# C_2023127EN.01004501.xml

| 11.4.2023 | EN | Official Journal of the European Union | C 127/45 |
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11.4.2023

EN

Official Journal of the European Union

C 127/45

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Action brought on 30 January 2023 — Hatherly v EUAA

(Case T-40/23)

(2023/C 127/56)

Language of the case: English

Parties

Applicant: Xavier James Hatherly (Hamrun, Malta) (represented by: A. Grima, lawyer)

Defendant: European Union Agency for Asylum (EUAA)

Form of order sought

The applicant claims that the Court should:

| — | annul the Management Board Decision No 121 of 3 November 2022; |
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annul the Management Board Decision No 121 of 3 November 2022;

| — | annul the letter of withdrawal of the job offer, dated 8 April 2022, pursuant to the Selection Procedure with reference number EASO/2021/TA/007 for the post of Administrative Assistant (Profile D: Procurement Assistant); |
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annul the letter of withdrawal of the job offer, dated 8 April 2022, pursuant to the Selection Procedure with reference number EASO/2021/TA/007 for the post of Administrative Assistant (Profile D: Procurement Assistant);

| — | order the Management Board of the EUAA to confirm the job offer in question and integrate the applicant in his position as at 22 March 2022; |
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order the Management Board of the EUAA to confirm the job offer in question and integrate the applicant in his position as at 22 March 2022;

| — | order the EUAA to compensate the applicant for the loss of earnings to date. |
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order the EUAA to compensate the applicant for the loss of earnings to date.

Pleas in law and main arguments

In support of the action, the applicant relies on three pleas in law.

| 1. | First plea in law, alleging erroneous interpretation of the ‘qualification’ required for the post in question.






  — | The Management Board’s decision states that ‘the reference to the award of “a diploma” in the relevant vacancy notice is deemed to correspond to the reference to the award of a “qualification certifying the completion of the level of studies”, given that the completion of the required level of studies by candidates is attested by the diplomas they possess’; |
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1.

First plea in law, alleging erroneous interpretation of the ‘qualification’ required for the post in question.

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The Management Board’s decision states that ‘the reference to the award of “a diploma” in the relevant vacancy notice is deemed to correspond to the reference to the award of a “qualification certifying the completion of the level of studies”, given that the completion of the required level of studies by candidates is attested by the diplomas they possess’;

| — | The Staff Regulations, which prevail over any Management Board decision, do not define ‘qualification’ strictly as a diploma but merely state, in Article 28(d) thereof, that an official may be appointed only on condition that:
  ‘he has, subject to Article 29(2), passed a competition based on either qualifications or tests, or both qualifications and tests, as provided in Annex III’; |
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The Staff Regulations, which prevail over any Management Board decision, do not define ‘qualification’ strictly as a diploma but merely state, in Article 28(d) thereof, that an official may be appointed only on condition that:

‘he has, subject to Article 29(2), passed a competition based on either qualifications or tests, or both qualifications and tests, as provided in Annex III’;

| — | The word ‘qualification’ is being considered as necessarily a diploma, when had it been intended to mean as such, it would have been specified. In fact, both the Staff Regulations and the European Glossary on Education (cited by the Management Board in its decision) seem to claim that there is a difference between the two. In this respect, a qualification might be attained merely by examination grades which certify a particular level of academic achievement. |
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The word ‘qualification’ is being considered as necessarily a diploma, when had it been intended to mean as such, it would have been specified. In fact, both the Staff Regulations and the European Glossary on Education (cited by the Management Board in its decision) seem to claim that there is a difference between the two. In this respect, a qualification might be attained merely by examination grades which certify a particular level of academic achievement.

| 2. | Second plea in law, alleging non-recognition of the applicant’s qualifications in the Official Diploma Supplement provided by the University of Malta.






  — | The Europass Diploma Supplement, issued by the University of Malta in 2016, clearly outlines that the equivalent level required was attained in 2013; |
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2.

Second plea in law, alleging non-recognition of the applicant’s qualifications in the Official Diploma Supplement provided by the University of Malta.

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The Europass Diploma Supplement, issued by the University of Malta in 2016, clearly outlines that the equivalent level required was attained in 2013;

| — | This document has been developed by the European Commission, Council of Europe and UNESCO/CEPES. As the document itself claims, its purpose is to provide sufficient independent data to improve the international ‘transparency’ and fair academic and professional recognition of qualifications. Therefore, there is no legitimate reason why the equivalent level required which, as the Official Diploma Supplement proves, was attained in 2013, is not being recognised. The view that qualifications are necessarily attested by diplomas, excluding official documentation which is developed, inter alia, by the European Commission, is unjustified, as otherwise the Europass Diploma Supplement would be futile. |
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This document has been developed by the European Commission, Council of Europe and UNESCO/CEPES. As the document itself claims, its purpose is to provide sufficient independent data to improve the international ‘transparency’ and fair academic and professional recognition of qualifications. Therefore, there is no legitimate reason why the equivalent level required which, as the Official Diploma Supplement proves, was attained in 2013, is not being recognised. The view that qualifications are necessarily attested by diplomas, excluding official documentation which is developed, inter alia, by the European Commission, is unjustified, as otherwise the Europass Diploma Supplement would be futile.

| 3. | Third plea in law, alleging that such non-recognition of the applicant’s qualifications is discriminatory and that the subsequent withdrawal of the job offer is disproportionate.






  — | Candidates who withdraw from their Bachelor’s degree after two years or more are eligible for diploma equivalent to the educational component required in the vacancy; |
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3.

Third plea in law, alleging that such non-recognition of the applicant’s qualifications is discriminatory and that the subsequent withdrawal of the job offer is disproportionate.

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Candidates who withdraw from their Bachelor’s degree after two years or more are eligible for diploma equivalent to the educational component required in the vacancy;

| — | Therefore, the applicant considers the same time of two years to fulfil the purpose equally. Otherwise, the seemingly discriminatory situation would arise whereby candidates might have more educational attainment than required for the post, but be considered ineligible merely because the final diploma was issued after the year at which the required level was reached, even if they possessed official certification from a university of an EU Member State as part of such diploma provided for such purposes. Therefore, to withdraw a job offer merely on the basis that the diploma was issued later only by virtue of it covering another level is discriminatory and disproportionate due to a simplistic and rigid interpretation that is unjustified. |
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Therefore, the applicant considers the same time of two years to fulfil the purpose equally. Otherwise, the seemingly discriminatory situation would arise whereby candidates might have more educational attainment than required for the post, but be considered ineligible merely because the final diploma was issued after the year at which the required level was reached, even if they possessed official certification from a university of an EU Member State as part of such diploma provided for such purposes. Therefore, to withdraw a job offer merely on the basis that the diploma was issued later only by virtue of it covering another level is discriminatory and disproportionate due to a simplistic and rigid interpretation that is unjustified.

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