Information;Judgment — ECLI:EU:T:2021:742
Date: 2021-10-27
Language of the case: English
Court formation: Eighth Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Staff cases - unfounded;Action for damages - unfounded

summary containing their essential content. 22 By letter of 23 June 2020, the Commission sent a full, confidential version of the documents requested by the order of 12 June 2020, as well as a non-confidential version of those documents. 23 By decision of 2 July 2020, the Court decided, in accordance with Article 103(3) of the Rules of Procedure, to bring to the applicant’s attention the non-confidential version of the documents requested by the order of 12 June 2020 and to keep only that non-confidential version on file. 24 The reply and the rejoinder were lodged on 13 July and 11 September 2020 respectively. 25 By a document lodged at the Court Registry on 8 October 2020, the applicant requested an oral hearing pursuant to Article 106(2) of the Rules of Procedure. 26 The parties presented oral argument and replied to the written and oral questions put by the Court at the hearing on 28 April 2021. 27 The applicant claims that the Court should: – annul the decision of the Selection Board; – annul the decision rejecting the complaint; – order the Commission to pay an amount of no less than EUR 25 000 as compensation for the material and non-material harm that he has suffered; – order the Commission to pay the costs. 28 The Commission contends that the Court should: – dismiss the action; – order the applicant to pay the costs. Law Subject matter of the action 29 According to settled case-law, claims for annulment formally directed against the decision rejecting a complaint have the effect of bringing before the Court the act against which the complaint was submitted where they are, as such, devoid of independent content (see, to that effect, judgments of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 8, and of 13 December 2012, Commission v Strack, T‑197/11 P and T‑198/11 P, EU:T:2012:690, paragraph 162 and the case-law cited). 30 In the present case, in so far as it rejects the complaint and confirms the decision of the Selection Board not to invite the applicant to the next stage of the competition, the decision rejecting the complaint does not have content independent of the decision which is the subject of the complaint. Therefore, the claim for annulment must be regarded as being directed solely against the decision of the Selection Board. In such a case, the legality of the decision of the Selection Board must be examined by taking into consideration the statement of reasons contained in the decision rejecting the complaint, those reasons being considered to be identical to those for that act (see, to that effect, judgment of 24 March 2021, BK v EASO, T‑277/19, not published, EU:T:2021:161, paragraph 43 and the case-law cited). The claim for annulment 31 In support of his claim for annulment, the applicant puts forward a single plea in law alleging infringement of the principle of non-discrimination and equal treatment in employment and occupation and, in particular, of Article 1d of the Staff Regulations and of Article 5 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16). 32 The applicant submits, in essence, that the decision of the Selection Board and the decision rejecting the complaint are unlawful since EPSO and, subsequently, the AA did not carry out an individual assessment of his needs in accordance with the procedure for assessing requests for special adjustments. He claims they applied a ‘standard’ extra time of 25% for the MCQ tests without taking into account the recommendations contained in the supporting documents he had produced. In so doing, they discriminated against him since he has two conditions that make the MCQ tests very difficult, and deprived him of the opportunity to participate in the MCQ tests on an equal footing with other candidates. 33 In that regard, the applicant refers to the statement made in the email of 6 July 2017 referred to in paragraph 6 above and to the table in Annex B.5, produced by the Commission as an annex to the defence, which details the extra time granted by EPSO to candidates in competition EΡSO/ΑD/338/17 in view of the severity of their disabilities. Furthermore, he argues, in essence, that international best practices advocate the accumulation of extra time to accommodate multiple conditions. 34 The Commission contests the applicant’s argument that EPSO did not carry out an individual assessment of his needs, applied ‘standard’ extra time to him and acted in breach of Article 1d of the Staff Regulations and of Directive 2000/78. 35 In accordance with the first subparagraph of Article 1d(4) of the Staff Regulations, ‘a person has a disability if he has a long-term physical, mental, intellectual or sensory impairment which, in interaction with various barriers, may hinder his full and effective participation in society on an equal basis with others’. 36 In the present case, the applicant suffers from two conditions, namely dyspraxia and ADHD, which the Commission does not dispute fall within the concept of ‘disability’. 37 In order to take account of the needs of disabled persons at work, the legislature has, in the second subparagraph of Article 1d(4) of the Staff Regulations, provided for the possibility for such persons to perform the essential functions of the job concerned subject to ‘reasonable accommodation’. The concept of ‘reasonable accommodation’ is defined in the third subparagraph of that provision as ‘appropriate measures, where needed, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer’. It has therefore provided, in substance and in the context of recruitment procedures, for the possibility for such persons to demonstrate their ability to perform the essential functions of the jobs to be filled by means of such accommodations. 38 With regard to the applicant’s line of argument, which seeks to criticise the sufficiency of the special accommodations granted to him, it should be recalled that, in the context of a recruitment procedure, which is a complex administrative operation consisting of a succession of decisions, an applicant is entitled to rely on irregularities which occurred during the conduct of the competition or concerning the arrangements for organising the competition, in an action against a subsequent individual decision, such as a decision not to admit a candidate to the tests, provided that the earlier irregularity relied on has a close link with the subsequent decision contested (see, to that effect, judgments of 11 August 1995, Commission v Noonan, C‑448/93 P, EU:C:1995:264, paragraphs 17 and 19, and of 14 December 2017, PB v Commission, T‑609/16, EU:T:2017:910, paragraph 26 et seq.). 39 In that context, it should be noted that, according to the first subparagraph of Article 1 and Article 4 of Annex III to the Staff Regulations, it is for the AA, and therefore EPSO in cases where, as in the present case, the institutions confer on it the power to organise the competition, to define the content of the competition notice and to decide on the arrangements for it, and therefore, also, on any changes which may reasonably be made to those arrangements to take account of the possible disability of certain candidates, such adjustments falling within the scope of the organisation of the competition itself (judgment of 10 February 2021, XC v Commission, T‑488/18, not published, EU:T:2021:76, paragraph 89). 40 According to settled case-law, the AA has a broad discretion, in particular, to specify the conditions and procedures for organising a competition (see judgment of 17 November 2009, Di Prospero v Commission, F‑99/08, EU:F:2009:153, paragraph 27 and the case-law cited). 41 In that context, the review exercised by the EU Courts must be limited to the extent necessary to ensure the equal treatment of applicants and the objectivity of the choice made between them (see, to that effect, judgment of 13 January 2021, ZR v EUIPO, T‑610/18, not published, EU:T:2021:5, paragraph 36 and the case-law cited). 42 Next, it should be noted that, in a matter which falls within the exercise of a discretionary power, the principle of non-discrimination is infringed where the institution concerned makes a differentiation which is arbitrary or manifestly inadequate having regard to the objective of the legislation (see, to that effect, judgments of 8 January 2003, Hirsch and Others v ECB, T‑94/01, T‑152/01 and T‑286/01, EU:T:2003:3, paragraph 51; of 8 November 2006, Chetcuti v Commission, T‑357/04, EU:T:2006:339, paragraph 54; and of 29 November 2006, Campoli v Commission, T‑135/05, EU:T:2006:366, paragraph 97). 43 For the purposes of assessing the existence of discrimination on grounds of disability, it is for the Court to ascertain whether the accommodations offered to the applicant were sufficient to be regarded as reasonable accommodations within the meaning of the third subparagraph of Article 1d(4) of the Staff Regulations, so as to exclude the existence of arbitrary or manifestly inadequate differentiation for the purposes of the case-law cited in paragraph 42 above. In that regard, it is important to note, however, that the determination of the special accommodations granted to the applicant on account of his disability, namely 25% extra time instead of 75% as requested by him, involves complex medical assessments and that the Court’s control is therefore limited. In the context of that review, the Court must take into account all the evidence available to it, including in particular the supporting documents provided by the applicant and the information obtained by EPSO from representatives specialising in the selection of staff of bodies in the Member States (see, to that effect and by analogy, judgment of 11 September 2019, Nobel Plastiques Ibérica, C‑397/18, EU:C:2019:703, paragraphs 69 and 70). 44 Furthermore, it is for the Court to consider whether, in adopting the special accommodations in question, the AA correctly assessed the facts and applied the relevant legal provisions (see, to that effect, order of 21 February 2013, Marcuccio v Commission, T‑85/11 P, EU:T:2013:90, paragraph 73 and the case-law cited). 45 In the present case, the applicant does not contest the existence, within EPSO, of the procedure developed by the latter, in consultation with experts, for dealing with requests for reasonable accommodation made by candidates and which is supposed to be applied by EPSO, as described in the decision rejecting the complaint and in the defence (‘the procedure for assessing requests for special adjustments’). 46 It follows from the file that the procedure for assessing requests for special adjustments involves an analysis, on a case-by-case basis, by the EPSO Accessibility Team of individual requests for special adjustment and the taking into account of the principles of equal treatment and proportionality in order to determine the reasonable and appropriate features of any accommodations to be granted. The procedure therefore pursues the objective of ensuring that candidates with disabilities are given the opportunity to demonstrate their skills and compete on an equal footing with other candidates. 47 Special adjustments are determined on a case-by-case basis, taking into account the information provided by the candidate on his or her health and special needs, the type of test in question and the supporting documents provided. Candidates are informed that any accommodations they are offered may differ from those requested. 48 When assessing requests for special adjustments, the EPSO Accessibility Team consults, but is not bound by, international guides such as the International Test Commission (ITC) recommendations on the use of tests and the Public Service Commission of Canada guide for assessing persons with disabilities. It also relies, where necessary, on collaboration with the Commission’s medical service and on exchanges of best practices with experts in certain Member States and third countries which are reference countries for the ITC. 49 It is in the light of those considerations that the merits of the applicant’s single plea in law must be examined. 50 As regards the applicant’s allegation that EPSO and the AA did not carry out an individual assessment of his needs, but applied to him a ‘standard’ 25% extra time for the MCQ tests without taking account of the supporting documents which he had produced, it should be recalled that point 1.3 of the general provisions applicable to open competitions attached in Annex II to the competition notice required ‘a certificate from your national authority or a medical certificate’. 51 The applicant requested the following special adjustments: ‘extra time to complete assessments, rest breaks, individual room to take assessments; extra time recommended by doctor and learning disabilities specialist amounts to 75% extra time (50% for severe ADHD, 25% for dyspraxia)’. He provided two supporting documents and information on the special accommodations he was granted in a United Kingdom Civil Service recruitment procedure. 52 In the specialist’s certificate, it is stated that the applicant has ‘aspects’ of dyspraxia, that his main weaknesses are related to manual skills, which affect handwriting, and that he has difficulties with processing simultaneous tasks, in particular assimilating information simultaneously in a reading situation. The author recommends 25% more time for the written examinations. 53 In the medical certificate, it is stated that the applicant has been diagnosed as affected by ADHD and by hyperkinetic disorder, predominantly an ‘inattentive’ type, which affects the ability to organise tasks and prioritise activities in daily life. The author recommends, inter alia, ‘extended/additional time during online or presential assessments’, namely 50% extra time, with regular breaks. In addition, the author recommends, during the exams, a quiet examination room and regular breaks in the assessment centres. 54 With regard to the information on the accommodations that the applicant was granted in the United Kingdom, the email received from the United Kingdom Civil Service, dated 10 February 2017 and produced as Annex A.10 to the application, indicates that the applicant would be granted 100% extra time for an e-tray exercise and for a resit of a video interview to be scheduled as face-to-face interview. 55 Furthermore, the decision of 6 June 2017 expressly mentions the consideration of the supporting documents provided by the applicant when requesting special adjustments and grants him, in addition to 25% extra time, the other accommodations he requested, namely the additional breaks and the workstation away from the other candidates. Those other accommodations are among the recommendations contained in the medical certificate submitted as supporting documentation and show that the two conditions from which the applicant suffers were taken into account. 56 With regard to the 25% extra time granted, and without in any way minimising the difficulties which the applicant may face, first, the specialist’s certificate in no way indicates that the dyspraxia condition from which the applicant suffers is of a serious nature. Furthermore, it is not clear from the certificate that 25% extra time is arbitrary or manifestly inadequate in the case of a computer-based MCQ test which, although it involves the simultaneous assimilation of information in a reading situation, is not therefore a written test as such. On the contrary, in that certificate, the specialist recommends, precisely, 25% extra time. 57 Secondly, the medical certificate does not indicate that the applicant’s ADHD condition is of a severe nature. Nor does it specify the specific type of online or face-to-face assessment that would call for 50% extra time. In those circumstances, and given the specificity of the test in question which does not require the organisation and prioritisation of tasks, it does not appear that 25% extra time for the MCQ tests in this case is arbitrary or manifestly inadequate. 58 Furthermore, none of the certificates referred to in paragraphs 56 and 57 above mention the possibility of accumulating extra time to take account of several conditions. 59 The Court notes that, taken in isolation, the statement in the email of 6 July 2017 that ‘25% has therefore been set in agreement with our experts as the standard extra time to be granted to candidates suffering from various learning disorders’, could suggest that EPSO applies an approach that does not involve an analysis of the applicant’s individual needs. However, that email also mentions that the supporting documents provided by the applicant when requesting special adjustments were taken into consideration. 60 Moreover, it is apparent from the decision rejecting the complaint that the AA took into account the applicant’s request for special adjustments and the relevant supporting documents provided by the applicant in so far as the content of the specialist’s certificate and the medical certificate is summarised therein. Although the AA did not expressly isolate and disavow the statement referred to in paragraphs 6 and 59 above made in the email of 6 July 2017, it did indicate the reason why it considered that granting 75% extra time was not appropriate in the applicant’s case. 61 Furthermore, as confirmed by the documents produced following the order of 12 June 2020, the appropriateness of the 25% extra time was double-checked, before the AA adopted the decision rejecting the complaint, with representatives specialising in the selection of staff from Member State bodies. That double check confirmed the appropriateness of the EPSO Accessibility Team’s approach. It also demonstrates that EPSO’s actual practice is not one of applying ‘standard’ accommodations without taking into account the individual needs of the candidate. 62 Next, it cannot be inferred from the breakdown of the extra time granted for MCQ tests by EPSO to candidates in competition EΡSO/ΑD/338/17 in the light of the severity of their disabilities, detailed in the table in Annex B.5, that EPSO did not carry out an assessment of each candidate’s individual needs in accordance with the procedure for assessing requests for special adjustments. 63 The table in Annex B.5 simply shows that candidates with various mild psychological or physical disabilities, or with mild difficulties of that nature, were not granted the same extra time as those with various moderate or severe disabilities. Contrary to what the applicant suggests, that table in no way indicates that the specific needs of the candidates concerned were not taken into account or that the special accommodations they were granted were not appropriate to their individual situations and to the various implications of their respective conditions in relation to the type of test in question. 64 Similarly, it cannot be inferred from the granting of the same amount of extra time to candidates with more than one condition or with conditions of varying nature and severity that that automatically infringes the principle of equal treatment and necessarily constitutes discrimination. 65 The principle of non-discrimination requires that comparable situations should not be treated differently and that different situations should not be treated equally, unless such treatment is objectively justified. It is not required that the situations be identical, but only that they be comparable (judgment of 10 February 2021, XC v Commission, T‑488/18, not published, EU:T:2021:76, paragraph 83). However, there is nothing in the table in Annex B.5 to suggest that the situations of the applicants concerned, notwithstanding their various and, where applicable, multiple conditions, were not comparable. 66 It follows from the foregoing, first, that the applicant is not entitled to claim that EPSO and, subsequently, the AA did not carry out an individual assessment of his needs, but applied to him a ‘standard’ 25% extra time for the MCQ tests without taking account of the supporting documents which he had produced. 67 In that context, the Court notes that, in an area as complex as that of the examination of requests for special adjustments, it is permissible for EPSO and, more particularly, for the EPSO Accessibility Team to have recourse, in order to avoid any arbitrariness, to a certain standardisation in the definition of those accommodations, as long as EPSO deviates from that if the individual assessment of the candidate’s needs so requires. 68 Secondly, it follows from the foregoing that the 25% extra time which was granted to the applicant does not appear to be arbitrary or manifestly inadequate in view of the two medical conditions from which he suffers and the supporting documents provided in that regard, the specific features of the type of test in question and the objective pursued, namely, to ensure that candidates with a disability are able to demonstrate their skills and compete on an equal footing with other candidates, whether or not they have a disability, within the meaning of the case-law cited in paragraph 42 above. 69 With regard to the applicant’s argument that, in substance, international best practices recommend the accumulation of extra time to accommodate multiple conditions, a reading of the guide for assessing persons with disabilities of the Public Service of Canada, contained in Annex B.3 to the defence, does not reveal any recommendation to that effect, either in the passages quoted by the applicant or in general. That document envisages the accumulation of specific accommodations of various kinds, such as additional breaks and time. The same is true of the ITC’s recommendations on the use of tests, contained in Annex B.2 to the defence. 70 Furthermore, the appropriateness of the 25% extra time granted in this case was double-checked by representatives specialised in the selection of staff from Member State bodies. That double check confirmed the appropriateness of the approach taken in the present case. 71 In particular, it is apparent from the emails produced following the order of 12 June 2020 that, in the opinion of the experts consulted, in a case such as the applicant’s, there would be no need to accumulate multiple periods of extra time to accommodate his two conditions. While, as the applicant states, one of the experts consulted indicated that, in the case of ‘multiple diagnoses’, a person would be granted more time, in the next sentence, the same expert adds that it would be very unlikely that the person would be granted 75% extra time. In the case of a person in the applicant’s situation, 25% extra time would be more usual, or even 50% in the case of a person with dyslexia and ADHD and on significant medication. 72 With regard to the emails received from the United Kingdom Civil Service dated 10 February 2017 and 17 January 2018, submitted as Annexes A.10 and A.11 to the application, concerning the special accommodation of 100% extra time which the applicant was granted in the context of recruitment procedures in that country, apart from the fact that such elements are not capable of binding EPSO and the EU institutions in the exercise of their competences, those emails relate to an e-tray test, a resit of a video interview to be scheduled as face-to-face interview and an online assessment. At issue were therefore different types of tests from the MCQ tests in question in the present case. 73 Finally, the applicant’s reliance on the report of a panel of experts constituted in the context of a consent decree approved by a court in the United States of America concerning discrimination in the context of law school entrance examinations and the accommodation of disabled persons must be rejected in the context of the present action. 74 Such a report is not capable of binding EPSO and the EU institutions in the exercise of their competences. 75 In view of the wide discretion available to EPSO when considering requests for special adjustments and the objective of ensuring that candidates with a disability are given the opportunity to demonstrate their abilities and compete on an equal footing with other candidates, which is a complex exercise, the fact that the applicant was granted possibly more generous special accommodations in the context of national recruitment procedures or that certain practices in certain countries may result in more generous special accommodations does not lead to the conclusion that the decision of the Selection Board in the present case is unlawful. 76 In the light of the foregoing, the 25% extra time which was granted to the applicant does not appear to be arbitrary or manifestly inadequate in the light of the international practices relied on, having regard to the two conditions from which the applicant suffers and the supporting documents provided in that regard, to the specific features of the type of test in question and to the objective pursued by EPSO, within the meaning of the case-law cited in paragraph 42 above. 77 It follows from all the foregoing considerations that, contrary to what the applicant maintains, it cannot be held that, in the decision of the Selection Board, the principle of non-discrimination and equal treatment in employment and occupation, and in particular Article 1d of the Staff Regulations and Article 5 of Directive 2000/78, were infringed. 78 As regards the reference to Article 26 of the Charter of Fundamental Rights of the European Union in the application and the reference, moreover for the first time, in the reply, to indirect discrimination, it should be noted that they are not accompanied by any argument or any specific complaint relating to the unlawfulness of the decision of the Selection Board. In those circumstances, they must be rejected as inadmissible. 79 It follows from all the foregoing considerations that the single plea in law raised by the applicant in support of his claim for annulment must be rejected. The claim for compensation 80 The applicant submits that the conditions for the European Union’s liability to be incurred are fulfilled in the present case and that the Court should award him a minimum amount of EUR 25 000 by way of compensation for the material and non-material damage he has suffered. 81 The Commission contends that the claim for compensation should be rejected. 82 Claims seeking compensation for material or non-material damage must be dismissed where, as in the present case, they are closely connected with claims for annulment which must themselves be dismissed as unfounded (judgment of 24 April 2017, HF v Parliament, T‑570/16, EU:T:2017:283, paragraph 69; see also, to that effect, judgment of 6 March 2001, Connolly v Commission, C‑274/99 P, EU:C:2001:127, paragraph 129). 83 Since the application for annulment of the decision of the Selection Board must be rejected, the claim for compensation must be dismissed as unfounded and, consequently, the action must be dismissed in its entirety. Costs 84 According to Article 149(5) of the Rules of Procedure, where the recipient of the legal aid is unsuccessful, the General Court may, in ruling as to costs in the decision closing the proceedings, if equity so requires, order that one or more parties should bear their own costs or that those costs should be borne, in whole or in part, by the cashier of the General Court by way of legal aid. 85 In the present case, the applicant has been unsuccessful in his action and the Commission has expressly requested in its pleadings that the applicant should be ordered to pay the costs by contending, in addition and in essence, that there are no circumstances which justify apportioning the costs. 86 However, by his arguments, the applicant mainly contests the legality of the statement in the email of 6 July 2017, which email could suggest that EPSO had determined the content of the special accommodations granted to him without carrying out an analysis of his individual needs. In the course of the present proceedings, the Commission finally indicated that that statement was incorrect. The Court considers that, by not drawing the applicant’s attention to that error in the decision rejecting the complaint, the AA did not allow him to fully evaluate the likelihood of having his action dismissed. 87 In those circumstances, the Court considers that proper account of the circumstances of the case will be taken, in the light of the provisions of Article 149(5) of the Rules of Procedure, by ruling that each party to the present proceedings bear its own costs. On those grounds, THE GENERAL COURT (Eighth Chamber) hereby: 1. Dismisses the action; 2. Orders each party to bear its own costs. Svenningsen Mac Eochaidh Laitenberger Delivered in open court in Luxembourg on 27 October 2021. [Signatures] * Language of the case: English.