JUDGMENT OF THE GENERAL COURT (Appeal Chamber)
19 July 2018 (*)
(Appeal — Civil service — Officials — Upgrade — Classification in grade — Decision not to award the applicant grade AD 9 after he had passed a grade AD 9 open competition — Dismissal of the action at first instance after referral back by the General Court — Composition of the panel of judges which adopted the order at first instance — Procedure for appointment of a judge to the Civil Service Tribunal — Tribunal established by law — Principle of the right to a judge assigned by law)
In Case T‑646/16 P,
APPEAL brought against the order of the European Union Civil Service Tribunal (Second Chamber) of 24 June 2016, Simpson v Council, (F‑142/11 RENV, EU:F:2016:136), and seeking to have that order set aside,
Erik Simpson, official of the Council of the European Union, residing in Brussels (Belgium), represented by M. Velardo, lawyer,
appellant,
the other party to the proceedings being
Council of the European Union, represented by M. Bauer and E. Rebasti, acting as Agents,
defendant at first instance,
THE GENERAL COURT (Appeal Chamber),
composed of M. Jaeger, President, M. Prek and G. Berardis (Rapporteur), Judges,
Registrar: E. Coulon,
gives the following
Judgment
1        By his appeal, brought under Article 9 of Annex I to the Statute of the Court of Justice of the European Union, the appellant, Mr Erik Simpson, seeks annulment of the order of the European Union Civil Service Tribunal (Second Chamber) of 24 June 2016, Simpson v Council (F‑142/11 RENV, EU:F:2016:136) (‘the order under appeal’), by which the Tribunal dismissed his action seeking, first, the annulment of the Council’s decision of 9 December 2010 (‘the contested decision’) rejecting his request for an upgrade to grade AD 9 after he had passed Open Competition EPSO/AD/113/07 organised for the recruitment of heads of unit at grade AD 9 in the field of translation, inter alia those with Estonian as their main language (‘Competition EPSO/AD/113/07’), and of the decision of 7 October 2011 rejecting his complaint and, secondly, an order that the Council of the European Union pay compensation for the harm suffered. The order under appeal was issued following the judgment of 22 October 2015, Council v Simpson (T‑130/14 P, EU:T:2015:796) (‘the judgment on appeal’), setting aside the judgment of 12 December 2013 in Simpson v Council (F‑142/11, EU:F:2013:201) (‘the original judgment’) and referring the case back to the Civil Service Tribunal.
Factual background to the dispute
2        The factual background to the dispute is set out in paragraphs 3 to 9 of the order under appeal as follows:
‘3      The applicant, who had been a member of the auxiliary staff in the Estonian translation unit at the Council since 1 June 2004, was recruited on 1 January 2005 as a probationary official at grade AD 5, after passing Open Competition EPSO/LA/3/03 intended to constitute a reserve list for the recruitment of assistant translators of grade [LA] 8. He was promoted to grade AD 6 on 1 January 2008.
4      In 2009, the applicant passed … Competition EPSO/AD/113/07. The reserve list for that competition was published on 28 April 2009.
5      On 25 June 2010, the applicant requested, under Article 90(1) of the Staff Regulations, to be upgraded to grade AD 9, putting forward the fact that he had passed Competition EPSO/AD/113/07 corresponding to that grade and that three officials from the Polish and Slovak units, including Mr F, who, the applicant claimed, were in a situation comparable to his own, had been awarded an upgrade, in 2006 and 2007 respectively, after passing a competition for a grade higher than their own.
6      By note of 9 December 2010 the Council, rejecting that request, stated that, in the absence of a provision of the Staff Regulations conferring a right on officials to be automatically upgraded on the basis that they had passed a competition for a higher grade than their own, such a decision could only be adopted where it was in the interest of the service, and in the present case, given the situation in 2010 in the Estonian translation unit, that was not the case ….
7      The applicant was promoted to grade AD 7 on 1 January 2011.
8      On 8 March 2011, the applicant lodged a complaint under Article 90(2) of the Staff Regulations seeking the withdrawal of the contested decision.
9      By decision of 7 October 2011, the Council rejected the complaint, arguing, first, that there was a series of differences between the applicant’s situation and that of the three officials of the Polish and Slovak units, so that the principle of equal treatment had not been infringed by reason of the upgrades granted in the past to those officials. In addition, that institution stated that the interest of the service was not a constant element but could vary in the course of time. Secondly, the Council stressed that passing a competition did not confer either the right to be recruited or, by analogy with that principle, the right for a successful candidate in a competition who was already an official to be upgraded in the same post.’
Proceedings before the Civil Service Tribunal and the General Court and the order under appeal
Proceedings before the Civil Service Tribunal and the General Court
3        On 27 December 2011, the appellant brought an action against the contested decision before the Civil Service Tribunal, which was registered as case number F‑142/11.
4        In the original judgment, the Civil Service Tribunal annulled the contested decision on the grounds that it infringed the obligation to state grounds, dismissed the action as to the remainder and ordered the Council to pay the costs.
5        By application lodged at the Registry of the General Court on 24 February 2014, the Council brought an appeal against the original judgment, registered as case number T‑130/14 P.
6        By the judgment on appeal, the General Court upheld the appeal brought by the Council and set aside the original judgment.
7        In examining the single plea, alleging in essence a distortion of the evidence on the part of the Civil Service Tribunal, the General Court found that the Tribunal had vitiated its reasoning by a material inaccuracy in so far as in the original judgment it had always referred to the term ‘promotion’, so far as the documents of the parties during the administrative proceedings were concerned, whereas it was clear from the administrative file that the expression used both by the appellant in his request and complaint, and by the Council in the contested decision and the decision rejecting the complaint, was ‘upgrade’.
8        Therefore, the General Court held that the finding by the Civil Service Tribunal, according to which the Council had infringed the obligation to state grounds by failing to explain that the cases of the three officials from the Polish and Slovak translation units to which the appellant referred in his request did not involve a promotion within the meaning of Article 45 of the Staff Regulations of Officials of the European Union or a recruitment but a measure not provided for in the Staff Regulations of Officials, namely an upgrade following success in a competition, was based on a false premiss. This resulted from a distortion of certain items of evidence, which had probably occurred as a result of translation errors leading to ambiguity in the understanding of the contested decision and the decision rejecting the complaint.
9        Having set aside the original judgment, the General Court did not itself rule on the dispute, considering that the state of the proceedings did not permit a decision, and referred the case back to the Civil Service Tribunal so that that court could rule on the three pleas raised by the appellant against the contested decision.
Proceedings before the Civil Service Tribunal after the referral back and the order under appeal
10      Following the referral back of the case to the Civil Service Tribunal (Second Chamber), the appellant and the Council submitted pleadings in the form of written observations.
11      In the order under appeal, the Civil Service Tribunal dismissed the action in its entirety.
12      At the outset, the Civil Service Tribunal held that, since the decision rejecting the complaint lacked any independent content in relation to the contested decision, the claims directed against it were to be regarded as being directed solely against the contested decision.
13      Next, the Tribunal rejected the claims for annulment of the contested decision.
14      In the first place, after finding, in paragraph 30 of the order under appeal, that the General Court had not found in the judgment on appeal that the obligation to state grounds had not been infringed as such but had observed that the finding made in the original judgment regarding an infringement of that obligation was based on a false premiss resulting from a distortion of certain items of evidence, the Tribunal held that it was necessary to examine the plea concerning the obligation to state grounds. Thus, relying on paragraph 35 of the judgment on appeal, first, it observed that in the contested decision the Council had first pointed out that there was no provision in the Staff Regulations conferring the right upon officials who have passed a competition for a grade higher than their own to automatically receive an upgrade, going on to state that such a measure could only be adopted in the interest of the service and, lastly, concluding that the criterion in question was not satisfied so far as the appellant’s request was concerned since the situation in the translation unit to which he belonged was different at the time of his request to that of the translation units concerned at the time when the three officials in comparison to whom he claimed to have been treated differently received an upgrade.
15      Secondly, in paragraph 33 of the order under appeal the Tribunal found that the Council had expressly replied to the complaint alleging breach of the principle of equal treatment inasmuch as it had observed that those officials were in different situations to that of the appellant, that an official who had passed a competition did not have the right to be upgraded while remaining in the same post and that, in the absence of a statutory provision, it had been guided by the interest of the service, under which recruitment at grade AD 9 in the appellant’s language unit was not justified. The Tribunal thus concluded, in paragraph 34 of the order under appeal, that the Council had stated grounds to the requisite legal standard for the contested decision.
16      In the second place, after recalling in paragraphs 45 to 47 of the order under appeal that it was apparent from case-law that the interest of the service was one of the objective and reasonable criteria which could warrant a difference in treatment between officials and, furthermore, that the administration enjoyed a wide discretion to decide on the measures to take in the interest of the service so that review by the court had to be confined to checking that the differentiation made by the institution concerned was not arbitrary or manifestly contrary to that interest, the Tribunal observed that the assessment of the interest of the service was not a constant element and could vary in the course of time depending on objective factors. Thus it held in paragraphs 51 and 52 of the order under appeal that the interest of the language units of the new Member States, as it stood in 2006, could not have been the same as that in 2010, six years after they had been established, so that the interest of the service consisting in preserving the human resources of the new language units was undoubtedly less significant than in 2006. In paragraph 58 of the order under appeal the Tribunal therefore concluded that the differentiation made by the Council in refusing to grant the applicant an upgrade in the present case was not arbitrary or manifestly contrary to the interest of the service.
17      In the third place, in paragraphs 62 to 64 of the order under appeal, the Tribunal rejected as manifestly unfounded the third plea of the action, on the ground that the appellant had simply repeated the arguments already raised in support of the second plea without putting forward any supplementary evidence.
18      In the fourth place, the Tribunal rejected the appellant’s claims for compensation as a consequence of the rejection of those claims for annulment.
19      Lastly, the Tribunal declared that the appellant was to bear his own costs incurred in Cases F‑142/11, T‑130/14 and F‑142/11 RENV respectively, and ordered him to pay those incurred by the Council in Case F‑142/11.
The appeal
Procedure and forms of order sought
20      By pleading lodged at the Registry of the General Court on 6 September 2016, the appellant brought the present appeal on the basis of Article 9 of Annex I to the Statute of the Court of Justice of the European Union.
21      By document lodged at the Court Registry on 20 December 2016, the Council filed a statement in response.
22      By decision of the President of the Appeal Chamber dated 10 February 2017, the appellant was authorised to produce a reply in accordance with Article 201(1) of the Rules of Procedure of the General Court.
23      On 23 March 2017, the appellant lodged its reply.
24      By document lodged at the Court Registry on 11 May 2016, the Council lodged a rejoinder.
25      The written part of the procedure was closed on 16 May 2017.
26      By letters lodged at the Court Registry on 13 June 2017 and 19 June 2017 respectively, the appellant and the Council stated that they were not requesting a hearing.
27      The General Court (Appeal Chamber) decided, pursuant to Article 207(2) of the Rules of Procedure, to rule on the appeal without an oral part of the procedure.
28      By judgment of 23 January 2018, FV v Council (T‑639/16 P, EU:T:2018:22), the General Court (Appeal Chamber) set aside the judgment of 28 June 2016, FV v Council (F‑40/15, EU:F:2016:137), considering that the composition of the panel of judges which had delivered that latter judgment had been irregular.
29      By decision of 19 March 2018, Review FV v Council (C‑141/18 RX, EU:C:2018:218), the Court decided that it was not necessary to review that judgment.
30      By decision of 21 March 2018, the President of the Appeal Chamber decided to re-open the written part of the procedure.
31      On 22 March 2018 the General Court invited the parties to submit their observations on the implications to be drawn in the present case from the judgment of 23 January 2018, FV v Council (T‑639/16 P, EU:T:2018:22), by which the General Court had held that the composition of the panel of judges of the Civil Service Tribunal which had delivered the judgment at first instance had been irregular.
32      The parties submitted their observations within the prescribed period.
33      The written part of the procedure was closed again on 17 April 2018.
34      The appellant claims that the Court should:
–        set aside the order under appeal;
–        refer the case back to the first-instance Judge;
–        order the Council to pay the costs.
35      The Council contends that the Court should:
–        dismiss the appeal;
–        order the appellant to pay the costs.
Law
36      The appellant relies on two grounds in support of his appeal. The first, concerning observance of the obligation to state grounds, alleges an ‘error in law’, and ‘infringement of European [Union] law’, a ‘lack of [a statement of grounds for] the contested order’, and a ‘distortion of the evidence’. The second, concerning observance of the principle of equal treatment, alleges a ‘distortion of the evidence’, an ‘error in law’, an ‘infringement of European [Union] law’ and a ‘lack of [a statement of grounds for] the contested order’. The appellant also claims that the conditions for the award of damages are fulfilled in the present case.
37      In response to a written question put by the General Court (see paragraph 31 above), the parties both submitted, first, that a ground of appeal alleging an irregularity in the composition of the panel of judges, such as that found by the Court in the judgment of 23 January 2018, FV v Council (T‑639/16 P, EU:T:2018:22) (see paragraphs 39 to 41 below), involves a matter of public interest which must be examined by the court on appeal of its own motion and, secondly, that the order under appeal had been signed by the same panel of judges as delivered the judgment of 28 June 2016, FV v Council (F‑40/15, EU:F:2016:137), the composition of which was found to have been irregular in the judgment of 23 January 2018, FV v Council (T‑639 P, EU:T:2018:22). Thus, according to the parties, the order under appeal must be set aside for the same reasons as those upheld by the General Court in the judgment of 23 January 2018, FV v Council (T‑639/16 P, EU:T:2018:22). The Council adds that the case must be referred to a chamber other than that which ruled on the present appeal so that the General Court can rule at first instance on the action brought by the appellant before the Civil Service Tribunal.
38      In the first place, according to settled case-law of the Court of Justice, a ground of appeal alleging an irregularity in the composition of the panel of judges involves a matter of public policy and must be examined by the court on appeal of its own motion, even if that irregularity has not been raised at first instance (see, to that effect, judgment of 1 July 2008, ChronopostSA and La Poste v UFEX and Others, C‑341/06 P and C‑342/06 P, EU:C:2008:375, paragraphs 44 to 50 and the case-law cited).
39      In the second place, it is settled case-law of the Court of Justice that the Courts of the European Union cannot, as a general rule, base their decisions on a plea raised of their own motion — even one involving a matter of public policy — without first having invited the parties to submit their observations on that plea (see judgment of 17 December 2009, Review M v EMEA, C‑197/09 RX-II, EU:C:2009:804, paragraph 57 and the case-law cited).
40      In the third place, it must be observed that in the judgment of 23 January 2018, FV v Council (T‑639/16 P, EU:T:2018:22), in the examination of the ground of appeal alleging an irregularity in the composition of the panel of judges, raised by the appellant on the ground that the procedure for the appointment of one of the judges which sat on that panel was flawed, the General Court held as follows.
41      First, the General Court found that the Civil Service Tribunal (Second Chamber), when it delivered the judgment of 28 June 2016, FV v Council (F‑40/15, EU:F:2016:137), was composed of the Judges K. Bradley, J. Sant’Anna and A. Kornezov. The General Court also found that, in accordance with the operative part and recital 5 of Council Decision (EU, Euratom) 2016/454 of 22 March 2016, appointing three Judges to the European Union Civil Service Tribunal (OJ 2016 L 79, p. 30), the Council had appointed, in the first place, Mr S. Van Raepenbusch, in the second place, Mr Sant’Anna and, in the third place, Mr Kornezov as Judges of the Civil Service Tribunal. Thus, the General Court observed that Judge Bradley had not been appointed as a Judge of the Civil Service Tribunal under Decision 2016/454 and therefore could not be the judge to which the plea mentioned in paragraph 40 above referred, but that, on the other hand, the Judges Sant’Anna and Kornezov had been appointed as Judges of the Civil Service Tribunal under that Decision.
42      Secondly, the General Court examined the ground of appeal alleging a breach of the appointment procedure on the ground that the Council appointed a judge to the post held by Judge M.I. Rofes i Pujol from the list of candidates drawn up as a result of the public call for applications launched on 3 December 2013 to fill the vacant posts occupied by Judges Van Raepenbusch and H. Kreppel in the Civil Service Tribunal, even though that list had not been drawn up for the purposes of appointing a judge to fill the post held by Judge Rofes i Pujol. In this connection, the General Court held in paragraph 51 of the judgment of 23 January 2018, FV v Council (T‑639/16 P, EU:T:2018:22), that by using the list drawn up as a result of the public call for applications of 3 December 2013 to fill the third vacant post held by Judge Rofes i Pujol, the Council had failed to comply with the legal framework imposed by the public call for applications of 3 December 2013. Thus, after noting that the Council had, in accordance with the operative part and recital 5 of Decision 2016/454, appointed as Judges of the Civil Service Tribunal, in the first place, Mr Van Raepenbusch, in the second place, Mr Sant’Anna and, in the third place, Mr Kornezov, the General Court held that that institution was entitled to make the first two appointments from that list, but not the third appointment.
43      Thirdly, in paragraph 78 of the judgment of 23 January 2018, FV v Council (T‑639/16 P, EU:T:2018:22), the General Court held that in the light of the importance of observing the rules governing the appointment of a judge with regard to litigants’ confidence and that of the public in the independence and impartiality of courts and tribunals, the judge concerned could not be regarded as a judge assigned by law for the purposes of the first sentence of the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union and, therefore, set aside the judgment of 28 June 2016, FV v Council (F‑40/15, EU:F:2016:137) in its entirety.
44      It is sufficient to state in the present case that the order under appeal was adopted by the Civil Service Tribunal (Second Chamber) composed of the Judges Bradley, Sant’Anna and Kornezov, namely the same panel of judges as that which delivered the judgment of 28 June 2016, FV v Council (F‑40/15, EU:F:2016:137) and whose composition was found to have been irregular in the judgment of 23 January 2018, FV v Council (T‑639/16 P, EU:T:2018:22).
45      The Court must therefore raise of its own motion the ground of appeal alleging an irregularity in the composition of the panel of judges, which in accordance with the consistent case-law of the Court of Justice recalled in paragraph 38 above involves a matter of public policy and must be examined by the court on appeal of its own motion even if that irregularity has not been raised at first instance (see, to that effect, judgment of 1 July 2008, Chronopost SA and La Poste v UFEX and Others, C‑341/06 P and C‑342/06 P, EU:C:2008:375, paragraphs 44 to 50 and the case-law cited). After hearing the parties, it must then apply the principles set out by the General Court in the judgment of 23 January 2018, FV v Council (T‑639/16 P, EU:T:2018:22) to the present case.
46      Accordingly, the order under appeal must be set aside in its entirety on the grounds of infringement of the principle of the right to a judge assigned by law, enshrined in the first sentence of the second paragraph of Article 47 of the Charter of Fundamental Rights, without it being necessary to examine the grounds of appeal raised by the appellant.
Consideration of the action at first instance
47      Under Article 4 of Regulation (EU, Euratom) 2016/1192 of the European Parliament and of the Council of 6 July 2016 on the transfer to the General Court of jurisdiction at first instance in disputes between the European Union and its servants (OJ 2016 L 200, p. 137), where the General Court sets aside a decision of the Civil Service Tribunal but considers that the state of the proceedings does not permit a decision, it is to refer the case to a chamber other than that which ruled on the appeal.
48      In the present case, the action at first instance does not permit judgment to be given. First, the General Court may not rely on the findings of fact made by a panel of judges of the Civil Service Tribunal whose composition has been found to have been irregular and, secondly, as the court hearing the appeal, it is not for it to analyse the facts itself.
49      Accordingly, it is necessary to refer the case to a chamber other than that which ruled on the present appeal so that the General Court may rule at first instance on the action brought by the appellant before the Civil Service Tribunal.
Costs
50      Since the case is referred to another chamber of the General Court, the costs relating to the present appeal proceedings must be reserved.
On those grounds,
THE GENERAL COURT (Appeal Chamber)
hereby:
1.      Sets aside the order of the European Union Civil Service Tribunal (Second Chamber) of 24 June 2016, Simpson v Council (F‑142/11 RENV);
2.      Refers the case to a chamber of the General Court other than that which ruled on the present appeal;
3.      Reserves the costs.
Jaeger
Prek
Berardis
Delivered in open court in Luxembourg on 19 July 2018.
E. Coulon
H. Kanninen
Registrar
President
*Language of the case: English.