JUDGMENT OF THE GENERAL COURT (Appeal Chamber)
21 May 2014
Case T‑347/12 P
Dana Mocová
v
European Commission
(Appeal — Civil service — Members of the temporary staff — Fixed-term contract — Decision not to renew — Rejection of the complaint — Obligation to state reasons — Ground given in the decision rejecting the complaint)
Appeal: against the judgment of the European Union Civil Service Tribunal (Third Chamber) of 13 June 2012 in Case F‑41/11 Mocová v Commission [2012] ECR-SC, seeking to have that judgment set aside.
Held: The appeal is dismissed. Ms Dana Mocová is to bear her own costs and is ordered to pay those incurred by the European Commission in the course of the present proceedings.
Summary
1. Actions brought by officials — Action against a decision rejecting a complaint — Effect — Referral of contested measure to the Court — Exception — Decision not confirmatory in nature
(Staff Regulations, Arts 90 and 91)
2. Actions brought by officials — Prior administrative complaint — Correspondence between complaint and action — Same subject-matter and legal basis — Aim — Amicable settlement of the proceedings
(Staff Regulations, Arts 90 and 91)
3. Officials — Promotion — Complaint by a candidate who has not been promoted — Rejection — Obligation to state reasons — Scope
(Staff Regulations, Arts 25, second para., 45 and 90(2))
4. Actions brought by officials — Prior administrative complaint — Correspondence between complaint and action — Same subject-matter and legal basis — Submissions and arguments not made in the complaint but seeking to challenge the validity of the reasoning set out in the response to the complaint — Admissibility
(Staff Regulations, Arts 90 and 91)
5. Actions brought by officials — Assessment of the legality of the contested measure on the basis of the facts and the law as they stood at the time when it was adopted
(Staff Regulations, Art. 91)
1. The administrative complaint and its rejection, whether express or implied, constitute an integral part of a complex procedure and are no more than a precondition for bringing the matter before the judicature. That being so, the action, even if formally directed against the rejection of the complaint, has the effect of bringing before the court the act adversely affecting the applicant against which the complaint was lodged, except where the rejection of the complaint has a different scope from that of the measure against which the complaint was lodged. An express decision rejecting a complaint may, in the light of its content, not be confirmatory of the measure contested by the applicant. That is the case where the decision rejecting the complaint contains a re-examination of the applicant’s situation in the light of new elements of law or of fact, or where it changes or adds to the original decision. In such cases, the rejection of the complaint constitutes a measure subject to review by the court, which will take it into consideration when assessing the lawfulness of the contested measure, and may even regard it as an act adversely affecting the complainant and replacing the contested measure.
(see para. 34)
See:
T‑325/09 P Adjemian and Others v Commission [2011] ECR II‑6515, para. 32 and the case-law cited therein
2. The rule that the action must correspond to the complaint is intended to prevent the official or other staff member from making some, or all, of his claims only at the contentious stage of the proceedings, thereby significantly reducing any possibility of an extra-judicial settlement of the dispute. In such circumstances, since the administration is not in a position to ascertain with a sufficient degree of certainty the complaints or wishes of the person concerned, it will not have any chance of granting his claims, where appropriate, or of proposing an amicable settlement and, thus, of avoiding submitting the dispute directly to the court for a decision.
However, the aim of enabling the official and the administration to settle the dispute at the pre-litigation stage does not mean that the official is entitled, in every case, to challenge, at the pre-litigation stage, any new ground relied on by the administration in the administrative phase.
(see paras 39, 40)
See:
142/85 Schwiering v Court of Auditors [1986] ECR 3177, para. 11
T‑361/94 Weir v Commission [1996] ECR-SC I‑A‑121 and II‑381, para. 27
3. Although the contracting authority is not obliged to give reasons for a promotion decision, either to its addressee or to the candidates who were not promoted, it is, on the other hand, obliged to state the grounds for its decision rejecting a complaint lodged pursuant to Article 90(2) of the Staff Regulations by a candidate who was not promoted, the grounds for that decision being deemed to be identical to those for the decision against which the complaint was made. The grounds must be stated, at the latest, at the time of rejecting the complaint.
Vice versa, the authority is not obliged to give an express response to the complaint provided that the original decision itself contained a statement of reasons.
(see paras 41, 42)
See:
188/73 Grassi v Council [1974] ECR 1099, para. 13; 111/86 Delauche v Commission [1987] ECR 5345, para. 13; C‑343/87 Culin v Commission [1990] ECR I‑225, para. 13; C‑115/92 P Parliament v Volger [1993] ECR I‑6549, para. 23
T‑52/90 Volger v Parliament [1992] ECR II‑121, para. 36; T‑112/96 and T‑115/96 Séché v Commission [1999] ECR-SC I‑A‑115 and II‑623, para. 76; T‑117/01 Roman Parra v Commission [2002] ECR-SC I‑A‑27 and II‑121, para. 26; T‑338/00 and T‑376/00 Morello v Commission [2002] ECR-SC I‑A‑301 and II‑1457, para. 48; T‑132/03 Casini v Commission [2005] ECR-SC I‑A‑253 and II‑1169, para. 32
4. In the context of observance of the right to effective judicial protection, and if the complainant is apprised of the reasoning for the act adversely affecting him through the response to his complaint, or if the reasoning for the response substantially alters or adds to the reasoning contained in that act, any plea in law put forward for the first time in the application and seeking to challenge the validity of the grounds set out in the response to the complaint must be deemed admissible. In such situations, the member of staff concerned has not been placed in a position to have precise and definitive knowledge of the reasons underlying the act adversely affecting him.
(see para. 44)
5. The legality of a decision must be assessed on the basis of the matters of fact and law available to the institution at the time when it adopted that decision. However, in view of the evolving nature of the pre-litigation procedure, the drawing up of the act establishing the institution’s final position terminates with the adoption of the contracting authority’s response to the complaint lodged by the member of the temporary staff. It follows that the legality of the final act adversely affecting that staff member must be assessed in the light of the matters of fact and law available to the institution when that response was adopted, expressly or by implication, subject always to the possibility for the institution to supply additional details during the judicial proceedings.
(see para. 45)