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Corte di giustizia UEsentenza

Corte di giustizia UE/2016

ECLI:EU:F:2016:136
Testo integrale del provvedimento

Testo integrale del provvedimento

62011FO0142_EN

[OSCURATO:PERSONA] part

[OSCURATO:PERSONA] F‑142/11 RENV,

ACTION brought under [OSCURATO:PERSONA] 270 TFEU, applicable to the EAEC Treaty pursuant to [OSCURATO:PERSONA] 106a thereof, [OSCURATO:PERSONA], official at the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], residing in Brussels (Belgium), represented by M. Velardo, lawyer, applicant, v [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], represented by M. Bauer and E. Rebasti, acting as Agents, defendant,

[OSCURATO:PERSONA]

([OSCURATO:PERSONA]),

composed of K. Bradley, President, J. Sant’Anna and A. Kornezov (Rapporteur), Judges, Registrar: W. Hakenberg, makes the following

[OSCURATO:PERSONA]

1. By application lodged at the [OSCURATO:PERSONA] on 27 December 2011, [OSCURATO:PERSONA] brought the present action seeking, first, the annulment of the decision of 9 December 2010 by which the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] rejected his request for an upgrade to grade AD 9 after he had passed [OSCURATO:PERSONA] EPSO/AD/113/07 organised for the recruitment of heads of unit at grade AD 9 in the field of translation, inter alia those with Estonian as their main language (‘[OSCURATO:PERSONA] EPSO/AD/113/07’), and of the decision of 7 October 2011 rejecting his complaint and, secondly, an order that the [OSCURATO:PERSONA] pay compensation for the harm suffered and pay the costs.

Legal context

2. The second paragraph of [OSCURATO:PERSONA] 25 of the [OSCURATO:PERSONA] of Officials of the [OSCURATO:PERSONA] (‘the [OSCURATO:PERSONA]’), in the version applicable to the present dispute, provides: ‘Any decision relating to a specific individual which is taken under these [OSCURATO:PERSONA] shall at once be communicated in writing to the official concerned.

Any decision adversely affecting an official shall state the grounds on which it is based.’ Facts

3. The applicant, who had been a member of the auxiliary staff in the Estonian translation unit at the [OSCURATO:PERSONA] since 1 June 2004, was recruited on 1 January 2005 as a probationary official at grade AD 5, after passing [OSCURATO:PERSONA] EPSO/LA/3/03 intended to constitute a reserve list for the recruitment of assistant translators of grade [LA]

8. He was promoted to grade AD 6 on 1 January 2008.

4. In 2009, the applicant passed [OSCURATO:PERSONA] EPSO/AD/113/07. The reserve list for that competition was published on 28 April 2009.

5. On 25 June 2010, the applicant requested, under [OSCURATO:PERSONA] 90(1) of the [OSCURATO:PERSONA], to be upgraded to grade AD 9, putting forward the fact that he had passed [OSCURATO:PERSONA] EPSO/AD/113/07 corresponding to that grade and that three officials from the Polish and Slovak units, including Mr F, who, the applicant claimed, were in a situation comparable to his own, had been awarded an upgrade, in 2006 and 2007 respectively, after passing a competition for a grade higher than their own.

6. By note of 9 December 2010 the [OSCURATO:PERSONA], rejecting that request, stated that, in the absence of a provision of the [OSCURATO:PERSONA] conferring a right on officials to be automatically upgraded on the basis that they had passed a competition for a higher grade than their own, such a decision could only be adopted where it was in the interest of the service, and in the present case, given the situation in 2010 in the Estonian translation unit, that was not the case (‘the contested decision’).

7. The applicant was promoted to grade AD 7 on 1 January 2011.

8. On 8 March 2011, the applicant lodged a complaint under [OSCURATO:PERSONA] 90(2) of the [OSCURATO:PERSONA] seeking the withdrawal of the contested decision.

9. By decision of 7 October 2011, the [OSCURATO:PERSONA] rejected the complaint, arguing, first, that there was a series of differences between the applicant’s situation and that of the three officials of the Polish and Slovak units, so that the principle of equal treatment had not been infringed by reason of the upgrades granted in the past to those officials.

In addition, that institution stated that the interest of the service was not a constant element but could vary in the course of time.

Secondly, the [OSCURATO:PERSONA] stressed that passing a competition did not confer either the right to be recruited or, by analogy with that principle, the right for a successful candidate in a competition who was already an official to be upgraded in the same post.

Procedures before the [OSCURATO:PERSONA] and the [OSCURATO:PERSONA]

10. By his initial action, registered as [OSCURATO:PERSONA] F‑142/11, the applicant claimed that the [OSCURATO:PERSONA] should annul the contested decision and the [OSCURATO:PERSONA]’s subsequent decision of 7 October 2011 rejecting his complaint and order the [OSCURATO:PERSONA] to pay compensation for the harm suffered and to pay the costs.

11. [OSCURATO:PERSONA] contended in response that the [OSCURATO:PERSONA] should dismiss the action and order the applicant to pay the costs.

12. By judgment of 12 December 2013 in [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (F‑142/11, EU:F:2013:201) (‘the initial judgment’), the [OSCURATO:PERSONA] annulled the contested decision on the grounds that it had infringed the obligation to state grounds, dismissed the action as to the remainder and ordered the [OSCURATO:PERSONA] to pay all the costs.

13. By pleading lodged at the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] on 24 February 2014, the [OSCURATO:PERSONA] lodged an appeal, registered as [OSCURATO:PERSONA] T‑130/14 P, against the initial judgment, the [OSCURATO:PERSONA] ruling on that appeal by judgment of 22 October 2015 in [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (T‑130/14 P, EU:T:2015:796) (‘the judgment on appeal’).

14. [OSCURATO:PERSONA] examined the single plea, alleging, in essence, a distortion of the evidence by the [OSCURATO:PERSONA] and held that the [OSCURATO:PERSONA] had vitiated its reasoning by a material inaccuracy inasmuch as, in the initial judgment, it had always referred, so far as the documents of the parties during the administrative procedure were concerned, to the concept of ‘promotion’, whereas it was clear from the administrative file that the expression used by both the applicant in his request and complaint, and the [OSCURATO:PERSONA] in the contested decision and the decision rejecting the complaint, was ‘upgrade’.

15. Therefore, according to the [OSCURATO:PERSONA], the [OSCURATO:PERSONA]’s finding that the [OSCURATO:PERSONA] had infringed the obligation to provide a statement of grounds by omitting to explain that the situation in the case of the three officials of the Polish and Slovak units did not concern a promotion, but a measure not provided for in the [OSCURATO:PERSONA], namely an upgrade following success in a competition, was based on a false premiss, resulting from a distortion of certain items of evidence which was probably due to errors in translation.

16. In the light of those considerations, the [OSCURATO:PERSONA] upheld the appeal and set aside the initial judgment.

After finding that the state of the proceedings did not permit a decision, the [OSCURATO:PERSONA] referred the case back to the [OSCURATO:PERSONA] to rule on the three pleas raised by the applicant, and reserved the costs.

Procedure and forms of order sought in the proceedings following referral back of the case

17. The written observations of the applicant and of the [OSCURATO:PERSONA] after the referral back were received at the [OSCURATO:PERSONA] on 4 January 2016 and 18 February 2016 respectively.

18. The applicant claims that the [OSCURATO:PERSONA] should: – annul the contested decision and the subsequent decision of the [OSCURATO:PERSONA] of 7 October 2011 rejecting his complaint; – order the [OSCURATO:PERSONA] to pay compensation in respect of the damage suffered; – order the [OSCURATO:PERSONA] to pay the costs.

19. [OSCURATO:PERSONA] contends that the [OSCURATO:PERSONA] should: – dismiss the action; – order the applicant to pay the costs. [OSCURATO:PERSONA] decision to rule by way of reasoned order

20. [OSCURATO:PERSONA] 130(6) of the Rules of Procedure, where a case is referred back to the [OSCURATO:PERSONA] after being set aside, the proceedings for the examination of the case referred back are to be conducted in accordance with, inter alia, Articles 56 to 85 of those Rules.

21. [OSCURATO:PERSONA] 81 of the Rules of Procedure, where an action is, in whole or in part, manifestly inadmissible or manifestly lacking any foundation in law, the [OSCURATO:PERSONA] may, by reasoned order, give a decision on the action without taking further steps in the proceedings.

22. In this case, the [OSCURATO:PERSONA] considers that it has sufficient information from the documents before it and has decided, pursuant to [OSCURATO:PERSONA] 81 of the Rules of Procedure, to give a decision on the action by reasoned order without taking further steps in the proceedings.

The subject-matter of the action

23. According to established case-law, claims for annulment formally brought against a decision to reject a complaint have, where that decision lacks any independent content, the effect of bringing before the [OSCURATO:PERSONA] the act against which the complaint was submitted (see, to this effect, judgment of 17 January 1989 in Vainker v Parliament , 293/87, EU:C:1989:8, paragraph 8).

24. In the present case, the decision rejecting the complaint merely confirms the contested decision, inasmuch as it does not change its operative part or contain a re-examination of the complainant’s situation in the light of new elements of law or of fact, and it therefore cannot be considered to be an autonomous measure adversely affecting the applicant (see, to that effect, order of 16 June 1988 in Progoulis v Commission , 371/87, EU:C:1988:317, paragraph 17; judgments of 2 March 2004 in [OSCURATO:PERSONA] v Commission , T‑14/03, EU:T:2004:59, paragraph 54; 21 September 2011 in Adjemian and Others v Commission , T‑325/09 P, EU:T:2011:506, paragraph 32; and 21 May 2014 in Mocová v Commission , T‑347/12 P (Extracts), EU:T:2014:268, paragraph 34).

25. In those circumstances, the claims for annulment must be regarded as directed solely against the contested decision. The claims for annulment of the contested decision

26. The applicant raises three pleas in law alleging (i) infringement of the obligation to state grounds, (ii) infringement of the principle of equal treatment and, (iii) manifest error of assessment.

First plea, alleging infringement of the obligation to state grounds – Arguments of the parties

27. In his application lodged in the proceedings which gave rise to the initial judgment, the applicant submits that the explanations provided by the [OSCURATO:PERSONA] to establish that the refusal to upgrade him to grade AD 9 was not contrary to the principle of equal treatment did not enable him to understand why the upgrade was considered to be in the interest of the service in the case of the three officials he had mentioned but not in his case.

28. In his observations following the referral back of the case, the applicant states that the [OSCURATO:PERSONA] did not, in its judgment on appeal, find that there was an inadequate statement of grounds for the contested decision and therefore that the task of the [OSCURATO:PERSONA], in the present proceedings on the referral back of the case, is solely to examine the second and third pleas in law.

29. [OSCURATO:PERSONA], for its part, observed in the proceedings which gave rise to the initial judgment that both the contested decision and the decision of 7 October 2011 rejecting the complaint state that the applicant’s request for an upgrade after he had been successful in a competition must be assessed having regard to the interest of the service.

In addition, that institution submits that the factors stated in the two abovementioned decisions distinguishing the applicant’s situation from those of the three officials to whom he has compared himself were sufficiently well explained to enable the applicant to understand the [OSCURATO:PERSONA]’s position with regard to his request to be upgraded. – Findings of the [OSCURATO:PERSONA]

30. At the outset, it must be stated that the [OSCURATO:PERSONA] did not, in the judgment on appeal, find that the obligation to state grounds had not been infringed as such but observed, in paragraph 44 of that judgment, that the finding made by the [OSCURATO:PERSONA] regarding an infringement of that obligation was based on a false premiss resulting from a distortion of certain items of evidence.

Consequently, as is apparent from paragraph 53 of the judgment on appeal, it also referred back to the [OSCURATO:PERSONA] for consideration the first plea alleging infringement of the obligation to state grounds.

That plea must therefore now be examined.

31. It is settled case-law that the obligation to state grounds laid down in the second paragraph of [OSCURATO:PERSONA] 25 of the [OSCURATO:PERSONA] merely reiterates the general obligation laid down in [OSCURATO:PERSONA] 296 TFEU.

It is intended on the one hand to provide the person concerned with sufficient details to determine whether the act adversely affecting him was well founded and whether it is appropriate to bring proceedings before the [OSCURATO:PERSONA], and on the other to enable the [OSCURATO:PERSONA] to review the legality of the act.

The extent of that obligation must be determined on the basis of the specific circumstances of each case, in particular the content of the act, the nature of the grounds put forward and the interest which the addressee may have in receiving explanations (see, to that effect, judgment of 26 February 2014 in Diamantopoulos v EEAS , F‑53/13, EU:F:2014:22, paragraph 20 and the case-law cited).

32. In the present case, it must be observed, in the first place, that, as the [OSCURATO:PERSONA] explicitly held in paragraph 35 of the judgment on appeal, the [OSCURATO:PERSONA] in the contested decision first pointed out that there was no provision in the [OSCURATO:PERSONA] conferring the right upon officials who have passed a competition for a grade higher than their own to automatically receive an upgrade; it then noted that, having regard to the wide margin of discretion of the institutions in that regard, such a decision could only be made in the interest of the service; lastly, the [OSCURATO:PERSONA] concluded that the criterion in question was not satisfied so far as the applicant’s request was concerned.

In that regard, as the [OSCURATO:PERSONA] also observed in paragraph 35 of the judgment on appeal, the [OSCURATO:PERSONA] clearly stated that the situation in the Estonian translation unit, to which the applicant belonged, was different at the time of his request to that of the Polish and Slovak translation units at the time when the three other officials in those units who had passed competitions, and in comparison to whom the applicant claimed to have been treated differently, received an upgrade.

33. In the second place, it must be stated that, as the [OSCURATO:PERSONA] observed in paragraph 36 of the judgment on appeal, the [OSCURATO:PERSONA] expressly replied to the complaint alleging breach of the principle of equal treatment.

First, after reiterating the applicable case-law in that field, the [OSCURATO:PERSONA] analysed the situation of the other three officials as against whom the applicant claimed to have suffered discrimination and thus found that their situations were different to that of the applicant.

Secondly, the [OSCURATO:PERSONA] added that it followed from the case-law according to which the appointing authority is not obliged to follow up on a recruitment procedure begun under [OSCURATO:PERSONA] 29 of the [OSCURATO:PERSONA], citing the judgment of 13 February 2001 in Hirschfeldt v EEA (T‑166/00, EU:T:2001:51) in this connection, and that authority’s wide discretion, that a successful candidate in a competition does not have a right to be recruited and, by analogy, nor does an official who has passed a competition have the right to be upgraded while remaining in the same post.

Thirdly, as the [OSCURATO:PERSONA] also noted in paragraph 36 of the judgment on appeal, the [OSCURATO:PERSONA] stated that, in the present case, in the absence of a statutory provision, it had been guided by the interest of the service in considering that the situation of the language unit in which the applicant worked did not require recruitment at grade AD 9.

34. It is therefore clear, having regard to the foregoing, that the [OSCURATO:PERSONA] stated grounds to the requisite legal standard for the contested decision.

Consequently, the first plea in law must be rejected as manifestly unfounded.

The second plea in law, alleging infringement of the principle of equal treatment – Arguments of the parties

35. In the first place, the applicant states that he does not claim that his situation is comparable to that of the three officials he had mentioned initially, who received an upgrade after passing a competition, but only to that of one of them, Mr F, who, after passing a competition for a grade higher than his own, received an upgrade on 1 September 2006 to grade AD 9 while remaining within the same post at the Polish translation unit.

36. According to the applicant, his situation was comparable to that of Mr F in so far as they had both passed competitions which he describes as equivalent: they concerned the same type of post, had the same eligibility criteria and were conducted in the same way.

Furthermore, he submits that they are both translators from [OSCURATO:PERSONA] which acceded to the [OSCURATO:PERSONA] on 1 May 2004 (‘the new [OSCURATO:PERSONA]’) and were both ‘high profile individuals’ within the [OSCURATO:PERSONA].

37. In the second place, the applicant challenges the justification based on the interest of the service on which the [OSCURATO:PERSONA] has relied in the rejection of his request to be upgraded and claims, therefore, that the [OSCURATO:PERSONA] infringed the principle of equal treatment.

38. In this connection, the applicant observes that the Polish unit was fully staffed when Mr F received his upgrade on 1 September 2006 and that it was the first language unit of the new [OSCURATO:PERSONA] to have obtained 100% of its established officials in 2006.

Accordingly, contrary to what was claimed by the [OSCURATO:PERSONA], it was not necessary to adopt any measure to retain qualified translators within the Polish translation unit in 2006.

Moreover, the need to retain staff with skills in the terminology field cannot be used to support the interest of the service either, since Mr F did not follow any training course on terminology until 15 and 16 November 2012.

By contrast, that need to retain skilled staff did exist as regards the situation in the Estonian translation unit, which was characterised in 2009 and 2010 by the fact that certain posts were still filled by temporary staff and that the post of [OSCURATO:PERSONA] was vacant.

39. Moreover, the applicant submits that his upgrade was all the more justified since he had a higher profile than Mr F and inasmuch as, in contrast to the latter who was still an AD 5 when he was upgraded, the applicant, when he requested to be upgraded, was already an AD 6 and had already become head of the ‘[[OSCURATO:PERSONA] and [OSCURATO:PERSONA]] functional group’ within the Estonian translation unit, which conferred on him certain management responsibilities.

40. [OSCURATO:PERSONA] contends in reply that, first, the applicant, who has the burden of proving the facts upon which his request to be upgraded is based, has not produced, as required under the case-law, any evidence demonstrating that there was arbitrary differentiation or differentiation which is manifestly contrary to the interest of the service.

41. Secondly, that institution observes that the present plea is based on incorrect factual premisses inasmuch as the appropriate point of reference was not [OSCURATO:PERSONA] situation but that of the six other officials in administrator posts, also within new [OSCURATO:PERSONA] language units, who, between 2008 and 2011, after passing competitions at a grade higher than their own and at almost the same time as the applicant, were not granted advancement to that higher grade.

42. [OSCURATO:PERSONA] submits, thirdly, that the upgrading of an official is not based on an assessment of his comparative merits with those of other officials, which would be difficult, if not impossible, to perform in the present case in any event given the four-year lapse between the request for an upgrade by Mr F and that by the applicant.

43. Fourthly, the [OSCURATO:PERSONA] adds that in the context of upgrading, the only criterion to be taken into account is that of the interest of the service, which is an objective factor, the assessment of which is not dependant on the professional merits of the official requesting an upgrade.

It specifies in this connection that, when Mr F was upgraded in 2006, the Polish unit in which he was working was still being set up, a situation which explained the need to retain qualified translators for the purposes of ensuring consistency in particular as regards terminology, a fortiori since there was considerable competition between the institutions to recruit qualified and experienced translators.

In 2010, when the applicant submitted his request to be upgraded, the Estonian translation unit for its part was already consolidated in terms of knowledge, terminology and experience, structures were already in place and the language tools were more developed.

44. In addition, while that institution does not deny that there were staffing differences between the Polish translation unit when Mr F received an upgrade and the Estonian translation unit when the applicant was refused one, it nevertheless maintains that those differences were not as dramatic as the applicant claims.

Thus, while there were still two vacant posts in June 2010 within the Estonian translation unit, one was awarded to a member of the temporary staff in July 2010 and the second, that of [OSCURATO:PERSONA], was awarded in October 2010 to an official at grade AD 7, the applicant having been invited to attend an interview for that post but not selected for it.

Findings of the [OSCURATO:PERSONA]

45. It must be recalled at the outset that it is settled case-law that the principle of equal treatment or non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (judgment of 11 September 2007 in Lindorfer v [OSCURATO:PERSONA] , C‑227/04 P, EU:C:2007:490, paragraph 63 and the case-law cited).

46. Differences in treatment which are justified on the basis of objective and reasonable criteria and proportionate to the aim pursued by the differential treatment in question do not constitute an infringement of the principle of equal treatment (see, to that effect, judgments of 16 March 2004 in Afari v ECB , T‑11/03, EU:T:2004:77, paragraph 65, and 23 January 2007 in Chassagne v Commission , F‑43/05, EU:F:2007:14, paragraph 91).

The criterion of the interest of the service is included among the objective and reasonable criteria which may justify a difference in treatment between officials (see, to that effect, judgment of 19 October 2006 in [OSCURATO:PERSONA] v Commission , F‑59/05, EU:F:2006:105, paragraph 76).

47. It is settled case-law that the administration enjoys a wide discretion to decide on the measures to take in the interest of the service, so that the court, when reviewing compliance with the principle of non-discrimination, must confine itself to checking that the differentiation made by the institution concerned was not arbitrary or manifestly contrary to the interest of the service (see judgment of 25 February 2010 in Pleijte v Commission , F‑91/08, EU:F:2010:13, paragraph 58 and the case-law cited).

48. It is important to observe in the present case that the [OSCURATO:PERSONA], both in the contested decision and in the decision of 7 October 2011 rejecting the complaint, relied, in order to justify the refusal to upgrade the applicant, on the ground that such a measure would not have been in the interest of the service.

In particular, that institution stated that its refusal was based on it having taken account of the situation in the Estonian translation unit at the time of the applicant’s request, which was different to that in the Polish translation unit, in particular, when Mr F received an upgrade.

49. Consequently, even assuming that the applicant and Mr F were in comparable situations, it is necessary to examine whether the [OSCURATO:PERSONA] remained within the limits of its discretion when it rejected, on the grounds of the interest of the service, the applicant’s request to be upgraded after he had passed [OSCURATO:PERSONA] EPSO/AD/113/07.

50. It should be observed in the first place in this connection that, as the [OSCURATO:PERSONA] has stated, the interest of the service is not a constant element and can therefore vary in the course of time, depending on objective factors.

51. In particular, as the [OSCURATO:PERSONA] has shown, without this being refuted by the applicant, the language units of the new [OSCURATO:PERSONA] within the [OSCURATO:PERSONA] were, in 2006, scarcely two years after the accession of those [OSCURATO:PERSONA] to the [OSCURATO:PERSONA], still being set up in organisational, functional and structural terms.

There was thus an acute need, both from the perspective of improving knowledge and developing working tools, to consolidate the modus operandi of those new language units.

In addition, it is common ground that, at that time, those new translation units had to deal with considerable competition from other institutions in order to recruit and retain the best qualified and most experienced translators from those new [OSCURATO:PERSONA].

52. The interest of the new language units mentioned in the preceding paragraph, as it stood in 2006, would therefore clearly not have been the same as their interest in 2010, six years after they had been established, when they had available to them all the structures and measures required for their sound operation and development.

The interest of the service consisting in preserving the human resources of the new language units was undoubtedly less significant than in 2006.

53. In this connection, the applicant’s argument that, when Mr F submitted his request to be upgraded, the Polish translation unit, unlike the Estonian translation unit, was fully staffed cannot succeed.

The mere fact that there were two vacant posts within the Estonian translation unit in 2010, assuming it were established, is not, as such, capable of proving that it was in the interest of the service to award the applicant an upgrade given that, as already stated in the previous paragraph, the new language units were already consolidated in organisational, functional and structural terms.

54. Likewise, the applicant’s argument, which is moreover vague and unsubstantiated, derived from the fact that, after he had been successful in competition EPSO/AD/113/07, the post of [OSCURATO:PERSONA] within the Estonian translation unit remained vacant for over a year, cannot be accepted either.

It is sufficient to point out in this connection that, in any event, the [OSCURATO:PERSONA], after inviting the applicant to an interview, ultimately did not select his application for that post.

55. [OSCURATO:PERSONA] has also stated that, between 2008 and 2011, six other officials, also administrators within the new [OSCURATO:PERSONA] language units and successful candidates of a competition for a grade higher than their own, were refused an upgrade on the ground that such a measure would not have been consistent with the interest of the service.

That fact, which is not disputed by the applicant, clearly shows, if there were still any need to do so, that the assessment of the interest of the service in fact evolved within the language units concerned after the first years following the accession of the new [OSCURATO:PERSONA].

56. In the second place, as regards the argument concerning the applicant’s professional qualities, purportedly superior to those of Mr F, it is sufficient to observe that, as is apparent from paragraph 14 above, the applicant’s request giving rise to the contested decision did not seek a promotion within the meaning of [OSCURATO:PERSONA] 45 of the [OSCURATO:PERSONA].

In this connection, as the [OSCURATO:PERSONA] observed in paragraphs 35 to 38 and 40 of the judgment on appeal, given that the case concerns an upgrade following success in a competition and not a promotion, there is no need to assess the comparative merits of the officials requesting such an upgrade.

57. The same applies concerning the applicant’s argument as to [OSCURATO:PERSONA] terminology training.

In any event, it must be noted that, as is apparent from the file, Mr F followed obligatory training in that field when he joined the Polish unit and, since 25 July 2006, that is to say a few weeks before he was granted the upgrade on 1 September 2006, had been registered in the [OSCURATO:PERSONA] multilingual terminological database as a terminologist at the [OSCURATO:PERSONA].

58. It follows from all the foregoing considerations that, by refusing to grant the applicant an upgrade following his success in [OSCURATO:PERSONA] EPSO/AD/113/07, the differentiation made by the [OSCURATO:PERSONA] was not arbitrary or manifestly contrary to the interest of the service.

59. The second plea in law must therefore be rejected as manifestly lacking any foundation in law. The third plea in law, alleging manifest error of assessment – Arguments of the parties

60. The applicant claims that the [OSCURATO:PERSONA] exercised its wide discretion in a manifestly erroneous manner in rejecting the applicant’s request to be upgraded, given that, first, his professional qualifications, which were not given due consideration, are superior to those of Mr F and, secondly, the post of [OSCURATO:PERSONA] to be filled within the Estonian translation unit remained vacant for over a year.

61. [OSCURATO:PERSONA] reiterates that an upgrade is not equivalent to a promotion as provided for in [OSCURATO:PERSONA] 45 of the [OSCURATO:PERSONA], which is based on an assessment of comparative merits, and disputes the claim that the applicant’s profile was superior to [OSCURATO:PERSONA] profile. – Findings of the [OSCURATO:PERSONA]

62. It must be noted at the outset that in the third plea the applicant simply repeats the arguments which he has already raised in support of the second plea, without putting forward any supplementary evidence capable of substantiating those arguments.

63. It is therefore appropriate to refer to the considerations set out in paragraphs 50 to 58 above and, as a result, to reject that plea as manifestly unfounded.

64. Since all of the pleas have been rejected, the claims for annulment must be dismissed. The claim for compensation Arguments of the parties

65. The applicant seeks that the [OSCURATO:PERSONA] be ordered to pay him compensation of EUR 80 000 in respect of the material harm suffered and compensation of EUR 4 000 in respect of the non-material harm suffered.

66. [OSCURATO:PERSONA] contends that the claim for compensation should be dismissed. Findings of the [OSCURATO:PERSONA]

67. It is settled case-law that, where an application for compensation is closely related to an application for annulment, the rejection of the latter, either as inadmissible or as unfounded, also results in the rejection of the application for compensation (judgments of 30 September 2003 in [OSCURATO:PERSONA] v Parliament , T‑214/02, EU:T:2003:254, paragraph 43; 4 May 2010 in [OSCURATO:PERSONA] v Cedefop , F‑47/09, EU:F:2010:36, paragraph 119; and 1 July 2010 in Časta v Commission , F‑40/09, EU:F:2010:74, paragraph 94).

68. In the present case, there is a close link between the application for the annulment of the contested decision and the claim for compensation.

Inasmuch as the examination of the pleas submitted in support of the application for annulment has revealed no unlawful action by the [OSCURATO:PERSONA] and therefore, no wrongful act capable of giving rise to liability on its part, the claim for compensation must be rejected as unfounded.

69. It follows from all the foregoing that the action must be dismissed in its entirety. Costs

70. [OSCURATO:PERSONA] 101 of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title 2 of those Rules, the unsuccessful party is to bear his own costs and is ordered to pay the costs incurred by the other party if they have been applied for in the other party’s pleadings. [OSCURATO:PERSONA] 102(1) of those Rules, if equity so requires, the [OSCURATO:PERSONA] may decide that an unsuccessful party is to bear his own costs, but is to pay only part of the costs incurred by the other party, or even that he is not to be ordered to pay any costs.

Lastly, under [OSCURATO:PERSONA] 131 of the Rules of Procedure, where a case is referred back after a judgment or an order of the [OSCURATO:PERSONA] has been set aside by the [OSCURATO:PERSONA], the [OSCURATO:PERSONA] ‘shall decide on the costs relating to the proceedings instituted before it and to the proceedings on the appeal before the [OSCURATO:PERSONA]’.

71. As regards the proceedings initiated before the [OSCURATO:PERSONA], which gave rise to the initial judgment, it is apparent from the grounds set out above that the applicant has ultimately been unsuccessful in his action.

In those circumstances, in respect of the initial proceedings before the [OSCURATO:PERSONA], the applicant must bear his own costs and be ordered to pay those incurred by the [OSCURATO:PERSONA].

72. So far as concerns the costs incurred by the parties in the proceedings before the [OSCURATO:PERSONA], then in the present proceedings before the [OSCURATO:PERSONA], the parties incurred those supplementary expenses solely because of the partial annulment of the initial judgment on the grounds of a distortion of the evidence, which probably resulted, as the [OSCURATO:PERSONA] observed in paragraphs 32 and 37 of the judgment on appeal, from errors in translation.

Therefore, such expenses cannot be imputed to one of the parties rather than other.

Accordingly, the parties must bear their own costs in relation to both those sets of proceedings. [OSCURATO:PERSONA] part On those grounds,

[OSCURATO:PERSONA] ([OSCURATO:PERSONA])

hereby orders:

1. The action is dismissed.

2. [OSCURATO:PERSONA] shall bear his own costs in Cases F‑142/11, T‑130/14 P and F‑142/11 RENV respectively and pay the costs incurred by the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] in [OSCURATO:PERSONA] F‑142/11.

3. [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] shall bear its own costs in Cases T‑130/14 P and F‑142/11 RENV. Luxembourg, 24 June 2016.

Anonimizzato ex art. 52 D.Lgs. 196/2003
62011FO0142_EN [OSCURATO:PERSONA] part [OSCURATO:PERSONA] F‑142/11 RENV, ACTION brought under [OSCURATO:PERSONA] 270 TFEU, applicable to the EAEC Treaty pursuant to [OSCURATO:PERSONA] 106a thereof, [OSCURATO:PERSONA], official at the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], residing in Brussels (Belgium), represented by M. Velardo, lawyer, applicant, v [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], represented by M. Bauer and E. Rebasti, acting as Agents, defendant, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of K. Bradley, President, J. Sant’Anna and A. Kornezov (Rapporteur), Judges, Registrar: W. Hakenberg, makes the following [OSCURATO:PERSONA] 1. By application lodged at the [OSCURATO:PERSONA] on 27 December 2011, [OSCURATO:PERSONA] brought the present action seeking, first, the annulment of the decision of 9 December 2010 by which the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] rejected his request for an upgrade to grade AD 9 after he had passed [OSCURATO:PERSONA] EPSO/AD/113/07 organised for the recruitment of heads of unit at grade AD 9 in the field of translation, inter alia those with Estonian as their main language (‘[OSCURATO:PERSONA] EPSO/AD/113/07’), and of the decision of 7 October 2011 rejecting his complaint and, secondly, an order that the [OSCURATO:PERSONA] pay compensation for the harm suffered and pay the costs. Legal context 2. The second paragraph of [OSCURATO:PERSONA] 25 of the [OSCURATO:PERSONA] of Officials of the [OSCURATO:PERSONA] (‘the [OSCURATO:PERSONA]’), in the version applicable to the present dispute, provides: ‘Any decision relating to a specific individual which is taken under these [OSCURATO:PERSONA] shall at once be communicated in writing to the official concerned. Any decision adversely affecting an official shall state the grounds on which it is based.’ Facts 3. The applicant, who had been a member of the auxiliary staff in the Estonian translation unit at the [OSCURATO:PERSONA] since 1 June 2004, was recruited on 1 January 2005 as a probationary official at grade AD 5, after passing [OSCURATO:PERSONA] EPSO/LA/3/03 intended to constitute a reserve list for the recruitment of assistant translators of grade [LA] 8. He was promoted to grade AD 6 on 1 January 2008. 4. In 2009, the applicant passed [OSCURATO:PERSONA] EPSO/AD/113/07. The reserve list for that competition was published on 28 April 2009. 5. On 25 June 2010, the applicant requested, under [OSCURATO:PERSONA] 90(1) of the [OSCURATO:PERSONA], to be upgraded to grade AD 9, putting forward the fact that he had passed [OSCURATO:PERSONA] EPSO/AD/113/07 corresponding to that grade and that three officials from the Polish and Slovak units, including Mr F, who, the applicant claimed, were in a situation comparable to his own, had been awarded an upgrade, in 2006 and 2007 respectively, after passing a competition for a grade higher than their own. 6. By note of 9 December 2010 the [OSCURATO:PERSONA], rejecting that request, stated that, in the absence of a provision of the [OSCURATO:PERSONA] conferring a right on officials to be automatically upgraded on the basis that they had passed a competition for a higher grade than their own, such a decision could only be adopted where it was in the interest of the service, and in the present case, given the situation in 2010 in the Estonian translation unit, that was not the case (‘the contested decision’). 7. The applicant was promoted to grade AD 7 on 1 January 2011. 8. On 8 March 2011, the applicant lodged a complaint under [OSCURATO:PERSONA] 90(2) of the [OSCURATO:PERSONA] seeking the withdrawal of the contested decision. 9. By decision of 7 October 2011, the [OSCURATO:PERSONA] rejected the complaint, arguing, first, that there was a series of differences between the applicant’s situation and that of the three officials of the Polish and Slovak units, so that the principle of equal treatment had not been infringed by reason of the upgrades granted in the past to those officials. In addition, that institution stated that the interest of the service was not a constant element but could vary in the course of time. Secondly, the [OSCURATO:PERSONA] stressed that passing a competition did not confer either the right to be recruited or, by analogy with that principle, the right for a successful candidate in a competition who was already an official to be upgraded in the same post. Procedures before the [OSCURATO:PERSONA] and the [OSCURATO:PERSONA] 10. By his initial action, registered as [OSCURATO:PERSONA] F‑142/11, the applicant claimed that the [OSCURATO:PERSONA] should annul the contested decision and the [OSCURATO:PERSONA]’s subsequent decision of 7 October 2011 rejecting his complaint and order the [OSCURATO:PERSONA] to pay compensation for the harm suffered and to pay the costs. 11. [OSCURATO:PERSONA] contended in response that the [OSCURATO:PERSONA] should dismiss the action and order the applicant to pay the costs. 12. By judgment of 12 December 2013 in [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (F‑142/11, EU:F:2013:201) (‘the initial judgment’), the [OSCURATO:PERSONA] annulled the contested decision on the grounds that it had infringed the obligation to state grounds, dismissed the action as to the remainder and ordered the [OSCURATO:PERSONA] to pay all the costs. 13. By pleading lodged at the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] on 24 February 2014, the [OSCURATO:PERSONA] lodged an appeal, registered as [OSCURATO:PERSONA] T‑130/14 P, against the initial judgment, the [OSCURATO:PERSONA] ruling on that appeal by judgment of 22 October 2015 in [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (T‑130/14 P, EU:T:2015:796) (‘the judgment on appeal’). 14. [OSCURATO:PERSONA] examined the single plea, alleging, in essence, a distortion of the evidence by the [OSCURATO:PERSONA] and held that the [OSCURATO:PERSONA] had vitiated its reasoning by a material inaccuracy inasmuch as, in the initial judgment, it had always referred, so far as the documents of the parties during the administrative procedure were concerned, to the concept of ‘promotion’, whereas it was clear from the administrative file that the expression used by both the applicant in his request and complaint, and the [OSCURATO:PERSONA] in the contested decision and the decision rejecting the complaint, was ‘upgrade’. 15. Therefore, according to the [OSCURATO:PERSONA], the [OSCURATO:PERSONA]’s finding that the [OSCURATO:PERSONA] had infringed the obligation to provide a statement of grounds by omitting to explain that the situation in the case of the three officials of the Polish and Slovak units did not concern a promotion, but a measure not provided for in the [OSCURATO:PERSONA], namely an upgrade following success in a competition, was based on a false premiss, resulting from a distortion of certain items of evidence which was probably due to errors in translation. 16. In the light of those considerations, the [OSCURATO:PERSONA] upheld the appeal and set aside the initial judgment. After finding that the state of the proceedings did not permit a decision, the [OSCURATO:PERSONA] referred the case back to the [OSCURATO:PERSONA] to rule on the three pleas raised by the applicant, and reserved the costs. Procedure and forms of order sought in the proceedings following referral back of the case 17. The written observations of the applicant and of the [OSCURATO:PERSONA] after the referral back were received at the [OSCURATO:PERSONA] on 4 January 2016 and 18 February 2016 respectively. 18. The applicant claims that the [OSCURATO:PERSONA] should: – annul the contested decision and the subsequent decision of the [OSCURATO:PERSONA] of 7 October 2011 rejecting his complaint; – order the [OSCURATO:PERSONA] to pay compensation in respect of the damage suffered; – order the [OSCURATO:PERSONA] to pay the costs. 19. [OSCURATO:PERSONA] contends that the [OSCURATO:PERSONA] should: – dismiss the action; – order the applicant to pay the costs. [OSCURATO:PERSONA] decision to rule by way of reasoned order 20. [OSCURATO:PERSONA] 130(6) of the Rules of Procedure, where a case is referred back to the [OSCURATO:PERSONA] after being set aside, the proceedings for the examination of the case referred back are to be conducted in accordance with, inter alia, Articles 56 to 85 of those Rules. 21. [OSCURATO:PERSONA] 81 of the Rules of Procedure, where an action is, in whole or in part, manifestly inadmissible or manifestly lacking any foundation in law, the [OSCURATO:PERSONA] may, by reasoned order, give a decision on the action without taking further steps in the proceedings. 22. In this case, the [OSCURATO:PERSONA] considers that it has sufficient information from the documents before it and has decided, pursuant to [OSCURATO:PERSONA] 81 of the Rules of Procedure, to give a decision on the action by reasoned order without taking further steps in the proceedings. The subject-matter of the action 23. According to established case-law, claims for annulment formally brought against a decision to reject a complaint have, where that decision lacks any independent content, the effect of bringing before the [OSCURATO:PERSONA] the act against which the complaint was submitted (see, to this effect, judgment of 17 January 1989 in Vainker v Parliament , 293/87, EU:C:1989:8, paragraph 8). 24. In the present case, the decision rejecting the complaint merely confirms the contested decision, inasmuch as it does not change its operative part or contain a re-examination of the complainant’s situation in the light of new elements of law or of fact, and it therefore cannot be considered to be an autonomous measure adversely affecting the applicant (see, to that effect, order of 16 June 1988 in Progoulis v Commission , 371/87, EU:C:1988:317, paragraph 17; judgments of 2 March 2004 in [OSCURATO:PERSONA] v Commission , T‑14/03, EU:T:2004:59, paragraph 54; 21 September 2011 in Adjemian and Others v Commission , T‑325/09 P, EU:T:2011:506, paragraph 32; and 21 May 2014 in Mocová v Commission , T‑347/12 P (Extracts), EU:T:2014:268, paragraph 34). 25. In those circumstances, the claims for annulment must be regarded as directed solely against the contested decision. The claims for annulment of the contested decision 26. The applicant raises three pleas in law alleging (i) infringement of the obligation to state grounds, (ii) infringement of the principle of equal treatment and, (iii) manifest error of assessment. First plea, alleging infringement of the obligation to state grounds – Arguments of the parties 27. In his application lodged in the proceedings which gave rise to the initial judgment, the applicant submits that the explanations provided by the [OSCURATO:PERSONA] to establish that the refusal to upgrade him to grade AD 9 was not contrary to the principle of equal treatment did not enable him to understand why the upgrade was considered to be in the interest of the service in the case of the three officials he had mentioned but not in his case. 28. In his observations following the referral back of the case, the applicant states that the [OSCURATO:PERSONA] did not, in its judgment on appeal, find that there was an inadequate statement of grounds for the contested decision and therefore that the task of the [OSCURATO:PERSONA], in the present proceedings on the referral back of the case, is solely to examine the second and third pleas in law. 29. [OSCURATO:PERSONA], for its part, observed in the proceedings which gave rise to the initial judgment that both the contested decision and the decision of 7 October 2011 rejecting the complaint state that the applicant’s request for an upgrade after he had been successful in a competition must be assessed having regard to the interest of the service. In addition, that institution submits that the factors stated in the two abovementioned decisions distinguishing the applicant’s situation from those of the three officials to whom he has compared himself were sufficiently well explained to enable the applicant to understand the [OSCURATO:PERSONA]’s position with regard to his request to be upgraded. – Findings of the [OSCURATO:PERSONA] 30. At the outset, it must be stated that the [OSCURATO:PERSONA] did not, in the judgment on appeal, find that the obligation to state grounds had not been infringed as such but observed, in paragraph 44 of that judgment, that the finding made by the [OSCURATO:PERSONA] regarding an infringement of that obligation was based on a false premiss resulting from a distortion of certain items of evidence. Consequently, as is apparent from paragraph 53 of the judgment on appeal, it also referred back to the [OSCURATO:PERSONA] for consideration the first plea alleging infringement of the obligation to state grounds. That plea must therefore now be examined. 31. It is settled case-law that the obligation to state grounds laid down in the second paragraph of [OSCURATO:PERSONA] 25 of the [OSCURATO:PERSONA] merely reiterates the general obligation laid down in [OSCURATO:PERSONA] 296 TFEU. It is intended on the one hand to provide the person concerned with sufficient details to determine whether the act adversely affecting him was well founded and whether it is appropriate to bring proceedings before the [OSCURATO:PERSONA], and on the other to enable the [OSCURATO:PERSONA] to review the legality of the act. The extent of that obligation must be determined on the basis of the specific circumstances of each case, in particular the content of the act, the nature of the grounds put forward and the interest which the addressee may have in receiving explanations (see, to that effect, judgment of 26 February 2014 in Diamantopoulos v EEAS , F‑53/13, EU:F:2014:22, paragraph 20 and the case-law cited). 32. In the present case, it must be observed, in the first place, that, as the [OSCURATO:PERSONA] explicitly held in paragraph 35 of the judgment on appeal, the [OSCURATO:PERSONA] in the contested decision first pointed out that there was no provision in the [OSCURATO:PERSONA] conferring the right upon officials who have passed a competition for a grade higher than their own to automatically receive an upgrade; it then noted that, having regard to the wide margin of discretion of the institutions in that regard, such a decision could only be made in the interest of the service; lastly, the [OSCURATO:PERSONA] concluded that the criterion in question was not satisfied so far as the applicant’s request was concerned. In that regard, as the [OSCURATO:PERSONA] also observed in paragraph 35 of the judgment on appeal, the [OSCURATO:PERSONA] clearly stated that the situation in the Estonian translation unit, to which the applicant belonged, was different at the time of his request to that of the Polish and Slovak translation units at the time when the three other officials in those units who had passed competitions, and in comparison to whom the applicant claimed to have been treated differently, received an upgrade. 33. In the second place, it must be stated that, as the [OSCURATO:PERSONA] observed in paragraph 36 of the judgment on appeal, the [OSCURATO:PERSONA] expressly replied to the complaint alleging breach of the principle of equal treatment. First, after reiterating the applicable case-law in that field, the [OSCURATO:PERSONA] analysed the situation of the other three officials as against whom the applicant claimed to have suffered discrimination and thus found that their situations were different to that of the applicant. Secondly, the [OSCURATO:PERSONA] added that it followed from the case-law according to which the appointing authority is not obliged to follow up on a recruitment procedure begun under [OSCURATO:PERSONA] 29 of the [OSCURATO:PERSONA], citing the judgment of 13 February 2001 in Hirschfeldt v EEA (T‑166/00, EU:T:2001:51) in this connection, and that authority’s wide discretion, that a successful candidate in a competition does not have a right to be recruited and, by analogy, nor does an official who has passed a competition have the right to be upgraded while remaining in the same post. Thirdly, as the [OSCURATO:PERSONA] also noted in paragraph 36 of the judgment on appeal, the [OSCURATO:PERSONA] stated that, in the present case, in the absence of a statutory provision, it had been guided by the interest of the service in considering that the situation of the language unit in which the applicant worked did not require recruitment at grade AD 9. 34. It is therefore clear, having regard to the foregoing, that the [OSCURATO:PERSONA] stated grounds to the requisite legal standard for the contested decision. Consequently, the first plea in law must be rejected as manifestly unfounded. The second plea in law, alleging infringement of the principle of equal treatment – Arguments of the parties 35. In the first place, the applicant states that he does not claim that his situation is comparable to that of the three officials he had mentioned initially, who received an upgrade after passing a competition, but only to that of one of them, Mr F, who, after passing a competition for a grade higher than his own, received an upgrade on 1 September 2006 to grade AD 9 while remaining within the same post at the Polish translation unit. 36. According to the applicant, his situation was comparable to that of Mr F in so far as they had both passed competitions which he describes as equivalent: they concerned the same type of post, had the same eligibility criteria and were conducted in the same way. Furthermore, he submits that they are both translators from [OSCURATO:PERSONA] which acceded to the [OSCURATO:PERSONA] on 1 May 2004 (‘the new [OSCURATO:PERSONA]’) and were both ‘high profile individuals’ within the [OSCURATO:PERSONA]. 37. In the second place, the applicant challenges the justification based on the interest of the service on which the [OSCURATO:PERSONA] has relied in the rejection of his request to be upgraded and claims, therefore, that the [OSCURATO:PERSONA] infringed the principle of equal treatment. 38. In this connection, the applicant observes that the Polish unit was fully staffed when Mr F received his upgrade on 1 September 2006 and that it was the first language unit of the new [OSCURATO:PERSONA] to have obtained 100% of its established officials in 2006. Accordingly, contrary to what was claimed by the [OSCURATO:PERSONA], it was not necessary to adopt any measure to retain qualified translators within the Polish translation unit in 2006. Moreover, the need to retain staff with skills in the terminology field cannot be used to support the interest of the service either, since Mr F did not follow any training course on terminology until 15 and 16 November 2012. By contrast, that need to retain skilled staff did exist as regards the situation in the Estonian translation unit, which was characterised in 2009 and 2010 by the fact that certain posts were still filled by temporary staff and that the post of [OSCURATO:PERSONA] was vacant. 39. Moreover, the applicant submits that his upgrade was all the more justified since he had a higher profile than Mr F and inasmuch as, in contrast to the latter who was still an AD 5 when he was upgraded, the applicant, when he requested to be upgraded, was already an AD 6 and had already become head of the ‘[[OSCURATO:PERSONA] and [OSCURATO:PERSONA]] functional group’ within the Estonian translation unit, which conferred on him certain management responsibilities. 40. [OSCURATO:PERSONA] contends in reply that, first, the applicant, who has the burden of proving the facts upon which his request to be upgraded is based, has not produced, as required under the case-law, any evidence demonstrating that there was arbitrary differentiation or differentiation which is manifestly contrary to the interest of the service. 41. Secondly, that institution observes that the present plea is based on incorrect factual premisses inasmuch as the appropriate point of reference was not [OSCURATO:PERSONA] situation but that of the six other officials in administrator posts, also within new [OSCURATO:PERSONA] language units, who, between 2008 and 2011, after passing competitions at a grade higher than their own and at almost the same time as the applicant, were not granted advancement to that higher grade. 42. [OSCURATO:PERSONA] submits, thirdly, that the upgrading of an official is not based on an assessment of his comparative merits with those of other officials, which would be difficult, if not impossible, to perform in the present case in any event given the four-year lapse between the request for an upgrade by Mr F and that by the applicant. 43. Fourthly, the [OSCURATO:PERSONA] adds that in the context of upgrading, the only criterion to be taken into account is that of the interest of the service, which is an objective factor, the assessment of which is not dependant on the professional merits of the official requesting an upgrade. It specifies in this connection that, when Mr F was upgraded in 2006, the Polish unit in which he was working was still being set up, a situation which explained the need to retain qualified translators for the purposes of ensuring consistency in particular as regards terminology, a fortiori since there was considerable competition between the institutions to recruit qualified and experienced translators. In 2010, when the applicant submitted his request to be upgraded, the Estonian translation unit for its part was already consolidated in terms of knowledge, terminology and experience, structures were already in place and the language tools were more developed. 44. In addition, while that institution does not deny that there were staffing differences between the Polish translation unit when Mr F received an upgrade and the Estonian translation unit when the applicant was refused one, it nevertheless maintains that those differences were not as dramatic as the applicant claims. Thus, while there were still two vacant posts in June 2010 within the Estonian translation unit, one was awarded to a member of the temporary staff in July 2010 and the second, that of [OSCURATO:PERSONA], was awarded in October 2010 to an official at grade AD 7, the applicant having been invited to attend an interview for that post but not selected for it. Findings of the [OSCURATO:PERSONA] 45. It must be recalled at the outset that it is settled case-law that the principle of equal treatment or non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (judgment of 11 September 2007 in Lindorfer v [OSCURATO:PERSONA] , C‑227/04 P, EU:C:2007:490, paragraph 63 and the case-law cited). 46. Differences in treatment which are justified on the basis of objective and reasonable criteria and proportionate to the aim pursued by the differential treatment in question do not constitute an infringement of the principle of equal treatment (see, to that effect, judgments of 16 March 2004 in Afari v ECB , T‑11/03, EU:T:2004:77, paragraph 65, and 23 January 2007 in Chassagne v Commission , F‑43/05, EU:F:2007:14, paragraph 91). The criterion of the interest of the service is included among the objective and reasonable criteria which may justify a difference in treatment between officials (see, to that effect, judgment of 19 October 2006 in [OSCURATO:PERSONA] v Commission , F‑59/05, EU:F:2006:105, paragraph 76). 47. It is settled case-law that the administration enjoys a wide discretion to decide on the measures to take in the interest of the service, so that the court, when reviewing compliance with the principle of non-discrimination, must confine itself to checking that the differentiation made by the institution concerned was not arbitrary or manifestly contrary to the interest of the service (see judgment of 25 February 2010 in Pleijte v Commission , F‑91/08, EU:F:2010:13, paragraph 58 and the case-law cited). 48. It is important to observe in the present case that the [OSCURATO:PERSONA], both in the contested decision and in the decision of 7 October 2011 rejecting the complaint, relied, in order to justify the refusal to upgrade the applicant, on the ground that such a measure would not have been in the interest of the service. In particular, that institution stated that its refusal was based on it having taken account of the situation in the Estonian translation unit at the time of the applicant’s request, which was different to that in the Polish translation unit, in particular, when Mr F received an upgrade. 49. Consequently, even assuming that the applicant and Mr F were in comparable situations, it is necessary to examine whether the [OSCURATO:PERSONA] remained within the limits of its discretion when it rejected, on the grounds of the interest of the service, the applicant’s request to be upgraded after he had passed [OSCURATO:PERSONA] EPSO/AD/113/07. 50. It should be observed in the first place in this connection that, as the [OSCURATO:PERSONA] has stated, the interest of the service is not a constant element and can therefore vary in the course of time, depending on objective factors. 51. In particular, as the [OSCURATO:PERSONA] has shown, without this being refuted by the applicant, the language units of the new [OSCURATO:PERSONA] within the [OSCURATO:PERSONA] were, in 2006, scarcely two years after the accession of those [OSCURATO:PERSONA] to the [OSCURATO:PERSONA], still being set up in organisational, functional and structural terms. There was thus an acute need, both from the perspective of improving knowledge and developing working tools, to consolidate the modus operandi of those new language units. In addition, it is common ground that, at that time, those new translation units had to deal with considerable competition from other institutions in order to recruit and retain the best qualified and most experienced translators from those new [OSCURATO:PERSONA]. 52. The interest of the new language units mentioned in the preceding paragraph, as it stood in 2006, would therefore clearly not have been the same as their interest in 2010, six years after they had been established, when they had available to them all the structures and measures required for their sound operation and development. The interest of the service consisting in preserving the human resources of the new language units was undoubtedly less significant than in 2006. 53. In this connection, the applicant’s argument that, when Mr F submitted his request to be upgraded, the Polish translation unit, unlike the Estonian translation unit, was fully staffed cannot succeed. The mere fact that there were two vacant posts within the Estonian translation unit in 2010, assuming it were established, is not, as such, capable of proving that it was in the interest of the service to award the applicant an upgrade given that, as already stated in the previous paragraph, the new language units were already consolidated in organisational, functional and structural terms. 54. Likewise, the applicant’s argument, which is moreover vague and unsubstantiated, derived from the fact that, after he had been successful in competition EPSO/AD/113/07, the post of [OSCURATO:PERSONA] within the Estonian translation unit remained vacant for over a year, cannot be accepted either. It is sufficient to point out in this connection that, in any event, the [OSCURATO:PERSONA], after inviting the applicant to an interview, ultimately did not select his application for that post. 55. [OSCURATO:PERSONA] has also stated that, between 2008 and 2011, six other officials, also administrators within the new [OSCURATO:PERSONA] language units and successful candidates of a competition for a grade higher than their own, were refused an upgrade on the ground that such a measure would not have been consistent with the interest of the service. That fact, which is not disputed by the applicant, clearly shows, if there were still any need to do so, that the assessment of the interest of the service in fact evolved within the language units concerned after the first years following the accession of the new [OSCURATO:PERSONA]. 56. In the second place, as regards the argument concerning the applicant’s professional qualities, purportedly superior to those of Mr F, it is sufficient to observe that, as is apparent from paragraph 14 above, the applicant’s request giving rise to the contested decision did not seek a promotion within the meaning of [OSCURATO:PERSONA] 45 of the [OSCURATO:PERSONA]. In this connection, as the [OSCURATO:PERSONA] observed in paragraphs 35 to 38 and 40 of the judgment on appeal, given that the case concerns an upgrade following success in a competition and not a promotion, there is no need to assess the comparative merits of the officials requesting such an upgrade. 57. The same applies concerning the applicant’s argument as to [OSCURATO:PERSONA] terminology training. In any event, it must be noted that, as is apparent from the file, Mr F followed obligatory training in that field when he joined the Polish unit and, since 25 July 2006, that is to say a few weeks before he was granted the upgrade on 1 September 2006, had been registered in the [OSCURATO:PERSONA] multilingual terminological database as a terminologist at the [OSCURATO:PERSONA]. 58. It follows from all the foregoing considerations that, by refusing to grant the applicant an upgrade following his success in [OSCURATO:PERSONA] EPSO/AD/113/07, the differentiation made by the [OSCURATO:PERSONA] was not arbitrary or manifestly contrary to the interest of the service. 59. The second plea in law must therefore be rejected as manifestly lacking any foundation in law. The third plea in law, alleging manifest error of assessment – Arguments of the parties 60. The applicant claims that the [OSCURATO:PERSONA] exercised its wide discretion in a manifestly erroneous manner in rejecting the applicant’s request to be upgraded, given that, first, his professional qualifications, which were not given due consideration, are superior to those of Mr F and, secondly, the post of [OSCURATO:PERSONA] to be filled within the Estonian translation unit remained vacant for over a year. 61. [OSCURATO:PERSONA] reiterates that an upgrade is not equivalent to a promotion as provided for in [OSCURATO:PERSONA] 45 of the [OSCURATO:PERSONA], which is based on an assessment of comparative merits, and disputes the claim that the applicant’s profile was superior to [OSCURATO:PERSONA] profile. – Findings of the [OSCURATO:PERSONA] 62. It must be noted at the outset that in the third plea the applicant simply repeats the arguments which he has already raised in support of the second plea, without putting forward any supplementary evidence capable of substantiating those arguments. 63. It is therefore appropriate to refer to the considerations set out in paragraphs 50 to 58 above and, as a result, to reject that plea as manifestly unfounded. 64. Since all of the pleas have been rejected, the claims for annulment must be dismissed. The claim for compensation Arguments of the parties 65. The applicant seeks that the [OSCURATO:PERSONA] be ordered to pay him compensation of EUR 80 000 in respect of the material harm suffered and compensation of EUR 4 000 in respect of the non-material harm suffered. 66. [OSCURATO:PERSONA] contends that the claim for compensation should be dismissed. Findings of the [OSCURATO:PERSONA] 67. It is settled case-law that, where an application for compensation is closely related to an application for annulment, the rejection of the latter, either as inadmissible or as unfounded, also results in the rejection of the application for compensation (judgments of 30 September 2003 in [OSCURATO:PERSONA] v Parliament , T‑214/02, EU:T:2003:254, paragraph 43; 4 May 2010 in [OSCURATO:PERSONA] v Cedefop , F‑47/09, EU:F:2010:36, paragraph 119; and 1 July 2010 in Časta v Commission , F‑40/09, EU:F:2010:74, paragraph 94). 68. In the present case, there is a close link between the application for the annulment of the contested decision and the claim for compensation. Inasmuch as the examination of the pleas submitted in support of the application for annulment has revealed no unlawful action by the [OSCURATO:PERSONA] and therefore, no wrongful act capable of giving rise to liability on its part, the claim for compensation must be rejected as unfounded. 69. It follows from all the foregoing that the action must be dismissed in its entirety. Costs 70. [OSCURATO:PERSONA] 101 of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title 2 of those Rules, the unsuccessful party is to bear his own costs and is ordered to pay the costs incurred by the other party if they have been applied for in the other party’s pleadings. [OSCURATO:PERSONA] 102(1) of those Rules, if equity so requires, the [OSCURATO:PERSONA] may decide that an unsuccessful party is to bear his own costs, but is to pay only part of the costs incurred by the other party, or even that he is not to be ordered to pay any costs. Lastly, under [OSCURATO:PERSONA] 131 of the Rules of Procedure, where a case is referred back after a judgment or an order of the [OSCURATO:PERSONA] has been set aside by the [OSCURATO:PERSONA], the [OSCURATO:PERSONA] ‘shall decide on the costs relating to the proceedings instituted before it and to the proceedings on the appeal before the [OSCURATO:PERSONA]’. 71. As regards the proceedings initiated before the [OSCURATO:PERSONA], which gave rise to the initial judgment, it is apparent from the grounds set out above that the applicant has ultimately been unsuccessful in his action. In those circumstances, in respect of the initial proceedings before the [OSCURATO:PERSONA], the applicant must bear his own costs and be ordered to pay those incurred by the [OSCURATO:PERSONA]. 72. So far as concerns the costs incurred by the parties in the proceedings before the [OSCURATO:PERSONA], then in the present proceedings before the [OSCURATO:PERSONA], the parties incurred those supplementary expenses solely because of the partial annulment of the initial judgment on the grounds of a distortion of the evidence, which probably resulted, as the [OSCURATO:PERSONA] observed in paragraphs 32 and 37 of the judgment on appeal, from errors in translation. Therefore, such expenses cannot be imputed to one of the parties rather than other. Accordingly, the parties must bear their own costs in relation to both those sets of proceedings. [OSCURATO:PERSONA] part On those grounds, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders: 1. The action is dismissed. 2. [OSCURATO:PERSONA] shall bear his own costs in Cases F‑142/11, T‑130/14 P and F‑142/11 RENV respectively and pay the costs incurred by the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] in [OSCURATO:PERSONA] F‑142/11. 3. [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] shall bear its own costs in Cases T‑130/14 P and F‑142/11 RENV. Luxembourg, 24 June 2016.
Sentenza Corte di giustizia UE/2016 — Fons Iuris — Fons Iuris