ORDER OF THE GENERAL COURT (Appeal Chamber)
20 September 2013
Case T‑113/13 P
Kris Van Neyghem
v
Council of the European Union
(Appeal — Civil service — Officials — Promotion — 2007 promotion year — Decision to not promote the appellant to Grade AST 7 — Dismissal of action at first instance — Obligation to state reasons — Article 266 TFEU — 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 12 December 2012 in Case F‑77/11 Van Neyghem v Council [2012] ECR-SC, seeking the setting aside of that judgment.
Held: The appeal is dismissed. Mr Kris Van Neyghem 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. Officials — Promotion — Complaint by a candidate not promoted — Decision to reject — Obligation to state reasons
(Staff Regulations, Arts 25, second para., 45 and 90(2))
2. Actions brought by officials — Judgment annulling a measure — Effects — Obligation to implement — Scope — Both the operative part and the grounds of the judgment to be taken into account — Annulment of a decision not to promote — Fresh consideration of comparative merits — Adequate implementation
(Art. 266 TFEU; Staff Regulations, Art. 45)
3. Officials — Promotion — Consideration of comparative merits — Administration’s discretion — Matters to be taken into account
(Staff Regulations, Art. 45)
4. Appeals — Pleas in law — Plea submitted for the first time in the context of the appeal — Inadmissibility
(Rules of Procedure of the General Court, Arts 48(2), 139(2) and 144)
5. Appeals — Pleas in law — Mistaken assessment of the facts — Inadmissibility — Review by the General Court of the assessment of the facts and evidence — Possible only where the clear sense of the evidence has been distorted
(Art. 257 TFEU; Statute of the Court of Justice, Annex I, Art. 11(1))
1. See the text of the decision.
(see para. 17)
See:
101/77 Ganzini v Commission [1978] ECR 915, para. 10; C‑343/7 Culin v Commission [1990] ECR I‑225
2. In order to comply with a judgment annulling a measure and to implement it fully, the institution whose measure has been annulled is required to have regard not only to the operative part of the judgment but also to the grounds which led to the judgment and constitute its essential basis, in so far as they are necessary to determine the exact meaning of what is stated in the operative part. It is those grounds which, on the one hand, identify the precise provision held to be illegal and, on the other, indicate the specific reasons which underlie the finding of illegality contained in the operative part and which the institution concerned must take into account when replacing the annulled measure. The procedure for replacing such a measure may thus be resumed at the very point at which the illegality occurred.
Consequently, in conducting a fresh consideration of comparative merits taking account of the three criteria referred to in Article 45 of the Staff Regulations, in order to implement a judgment annulling a decision not to promote an official on the ground of irregularities invalidating the consideration of the comparative merits of the officials eligible for promotion, the institution concerned has complied not only with the provisions of Article 266 TFEU, but also with the rules specific to the promotion procedure as laid down in Article 45 of the Staff Regulations.
(see paras 21-22)
See:
C‑8/99 P Gómez de Enterría y Sanchez v Parliament [2000] ECR I‑6031, paras 19 and 20 and the case-law cited therein
3. 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.
In that regard, the administration possesses a certain discretion as to the importance that it ascribes to each of the three criteria provided for in Article 45(1) of the Staff Regulations, as the wording of that provision does not preclude the possibility of weighting.
Consequently, the appointing authority must, when considering comparative merits, determine the importance it ascribes to each criterion, which implies that it must, at that point, consider the three criteria laid down in Article 45 of the Staff Regulations and assess them jointly rather than separately.
(see para. 23)
See:
T‑281/11 P Canga Fano v Council [2013] ECR-SC, para. 123
4. See the text of the decision.
(see para. 27)
See:
T‑454/09 P van Arum v Parliament [2011] ECR-SC, para. 79 and the case-law cited therein
5. See the text of the decision.
(see para. 31)
See:
C‑59/96 P Koelman v Commission [1997] ECR I‑4809, para. 31
T‑274/11 P Mioni v Commission [2011] ECR-SC, para. 18