JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

2 July 2010

Case T-266/08 P

Petrus Kerstens

v

European Commission

(Appeal — Civil service — Officials — Change of posting — Article 7 of the Staff Regulations — Interests of the service — Distortion of facts and evidence — Obligation on the Civil Service Tribunal to state reasons — Rights of the defence)

Appeal: against the judgment of the Civil Service Tribunal of the European Union (Second Chamber) of 8 May 2008 in Case F-119/06 Kerstens v Commission [2008] ECR-SC I-A-1-147 and II-A-1-787 seeking to have that judgment set aside.

Held: The appeal is dismissed. Petrus Kerstens is ordered to bear his own costs as well as the costs incurred by the Commission in the appeal proceedings.

Summary

1. Appeals — Pleas in law — Mistaken assessment of the facts — Inadmissibility — Review by the Court of First Instance of the assessment of the evidence — Possible only where the clear sense of the evidence has been distorted

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

2. Appeals — Pleas in law — Inadequate statement of reasons — Civil Service Tribunal’s use of an implied statement of reasons

(Art. 256 TFEU; Statute of the Court of Justice, Annex I, Art. 7(1))

3. Appeals — Pleas in law — Procedural irregularity — Decision based on facts or documents of which one party was unaware — Infringement of the right to a fair hearing — Breach of the principle audi alteram partem

1. The court of first instance has exclusive jurisdiction to find the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and to assess those facts. Where the court of first instance has found or assessed the facts, the appeal court has jurisdiction to review the legal characterisation of those facts and the legal inferences drawn by the court of first instance.

The appeal court thus has no jurisdiction to establish the facts or, in principle, to examine the evidence which the court of first instance accepted in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the court of first instance alone to assess the value which should be attached to the evidence produced to it. Save where the clear sense of the evidence has been distorted, that appraisal does not therefore constitute a point of law which is subject as such to review by the appeal court. In that regard, such a distortion must be obvious from the documents on the court’s file, without there being any need to carry out a new assessment of the facts and the evidence.

(see paras 37-39)

See: C-551/03 P General Motors v Commission [2006] ECR I-3173, paras 51, 52 and 54; C-167/04 P JCB Service v Commission [2006] ECR I-8935, paras 106 to 108

2. The obligation of the Civil Service Tribunal to state reasons, pursuant to the first sentence of Article 36 and Article 7(1) of Annex I to the Statute of the Court of Justice, does not require the Civil Service Tribunal to provide an account that follows exhaustively and point by point all the reasoning articulated by the parties to the case. The Civil Service Tribunal’s reasoning may therefore be implicit, on condition that it enables the person affected by a decision of the Civil Service Tribunal to know the reasons for that decision and provides the Tribunal with sufficient material for it to exercise its powers of review.

(see para. 73)

See: C-105/04 P Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission [2006] ECR I-8725, para. 72; C-16/07 P Chetcuti v Commission [2008] ECR I-7469, para. 87

3. It would infringe a fundamental principle of law to base a judicial decision on facts or documents of which the parties, or one of them, have not been able to take cognisance and in relation to which they have not been able to state their views. In order to satisfy the requirements of the right to a fair trial, the parties must have knowledge of and be able to exchange arguments on the factual and legal elements that are decisive for the outcome of the proceedings, and they must be given an opportunity to state their views on the facts, evidence and observations produced to the court, on which the court proposes to base its decision.

(see para. 83)

See: 42/59 and 49/59 Snupat v High Authority [1961] ECR 53, 84; C-480/99 P Plant and Others v Commission and South Wales Small Mines [2002] ECR I-265, para. 24; C-89/08 P Commission v Irelandand Others [2009] ECR I-11245, para. 56; T-253/06 P Chassagne v Commission [2008] ECR-SC I-B-1-43 and II-B-1-295, para. 27