Appeal brought on 8 February 2019 by the European Commission against the judgment of the General Court (Seventh Chamber) delivered on 29 November 2018 in Case T-811/16, Di Bernardo v Commission

(Case C-114/19 P)

(2019/C 164/22)

Language of the case: French

Parties

Appellant: European Commission (represented by: B. Mongin, G. Gattinara, acting as Agents)

Other party to the proceedings: Danilo Di Bernardo

Form of order sought

— Set aside the judgment of the General Court of 29 November 2018 (Seventh Chamber), Di Bernardo v Commission, T-811/16;

— Refer the case back to the General Court;

— Reserve the costs incurred at first instance and on appeal.

Pleas in law and main arguments

The first plea, which concerns paragraphs 41 to 53, last sentence, of the judgment under appeal, alleges an error of law in the definition of the extent of the selection board’s obligation to state reasons in a decision not to include a candidate on a reserve list. In the first place, the Commission submits that the General Court departed from the established case-law of the Court of Justice, which distinguishes the decisions relating to the examination of applications such as those relating to the candidate’s qualifications or experience from decisions relating to the assessment of candidates’ merits following participation in the tests. In the first case, the selection board must indicate the specific information which is missing from the application, taking into account the qualifications required by the notice of competition. Whether in its initial decision or in its response to the request for review, in the present case the selection board satisfied the conditions laid down by the case-law; the General Court infringed that case-law by extending its review to the selection criteria adopted by the selection board and by requiring the selection board to decide on all the information provided in the application form. The fact that the selection board gave reasons for its decision in response to request for review does not extend that obligation to state reasons. In the second place, the General Court confused the requirement to state reasons, whatever its value, with whether the statement of reasons is well founded, which is a question of the substantive legality of the decision taken.

The second plea, which concerns paragraphs 37 to 38 and 53 to 56 of the judgment under appeal, alleges an error in law which consists in disregarding the court’s duty to determine, of its own motion, compliance with the obligation to state reasons. The General Court departed from the settled case-law according to which, where the statement of reasons is inadequate, additional clarification may still be brought in the course of the proceedings, which remove the basis of the plea for annulment alleging breach of the obligation to state reasons. By excluding the possibility to supplement the statement of reasons where there is an ‘almost complete’ lack of the statement of reasons and by assimilating the ‘almost complete’ lack of the statement of reasons with a complete lack of the statement of reasons, the General Court has made an additional statement of reasons in the course of the proceedings impossible. Such assimilation has no basis in the case-law of the Court of Justice. By limiting the possibilities of rectification in the course of the proceedings, the General Court limited the role of the court which could have been, in the circumstances of the present case, to prevent annulment of the contested decision for breach of the obligation to state reasons.