Information;Order — ECLI:EU:T:2023:79
Date: 2023-02-14
Language of the case: English
Court formation: President of the Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Staff cases;Application for interim measures - unfounded

summary of those pleas in law. Those particulars 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, for an action to be admissible, that the basic legal and factual particulars on which it is based be indicated coherently and intelligibly in the text of the application itself (see judgment of 16 June 2021, Lucaccioni v Commission, T‑316/19, EU:T:2021:367, paragraph 84 (not published and the case-law cited)). The application must, accordingly, 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 satisfy the requirements of the Rules of Procedure. Similar requirements are called for where a submission is made in support of a plea in law (see judgment of 25 March 2015, Belgium v Commission, T‑538/11, EU:T:2015:188, paragraph 131 and the case-law cited; order of 27 November 2020, PL v Commission, T‑728/19, not published, EU:T:2020:575, paragraph 64). 40 It follows that the applicant is required to set out in a sufficiently systematic manner the arguments relating to each plea which it puts forward, and the Court cannot be obliged, due to a lack of structure in the application or lack of rigour on the part of the applicant, to reconstruct the legal structure intended to support a plea by bringing together various diffuse elements of the application, at the risk of reconstructing that plea by giving it a scope which it did not have in the mind of that party. To decide otherwise would be contrary to the sound administration of justice, the principle that the subject matter of an action is delimited by the parties and the defendant’s rights of defence (judgment of 2 April 2019, Fleig v EEAS, T‑492/17, EU:T:2019:211, paragraph 44 (not published)). 41 In that regard, as regards the first plea, it must be observed that the heading of that plea sets out intelligibly an ‘infringement of the principle of the protection of legitimate expectations, and … of the principle of equal treatment’. It is also apparent from the application that the applicant complains of having taken a test that ‘was entirely different, with added technical conditions, than the ones mentioned either on the [r]ecruitment [n]otice or on the [a]pplication [f]orm, when he applied in August 2021, which naturally he was not prepared for’. In addition, he states that his colleagues in the sixth group at the Ávila training centre in Spain were trained for more than one month for the swimming test. Furthermore, on reading the defence, it should be held that Frontex was able to understand the content of the grievances raised in the context of the first plea and to prepare its defence. 42 Accordingly, the first plea is set out intelligibly and, consequently, Frontex’s argument alleging failure to comply with the requirements laid down by Article 76(d) of the Rules of Procedure as regards that plea must be rejected. 43 As regards the second plea, in view of the conclusion drawn in paragraph 38 above regarding the inadmissibility of that plea on account of failure to comply with the rule of correspondence between the complaint and the application, there is no longer any need to examine whether that plea complies with the requirements laid down by Article 76(d) of the Rules of Procedure. 44 It follows from all of the foregoing that only the second plea is inadmissible. Therefore, it is appropriate to examine only the merits of the first plea. The claim for annulment of the contested decision 45 In support of the first plea, the applicant alleges infringement of the principle of the protection of legitimate expectations on the ground that he had to take a swimming test that was ‘entirely different, with added technical conditions, than the ones mentioned either on the [r]ecruitment [n]otice or on the [a]pplication [f]orm, when he applied in August 2021, which naturally he was not prepared for’. The applicant also alleges infringement of the principle of equal treatment on the ground that his colleagues from the sixth group at the Ávila training centre in Spain were trained for more than one month for the swimming test. 46 Frontex disputes those arguments. 47 First, as regards the alleged infringement of the principle of the protection of legitimate expectations, it should be noted that the recruitment notice provided that candidates had to ‘be able to swim for at least 100 m under four minutes using any stroke or combination of strokes, without stopping, without any assistance and without allowing [their] feet to touch the bottom of the pool at any time’. Regarding that swimming test, the Basic Training Programme referred to the basic swimming skills set out in the recruitment notice, stating the following: ‘swimming 100 m in a ventral position, with respiratory control, under 4 minutes’. 48 It follows that, by providing, in the Basic Training Programme, that the swimming test of 100 metres is to be carried out in a ventral position, Frontex gave only further details on the nature of that test, without changing the rules set out in the recruitment notice. 49 Moreover, as Frontex explains, water rescue is an essential professional competency for European border and coast guards and one of the purposes of the swimming test to be taken in that context by candidates is to ensure that, at the end of the basic training, the candidate can self-rescue and rescue a person in the water. Frontex adds that, for water rescue purposes, candidates must always maintain eye contact with the person to be rescued, which in turn implies swimming in a ventral position, while leaving it to the candidate to choose the swimming technique (breaststroke, crawl, butterfly). According to Frontex, if the water rescue test were to be performed using backstroke, the candidate would be looking upwards, namely to the sky, and would thus not see the person who needs to be rescued. 50 Consequently, it should be held that the applicant makes an error of interpretation as regards an alleged change in the rules applicable to the swimming test between the recruitment notice and the Basic Training Programme, adopted by Frontex before the tests were carried out. 51 In addition, it should be noted that the applicant does not explain more precisely to what extent the Basic Training Programme lays down different rules and adversely affects his interests. He does not specify any objective criterion that could lead to the conclusion that a change in the rules for the swimming test has actually taken place, in particular in view of the need for candidates to be proficient in water rescue, which is, as Frontex states, an essential professional competency for European border and coast guards (see paragraph 49 above). Nor does the applicant claim that the Basic Training Programme imposes stricter criteria and that swimming in a ventral position is a more difficult test for him than swimming on his back. In particular, he does not complain that the recruitment notice precludes him from stopping after each 25 metres to catch his breath, whereas such a rule is no longer apparent from the Basic Training Programme. 52 In that regard, it must be noted that, during the written part of the procedure before the General Court, the applicant had been requested to lodge a reply, which would have enabled him to provide more precise explanations in response to Frontex’s defence. However, a reply was not lodged. 53 Furthermore, it is true that, in his comments during the pre-litigation procedure (see paragraphs 15 and 17 above), the applicant described in detail certain objective reasons that, in his view, prevented him from succeeding in the swimming test. He states, in essence, that, before his arrival at the location of the swimming test, he had been training in a swimming pool in his home town using a combination of strokes, including backstroke, and that he did not have sufficient time and proper training to improve his swimming abilities after he had learned that the swimming test was to be performed in a ventral position. 54 Nevertheless, those arguments do not in any way support the applicant’s claim regarding the change in the rules applicable to the swimming test between the recruitment notice and the Basic Training Programme, adopted by Frontex before the tests were carried out. The possible lack of sufficient time and proper training to prepare for the swimming test is intended to call into question the general organisation of the assessments by Frontex, and not the rules of that test. 55 Second, as regards the infringement of the principle of equal treatment, it should be borne in mind that, according to settled case-law, the principle of equal treatment is infringed only where comparable situations are treated differently or different situations are treated in the same way, unless such difference in treatment is objectively justified (judgments of 13 December 1984, Sermide, 106/83, EU:C:1984:394, paragraph 28, and of 28 June 1990, Hoche, C‑174/89, EU:C:1990:270, paragraph 25; see also, to that effect, judgment of 14 May 1998, BPB de Eendracht v Commission, T‑311/94, EU:T:1998:93, paragraph 309). 56 It follows from the case-law that it is the person who considers himself or herself to have been wronged because the principle of equal treatment has not been applied to him or her who must initially establish the facts from which it may be presumed that there has been direct or indirect discrimination. It is only where that person has established such facts that it is then for the defendant to prove that there has been no breach of the principle of non-discrimination (judgment of 19 April 2012, Meister, C‑415/10, EU:C:2012:217, paragraph 36). 57 In the present case, as Frontex states in its defence, the applicant compares himself to certain candidates in Group 6, namely contract staff in function group FG IV. According to Frontex’s explanations, those persons, being at basic level, in general undergo training of one year, while the applicant, a category AST 4-SC agent at intermediate level, receives training of six months, based on the entry requirement of previous law enforcement experience. The applicant did not dispute those explanations of Frontex even though, during the written part of the procedure before the Court, he had been requested to lodge a reply, which would have enabled him to respond, in that regard, to Frontex’s arguments and to expand his own arguments. However, as noted in paragraph 52 above, a reply was not lodged. 58 It must therefore be held that the applicant does not establish facts from which it may be presumed that there has been discrimination within the meaning of the case-law cited in paragraph 56 above. In any event, the contract staff with whom the applicant compares himself are clearly in a different situation in that, as opposed to the applicant, who is at intermediate level, they are at basic level. 59 In the light of the circumstances established in paragraphs 48 and 58 above, the claims made by the applicant in his first plea are, in their entirety, manifestly lacking any foundation in law, with the result that that plea must be rejected as being manifestly unfounded. 60 It follows from all of the foregoing that the first head of claim, in so far as it seeks annulment of the contested decision, must be rejected as manifestly lacking any foundation in law. The claims for reinstatement and for suspension of operation of the contested decision 61 Assuming that, in making his second head of claim subject to the condition that it is not possible for him to be reinstated in time within the eighth batch, the applicant intended to seek his reinstatement, it is sufficient to bear in mind that, according to settled case-law, the Courts of the European Union cannot, in principle, issue directions to an institution, body, office or agency of the European Union without encroaching upon the prerogatives of the administration (see judgments of 2 October 2014, Strack v Commission, C‑127/13 P, EU:C:2014:2250, paragraph 145 and the case-law cited, and of 9 September 2020, P. Krücken Organic v Commission, T‑565/18, not published, EU:T:2020:395, paragraph 23 and the case-law cited). That principle applies, in general, both in the context of a review of legality under Article 91 of the Staff Regulations and Article 270 TFEU (judgment of 5 December 2017, Spadafora v Commission, T‑250/16 P, not published, EU:T:2017:866, paragraph 48) and in an action for damages by which an applicant seeks an order requiring the defendant institution to take specific measures to compensate for the alleged damage (see, to that effect, orders of 14 January 2004, Makedoniko Metro and Michaniki v Commission, T‑202/02, EU:T:2004:5, paragraph 53, and of 17 December 2008, Portela v Commission, T‑137/07, not published, EU:T:2008:589, paragraph 46). It follows that the claim for reinstatement must be rejected on the ground of lack of jurisdiction. 62 As regards the third head of claim seeking suspension of operation of the contested decision, it should be noted that the application for interim measures seeking suspension of operation of the contested decision was rejected (order of 14 February 2023, Ferreira de Macedo Silva v Frontex, T‑595/22 R, not published, EU:T:2023:79). If the applicant intended to reiterate that claim in the context of the present proceedings, it is sufficient to note that the present order rejects the head of claim seeking annulment of the contested decision without there being any need to suspend its operation. The claim for compensation 63 The applicant claims that the Court should order that he be paid all the costs related to the fulfilment of his ‘[five-year] contract’ in the event that he cannot be reinstated in time within the eighth batch. 64 Frontex disputes the applicant’s arguments. 65 It must be borne in mind that, according to settled case-law concerning civil service proceedings, where an application for damages is closely linked with an application for annulment, the rejection of the latter, either as inadmissible or as unfounded, also results in the rejection of the application for damages (see judgments of 30 September 2003, Martínez Valls v Parliament, T‑214/02, EU:T:2003:254, paragraph 43 and the case-law cited, and of 16 October 2019, Palo v Commission, T‑432/18, EU:T:2019:749, paragraph 73 and the case-law cited). 66 Since the present claim for compensation is closely linked with the claim for annulment of the contested decision, which has been rejected as manifestly lacking any foundation in law, it must be rejected, in accordance with the case-law referred to in paragraph 65 above. 67 In the light of all of the foregoing, the action must be dismissed in its entirety as manifestly lacking any foundation in law. Costs 68 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. 69 In the present case, since the applicant has been unsuccessful in the present action, he should be ordered to pay the costs, in accordance with the form of order sought by Frontex. 70 Since the applicant was also unsuccessful in the procedure for interim relief and the costs were reserved, he must be ordered to bear his own costs and to pay those incurred by Frontex in that procedure, in accordance with the form of order sought by Frontex. On those grounds, THE GENERAL COURT (Fourth Chamber) hereby orders: 1. The action is dismissed as manifestly lacking any foundation in law. 2. Mr Carlos Miguel Ferreira de Macedo Silva shall bear his own costs and pay those incurred by the European Border and Coast Guard Agency (Frontex), including those relating to the procedure for interim relief. Luxembourg, 8 February 2024. V. Di Bucci R. da Silva Passos Registrar President * Language of the case: English.