

52.      Thus, while it is true that a candidate whose mother tongue is not one of the languages in which a notice of internal competition is published is placed at a disadvantage in relation to a candidate whose mother tongue is one of the languages in which that notice of competition has been published in full, both as regards the correct understanding of that notice and as regards the period for preparing and sending an application for the competition concerned, the fact remains that such a difference in treatment on grounds of language, which is prohibited by Article 21 of the Charter of Fundamental Rights of the European Union and by Article 1d(1) of the Staff Regulations, may, under Article 1d(6) of those regulations be allowed in so far as, in accordance with the principles of non-discrimination and proportionality, it is objectively justified and is aimed at legitimate objectives in the general interest in the framework of staff policy (see, to that effect, judgment of 27 November 2012, Italy v Commission, C‑566/10 P, EU:C:2012:752, paragraphs 73 to 75). Having regard, on the one hand, to the legitimate objective pursued by the difference in treatment on account of the language in question, relating to the internal nature of the certification procedure referred to in point 48 of this position, and, on the other hand, to the fact that the competition notice was addressed only to officials able to claim at least six years’ service, the appellant’s argument alleging discrimination on account of the failure to publish that notice in his mother tongue cannot succeed.

53.      Consequently, the third part of the second ground of appeal is manifestly unfounded and that ground of appeal must therefore also be rejected in its entirety as manifestly unfounded.

54.      Accordingly, the appeal must be dismissed in its entirety, without there being any need for the Court to rule on the appellant’s other heads of claim.

 Conclusion

55.      In the light of all those considerations, I propose that the Court dismiss the appeal in its entirety, pursuant to Article 181 of the Rules of Procedure of the Court of Justice, as being, in part, manifestly inadmissible and, in part, manifestly unfounded, and order the appellant to pay the costs, in accordance with Article 137 and Article 184(1) of those rules.’

 Findings of the Court

8        For the same reasons as those given by the Advocate General, the appeal must be dismissed as in part manifestly inadmissible and in part manifestly unfounded.

 Costs

9        Under Article 137 of the Rules of Procedure of the Court of Justice, applicable to the procedure on appeal pursuant to Article 184(1) thereof, a decision as to costs is to be given in the order which closes the proceedings.

10      In this case, since the present order has been adopted before the appeal was served on the Parliament and therefore before the latter could have incurred costs, Mr Barata must be ordered to bear his own costs.

On those grounds, the Court (Eighth Chamber) hereby orders:

1.      The appeal is dismissed as in part manifestly inadmissible and in part manifestly unfounded.


2.      Mr João Miguel Barata shall bear his own costs.


Luxembourg, 31 March 2022.


A. Calot Escobar

 

N. Jääskinen

Registrar

 

      President of the Eighth Chamber


*      Language of the case: English.


Citations

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