JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

15 May 2012

Case T‑184/11 P

Bart Nijs

v

Court of Auditors of the European Union

(Appeal — Civil service — Officials — Disciplinary measures — Disciplinary procedure — Removal from post with entitlement to old-age pension — Articles 22a and 22b of the Staff Regulations — Requirement for precision in the appeal — New plea in law — Effective judicial protection — Article 47 of the Charter of Fundamental Rights — No obligation on the court to raise of its own motion a plea alleging infringement of the principle that action must be taken within a reasonable period)

Appeal: against the judgment of the Civil Service Tribunal of the European Union (Second Chamber) of 13 January 2011 in Case F‑77/09 Nijs v Court of Auditors [2011] ECR‑SC, seeking to have that judgment set aside.

Held: The appeal is dismissed. Mr Bart Nijs is to bear his own costs and to pay the costs incurred by the Court of Auditors of the European Union in these proceedings.

Summary

1. Appeals — Grounds — Plea against a ground of the judgment not necessary to support the operative part — Invalid plea in law

2. Appeals — Grounds — Mistaken assessment of the facts — Inadmissibility — Review of the assessment of facts by the General Court — Possible only where the clear sense of the evidence has been distorted

(Art. 257 TFEU; Statute of the Court of Justice, Annex I, Art. 11(1))

3. Appeals — Grounds — Error of law relied on not identified — Inadmissibility

(Rules of Procedure of the General Court, Art. 138(1)(c))

4. Appeals — Grounds — Plea submitted for the first time in the context of the appeal — Inadmissibility

(Rules of Procedure of the General Court, Arts 48(2), 139(2) and 144)

5. Union law — Principles — Right to effective judicial protection — Right enshrined in the European Convention on Human Rights — Regard to be had to the Charter of Fundamental Rights of the European Union

(Charter of Fundamental Rights of the European Union, Arts 47 and 52(3))

6. Union law — Principles — Right to effective judicial protection — Review of a disciplinary sanction by a judicial body of full jurisdiction

(Charter of Fundamental Rights of the European Union, Art. 47)

7. Officials — Actions — Plea that the duration of a disciplinary procedure was unreasonable — No obligation on the court to raise such a plea of its own motion

1. Where one of the grounds adopted by the Civil Service Tribunal is sufficient to sustain the operative part of its judgment, any defects that might vitiate other grounds given in the judgment have, in any event, no bearing on that operative part and, accordingly, a plea relying on such defects is ineffective and must be dismissed.

(see para. 24)

See:

C‑496/99 P Commission v CAS Succhi di Frutta [2004] ECR I‑3801, para. 68 and the case-law cited

2. Pursuant to Article 257 TFEU and Article 11(1) of Annex I to the Statute of the Court of Justice, an appeal brought before the General Court is limited to points of law. The court of first instance has exclusive jurisdiction, first, to establish the facts except where the substantive inaccuracy of its findings is apparent from the documents submitted to it and, second, to assess those facts. The assessment of the facts by the court of first instance does not, except in the case of distortion of the evidence submitted to that court, constitute a question of law which, as such, is subject to review by the General Court. Such distortion must be obvious — without any need for a new assessment of the facts and the evidence — from the documents on the Court’s file.

(see para. 29)

See:

T‑222/07 P Kerstens v Commission [2008] ECR-SC I‑B‑1-37 and II‑B‑1-267, paras 60 to 62 and the case-law cited

3. Article 21 of the Statute of the Court of Justice requires the application instituting proceedings to contain a brief statement of the pleas in law on which the application is based. Moreover, Article 138(1)(c) of the Rules of Procedure of the General Court provides that an appeal must contain the pleas in law and legal arguments relied on. The effect of those provisions is that an appeal must indicate precisely which are the contested elements of the judgment which it is sought to have set aside, as well as the legal arguments specifically advanced in support of that application.

(see para. 36)

See:

T‑107/07 P Rossi Ferreras v Commission [2008] ECR-SC I‑B‑1-5 and II‑B‑1-31, para. 27 and the case-law cited

4. Under Article 139(2) of the Rules of Procedure, the subject-matter of the proceedings before the Civil Service Tribunal may not be changed in the appeal.

To allow a party to put forward for the first time, before the appeal court, a plea in law which it did not raise at first instance, would amount to permitting that party to bring before the former court, which has a limited jurisdiction in relation to appeals, a case of wider ambit than that which was before the latter court. In an appeal, the General Court’s jurisdiction is thus confined to assessing the legal conclusions reached by the Civil Service Tribunal on the points argued before it.

(see paras 58, 66)

See:

C‑266/05 P Sison v Council [2007] ECR I‑1233, para. 95 and the case-law cited

5. The principle of effective judicial protection is a general principle of Union law which is presently expressed in Article 47 of the Charter of Fundamental Rights of the European Union. The protection given by Article 6(1) of the European Convention on Human Rights is thus implemented, in Union law, by Article 47 of the Charter of Fundamental Rights. This however does not affect the fact that, under Article 52(3) of the Charter of Fundamental Rights, since the right to an effective remedy corresponds to a right guaranteed by the European Convention on Human Rights, it has the same meaning and scope as the right laid down by that convention, as interpreted by the European Court of Human Rights.

(see para. 84)

See:

C‑279/09 DEB [2010] ECR I‑13849, paras 29 to 31; C‑457/09 Chartry [2011] ECR I‑819, para. 25; C‑69/10 Samba Diouf [2011] ECR I‑7151, para. 49

6. Under the case-law of the European Court of Human Rights, Article 47 of the Charter of Fundamental Rights does not, in the context of an administrative procedure, prevent a ‘penalty’ being imposed by the administrative authority in the first instance. For this to be possible, however, decisions taken by administrative authorities which do not themselves satisfy the requirements laid down in that article must be subject to subsequent review by a ‘judicial body with full jurisdiction’. In order to be classified as a judicial body with full jurisdiction, a judicial body must amongst other things have power to consider all questions of fact and law relevant to the proceedings before it, which includes, in the case of a disciplinary measure, power to consider whether the sanction was proportionate to the default.

(see para. 85)

See:

Eur. Court HR, Albert and Le Compte v. Belgium, 10 February 1983, § 29, Series A no. 58; Eur. Court HR, Schmautzer, Umlauft, Gradinger, Pramstaller, Palaoro and Pfarrmeier v. Austria, 23 October 1995, Series A no. 328 A-C and 329 A-C, §§ 34, 37, 42, 39, 41 and 38 respectively; Eur. Court HR Mérigaud v. France, no. 32976/04, § 68, 24 September 2009

7. The Courts of the Union are not required to raise, of their own motion, a plea to the effect that the duration of the disciplinary procedure was unreasonable, where it is not maintained or established before them that such an infringement has affected the content of the final decision.

(see para. 100)

See:

C‑39/00 P SGA v Commission [2000] ECR I‑11201, paras 41 to 45; C‑1/01 P Asia Motor France and Others v Commission [2001] ECR I‑6349, paras 33 to 36