ORDER OF THE GENERAL COURT (Appeal Chamber)
16 September 2013
Case T‑31/13 P
Vincent Bouillez
v
Council of the European Union
(Appeal — Civil service — Officials — Promotion — 2007 promotion year — Decision not to promote the appellant to Grade AST 7 — Obligation to state reasons — Article 266 TFEU — Article 45 of the Staff Regulations — Contradictory reasons — Consideration of comparative merits — Appeal in part manifestly inadmissible and in part manifestly unfounded)
Appeal: brought against the judgment of the European Union Civil Service Tribunal (Third Chamber) of 14 November 2012 in Case F‑75/11 Bouillez v Council [2012] ECR-SC, seeking the setting aside of that judgment.
Held: The appeal is dismissed. Mr Vincent Bouillez is to bear his own costs and is ordered to pay those incurred by the Council of the European Union in these proceedings.
Summary
1. Actions brought by officials — Pleas in law — Lack of or inadequate statement of reasons — Plea distinct from that of the lawfulness of the contested measure
(Staff Regulations, Art. 25, second para.)
2. Officials — Promotion — Complaint by a candidate not promoted — Decision to reject — Obligation to state reasons — Scope
(Staff Regulations, Arts. 25, 45 and 90(2))
3. Appeals — Pleas in law — 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
(Art. 257(3) TFEU; Statute of the Court of Justice, Annex I, Art. 11(1))
4. Officials — Promotion — Administration’s discretion — Judicial review — Limits
(Staff Regulations, Art. 45)
1. 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. Claims and arguments intended to deny that a measure is well founded are thus of no effect in the context of a plea alleging the lack or inadequacy of a statement of reasons.
(see para. 20)
See:
18 January 2012, T‑422/07 Djebel — SGPS v Commission, not published in the ECR, para. 54 and the case-law cited therein
2. The appointing authority is not obliged to state the reasons for decisions not to promote candidates. It must, on the other hand, state the reasons for decisions rejecting complaints submitted under Article 90(2) of the Staff Regulations by candidates who have not been promoted, the statement of reasons for those rejection decisions being deemed to be the same as the statement of reasons for the decisions against which the complaints were directed. As promotions involve choices, the statement of reasons for the rejection of the complaint need only deal with the existence of the legal conditions laid down by the Staff Regulations for the procedure to be lawful. In particular, the appointing authority is not required to disclose to the unsuccessful candidate details of its comparison of his merits and those of the candidate who is promoted. It is sufficient that, in its decision rejecting the complaint, the appointing authority informs the official concerned of the relevant individual ground justifying the rejection of his candidature.
Furthermore, Article 45 of the Staff Regulations provides that, when considering comparative merits, the appointing authority must in particular take account of the reports on the officials, the use of languages in the execution of their duties other than the language for which they have produced evidence of thorough knowledge and, where appropriate, the level of responsibilities exercised by them.
(see paras 23, 24, 26-27)
See:
101/77 Ganzini v Commission [1978] ECR 915, para. 10
T‑25/92 Vela Palacios v ESC [1993] ECR II‑201, para. 25; T‑118/95 Anacoreta Correia v Commission [1996] ECR-SC I‑A‑283 and II‑835, para. 82; T‑6/96 Contargyris v Council [1997] ECR-SC I‑A‑119 and II‑357, para. 148; T‑142/95 Delvaux v Commission [1997] ECR-SC I‑A‑477 and II‑1247, para. 84; T‑3/97 Campogrande v Commission [1998] ECR-SC I‑A‑89 and II‑215, para. 112; T‑157/98 Oliveira v Parliament [1999] ECR-SC I‑A‑163 and II‑851, para. 52
3. Under Article 257(3) TFEU and Article 11(1) of Annex I to the Statute of the Court of Justice, an appeal to the General Court must be limited to points of law.
The court of first instance has exclusive jurisdiction, first, to establish the facts except where the substantive inaccuracy of its findings is apparent from the documents submitted to it and, second, to assess those facts. The assessment of the facts by the first instance court does not, therefore, except in the case of distortion of the evidence submitted to that court, constitute a question of law which, as such, is subject to review on appeal by the General Court. Where the first instance court has established or assessed the facts, the General Court is empowered only to review the legal classification of those facts and the legal consequences which the first instance court drew from them.
(see paras 34, 49)
See:
C‑59/96 P Koelman v Commission [1997] ECR I‑4809, para. 31; C‑2/01 P and C‑3/01 P BAI and Commission v Bayer [2004] ECR I‑23, para. 47
T‑274/11 P Mioni v Commission [2011] ECR-SC I‑B‑1-0000 and II‑B‑1-0000, para. 18; T‑642/11 P Mische v Parliament [2012] ECR-SC, para. 24 and the case-law cited therein
4. In assessing the interests of the service and the qualifications and merits of the candidates to be taken into consideration in making a promotion decision pursuant to Article 45 of the Staff Regulations, the appointing authority possesses a wide discretion and, in that connection, the Union Court’s review must be confined to the question whether, having regard to the various considerations which have influenced the administration in making its assessment, the latter has remained within reasonable bounds and has not used its power in a manifestly incorrect way. The Union Court cannot therefore substitute its assessment of the qualifications and merits of the candidates for that of the appointing authority.
(see para. 44)
See:
C‑277/01 P Parliament v Samper [2003] ECR I‑3019, para. 35
T‑175/09 P Council v Stols [2010] ECR-SC, para. 23