Judgment;Information — ECLI:EU:T:2024:64
Date: 2024-02-07
Language of the case: English
Court formation: Fifth Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Staff cases - unfounded;Action for damages - unfounded

summary of those pleas, as well as the forms of order sought by the applicant. That information must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any further information. In order to guarantee legal certainty and the sound administration of justice it is necessary, in order for an action to be admissible, that the essential matters of law and fact relied on are stated, at least in summary form, in a sufficiently coherent and intelligible manner in the application itself (see judgment of 8 July 2020, WH v EUIPO, T‑138/19, not published, EU:T:2020:316, paragraph 28 and the case-law cited). 19 In the present case, it seems sufficiently coherent and intelligible from the application that the applicant is putting forward three pleas in law in support of his forms of order seeking annulment of the contested decision and of the decision rejecting the complaint. Moreover, his form of order seeking compensation is for alleged pecuniary loss consisting in the difference between what he actually earned and what he could have earned had the contested decision not been adopted. It is, moreover, apparent from the defence that the EUAA was not prevented from deciding, if only in the alternative, on all the arguments put forward by the applicant in support of his action directed against the contested decision and the decision rejecting the complaint. 20 That finding is not called into question by the EUAA’s argument to the effect that it had to endeavour to identify pleas and arguments so as to be able to provide a defence. Under the provisions of the Rules of Procedure, the defendant may raise a plea of inadmissibility pursuant to Article 130(1) of those rules within the time limit laid down for submitting a statement in defence; the EUAA did not do so in the present case. 21 It follows that the essential elements of fact and law relied on by the applicant in support of the present action are apparent in a sufficiently coherent and intelligible manner to enable the EUAA to prepare its defence and the Court to rule on the action. 22 The action is therefore admissible. The subject matter of the form of order seeking annulment 23 The applicant seeks, in addition to the annulment of the contested decision, annulment of the decision rejecting the complaint. 24 In that regard, it should be borne in mind that, according to settled case-law, the administrative complaint, as referred to in Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), and its rejection, whether express or implied, constitute an integral part of a complex procedure and are no more than a precondition for bringing the matter before the Courts of the European Union. Consequently, the action, even if formally directed against the rejection of the complaint, has the effect of bringing before the judicature the act adversely affecting the applicant against which the complaint was submitted, except where the scope of the rejection of the complaint differs from that of the measure against which that complaint was made (see judgment of 8 July 2020, WH v EUIPO, T‑138/19, not published, EU:T:2020:316, paragraph 33 and the case-law cited). 25 Any decision rejecting a complaint, whether express or implied, if it is straightforward, merely confirms the act or failure to act complained of and, when taken in isolation, does not constitute a challengeable act, so that the claims made against that decision which has no autonomous content in relation to the initial decision must be regarded as being directed against the initial act (see judgments of 12 September 2019, XI v Commission, T‑528/18, not published, EU:T:2019:594, paragraph 20 and the case-law cited, and of 8 July 2020, WH v EUIPO, T‑138/19, not published, EU:T:2020:316, paragraph 34 and the case-law cited). 26 However, an express decision rejecting a complaint may, in the light of its content, not be confirmatory of the act contested by the applicant. That is the case where the decision rejecting the complaint contains a re-examination of the applicant’s situation in the light of new elements of law or of fact, or where it changes or adds to the original decision. In such circumstances, the rejection of the complaint constitutes a measure subject to review by the judicature, which will take it into consideration when assessing the legality of the contested measure or will even regard it as an act adversely affecting the applicant replacing the contested measure (see judgments of 10 October 2019, Colombani v EEAS, T‑372/18, not published, EU:T:2019:734, paragraph 19 and the case-law cited, and of 8 July 2020, WH v EUIPO, T‑138/19, not published, EU:T:2020:316, paragraph 35 and the case-law cited). 27 In the present case, the Court finds that the decision rejecting the complaint confirms the contested decision by which the AECE withdrew the job offer made previously to the applicant, whilst providing further particulars on the reasons for that withdrawal and supplementing them in the light of the elements relied on by the applicant in his complaint. 28 Thus, it is apparent from the content of the decision rejecting the complaint that, in order to reach the same conclusion that the applicant did not fulfil the eligibility criterion at issue, the Management Board ruled on new elements by taking into consideration, inter alia, the transcript contained in the applicant’s Europass Diploma Supplement provided by him subsequently to the contested decision. In those circumstances, the decision rejecting the complaint, which supplements the contested decision for the purposes of the case-law cited in paragraph 26 above, must be taken into consideration in the review of the legality of the contested decision. 29 Consequently, the Court finds that the present action has the effect of bringing before the General Court an application for annulment of the contested decision, as supplemented by the decision rejecting the complaint. The forms of order seeking annulment 30 In support of his claim for annulment of the contested decision, the applicant puts forward three pleas in law. The first plea alleges, in essence, an error of law in the EUAA’s interpretation of the eligibility criterion at issue. By his second plea in law, the applicant submits that the EUAA made an error of assessment in finding that he did not fulfil the eligibility criterion at issue. The third plea in law alleges infringement of the principle of equal treatment and the principle of legal certainty. First plea in law: error of law 31 The applicant submits that the EUAA based the contested decision on an incorrect interpretation of the qualification required for the post at issue, namely a diploma attesting to the completion of a level of education, thereby conflating the concept of qualification with that of proof of the qualification. Such a strict interpretation is not supported by the provisions of the Staff Regulations, in particular Article 28(d), which does not refer to a diploma. Nor is that term used in the Decision of the Management Board of the EUAA of 18 January 2016 laying down general implementing provisions on the procedure governing the engagement and use of temporary staff under Article 2(f) of the Conditions of Employment of Other Servants of the European Union. On the contrary, the concept of qualification should be interpreted with the main criterion being the level of education achieved and should accordingly include both examination results and a certificate or diploma. 32 The applicant further criticises the EUAA for having found, in a discretionary manner, that the point of departure for the professional experience should be the date of award of a diploma, whereas neither the Staff Regulations nor the vacancy notice allow it to do so. The addition of such a requirement is contrary to Article 5(3)(a) of the Staff Regulations and has the effect of unfairly excluding candidates, such as the applicant, who have pursued a longer course of studies and been awarded their diploma later. 33 The EUAA disputes that line of argument. 34 It should be borne in mind that, according to settled case-law, the function of the vacancy notice is, first, to give those interested the most accurate information possible on the nature of the eligibility criteria for the post to be filled, in order to enable them to decide whether they should apply for it and, second, to establish the legal framework within which the comparative assessment of the merits of the candidates will be carried out. The latter function implies that sufficiently precise requirements must be set out to enable that comparison to be carried out and to justify the choice made (see judgment of 8 May 2019, Stamatopoulos v ENISA, T‑99/18, not published, EU:T:2019:305, paragraph 48 and the case-law cited). 35 In the present case, as is clearly apparent from the wording of the vacancy notice referred to in paragraph 3 above, in order to be held to fulfil the eligibility criterion at issue, the candidates’ level of qualification must be demonstrated by the submission of proof of a diploma obtained, and not in the course of being obtained, irrespective of whether it is a level of post-secondary education or a level of secondary education. 36 The EUAA therefore strictly adhered to the legal framework laid down in the vacancy notice by requiring candidates to submit proof of a diploma in order to fulfil the eligibility criterion at issue and in finding that the date of obtaining that diploma was the point of departure for calculating the number of years of appropriate professional experience required by that vacancy notice. 37 The applicant nevertheless submits that that requirement is contrary to the provisions of the Staff Regulations. 38 However, the Court finds, first of all, that the applicant’s argument alleging that Article 28(d) of the Staff Regulations does not define the qualification as a diploma is ineffective. That provision, which enshrines the principle of recruitment of officials through competitions, is not applicable in the present case. 39 Next, it should be borne in mind that Article 5(3)(a) of the Staff Regulations, applicable by analogy to members of the temporary staff by virtue of Article 10(1) of the Conditions of Employment of Other Servants of the European Union, provides as follows: ‘Appointment shall require at least: (a) in function group AST and function group AST/SC: (i) a level of post-secondary education attested by a diploma, or (ii) a level of secondary education attested by a diploma giving access to post-secondary education, and appropriate professional experience of at least three years, or (iii) where justified in the interests of the service, professional training or professional experience of an equivalent level.’ 40 As regards the provisions of Article 5(3) of the Staff Regulations, it is settled case-law that those provisions are intended to provide a general definition of the minimum level of qualifications for officials in that category and do not preclude more stringent criteria being laid down in a notice of competition or vacancy than those equivalent to the minimum criteria laid down therein (see, to that effect, judgment of 1 February 2012, Bancale and Buccheri v Commission, F‑123/10, EU:F:2012:6, paragraph 52 and the case-law cited). 41 Hence the EUAA cannot be criticised for having required a qualification level higher than the minimum level fixed by the Staff Regulations for the recruitment of members of the temporary staff in grade AST 3, by having applied the eligibility criterion at issue. 42 The same holds true for the requirement, laid down in the eligibility criterion contained in the vacancy notice, of having acquired a certain number of years of professional experience after having obtained the diploma. Since the applicant does not deny here that he did not have nine years of professional experience after obtaining his Matriculation Certificate, reference must be had only to six years of professional experience for the purposes of the eligibility criterion at issue. 43 In that regard, it should be noted that the Management Board of the EUAA adopted the Decision of 18 January 2016 laying down general implementing provisions on the procedure governing the engagement and use of temporary staff under Article 2(f) of the Conditions of Employment of Other Servants of the European Union pursuant to Article 110 of the Staff Regulations. 44 Article 3(3) of the Annex to that decision states that ‘the selection notice shall require a minimum number of years of professional experience acquired after the award of the qualification attesting to the completion of the level of studies required as a condition of eligibility for the selection procedure. That minimum requirement shall be set by reference to the latest competition organised by EPSO for a similar profile. In the absence of such reference, the minimum number of years of professional experience set out in Table 1 shall apply’. Table 1 of that provision lists the number of years of professional experience for grade AST 3 as six years. 45 Consequently, nor did the EUAA exceed its powers by requiring six years of professional experience, acquired after having obtained the post-secondary education diploma. 46 It follows from all of the foregoing that the EUAA correctly interpreted the eligibility criterion at issue. 47 That conclusion is not called into question by the applicant’s argument, put forward in the reply, to the effect that the contested decision is based on an additional requirement that was not in the vacancy notice, of having finished a complete course of studies. 48 Suffice it to observe, as is apparent from paragraph 8 above, that the contested decision is based on the finding that the applicant did not have the required number of years of appropriate professional experience, acquired after having obtained his Matriculation Certificate or his bachelor’s degree, and that it does not refer to a failure to fulfil a requirement of a diploma attesting to a complete course of studies. 49 The first plea in law, alleging an error of law in the interpretation of the eligibility criterion at issue, must accordingly be rejected as unfounded. Second plea in law: error of assessment 50 The applicant submits, in essence, that the EUAA made an error of assessment in finding that he did not fulfil the eligibility criterion at issue. Despite the fact that he obtained his bachelor’s degree in 2016, he had in fact already attained the required level in 2013, after having completed the first two years of his degree, following which he acquired at least six years of professional experience. In so doing, the EUAA refused, in an unfounded and discretionary manner, to take into consideration the transcript contained in the Europass Diploma Supplement provided by the University of Malta as sufficient proof of a diploma. 51 The EUAA disputes that line of argument. 52 In that regard, in the absence of any provision to the contrary contained in either a regulation or a directive applicable to competitions organised by the EU institutions for the purposes of recruitment or in the relevant notice of competition, the requirement of possession of a university degree is necessarily to be construed in the light of the definition of such a degree in the legislation of the Member State in which the candidate completed the studies on which he relies (see judgment of 7 March 2019, Commission v Brouillard, C‑728/17 P, not published, EU:C:2019:178, paragraph 33 and the case-law cited). On that point, the General Court carries out a full review of the question whether a diploma is recognised by the legislation of the Member State where it was issued or whether, in the light of that legislation, it fulfils the level required by the vacancy notice (see, to that effect, judgment of 5 November 2014, Commission v Thomé, T‑669/13 P, EU:T:2014:929, paragraph 26 and the case-law cited). 53 In the present case, it is in the light of the Maltese legislation, Malta being the Member State where the applicant pursued his bachelor’s programme in psychology at the end of which he obtained his bachelor’s degree in 2016, that it must be examined whether the completion, in 2013, of the first two years of that course of study, gives rise to the award of a post-secondary diploma, as required by the vacancy notice. 54 In the first place, the Court finds that, in the light of the rules governing university diplomas awarded by the University of Malta, nothing allowed the AECE to conclude that the first two years of the course of the bachelor’s programme in psychology completed by the applicant before obtaining that degree, attesting to three years of study and not two, could be categorised as a post-secondary diploma. 55 On the contrary, it is unambiguously apparent from those rules that no other post-secondary diploma is awarded to students pursuing their studies in the third year at the end of which they obtain a bachelor’s degree. Indeed, Regulation 36 of those rules provides that ‘the same credits cannot be counted towards two separate qualifications unless one qualification is considered by the Senate to be an interim qualification in the normal progression to the other, higher level qualification’. 56 It is apparent from both the exchanges between the applicant and the University of Malta and those between the EUAA and that same university that such an intermediate qualification is not awarded to students who obtain a bachelor’s degree in psychology, but only to those who do not pursue their course of studies to the point of obtaining a bachelor’s degree, subject to certain conditions, in accordance with Regulation 81 of the rules governing diplomas awarded by that university. 57 In the second place, the applicant’s line of argument to the effect that the refusal by the EUAA to equate the Europass Diploma Supplement with a diploma amounts to depriving such official documentation of its purpose cannot succeed. It is clear from the very wording of the Europass Diploma Supplement that that document ‘should be free of any value judgements, equivalent statements or suggestions about recognition’. 58 Accordingly, the Court finds that the EUAA was correct in finding that the transcript of the first two years of the applicant’s bachelor’s degree studies was not a post-secondary diploma for the purpose of the eligibility criterion at issue. 59 It follows from all of the foregoing that the second plea must be rejected. Third plea in law: infringement of the principle of equal treatment and of the principle of proportionality 60 The third plea comprises two parts. The first part alleges infringement of the principle of equal treatment arising from the error of interpretation and the error of assessment made by the EUAA, whilst the second part alleges infringement of the principle of proportionality. – First part of the third plea: infringement of the principle of equal treatment 61 The applicant submits, in essence, that the refusal by the EUAA to recognise the transcript of his first two years of bachelor’s studies as fulfilling the eligibility criterion at issue amounts to discrimination against him, given that he pursued his studies at a higher level compared to other candidates holding a diploma attesting to two years of university studies. That unequal treatment arises from the misapplication of the eligibility criterion at issue by the EUAA, which has the effect of eliminating candidates having higher qualifications, solely on the ground that their diploma was awarded later than that of candidates who pursued a shorter course of studies. 62 The EUAA disputes the applicant’s arguments. 63 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 (see judgment of 25 March 2021, Alvarez y Bejarano and Others v Commission (C‑517/19 P and C‑518/19 P, EU:C:2021:240, paragraphs 51 and 52 and the case-law cited). 64 In the present case, the Court finds that the difference in treatment alleged by the applicant is based on the premiss that his qualifications fulfilled the eligibility criterion at issue, but his situation was treated differently compared to the situation of a candidate who also fulfils that criterion. 65 However, it is apparent from the conclusion set out in paragraph 58 above that the EUAA was correct in finding that the applicant did not fulfil the eligibility criterion at issue, namely that he did not have six years of professional experience acquired after having obtained his bachelor’s degree. 66 It follows that the applicant’s situation is not comparable to that of a candidate holding a post-secondary level of education attested by a diploma and who, after obtaining that diploma, acquired six years of professional experience. As a result, the applicant may not criticise the EUAA for having treated his situation differently to that of a candidate who fulfilled the criteria required by the vacancy notice for the post at issue. 67 In that regard, the fact that a candidate could satisfy the eligibility criterion at issue by holding a post-secondary diploma of a lower level than a bachelor’s degree, attested by a mere two years of university studies, is irrelevant. It is apparent from the vacancy notice that the two requirements of the eligibility criterion at issue, relating to qualifications and professional experience, are cumulative. As a result, a candidate may not circumvent the requirement relating to professional experience by relying on a higher post-secondary education diploma. 68 Consequently, the Court finds that the contested decision is not vitiated by an infringement of the principle of equal treatment. The first part of the third plea must therefore be rejected. – Second part of the third plea: infringement of the principle of proportionality 69 The applicant submits that the contested decision is disproportionate due to the restrictive and unfounded interpretation applied therein relating to the required diploma for the post at issue. In his reply, he submits, in essence, that because it is based on an incorrect foundation, the contested decision amounts to an unjustified limitation of his vested right to be appointed to the post at issue by virtue of the job offer made to him. 70 The EUAA considers that the second part of the third plea in law, alleging infringement of the principle of proportionality, is inadmissible due to lack of clarity and, in any event, due to infringement of the rule of correspondence. In the alternative, it submits that that part is unfounded, since the contested decision is not manifestly inappropriate in terms of the objective pursued in the present case, namely that of ensuring the appointment of staff of the highest standard of ability, efficiency and integrity. 71 The applicant considers that the plea alleging infringement of the principle of proportionality which, he points out, is a general principle of EU law, was inherent in his complaint and in his application and must therefore be held to be admissible. 72 In that regard, consistently with the case-law referred to in paragraph 18 above, the application must inter alia contain the pleas and arguments relied on and a summary of those pleas, which must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any further information. In particular, the application must specify the nature of the grounds on which the action is based, with the result that a mere abstract statement of the grounds does not fulfil the requirements of the Rules of Procedure (see judgment of 15 December 2021, FZ and Others v Commission, T‑618/20, not published, EU:T:2021:900, paragraph 81 and the case-law cited). 73 In the present case, it is clear that the applicant merely asserts in an abstract matter that the contested decision is disproportionate, without however setting out specific legal arguments in support of that assertion, different from those put forward in support of the first plea, alleging incorrect application of the eligibility criterion at issue. Moreover, the only explicit arguments that can be identified in the extension of that assertion are those relied on in support of the first part of the third plea, alleging infringement of the principle of equal treatment, which are, in any event, unfounded for the reasons set out in paragraphs 63 to 68 above. 74 It follows from the foregoing that the second part of the third plea must be rejected as inadmissible, as it does not satisfy the minimum requirements of the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union and Article 76(d) of the Rules of Procedure, as described in the case-law referred to in paragraphs 18 and 72 above. 75 As a result, the third plea must be rejected, as must, therefore, the forms of order seeking annulment of the contested decision, as supplemented by the decision rejecting the complaint. Fourth form of order sought 76 By his fourth form of order sought, the applicant seeks to have the Court order the EUAA to compensate him for the loss of earnings to date. In his reply, he emphasises that there is a considerable difference between the earnings derived from the post he currently holds in the EUAA and what he would have earned in the post at issue if the job offer had not been unlawfully withdrawn by the contested decision, as supplemented by the decision rejecting the complaint. 77 Suffice it to bear in mind in that regard that, according to settled case-law, a claim for compensation for pecuniary or non-pecuniary damages must be dismissed where it is closely related to a claim for annulment which has itself been rejected either as inadmissible or as unfounded (see judgment of 1 December 2021, HC v Commission, T‑804/19, not published, EU:T:2021:849, paragraph 181 and the case-law cited). 78 In the present case, it follows unambiguously from the applicant’s written submissions that his claim for compensation is intrinsically linked to his forms of order seeking annulment, since the loss of earnings he alleges having suffered can be traced back to the alleged illegality of the contested decision, as supplemented by the decision rejecting the complaint. 79 As a result, since the forms of order seeking annulment have been rejected, the applicant’s claim for compensation and, therefore, the action in its entirety, must also be dismissed. Costs 80 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. However, according to Article 135(1) of the Rules of Procedure, if equity so requires, the Court may decide that an unsuccessful party is to pay only a proportion of the costs of the other party in addition to bearing his or her own costs, or even that he or she is not to be ordered to pay any. Furthermore, under Article 135(2) of those rules, the General Court may order a party, even if successful, to pay some or all of the costs, if this appears justified by the conduct of that party, including before the proceedings were brought. 81 In the circumstances of the present case, the Court finds that it is appropriate for each of the main parties to bear its own costs. On those grounds, THE GENERAL COURT (Fifth Chamber) hereby: 1. Dismisses the action; 2. Orders each party to bear its own costs. Svenningsen Laitenberger Martín y Pérez de Nanclares Delivered in open court in Luxembourg on 7 February 2024. V. Di Bucci M. van der Woude Registrar President * Language of the case: English.