ORDER OF THE GENERAL COURT (Appeal Chamber)

19 December 2013

Case T‑634/11 P

Mario Paulo da Silva Tenreiro

v

European Commission

(Appeal — Civil service — Officials — Recruitment — Notice of vacancy — Appointment to post of Director of Directorate E ‘Justice’ in the Commission’s Directorate General ‘Justice, Freedom and Security’ — Rejection of the appellant’s candidature — Appointment of another candidate — Appeal in part manifestly inadmissible and in part manifestly unfounded)

Appeal:      against the judgment of the Civil Service Tribunal of the European Union (Second Chamber) of 29 September 2011 in Case F‑72/10 da Silva Tenreiro v Commission [2011] ECR-SC, seeking to have that judgment set aside.

Held:      The appeal is dismissed. Mr Mario Paulo da Silva Tenreiro is to bear his own costs and is ordered to pay those incurred by the European Commission in the present proceedings.

Summary

Appeals — Grounds — Mere repetition of pleas in law and arguments submitted to the Civil Service Tribunal — Mistaken assessment of the facts — Inadmissibility — Review by the General Court of the assessment of the evidence — Possible only where the clear sense of the evidence has been distorted — Burden of proof and production of evidence

(Art. 257 TFEU; Statute of the Court of Justice, Annex I, Art. 11(1); Rules of Procedure of the General Court, Art. 138(1)(c))

It follows from Article 257 TFEU, Article 11 of Annex I to the Statute of the Court of Justice and Article 138(l)(c) of the Rules of Procedure of the General Court that an appeal must state precisely the contested elements of the judgment or order which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal, failing which the appeal or ground concerned is inadmissible. That requirement is not satisfied by an appeal which confines itself to repeating or reproducing word for word the pleas in law and arguments previously submitted to the Civil Service Tribunal, including those which were based on facts expressly rejected by that court. Such an appeal amounts in reality to no more than a request for re-examination of the application submitted to the Civil Service Tribunal, which the General Court does not have jurisdiction to undertake.

An appeal to the General Court is to be limited to points of law. The court of first instance has exclusive jurisdiction to establish the facts, except where a substantive inaccuracy of its findings is apparent from the documents submitted to it, and to assess those facts, save where the evidence adduced before it has been distorted, provided such distortion is obvious from the documents on the file, without there being any need to carry out a new assessment of the facts and the evidence or, indeed, to have recourse to new evidence.

The jurisdiction of the General Court to review the findings of fact by the Civil Service Tribunal therefore extends to the substantive inaccuracy of those findings as apparent from the documents on the file, the distortion of the evidence, the legal characterisation of the facts and the question whether the rules relating to the burden of proof and the taking of evidence have been observed.

In order to satisfy the court as to a party’s claims or, at the very least, as to the need for the court itself to take evidence, it is not sufficient merely to refer to certain facts in support of the claim; there must also be adduced sufficiently precise, objective and consistent indicia of their truth or probability. That being so, the court’s involvement in taking evidence in support of applicants must be confined to exceptional cases where, in particular, the applicants, in order to substantiate their arguments, need certain information held by the defendant, who is making it difficult for them to obtain that information or has even refused to supply it.

Apart from those exceptional cases, the court of first instance is therefore the sole judge of any need to supplement the information available to it in respect of the cases before it. Whether or not the evidence before it is sufficient is a matter to be appraised by it alone and is not subject to review by the appeal court, except where that evidence submitted to the court of first instance has been distorted or the substantive inaccuracy of the findings of that court is apparent from the documents in the case.

(see paras 35, 36, 52 and 85-87)

See:

C‑59/96 P Koelman v Commission [1997] ECR I‑4809, para. 31; C‑248/99 P France v Monsanto and Commission [2002] ECR I‑1, para. 68; C‑196/03 P Lucaccioni v Commission [2004] ECR I‑2683, paras 40 and 41 and the case‑law cited; C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, para. 426

T‑201/00 and T‑384/00 Ajour and Others v Commission [2002] ECR-SC I‑A‑167 and II‑885, para. 75; T‑107/07 P Rossi Ferreras v Commission [2008] ECR-SC I‑B‑1-5 and II‑B‑1-31, paras 38 and 39 and the case-law cited; T‑338/07 P Bianchi v ETF [2010] ECR-SC, para. 59; 4 April 2011, T‑239/09 P Marcuccio v Commission, not published in the ECR, para. 62; T‑274/11 P Mioni v Commission [2011] ECR-SC, para. 18; T‑519/11 P Gozi v Commission [2012] ECR-SC, para. 21; T‑281/11 P Canga Fano v Council [2013] ECR-SC, para. 75