Case C-309/24 P: Appeal brought on 27 April 2024 by Roberto Passalacqua against the judgment of the General Court (Ninth Chamber) delivered on 28 February 2024 in Case T-318/22, Passalacqua v Commission
Date: 2024-04-27
Institutions: Court of Justice
Subjects: administrator, competition (EU), damages, indemnification, nuclear research, pay rise, promotion, recruitment, retirement conditions, scientific profession








C_202406400EN.000101.fmx.xml












Official Journal of the European Union


EN
C series













C/2024/6400


4.11.2024






Appeal brought on 27 April 2024 by Roberto Passalacqua against the judgment of the General Court (Ninth Chamber) delivered on 28 February 2024 in Case T-318/22, Passalacqua v Commission


(Case C-309/24 P)

(C/2024/6400)
Language of the case: Italian

Parties


Appellant: Roberto Passalacqua (represented by: M. Zennaro, avvocato)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court, having declared the dispute to be admissible, should set aside in whole or in part and/or in any event vary the judgment under appeal and, consequently, decide on the merits of the case (or in the alternative refer the case back to the General Court in order for it to vary the judgment):






(a)


annul the Commission’s decision not to promote the appellant to grade AD11 in the promotion exercise 2021;










(b)


annul the Commission’s decision of 1 April 2022 rejecting complaint No R/620/21 brought by the appellant under Article 90(2) of the Staff Regulations of Officials of the European Union;










(c)


make an order for compensation of the harm caused by the unlawful acts;










(d)


order the respondent to pay the costs at first instance and on appeal.





Grounds of appeal and main arguments

The appellant claims, in general, that he is not in a position to know why the only nuclear engineering scientific officer, having to his credit the greatest number of nuclear projects managed and skills that the Commission itself certifies to be of a level equal to or superior to the sample taken as a reference of those promoted, was not promoted.
There is not a single ground and/or evidence of a comparative assessment that can justify the exclusion of the appellant from the list of those promoted (without going into the merits of the institution’s discretionary reasoning, which was not provided).
There is no proof of actual performance of a comparative assessment, which is a condition of that decision being lawful.
Moreover, the judgment does not explain why the appellant’s exclusion was held to be lawful, how the comparison with the other candidates was carried out or on what the valid determination of the conditions for the appellant’s promotion or exclusion rests.
In support of the action, the appellant relies, in particular, on ten grounds of appeal.
By the first ground of appeal, relating to the failure to verify that the comparative assessment was carried out, the appellant complains that no specific assessment and comparison was made relating to his individual circumstances.
By the second ground of appeal, relating to an ineffective comparison of the candidates, the appellant submits that there were no objective criteria for exclusion from the comparison based on the main characteristics of the candidates.
By the third ground of appeal, relating to the logically flawed nature of the assessment of the criterion of the degree of seniority, the appellant points to the distortion of and/or the contradictory nature of the facts regarding the assessment of the degree of seniority of the candidates, particularly in so far as concerns a different sample taken as reference.
By the fourth ground of appeal, relating to the logically flawed nature of the assessment of managerial duties, the appellant notes that he also has the ‘additional’ characteristic that the Commission held to be predominant in the decision, moreover only by reference to the three officials in the sample.
By the fifth ground of appeal, relating to the failure to assess the predominant criterion of the interest of the service, the appellant claims that the decision at issue does not refer to the criterion of the interest of the service.
By the sixth ground of appeal, relating to the incorrect finding that Article 45(1) of the Staff Regulations had been complied with, the appellant maintains that the copy/pasting of extracts from appraisal reports did not meet the requirement of a comparative assessment.
By the seventh ground of appeal, relating to an incorrect assessment of the representative nature of the sample, the appellant notes that it is not possible to know the selection criterion for the sample of three anonymous candidates which, moreover, the Commission substitutes by reference to 18 other candidates only with regard to one comparator.
By the eighth ground of appeal, relating to an incorrect inversion of the burden of proof, which moreover relates to a negative fact, the appellant claims that the General Court criticised the appellant for not having demonstrated the incorrect implementation of acts that the Commission ‘classified’.
By the ninth ground of appeal, relating to the lack of reasoning regarding the misuse of powers, the appellant claims that the General Court excluded the need to make a finding due to a failure on the part of the appellant to demonstrate the grievance, whereas strong, concordant, and temporally coincident evidence had been provided.
By the tenth ground of appeal, relating to the failure to rule on the claim for damages, the appellant claims that the acts of the Commission were unlawful, as a result of which he has the right to compensation for the associated damage alleged in terms of increases in salary and in pension that he did not receive, non-material harm and damage to his reputation.


ELI: http://data.europa.eu/eli/C/2024/6400/oj
ISSN 1977-091X (electronic edition)