Information;Order — ECLI:EU:C:2022:253
Date: 2022-03-31
Language of the case: English
Court formation: Eighth Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Appeal - inadmissible;Staff cases

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.