JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(Third Chamber)

26 February 2014

Case F‑53/13

Alkis Diamantopoulos

v

European External Action Service (EEAS)

(Civil service — Officials — Promotion — Decision not to promote the applicant to grade AD 12 — Implied decision rejecting the complaint — Express decision rejecting the complaint subsequent to the action — Statement of reasons)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Diamantopoulos seeks annulment of the decision of the European External Action Service (EEAS) not to promote him to grade AD 12 in the 2012 promotion procedure.

Held:      The decision of the European External Action Service not to promote Mr Diamantopoulos to grade AD 12 in the 2012 promotion procedure is annulled. The European External Action Service is to bear its own costs and is ordered to pay the costs incurred by Mr Diamantopoulos.

Summary

1.      Officials — Promotion — Complaint by a candidate who has not been promoted — Rejection decision — Total absence of statement of reasons — Rectification during the proceedings before the Court — Not permissible

(Staff Regulations, Arts 25, second para., 45 and 90(2))

2.      Actions brought by officials — Pleas in law — Lack of or inadequate statement of reasons — Separate ground from the one concerning substantive legality

(Staff Regulations, Art. 25, second para.)

1.      Although the appointing authority is not under an obligation to provide unsuccessful candidates with reasons for its decisions on promotion, it must, on the other hand, give reasons for its decision to reject a complaint lodged, pursuant to Article 90(2) of the Staff Regulations, by a candidate who has not been promoted, the statement of grounds for such a decision being deemed to be the same as the statement of reasons for the decision against which the complaint was directed.

Moreover, although, given that promotions involve choices, the statement of reasons for the rejection of the complaint need only, as a general rule, deal with the existence of the legal conditions laid down by the Staff Regulations for the procedure to be lawful, and although the appointing authority is not required to disclose details of its comparison of candidates’ merits, it must, however, inform the official concerned of the relevant individual ground justifying the refusal to promote him.

The extent of the duty to state reasons must be assessed in the light of the particular facts of each case. These include, in particular, not only the content of the contested act, but also the addressee’s interest in receiving explanations and the factual and legal context in which that act was adopted.

Lastly, the total absence of a statement of reasons before an action is brought cannot be remedied by explanations provided by the appointing authority after the action has been initiated. At that stage, such explanations no longer fulfil the function of a statement of reasons. Moreover, the possibility of regularising the total absence of a statement of reasons after an action has been started might prejudice the right to a fair hearing because the applicant would be denied the possibility to set out his pleas contesting the reasons which he would not know until after he had lodged his application. The principle that parties should be equal before the Union judicature would thus be undermined.

(see paras 18-21)

See:

16 September 2013, T‑31/13 P Bouillez v Council, para. 26

8 October 2008, F‑81/07 Barbin v Parliament, paras 27 and 28 and the case-law cited therein; 19 September 2013, F‑83/08 Gheysens v Council, para. 55

2.      The reasoning of a decision consists in a formal statement of the grounds on which that decision is based. Consequently, the obligation to state reasons is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure. Arguments intended to prove that a measure is well founded are thus of no effect in the context of a plea alleging the lack of a statement of reasons.

(see para. 27)

See:

2 April 1998, C‑367/95 P Commission v Sytraval and Brink’s France, para. 67

Bouillez v Council, para. 20