ORDER OF THE GENERAL COURT (Appeal Chamber)

24 September 2010

Case T-498/09 P

Petrus Kerstens

v

European Commission

(Appeal — Civil service — Officials — Promotion — 2005 promotion year — Award of priority points — Burden of proof — Rights of the defence — Appeal in part manifestly inadmissible and in part manifestly unfounded)

Appeal: brought against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 29 September 2009 in Case F‑102/07 Kerstens v Commission [2009] ECR-SC I-A-1-359 and II-A-1-1881, seeking the setting aside of that judgment.

Held: The appeal is dismissed. Mr Petrus Kerstens is to bear his own costs and to pay those incurred by the European Commission in the appeal proceedings.

Summary

1.      Appeal — Pleas in law — Admissibility — Points of law

(Statute of the Court of Justice, Annex I, Art. 11(1))

2.      Officials — Promotion — Consideration of comparative merits — Procedures

(Staff Regulations, Art. 45(1))

3.      Procedure — Written procedure

1.      According to Article 11 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 Civil Service Tribunal has exclusive jurisdiction to establish the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and to assess those facts.

It is therefore admissible in an appeal before the General Court for the official concerned to rely on an error of law in the interpretation of the provisions applicable to the reporting procedure for officials.

(see paras 25-26)

See: judgment of 19 March 2010 in T-338/07 P Bianchi v ETF, para. 61 and the case-law cited therein

2.      Even though career development reports as a whole constitute the fundamental basis for the review conducted prior to the allocation of the priority points available to each directorate-general, and even though there must therefore be a certain coherence between the merit points and the number of priority points allocated to officials, it cannot, however, be inferred from this that there is a strict arithmetical correlation between merit points and priority points. The introduction of priority points was intended to enable the directorates-general to reward officials whom they consider to have demonstrated special merit which merit points alone do not reflect, either because their performance goes beyond their individual objectives, or because their effort and performance have been outstanding. In that context, the directorates-general thus need to be able to exercise a discretion which they would be denied if there were a correlation between priority points and merit points.

(see para. 29)

See: judgment of 23 November 2006 in T-422/04 Lavagnoli v Commission, not published in the ECR, paras 61 and 62; T-385/04 Valero Jordana v Commission [2009] ECR-SC I-A-2-1 and II-A-2-1, paras 138 and 153

3.      The oral procedure is, like the written procedure, an essential and, save in certain cases expressly provided for, compulsory part of the judicial procedure allowing the parties to present their arguments properly and, in particular, to submit observations on arguments or evidence on which they have not had the opportunity to express their views during the written procedure. Consequently, the fact that a party has not had the opportunity to present in writing some of his observations on the substance, because the Civil Service Tribunal decided to allow the submission of a rejoinder only on matters of admissibility, does not constitute an infringement of the rights of the defence.

(see para. 38)

See: 141/81 to 143/81 Holdijkand Others [1982] ECR 1299, para. 7; T‑508/93 Mancini v Commission [1994] ECR-SC I‑A‑239 and II‑761, paras 33 and 34