ORDER OF THE COURT (Sixth Chamber)
3 December 2020 (*)
(Appeal – Article 181 of the Rules of Procedure of the Court of Justice – Civil service – Officials – Certification procedure – 2016 promotion exercise – Exclusion of the appellant from the final list of officials entitled to take part in the training programme – Article 90(2) of the Staff Regulations of Officials of the European Union – Obligation to state reasons – Manifest error of assessment – Equal treatment – Rights of the defence)
In Case C‑259/20 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 11 June 2020,
João Miguel Barata, an official of the European Parliament, residing in Evere (Belgium), represented by G. Pandey and D. Rovetta, avocats, and by V. Villante, avvocato,
appellant,
the other party to the proceedings being:
European Parliament,
defendant at first instance,
THE COURT (Sixth Chamber),
composed of C. Toader (Rapporteur), acting as President of the Chamber, M. Safjan and N. Jääskinen, Judges,
Advocate General: J. Richard de la Tour,
Registrar: A. Calot Escobar,
having decided, after hearing the Advocate General, to give a decision by reasoned order, pursuant to Article 181 of the Rules of Procedure of the Court of Justice,
makes the following
Order
1        By his appeal, Mr João Miguel Barata seeks the setting aside of the judgment of the General Court of the European Union of 2 April 2020, Barata v Parliament (T‑81/18, not published, EU:T:2020:137; ‘the judgment under appeal’) by which the General Court dismissed his action seeking annulment, first, of the decision of 30 October 2017 by which the European Parliament rejected his complaint of 19 June 2017, secondly, the letter of 20 March 2017 containing the opinion of the Joint Certification Procedure Committee (‘COPAC’) recommending that the appointing authority dismiss his appeal of 1 March 2017, thirdly, the letter of 14 February 2017 notifying him of his results and informing him that a draft list of seven officials selected to take part in the training programme had been drawn up (‘the letter of 14 February 2017’), fourthly, the letter of 8 December 2016 informing him of his results following the first stage of the 2016 certification procedure (‘the letter of 8 December 2016’), fifthly, the letter of 21 December 2016 informing him of the action taken following his request for review and, sixthly, the notice of internal competition 2016/014 of 7 October 2016 communicated to staff on 20 October 2016 and the entirety of the resulting draft list of officials selected to take part in the training programme.
The appeal
2        Pursuant to Article 181 of the Rules of Procedure of the Court of Justice, where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal in whole or in part.
3        It is appropriate to apply that provision in the present case.
4        On 21 September 2020, the Advocate General took the following position:
‘1      By the present appeal, the appellant claims that the Court should set aside the judgment under appeal, declare, if necessary, that Article 90 of the Staff Regulations of Officials of the European Union (“the Staff Regulations”) is invalid and inapplicable in the present case pursuant to Article 277 TFEU, annul [the documents referred to in paragraph 1 of the present order] and order the Parliament to pay the costs of the appeal as well as the costs of the proceedings at first instance.
2.      In the alternative, the appellant claims that the case should be referred back to the General Court so that it can give a new ruling and order the Parliament to pay him damages of EUR 50 000 for the harm he claims to have suffered.
3.      In support of his appeal, the appellant raises seven grounds of appeal. The first to fifth grounds of appeal concern the admissibility of certain arguments raised at first instance, while the sixth and seventh grounds of appeal concern the substance.
4.      For the sake of clarity, it should be specified that the second to fifth grounds of appeal are closely interconnected because, relying in particular on the General Court’s refusal to order measures of organisation of procedure, the appellant complains that the General Court and the Parliament have infringed his rights of defence and his right to be heard, as well as the principles of effective judicial protection and sound administration.
The first ground of appeal
5.      By his first ground of appeal, the appellant argues that the General Court erred in law by, in essence, interpreting the documents open to review too narrowly in view of Article 90(2) of the Staff Regulations. In that regard, the appellant considers that COPAC’s opinion of 20 March 2017, whereby it was recommended that the appointing authority dismiss his appeal of 1 March 2017 against the letter of 14 February 2017 informing him that, following the internal competition in which he had taken part, a draft list of seven officials selected to take part in the training programme had been drawn up and his name was not included in that list, has binding effect in so far as, despite the term used, that opinion led to the adoption of the letter of 29 March 2017 whereby the appointing authority confirmed that opinion, thereby dismissing the appeal of 1 March 2017. The appellant maintains that COPAC’s opinion of 20 March 2017, which is of a purely internal nature, significantly influenced the Parliament’s final decision of 30 October 2017 to reject his complaint.
6      In that regard, the appellant relies on the judgment of 6 December 2007, Commission v Ferriere Nord (C‑516/06 P, EU:C:2007:763), in order to claim that COPAC’s opinion of 20 March 2017 constituted an act adversely affecting him. In paragraph 27 of that judgment, the Court recalled that only measures the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position are acts or decisions which may be the subject of an action for annulment.
7      Furthermore, the appellant also considers that the letters of 8 December 2016 and of 14 February 2017, informing him of his results following the first stage of the 2016 certification procedure and the draft list of seven officials selected to take part in the training programme, respectively, constitute challengeable acts. Thus, he criticises the reasoning of the General Court as set out in, first, paragraphs 23 to 25 of the judgment under appeal, which stated that the letter of 14 February 2017 had informed him of the progress of the procedure, and, second, paragraph 29 of that judgment, which stated, concerning the letter of 8 December 2016 in particular, that, “[that letter,] by informing [the appellant] of various stages of the procedure, did not in any way establish the final list of candidates selected for the certification procedure and did not definitively establish that [the appellant] would be excluded from the certification procedure”.
8      In that regard, it should be borne in mind that, as regards staff cases, acts preparatory to a final decision do not have an adverse effect and therefore can only be contested indirectly in an action against acts capable of being annulled. Although some purely preparatory measures may adversely affect an official inasmuch as they may influence the content of a subsequent challengeable act, those measures cannot be the subject of a separate action and must be challenged in support of an action brought against that act (order of the President of the Court of 8 April 2003, Gómez-Reino v Commission, C‑471/02 P(R), EU:C:2003:210, paragraph 62, and order of 30 November 2017, Camerin v Parliament, C‑453/17 P, not published, EU:C:2017:922, paragraph 8).
9      In the present case, the Parliament’s decision of 30 October 2017, confirming the decision taken in the letter of 29 March 2017 and rejecting the complaint brought by the appellant against that letter on 19 June 2017, constitutes the last decision taken in the procedure concerning that complaint. Consequently, the letters of 8 December 2016 and 14 February 2017 and COPAC’s opinion of 20 March 2017 constitute only preparatory acts, the legal effects of which are neither binding on, nor capable of directly and immediately affecting the interests of, the appellant. It is thus obvious that those acts have not, in themselves, brought about a change in the appellant’s legal situation.
10      Furthermore, under Article 45a(2) of the Staff Regulations, COPAC is to deliver a reasoned opinion on the draft list proposed by the appointing authority, which is then to adopt the list of officials who are entitled to take part in the training programme. Consequently, that opinion is not binding on the appointing authority.
11      The appellant also refers to a translation error in paragraph 53 of the English version – English being the language of the case – of the judgment under appeal. Whereas the French version of that judgment refers to Article 76(d) of the Rules of Procedure of the General Court, the English version refers to Article 76(b) of those rules.
12      It is, however, obvious that the General Court relied on Article 76(d) of the Rules of Procedure of the General Court, cited in paragraphs 32, 33, 41, 49 and 52 of the judgment under appeal, and not on Article 76(b) of those rules, cited by mistake in paragraph 53 of the English version of that judgment alone, and that that purely clerical mistake is covered, where necessary, by the rectification procedure laid down in Article 164 of the Rules of Procedure of the General Court.
13      It follows from the foregoing that the first ground of appeal must be rejected as being manifestly unfounded.
The second ground of appeal
14      By his second ground of appeal, the appellant claims that the General Court erred in law in its examination of the admissibility of the second plea in his action. That plea concerned the assessment by the General Court of the appellant’s right to access the documents relating to his evaluation in connection with the certification procedure and to his prior administrative complaint, and of his right to be heard.
15      The appellant challenges the General Court’s assertion that he did not state the adverse effects resulting from the infringement, by the Parliament, of his right to effective judicial protection. He maintains that it was clearly stated in paragraphs 59 to 62 of his application at first instance how the Parliament had infringed that right.
16      In particular, in paragraphs 62 and 63 of that application he had explained that he was unable to access all the documents concerning his evaluation and that he was, as a result, in a position of “legal weakness” due to the conduct of the departments of the Parliament. He adds that, owing to the Parliament’s refusal to grant him access to the requested documents, the adoption by the General Court of the measures of organisation of procedure that he had suggested was essential for understanding the conduct of the 2016 certification procedure.
17      In addition, the appellant submits that, as can be seen from paragraphs 52, 53, and 56 to 60 of the judgment under appeal, the General Court interpreted Article 76(d) of its Rules of Procedure too narrowly, which led it to reject the complaints raised in the action.
18      Lastly, the appellant asserts that his right to be heard and his rights of defence in connection with the complaints procedure were infringed and that that infringement led to several of his complaints being rejected. If he could have been granted the right to be heard at the stage of the complaints procedure, he could have communicated to the Parliament, in response to being invited to submit his observations, all the complaints that he subsequently set out before the General Court.
19      Regarding the first argument in the second ground of appeal, it should be noted that the appellant complains that the General Court held, incorrectly, that he had not explained how the Parliament had infringed his right to effective judicial protection. In his view, such an explanation was set out in the part of his application at first instance in which he reported the Parliament’s refusal to allow him access to the documents concerning his evaluation and the rejection of his complaint of 19 June 2017.
20      In that regard, it should be specified that the line of reasoning put forward by the appellant in support of that argument, although disputing the inadmissibility, based on the description of COPAC’s opinion of 20 March 2017 as an act not adversely affecting him, of the second plea in his action, formally calls into question the reasoning of the judgment under appeal relating to the inadmissibility of the third and fourth pleas in his action.
21      Paragraphs 52 and 53 and paragraphs 56 to 60 of the judgment under appeal, whereby the General Court ruled that the third and fourth pleas in the action, respectively, were inadmissible on the basis of Article 76(d) of the Rules of Procedure of the General Court, as the appellant had failed to raise clearly set out pleas in law and arguments, are criticised in paragraph 40 of the appeal.
22      In any event, it must be pointed out that the appellant confines himself, in the first argument in his second ground of appeal, to repeating the arguments he had made at first instance in support of (i) his second plea and (ii) his third and fourth pleas, so that those arguments could also be rejected as being manifestly inadmissible.
23      However, the inadmissibility of the second head of claim was declared because of the fact that COPAC’s opinion of 20 March 2017 did not adversely affect the appellant. Having regard to that decision by the General Court, which, moreover, is not disputed before the Court of Justice, it cannot be held that the General Court infringed the appellant’s right to effective judicial protection or the rights resulting from Article 41 of the Charter of Fundamental Rights of the European Union (“the Charter”) as regards that opinion. The first argument in the second ground of appeal can therefore be set aside as being manifestly unfounded.
24      In addition, inasmuch as they challenge the reasoning of the judgment under appeal relating to the admissibility of the third and fourth pleas in the appellant’s action in paragraphs 52 to 54 and 59 and 60 of that judgment, it appears that the arguments put forward by the appellant in support of his second ground of appeal, which concerns the decision of the General Court relating to the admissibility of the second plea brought before it, cannot succeed and could be rejected as being manifestly unfounded, in accordance with the relevant case-law of the Court of Justice, pursuant to which the General Court is obliged to reject as inadmissible a head of claim in an application brought before it if the essential matters of law and of fact on which the head of claim is based are not indicated coherently and intelligibly in the application itself (judgment of 18 July 2006, Rossi v OHIM, C‑214/05 P, EU:C:2006:494, paragraphs 34 to 40; order of 13 March 2007, Arizona Chemical and Others v Commission, C‑150/06 P, not published, EU:C:2007:164, paragraphs 45 and 46; and judgment of 15 April 2010, Gualtieri v Commission, C‑485/08 P, EU:C:2010:188, paragraphs 104 to 107).
25      Regarding the argument in the second ground of appeal relating to the overly narrow interpretation of Article 76(d) of the Rules of Procedure of the General Court, which led that court to reject the complaints raised in the action pending before it, that argument must be declared manifestly inadmissible, in so far as the appellant has in no way explained precisely how the interpretation was “too narrow” and how that purportedly overly narrow interpretation of that provision could have led to the rejection of certain pleas and complaints in his action.
26      According to the settled case-law of the Court of Justice, it follows from Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) and Article 169 of the Rules of Procedure of the Court of Justice that an appeal must state precisely the contested elements of the judgment or order which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal, failing which the appeal concerned is inadmissible (order of 24 November 2016, Petraitis v Commission, C‑137/16 P, not published, EU:C:2016:904, paragraph 16).
27      Nor can the appellant’s arguments that, if the Parliament had heard him before rejecting his complaint of 19 June 2017 or if the General Court had adopted the measures of organisation of procedure that he had requested, he could have developed his complaints further, succeed.
28      First, the argument alleging that the Parliament failed to hear the appellant again before rejecting his complaint of 19 June 2017 must be set aside as being manifestly inadmissible inasmuch as it does not criticise the judgment under appeal.
29      Second, the argument alleging that the General Court failed to adopt the measures of organisation of procedure requested by the appellant must be rejected. It is sufficient to note that such measures may not be used in order to remedy the inadmissibility of a plea in law or argument raised in the application.
30      In addition, in accordance with the settled case-law of the Court of Justice, the General Court is the sole judge of any need to supplement the information available to it in respect of the cases before it. Whether or not the evidence before it is sufficient is a matter to be appraised by it alone and is not subject to review by the Court of Justice on appeal, except where that evidence has been distorted or the substantive inaccuracy of the findings of the General Court is apparent from the documents in the case (judgments of 11 June 2015, EMA v Commission, C‑100/14 P, not published, EU:C:2015:382, paragraph 80, and of 28 January 2016, Heli-Flight v EASA, C‑61/15 P, not published, EU:C:2016:59, paragraph 94). However, in connection with his line of argument, the appellant has not alleged any distortion of the evidence submitted to the General Court or any substantive inaccuracy of the findings of that court which would be apparent from the documents in the case.
31      It follows from all the foregoing considerations that the second ground of appeal must be set aside as being in part manifestly inadmissible and in part manifestly unfounded.
The third ground of appeal
32      By his third ground of appeal, the appellant challenges the rejection as inadmissible of the complaint, put forward in the second plea in his action, alleging infringement of the principle of sound administration and of the rights guaranteed by Article 41 of the Charter. He argues that the General Court imposed a burden of proof on him that was impossible to satisfy and, thus, declared some of the complaints put forward in that second plea unfounded, without ordering measures of organisation of procedure.
33      He had requested the General Court to adopt such measures because, given the Parliament’s refusal to provide him with the necessary documents to prepare to challenge the acts covered by his action before the General Court, he had unsuccessfully exhausted all the avenues that could have enabled him to access those documents.
34      Furthermore, the appellant submits that the General Court itself acknowledged that any infringement of the right to be heard materialises only when the procedure comes to an end, that is to say, when the decision concerning the complaint is adopted, making the contested act final.
35      In that regard, it should be borne in mind that the General Court: first of all, in paragraph 28 of the judgment under appeal, rejected the second head of claim as inadmissible, as it concerned COPAC’s opinion of 20 March 2017, which did not adversely affect the appellant; next, in paragraph 43 of that judgment, accepted that the objection that Article 90 of the Staff Regulations was unlawful raised by the appellant in that head of claim was admissible; and, lastly, in paragraphs 105 to 110 of that judgment, dismissed that objection of illegality and rejected the whole of the second plea in law as unfounded. Thus, contrary to what is set out in the appeal, the General Court, in paragraph 43 of the judgment under appeal, did not reject a complaint alleging infringement of Article 41(2)(b) of the Charter, but, on the contrary, declared that objection of illegality admissible. It follows that, for the reasons set out in paragraph 26 of this position, that argument is inadmissible.
36      Concerning the appellant’s access to his application file, the General Court noted, in paragraph 105 of the judgment under appeal, that that access, in respect of which the appellant had not specified the precise documents that should have been concerned, had been organised by the Parliament and the fact that the answers provided by the Parliament to the questions formulated by the appellant had not enabled him to obtain the information he was seeking regarding the evaluation of his application did not in itself constitute infringement of the principle of sound administration.
37      The appellant does not challenge that finding by the General Court and confines himself to complaining that that court failed to adopt the measures of organisation of procedure that he had requested. However, as has previously been noted in the context of assessing the second ground of appeal in paragraphs 29 and 30 of the present position, first, such measures, even if they had been adopted, would not have been capable of remedying the inadmissibility found by the General Court, and, second, as there is no allegation of a possible distortion of the evidence submitted to the General Court or of substantive inaccuracy of the findings of that court, the General Court cannot be criticised for not having adopted such measures.
38      Accordingly, the third ground of appeal must be set aside as being manifestly inadmissible.
The fourth ground of appeal
39      By his fourth ground of appeal, the appellant complains that the General Court relied on a narrow interpretation of the requirements laid down in Article 76(d) of its Rules of Procedure in order to reject as inadmissible, in paragraph 59 of the judgment under appeal, the fourth plea in his action based on the existence of discrimination, without taking into account the presumption established in Article 1d of the Staff Regulations. The General Court thus “accepted [the] Parliament’s arguments at face value”, as can clearly be seen from paragraphs 57 and 58 of that judgment.
40      Regarding the rejection by the General Court, in paragraphs 59 and 60 of the judgment under appeal, of the fourth plea in the action, alleging, inter alia, infringement of the principle of equal treatment, the appellant complains that the General Court, in essence, infringed Article 1d(5) of the Staff Regulations, which provides, under certain conditions, for a reversal of the burden of proof in cases of alleged discrimination.
41      Assuming that discrimination such as that alleged by the appellant can be covered by Article 1d of the Staff Regulations, it is sufficient to recall that paragraph 5 of that article makes a reversal of the burden of proof in cases of discrimination conditional upon the person concerned establishing facts that permit a presumption that there is discrimination.
42      However, in paragraph 59 of the judgment under appeal, the General Court found that the appellant had not put forward any evidence to substantiate his allegations of discrimination, but had confined himself to asserting that there was such discrimination. Having regard to those findings, which, moreover, the appellant does not dispute before the Court of Justice, it cannot be held that the General Court infringed Article 1d(5) of the Staff Regulations.
43      Accordingly, the fourth ground of appeal must be set aside as being manifestly unfounded.
The fifth ground of appeal
44      By his fifth ground of appeal, the appellant asserts that the General Court neither correctly interpreted the complaints raised in the second plea in his action nor responded to those complaints. For reasons of clarity, it is necessary to examine the substance of the fifth ground of appeal as being divided into four parts, the first alleging infringement of the principle of effective judicial protection, the second alleging an error of law relating to the oversimplification of his line of argument regarding the infringement of fundamental rights, the third alleging infringement of Article 41 of the Charter, and the fourth alleging an error of law relating to the interpretation and application of Article 90(2) of the Staff Regulations in the context of Article 41 of the Charter.
45      In particular, the appellant complains that the General Court, first, simplified the complaints raised and, second, ignored the detailed explanations provided in paragraphs 62 and 63 of his application at first instance concerning the efforts made by the appellant to exercise his rights derived from Article 41 of the Charter.
46      Accordingly, in his view, the implicit finding of the General Court that he suffered no consequences as a result of the Parliament’s refusal to grant him access to certain documents has no basis in fact. It is clear from the arguments set out by the appellant in his action before the General Court that his efforts to obtain those documents were intended to enable him to prepare his action against the Parliament and to protect his legal situation. Furthermore, the General Court erred in law inasmuch as it required the “consequences” or adverse effects of a breach of the appellant’s fundamental rights to be established, whereas the mere infringement of such rights should be regarded as sufficient.
47      According to the appellant, the General Court simply avoided giving a ruling on the interpretation of Article 90 of the Staff Regulations in the light of Article 41 of the Charter and interpreted that provision narrowly and literally. As is apparent from his action before the General Court, the appellant argued that the Parliament infringed his rights of defence and his right to be heard on two occasions. First, before rejecting his application for the certification procedure, the Parliament should have informed him of its draft negative decision and granted him a period within which to respond to that decision. Second, the appellant considers that, after taking the decision to reject his complaint of 19 June 2017, the Parliament should have granted him the right to submit observations. Only after examining such observations would the Parliament have been able to adopt a final decision regarding that complaint.
48      Because the Parliament failed to do this, the appellant was forced to bring proceedings before the General Court in order to be able to access the necessary documents. In addition, he was deprived of the opportunity to question the Parliament regarding other possible complaints, such as those submitted to the General Court. By contrast, if his right to be heard had been respected, the appellant could have raised, during the pre-litigation procedure, all the complaints raised in his action before the General Court, which would thus have been declared admissible.
49      A contrary interpretation of Article 90 of the Staff Regulations, such as that adopted by the General Court, would infringe Article 41 of the Charter and the right of every official to submit observations to the appointing authority.
50      Lastly, the appellant argues that a complaint submitted pursuant to Article 90 of the Staff Regulations constitutes an administrative procedure giving rise to a decision of the appointing authority and must be treated in the same way as any other decision of the European Union institutions, being subject to the principle of the rights of the defence and the right to file observations before the European Union institutions adopt a decision against an individual or a company. He adds that the General Court, by describing the complaint based on Article 90 of the Staff Regulations as “a mere pre-litigation phase”, misinterpreted that provision, and that that issue is closely linked to the first ground of appeal concerning the problems relating to an overly narrow interpretation of the rule of correspondence which stems, according to settled case-law, from Article 91(2) of the Staff Regulations.
The first part of the fifth ground of appeal
51      Concerning the first part of the fifth ground of appeal, alleging infringement of the principle of effective judicial protection, it should be borne in mind that the Court, in its case-law, derives from Article 47 of the Charter the precise content of the right to effective judicial protection, namely the right to an effective remedy before a tribunal, the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law, the right to be advised, defended and represented, and the right to legal aid for those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice (judgment of 22 December 2010, DEB, C‑279/09, EU:C:2010:811, paragraph 31).
52      However, in support of the first part of the fifth ground of appeal, the appellant confines himself to alleging infringement of that fundamental right without specifying how that right, as defined by the case-law of the Court of Justice, has been infringed, while not disputing the fact that the General Court ruled on whether his rights of defence and his right to be heard had been respected. That part must therefore be rejected as being manifestly inadmissible according to the relevant case-law of the Court of Justice cited in paragraph 26 of the present position.
The second part of the fifth ground of appeal
53      By the second part of the fifth ground of appeal, the appellant appears to be criticising paragraph 101 of the judgment under appeal, complaining that the General Court, in that paragraph, simplified the second plea in his action.
54      However, that line of argument by the appellant must be set aside as being manifestly inadmissible, in so far as it seeks to challenge the General Court’s assessment of the facts without even arguing that there is any element of distortion.
55      The appellant does not explain how the General Court “bluntly” simplified the second plea in his action or the reason why the response to that plea in the judgment under appeal is insufficient, so that, in accordance with the case-law resulting from the order of 24 November 2016, Petraitis v Commission (C‑137/16 P, not published, EU:C:2016:904), such a line of argument must be rejected as being manifestly inadmissible.
The third part of the fifth ground of appeal
56      By the third part of the fifth ground of appeal, alleging infringement of Article 41 of the Charter, the appellant confines himself to arguing that, in his action before the General Court, he had provided detailed explanations concerning the efforts he had made to exercise his rights derived from that provision. However, those assertions, assuming they are established, are not such as to affect the findings of the General Court in paragraph 108 of the judgment under appeal according to which, first, the decision of the Parliament of 30 October 2017 did not constitute a final act adversely affecting the appellant and, second, the complaint provided for in Article 90(2) of the Staff Regulations did not constitute an individual measure such as that referred to in Article 41 of the Charter, which was therefore not applicable. The General Court added that, in any event, the appellant was in a position effectively to make his views known, by means of his complaint.
57      It follows that the third part of the fifth ground of appeal is manifestly unfounded.
The fourth part of the fifth ground of appeal
58      In support of the fourth part of the fifth ground of appeal, the appellant complains that the General Court, in essence, erred in law inasmuch as it did not interpret Article 90(2) of the Staff Regulations as meaning that, in order to ensure his rights of defence were respected, the Parliament should have heard him again before rejecting his complaint of 19 June 2017.
59      It should be borne in mind that an official who has brought a complaint under Article 90(2) of the Staff Regulations was, by definition, fully in a position to set out in that complaint any argument that he or she wished to make with regard to the decision of the appointing authority concerned by the complaint. It cannot therefore be claimed that, in order to respect the rights of the defence and the principle of sound administration, the appointing authority is required to hear that official again before ruling on the complaint or to give him or her the opportunity to supplement that complaint (see, by analogy, order of 4 March 2010, Kaul v OHIM, C‑193/09 P, not published, EU:C:2010:121, paragraph 66). Accordingly, that part must be rejected as being manifestly unfounded, so that the fifth ground of appeal must be rejected as being in part manifestly inadmissible and in part manifestly unfounded.
The sixth ground of appeal
60      By his sixth ground of appeal, the appellant complains that the General Court made a manifest error in its assessment of the facts and applied an incorrect legal criterion when analysing the conduct of the Parliament. The appellant repeats his arguments relating to the documents connected with the certification procedure, while requesting that measures of organisation of procedure be granted.
61      The sixth ground of appeal is divided into three parts. By the first part of that ground, the appellant challenges the inconsistent application of the “appraisal” criterion in the 2013 to 2015 staff reports and the assessment of his professional experience in those staff reports with regard to the criteria of adaptability and responsibility.
62      In that regard, he claims that the General Court made a manifest error of assessment when it found, in paragraph 79 of the judgment under appeal, that the criteria of “Professional experience” and “Overall assessment” were not completely separate but there was some interdependence between them. Furthermore, the appellant criticises the finding set out in paragraph 95 of that judgment that he had misinterpreted those criteria when he, in essence, argued that the assessment of one depended on the assessment of the other. The appellant submits that those findings are contradictory and mutually exclusive.
63      According to the appellant, the General Court should at least have explained why it had accepted the Parliament’s arguments as reported in paragraph 81 of the judgment under appeal. He considers that the approach adopted by the General Court has had the effect of depriving him of effective judicial protection and of the right to know the reasons why the General Court did not uphold his claims.
64      By the second part of the sixth ground of appeal, the appellant challenges the rejection by the General Court, in paragraph 75 of the judgment under appeal, of the complaint alleging infringement of the principle of equal treatment developed in the second part of the first plea in his action. He considers that he fulfilled his obligations regarding the burden of proof to convince the General Court that the Parliament had made a manifest error in its consideration of the comparative merits of the candidates.
65      Regarding the consideration of the comparative merits of the candidates, the appellant does not dispute the discretion of the appointing authority with regard to the allocation of points, but the fact that that authority simplified the consistency of that consideration of comparative merits, which it did not carry out with diligence and impartiality. The General Court could have obtained confirmation of that consistency if it had not misinterpreted the issue of the correct allocation of the burden of proof, in breach of Article 1d of the Staff Regulations.
66      The appellant also complains that the General Court oversimplified his complaint concerning the assessment of his application, meaning that the findings set out in paragraph 89 of the judgment under appeal do not respond to that complaint. The appellant asserts that the General Court accepted the Parliament’s arguments without verifying whether they were well founded by means of a measure of organisation of procedure requesting that anonymised data relating to the successful candidates, who had performed duties that were comparable to the duties he himself had performed, be provided.
67      By the third part of the sixth ground of appeal, the appellant challenges the rejection of the first complaint in the second part of the first plea in his action, alleging a failure to fulfil the obligation to state reasons, on the grounds set out in paragraphs 68 to 70 of the judgment under appeal. He argues that the reasoning provided by the Parliament was based on general considerations and remarks. The General Court did not take account of the Parliament’s failure to explain some of its choices concerning, inter alia, the assessment criteria. The Parliament should have explained in detail both those choices and the differences in the assessment of the candidates’ staff reports.
The first part of the sixth ground of appeal
68      Regarding the first part of the sixth ground of appeal, which seeks, in essence, to challenge a factual assessment which, in principle and unless there is distortion, is not amenable to review by the Court of Justice at the appeal stage, it must be rejected as being in part manifestly inadmissible and in part manifestly unfounded.
69      According to settled case-law, it is clear from the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that the Court of Justice has no jurisdiction to establish the facts or, in principle, to examine the evidence which the General Court has accepted in support of those facts. Thus, provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence that has been submitted to it. The assessment of that evidence thus does not, save where the evidence has been distorted, which has in no way been alleged in the present case, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (order of 20 July 2016, Staelen v Ombudsman, C‑338/15 P, not published, EU:C:2016:599, paragraph 13; judgment of 13 December 2018, European Union v Kendrion, C‑150/17 P, EU:C:2018:1014, paragraph 79; and order of 23 July 2019, UC v Parliament, C‑196/19 P, not published, EU:C:2019:653, paragraph 12).
70      In the present case, it must be pointed out that there is nothing in the appellant’s arguments to permit the conclusion that the General Court manifestly distorted the evidence that was submitted to it.
71      In addition, if the appellant’s argument that the General Court should have explained why it accepted the Parliament’s arguments must be understood as meaning that the appellant is invoking a failure to fulfil the obligation to state the reasons for the judgment under appeal, it is sufficient to note that, in paragraphs 95 to 98 of that judgment, the General Court amply set out the grounds that led it to conclude that the appointing authority did not make a manifest error of assessment when evaluating the appellant’s staff reports.
72      Consequently, the first part of the sixth ground of appeal must be rejected as being in part manifestly inadmissible and in part manifestly unfounded.
The second part of the sixth ground of appeal
73      The second part of the sixth ground of appeal appears to cover, first, paragraphs 89 to 98 of the judgment under appeal, in which the General Court analysed the appellant’s complaint alleging that the Parliament made manifest errors in its assessment of the criteria for evaluating his professional experience, and, second, paragraphs 72 to 75 of that judgment, which concern the complaint alleging infringement of the principle of equal treatment developed in the second part of the first plea in his action.
74      The appellant’s arguments relating to paragraphs 89 to 98 of the judgment under appeal must be set aside as being manifestly inadmissible, in so far as they seek to challenge the General Court’s assessment of the facts without even alleging any element of distortion.
75      The appellant does not explain how the General Court “over-simplified” his complaint alleging that manifest errors were made by the Parliament in its assessment of the criteria for evaluating his professional experience; nor does he explain why the response given to that complaint in the judgment under appeal is insufficient, so that, in accordance with the case-law cited in paragraph 26 of the present position, such arguments must be rejected as being manifestly inadmissible.
76      Regarding the General Court’s rejection, in paragraphs 72 to 75 of the judgment under appeal, of the complaint alleging infringement of the principle of equal treatment developed in the second part of the first plea in his action, the appellant complains that the General Court, in essence, infringed Article 1d(5) of the Staff Regulations, which provides, under certain conditions, for a reversal of the burden of proof in cases of alleged discrimination.
77      As explained in paragraph 41 of the present position, assuming that discrimination such as that alleged by the appellant can be covered by Article 1d of the Staff Regulations, it is sufficient to recall that paragraph 5 of that article makes a reversal of the burden of proof in cases of discrimination conditional upon the person concerned establishing facts that permit a presumption that there is discrimination.
78      However, it is apparent from paragraph 74 of the judgment under appeal that the appellant did not put forward any evidence before the General Court to substantiate his allegations of discrimination. Having regard to that finding by the General Court, which, moreover, the appellant does not dispute before the Court of Justice, it cannot be held that the General Court infringed Article 1d(5) of the Staff Regulations.
79      Accordingly, the appellant’s arguments concerning paragraphs 72 to 75 of the judgment under appeal must be set aside as being manifestly unfounded.
80      It follows from all the foregoing considerations that the second part of the sixth ground of appeal must be rejected as being in part manifestly inadmissible and in part manifestly unfounded.
The third part of the sixth ground of appeal
81      Regarding the third part of the sixth ground of appeal, which concerns the rejection, in paragraph 70 of the judgment under appeal, of the first complaint in the second part of the first plea in the action, alleging a failure to fulfil the obligation to state reasons, it should be noted that, in paragraph 68 of the judgment under appeal, the General Court found, in essence, that, using an alleged failure on the part of the Parliament to fulfil the obligation to state reasons as a pretext, the appellant was, in reality, disputing the merits of the Parliament’s reasoning, which concerned the substantive legality of the appointing authority’s reasoning, examined in the analysis of the first part of the first plea in the action.
82      Furthermore, in paragraph 69 of the judgment under appeal the General Court, in essence, found that the appointing authority had provided the appellant with sufficient reasons to justify the rejection of his application.
83      The arguments put forward by the appellant in the third part of the sixth ground of appeal are limited to vague and general assertions and do not enable it to be understood how the General Court erred in law by considering that the Parliament had provided sufficient reasons for its decision rejecting the appellant’s complaint. Accordingly, that third part does not comply with the formal requirements and must therefore be set aside as being manifestly inadmissible.
84      Consequently, the sixth ground of appeal must be rejected as being in part manifestly inadmissible and in part manifestly unfounded.
The seventh ground of appeal
85      By his seventh ground of appeal, the appellant challenges the rejection by the General Court, in paragraph 117 of the judgment under appeal, of the fifth plea in his action. Thus, the appellant repeats a large part of the arguments raised in that fifth plea in law, complaining that the General Court required him to provide an element of quantification of adverse effects in order to be able to exercise the right to invoke a failure to comply with the rules governing languages, which risks undermining the effectiveness of that right. In that regard, he relies on the judgment of 26 March 2019, Spain v Parliament (C‑377/16, EU:C:2019:249), and the judgment of 20 September 2019, Barata v Parliament (T‑467/17, not published, EU:T:2019:646).
86      It should be specified that, in the present case, the ground of the judgment under appeal criticised by the seventh ground of appeal is the ground whereby the General Court rejected the fifth plea in the action, asserting, in paragraph 117 of that judgment, that “the applicant does not put forward any argument or evidence to establish that the language scheme provided for had any influence whatsoever on the outcome of the assessment of his application”.
87      It is sufficient to note, in that regard, that the rejection of the fifth plea in law by the General Court is mainly based on the fact that the non-inclusion of the appellant “on the list of candidates selected for the 2016 certification procedure is linked to the fact that he did not obtain sufficient points under the criteria pre-established by the notice of internal competition” and that, “thus, the rules governing languages in no way prevented him from submitting his application”. Accordingly, for that reason alone, the judgment under appeal is justified.
88      However, it should be borne in mind that complaints brought against grounds given in a judgment of the General Court for the sake of completeness must be rejected at the outset, as they cannot lead to the setting aside of that judgment (see to that effect, inter alia, judgments of 11 December 2019, Mytilinaios Anonymos Etairia – Omilos Epicheiriseon, C‑332/18 P, EU:C:2019:1065, paragraph 137 and the case-law cited, and of 25 June 2020, Schneider v EUIPO, C‑116/19 P, not published, EU:C:2020:501, paragraph 76).
89      Thus, the seventh ground of appeal is ineffective.
90      It is therefore necessary to dismiss the appeal in its entirety as being in part manifestly inadmissible and in part manifestly unfounded and to order the appellant to pay the costs incurred in the proceedings, in accordance with Article 137 and Article 184(1) of the Rules of Procedure of the Court of Justice.’
5        For the same reasons as those given by the Advocate General, the appeal must be dismissed as being in part manifestly inadmissible and in part manifestly unfounded.
Costs
6        Under Article 137 of the Rules of Procedure, applicable to proceedings on appeal pursuant to Article 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings. In this instance, since the present order was adopted before the appeal was served on the defendant at first instance and, therefore, before it could have incurred costs, it is appropriate to decide that Mr Barata is to bear his own costs.
On those grounds, the Court (Sixth Chamber) hereby orders:
1.      The appeal is dismissed as being in part manifestly inadmissible and in part manifestly unfounded.
2.      Mr João Miguel Barata shall bear his own costs.
Luxembourg, 3 December 2020.
A. Calot Escobar
C. Toader
Registrar
Acting as President of the Sixth Chamber
*      Language of the case: English.