CELEX: 62014TJ0130
Appeals
Civil service
Officials
Advancement in grade
Classification in grade
Decision not to award the person concerned grade AD 9 after he had passed a grade AD 9 open competition
Distortion of the evidence

By its appeal lodged pursuant to Article 9 of Annex I to the Statute of the Court of Justice of the European Union, the Council of the European Union seeks to have set aside the judgment of the European Union Civil Service Tribunal (First Chamber) of 12 December 2013 in Simpson v Council (
F‑142/11
, ECR-SC,
EU:F:2013:201
, ‘the judgment under appeal’), by which the Tribunal annulled the decision of the Council of 9 December 2010, rejecting the application of Mr Erik Simpson, which sought an upgrade to grade AD 9 on the ground that he had passed Competition EPSO/AD/113/07, invoking similar decisions which had been taken previously in other cases (‘the contested decision’).
Facts
The background to the dispute is set out in paragraphs 4 to 12 of the judgment under appeal, as follows:
Proceedings at first instance and judgment under appeal
By application lodged at the Tribunal Registry on 27 December 2011, Mr Simpson brought an action seeking, first, the annulment of the contested decision and, in so far as is necessary, of the Council decision of 7 October 2011 rejecting his complaint (‘the decision rejecting the complaint’) and, secondly, an order that the Council pay compensation for the harm suffered.
By the judgment under appeal, the Civil Service Tribunal annulled the contested decision, dismissed the action as to the remainder, and ordered the Council to pay the costs.
First, as regards the head of claim relating to annulment, the Civil Service Tribunal observed in paragraphs 22 and 23 of the judgment under appeal that, according to the Council, since there was no provision in the Staff Regulations conferring a right on officials automatically to be promoted solely on account of having passed a competition for a grade higher than their own, such a decision could be taken only where it was in the interest of the service, and that the Council had a wide discretion in that regard. In the present case, the Council had taken the view that, in terms of the interest of the service, the situation of Mr Simpson’s language unit did not call for any recruitment at grade AD 9 and that the position was different in the case of the three officials in comparison with whom Mr Simpson claimed to have suffered discrimination.
In paragraph 24 of the judgment under appeal, the Civil Service Tribunal held that, in the contested decision and in the decision rejecting the complaint, ‘the Council [did not] mention or explain to [Mr Simpson] that, in the case of the three officials referred to in his request, there had not been either a promotion within the meaning of Article 45 of the Staff Regulations, or a recruitment, but an “upgrade in the interests of the service”, as described in the defence’ and that such a ‘lack of clarity [regarding] the legal basis of the decisions on the situation of those three officials compared with that of [Mr Simpson was] borne out by the fact that [he had] stated, in his application, that it was still difficult for him to understand why, in the case of the three officials concerned, their promotion was justified in the interest of the service and how the factual background warranted such a promotion’.
In paragraph 26 of the judgment under appeal, the Civil Service Tribunal held that the statement of reasons provided for rejecting Mr Simpson’s request and complaint was based on a mere reference to the interest of the service, without any other explanation. In particular, the fact that the Council failed to explain that the case of the three officials in question did not concern promotion but related to a measure not provided for in the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) prevented the Civil Service Tribunal from exercising its power of review.
Moreover, in view of the case-law principles, set out in paragraphs 27 to 30 of the judgment under appeal, governing the duty to provide a statement of reasons, the Civil Service Tribunal noted that, in the contested decision, the Council had stated that nothing in the Staff Regulations enabled a person automatically to be promoted as the result of a competition, whereas, during the hearing, it had explained that Article 31(2) of the Staff Regulations was the legal basis for such a decision. In addition, for the first time in the course of the proceedings, the Council had explained, first, that the three officials, in comparison with whom Mr Simpson claimed to have suffered discrimination, had received an ‘upgrade in the interest of the service’, a measure not provided for in the Staff Regulations and separate from a promotion based on an assessment of the merits of the official under Article 45 of those regulations, and, secondly, that Mr Simpson ‘had been the first to be subject to [a] new, more restrictive policy [regarding] “upgrades in the interest of the service”’.
Accordingly, the Civil Service Tribunal concluded, in paragraphs 31 and 32 of the judgment under appeal, that it was appropriate to annul the contested decision on grounds of breach of the duty to state grounds, without it being necessary to give a ruling on the other pleas in the application.
Secondly, as regards the head of claim relating to compensation for the harm suffered, the Civil Service Tribunal found, in paragraphs 36 to 39 of the judgment under appeal, that the application seeking compensation for the material harm suffered had to be dismissed and that the annulment of the contested decision constituted, in the circumstances, adequate compensation for the non-material harm suffered.
Procedure before the Court and forms of order sought
By document lodged at the Registry of the General Court on 24 February 2014, the appellant brought the present appeal. On 10 June 2014 Mr Simpson lodged his response.
The written procedure was closed on 7 July 2014.
By reasoned letter lodged at the Court Registry on 15 July 2014, the Council applied, pursuant to Article 146 of the Rules of Procedure of the General Court, for the right to be heard during the oral procedure.
After hearing the report of the Judge-Rapporteur, the General Court (Appeal Chamber) decided to allow that application and opened the oral procedure.
The parties presented oral argument and replied to the questions put by the Court at the hearing on 23 April 2015.
The Council claims that the Court should:
—
set aside the judgment under appeal, in so far as it annulled the contested decision and ordered the Council to bear its own costs and to pay the costs incurred by Mr Simpson;
—
refer the case back to the Civil Service Tribunal;
—
order Mr Simpson to pay the costs of the present proceedings.
Mr Simpson contends that the Court should:
—
dismiss the appeal as inadmissible or, in the alternative, as unfounded;
—
order the Council to pay the costs of the proceedings at first instance and on appeal.
The appeal
The Council relies on a single ground of appeal, alleging in essence that the Civil Service Tribunal distorted the evidence.
As a preliminary point, the Council submits that the statement of the facts of the case is, at certain points of the judgment under appeal, partially inaccurate, in so far as the Civil Service Tribunal refers to the term ‘promotion’, whereas the contested decision and the decision rejecting the complaint always use the expression ‘upgrade’, which is the expression used by Mr Simpson in his request. That inaccuracy had consequences for the subsequent findings of the Civil Service Tribunal.
The Council submits that it did not explain the rejection of Mr Simpson’s request simply by referring to the interest of the service, but provided an adequate statement of reasons for its decision. In the decision rejecting the complaint, the appointing authority did give concrete reasons for assessing Mr Simpson’s case differently from those of the three officials who had been upgraded in the past. Furthermore, the Council claims that it did not amend the grounds of the contested decision by justifying that decision in the light of provisions other than those relied upon initially. Those provisions are not called into question by the arguments advanced before the Civil Service Tribunal.
In short, the Council considers that the findings of the Civil Service Tribunal distort the evidence. Accordingly, it claims that the judgment under appeal should be set aside in respect of the finding that the contested decision is unlawful owing to a breach of the duty to provide a statement of reasons.
Mr Simpson objects, as his main contention, that the appeal is inadmissible, in so far as it constitutes an attempt by the Council to obtain a fresh assessment of the matters of fact by the General Court. According to Mr Simpson, the Council has failed to establish the existence of a substantive inaccuracy in the findings of the Civil Service Tribunal or a distortion of the evidence submitted to it. At the hearing, moreover, he stated that it was not possible to plead a distortion of items of evidence that had never been assessed by the Civil Service Tribunal; in the present case, it merely noted the failure to state grounds, which is a question of law, on the basis of which it annulled the contested decision.
In the alternative, he argues that the appeal is unfounded. In alleging distortion of the facts in order to challenge the judgment under appeal, the Council focuses its appeal, essentially, on the substantive issue of the statement of reasons provided for the appointing authority’s decision. According to Mr Simpson, no reasons were given in the contested decision on the basis of which it was possible to understand — given the evidence that he adduced — the nature of the interest of the service that justified the upgrading of the three officials in question or why no such interest existed with regard to him.
The duty to provide a statement of reasons should have been more comprehensive, since the contested decision was based on a concept which was not expressly provided for in the Staff Regulations and the application of which entailed a wide margin of discretion on the part of the Council. In addition, the conditions for applying the new, more restrictive policy for upgrades in the interest of the service should have been specified in detail.
Moreover, the reference to Article 31(2) of the Staff Regulations was not only made out of time, but is also contradictory, in so far as the concept of an ‘upgrade in the interest of the service’ cannot be based on that provision if, at the same time, it is not expressly provided for in the legislation.
Finally, Mr Simpson regrets the fact that it has not been possible to have access to the decisions upgrading the other officials in order to understand whether those decisions were based on the interest of the service or on other specific provisions.
In the first place, as regards the plea of inadmissibility raised by Mr Simpson, it should be borne in mind that, according to settled case-law, the Civil Service Tribunal has exclusive jurisdiction, first, to find the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it and, secondly, to assess those facts. The assessment of the facts is not therefore, other than in cases where the evidence produced before the Civil Service Tribunal has been distorted, a question of law which is subject, as such, to review by the General Court (see judgment of 24 October 2011 in P v Parliament,
T‑213/10 P
, ECR-SC,
EU:T:2011:617
, paragraph
and the case-law cited; judgment of 8 October 2013 in Council v AY,
T‑167/12 P
, ECR-SC,
EU:T:2013:524
, paragraph
).
In the present case, contrary to the contentions of Mr Simpson, the Council’s appeal is focused exclusively on the distortion of the evidence by the Civil Service Tribunal and does not seek to call into question, in general, the factual assessments made by the latter. The Council confines itself to identifying those parts of the judgment under appeal in which the Civil Service Tribunal allegedly distorted the evidence, which led it to incorrectly annul the contested decision for failure to state grounds, and does not ask the appeal court to reassess the findings of the court of first instance.
Furthermore, as regards Mr Simpson’s argument that it is not possible to plead a distortion of items of evidence that have not been assessed by the Civil Service Tribunal, it must be pointed out that the General Court’s review of the legality of a decision in the context of an appeal must necessarily take into consideration the facts on which the Civil Service Tribunal based its conclusion as to the adequacy or inadequacy of the statement of reasons (see, to that effect, judgments of 20 November 1997 in Commission v V,
C‑188/96 P
, ECR,
EU:C:1997:554
, paragraph
and the case-law cited, and of 10 July 2008 in Bertelsmann and Sony Corporation of America v Impala,
C‑413/06 P
, ECR,
EU:C:2008:392
, paragraph
).
Mr Simpson’s plea of inadmissibility must therefore be rejected.
In the second place, as regards the merits of the argument that the Civil Service Tribunal had distorted evidence, it must be pointed out that such distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence, and without recourse to new evidence (judgments of 28 May 1998 in New Holland Ford v Commission,
C‑8/95 P
, ECR,
EU:C:1998:257
, paragraph
, and of 6 April 2006 in General Motors v Commission,
C‑551/03 P
, ECR,
EU:C:2006:229
, paragraph
; see, also, judgment in P v Parliament, paragraph
above,
EU:T:2011:617
, paragraph
and the case-law cited).
In the present case, it should be noted as a preliminary point, as the Council did, that, both in the part of the judgment under appeal (see paragraphs 6, 7 and 9 thereof ) describing the background to the dispute, and in the part which sets out the assessment of the Civil Service Tribunal (see paragraphs 22 to 24 of the judgment under appeal), the latter always refers, with regard to the pleadings of the parties during the pre-litigation procedure, to the concept of ‘promotion’ whereas it is clear from the administrative file that the expression used, both by Mr Simpson, in his request of 25 June 2010 and in his complaint of 8 March 2011, and by the Council, in the contested decision and in its decision rejecting the complaint, is ‘upgrade’. In that regard, the fact that the Council raised no objections to the preparatory report for the hearing drawn up by the Judge-Rapporteur of the Civil Service Tribunal — which already reflected that confusion in the use of those two expressions, presumably due to translation errors — cannot justify a posteriori errors committed by the Civil Service Tribunal in the preparation of the judgment.
As the Council rightly argued, in all the exchanges that took place between Mr Simpson and the appointing authority during the pre-litigation procedure, the discussion always focused on the question of whether a comparison could be made between the legal situation of Mr Simpson and the situation of the three officials mentioned by Mr Simpson in his request of 25 June 2010, which led the Council to find that the upgrade had been granted to them in the interest of the service. However, it should be noted that the concept of ‘promotion’, referred to by the Civil Service Tribunal — with reference, moreover, in the section of the judgment under appeal concerning the legal framework, to the wording of Article 45 of the Staff Regulations which specifies the scope of that concept — was never mentioned during the pre-litigation procedure.
In paragraph 24 of the judgment under appeal (see paragraph 6 above), the Civil Service Tribunal stated that it was common ground that neither in the contested decision nor in the decision rejecting the complaint ‘did the Council mention or explain to [Mr Simpson] that, in the case of the three officials referred to in his request, there had not been either a promotion within the meaning of Article 45 of the Staff Regulations, or a recruitment, but an “upgrade in the interest of the service”, as described in the defence’. The Civil Service Tribunal added that this lack of clarity, as regards the legal basis of the decisions on the situation of the three officials in question compared with that of Mr Simpson, was borne out by the fact that Mr Simpson had stated, in his application, that it was still difficult for him to understand why the interest of the service justified the promotion of those officials. Finally, the Civil Service Tribunal held, in paragraph 25 of the judgment under appeal that, notwithstanding the explanation provided in the contested decision and in the decision rejecting the complaint as to why the situation of the three officials was not comparable to that of Mr Simpson, the Council submitted, in its defence, that an upgrade in the interest of the service was not equivalent to a promotion and there was therefore no comparative assessment of the merits under Article 45 of the Staff Regulations.
It must be held that the considerations set out in paragraphs 24 and 25 of the judgment under appeal constitute a distortion of the contested decision and of the decision rejecting the complaint submitted as annexes to the application at first instance. It is clear from the original version of those documents, the language of which corresponds to the language of the case, that the Council, in response to a specific request by Mr Simpson, expressly seeking that he be granted an upgrade, as had been granted previously in the case of the abovementioned officials, first pointed out, in the contested decision, that there was no statutory provision conferring the right on an official who has passed a competition for a grade higher than his own to automatically receive an upgrade, and then noted that such a decision could only be made by the appointing authority in the interest of the service, the institutions having a wide margin of discretion in that regard. Finally, the Council clearly stated that, in view of the situation of the language unit to which Mr Simpson belonged, which was different to that of the respective units of the three successful candidates in question when they had received an upgrade, it was not in the interest of the service to grant Mr Simpson such an upgrade.
In the decision rejecting the complaint, the Council, essentially reiterating those same considerations, expressly replied to Mr Simpson’s complaint alleging a breach of the principle of equal treatment. In that context, the Council first noted that, according to the case-law, there was a breach of the principle of non-discrimination where two classes of persons, whose factual and legal situations were not essentially different, were treated differently and where such treatment was not objectively justified. The Council then examined the situation of the three officials in respect of whom Mr Simpson claimed to have suffered discrimination, finding, first, that the situations in question were not comparable, in so far as the open competitions and services concerned were different and the upgrade had been granted to those officials well before Mr Simpson’s request, and, secondly, that there had therefore been no breach of the principle of equal treatment. Furthermore, the Council also indicated that the interest of the service could vary over the course of time and that it could, for example, influence the level of recruitment. The Council then pointed out that, in accordance with the case-law, the appointing authority was not obliged to follow up on a recruitment procedure begun under Article 29 of the Staff Regulations. It follows, according to the Council, that a successful candidate in a competition does not have a right to be recruited and that, by analogy, an official in the same situation does not have the right to be upgraded while remaining in the same post. Finally, the Council stated that, in the present case, in the absence of a statutory provision, the appointing authority was guided by the interest of the service, considering that the situation of the language unit in which Mr Simpson worked did not require recruitment at grade AD 9.
Accordingly, contrary to what the Civil Service Tribunal noted in paragraph 24 of the judgment under appeal — perhaps because translation errors (see paragraph 32 above) could have resulted in ambiguity in the understanding of the contested decision and the decision rejecting the complaint — the Council expressly indicated that, in the case of the three officials referred to in Mr Simpson’s request, there had been an upgrade in the interest of the service. After all, as Mr Simpson’s initial request and exchange between him and the Council were always related to the issue of the ‘upgrade’, there was no reason for the Council to explain that, in the present case, it did not concern promotion within the meaning of Article 45 of the Staff Regulations and certainly not recruitment.
Likewise, the contested decision and the decision rejecting the complaint clearly state why the Council considered that the situations of the three officials in question and that of Mr Simpson were not comparable. Moreover, such a comparison, which simply sought to establish, in response to Mr Simpson’s complaint, whether or not there had been a breach of the principle of equal treatment, could in no way correspond to the comparative assessment of the merits with respect to promotions under Article 45 of the Staff Regulations, a provision that was not mentioned during the pre-litigation procedure.
The same applies to the Civil Service Tribunal’s finding set out in the second sentence of paragraph 26 of the judgment under appeal, that the Council ‘[in particular] failed to explain that the case of the three officials in the Polish and Slovak translation units promoted in 2006 and 2007 did not concern a promotion but a measure not provided for in the Staff Regulations’. That finding also manifestly distorts the evidence included in the file.
As has already been observed in points 35 to 38 above, the Council clearly stated, first, both in the contested decision and in the decision rejecting the complaint, that there was no statutory provision conferring the right on an official who has passed a competition for a grade higher than his own to automatically receive an upgrade in the same post and, secondly, that for that very reason, a decision granting such an upgrade could only be taken in the interest of the service, an interest that existed in the case of the three officials in question, but not in that of Mr Simpson.
Finally, as regards the Civil Service Tribunal’s finding, set out in the second sentence of paragraph 29 of the judgment under appeal, that ‘[i]n the present case, the statement of grounds for the contested decision merely pointed out that the recruitment of [Mr Simpson] at grade AD 9 was not in the interest of the service while, in the defence, the Council explain[ed] that the three officials referred to by [Mr Simpson] in his request received an “upgrade in the interest of the service”’, it must be held that that finding also stems from a distortion of the evidence.
It should be noted that, in the contested decision, the Council clearly stated that, given the situation of the Estonian language unit at the time of the request, which was different from that of the units which, respectively, the three officials in question belonged to at the time of their upgrade, it was not in the interest of the service to grant Mr Simpson such an upgrade. A reference to the situation of the language unit in which Mr Simpson was working, which had no need for any recruitment at grade AD 9, was made by the appointing authority in paragraph 17 of the decision rejecting the complaint, after explaining the analogy between the right of the successful candidate of a competition to be recruited and that of an official who has also been successful in a competition for a grade higher than his own to be granted an upgrade to the grade of the competition. Therefore, contrary to the findings of the Civil Service Tribunal, the Council did not merely point out that in the contested decision that ‘the recruitment of [Mr Simpson] at grade AD 9 was not in the interest of the service’.
For the reasons set out above, the Civil Service Tribunal vitiated its reasoning by a material inaccuracy when it found that it was only in the defence that the Council had explained that, in the case of the three officials in question, there had been an upgrade in the interest of the service, whereas that explanation was clearly evident both in the contested decision and in the decision rejecting the complaint.
In those circumstances, the finding of a breach of the duty to provide a statement of reasons, in paragraph 31 of the judgment under appeal, appears to be based on a false premiss, resulting from a distortion of certain items of evidence.
In so far as paragraphs 27 to 30 of the judgment under appeal simply seek to establish, first, that the Council could not cure the lack of a statement of grounds by means of explanations provided after the action was brought and, secondly, that it is not acceptable for an institution to subsequently amend the grounds of a decision that it has adopted or to substitute a statement of reasons in the course of the proceedings, it should be noted that it was only for the sake of completeness that the Civil Service Tribunal took into account the way in which the statement of grounds had allegedly been developed during the course of the proceedings.
In any event, it must be noted, as the Council did, that the Council did not amend the grounds of its initial decision by justifying that decision in the light of provisions other than those relied upon initially. Although Article 31(2) of the Staff Regulations was not expressly mentioned in the decision rejecting the complaint, it is clear from paragraph 16 of that decision that Mr Simpson’s request was not examined under the rules and criteria for promotion, but under those relating to recruitment. Thus, the reference made by the Council’s agent in the hearing to that provision — following a specific question by the Civil Service Tribunal to that effect (see paragraph 28 of the judgment under appeal) — does not constitute an amendment of the grounds underlying the contested decision, but is completely in conformity with the grounds given throughout the pre-litigation procedure.
The same applies, as has been stated in paragraphs 41 and 42 above, to the alleged contradictions in the Council’s grounds that the Civil Service Tribunal identifies in paragraph 29 of the judgment under appeal. The arguments that the Council allegedly developed in the course of the proceedings were in fact in line with the grounds it had relied on throughout the pre-litigation procedure.
Finally, as regards the argument put forward by the Council’s agent at the hearing that, since March 2012, the practice of the institution in relation to the manner in which the interest of the service is assessed for the purposes of awarding an upgrade had changed (see paragraph 30 of the judgment under appeal), it should be noted that this is not an amendment of the grounds of the contested decision, but an element that forms part of the reasons given previously, according to which the interest of the service may vary over the course of time and influence the level at which officials are recruited.
It follows from all the foregoing that the appeal must be upheld, since the Civil Service Tribunal distorted the evidence in that it annulled the contested decision on grounds of breach of the duty to state grounds.
The judgment under appeal must therefore be set aside in part, in so far as the Civil Service Tribunal annulled the contested decision (paragraph 1 of the operative part of the judgment under appeal).
The consequences of setting aside the judgment under appeal
In accordance with Article 13(1) of Annex I to the Statute of the Court of Justice, if the appeal is well founded, the General Court is to quash the decision of the Civil Service Tribunal and itself give judgment in the matter. However, where the state of the proceedings does not permit a decision by the Court, it shall refer the case back to the Civil Service Tribunal for judgment.
In the present case, it must be pointed out that the state of the proceedings does not permit a decision by the Court, in so far as the Civil Service Tribunal has only ruled on one of the three pleas put forward by Mr Simpson, namely the plea alleging an inadequate statement of the grounds for the contested decision (see paragraphs 31 and 32 of the judgment under appeal).
It is therefore necessary to refer the case back to the Civil Service Tribunal to rule on the three pleas raised by Mr Simpson against the contested decision.
Costs
Since the appeal has been upheld in its entirety by the setting aside of paragraph 1 of the operative part of the judgment under appeal, paragraph 3 of the operative part of that judgment, which ordered the Council to pay all the costs, must also be set aside.
Since the case is to be referred back to the Civil Service Tribunal, the costs relating to the present appeal proceedings must be reserved.

On those grounds,
THE GENERAL COURT (Appeal Chamber),
hereby:

1.
Sets aside the judgment of the European Union Civil Service Tribunal (First Chamber) of 12 December 2013 in Simpson v Council (
F‑142/11
, ECR,
EU:F:2013:201
), in so far as the Civil Service Tribunal annulled the decision by which the Council of the European Union refused the request of Mr Erik Simpson which sought an upgrade to grade AD 9 on the ground that he had passed Competition EPSO/AD/113/07 and in so far as it ordered the Council to pay all the costs (paragraphs 1 and 3 of the operative part of that judgment);

2.
Refers the case back to the Civil Service Tribunal;

3.
Reserves the costs.

Jaeger
Papasavvas
Berardis
Delivered in open court in Luxembourg on 22 October 2015.
[Signatures]
(
*
)   * Language of the case: English.