ORDER OF THE COURT (Eighth Chamber)

12 June 2019 (*)

(Appeal — Article 181 of the Rules of Procedure of the Court of Justice — Civil service — Member of the contract staff — Appointment — Classification in grade — Account taken of professional experience — General provisions for implementing Article 79(2) of the Conditions of Employment of Other Servants (CEOS))

In Case C‑816/18 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 21 December 2018,

OY, member of the contract staff of the European Commission, residing in Auderghem (Belgium), represented by S. Rodrigues and N. Flandin, avocats,

appellant,

the other party to the proceedings being:

European Commission,

defendant at first instance,

THE COURT (Eighth Chamber),

composed of F. Biltgen, President of the Chamber, C.G. Fernlund (Rapporteur) and L.S. Rossi, Judges,

Advocate General: P. Pikamäe,

Registrar: A. Calot Escobar,

having decided, after hearing the Advocate General, to give a decision by reasoned order, pursuant to Article 181 of the Court’s Rules of Procedure,

makes the following

Order

1        By her appeal, OY seeks to have set aside the judgment of the General Court of the European Union of 16 October 2018, OY v Commission (T‑605/16, not published, EU:T:2018:687; ‘the judgment under appeal’), by which it dismissed OY’s action seeking, first, annulment of the decision of the European Commission of 2 October 2015 rejecting her 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 Commission authority empowered to conclude contracts of employment of 29 March 2016 rejecting her complaint.

 The appeal

2        Pursuant to Article 181 of the Rules of Procedure of the Court, where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal in whole or in part.

3        That provision must be applied in the present case.

4        On 12 April 2019, the Advocate General took the following position:

‘1.      For the following reasons, I propose that the Court should dismiss the appeal brought against the judgment under appeal by an order adopted under Article 181 of the Rules of Procedure and order the appellant, OY, to pay the costs, in accordance with Article 137 and Article 184(1) of those rules.

2.      In support of her appeal, the appellant puts forward three grounds of appeal. The first ground alleges infringement of Article 21 of the Charter of Fundamental Rights of the European Union (“the Charter”), the second alleges a failure to state reasons in the judgment under appeal, and the third alleges, first, infringement of Article 41 of the Charter and of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (“the ECHR”), and, second, a breach of procedure.

 The first ground of appeal, alleging infringement of Article 21 of the Charter

3.      By her first ground of appeal, the appellant claims that the General Court infringed Article 21 of the Charter, in particular the principles of non-discrimination and equal treatment, in holding that the view cannot be taken, given the risk of collusion, so far as concerns the evidence which one spouse claims to provide for the benefit of the other spouse, that married persons are in a situation comparable to that of persons with no family or marital ties. According to the appellant, that approach of the General Court constitutes a difference in treatment between married persons and unmarried persons which is not objectively justified.

4.      In particular, the appellant claims that, in applying the criteria used by the General Court, a relationship of friendship may also be interpreted as a stable relationship characterised by a bond of affection and shared interest and may also create a risk of collusion. According to the appellant, the situation of married persons and that of persons who are in a relationship of friendship are comparable. However, according to the reasoning followed by the General Court, married persons are treated differently to persons who have such a relationship of friendship.

5.      This first ground of appeal must be rejected from the outset as being manifestly unfounded, since it is based on an incorrect reading of the entire judgment under appeal.

6.      In that regard, it must be observed that the principle which prevails in EU law is that of the unfettered evaluation of evidence, which governs appeal proceedings, and that it is only the reliability of the evidence before the Court which is decisive when it comes to the assessment of its value. In addition, in order to assess the probative value of a document, regard should be had to the credibility of the account which it contains, and in particular to the origin of the document, the circumstances in which it came into being, the person to whom it was addressed and whether, on its face, the document appears to be sound and reliable (see, to that effect, judgments of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraph 65 and the case-law cited, and of 14 March 2018, Kim and Others v Council and Commission, T‑533/15 and T‑264/16, EU:T:2018:138, paragraph 224 and the case-law cited).

7.      Contrary to what the appellant appears to claim, the evaluation of evidence is not the result of an abstract analysis, but rather of an examination of the facts and circumstances on a case-by-case basis.

8.      In the present case, the General Court held, in paragraph 73 of the judgment under appeal, that “the applicant has adduced nothing which would give ground for assuming that the [authority concerned] 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”.

9.      It follows that the General Court correctly applied the rules relating to the appraisal of evidence in the context of the review of the assessment carried out by the authority concerned, taking into account the origin of the evidence provided by the appellant and the circumstances in which it came into being, that is to say, the fact that the testimonial at issue had been drawn up by the appellant’s husband on 10 March 2015.

10.      The General Court thus acted correctly in finding that the authority concerned had not infringed the appellant’s rights by attributing merely a weak probative force to that testimonial.

11.      Consequently, the first ground of appeal, which is manifestly unfounded, must be rejected.

 The second ground of appeal, alleging an inadequate statement of reasons in the judgment under appeal

12.      The second ground of appeal, alleging breach by the General Court of the duty to state the reasons on which the judgment under appeal is based, in so far as the statement which it contains, according to which the probative force of evidence between married persons is not of the same value as evidence produced by a person outside the family circle, is tainted with unclear and equivocal reasoning. The appellant claims, in particular, that the General Court suggested, in paragraph 74 of the judgment under appeal, that in certain circumstances the situation between two spouses could be compared to that of unmarried persons, without expanding on which circumstances could result in both situations being comparable.

13.      Thus, by that reasoning, the appellant seeks, in reality, to challenge the merits of the ground adopted in paragraphs 73 and 74 of the judgment under appeal, according to which the authority concerned could grant a limited, or even weak, probative force to a witness statement or testimonial by her husband.

14.      Since the second ground of appeal arises from the same misreading of the judgment under appeal as that on which the first ground of appeal is based, that second ground must also be rejected.

15.      Consequently, the General Court cannot be criticised in any way on the ground that it breached its duty to state reasons.

16.      The second ground of appeal must therefore be rejected as being manifestly unfounded.

 The third ground of appeal, alleging, first, infringement of Article 41 of the Charter and of Article 6 of the ECHR and, second, a breach of procedure

17.      By her third ground of appeal, the appellant invokes, first, an infringement of Article 41 of the Charter and of Article 6 of the ECHR and, second, a breach of procedure adversely affecting her interests, in particular the rights of the defence. This ground relates to the conclusion reached by the General Court, according to which the employment contract at issue was excluded from the proceedings as being inadmissible on account of its late submission.

18.      Although the appellant claims to be raising a question of law, she is, in reality, seeking to challenge the General Court’s assessment of the circumstances which resulted in her not providing that employment contract at an earlier stage of the proceedings.

19.      It follows from Article 58 of the Statute of the Court of Justice of the European Union and from settled case-law that that assessment falls within the exclusive jurisdiction of the General Court in respect of the appraisal of the facts and the assessment of the evidence and does not, save where the facts or evidence are distorted, constitute a point of law which, as such, is open to review by the Court of Justice on appeal (see, inter alia, judgment of 4 May 2017, August Storck v EUIPO, C‑417/16 P, not published, EU:C:2017:340, paragraphs 44 and 45 and the case-law cited).

20.      Consequently, since the appellant’s argument seeks, in reality, a new assessment of the facts and evidence, without alleging that the General Court distorted those facts and evidence, the third ground of appeal is manifestly inadmissible.

21.      In the light of all the foregoing considerations, the appeal must be dismissed in its entirety as being, in part, manifestly inadmissible and, in part, manifestly unfounded.’

5        For the same reasons as those given by the Advocate General, the appeal must be dismissed as being, in part, manifestly inadmissible and, in part, manifestly unfounded.

 Costs

6        Under Article 137 of the Rules of Procedure, applicable to the procedure on appeal pursuant to Article 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings. Since the present order has been adopted before the appeal had been served on the defendant and, therefore, before the latter could have incurred costs, OY must be ordered to bear her own costs.

On those grounds, the Court (Eighth Chamber) hereby orders:

1.      The appeal is dismissed as being, in part, manifestly inadmissible and, in part, manifestly unfounded.

2.      OY shall bear her own costs.

Luxembourg, 12 June 2019.

*      Language of the case: English.