JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

4 July 2014

Case T‑644/11 P

Eugène Emile Marie Kimman

v

European Commission

(Appeal — Cross-appeal — Civil service — Officials — Reports — Appraisal report — 2009 appraisal exercise — Rule that the application must correspond to the complaint — Article 91(2) of the Staff Regulations — Opinion of the ad hoc committee — Distortion — Obligation to state reasons — Manifest error of assessment)

Appeal:

against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 29 September 2011 in Kimman v Commission (F-74/10), seeking the setting aside of that judgment.

Held:

The judgment of the European Union Civil Service Tribunal (Second Chamber) of 29 September 2011 in Kimman v Commission (F-74/10) is set aside, first, in that it declares admissible the second plea in law, the first six parts of the third plea in law and the fourth plea in law, except the claim that the work done by the appellant in the interest of the institution had not been taken into account, raised by the appellant in the proceedings at first instance and, second, in that it orders the European Commission, in addition to bearing its own costs, to pay one quarter of the appellant’s costs related to those proceedings. The main appeal is dismissed. The action brought by Mr Eugène Emile Marie Kimman before the Civil Service Tribunal is dismissed. Mr Kimman is ordered to bear the entirety of the costs both at first instance and of the main appeal. Each party is to bear its own costs in the cross-appeal.

Summary

Judicial proceedings—Costs—Burden—Taking into account of the requirements of fairness—Order that the successful party pay the costs—Not applicable where an irregularity has been raised but not proven—Limits—Obligation to consult the parties in advance—None

Appeals—Pleas in law—Breach of the duty to answer the pleas in law and claims of the parties—Mistaken assessment, by the Civil Service Tribunal, of the meaning of a plea of inadmissibility submitted at first instance—Appeal well founded

Actions brought by officials—Prior administrative complaint—Correspondence between complaint and action—Same subject-matter and cause of action—Submissions and arguments not made in the complaint but seeking to challenge the validity of the statement of reasons in the response to the complaint—Admissibility

Actions brought by officials—Prior administrative complaint—Correspondence between complaint and action—Same subject-matter and cause of action—Observance of principles of effective judicial protection and legal certainty—Broad interpretation of the concepts of subject-matter and cause of action—Change in legal basis of a dispute—Condition not sufficient to establish that dispute has a new cause of action

Actions brought by officials—Prior administrative complaint—Correspondence between complaint and action—Same subject-matter and cause of action—Submissions and arguments not made in the complaint but closely related to it—Admissibility—Plea of substantive legality or procedural legality—Condition not sufficient to establish that plea is admissible

In actions brought by officials, claims for relief before the Union judicature may contain only heads of claim based on the same matters as those raised in the complaint, although those heads of claim may be developed before the Union judicature by the presentation of pleas in law and arguments which, whilst not necessarily appearing in the complaint, are closely linked to it. In order to assess whether heads of claim are based on the same matters as those raised in the complaint, the Union judicature may not base its decision solely on the fact that a plea in law seeks to challenge the substantive legality or, alternatively, the procedural legality of a contested measure. Furthermore, the fact that pleas in law contained in the application and the complaint seek to challenge the substantive legality or, alternatively, the procedural legality of a measure does not, in itself, prove that those pleas can be regarded as being closely linked. The concepts of substantive legality and procedural legality are too broad and abstract, in view of the precise purpose of the head of claim in question, to ensure that such a link may exist between pleas based exclusively on one or other of those concepts. (see paras 45, 50, 54) See: judgment of 25 October 2011 in T‑476/11 P Commission v Moschonaki, paras 73, 75 and 79 and the case-law cited therein

The application of the rule of correspondence between the action and the complaint and its review by the Courts of the European Union must ensure that there is full observance, first, of the principle of effective judicial protection, which is a general principle of Union law expressed in Article 47 of the Charter of Fundamental Rights of the European Union, so that the person concerned may be able properly to challenge a decision of the appointing authority that adversely affects him, and at the same time, second, of the principle of legal certainty, so that the appointing authority is able to know, even at the complaint stage, the criticisms which the person concerned is making against the contested decision. Thus, while it is necessary that the subject-matter and cause of action of the dispute remain unchanged between the complaint and the action in order to allow an amicable settlement of the dispute, by informing the appointing authority of the applicant’s criticisms at the complaint stage, the interpretation of those concepts must not have the effect of restricting the scope for the person concerned effectively to challenge a decision adversely affecting him. That is why the concept of the subject-matter of the dispute, which corresponds to the claims of the person concerned, and the concept of cause of action, which corresponds to the legal and factual basis for those claims, must not be interpreted restrictively. In that context, merely changing the legal basis of a dispute is not sufficient to characterise it as having a new cause of action. There may be a number of legal bases supporting a single claim and, consequently, a single cause of action. In other words, relying in the application on the infringement of a specific provision which was not relied on in the complaint does not necessarily mean that the cause of action of the dispute has thereby been altered. Consideration must be given to the substance of the cause of action and not merely to the wording of its legal bases, and the Union judicature must ascertain whether there is a close connection between its bases and whether they essentially relate to the same claims. (see paras 57-60) See: Commission v Moschonaki, paras 82 to 85

In an action brought by an official, if the complainant is apprised of the reasoning for the act adversely affecting him through the response to his complaint, or if the reasoning for that response substantially alters or supplements the reasoning contained in that act, any plea in law put forward for the first time in the application and seeking to challenge the validity of the reasoning set out in the response to the complaint must be deemed admissible. In such situations, the official concerned has not been placed in a position to have precise and definitive knowledge of the reasons underlying the act adversely affecting him. (see para. 61) See: Commission v Moschonaki, para. 86

Where the Civil Service Tribunal has not ruled on a party’s plea of inadmissibility and, similarly, has been mistaken about the precise meaning of the argument on the substance of the plea in question, the part of the judgment under appeal which is affected by that error must be set aside. (see para. 85) See: C‑298/93 P Klinke v Court of Justice [1994] ECR I‑3009, para. 20