JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

16 December 2010

Case T-175/09 P

Council of the European Union

v

Willem Stols

(Appeal — Civil service — Promotion — Consideration of comparative merits — Manifest error of assessment — Distortion of the evidence)

Appeal: against the judgment of the European Union Civil Service Tribunal (First Chamber) of 17 February 2009 in Case F-51/08 Stols v Council [2009] ECR-SC I-A-1-27 and II-A-1-119, seeking to have that judgment set aside.

Held: The judgment of the European Union Civil Service Tribunal (First Chamber) of 17 February 2009 in Case F-51/08 Stols v Council [2009] ECR-SC I-A-1-27 and II-A-1-119 is set aside. The case is referred back to the Civil Service Tribunal. The costs are reserved.

Summary

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

(Art. 225a, third para., EC; Statute of the Court of Justice, Annex I, Art. 11(1))

2. Officials — Promotion — Consideration of comparative merits

(Arts 230 EC and 236 EC)

1. Under Article 225a, third para., EC and Article 11(1) of Annex I to the Statute of the Court of Justice, an appeal to the General Court must be limited to points of law and may lie on the grounds of lack of jurisdiction of the Civil Service Tribunal, a breach of procedure before it which adversely affects the interests of the appellant, as well as the infringement of Union law by the Tribunal.

It is clear from those provisions that the appeal can be based only on grounds of infringement of rules of law, excluding any assessment of the facts. The first instance court has exclusive jurisdiction to find the facts, save where a substantive inaccuracy in its findings is apparent from the documents submitted to it, and to appraise those facts. The appraisal of the facts does not therefore constitute, save where the clear sense of the evidence produced before the first instance court is distorted, a question of law which is subject, as such, to review by the Court.

Such 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 20-21, 40)

See: C-8/95 P New Holland Ford v Commission [1998] ECR I-3175, para. 72; C-551/03 P General Motors v Commission [2006] ECR I-3173, para. 54; T-252/06 P Beau v Commission [2007] ECR-SC I-B-1-13 and II-B-1-63, paras 45 and 46; T-107/07 P Rossi Ferreras v Commission [2008] ECR-SC I-B-1-5 and II-B-1-31, para. 29; T-222/07 P Kerstens v Commission [2008] ECR-SC I-B-1-37 and II-B-1-267, para. 62

2. In an action for annulment brought by an official, the – in principle sovereign – assessment of the facts by the first instance court must be conducted as part of the review of legality which it is obliged to carry out under Articles 230 EC and 236 EC, and, in particular, in compliance with the principle that the Community Courts (now the Union Courts) cannot substitute their assessment for that of the administration where the latter enjoys an element of discretion. The appointing authority possesses, for the purpose of considering the comparative merits of officials who are candidates for promotion, a wide discretion and 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. A court cannot therefore substitute its assessment of the qualifications and merits of the candidates for that of the appointing authority.

(see paras 22-23)

See: 282/81 Ragusa v Commission [1983] ECR 1245, paras 9 and 13; C-277/01 P Parliament v Samper [2003] ECR I-3019, para. 35; C-525/04 P Spain v Lenzing [2007] ECR I-9947, paras 56-61; C-441/07 P Commission v Alrosa [2010] ECR I-5949, para. 67; C-290/07 P Commission v Scott [2010] ECR I-7763, paras 67, 72, 79, 80, 81 and 84; T-188/01 to T-190/01 Tsarnavas v Commission [2003] ECR-SC I-A-95 and II-495, para. 97; T-132/03 Casini v Commission [2005] ECR-SC I-A-253 and II-1169, para. 52