JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

16 October 2014

Case T‑26/14 P

Peter Schönberger

v

Court of Auditors of the European Union

(Appeal — Civil service — Officials — Promotion — 2011 promotion procedure — Guiding multiplication rates — Audi alteram partem)

Appeal:      against the judgment of the European Union Civil Service Tribunal (First Chamber) of 5 November 2013 in Schönberger v Court of Auditors (F‑14/12, ECR-SC, EU:F:2013:167), seeking the setting aside of that judgment.

Held:      The judgment of the European Union Civil Service Tribunal (First Chamber) of 5 November 2013 in Schönberger v Court of Auditors (F‑14/12) is set aside. The case is referred back to the Civil Service Tribunal. The costs are reserved.

Summary

EU law — Principles — Rights of the defence — Audi alteram partem rule — Observance in judicial proceedings — Scope — Substitution of grounds without an exchange of arguments — Infringement of that rule

Observance of the audi alteram partem rule means that the parties in a case must be given an opportunity to state their views on the facts and documents on which a judicial decision will be based, and to discuss the evidence and observations submitted to the court and the pleas in law which the court has raised of its own motion and on which it intends to base its decision. In order to satisfy the requirements relating to the right to a fair trial, it is important for the parties to be able to exchange arguments on both the facts and the points of law which are decisive for the outcome of the proceedings.

Consequently, when a plea in law is rejected on the basis of an interpretation of the relevant provision which does not correspond to the interpretation used by the administration as grounds for the contested decision, the Union judicature is not only substituting grounds but, in basing its rejection on facts and points of law which have not been argued before it, is infringing the audi alteram partem rule.

In that context, it must also be considered whether the procedure adopted by the Union judicature may be justified as lawful on the ground that, even in the absence of the breach of procedure in question, the proceedings could not have had a different outcome, so that failure to observe the audi alteram partem rule could not have influenced the content of the judgment under appeal and did not adversely affect the applicant’s interests.

In that regard, the Civil Service Tribunal has jurisdiction, under Article 270 TFEU and Article 91(1) of the Staff Regulations, in disputes other than those of a financial character, to review the legality of an act adversely affecting an official. Article 264 TFEU provides that, if the action is well founded, the contested act must be declared void. The Union judicature cannot therefore under any circumstances substitute its own reasoning for that of the author of the contested act.

(see paras 23-26, 32, 34)

See:

judgments of 27 January 2000, DIR International Film and Others v Commission, C‑164/98 P, ECR, EU:C:2000:48, para. 38; 22 December 2008 in British Aggregates v Commission, C‑487/06 P, ECR, EU:C:2008:757, para 141; 17 December 2009 in Réexamen M v EMEA, C‑197/09 RX-II, ECR, EU:C:2009:804, paras 39 to 41 and 52 and the case-law cited therein; 28 February 2013 in Portugal v Commission, C‑246/11 P, EU:C:2013:118, para. 85

judgments of 16 December 2010 in Council v Stols, T‑175/09 P, ECR-SC, EU:T:2010:534, para. 22; and 4 December 2013 in ETF v Schuerings, T‑107/11 P, ECR-SC, EU:T:2013:624, para. 51 and the case-law cited therein