ORDER OF THE COURT OF FIRST INSTANCE (Appeal Chamber)

18 December 2008

Case T-223/07 P

**Michel Thierry**

**v**

**Commission of the European Communities**

(Appeal – Civil service – Officials – Promotion – 2004 promotion procedure – Dismissal of an application for a witness to be examined – Appeal manifestly inadmissible)

**Appeal:**brought against the order of the European Union Civil Service Tribunal (Second Chamber) of 16 April 2007 in Case F-82/05 *Thierry* v *Commission* [2007] ECR-SC I-A-1-0000 and II‐A‐1‐0000, and requesting that that order be set aside.

**Held:**The appeal is dismissed. Mr Michel Thierry is to pay his own costs as well as those incurred by the Commission in the context
of the present appeal.

**Summary**

1.      *Appeal – Pleas in law – Mistaken assessment of the facts – Inadmissibility – Review by the Court of First Instance of the
assessment of the evidence – Possible only where the clear sense of the evidence has been distorted*

*(Art. 225a EC; Statute of the Court of Justice, Annex I, Art. 11(1))*

2.      *Procedure – Measures of inquiry – Hearing of witnesses – Discretion of the Court of First Instance*

*(Rules of Procedure of the Civil Service Tribunal, Art. 59(1); Charter of Fundamental Rights of the European Union, Art. 47)*

3.      *Appeals – Pleas in law – Plea submitted for the first time in the context of the appeal – Inadmissibility*

*(Rules of Procedure of the Civil Service Tribunal, Arts 48(2) and 144)*

1.      It is clear from Article 225a EC and Article 11(1) of Annex I to the Statute of the Court of Justice that appeals against
decisions of the Civil Service Tribunal may be based only on pleas relating to breaches of rules of law, and not on any appraisal
of the facts. The court of first instance 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, second, to assess those facts. That appraisal
does not, therefore, save where the clear sense of the evidence submitted to that court has been distorted, constitute a point
of law which is subject as such to review by the appeal court.

(see para. 20)

See: C‐8/95 P *New Holland Ford* v *Commission* [1998] ECR I‐3175, paras 25 and 26; T-252/06 P *Beau* v *Commission* [2007] ECR-SC I‐B-1-0000 and II‐B‐1‐0000, paras 45 and 46

2.      The court of first instance is the sole judge of any need to supplement the information available to it in respect of the
cases before it. Even where a request for the examination of witnesses states precisely about what facts and for what reasons
the witness or witnesses should be examined, it falls to the court of first instance to assess the relevance of the application
to the subject-matter of the dispute and the need to examine the witness or witnesses named.

The existence of a discretion in that regard on the part of the court of first instance cannot be challenged on the basis
of the general principle of Community law that everyone is entitled to a fair hearing, as reaffirmed in Article 47 of the
Charter of Fundamental Rights of the European Union. That general principle does not confer an absolute right to obtain the
attendance of witnesses before a court. On the contrary, it is in principle for the court to determine whether it is necessary
or appropriate to call a witness, since the purpose of the procedure before the court is to offer the applicant an appropriate
and sufficient opportunity to defend the merits of his application, while strictly respecting the principle of equality of
arms.

(see paras 21-22)

See: C‐189/02 P, C‐202/02 P, C‐205/02 P to C‐208/02 P and C‐213/02 P *Dansk Rørindustri and Others* v *Commission* [2005] ECR I‐5425, paras 67 to 71 and the case-law cited therein

3.      It follows from Article 48(2) of the Rules of Procedure of the Court of First Instance, which applies, pursuant to Article
144 of those Rules, to the procedure before the Court of First Instance on appeal from a decision of the Civil Service Tribunal,
that new pleas in law may not be introduced in the course of the proceedings. A plea based on distortion of the clear sense
of the evidence which is raised for the first time in an application for a hearing must therefore be dismissed as inadmissible.

(see para. 27)