JUDGMENT OF THE GENERAL COURT (Appeal Chamber)
14 November 2017 (*)
(Appeal — Civil service — Officials — Promotion — 2014 promotion exercise — List of officials proposed for promotion by the Directors-General and heads of service — Omission of the appellant’s name — Obligation to state reasons — No error of law — No distortion of the evidence — Application for the recusal of a judge)
In Case T-668/16 P,
APPEAL brought against the judgment of the European Union Civil Service Tribunal (Single Judge) of 20 July 2016, HL v Commission (F‑112/15, EU:F:2016:161), and seeking to have that judgment set aside,
HL, represented by R. Rata, lawyer,
appellant,
the other party to the proceedings being
European Commission, represented initially by G. Berscheid, C. Berardis-Kayser and A.-A. Gilly, and subsequently by Berscheid, G. Gattinara and Berardis-Kayser, acting as Agents,
defendant at first instance,
THE GENERAL COURT (Appeal Chamber),
composed of M. Jaeger (Rapporteur), President, H. Kanninen and D. Gratsias, Judges,
Registrar: E. Coulon,
gives the following
Judgment
1 By his appeal lodged under Article 9 of Annex I to the Statute of the Court of Justice of the European Union, the appellant, HL, seeks to have set aside the judgment of the General Court of the European Union (Single Judge) of 20 July 2016, HL v Commission (F‑112/15, ‘the judgment under appeal’, EU:F:2016:161), by which the General Court dismissed his claim seeking annulment of the decision of 14 November 2014 by which the European Commission decided not to promote him to the next grade in the framework of the 2014 promotion exercise (‘the contested decision’).
The background to the dispute, the proceedings at first instance and the judgment under appeal
2 The background to the dispute is set out in paragraphs 11 to 19 of the judgment under appeal, as follows:
‘11 Having taken up duties on 16 July 2007 with the Commission’s DG Competition as an official in grade AD 5, the applicant was promoted to grade AD 6 with effect from 1 January 2011. Since 16 September 2011, he has been assigned to DG Research and Innovation.
12 On 14 April 2014, the appointing authority launched the 2014 promotion exercise by means of the Administrative Notice No 16-2014.
13 In accordance with the conditions set out in Article 5(2) to (5) of the GIP for Article 45, the Director-General of DG Research and Innovation, to which the applicant belonged for the purposes of the 2014 promotion exercise, decided not to include his name on the list of officials that he wished to propose for promotion. That list was published on 24 June 2014.
14 On 27 June 2014 the applicant, in accordance with the procedure provided for in Article 5(7) of the GIP for Article 45, contested before the [Joint Promotions Committee (‘JPC’)] the fact that he was not included in the abovementioned list (‘the appeal’).
15 On 26 September 2014 the [Joint Preparatory Group (‘JPG’)], tasked by the JPC to examine appeals on a preparatory basis and to issue draft ‘reasoned opinions’ for its attention, unanimously issued, to the JPC, the draft ‘reasoned opinion’ not to recommend the applicant for promotion to grade AD 7 (‘the draft opinion of the JPG’). That draft had to be subsequently submitted to the JPC.
16 All the JPG’s draft opinions concerning promotion were finally submitted to the JPC and were due to be discussed with a view to being adopted at the JPC meeting held on 22 October 2014. However, as is apparent from the applicant’s individual electronic file, a screenshot of which has been provided by him, ‘due to an absence of quorum [the JPC] was not in a position to issue a recommendation [to the appointing authority]’. The staff-representative members of the JPC withdrew from the JPC meeting on 22 October 2014, so that the JPC could not, during that meeting, endorse or otherwise the JPG’s draft opinion concerning the applicant’s appeal in the context of the promotion recommendations that the JPC was supposed to adopt in accordance with Article 5(7) of the GIP for Article 45.
17 On 14 November 2014, the Commission issued Administrative Notice No 41-2014 containing the list of promoted officials for the 2014 promotion exercise. The applicant’s name was not included in that list (‘the decision not to promote’).
18 By note of 13 February 2015, the applicant, under Article 90(2) of the Staff Regulations, lodged a complaint against the decision of non-promotion. In support of his complaint, he relied on (i) infringement of Article 45 of the Staff Regulations due, on the one hand, to the manifest inability of the appointing authority to undertake a comparison of the merits of the officials eligible for promotion in accordance with the new procedure established by the GIP for Article 45 and, on the other hand, a manifest error of assessment; (ii) infringement of Article 25 of the Staff Regulations due to failure to state reasons in the draft reasoned opinion of the JPG; (iii) infringement of the principle of the right of defence; (iv) infringement of the principle of good administration; (v) infringement of the principle of equal treatment, and, finally (vi) non-respect of the five-year promotion rates referred to in Annex I, Part B, of the Staff Regulations in so far as the applicant completed three years in grade AD 6 during the 2014 promotion exercise.
19 By decision of 4 June 2015 (‘the decision rejecting the complaint’), the appointing authority rejected the applicant’s complaint. ’
3 By application lodged at the Registry of the Civil Service Tribunal on 3 August 2015, the appellant sought annulment of the contested decision.
4 On 3 May 2016, the appellant submitted an application for the recusal of the Judge-Rapporteur, which the President of the Civil Service Tribunal rejected by decision of 24 May 2016 (‘the decision regarding recusal’).
5 By the judgment under appeal, the Civil Service Tribunal rejected the application for annulment of the contested decision.
The appeal
Procedure before the Court and forms of order sought
6 By document lodged at the Registry of the Court on 19 September 2016, the appellant brought this appeal, on the basis of Article 9 of Annex I to the Statute of the Court of Justice of the European Union.
7 On 19 January 2017, the Commission lodged its response.
8 The appellant claims that the Court should:
– set aside the judgment under appeal;
– annul the contested decision in so far as his name is not included therein;
– order the Commission to bear its own costs and to pay the costs incurred by him.
9 The Commission contends that the Court should:
– dismiss the appeal;
– order the appellant to pay the costs of the appeal.
Law
10 In support of his appeal, the appellant puts forward three grounds of appeal alleging (i) several errors of law committed by the Civil Service Tribunal in the examination of the first plea at first instance, (ii) several errors of law committed by the Civil Service Tribunal in the examination of the second plea at first instance and (iii) infringement of the right to an effective remedy due to the lack of impartiality of the Civil Service Tribunal.
The first ground of appeal, alleging several errors of law committed by the Civil Service Tribunal in the examination of the first plea at first instance
11 By this ground of appeal, the appellant argues that the Civil Service Tribunal made several errors of law in the examination of the first plea at first instance, alleging infringement of Article 45(1) of the Staff Regulations of the European Union (‘the Staff Regulations’). The Civil Service Tribunal, it is claimed, (i) considered, contrary to the applicable case-law, that it was not necessary to review the legality of the appointing authority’s acts if that authority declares that it has fulfilled its legal obligations and duties, (ii) wrongly rejected the notes of the Joint Monitoring Committee (‘the JMC’) which demonstrated that the appraisal reports used by the appointing authority were not sufficiently comparable, (iii) failed to rule on the evidence provided by the appellant as regards the mathematical evaluation of the appointing authority’s literary assessment methodology and on the entire second part of the first plea at first instance, and (iv) erred in assuming that the absence of an effective comparative examination of the merits was not grounds for annulment of a promotion decision.
12 The Commission contests the appellant’s arguments.
13 It is appropriate to begin by examining the appellant’s second and fourth arguments.
14 In that regard, the appellant submits, in the second argument, that, in essence, in paragraph 53 of the judgment under appeal, the Civil Service Tribunal distorted the file by failing to take due account of the JMC report, containing a criticism of the conditions under which the 2014 promotion exercise had been conducted, which unquestionably demonstrated that the appraisal reports were not sufficiently comparable. Moreover, the Civil Service Tribunal erred in law in finding, in paragraph 47 of the judgment under appeal, that the new system put in place by the Commission guaranteed a comparative examination of the merits of the officials eligible for promotion, given that the Commission has not demonstrated that it has established such a system.
15 Finally, in the fourth argument, the Civil Service Tribunal erred in law in presuming that the absence of an effective evaluation of the comparative merits did not constitute a ground for annulment of a promotion decision.
16 It should be recalled that it is clear from settled case-law that the court at first instance has exclusive jurisdiction, first, to find the facts, except where a substantive inaccuracy of its findings is apparent from the documents submitted to it, and, second, to assess those facts. The appraisal of the facts by the first instance court therefore does not, except in the case of distortion of the evidence submitted to that court, constitute a question of law which, as such, is subject to review by the appeal court. Where the court of first instance has found or assessed the facts, the appeal court has jurisdiction to review the legal characterisation of those facts and the legal inferences drawn by the court of first instance (see judgment of 4 December 2013, ETF v Schuerings, T‑107/11 P, EU:T:2013:624, paragraph 57 and the case-law cited).
17 It should be noted next that, when an appellant alleges distortion of evidence by the court at first instance, the appellant must, pursuant to Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 195(2) of the Rules of Procedure of the General Court, indicate precisely the evidence alleged to have been distorted and show the errors of appraisal which, in his view, led the court at first instance to such distortion. Furthermore, it is settled case-law that a distortion of the evidence must be obvious from the documents before the Court, without there being any need to carry out a new assessment of the facts and the evidence (see judgment of 15 March 2017, Fernández González v Commission, T‑455/16 P, not published, EU:T:2017:169, paragraph 25 and the case-law cited).
18 Moreover, it must be pointed out that, in the judgment of 22 September 2015, Silvan v Commission (F‑83/14, EU:F:2015:106), on which the appellant has been given an opportunity to express his views in the context of the Reply before the Civil Service Tribunal, which judgment was upheld on appeal by the judgment of 1 March 2017, Silvan v Commission (T‑698/15 P, not published, EU:T:2017:131), the Civil Service Tribunal held that the system established by the Commission, based on the wording of the comments of the reporting officers, makes it possible to mitigate the risk of heterogeneity between their appraisals, due to the existence of several elements, namely, for example, online material for reporting officers and organised training, thus allowing the reports of officials eligible for promotion to be compared.
19 As regards the second argument, it should be noted that, in paragraph 53 of the judgment under appeal, the Civil Service Tribunal held, on the one hand, that the notes of an advisory body or of the members of such a body in no way prove that the appraisal reports specifically concerning the officials eligible for promotion were deficient or insufficiently homogeneous and found, on the contrary, that excerpts from appraisal reports of grade AD 6 officials eligible for promotion included in the decision rejecting the complaint were comparable. Furthermore, in paragraph 47 of the judgment under appeal, the Civil Service Tribunal also held that the appraisal reports drawn up by the Commission’s appointing authority following the new analytical methodology, excerpts from which appear in the decisions rejecting the complaints, revealed a careful, detailed and structured form of appraisal, based on identical criteria and parameters applied in a uniform manner in the appraisals of all the officials concerned.
20 That being so, it is sufficient to note that, with regard to the criticism relating to paragraph 53 of the judgment under appeal, the appellant merely maintains that the JMC notes had indisputably demonstrated that the appraisal reports drawn up by the appointing authority were not sufficiently comparable, but does not provide any argument to conclude that the Civil Service Tribunal, by holding that those notes in no way establish that those reports were deficient or insufficiently homogeneous, obviously distorted the file within the meaning of the case-law referred to in paragraph 17 above. Moreover, the appellant, in essence, asks the appeal court to carry out a complete re-examination of his argument, which is outside the jurisdiction of that court (see, to that effect, judgment of 26 November 2015, Morgan v OHIM, T‑683/14 P, EU:T:2015:890, paragraph 23 and the case-law cited). Furthermore, it must be noted that the appellant adduces no argument capable of calling into question the conclusion reached by the Civil Service Tribunal in the second part of paragraph 53 of the judgment under appeal, namely that excerpts from appraisal reports of grade AD 6 officials eligible for promotion included in the decision rejecting the complaint were comparable.
21 The same applies to the criticism relating to paragraph 47 of the judgment under appeal. The appellant merely challenges the assessment made by the Civil Service Tribunal, which held that, in the present case, the information made available to the Commission made it possible to conclude that the new analytical methodology adopted by the latter revealed a careful, detailed and structured form of appraisal, based on criteria and parameters identical to those that had been applied in a uniform manner in the appraisals of all the officials concerned, without providing any argument in support of his assertion capable of demonstrating that the analysis made by the Civil Service Tribunal is vitiated by error of law.
22 Accordingly, in so far as the Civil Service Tribunal was entitled to conclude, on the basis of the file at its disposal, first, that the system established by the Commission, capable of mitigating the heterogeneity of the different reporting officers, could guarantee a comparative examination of the merits of the officials eligible for promotion on a basis of equality and using comparable sources and, secondly, that that examination had been carried out in the present case, the fourth argument must also be rejected. That argument is not borne out by the facts, to the extent that it is based on an erroneous premiss, namely the absence of a comparative examination of the merits of the grade AD 6 officials eligible for promotion on a basis of equality and using comparable sources.
23 As regards the first argument, the appellant maintains that, after having recalled, in paragraphs 49 and 50 of the judgment under appeal, that the right to appeal against the decisions of the Directors-General not to propose for promotion officials eligible for promotion enables those officials to have a consideration of their comparative merits at the level of the institution as a whole and, in paragraph 51 of that judgment, that the appointing authority is required to carry out a detailed examination of the situation of those officials on the basis of their objections, the draft reasoned opinions and the recommendations of the Joint Promotion Committees (‘the JPCs’), the Civil Service Tribunal, in paragraph 52 of that judgment, departed from its own reasoning, by establishing another criterion for determining whether the Commission had complied with the obligation laid down in Article 45 of the Staff Regulations. According to the appellant, the Civil Service Tribunal, in paragraph 52 of the judgment under appeal, in holding that ‘the appointing authority satisfies its obligations under the Staff Regulations if it highlights clearly ... the fact that it has ... itself compared the merits of all officials eligible for promotion’, established that the appointing authority’s duty to fulfil its obligations under the Article 45 of the Staff Regulations is declaratory, since it would be sufficient for the administration to state that it had satisfied its obligations for the judge to confirm that conclusion.
24 In that regard, it should be recalled at the outset that sole responsibility for promotion decisions, and for the consideration of comparative merits provided for in Article 45 of the Staff Regulations, rests with the appointing authority (judgment of 4 February 1987, Bouteiller v Commission, 324/85, EU:C:1987:59, paragraph 11).
25 However, while Article 45(1) of the Staff Regulations requires the appointing authority to consider, prior to any promotion decision, the comparative merits of all officials eligible for promotion, the appointing authority may be assisted by the administrative services at the various hierarchical levels, in accordance with the principles inherent in the operation of any hierarchical administrative structure. Thus, the appointing authority may provide for prior consideration within each Directorate-General of the personal files of officials eligible for promotion, even if such prior consideration cannot take the place of the comparative consideration which must be undertaken subsequently by a promotion committee, where provision is made for such consideration, and then in any event by the appointing authority at the end of the promotion exercise (see, to that effect, judgment of 30 November 1993, Tsirimokos v Parliament, T‑76/92, EU:T:1993:106, paragraph 17).
26 In the context of the promotion procedure provided for by Commission Decision C(2013) 8968 final of 16 December 2013 laying down general provisions for implementing Article 45 of the Staff Regulations (‘the GIP for Article 45’), it is true that the appointing authority cannot be allowed simply to consider the merits of those officials who are placed at the top of the lists prepared by the various services or Directorates-General (see, to that effect, judgment of 8 May 2001, Caravelis v Parliament, T‑182/99, EU:T:2001:131, paragraph 34). However, in the system of identification, decentralised at the level of the Directorates-General of the institution, of officials eligible for promotion who are to be proposed for promotion at that stage to the appointing authority, in the form that that system is established by the GIP for Article 45, the exercise by officials, who were not proposed for promotion at that stage by their respective Directorates-General, of their right, laid down by the GIP for Article 45, to submit an appeal to the JPC against those decisions not to propose them for promotion, enables those officials to have before that joint body a consideration of their comparative merits not only at the level of their respective Directorates-General, but also at that of the institution as a whole.
27 Thus, the appointing authority may involve a joint consultative body such as the JPC during the preparatory phase of its promotion decisions. Furthermore, that appointing authority may provide for those committees to be assisted by another joint body, in the present case the joint preparatory group (‘JPG’), whose adopted draft reasoned opinions it may take into account. Consequently, in lodging their appeals, the officials eligible for promotion not proposed for promotion by the Directorates-General to which they belong have, within the framework of the system set up by the GIP for Article 45, the opportunity to bring their cases to the attention of the appointing authority so that the latter, on the basis of their challenges, after the promotion procedure, proceeds to a detailed examination of their respective situations in the framework of the comparative examination of the merits of all officials eligible for promotion.
28 Moreover, it must also be noted that, according to settled case-law, while it is true that the files of officials eligible for promotion must be made available to the appointing authority, the appointing authority cannot be required to explain in each case the use it has made of the information available to it (judgments of 17 March 1983, Hoffmann v Commission, 280/81, EU:C:1983:82, paragraph 7, and of 1 March 2017, Silvan v Commission, T‑698/15 P, not published, EU:T:2017:131, paragraph 22).
29 Finally, in any event, the appointing authority satisfies its obligations under the Staff Regulations if it highlights clearly in the decision rejecting the complaint, the fact that it has, on the basis of all the information available and in particular the appraisal reports of the staff members concerned, itself compared the merits of all officials eligible for promotion, irrespective of whether or not they were included on the initial lists of officials proposed for promotion by the Directors-General and heads of service of the institution (see, to that effect, judgments of 21 September 1999, Oliveira v Parliament, T‑157/98, EU:T:1999:173, paragraph 50, and of 15 December 2015, Bonazzi v Commission, F‑88/15, EU:F:2015:150, paragraph 87).
30 It follows that, in a system of identification of officials eligible for promotion, decentralised at the level of the Directorates-General of the institution, the appointing authority may, first, in the preparatory stage of its decisions on promotion, involve a joint advisory body such as the JPC to conduct a comparison of merits at the level of the institution and, secondly, is bound to have regard to the reasoned opinions issued by that body. However, the appointing authority alone is responsible for the promotion decisions and the comparative examination of the merits provided for in Article 45 of the Staff Regulations.
31 As a result of that exclusive responsibility of the appointing authority provided for in the Staff Regulations, if, in the express rejection of the complaint, the appointing authority, by disregarding the proposals made by the Directors-General, itself conducts a comparison of the merits of all officials eligible for promotion on the basis of comparable evaluation reports, it thereby fulfils its statutory obligations. In those circumstances, in any event, even if the Commission has set up a decentralised procedure for the purposes of adopting promotion decisions, it ensures respect of the obligation provided for in Article 45 of the Staff Regulations, namely that of making a comparison between all officials eligible for promotion at the level of the institution, in the express rejection of the complaint.
32 That being so, it should be noted, in the first place, that the appellant’s argument is based on a misreading of the judgment under appeal, in so far as, in paragraph 52 of that judgment, the Civil Service Tribunal did not merely find that a simple declaration by the administration was sufficient to show that it had satisfied the obligation to compare the merits of all officials eligible for promotion.
33 Indeed, the Civil Service Tribunal found that, in the present case, the appointing authority, in the express rejection of the complaint, had made it clear that it had conducted, on the basis of all the information available, including the appraisal reports of the staff members concerned, a comparative examination of the merits of all the officials eligible for promotion, irrespective of whether or not they appeared on the initial lists of officials proposed by the Directors-General and heads of service of the institution. Thus, contrary to what the appellant claims, the Civil Service Tribunal did not simply endorse a statement by the appointing authority, but found that it was clear from the file, and in particular from the rejection of the complaint, that the appointing authority had actually made a comparison between all the officials eligible for promotion, irrespective of whether or not they appeared on the initial lists of officials proposed by the Directors-General and heads of service of the institution, on the basis of the appraisal reports which, as noted in paragraph 22 above, allowed a comparison of the merits of officials eligible for promotion on the basis of comparable sources.
34 In the second place, the appellant cannot criticise the Civil Service Tribunal for departing from its own reasoning in paragraph 52 of the judgment under appeal. In that paragraph, the Civil Service Tribunal applied the settled case-law, referred to in paragraph 29 above, according to which, although there is a decentralised system for the promotion procedure, the appointing authority may fulfil its statutory obligation to conduct a comparative examination of the merits of officials eligible for promotion in the express rejection of the complaint.
35 Finally, with regard to the third argument, by which the appellant criticises the Civil Service Tribunal for failing to rule on the evidence provided by him regarding the mathematical evaluation of the appointing authority’s literary assessment methodology as well as the entire second part of the first plea at first instance, the matters set out below must be considered.
36 As regards the omission to rule on the mathematical evaluation of the appointing authority’s literary assessment methodology, the appellant submits, on the basis of a mathematical formula, that he has demonstrated that, by using the literary assessment methodology, the appointing authority could not, in the context of the promotion procedure, have made a comparison between all the officials eligible for promotion within the prescribed period and with the limited resources at its disposal.
37 In that regard, it is sufficient to state that that argument must be rejected as ineffective. As was pointed out in paragraph 22 above, in the present case, irrespective of the promotion procedure, the Civil Service Tribunal rightly concluded that the appointing authority, in the rejections of the complaints, had itself carried out a comparative examination of the merits of all the grade AD 6 officials eligible for promotion on the basis of comparable appraisal reports. In the light of that finding, the argument relating to the failure to rule on the second part of the first ground of appeal at first instance, which essentially concerned several structural flaws in the promotion procedure, must also be regarded as ineffective, to the extent that those so-called structural defects are not likely to affect the rejection of the complaints in which the appointing authority has conducted an examination of the merits of grade AD 6 officials eligible for promotion, irrespective of that procedure.
38 The first ground of appeal must therefore be rejected as unfounded.
The second ground of appeal, alleging several errors of law committed by the Civil Service Tribunal in the examination of the second plea at first instance.
39 By this ground of appeal, the appellant argues that the Civil Service Tribunal, first, arbitrarily limited the scope and applicability of Article 25 of the Staff Regulations and his fundamental rights and, secondly, erred in rejecting his second plea at first instance. Essentially, the appellant maintains that the appointing authority is required to take into consideration all of the information available to it, including the appeals made by the officials against their non-proposal by their Directors-General, the draft reasoned opinions of the JPG and the recommendations of the JPC, in so far as those reasoned opinions form part of the larger body of the sources of information the appointing authority has to include in its own independent examination of officials’ comparative merits. Consequently, according to the appellant, the Civil Service Tribunal erred in law, first, in paragraph 65 of the judgment under appeal, by holding that those opinions do not fall within the scope of Article 25 of the Staff Regulations and, on the other hand, by not finding that a failure to state reasons in those reports prevented the appointing authority from conducting a proper comparative examination of the merits of the officials eligible for promotion.
40 The Commission contests the appellant’s arguments.
41 According to settled case-law, although the appointing authority is not required to state the reasons for its decisions on promotion, it is nevertheless required to state the reasons for its decision rejecting a complaint lodged by a staff member who has not been promoted (judgments of 7 February 1990, Culin v Commission, C‑343/87, EU:C:1990:49, paragraph 13, and of 11 June 1996, Anacoreta Correia v Commission, T‑118/95, EU:T:1996:80, paragraph 82).
42 In that regard, it should also be recalled that JPG and JPC are not necessarily required to justify their positions in detail (see, to that effect, judgment of 19 October 2006, Buendía Sierra v Commission, T‑311/04, EU:T:2006:329, paragraph 143), in so far as the draft JPG opinions, as well as the recommendations to be adopted by the JPC, are only preparatory acts for the final decisions of the appointing authority which, in addition, are adopted only by purely advisory bodies and not by the appointing authority. Thus, they are without prejudice to the final position to be adopted by the administration at the end of the promotion exercise and therefore cannot be regarded as acts having an adverse effect within the meaning of Article 90(2) of the Staff Regulations, it being nevertheless possible to challenge those preparatory acts incidentally in complaints lodged against the appointing authority’s final decisions, such as the decisions of non-promotion, and subsequently in an action brought before the General Court under Article 270 TFEU (see, to that effect, judgment of 11 May 2010, Nanopoulos v Commission, F‑30/08, EU:F:2010:43, paragraph 108 and the case-law cited).
43 In the present case, in accordance with the case-law cited in paragraph 41 above, the Civil Service Tribunal found, first of all, in paragraph 61 of the judgment under appeal, that the appointing authority is not required to motivate the decisions it adopts on promotion, but is, rather, obliged to justify the decision rejecting a complaint lodged by a staff member who has not been promoted, and, subsequently, that JPGs and JPCs are not required to justify their positions in detail, since the acts adopted by those advisory bodies are not, in any event, acts adversely affecting them within the meaning of Article 90(2) of the Staff Regulations. Moreover, the General Court added, in paragraph 65 of the judgment under appeal, that those preparatory acts could, however, be contested incidentally in the context of complaints brought against the appointing authority’s final decisions, such as non-promotion decisions, and subsequently in the context of an action brought before the General Court, on the basis of Article 270 TFEU. Finally, for the sake of completeness, in paragraph 66 of the judgment under appeal, the Civil Service Tribunal found that, even assuming that the opinions were not reasoned, in breach of the provisions in force, that would not have been sufficient to result in the annulment of the contested decision, as the appointing authority complied with the obligation to state reasons in the rejection of the complaint.
44 This ground of appeal must be rejected as ineffective, without the need to examine the appellant’s arguments. Indeed, in so far as it was held that the appointing authority justified the contested decision, in the express rejection of the complaints, regardless of whether or not the officials had been proposed for promotion, even if it were established that the draft JPG opinions for officials in function group AD were not, in breach of the requirements of Article 5(2) and (3) of the rules of procedure for the Joint Preparatory Groups of the JPCs, ‘reasoned’ within the meaning of those internal provisions in force at the Commission and that the reasoned opinions adopted by the JPC AST do not contain detailed reasons either, such a breach of those internal provisions have had no impact on the obligation to state reasons fulfilled by the appointing authority in the context of the complaint rejections, as the Civil Service Tribunal held in paragraph 66 of the judgment under appeal.
45 It follows that the second ground of appeal must be dismissed as unfounded.
The third ground of appeal, alleging breach of the right to an effective remedy due to the lack of impartiality of the Civil Service Tribunal
46 By this ground of appeal, the appellant maintains that his right to an effective remedy has been infringed before the Civil Service Tribunal.
47 First, the decision regarding recusal is vitiated by several errors of law. In the first place, the appellant claims that, in spite of the fact that the President of the Civil Service Tribunal found that the Judge-Rapporteur had copied and pasted passages of the preparatory report for the hearing from another case concerning other appellants, a case concerning an entirely different matter, he neither recused that judge nor transferred the case to another chamber. In the second place, the President of the Civil Service Tribunal also erred in law in concluding that the fact that the Judge-Rapporteur had used the adjective ‘reasoned’ when referring to the opinion issued by the JPGs, finding that it was the term used in the JPG’s rules of procedure, was not a ground for recusal. However, according to the appellant, the President of the Civil Service Tribunal disregarded the fact that the title of the preparatory report for the hearing under which that wording was included was not ‘Legal framework’ but ‘Background to the dispute’, which demonstrates a representation of the facts which is not neutral and impartial.
48 Secondly, the Civil Service Tribunal failed to fulfil its obligation to conduct an impartial and effective judicial review in so far as several pieces of evidence and arguments were dealt with in an irregular manner. In particular, according to the applicant, the Civil Service Tribunal failed to respond, in the first place, to the argument by which he had mathematically demonstrated that the appointing authority, using its literary method, could not have conducted a comparison between all the officials eligible for promotion within the prescribed period and with the resources at its disposal and, in the second place, to the second part of the first plea in law at first instance.
49 The Commission contests the appellant’s arguments.
50 It is appropriate to examine, first, the argument by which the appellant criticises the President of the Civil Service Tribunal for erring in law by failing to grant his application for recusal of the Judge-Rapporteur in the case giving rise to the judgment under appeal.
51 It should be noted that, in paragraph 14 of the decision regarding recusal, the President of the Civil Service Tribunal first referred to the settled case-law according to which there are, in fact, two aspects to the requirement of impartiality. In the first place, the judge must be subjectively impartial, that is to say, he must show neither bias nor personal prejudice, there being a presumption of personal impartiality in the absence of evidence to the contrary. In the second place, the judge must be objectively impartial, that is to say, he must offer guarantees sufficient to exclude any legitimate doubt in this respect (see judgment of 19 February 2009, Gorostiaga Atxalandabaso v Parliament, C‑308/07 P, EU:C:2009:103, paragraph 46 and the case-law cited).
52 Subsequently, the President of the Civil Service Tribunal found that the two arguments raised by the appellant in order to demonstrate why it was necessary to recuse the Judge-Rapporteur could not succeed.
53 In the first place, with regard to the argument that the wording of paragraph 13 of the preparatory report for the hearing of the case which gave rise to the judgment under appeal, according to which ‘[a]fter carrying out a comparative examination of the merits of the grade AD 6 officials eligible for promotion in accordance with the rules set out Article 5(2) to (5) of the GIP for Article 45, the Director-General of DG Research and Innovation, to which the appellant belonged for the 2014 promotion exercise, decided not to include his name among the lists of officials that he wished to propose for promotion’, had predetermined the outcome of the treatment of the first plea at first instance, the President of the Civil Service Tribunal held, in paragraphs 17 and 18 of the decision regarding recusal, that there was no apparent bias on the part of the Judge-Rapporteur against the appellant. After finding that the appellant had criticised the appointing authority for not having made a comparison between all the officials eligible for promotion pursuant to Article 45 of the Staff Regulations, the President of the Civil Service Tribunal noted that paragraph 13 of the preparatory report for the hearing of the case which gave rise to the judgment under appeal, reproducing, in essence, a paragraph contained in the preparatory report for the hearing of the case which gave rise to the judgment of 15 December 2015, Bonazzi v Commission (F‑88/15, EU:F:2015:150), first, merely stated that the appellant’s Directors-General, and not the appointing authority, had made a comparison of the merits and, secondly, that the comparison had been made in accordance with Article 5(2) to (5) of the GIP for Article 45. In that regard, the President of the Civil Service Tribunal added that the term ‘in accordance with’ referred to the GIP for Article 45, which the appellant did not claim to have been infringed, and not to Article 45 of the Staff Regulations. Accordingly, the President of the Civil Service Tribunal held that paragraph 13 of the preparatory report for the hearing of the case giving rise to the judgment under appeal did not demonstrate bias on the part of the Judge-Rapporteur.
54 In the second place, as regards the argument that, by using the adjective ‘reasoned’ with reference to the opinion given by the JPG, the Judge-Rapporteur had predetermined the outcome of the treatment of the second plea at first instance, the President of the Civil Service Tribunal found, in paragraphs 19 and 20 of the decision regarding recusal, that the Judge-Rapporteur had taken that adjective from Article 5(2) and (3) of the JPG rules of procedure, also cited in the preparatory report for the hearing of the case giving rise to the judgment of 15 December 2015, Bonazzi v Commission (F‑88/15, EU:F:2015:150), and Article 5 of the rules of procedure of the JPC and that, therefore, its use could not be considered as an event predetermining the outcome of the plea. In the light of those considerations, the President of the Civil Service Tribunal rejected the application for recusal, finding that there was no need to apply the second sentence of the second paragraph of Article 18 of the Statute of the Court of Justice of the European Union.
55 In doing so, the President of the Civil Service Tribunal did not err in law. As regards the appellant’s argument that the President of the Civil Service Tribunal erred in law in finding that the Judge-Rapporteur had copied and pasted the contents of another preparatory report for the hearing but did not conclude from this that the latter was biased, it is sufficient to note that, contrary to what the appellant claims, the President of the Civil Service Tribunal did not find that the Judge-Rapporteur had copied and pasted the contents of another preparatory report for the hearing, but that paragraph 13 of the preparatory report for the hearing of the case giving rise to the judgment under appeal was ‘essentially identical’ to that in the case giving rise to the judgment of 15 December 2015, Bonazzi v Commission (F‑88/15, EU:F:2015:150).
56 Furthermore, even assuming that the Judge-Rapporteur had copied and pasted the content of the preparatory report for the hearing of another case, which the appellant claims to be different from that which gave rise to the judgment under appeal, he does not explain what this difference consists of and, above all, to what extent, if that difference were established, that would prove the Judge-Rapporteur was biased against him. Moreover, as the President of the Civil Service Tribunal correctly held, the Judge-Rapporteur, in paragraph 13 of the preparatory report for the hearing of the case giving rise to the judgment under appeal, referred to the GIP for Article 45 and not to Article 45 of the Staff Regulations, the appointing authority’s infringement of which was the subject of the first plea at first instance. Accordingly, the President of the Civil Service Tribunal rightly concluded that the wording of that paragraph did not demonstrate that the Judge-Rapporteur was biased against the appellant.
57 The same also applies to the argument that the President of the Civil Service Tribunal disregarded the fact that the reference to the adjective ‘reasoned’ in relation to the opinion issued by the JPG appeared under the heading ‘background to the dispute’ and not under that relating to the ‘legal framework’. In that regard, it is sufficient to point out that the position of that expression under ‘Legal framework’ or under ‘Background to the dispute’ is irrelevant since, as the President of the Civil Service Tribunal noted, the Judge-Rapporteur used expressions derived directly from the applicable rules. Thus, the President of the Civil Service Tribunal rightly found that the use of expressions coming directly from the applicable rules could not, in itself, call into question the impartiality of the Judge-Rapporteur.
58 Finally, with regard to the argument that the treatment of several pieces of evidence and arguments had been irregular and, in particular, that the Civil Service Tribunal had failed to respond, in the first place, to the argument in which the appellant had mathematically demonstrated that the appointing authority, using its literary method, could not have conducted a comparison between all the officials eligible for promotion within the prescribed period and with the resources at its disposal and, in the second place, to the second part of the first plea at first instance, this must be rejected as ineffective.
59 In paragraph 37 above, it was held that the arguments referred to in paragraph 58 above, by which the appellant, in essence, calls into question the promotion procedure, have no bearing on the present case, in so far as the appointing authority, in the context of the rejection of the complaint, conducted a comparative examination of the merits of the grade AD 6 officials eligible for promotion, independently of the initial proposals made by the Director-General of DG Research and Innovation. Thus, even if it is conceded that the Civil Service Tribunal’s treatment of the evidence and arguments relating to the conduct of the promotion procedure following the initial proposal made by the Director-General of DG Research and Innovation was irregular, by failing to respond to that evidence and arguments, that would not be likely to have consequences for the contested decision.
60 Accordingly, that ground of appeal and the appeal as a whole must be dismissed in its entirety.
Costs
61 In accordance with Article 211(2) of the Rules of Procedure, where the appeal is unfounded, the Court is to make a decision as to costs.
62 Under Article 134(1) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 211(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
63 Since the appellant has been unsuccessful in his claims in the appeal and the Commission has applied for costs, the appellant must bear his own costs and pay those incurred by the Commission in the present proceedings.
On those grounds,
THE GENERAL COURT (Appeal Chamber)
hereby:
1. Dismisses the appeal.
2. Orders HL to bear his own costs and to pay those incurred by the European Commission in the present appeal proceedings.
Delivered in open court in Luxembourg on 14 November 2017.
E. Coulon | | S. Frimodt Nielsen |