JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(First Chamber)

12 December 2013

Case F‑142/11

Erik Simpson

v

Council of the European Union

(Civil service — Promotion — Decision not to promote the applicant to grade AD 9 after he passed a competition for grade AD 9 — Equal treatment)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Simpson seeks, first, annulment of the decision of 9 December 2010 by which the Council of the European Union rejected his request for promotion to grade AD 9 after he had passed Open Competition EPSO/AD/113/07 organised for the recruitment of heads of unit at grade AD 9 in the field of translation, and of the decision of 7 October 2011 rejecting his complaint and, secondly, an order that the Council pay compensation for the harm suffered.

Held:      The decision of the Council of the European Union of 9 December 2010 is annulled. The action is dismissed as to the remainder. The Council of the European Union is to bear its own costs and is ordered to pay the costs incurred by Mr Simpson.

Summary

1.      Officials — Decision adversely affecting an official — Obligation to state grounds — Scope — Assessment in the specific circumstances of the case

(Staff Regulations, Art. 25)

2.      Officials — Decision adversely affecting an official — Obligation to state grounds at the latest when rejecting a complaint — Scope — Inadequate statement of grounds — Rectification in the course of the judicial proceedings — Limits

(Staff Regulations, Arts 25 and 90(2))

1.      The purpose of the obligation to state grounds laid down by Article 25 of the Staff Regulations is both to provide the person concerned with sufficient details to determine whether the decision taken by the administration is well founded and whether it is appropriate to bring an action before the Civil Service Tribunal and to enable the latter to carry out its review. The extent of that obligation must be determined on the basis of the specific circumstances of each case, in particular the content of the act, the nature of the grounds put forward and the interest which the addressee may have in receiving explanations. Where the rejection of a request for promotion is justified, in essence, by reference to the interest of the service, without any other explanation being provided, such a statement of grounds does not enable the Tribunal to carry out its review.

(see paras 21, 26)

See:

6 October 2004, T‑294/02 Vicente-Nuñez v Commission, para. 94

2.      The failure to state grounds for a decision adversely affecting an official cannot be remedied by explanations provided by the administration after the action has been initiated. Furthermore, it is also not permissible for an institution to amend subsequently the grounds of a decision which it has adopted, justifying that decision, for example, in the light of different provisions from those relied upon initially. Adopting such a course of action would lead an institution to infringe its obligation to state grounds for its decisions, laid down by Article 25(2) in conjunction with Article 90(2) of the Staff Regulations, which is intended, first, to provide the official concerned with sufficient information to determine whether the refusal of his request is well founded and whether it is appropriate to bring proceedings before the Civil Service Tribunal and, secondly, to enable the latter to carry out its review.

On the other hand, an inadequate statement of grounds provided in the course of the pre-litigation procedure is not such as to justify annulment of the contested decision where additional information is provided by the appointing authority during the proceedings, it being understood, however, that the institution is not allowed to substitute an entirely new statement of grounds for the defective original statement of grounds.

(see paras 27-29)

See:

26 November 1981, 195/80 Michel v Parliament, para. 22; 30 May 1984, 111/83 Picciolo v Parliament, para. 22; 7 February 1990, C‑343/87 Culin v Commission, para. 15

12 February 1992, T‑52/90 Volger v Parliament, para. 40; 3 March 1993, T‑25/92 Vela Palacios v ESC, paras 26 and 27; 9 January 1996, T‑23/95 Bitha v Commission, para. 30; 17 February 1998, T‑56/96 Maccaferri v Commission, para. 38; 12 December 2002, T‑338/00 and T‑376/00 Morello v Commission, para. 55; 29 September 2005, T‑218/02 Napoli Buzzanca v Commission, para. 63