JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

5 October 2009

Joined Cases T-40/07 P and T-62/07 P

**José António de Brito Sequeira Carvalho**

**v**

**Commission of the European Communities**

**and**

**Commission of the European Communities**

**v**

**José António de Brito Sequeira Carvalho**

(Appeal – Civil service – Officials – Leave – Medical leave – Placing on compulsory medical leave – Extension of compulsory medical leave – Prior new medical examination – Jurisdiction of the Civil Service Tribunal – Amendment of the subject-matter of the dispute)

**Appeal:**against the judgment of the Civil Service Tribunal of the European Union (Third Chamber) of 13 December 2006 in Case F-17/05
*de Brito Sequeira Carvalho* v *Commission* [2006] ECR-SC I‐A‐1‐149 and II‐A‐1‐577, seeking to have that judgment set aside.

**Held:**The appeal in Case T‐40/07 P is dismissed. In Case T‐40/07 P, José António de Brito Sequeira Carvalho is to bear his own costs
and to pay those incurred by the Commission of the European Communities in the present proceedings. The judgment of the Civil
Service Tribunal of the European Union (Third Chamber) of 13 December 2006 in Case F-17/05 *de Brito Sequeira Carvalho* v *Commission* [2006] ECR-SC I-A-1-149 and II-A-1-577 is set aside in so far as it annulled the decision of 13 July 2004 and the decisions
to extend the compulsory medical leave subsequent to the decision of 22 September 2004. The action brought by Mr de Brito
Sequeira Carvalho before the Civil Service Tribunal in Case F-17/05 is dismissed as inadmissible as regards the decision of
13 July 2004 and the decisions to extend the compulsory medical leave subsequent to the decision of 22 September 2004. The
remainder of the appeal in Case T‐62/07 P is dismissed. In Case T-62/07 P, Mr de Brito Sequeira Carvalho is ordered to bear
half of his own costs relating to the proceedings before the Civil Service Tribunal and the present proceedings. In Case T-62/07
P, the Commission is ordered to bear its own costs and to pay half the costs incurred by Mr de Brito Sequeira Carvalho relating
to the proceedings before the Civil Service Tribunal and the present proceedings.

**Summary**

1.      *Officials – Decision affecting the administrative status of an official – Taking into account of factors not in his personal
file, but having previously been brought to his notice – Legality – Conditions*

*(Staff Regulations, Art. 26, first para.)*

2.      *Procedure – Measures of organisation of procedure – Written questions put to the parties – No automatic effect on the outcome
of the dispute*

*(Rules of Procedure of the General Court, Arts 49, 64 and 65; Council Decision 2004/752, Art. 3(4))*

3.      *Procedure – Production of evidence – Time-limit – Late submission of evidence relied on*

*(Rules of Procedure of the General Court, Art. 48(1))*

4.      *Procedure – Application for measures of inquiry – Submitted after conclusion of oral procedure – Request that the oral procedure
be reopened*

*(Rules of Procedure of the General Court, Art. 62)*

5.      *Officials – Actions – Prior administrative complaint – Time-limits – Mandatory*

*(Staff Regulations, Arts 90 and 91)*

6.      *Acts of the institutions – Presumption of validity – Non-existent act – Definition*

*(Art. 249 EC)*

7.      *Officials – Appointing authority – Powers – Exercise*

*(Staff Regulations, Art. 2)*

8.      *Officials – Actions – Pleas in law – Misuse of powers*

9.      *Officials – Actions – Prior administrative complaint – Time-limits – Claim barred by lapse of time – Excusable error*

*(Staff Regulations, Arts 90 and 91)*

1.      The lawfulness of the assessment by the Community judicature of an action brought by an official is in no way subject to the
defendant institution’s compliance with its obligation laid down in Article 26 of the Staff Regulations to communicate the
personal file of that official. It is for the Community judicature alone to assess whether it is appropriate to adopt any
measures of organisation of procedure and to order any measure of inquiry.

The purpose of the first paragraph of Article 26 of the Staff Regulations is to guarantee an official’s right to a fair hearing
by ensuring that decisions taken by the administration affecting his administrative status and his career are not based on
matters concerning his ability, efficiency or conduct which are not included in his personal file. A decision based on such
factual matters is therefore contrary to the guarantees contained in the Staff Regulations and must be annulled because it
was adopted on the basis of a procedure vitiated by illegality.

However, the mere fact that documents referred to in Article 26 of the Staff Regulations were not placed on an official’s
personal file is not enough to justify annulling a decision where they were in fact brought to his notice. It is only where
documents concerning his ability, efficiency or conduct have not previously been communicated to an official that they cannot
be used against him. This is not the case as regards documents which, although brought to his knowledge, have not yet been
placed on his personal file, since the institution cannot be prevented from taking a decision in the interests of the service
on the basis of documents previously communicated to the person concerned merely because they have not been placed on his
personal file. It follows that an institution commits an infringement of Article 26 of the Staff Regulations and of an official’s
right to a fair hearing where it adopts a decision adversely affecting him without having previously communicated to him the
factual matters, not included in his personal file, which justify the adoption of that decision. In that regard, the mere
establishment that the official concerned knew of these matters cannot be regarded as sufficient evidence that he had the
opportunity effectively to defend his interests prior to the adoption of the decision adversely affecting him. In order for
the observance of his right to a fair hearing to be ensured, the institution must still demonstrate, by any means, that it
had previously enabled the official concerned to understand that the factual matters in question, although not placed on his
personal file, were such as to justify the decision adversely affecting him. Failing that, the communication required by Article
26 of the Staff Regulations cannot be deemed to have taken place.

(see paras 91-94)

See: T‐155/03, T‐157/03 and T‐331/03 *Cwik* v *Commission* [2005] ECR-SC I‐A‐411 and II‐1865, paras 50 and 51 and the case-law cited therein, and para. 52; T‐47/04 *Milbert and Others* v *Commission* [2006] ECR-SC I‐A‐2‐281 and II‐A‐2‐1455, para. 83

2.      The decision to put written questions is a matter which is entirely within the discretion of the Civil Service Tribunal, which
may, at any stage of the proceedings, prescribe any measure of organisation of procedure or any measure of inquiry referred
to in Articles 64 and 65 of the Rules of Procedure of the General Court. The use of that power does not, however, have any
automatic effect on the outcome of the dispute, as the Civil Service Tribunal remains free in its absolute discretion to assess
the value to be given to the whole of the facts and evidence which have been submitted to it or which it has itself adduced.

(see para. 105)

See: C‐360/02 P *Ripa di Meana* v *Parliament* [2004] ECR I‐10339, para. 28

3.      Since it is an exception to the rules governing the lodging of evidence offered, Article 48(1) of the Rules of Procedure of
the General Court requires parties to give reasons for the delay in offering their evidence. That obligation implies that
the court has the power to check the reasons given for the delay in lodging the evidence offered and, depending on the case,
the substance of that evidence, as well as the power to disregard the evidence if the application is not sufficiently founded.
The same applies, a fortiori, to offers of evidence made after the rejoinder is submitted.

(see para. 115)

See: judgment of 14 April 2005 in C-243/04 P *M* v *Court of Justice*, not published in the ECR, para. 33

4.      After the close of the oral procedure, a party may request measures of organisation of procedure only if the Civil Service
Tribunal decides to reopen the oral procedure. Since it enjoys a discretion in this field under Article 62 of the Rules of
Procedure of the General Court, the Civil Service Tribunal is required to accede to a request to reopen the oral procedure
only if the party concerned wishes to place before it facts which may have a decisive influence on the outcome of the case
and which it was unable to put forward before the close of the oral procedure.

(see para. 131)

See: C‐199/92 P *Hüls* v *Commission* [1999] ECR II‐4287, paras 126 and 128; judgment of 27 April 2006 in C-230/05 P *L* v *Commission*, not published in the ECR, para. 68

5.      The time-limit of three months for lodging a complaint against an act adversely affecting an official and that of three months
for bringing an action against an express or implied decision rejecting the complaint, prescribed by Articles 90 and 91 of
the Staff Regulations, are a matter of public policy and are not subject to the discretion of the parties or the Court, since
they were established in order to ensure that legal positions are clear and certain. Those time-limits must be treated as
applying to any challenge of an act subject to review by the Community courts, of whatever nature. In fact, Articles 90 and
91 of the Staff Regulations make no distinction as regards the conditions for the admissibility of the complaint and of the
action depending on the seriousness of the defect affecting the administrative act under appeal.

(see paras 145-146)

See: judgment of 6 December 2001 in C-219/01 P *Reyna González del Valle* v *Commission*, not published in the ECR, para. 10; C‐229/05 P *PKK and KNK* v *Council* [2007] ECR I‐439, para. 101; judgment of 28 March 2001 in T-130/00 *Reyna González del Valle* v *Commission*, not published in the ECR, para. 39; T‐289/04 *Lantzoni* v *Court of Justice* [2006] ECR-SC I‐A‐2‐39 and II‐A‐2‐171, paras 40 and 41; judgment of 25 October 2007 in T-274/06 *Estaser El Mareny* v *Commission*, not published in the ECR, para. 40

6.      The acts of the Community institutions are in principle presumed to be lawful and produce legal effects, even if they are
vitiated by irregularities, until such time as they are annulled or withdrawn. By way of exception to this principle, measures
tainted by an irregularity whose gravity is so obvious that it cannot be tolerated by the Community legal order must be treated
as having no legal effect, even provisional – that is, they are regarded as legally non-existent. The purpose of this exception
is to maintain a balance between two fundamental, but sometimes conflicting, requirements with which a legal order must comply,
namely stability of legal relations and respect for legality. The gravity of the consequences attaching to a finding that
a measure of a Community institution is non-existent means that, for reasons of legal certainty, such a finding is reserved
for quite extreme situations. That does not apply in a situation where an irregularity of competence and a formal defect consisting
of a breach of the obligation to state the reasons on which a decision is based are not of such an obvious gravity that the
decision must be treated as legally non-existent.

(see paras 150-153)

See: C‐137/92 P *Commission* v *BASF and Others* [1994] ECR I‐2555, paras 48 to 50; C‐245/92 P *Chemie Linz* v *Commission* [1999] ECR I‐4643, paras 93 to 95; C‐475/01 *Commission* v *Greece* [2004] ECR I‐8923, paras 18 to 20

7.      A sub-delegation or deviation from the criteria for division of the powers conferred by the Staff Regulations on the appointing
authority cannot render void an act done by the administration unless such sub-delegation or deviation involves the possibility
of adversely affecting one of the guarantees given to officials by the Staff Regulations or the principles of good administration
in staff management. A decision taken by the Commission under Article 2 of the Staff Regulations involves a distribution of
business within the Commission’s services, rather than a rigid division of powers, non-observance of which could entail the
nullity of acts done outside the limits laid down.

(see para. 155)

See: T‐23/96 *De Persio* v *Commission* [1998] ECR-SC I‐A‐483 and II‐1413, para. 111; T-118/04 and T-134/04 *Caló* v *Commission* [2007] ECR-SC I-A-2-0000 and II-A-2-0000, paras 68 and 71

8.      The concept of misuse of powers has a very precise meaning and encompasses the use by an administrative authority of its powers
for a purpose other than that for which they were conferred upon it. A decision is vitiated by misuse of powers only if it
appears, on the basis of objective, relevant and consistent factors, to have been taken with the purpose of achieving ends
other than those stated.

In that regard, it is not sufficient to refer to certain facts in support of claims; evidence of a sufficiently specific,
objective and consistent nature must also be adduced to support their truth or, at the very least, their probability, failing
which the material accuracy of the statements of the institution concerned cannot be challenged.

(see paras 172-173)

See: T‐111/99 *Samper* v *Parliament* [2000] ECR-SC I‐A‐135 and II‐611, para. 64; T‐152/00 *E* v *Commission* [2001] ECR-SC I‐A‐179 and II‐813, para. 69; *Cwik* v *Commission*, paras 179 and 180; T-471/04 *Karatzoglou* v *EAR* [2008] ECR-SC I-A-2-0000 and II-A-2-0000, paras 49 and 50

9.      The concept of excusable error must be strictly construed and can cover only exceptional circumstances in which, in particular,
the institutions have adopted conduct which has been, either alone or to a decisive extent, such as to give rise to a pardonable
confusion in the mind of a party acting in good faith and exercising all reasonable diligence. Since it constitutes an exception
to a finding of inadmissibility for failure to observe the time-limits for lodging a complaint and bringing an action, which
are mandatory, the concept of excusable error must be invoked and demonstrated by the party intending to rely on it and the
court cannot declare of its own motion that such an error exists.

Furthermore, even if an excusable error may have the effect of keeping a time-limit open and, therefore, of allowing a complaint
or action to be admissible despite the failure to respect the time-limits imposed by Article 90(2) or Article 91(3) of the
Staff Regulations, it cannot have the effect of exempting an applicant from the pre-litigation procedure laid down in Article
90(2) of the Staff Regulations, which is the express condition for the admissibility of an action under Article 91(2) of the
Staff Regulations, and of enabling an applicant to bring an action directly before the Civil Service Tribunal.

(see paras 204-206)

See: C‐195/91 P *Bayer* v *Commission* [1994] ECR I‐5619, para. 26; C‐193/01 P *Pitsiorlas* v *Council and ECB* [2003] ECR I‐4837, para. 24; T‐33/89 and T‐74/89 *Blackman* v *Parliament* [1993] ECR II‐249, paras 32 and 33; judgment of 11 November 2008 in T-390/07 P *Speiser* v *Parliament*, not published in the ECR, para. 33