OY v Commission (Civil service - Recruitment - Judgment) [2018] EUECJ T-605/16 (16 October 2018)

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(Civil service — Members of the contract staff — Article 3b of the CEOS — Recruitment — Classification in grade — Account taken of professional experience — General Implementing Provisions for Article 79(2) of the CEOS)

OY, member of the contract staff of the European Commission, represented by N. Flandin and S. Rodrigues, lawyers,

European Commission, represented by G. Berscheid, C. Berardis-Kayser and L. Radu Bouyon, acting as Agents,

APPLICATION pursuant to Article 270 TFEU and seeking, first, annulment of the decision of the Commission of 2 October 2015 rejecting the applicant’s request for a review of her classification in function group IV, grade 15, step 1 and, second, in so far as necessary, annulment of the decision of the AECE of 29 March 2016 rejecting the applicant’s complaint,

composed of H. Kanninen, President, L. Calvo-Sotelo Ibáñez-Martín (Rapporteur) and I. Reine, Judges,

Having regard to the written part of the procedure and further to the hearing on 13 June 2017

1 On 26 March 2015, the European Commission offered to recruit the applicant, OY, as a contractual agent under Article 3b of the Conditions of employment of other servants of the European Union (‘the CEOS’) and to assign her to the Directorate-General (DG) for International Cooperation and Development; it was envisaged that she would be classified in function group IV, grade 15, step 1, in application of Commission Decision C(2011) 1264 final of 2 March 2011 on the general provisions for implementing Article 79(2) of the CEOS, governing the conditions of employment of contract staff employed by the Commission under the terms of Articles 3a and 3b of the CEOS (‘the GIP’).

2 As of the preliminary exchanges of communication, the applicant contested the offer of classification at grade 15 on the ground that the Commission had not taken into account the professional experience which she had acquired from 1 November 2007 to 1 July 2009 as Managing Director of a Sudanese undertaking, Safari Sudan. As evidence of that post, on 15 March 2015 the applicant communicated to the Commission a testimonial drawn up on 10 March 2015 by Mr G, the former Chief Executive Officer of Safari Sudan, and a letter of introduction that he had sent the director of a Sudanese museum on 20 June 2009.

3 The applicant accepted the post offered to her on 30 March 2015 and continued to engage in email correspondence with the Commission throughout April 2015 concerning the experience she had acquired in Safari Sudan. In the course of that exchange, on 7 April 2015 she communicated to the Commission a note which she had drafted in order to justify the relevance of that experience (‘the note’). However, after noticing that Mr G had married the applicant on 21 February 2009, the Commission considered it possible that Safari Sudan was a family business and assimilated the applicant’s situation to that of a self-employed worker. As a result, the Commission suggested that the applicant supply it with tax returns to prove that she had indeed exercised a paid activity. In the situation, nonetheless, that the applicant had been employed by the undertaking as an employed worker, the Commission requested her also to communicate tax returns proving that the salary was declared, payslips or any official document capable of proving her status. In any event, the Commission considered that the tasks allegedly carried out by the applicant within Safari Sudan were not related to those of the positions offered within the institution. The applicant, for her part, unsuccessfully submitted that she had been an employed worker and claimed that Sudan was a developing country, that she had been paid in cash, in accordance with Sudanese law, and that no tax had been demanded from her, since, she assumed, it was deducted from her wages at source.

4 The applicant took up her post on 1 May 2015 and was classified in function group IV, grade 15, step 1. It is apparent from her job description that she was assigned to the ‘Financing for Development’ department and that, in that capacity, she was responsible for ‘contribut[ing] to policy formulation on financing for development’ and to ‘preparing the [position of the] Commission and the EU as a whole … for various [United Nations] processes … post-2015’.

5 On 22 July 2015, the applicant requested a review of her classification, with a view to being placed in grade 16, on the basis of her experience with Safari Sudan. In support of her request, the applicant enclosed three documents. The first two documents were two testimonials stating that the applicant had actually been employed as Managing Director by Safari Sudan. The first testimonial was dated 2 June 2015 and was from Mr A, who presented himself as a former shareholder and co-owner of Safari Sudan. The second testimonial was dated 13 July 2015 and had been drafted by Ms D, signed in her capacity as Managing Director of a German tour operator. The third document was an extract from the Sudanese Labour Act, which provided that wages in Sudan were to be paid in cash.

6 By letter of 2 October 2015, DG Human Resources and Security informed the applicant that, in the light of the documents forwarded, it had been decided that the professional experience which she had obtained at Safari Sudan could not be taken into account. That letter pointed out that, under the GIP, professional experience had to be duly substantiated and related to one of the Commission’s areas of activity. Consequently, DG Human Resources and Security confirmed the applicant’s classification in function group IV, grade 15, step 1.

7 On 4 January 2016, the applicant lodged a complaint with the Authority empowered to conclude contracts of employment (‘AECE’) against the decision of 2 October 2015 refusing to reconsider her classification in grade, in accordance with Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) which, pursuant to Article 117 of the CEOS, is applicable to contractual agents.

8 On 29 March 2016, the AECE rejected the applicant’s complaint. The AECE relied, essentially, on the fact that the documents which she had supplied did not prove to the requisite standard the duties which she claimed to have carried out with Safari Sudan. In essence, the AECE considered that the various documents filed provided no detail either of her responsibilities or of the tasks which she had actually carried out; that, in addition, Mr G’s testimonial of 10 March 2015 had been drawn up after the time to which it related, at a point at which he was already her husband; that the undertaking’s activities as a tour operator were not related to the applicant’s duties within DG International Cooperation and Development and that the note had been taken into account, but that the administration had not endorsed its content. Furthermore, the AECE emphasised that, under Article 3(1) of Annex IV to the GIP, professional experience, on which classification in grade depended, was defined as any paid activity and that for that purpose agents were required to submit proof of the remuneration received. In that regard, the AECE observed that the applicant had been unable to provide such proof and that while she had relied on the difficulties associated with the Sudanese context and the fact that the undertaking had ceased trading, those difficulties did not relieve her of the burden of proof.

9 By application lodged at the Registry of the European Union Civil Service Tribunal on 11 July 2016, the applicant brought the present action. The case was registered under number F‑35/16.

– annul the decision of 2 October 2015 rejecting her request for reconsideration of her classification in function group IV, grade 15, step 1, and also, in so far as necessary, the decision rejecting her complaint;

11 By document lodged at the Registry of the Civil Service Tribunal on 20 July 2016, the applicant produced a new item of evidence in support of her action.

12 Pursuant to Article 3 of Regulation (EU, Euratom) 2016/1192 of the European Parliament and of the Council of 6 July 2016 on the transfer to the General Court of jurisdiction at first instance in disputes between the European Union and its servants (OJ 2016 L 200, p. 137), the present case was transferred to the General Court as it stood on 31 August 2016. The case was accordingly registered under number T‑605/16 and was assigned to the Fourth Chamber.

13 In its statement of defence, lodged at the Court Registry on 30 August 2016, the Commission contends that the Court should:

14 By letter from the Registry of the General Court dated 29 November 2016, that Court invited the Commission to state its view on the new item of evidence produced by the applicant on 20 July 2016. The Commission lodged its observations on that item of evidence on 13 December 2016.

15 Since, on the basis of Article 83(1) of the Rules of Procedure of the General Court, a second exchange of pleadings had not been deemed necessary, the applicant, by letter lodged on 29 December 2016, sought leave to supplement her file in application of Article 83(2) of those Rules of Procedure and, specifically, to be able to lodge new documents in response to the defence, in which the Commission contended that the application was not sufficiently substantiated.

16 By letter from the Court Registry dated 21 February 2017, the applicant was informed, first, that the Court had refused her request on the basis of Article 83(2) of the Rules of Procedure and, secondly, that, on the basis of Article 106 of the Rules of Procedure, she could request a hearing, which she did by a document lodged with the Court Registry on 20 March 2017.

17 On 13 June 2017, just before the hearing, the applicant submitted six annexes with the reference numbers C 19 to C 24 to the Court. Since the applicant had stated that Annexes C 19, C 20 and C 24 were already included in the Court’s file, only Annexes C 21, C 22 and C 23 were included in the file at the hearing, pending a decision on their admissibility, and the Commission lodged observations regarding those annexes, in regularised form, on 31 July 2017.

18 By order of 6 November 2017 the Court decided to order the reopening of the oral procedure, in accordance with Article 113 of the Rules of Procedure.

19 By letter from the Court Registry dated 9 November 2017, the Court, by way of a measure of organisation of procedure, put a question to the applicant regarding the new items of evidence which she had submitted just before the hearing. The applicant replied within the time limit which she had been set. Following that reply, Annexes C 19, C 20 and C 24 were included in the case file pending a decision on their admissibility.

20 In the first place, it must be observed that the applicant lodged in support of her application, as Annex A 3, the employment contract by which she claims she was linked to Safari Sudan.

21 In response to a question put by the Court at the hearing, the Commission contended that that document had to be excluded from the proceedings on the ground that it was inadmissible.

22 In the present case, as the Commission observes, the applicant did not communicate to it the employment contract at issue either at the time her recruitment file was compiled, or at the time of her request for reconsideration of her classification, or at the time of her complaint.

23 It must be recalled that the legality of a measure must, in principle, be examined on the basis of the elements of fact and of law mentioned by the parties during the administrative procedure and/or set out in that measure. Otherwise, the parallelism between the (earlier) administrative procedure and the (subsequent) judicial review proceedings, which is based on identity of facts and law, would be compromised (judgment of 27 September 2006, Roquette Frères v Commission, T‑322/01, EU:T:2006:267, paragraph 325). However, review by the Court by reference to the elements of fact and of law existing on the date of adoption of the contested decision is without prejudice to the possibility afforded to the parties, in the exercise of their rights of defence, of supplementing them by evidence established after that date, but for the specific purpose of contesting or defending that measure (see judgment of 27 September 2006, GlaxoSmithKline Services v Commission, T‑168/01, EU:T:2006:265, paragraph 58 and the case-law cited).

24 At the hearing, the applicant explained that, at the time of the administrative procedure, her files were in a boat bound for Belgium and that she therefore had no access to them. However, it must be observed that it was the applicant herself who took the decision, as early as 22 July 2015, to request reconsideration of her classification at grade 15 even though, according to her statements, she did not yet have at her disposal all the documents capable of substantiating her arguments. Moreover, it is also apparent from the proceedings that the applicant recovered her files in December 2015, so that she was in a position to communicate her employment contract with Safari Sudan prior to the adoption of the decision rejecting her complaint on 29 March 2016. Lastly, by email of 27 April 2016, the applicant informed the Commission that she had transferred to it all the documents in support of her request for reclassification, without mentioning her employment contract with Safari Sudan.

25 In those circumstances, Annex A3 to the application must be excluded from the proceedings as inadmissible.

26 As regards, in the second place, the new item of evidence lodged by the applicant on 20 July 2016, the Commission considered it to be inadmissible in its observations of 13 December 2016 (paragraphs 11 and 14 above).

27 It must however be stated that the new item of evidence in question is, as the applicant described it in the document lodged on 20 July 2016, an email which she received from her bank on 11 July 2016, that is to say the date on which the application was lodged at the Registry of the Civil Service Tribunal, and that she intends to use to demonstrate the impossibility of adducing evidence of account movements on bank accounts in Sudan. Accordingly, it must be accepted to be admissible.

28 In the third place, it must be observed that on 21 February 2017, the Court refused the applicant’s request dated 29 December 2016 seeking authorisation to supplement the case file so she could lodge new items of evidence in response to the defence.

29 In her letter of 29 December 2016, the applicant did not set out the circumstances which prevented her from producing at the stage of the application the documents which she was requesting permission to lodge during the proceedings and she thereby did not comply with the obligation to state reasons imposed by Article 83(2) of the Rules of Procedure.

30 Moreover, it must be stated that, as of April 2015, the Commission had drawn to the applicant’s notice the fact that the request for reconsideration of her classification in grade was not supported by sufficient evidence. The decision rejecting the applicant’s complaint also mentioned the insufficiency of the documents submitted.

31 As regards, in the fourth place, the six annexes with reference numbers C 19 to C 24 submitted by the applicant just before the hearing, it must be observed that, in a letter of 25 April 2017, the Tribunal, by way of measures of organisation of procedure, requested the applicant ‘to specify at the hearing the date on which she [had] communicated to the Commission [the note] [and] the documents drafted by Mr [G] on 20 June 2009 … and on 10 March 2015’.

32 It must also be recalled that, under Article 85(2) and (3) of those Rules, there must be a reason given for the production or offering of further evidence. Specifically, it is apparent from a reading of Article 85(2) in conjunction with Article 85(3) of the Rules of Procedure that the admissibility of new evidence lodged after the closure of the written part of the procedure is conditional on the existence of an exceptional situation which is duly justified by the party intending to submit such evidence.

33 In the present case, reasons have not been provided to the requisite legal standard for the production of Annexes C 19 to C 22 and C 24 just before the hearing, as required under Article 85(3) of the Rules of Procedure. At the hearing, counsel for the applicant merely claimed that those documents were important and necessary to substantiate his answers to the questions put by the Court. However, by its measures of organisation of procedure dated 25 April 2017, the Court simply requested the applicant to specify at the hearing the date on which she had communicated to the Commission the note plus the letter of introduction dated 20 June 2009 and the testimonial dated 10 March 2015 drafted by Mr G (paragraph 2 above). The annexes concerned do not prove the date of any of those communications to DG Human Resources and Security, which was responsible for setting the applicant’s classification in grade. As already stated in paragraph 24 above, the applicant may not rely either on the fact that, at the material time, her files were in a boat bound for Belgium. Lastly, at the hearing counsel for the applicant also explained the lodging out of time of those annexes by the fact that the applicant had not given them to him beforehand. Nevertheless, that fact, which falls within the ambit of the applicant’s relationship with her counsel, is not such as to justify those annexes being lodged out of time. Annexes C 19 to C 22 and C 24 must therefore be excluded from the proceedings as inadmissible.

34 Annex C 23, for its part, consists of a letter from the applicant to DG Human Resources and Security dated 15 March 2015, which was not lodged prior to the hearing. It proves that the applicant communicated to DG Human Resources and Security on that date the letter of introduction dated 20 June 2009 and the testimonial dated 10 March 2015 drafted by Mr G. Although the Court did not formally request the production of that annex, it substantiates the applicant’s reply to the measures of organisation of procedure ordered by the Court on 10 March 2017. The lodging of Annex C 23 just before the hearing can therefore be regarded as justified, such that it must be held admissible.

35 Having regard to all the foregoing, only the new evidence lodged by the applicant on 20 July 2016 and Annex C 23, produced just before the hearing, are admissible.

36 The applicant is seeking, first, annulment of the decision of 2 October 2015 confirming her classification in function group IV, grade 15, step 1, and, second, ‘so far as necessary’, annulment of the decision rejecting her complaint against that decision.

37 It must be recalled in this connection that it is settled case-law that the administrative complaint and its rejection, whether express or implied, constitute an integral part of a complex procedure and are no more than a precondition for bringing the matter before the judicature. Since, under the system laid down in the Staff Regulations, the person concerned must submit a complaint against the decision which he is contesting, the subsequent action is held admissible whether it is directed against the initial decision alone, the decision rejecting the complaint or both, provided that the complaint and the appeal were lodged within the periods prescribed by Articles 90 and 91 of the Staff Regulations. However, in accordance with the principle of economy of procedure, the judicature may decide that it is not appropriate to rule specifically on the claims directed against the decision rejecting the complaint where it finds that those claims have no independent content and are, in reality, the same as those directed against the decision against which the complaint has been made (see, to that effect, judgment of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraphs 7 and 8). That may, in particular, be the case where it finds that the decision rejecting the complaint is purely confirmatory of the decision which is the subject of the complaint and that, therefore, the annulment of the rejection of the complaint would have no effect on the legal position of the person concerned distinct from that which follows from the annulment of the initial decision (judgment of 21 September 2011, Adjemian and Others v Commission, T‑325/09 P, EU:T:2011:506, paragraph 33).

38 In the present case, the decision rejecting the complaint merely confirms the decision of 2 October 2015, which itself confirms the classification of the applicant in function group IV, at grade 15, step 1. In accordance with the case-law (judgment of 21 September 2011, Adjemian and Others v Commission, T‑325/09 P, EU:T:2011:506, paragraph 32), it must be observed that the rejection of the complaint neither contains a re-examination of the applicant’s situation in the light of new elements of law or of fact, nor changes the abovementioned decision of 2 October 2015. The claims seeking annulment of the decision rejecting the complaint are thus, as such, devoid of independent content and in fact are indistinguishable from the claims for annulment of the decision dated 2 October 2015. Accordingly, the claims for annulment must be regarded as directed only against the latter decision (‘the contested decision’).

39 That said, in view of the evolving nature of the pre-litigation procedure, the statement of reasons contained in the decision rejecting a complaint must also be taken into account in the review of legality of the contested decision, since that statement of reasons is deemed to supplement the statement of reasons for that decision (see, to that effect, judgment of 9 December 2009, Commission v Birkhoff, T‑377/08 P, EU:T:2009:485, paragraph 59).

40 The applicant puts forward four pleas in law in support of her action. The first plea alleges manifest errors of assessment and breach of Article 3(2) of Annex IV to the GIP. The second plea alleges breach of the obligation to state reasons. The third plea is derived from a breach of the principles of equal treatment and non-discrimination, and also a breach of Article 3(2) of Annex IV to the GIP. The fourth plea is based on breach of the principle of proportionality.

The first plea, alleging manifest errors of assessment and breach of Article 3(2) of Annex IV to the GIP

41 The applicant maintains that the AECE committed a manifest error of assessment in considering that the note which she had communicated to DG Human Resources and Security was not sufficient to substantiate her professional experience with Safari Sudan. According to that note, the applicant’s tasks included the development of a socially responsible tourism undertaking and of accommodation infrastructures through the restoration of traditional guesthouses, the construction and maintenance of air strips in northern Sudan, the development of air charter traffic between Aswan (Egypt) and Dongola (Sudan),the management of administrative, financial and logistic operations between Aswan and Khartoum (Sudan), the recruitment and training of Sudanese employees, the promotion of the history of Sudan and the development of marketing activities presenting Sudan as a tourism destination.

42 In addition, the applicant submits, the note showed that her work at Safari Sudan was relevant to the tasks which she was to carry out at the Commission. In this connection, Safari Sudan was a public-private partnership, which is supported by DG International Cooperation and Development since the private sector is an effective actor for development, in particular in terms of promoting and delivering sustainable development action. The applicant also maintains that public-private partnerships and the development of the tourism sector are regarded by the Commission as central and key elements of its Horizon 2030 Development Agenda. Lastly, the applicant claims that a member of DG International Cooperation and Development had found that, in the light of her description and her activities within Safari Sudan, that experience was relevant and useful for the position in question.

43 In that context, the applicant maintains that, according to the case-law, the administration must, first, examine, where appropriate, the specific tasks performed by the newly recruited staff member in his previous post in order to determine the level of skills required for those tasks and, secondly, analyse in concreto whether, through that post, the staff member acquired not professional experience ‘of the same value’ as the post offered but professional experience which is ‘adapted’ to that post. In the present case, she submits, the AECE did not examine the note in concreto.

44 The applicant also disputes the AECE’s assertion that the other documents which she had supplied did not constitute plausible evidence of her duties and the tasks which she performed. The applicant thereby refers, first, to the letter of introduction from Mr G dated 20 June 2009, secondly, to three testimonials drafted, respectively, by Mr G on 10 March 2015, Mr A on 2 June 2015 and Ms D on 13 July 2015 (see paragraph 5 above) and, thirdly, to the catalogue of tours offered by Safari Sudan. Those documents, in her submission, confirm that she held the post at Safari Sudan and explain her responsibilities. In addition, they are no different from other testimonials from previous employers, including the United Nations (UN) and the New Zealand Ministry of Primary Industries, which were accepted as proof of her professional experience.

45 The Commission disputes those arguments and submits that the plea is unfounded.

46 It must be recalled that Article 89(1) of the CEOS provides that a member of the contract staff referred to in Article 3b thereof, such as the applicant, ‘may be recruited to any grade of function groups II, III and IV as referred to in Article 80, taking into account the qualifications and experience of the person … concerned’. Article 93 of the CEOS, for its part, lays down the scale of the basic salaries of members of the contract staff and Article 79(2) of the CEOS provides that the AECE is to ‘adopt general implementing provisions governing the use of contract staff in accordance with Article 110 of the Staff Regulations, as necessary’.

47 Article 5(1) of the GIP, with the heading ‘Grading’, provides as follows:

‘1. The grading of contract staff and auxiliary contract staff shall take account of the nature and length of their experience. For the purposes of grading, experience covers both qualifications and professional experience, calculated in accordance with the procedures set out in Annex IV.’

48 Under Article 1(2) of Annex IV to the GIP, ‘[a]ll the supporting documents submitted by the candidate are liable to be subjected to a detailed examination by the departments responsible’.

‘1. “Professional experience” shall be taken to mean any paid activity. …

2. To be taken into account for grading purposes, professional experience must be duly substantiated and be related to one of the Commission’s areas of activity.’

50 It must be observed that Article 89(1) of the CEOS renders the classification in grade of members of the contract staff referred to in Article 3b of the CEOS dependent on the experience of the persons concerned, without providing any further details in this connection. Article 79(2) of the CEOS, for its part, provides that each institution is to adopt, as necessary, general implementing provisions governing the use of contract staff. It follows that the institutions as a whole, including the Commission, must be granted a broad discretion in fixing criteria used to ascertain whether the previous professional experience of a member of the contract staff may be taken into account for the purposes of their classification in grade (see, to that effect, judgment of 28 October 2010, Fares v Commission, F‑6/09, EU:F:2010:136, paragraph 38).

51 As a result, having regard to Article 89(1) and Article 79(2) of the CEOS, the Commission was entitled, under Articles 1 and 3 of Annex IV to the GIP, to set the classification in grade of members of the contract staff recruited under Article 3b of the CEOS according to the nature and the length of their professional experience. Specifically, it was permissible for the Commission to hold that such experience had to consist of a paid activity, which the applicant moreover does not dispute, that it had to be duly substantiated by documents which could stand up to a detailed examination and, lastly, that it had to be related to one of the Commission’s areas of activity.

52 That said, the word ‘activity’ used in Article 3 of Annex IV to the GIP to refer to the professional experience of members of staff is very general and does not have any formal connotations. Thus, since the purpose of that article is to regulate how professional experience is taken into account, the term ‘activity’ must be interpreted in accordance with its everyday meaning, that is to say as referring to ‘that which is done’ by a person and, consequently, in a professional context, as referring to the content of the tasks performed in practice by that person. Therefore, in the absence of any information in the text to the contrary, by the use of the term ‘activity’ Article 3 of Annex IV to the GIP implies not only an assessment of any description of the post previously filled by the member of the contract staff but also, if necessary, in connection with the detailed examination mentioned in Article 1(2) of that annex, an examination in concreto of the tasks actually performed by the member of staff in that post (see, to that effect, judgment of 28 October 2010, Fares v Commission, F‑6/09, EU:F:2010:136, paragraphs 62 and 63). Within the framework thus defined, the AECE has broad discretion.

53 Nevertheless, an institution’s exercise of its broad discretion as regards recognition of professional experience must be in compliance with all the relevant provisions and must be free of any manifest error of assessment. Thus, in that context, review by the court must be limited to verifying that the administration has not erred in law and has not exercised its discretion in a manifestly incorrect manner (judgment of 28 October 2010, Fares v Commission, F‑6/09, EU:F:2010:136, paragraphs 39 and 40).

54 As regards the manifest errors of assessment alleged by the applicant, it must further be recalled that, for such an error to be capable of justifying the annulment of a decision, the evidence, which it is for the applicant to adduce, must be sufficient to render the factual assessments accepted by the administration implausible (see, to that effect, judgment of 9 September 2011, France v Commission, T‑257/07, EU:T:2011:444, paragraph 86). In other words, a plea alleging a manifest error must be rejected if, despite the evidence adduced by the applicant, the challenged assessment may be accepted as being still true or valid (judgment of 12 February 2014, Bodson and Others v EIB, F‑73/12, EU:F:2014:16, paragraph 79).

55 In the present case, since Article 3(2) of Annex IV to the GIP provides that ‘professional experience must be duly substantiated’, it was open to the administration, without committing any manifest error in assessing the probative force of the note, not to accept the claims made therein regarding the fact that the applicant had acquired professional experience with Safari Sudan since she was herself the author of that note.

56 Likewise, it was open to the AECE to find, without committing any manifest error, that the letter of introduction from Mr G dated 20 June 2009 and his testimonial of 10 March 2015 did not constitute sufficient evidence of the applicant’s activities inasmuch as those documents were from her spouse. It must also be noted that a letter of introduction, such as that dated 20 June 2009, is different in character to testimonial certifying employment. That letter moreover describes the applicant’s activity as that of organising tours. In addition, while that letter states that the applicant’s work entailed the development of tourism in the north of Sudan, in partnership with the Ministry of Tourism, Antiquities and Wildlife, with special emphasis on developing infrastructure and generating local employment, it does not provide information in more detail on her responsibilities and tasks which could be related to the post of an employee responsible, within DG International Cooperation and Development, for policy on financing for development and for the preparation of the Commission positions in connection with UN processes. Lastly, the testimonial dated 10 March 2015 is even briefer and does not contain any description of the applicant’s activities.

57 In the same way, it was open to the AECE to find that the testimonial from Ms D dated 13 July 2015 did not constitute sufficient evidence that the applicant had exercised a paid activity related to the tasks assigned to her by the Commission. That testimonial merely introduces her as the Managing Director of Safari Sudan and the organiser of air and land tours between Aswan and Khartoum. Likewise, the testimonial from Mr A dated 2 June 2015 does not give any description of the actual character of the applicant’s tasks.

58 The catalogue of tours offered by Safari Sudan, for its part, presents the undertaking exclusively as a supplier of tourism services.

59 Furthermore, without it being necessary to ascertain whether the activities of Safari Sudan took place in the context of a public-private partnership, the Commission submitted at the hearing, without that contention being legitimately contested, that support of such partnerships in Sudan was not part of its priorities owing to the current situation in that country. In addition, the lone view of an official in DG International Cooperation and Development considering the experience which the applicant claims to have gained within Safari Sudan to be useful and relevant cannot suffice to render implausible the AECE’s assessment that the applicant had not provided sufficient evidence as regards the truth of the remunerated activities which she claims to have carried out within that undertaking.

60 Lastly, as regards the applicant’s claim that the Commission accepted as evidence of her professional experience documents from the UN and the New Zealand Ministry of Primary Industries which were similar to those she had lodged in support of her experience with Safari Sudan, it must be stated that those documents were issued by official organisations and that they attested to two posts in an administration. They cannot therefore be compared to testimonials drafted by private individuals, especially by the applicant’s own spouse, regarding a post in an undertaking active in the tourism sector.

62 The applicant takes issue with the AECE for having merely stated that it had ‘duly taken’ her note ‘into account’, without giving, clearly and unequivocally, the reasons why it had discounted that note.

64 It must be observed that, in the rejection of the complaint, the AECE reiterated the contents of Article 3(2) of Annex IV to the GIP under which professional experience ‘must be duly substantiated’ and inferred from this that the tasks previously carried out could be the subject of an examination which was not restricted merely to the description of the previous post. It also referred to the case-law according to which the provisions giving rise to financial entitlements, as is the case in the present instance, must be interpreted strictly. Lastly, inasmuch as the applicant had observed in her complaint that the note had not been contested and that she therefore assumed that it had been accepted, the AECE replied that the note had indeed been taken into account, but that did not mean that the administration had accepted the claims made therein.

65 It follows from settled case-law that the reasons given for a measure adversely affecting a person are sufficient if it was adopted in circumstances known to that person which enable him to understand the scope of the measure concerning him (see judgment of 8 June 2011, Commission v Marcuccio, T‑20/09 P, EU:T:2011:257, paragraph 68 and the case-law cited).

66 Thus, since the applicant obviously knew that she had drafted the note herself, she could not fail to be aware that it was of little, if not no, probative force, in the light of the obligation to duly substantiate any professional experience within Safari Sudan. In those circumstances, the AECE did not fail to comply with its duty to state reasons.

The third plea, alleging breach of the principles of equal treatment and non-discrimination, and also a breach of Article 3(2) of Annex IV to the GIP

68 The applicant takes issue with the AECE for having considered that the probative value of the testimonial drafted by Mr G on 10 March 2015 was ‘weakened’ by the fact that he was her spouse. She submits that the AECE thus breached the principles of equal treatment of and non-discrimination between married and unmarried persons in so far as it failed to put forward any overriding general reason that would justify the unfavourable treatment which she received. The fact that Mr G is married to her does not alter the fact that he attested to her responsibilities in his capacity as her former employer and that he was the only person in Safari Sudan legally authorised to draw up such testimonial. Moreover, she submits, to reduce the probative force of the testimonial issued by Mr G on the ground that he married the applicant is to infringe Article 3(2) of Annex IV to the GIP, since that provision does not exclude items of evidence drawn up by spouses.

69 The Commission disputes those arguments and is of the opinion that the plea is unfounded.

70 According to the case-law, a breach of the principle of equal treatment, applicable to the law relating to the employment of EU officials, occurs when two categories of person whose factual and legal circumstances disclose no essential difference are treated differently and that difference in treatment is not objectively justified (see, to that effect, judgment of 22 December 2008, Centeno Mediavilla and Others v Commission, C‑443/07 P, EU:C:2008:767, paragraph 76).

71 Specifically, a breach of the principle of equal treatment as a result of different treatment presumes that the situations concerned are comparable, having regard to all the elements which characterise them. These elements, and hence their comparability, must in particular be determined and assessed in the light of the subject matter and purpose of the act which makes the distinction in question (judgment of 16 December 2008, Arcelor Atlantique et Lorraine and Others, C‑127/07, EU:C:2008:728, paragraphs 25 and 26).

72 In addition, the difference in treatment is objectively justified if it is based on objective and reasonable criteria and is proportionate to the aim pursued by the differential treatment (see, to that effect, judgments of 2 March 2004, Di Marzio v Commission, T‑14/03, EU:T:2004:59, paragraph 83, and of 16 March 2004, Afari v ECB, T‑11/03, EU:T:2004:77, paragraph 65).

73 In the present case, the alleged discrimination is to have occurred in the field of evidence and concerns, specifically, the probative force of evidence between spouses. In this connection, bearing in mind that the purpose of evidence is to show the truth of a fact, a state, a circumstance or an obligation, it must be observed that people marry in order to live in a stable relationship characterised by a bond of affection and shared interest. Thus, in the light of that context and the risk of collusion which it entails, it cannot be considered, so far as concerns the evidence which one spouse claims to provide to the advantage of the other spouse, that married people are in a situation comparable to that of persons with no family or marital ties. Furthermore, the applicant has adduced nothing which would give ground for assuming that the AECE would grant a value different from the ‘weakened’ value which it grants to evidence between spouses to a witness statement or testimonial to the advantage of a person who, while not married to its author, was in a relationship comparable to that of a spouse with that person.

74 Even if, from the evidential point of view, the situation between two spouses could be compared to that of unmarried persons, granting to a witness statement or testimonial by a spouse, as against that of a person outside the family circle, no more than a limited, or even weak, probative force may be objectively justified, having regard to the risk of collusion which may exist between spouses and as is provided for by many legal systems.

75 Consequently, it was open to the Commission both to take account of a document signed by Mr G on 28 November 2006 attesting to the position of the applicant in a company called African Logistic Support, because the persons concerned were not yet married at that time and it is not proven or even claimed that at that date the applicant was in a relationship comparable to that existing between spouses with the author of the document in question, and to find that the probative force of the testimonial drafted by Mr G on 10 March 2015 was ‘weakened’ owing to the fact that he had in the meantime become her spouse.

76 The finding above is not affected by the fact, raised by the applicant, that Mr G was the only person legally authorised to draw up testimonials certifying employment within Safari Sudan.

77 In respect of the admissibility of types of evidence, admittedly Article 3(2) of Annex IV to the GIP allows professional experience to be proven by any legal means. However, as regards the probative value, the same provision requires that ‘professional experience must be duly substantiated’ and therefore obliges the authority to discount evidence of doubtful value.

78 It follows that, contrary to what is claimed by the applicant, the AECE did not infringe Article 3(2) of Annex IV to the GIP by granting merely a weak probative force to Mr G’s testimonial dated 10 March 2015 and requesting him to produce payslips, tax returns or any other official document which could prove the truth of the applicant’s status as a paid employee and the nature of her duties.

79 In this connection, the applicant produced testimonials from Ms D and Mr A which were taken into consideration, but the AECE could legitimately remain unconvinced by such testimonials on account of their imprecision, as is apparent from the examination of the first plea.

81 The applicant concedes that, pursuant to Article 3(1) of Annex IV to the GIP, professional experience is defined as ‘any paid activity’. Nevertheless, she submits that in the context of a developing country, such as Sudan, it is impossible to prove employment there by producing evidence of a bank transfer or tax payment. That is because Sudanese employment law requires the payment of salaries in cash. The applicant submits that she was therefore paid in that way to cover her subsistence costs. Moreover, she was unable to make any transfer to a European bank owing to the economic sanctions imposed on Sudan. She submits that, having regard to that situation and to the fact that the documents produced were sufficient to substantiate her professional experience, the contested decision was in breach of the principle of proportionality.

83 According to Article 3(1) and (2) of Annex IV to the GIP, the text of which is produced in paragraph 49 above, professional experience, in order to be taken into account for grading purposes, must be ‘duly substantiated’, ‘related to one of the Commission’s areas of activity’ and correspond to a ‘paid activity’.

84 Since those conditions are cumulative, the fourth plea is ineffective inasmuch it follows from the examination of the first plea that it was open to the Commission to find that the applicant had not proven to the requisite legal standard that she had acquired relevant professional experience with Safari Sudan.

85 In any event, and as pointed out by the Commission, the administration did not restrict its requests merely to the production of payslips or tax returns, but also suggested that the applicant might prove using any other official document the fact that she had been remunerated. In this respect, the fact that Sudan is a developing country and that bank transfers to European banks are prohibited on account of the sanctions imposed on the country does not suffice to render credible the applicant’s assertion that it was impossible for her to produce convincing evidence that she had been paid a salary in the 20 months during which she claims to have been remunerated by Safari Sudan.

86 In addition, it must be stated that, as is apparent from the examination of the third plea, it was open to the AECE to hold that the probative force of the letter of introduction from Mr G dated 20 June 2009 was weak inasmuch as the author was the applicant’s spouse. The same finding applies in respect of the testimonial from Mr G dated 10 March 2015. As already mentioned, the applicant also provided testimonials from Mr A dated 2 June 2015 and Ms D dated 13 July 2015, presenting her as the Managing Director of Safari Sudan and the organiser of air and land tours between Aswan and Khartoum. However, none of those testimonials makes any allusion to the applicant being paid a salary. Moreover, in view of the applicant’s special situation, as the spouse of the Chief Executive Officer of Safari Sudan, the AECE was entitled to hold that those brief testimonials were insufficient to prove the existence of a paid activity within the meaning of Article 3(1) of Annex IV to the GIP.

87 The fourth plea must therefore be rejected. Consequently, having regard to all the foregoing, the action in its entirety must be dismissed.

88 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, she must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> OY v Commission (Civil service - Recruitment - Judgment) [2018] EUECJ T-605/16 (16 October 2018) URL: http://www.bailii.org/eu/cases/EUECJ/2018/T60516.html Cite as: ECLI:EU:T:2018:687, [2018] EUECJ T-605/16, EU:T:2018:687

Court of Justice of the European Communities (including Court of First Instance Decisions)