JUDGMENT OF THE COURT OF FIRST INSTANCE (Appeal Chamber)

19 September 2008

Case T-253/06 P

**Olivier Chassagne**

**v**

**Commission of the European Communities**

(Appeal – Civil service – Officials – Payment of annual travel expenses – Official originating from a French Overseas Department (DOM) – Article 8 of Annex VII to the Staff Regulations – Confirmatory act – Pay slip – Distortion of the facts – Error of law)

**Appeal:**brought against the order of the European Union Civil Service Tribunal (Third Chamber) of 29 June 2006 in Case F-11/05 *Chassagne* v *Commission* [2006] ECR‐SC I-A-1-65 and II‐A‐1‐241, and seeking annulment of that order.

**Held:**The order of the European Union Civil Service Tribunal (Third Chamber) of 29 June 2006 in Case F-11/05 *Chassagne* v *Commission* [2006] ECR-SC I-A-1-65 and II-A-1-241 is annulled. The case is referred back to the European Union Civil Service Tribunal.
The costs are reserved.

**Summary**

1.      *Procedure – Decision taken by reasoned order – Conditions – Observance of the appellant’s right to be heard – Scope*

*(Rules of Procedure of the Court of First Instance, Art. 111; Council Decision 2004/752, Art. 3(4))*

2.      *Appeals – Pleas in law – Mere repetition of pleas in law and arguments submitted to the Civil Service Tribunal – Inadmissibility
– Challenge to the interpretation or application of Community law by the Tribunal – Admissibility*

*(Art. 225 EC; Statute of the Court of Justice, Annex I, Art. 11(1); Rules of Procedure of the Court of First Instance, Art. 138(1)(c))*

3.      *Appeals – Pleas in law – Plea against a ground of the judgment not forming essential basis of the operative part – Invalid
plea in law – Must be examined after consideration of the pleas against the primary grounds*

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

4.      *Appeals – Pleas in law – Incorrect assessment of the facts – Inadmissibility – Review by the Court of the assessment of the
evidence – Precluded except where evidence has been distorted*

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

5.      *Officials – Actions – Prior administrative complaint – Time-limits – Point from which time starts to run*

*(Staff Regulations, Arts 90 and 91)*

6.      *Officials – Actions – Prior administrative complaint – Time-limits – Complaint against a decision to reimburse travel expenses
based on grounds essentially the same as those of a previous complaint against the fixing of the travelling time – Time-limits
may not be set running again – Precluded*

*(Staff Regulations, Arts 90 and 91)*

1.      The mere fact that Article 111 of the Rules of Procedure of the Court of First Instance, applicable mutatis mutandis to proceedings
before the Civil Service Tribunal until the entry into force of its rules of procedure, allows the Community judicature to
give a ruling without opening the oral procedure does not permit it to base its decision on facts and documents on which the
applicant has not, at the very least, had an opportunity to express his views. It is not sufficient in that respect that the
applicant has had the opportunity to acquaint himself with those facts and documents, since observance of the right to be
heard requires that he must have been able to submit his comments properly.

(see paras 29, 31)

See: C‐547/03 P *AIT* v *Commission* [2006] ECR I‐845, paras 18 and 36

2.      It follows from Article 225 EC, the first paragraph of Article 11 of Annex I to the Statute of the Court of Justice and Article 138,
first subparagraph, (c), of the Rules of Procedure of the Court of First Instance that an appeal must indicate precisely the
contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced
in support of the appeal. That requirement is not satisfied by an appeal which, without even including an argument specifically
identifying the error of law allegedly vitiating the contested judgment, confines itself to reproducing the pleas in law and
arguments previously submitted to the Civil Service Tribunal. Such an appeal amounts in reality to no more than a request
for re-examination of the application submitted to the Civil Service Tribunal, which the Court of First Instance does not
have jurisdiction to undertake. However, provided that the appellant challenges the interpretation or application of Community
law by the Civil Service Tribunal, the points of law examined at first instance may be discussed again in the course of the
appeal. Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the
Civil Service Tribunal, an appeal would be deprived of part of its purpose.

(see paras 54-55)

See: C‐352/98 P *Bergaderm and Goupil* v *Commission* [2000] ECR I‐5291, paras 34 and 35; C‐488/01 P *Martinez* v *Parliament* [2003] ECR I‐13355, para. 39

3.      While it is true that, in the context of an appeal, a plea in law raised against a superfluous ground in the contested decision,
the operative part of which is sufficiently founded in law on other grounds, must be rejected as irrelevant, such a rejection
cannot, however, be decided automatically, since the question depends on whether or not the pleas in law against the other
grounds are well founded. Such a complaint must therefore not be considered until the validity of the primary grounds on which
the contested decision is based has been examined. If none of those grounds justifies the contested decision, the Community
judicature must examine the plea against the superfluous ground.

(see paras 95, 96, 148)

See: C‐244/91 P *Pincherle* v *Commission* [1993] ECR I‐6965, para. 25; C‐275/93 P *Boessen* v *ESC* [1994] ECR I‐159, paras 25 and 26; C‐181/02 P *Commission* v *Kvaerner Warnow Werft* [2004] ECR I‐5703, para. 49

4.      Complaints based on findings of fact and on the assessment of those facts in the contested decision are admissible on appeal
where the appellant contends that the Civil Service Tribunal has made findings which the documents in the file show to be
substantially incorrect or that it has distorted the clear sense of the evidence before it. There is such distortion where,
without recourse to new evidence, the assessment of the existing evidence appears to be clearly incorrect.

(see paras 99, 101)

See: C‐82/01 P *Aéroports de Paris* v *Commission* [2002] ECR I‐9297, para. 56; C‐229/05 P *PKK and KNK* v *Council* [2007] ECR I‐439, para. 35 and the case-law cited therein

5.      The sending of the monthly salary statement has the effect of starting the time for bringing a complaint and an appeal against
an administrative decision running, where that statement clearly shows the decision taken and its scope. However, as a development
of the principle laid down in Article 25 of the Staff Regulations, which provides that any decision relating to a specific
individual which is taken under the Staff Regulations shall be communicated in writing to the official concerned, that premiss
must not be interpreted broadly, so that the requirement that the monthly salary statement must clearly show the decision
taken and its scope must be strictly checked.

(see para. 139)

See: 15/73 to 33/73, 52/73, 53/73, 57/73 to 109/73, 116/73, 117/73, 123/73, 132/73 and 135/73 to 137/73 *Kortner and Others* v *Council and Others* [1974] ECR 177, para. 18; T‐232/97 *Becret-Daniau and Others* v *Parliament* [1998] ECR-SC I‐A‐157 and II‐495, paras 31 and 32; T‐354/03 *Reggimenti* v *Parliament* [2005] ECR-SC I‐A‐33 and II‐147, paras 38 and 39

6.      A decision on an official’s travel expenses pursuant to the fourth paragraph of Article 8 of Annex VII to the Staff Regulations
has an adverse effect on him which is independent of and separate from a decision fixing his travelling time and cannot therefore
be regarded as confirming the latter decision. The substance of a complaint against the decision fixing the travelling time
is therefore not in itself capable of having any effect on the admissibility of a subsequent complaint against the decision
on travel expenses, since they serve different purposes, and the mere fact that an official has raised certain heads of claim
in a complaint cannot render it inadmissible for him to raise the same heads of claim in a complaint against a separate decision
adversely affecting him.

It follows that the Civil Service Tribunal commits an error of law when it considers that allowing the appellant, in a complaint
against a decision on reimbursement of his travel expenses, to put forward grounds which are essentially the same as those
put forward previously in a complaint against a decision fixing his travelling time constitutes an extension of the time-limits
for appealing against the latter decision.

(see paras 149-151, 153, 155)