ORDER OF THE GENERAL COURT (Appeal Chamber)

8 October 2015

Risto Nieminen

v

Council of the European Union

‛Appeal — Civil service — Officials — Promotion — 2010 and 2011 promotion procedures — Decision not to promote the appellant to grade AD 12 — Right to a fair hearing — Rights of defence — Scope of the judicial review at first instance — Manifest error of assessment — No error of law or distortion — Appeal manifestly lacking any foundation in law’

Appeal:

against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 10 April 2014 in Nieminen v Council (F‑81/12, ECR-SC, EU:F:2014:50), seeking to have that judgment set aside.

Held:

The appeal is dismissed. Mr Risto Nieminen is to pay the costs.

Summary

Appeal — Grounds — Review by the General Court of the assessment of the evidence made by the Civil Service Tribunal — Possible only where the evidence has been distorted

Under the third paragraph of Article 257 TFEU and Article 11(1) of Annex I to the Statute of the Court of Justice, an appeal to the General Court is to be limited to points of law, the Civil Service Tribunal having exclusive jurisdiction, first, to find the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it and, second, to assess those facts, save where the clear sense of that evidence has been distorted. The assessment of the facts does not therefore constitute, save where the clear sense of the evidence produced before the Civil Service Tribunal has been distorted, a point of law which is subject, as such, to review on appeal by the General Court. The General Court is empowered only to review the legal characterisation of the facts and the legal inferences drawn from them by the Civil Service Tribunal. (see paras 26, 35) See: Orders of 16 September 2013 in Bouillez v Council, T‑31/13 P, ECR-SC, EU:T:2013:521, paras 34 and 49 and the case law cited therein, and of 20 September 2013 in Van Neyghem v Council, T‑113/13 P, ECR-SC, EU:T:2013:568, para. 31 and the case law cited therein

The Civil Service Tribunal has, in principle, discretion to assess whether it is appropriate to order the production of the evidence required in order to resolve the cases referred to it. Whether or not the evidence before it is sufficient is a matter to be appraised by it alone and is not subject to review by the General Court on appeal, except where that evidence has been distorted or the substantive inaccuracy of the findings of the Civil Service Tribunal is apparent from the documents in the case. (see para. 27) See: Judgment of 16 July 2009 in Der Grüne Punkt — Duales System Deutschland v Commission, C‑385/07 P, ECR, EU:C:2009:456, para. 163 and the case law cited therein

The appointing authority possesses, for the purpose of considering the comparative merits of officials who are candidates for promotion, a wide discretion and in that context the Union judicature must restrict itself to consideration of the question whether, regard being had to the various considerations which have influenced the administration in making its assessment, the latter has remained within reasonable limits and has not used its power in a manifestly incorrect way. The Union judicature cannot therefore substitute its assessment of the qualifications and merits of candidates for that of the appointing authority. In that regard, in order to preserve the effectiveness of the discretion which the legislature saw fit to confer on the appointing authority in connection with promotion, the Union judicature may not annul a decision solely on the ground that it considers there to be evidence raising plausible doubts about the appointing authority’s assessment, or proving that there has been an error of assessment. It is therefore not for the Union judicature to examine in detail all the files of the candidates eligible for promotion in order to make sure that it agrees with the conclusion reached by the appointing authority, since, if it undertook such an exercise, it would exceed its powers of judicial review by substituting its own assessment of the merits of the candidates eligible for promotion for that of the appointing authority. However, the wide discretion thus conferred on the appointing authority is limited by the need to consider candidates’ comparative merits carefully and impartially, in the interest of the service and in accordance with the principle of equal treatment. In practice, that examination must be carried out on a basis of equality, using comparable sources of information. (see paras 36-37) See: Judgment of 21 April 1983 in Ragusa v Commission, 282/81, ECR, EU:C:1983:105, paras 9 and 13 Judgments of 15 September 2005 in Casini v Commission, T‑132/03, ECR-SC, EU:T:2005:324, para. 52, and of 15 January 2014 in Stols v Council, T‑95/12 P, ECR-SC, EU:T:2014:3, paras 29 to 32 and the case law cited therein

The appointing authority’s duty to consider the comparative merits of officials who are eligible for promotion, as laid down in Article 45 of the Staff Regulations, is an expression of the principle of equal treatment of officials and their career prospects, the assessment of their merits being the decisive criterion. In that regard, Article 45(1) of the Staff Regulations provides that, when considering the comparative merits of the officials eligible for promotion, that authority is to take account in particular of the reports on the officials, the use of languages in the execution of their duties other than the language for which they have produced evidence of thorough knowledge and, where appropriate, the level of responsibilities exercised by them. That provision gives the appointing authority a certain amount of discretion as to the weight it gives to each of the three factors mentioned in considering comparative merits, while still, however, observing the principle of equal treatment. Where the merits of the officials eligible for promotion are equal on the basis of the three factors set out in Article 45(1), the appointing authority has a secondary power to take other matters into consideration, such as their age or seniority in grade or in the service. Such matters may then be a decisive factor in the choice made. (see paras 38-39) See: Judgments of 16 May 2013 in Canga Fano v Council, T‑281/11 P, ECR-SC, EU:T:2013:252, para. 43 and the case law cited therein, and of 15 January 2014 in Stols v Council, EU:T:2014:3, paras 33 and 34 and the case law cited therein