EN
ReportsofCases
ECLI:EU:T:2010 :406 1ORDER OF THE GENERAL COURT (Appeal Ch amber)
24 September 2010
Case T-498/09 P
Petrus Kerstens
v
European Comm ission
(Appeal — Civil service — Officials — Promotion — 2005 p romotion y ear — Award o f priority 
points — Burden of proof — Rights of the defence — Appeal in part manifestly inadmissible and in 
part manifestly unfounded)
Appeal: brought a gainst the judgment of the European U nion C ivil Service Tribunal (Second 
Chamber) of 29 September 2009 i n C ase F-102/07 K erstens v C omm ission [2009 ] 
ECR-SC I-A-1-359 a nd II-A-1-1881 , seeking the setting aside of that judgment.
Held: The appeal is dismissed. Mr Petrus Kerstens is to bear h is own costs and to pay those 
incurred by the European Commission in the appeal proceedings.
Summ ary
1. Appeal — Pleas in law — Admissibility — Points of law
(Statute of the Court of Justice, Annex I, Art. 11(1))
2. Officials — Promotion — Consideration of comparative merits — Procedures
(Staff Regulations, Art. 45(1))
3. Procedure — Written procedure
1. According to Article 11 o f Annex I to the Statute of the Court of Justice, an appeal to the General 
Court must be limited to points of law. The Civil Service Tribunal has exclusive jurisdiction t o 
establish th e facts, except where th e substantive inaccuracy of its findings is apparent from th e 
documents submitted to it, and to assess th ose facts.
It is therefore admissible in an appeal before the General Court for the official concerned to rely on a n 
error of law in the interpretation o f the provisions applicable to the reporting procedure for officials.
(see paras 25-26)
See:
judgment of 19 March 2010 i n T-338/07 P Bianchi v E TF, para. 61 a nd the case-law cited therein
2 ECLI:EU:T:2010 :406SUMM ARY—CASET-498/09P
KERSTENSvCOMM ISSION
2. Even though career developme nt reports as a w hole constitute the fundamental basis for the review 
conducted prior to the allocation o f the priority points available to each dir ectorate-general, and eve n 
though th ere m ust therefore be a c ertain coherence between th e me rit points and th e number of 
priority points allocated to officials, it cannot, however, be inferred from th is that there is a s trict 
arithmetical correlation b etween me rit points and priority points. The introduction o f priority points 
was intended to enable th e dir ectorates-general to reward o fficials whom th ey consider to have 
demonstrated special me rit which me rit points alone do no t reflect, either because their pe rformance 
goes beyond th eir individual objectives, or because th eir e ffort and pe rformance have b een 
outstanding. In th at context, th e dir ectorates-general thus need to be able to exercise a di scretion 
which they would be denied if there were a c orrelation b etween priority points and me rit points.
(see para. 29)
See:
judgment of 23 November 2006 i n T-422/04 L avagnoli v C omm ission, not published in th e ECR, paras 61 a nd 62; 
T-385/04 V alero Jordana v C omm ission [2009 ] ECR-SC I-A-2-1 and II-A-2-1, paras 138 a nd 153
3. The oral procedure is, like th e written procedure, an essential and, save in certain cases expressly 
provided for, compulsory part of th e judicial procedure allowing th e parties to present th eir 
arguments properly and, in particular, to submit observations on ar guments or evidence on w hich 
they have no t had th e opportunity to express th eir views during the written procedure. Consequently, 
the fact that a p arty has no t had th e opportunity to present in writing some o f his observations on th e 
substance, because the Civil Service Tribunal decided to allow th e submission o f a r ejoinder on ly on 
matters of admissibility, does no t constitute an infringement of the rights of the defence.
(see para. 38)
See:
141/81 t o 143/81 H oldijk and Others [1982 ] ECR 1299 , para. 7; T-508/93 M ancini v C omm ission [1994 ] ECR-SC 
I-A-239 a nd II-761, paras 33 a nd 34