JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

11 December 2014

Case T‑304/13 P

Chris van der Aat and Others

v

European Commission

(Appeal — Civil service — Officials — Remuneration — Annual adjustment of the remuneration and pensions of officials and other EU staff — Correction coefficient applicable to officials and other staff employed in Varese — Articles 64 to 65a of the Staff Regulations — Annex IX to the Staff Regulations — Regulation (EU) No 1239/2010 — Obligation to state reasons — Access to documents — Regulation (EC) No 1049/2001 — Manifest error of assessment)

Appeal:      against the judgment of the European Union Civil Service Tribunal (Third Chamber) of 21 March 2013 in van der Aat and Others v Commission (F‑111/11, ECR-SC, EU:F:2013:42), seeking the setting aside of that judgment.

Held:      The appeal is dismissed. Mr Chris van der Aat and the other officials and staff of the European Commission whose names are listed in the annex to the judgment are to bear their own costs and to pay those incurred by the Commission in the present proceedings. The Council of the European Union is to bear its own costs in the present proceedings.

Summary

1.      Institutions of the European Union — Right of public access to documents — Regulation No 1049/2001 — Official’s application for access to data used to calculate correction coefficients — Obligation to apply to the administration for access under the Regulation — Infringement of the right to an effective remedy — None

(Staff Regulations, Annex XI, Art. 3; European Parliament and Council Regulation No 1049/2001)

2.      Judicial proceedings — Measures of organisation of procedure — Request for production of documents — Obligations on the person making the request — Rejection of the request where obligations not fulfilled — Infringement of the right to an effective remedy — None

(Rules of Procedure of the Civil Service Tribunal, Art. 54)

3.      Officials — Remuneration — Correction coefficients — Fixing — Institutions’ discretion — Judicial review — Limits

(Staff Regulations, Arts 64 and 65 and Annex XI)

1.      Under Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, an official wishing to have access to data which form the basis for the statistical calculations underlying the correction coefficients applicable to officials’ remuneration must submit an application for access under that Regulation. The need for such an application is by no means incompatible with the right to an effective remedy, nor does it undermine the effectiveness of the constitution of a technical group on remuneration as part of the procedure for fixing correction coefficients, since the right of access to documents is provided for by the very wording of Regulation No 1049/2001 under the conditions laid down in that regulation, and there is no derogating procedure applicable simply because the applicant is an EU official.

(see para. 58)

See:

judgments of 8 November 2000 in Bareyt and Others v Commission, T‑175/97, RecFP, EU:T:2000:259, para. 85; and 25 June 2003 Pyres v Commission, T‑72/01, RecFP, EU:T:2003:176, para. 62

2.      The Civil Service Tribunal cannot be criticised for infringing an applicant’s right to an effective remedy by rejecting his request for production of documents held by the defendant institution, where that applicant does not provide any explanation as to why the documents which the institution concerned refuses to disclose to him are relevant for the outcome of the dispute. The court’s involvement in taking evidence in support of an applicant, while possible, must be confined to exceptional cases where, in particular, the applicant, in order to substantiate his arguments, needs certain information held by the defendant, who is making it difficult for him to obtain that information or has even refused to supply it. Moreover, in order to obtain the court’s direct involvement in taking evidence, the applicant must provide sufficiently precise, objective and consistent indicia to corroborate the truth or probability of the alleged facts, which the evidence taken will help to prove.

(see para. 61)

See:

judgment of 12 March 2008 in Rossi Ferreras v Commission, T‑107/07 P, RecFP, EU:T:2008:71, paras 38 and 39 and the case-law cited therein

3.      The wording of Articles 64 and 65 of the Staff Regulations and of Annex XI to the Staff Regulations and the degree of complexity of the subject imply that the institutions have a wide discretion as regards the factors and elements to be taken into consideration when adjusting the remuneration of officials of the European Union.

Accordingly, the assessment of the European Union Courts, as regards the definition and choice of the basic data and statistical methods used by Eurostat to draw up proposals for the correction coefficients, must be confined to verifying that the principles laid down by the Staff Regulations have been complied with, that there has been no manifest error of assessment of the facts on which the correction coefficients are based, and that there has been no misuse of powers.

In addition, it is for the parties who wish to challenge the factors and the method used by the Commission to establish the correction coefficients to provide information capable of demonstrating that a manifest error has been committed.

(see paras 66-68)

See:

judgment of 25 September 2002 in Ajour and Others v Commission, T‑201/00 and T‑384/00, RecFP, EU:T:2002:224, paras 47 to 49 and the case-law cited therein