1 By its appeal, the European Commission seeks to have set aside the judgment of the General Court of the European Union of 9 June 2021, Calhau Correia de Paiva v Commission (T‑202/17, ‘the judgment under appeal’, EU:T:2021:323) by which the General Court annulled the decision of the selection board of open competition EPSO/AD/293/14 of 23 June 2016, rejecting the request for review made by Ms Ana Calhau Correia de Paiva following her exclusion from the reserve list of the competition (‘the decision at issue’).
2 The background to the dispute is set out in paragraphs 1 to 14 of the judgment under appeal and can be summarised as follows.
3 On 23 October 2014, the European Personnel Selection Office (EPSO) published the notice of open competition EPSO/AD/293/14 in the Official Journal of the European Union to draw up reserve lists from which to recruit officials as administrators of grade AD 7 for the Commission in the fields of competition law, corporate finance, financial economics, industrial economics and macroeconomics (OJ 2014 C 376 A, p. 1, and corrigendum OJ 2014 C 425 A, p. 1) (‘the notice of competition at issue’).
4 The notice of competition at issue provided, in Section IV thereof, for three computer-based admission tests that were multiple-choice questions and, in Section VI thereof, for tests to be held at an assessment centre and consisting of a case study, a group exercise and a structured interview.
5 In addition, in respect of the specific conditions for admission, the notice of competition required, in Section III.2.3 thereof, entitled ‘Knowledge of languages’, first, as regards the main language (language 1), a thorough knowledge, corresponding to at least level C1 of the Common European Framework of Reference for Languages (CEFR), of one of the official languages of the European Union and, secondly, as regards the second language (language 2), a satisfactory knowledge, corresponding to at least level B2 of the CEFR, of English, French or German, it being required that that second language be different from the main language.
6 Section VI.3 stated that the assessment centre tests would be held in the second language of the competition.
7 On 25 November 2014, Ms Calhau Correia de Paiva, a Portuguese national, submitted an application to take part in competition EPSO/AD/293/14 in the field of competition law. She chose Portuguese, her mother tongue, as her main language and French as her second language.
8 By letter of 19 March 2015, Ms Calhau Correia de Paiva was informed that she had successfully passed the computer screening tests.
9 She was invited, by letter of 15 April 2015, to the assessment centre tests.
10 By letter of 16 April 2015, Ms Calhau Correia de Paiva was invited by EPSO to attend a case study and for which she was offered the use of an Azerty FR keyboard, whilst being given option of choosing, alternatively, a Qwerty UK, Azerty FR/BE or Qwertz DE keyboard. She exercised that option and requested a change of keyboard in order to take the test using a Qwerty UK keyboard.
11 Ms Calhau Correia de Paiva took part in the tests held at the assessment centre on 13 May and 11 June 2015.
12 By letter of 9 November 2015, Ms Calhau Correia de Paiva was informed that the selection board for the competition had decided not to include her name on the reserve list (‘the decision of non-inclusion on the reserve list’) on the ground that she ‘[was] not among the candidates who obtained the highest aggregate marks in the Assessment Centre (at least 68.59 [points])’, her total score being 61.13 points.
13 On 19 November 2015, Ms Calhau Correia de Paiva requested a review of the decision of non-inclusion on the reserve list. By the decision at issue, the selection board for the competition rejected that request.
14 On 24 August 2016, Ms Calhau Correia de Paiva filed a complaint, within the meaning of Article 90(2) of the Staff Regulations of Officials of the European Union , against the decision of non-inclusion on the reserve list. In that complaint, she claimed that the limitation of the choice of the type of keyboard to be used for carrying out the case study constituted unequal treatment. She also alleged a failure to state reasons as regards the limitations relating to the types of keyboard made available to candidates and to the choice of the second language of the competition. Furthermore, she complained about the length of the review procedure.
15 By a decision of 22 December 2016, EPSO rejected that complaint as being both inadmissible, on the ground that it was out of time, and unfounded.
16 By an application lodged with the registry of the General Court on 31 March 2017, Ms Calhau Correia de Paiva brought an action for the annulment of the decision at issue, through upholding, as necessary, a plea of illegality directed against the notice of competition at issue and the language regime it established.
17 In support of her action, she raised five pleas in law. The first plea alleged, in essence, an infringement of the principles of non-discrimination, proportionality and equal opportunities in that EPSO had required a Qwerty UK, Azerty FR/BE or Qwertz DE keyboard to be used for the case study. The second to fourth pleas alleged, in essence, the illegality of the notice of competition on account of the limitation of the choice of the second language of the competition to English, French or German. The fifth plea alleged, in essence, that EPSO failed to state reasons for its decision to endorse and promote a particular language regime, a breach of the competition notice and the breach of the right to sound administration.
18 By the judgment under appeal, the General Court examined, first of all, the plea of illegality raised by the second to fourth pleas against the notice of competition at issue, the admissibility and the merits of which were disputed by the Commission.
19 As regards the admissibility of that plea of illegality, the General Court recalled, in paragraph 46 of the judgment under appeal, that, in an action for annulment brought against individual decisions, the Court of Justice has accepted that the provisions of an act of general application that constitute the basis of those decisions or that have a direct legal connection with such decisions may legitimately form the subject matter of an objection of illegality (judgment of 8 September 2020, Commission and Council v Carreras Sequeros and Others, C‑119/19 P and C‑126/19 P, EU:C:2020:676, paragraph 69 and the case-law cited).
20 As regards, in particular a notice of competition, the General Court recalled, in paragraph 47 of the judgment under appeal, by referring in that respect to the settled case-law of the Court of Justice and, more particularly, to paragraph 17 of the judgment of 11 August 1995, Commission v Noonan (C‑448/93 P, EU:C:1995:264), that, in the context of a recruitment procedure, which is a complex administrative operation composed of a series of decisions, a candidate in a competition may, in an action brought against a subsequent step taken in that process, challenge the legality of earlier steps that are closely linked to it. Citing its own case-law, the General Court likewise recalled, also in paragraph 47 of the judgment under appeal, that such a candidate must, in particular, be able challenge the legality of the competition notice pursuant to which the step in question was taken.
21 Referring to paragraphs 28 and 29 of its judgment of 14 December 2017, PB v Commission (T‑609/16, EU:T:2017:910), the General Court recalled in paragraphs 49 and 50 of the judgment under appeal, that, where the plea alleging irregularities in the notice of competition, which has not been challenged in good time, concerns the statement of reasons for the contested individual decision, the action is accepted as admissible. However, if there is no close connection between the reasoning of the contested decision and the plea of illegality raised against the notice of competition which has not been challenged in good time, that plea must be declared inadmissible.
22 In the light of the case-law referred to in paragraphs 19 to 21 of this judgment, the General Court, first, in paragraph 54 of the judgment under appeal, found that it was apparent from the ‘competency passport’ issued to Ms Calhau Correia de Paiva that, for the general competency ‘communication’, which sought to evaluate the candidate’s ability to ‘communicate clearly and precisely both orally and in writing’, she had obtained 5.5 points out of 10, which was one of the lowest assessments and scores that she obtained as regards the evaluation of her general competencies. The General Court considered that that finding of the selection board with regard to Ms Calhau Correia de Paiva as to her knowledge of French or, at the very least, as to her level of proficiency in a competency that was strongly influenced by her knowledge of that language, followed by necessary implication.
23 Secondly, in paragraphs 55 to 57 of the judgment under appeal, the General Court found that there was a close connection between Ms Calhau Correia de Paiva’s knowledge of the French language, which she had chosen as a second language, and the tests that she was required to take in it. Taking the view that knowledge of the French language is necessarily reflected in the tests aimed at evaluating the general and specific competencies, the General Court found that the likelihood of obtaining better marks in the tests is higher if the tests are conducted in the candidate’s mother tongue or a language of which the candidate has an equal command. Even though Ms Calhau Correia de Paiva had declared in her application form that her level in French is equivalent to level C2 of the CEFR, and that she completed part of her studies in Belgium and France, the General Court noted that she claimed, without being contradicted in that regard by the Commission, that she has a better command of Portuguese, which is her mother tongue, than French.
24 Thirdly, in paragraph 58 of the judgment under appeal, the General Court noted that limiting the choice of the second language of the competition to English, French and German not only affected the ability of candidates to express themselves orally or in writing, but also determined the type of keyboard that candidates could use for the purpose of carrying out the case study. The fact that Ms Calhau Correia de Paiva was required to use a type of keyboard which she was not accustomed to using because of her mother tongue would have affected the carrying out and therefore potentially the result of a test during which it is necessary to write, using a keyboard, a text of a certain length within a limited time frame.
25 Accordingly, the General Court found, in paragraph 60 of the judgment under appeal that there was a close connection between the statement of reasons for the decision at issue and the provisions of the notice of competition at issue relating to the language regime, the legality of which was disputed. Therefore, the General Court declared the plea of illegality in respect of that notice of competition to be admissible.
26 On the substance, the General Court considered that neither the reasons given in the notice of competition at issue nor the evidence adduced by the Commission in support of those justifications was capable of substantiating the restriction of the choice of second language of the competition to English, French or German. Accordingly, the General Court upheld the plea of illegality, declared that the notice of competition was inapplicable in the present case and upheld the second to fourth pleas in law of the action. Consequently, it annulled the decision at issue.
27 The Commission submits that the Court should: - set aside the judgment under appeal; - reject the second to fourth pleas in law in the action brought by Ms Calhau Correia de Paiva; - refer the case back to the General Court to rule on the first and fifth pleas in that action; and - reserve the decision as to costs.
28 Ms Calhau Correia de Paiva submits that the Court should: - primarily, declare the appeal inadmissible; - in the alternative, in the event that the Court declares the appeal admissible, to reject it as unfounded; and - order the Commission to pay the costs at both instances.
29 In support of its appeal, the Commission raises a single ground of appeal, alleging errors of law and the distortion of the evidence, which it subdivides into three parts.
30 By the first part of that ground of appeal, the Commission submits that the General Court, in paragraph 54 of the judgment under appeal, qualified the facts incorrectly when it deduced from a finding by the selection board as to Ms Calhau Correia de Paiva’s knowledge of French that there was a close connection between the statement of reasons for the decision at issue and the provisions of the notice of competition at issue relating to the language regime.
31 According to that institution, the score obtained by Ms Calhau Correia de Paiva for the general competency of communication is not decisive in this case. Even if she had obtained a score of 10/10 for that competency, namely 4.5 additional points, those points would still be insufficient since she would have needed 7.46 additional points in order to be included on the reserve list. Therefore, the selection board’s finding regarding the candidate’s knowledge of French would be insufficient to establish the close connection required by the case-law.
32 In the Commission’s opinion, the premiss that a close connection is shown by the score obtained by Ms Calhau Correia de Paiva for the general competency of communication is thus wrong. Consequently, that institution submits that the assessments on the admissibility of the plea of illegality, in paragraphs 55 to 58 of the judgment under appeal, which are based on that premiss are all affected by that error of law.
33 By the second part of the single ground of appeal, the Commission claims that the General Court erred in its characterisation of the facts and distorted the evidence when it concluded, in paragraphs 55 to 57 of the judgment under appeal, that there was a close connection between the statement of reasons for the decision at issue and the provisions of the notice of competition at issue on the basis of a criterion, which is based on the idea that it is more difficult for a candidate to sit tests in a second language than in his or her mother tongue. The General Court compared Ms Calhau Correia de Paiva’s level of Portuguese with her level of French. That institution observes that Ms Calhau Correia de Paiva does not dispute the fact that she could not take the assessment centre tests in Portuguese, but rather she disputes the fact that the choice of second language was limited to English, French and German. Consequently, the facts relied on by the General Court do not make it possible to establish that close connection.
34 In addition, the Commission submits that the General Court, in paragraphs 55 to 57 of the judgment under appeal, distorted the evidence by neglecting the fact that, in the present case, in addition to her mother tongue, the two other languages that Ms Calhau Correia de Paiva had the best command of were English and French. Thus, the limitation of the choice of second language was not of such a nature as to disadvantage her, given that two of the languages available were those of which she stated that she had the best command, to level C2. Therefore, that limitation cannot be regarded as having had a negative impact on Ms Calhau Correia de Paiva’s performance or as having a close connection with the statement of reasons for the decision at issue.
35 By the third part of the single ground of appeal, the Commission submits that the General Court, in paragraph 58 of the judgment under appeal, incorrectly characterised the facts by basing the close connection required by the case-law on the fact that Ms Calhau Correia de Paiva took the written test with a type of keyboard other than the Qwerty PT configuration to which she is accustomed.
36 The Commission argues, first, that the choice of the type of the keyboard is unrelated to the statement of reasons for the decision at issue. Second, even if it is true that a limited choice as to the types of keyboard was proposed by EPSO for the case study, that is a separate question from that of the language regime of the competition, the notice of competition at issue not having referred to the types of keyboard made available to candidates for that test. Furthermore, the fact that Ms Calhau Correia de Paiva opted for a Qwerty EN keyboard even though she chose to sit the case study in French proves that the two questions are distinct and unrelated.
37 Ms Calhau Correia de Paiva submits that the single ground of appeal seeks in reality to challenge the facts found by the General Court. Therefore, she asks the Court of Justice, primarily, to reject the ground of appeal as a whole, or each of its three parts, as being inadmissible.
38 In the alternative, Ms Calhau Correia de Paiva contests the merits of the Commission’s arguments.
39 As regards the pleas of inadmissibility raised by Ms Calhau Correia de Paiva, on the basis that the single ground of appeal seeks to contest the facts found by the General Court, it should be borne in mind that it follows from Article 256 TFEU and from the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that the General Court has exclusive jurisdiction to establish the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and to assess those facts. That assessment does not constitute, save where the evidence produced before the General Court has been distorted, a question of law which is subject, as such, to review by the Court of Justice. When the General Court has established or assessed the facts, the Court of Justice has jurisdiction, under Article 256 TFEU, to review the legal characterisation of those facts by the General Court and the legal conclusions which it has drawn from them (judgment of 4 February 2020, Uniwersytet Wrocławski and Poland v REA, C‑515/17 P and C‑561/17 P, EU:C:2020:73, paragraph 47).
40 However, contrary to Ms Calhau Correia de Paiva’s submission, the single ground of appeal seeks to challenge not the findings of fact made by the General Court but the legal characterisation of the facts and the conclusions drawn from them as to the existence of a close connection between the statement of reasons for the decision at issue and the provisions of the notice of competition at issue relating to the language regime.
41 It follows that the plea of inadmissibility raised by Ms Calhau Correia de Paiva must be rejected.
42 By the three parts of its single ground of appeal, which it is appropriate to examine together, the Commission challenges the reasons for which the General Court declared the plea of illegality of the notice of competition at issue to be admissible. More specifically, that institution submits in essence, that none of the elements set out by the General Court in paragraphs 54 to 58 of the judgment under appeal make it possible to establish that there is a close connection between the statement of reasons for the decision at issue and the provisions of the notice of competition at issue relating to the language regime applicable to it and that, consequently, the General Court committed an error of law in concluding that that plea of illegality was admissible.
43 Under Article 277 TFEU any party may, in proceedings in which an act of general application adopted by an institution, body, office or agency of the European Union is at issue, plead the grounds specified in the second paragraph of Article 263 TFEU in order to invoke before the Court of Justice of the European Union the inapplicability of that act.
44 According to the Court’s established case-law, that provision gives expression to a general principle conferring upon any party to proceedings the right to challenge incidentally, with a view to obtaining the annulment of a decision addressed to that party, the validity of acts of general application which form the legal basis of that decision (judgment of 8 September 2020, Commission and Council v Carreras Sequerosand Others, C‑119/19 P and C‑126/19 P, EU:C:2020:676, paragraph 67 and the case-law cited).
45 Since the purpose of Article 277 TFEU is not to allow a party to contest the applicability of any act of general application in support of any action whatsoever, the act the legality of which is called in question must be applicable, directly or indirectly, to the issue with which the action is concerned (judgment of 8 September 2020, Commission and Council v Carreras Sequeros and Others, C‑119/19 P and C‑126/19 P, EU:C:2020:676, paragraph 68 and the case-law cited).
46 Thus, in an action for annulment brought against individual decisions, the Court has accepted, as is clear from the case-law cited in paragraph 19 of the present judgment, that the provisions of an act of general application that constitute the basis of those decisions or that have a direct legal connection with such decisions may legitimately form the subject matter of an objection of illegality.
47 By contrast, the Court has held that an objection of illegality covering an act of general application in respect of which the individual decision being challenged does not constitute an implementing measure is inadmissible (judgment of 8 September 2020, Commission and Council v Carreras Sequeros and Others, C‑119/19 P and C‑126/19 P, EU:C:2020:676, paragraph 70 and the case-law cited).
48 As regards, more particularly, the admissibility of a plea of illegality raised against a notice of competition, it is clear from the Court’s case-law, first, that failure to challenge a notice of competition within the time limit laid down does not prevent an applicant from relying on irregularities occurring in the course of the competition, even if the origin of those irregularities may be found in the wording of the notice of competition (judgment of 8 March 1988, Sergio and Others v Commission, 64/86, 71/86 to 73/86 and 78/86, EU:C:1988:119, paragraph 15).
49 Secondly, in an action challenging subsequent acts in a recruitment procedure an applicant may rely on the unlawfulness of acts adopted at an earlier stage in that procedure provided that they are closely linked to the contested acts. In such a procedure, applicants cannot be expected to bring as many actions as the number of acts which may have affected them adversely (judgments of 31 March 1965, Ley v Commission, 12/64 and 29/64, EU:C:1965:28, p. 143, 158; of 7 April 1965, Alfieri v Parliament, 35/64, EU:C:1965:40, p. 337, 344; and of 11 August 1995, Commission v Noonan, C‑448/93 P, EU:C:1995:264, paragraph 17). That line of case-law is founded upon an analysis of the special nature of the recruitment procedure, which is a complex administrative operation composed of a series of closely linked decisions (judgment of 11 August 1995, Commission v Noonan, C‑448/93 P, EU:C:1995:264, paragraph 19).
50 Accordingly, a ground alleging an illegality in the notice of competition is admissible in so far as it concerns the reasons on which the contested decision is based (judgment of 6 July 1988, Simonella v Commission, 164/87, EU:C:1988:371, paragraph 19). The criterion of a close connection that stems from the case-law cited in paragraph 49 of this judgment therefore presupposes that the provisions of the notice of competition the illegality of which is pleaded have been applied in support of the individual decision that is the subject matter of the action for annulment.
51 That criterion is thus apparent, in essence, in the criterion of a ‘direct legal connection’, within the meaning of the case-law referred to in paragraph 46 of this judgment, which likewise presupposes that such an individual decision constitutes an implementing measure of an act of general application, the illegality of which is pleaded (see, to that effect, judgments of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 237, and of 8 September 2020, Commission and Council v Carreras Sequeros and Others, C‑119/19 P and C‑126/19 P, EU:C:2020:676, paragraph 75).
52 To that end, it is necessary to take into account the substance of the reasoning for the individual decision being challenged, and not merely the formal reasons.
53 The existence of such a connection must also be rejected where the contested provisions of the notice of competition are unconnected with the reasons underlying the individual decision being challenged.
54 In the present case, the competition EPSO/AD/293/14, like the competition in question in the case that gave rise to the judgment of 11 August 1995, Commission v Noonan (C‑448/93 P, EU:C:1995:264), is an open competition to draw up reserve lists from which to recruit officials for the Commission. Consequently, that competition is a complex administrative operation, within the meaning of the case-law referred to in paragraph 49 of the present judgment, with the result that it is appropriate to examine, as the General Court did, whether there is a close connection, within the meaning of the same case-law, between the statement of reasons for the decision at issue and the provisions of the notice of competition at issue relating to the language regime.
55 As regards the statement of reasons for the decision at issue, it is clear from paragraph 53 of the judgment under appeal, which is not disputed by the Commission, that Ms Calhau Correia de Paiva’s name was not included on the reserve list on the ground that she was not one of the candidates who obtained the highest marks in the assessment centre tests.
56 As stated in paragraph 4 of the present judgment, those tests consisted of a case study, a group exercise and a structured interview. It is also clear from the case file submitted to the Court of Justice that, by means of those tests, the general competency of communication referred to by the General Court in paragraph 54 of the judgment under appeal was in particular tested both orally, in the structured interview, and in writing, in the case study.
57 According to the Commission, the General Court wrongly characterised those facts in paragraph 54, when it found that a close connection existed between the statement of reasons for the decision at issue and provisions of the notice of competition at issue relating to the language regime, since the marks obtained by Ms Calhau Correia de Paiva for the general competency of communication were not decisive in the case at hand.
58 However, as the Advocate General observed, in essence, in points 71 and 72 of her Opinion, the Commission’s argument rests on a premiss that Ms Calhau Correia de Paiva’s name was not included on the reserve list as a result of the marks obtained for competencies other than the general competency of communication. However, as the General Court did not identify any competencies that were decisive for that non-inclusion on the reserve list, it is not for the Court of Justice, on an appeal, to carry out such an assessment of the facts, in the absence of a supposed distortion, which has not been invoked by the Commission in support of this line of argument (see, to that effect, judgment of 11 June 2020, Commission v Di Bernardo, C‑114/19 P, EU:C:2020:457, paragraph 43).
59 As regards the legal characterisation of the facts found by the General Court and the legal consequences it drew from them, the review of which, in accordance with the case-law referred to in paragraph 39 of the present judgment, is within the jurisdiction of the Court of Justice, it is appropriate to observe that, in paragraph 54 of the judgment under appeal, the General Court deduced from the marks obtained by Ms Calhau Correia de Paiva for the general competency of communication that the selection board had made, even if implicitly, a finding as to the candidate’s knowledge of the French language or, at the very least, as to the level of a competence strongly influenced by knowledge of that language. As the assessment of that general competency of communication in the context of the assessment centre tests was provided for in the provisions of the notice of competition at issue relating to the language regime, it must be held that those provisions had an effect on the statement of reasons for the decision at issue.
60 It is therefore without erring in law that the General Court, relying on the assessment made in paragraph 54 of the judgment under appeal, found, in paragraphs 60 and 61 thereof, that there was a close connection between the statement of reasons for the decision at issue and provisions of the notice of competition at issue relating to the language regime.
61 It is also without erring in law that the General Court was able to conclude that that close connection existed on the basis of the findings made in paragraph 58 of the judgment under appeal.
62 Even though that notice of competition did not refer at all to the types of keyboard offered, it must be observed that the limitation of the choice of the second language of the competition determined the equally limited choice of keyboard, which is an essential tool to enable candidates to express themselves in writing. Thus, as the General Court correctly found, that limited choice, which meant that Ms Calhau Correia de Paiva was not able to use a type of keyboard to which she was accustomed, was capable of having an impact on the result that she obtained in the case study test, during which it was necessary to write a text of a certain length within a limited time frame, and therefore on all the general competencies assessed in that test.
63 However, as the Advocate General observed, in essence, in points 82 and 83 of her Opinion, the assessments by the General Court in paragraphs 56 and 57 of the judgment under appeal are vitiated by an error of law. As, by her objection of illegality, Ms Calhau Correia de Paiva contests the limitation of choice of second language of the competition to English, French or German, the comparison between her level of French and her level of Portuguese, which is her mother tongue and which she chose as the main language for the competition, is irrelevant for establishing that there is a close connection between the statement of reasons for the decision at issue and the provisions of the notice of competition at issue relating to the language regime.
64 It must nonetheless be recalled that, if the grounds of a decision of the General Court reveal an infringement of EU law but the operative part of the judgment can be seen to be well founded on other legal grounds, that infringement is not capable of leading to the annulment of that decision and a substitution of grounds must be made (judgment of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 48 and the case-law cited).
65 In the present case, since the conclusion reached by the General Court in paragraphs 60 and 61 of the judgment under appeal is justified on the basis of the assessment made in paragraphs 54 and 58 thereof, as reflected in paragraphs 22 and 24 of the present judgment, it must therefore be held that the error of law found in paragraph 63 of this judgment has no effect on the operative part of the judgment under appeal. That assessment was sufficient for it to be established that the objection of illegality against the notice of competition at issue raised by Ms Calhau Correia de Paiva was admissible.
66 It follows from all of the foregoing considerations that the single ground of appeal and therefore the appeal itself must be dismissed as being unfounded.
67 In accordance with Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to costs. Under Article 138(1) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
68 Since Ms Calhau Correia de Paiva has applied for costs and since the Commission has been unsuccessful, the Commission must be ordered to pay, in addition to its own costs, the costs incurred by Ms Calhau Correia de Paiva in the present appeal proceedings.