JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

10 September 2009

Case F-16/08

Joachim Behmer

v

European Parliament

(Civil service – Officials – Procedure for the award of merit points at the European Parliament – Infringement of the obligation to state reasons – Statement of reasons given in the course of the procedure)

Application: brought under Articles 236 EC and 152 EA, in which Mr Behmer seeks annulment of the Parliament’s decision of 4 June 2007 awarding him two merit points for the year 2004 and of the decision of 26 June 2007 awarding him two merit points for the year 2006.

Held: It is not necessary to rule on the action in so far as it is directed against the Parliament’s decision of 4 June 2007 awarding the applicant two merit points in respect of the year 2004. The Parliament’s decision of 26 June 2007 awarding the applicant two merit points in respect of the year 2006 is annulled. The Parliament is ordered to bear its own costs and to pay one half of the costs incurred by the applicant. The applicant is ordered to bear one half of his own costs.

Summary

Officials – Promotion – Complaint by a candidate against a decision awarding merit points

(Staff Regulations, Arts 25, second para., 43 and 90(2))

The administration’s obligation to state the reasons on which a decision is based is infringed where a statement of reasons for a decision of the appointing authority awarding merit points is provided only when the complaint lodged by the addressee is explicitly rejected after the expiry of the period of four months laid down in Article 90(2) of the Staff Regulations and after the person concerned has brought an action against the implied decision rejecting that complaint.

That finding is not called into question by the argument that there was no need to provide a statement of reasons for the decision awarding points, since that decision had been taken in a context known to the addressee, who thus had the initial elements of a statement of reasons. The annual nature of the award of merit points requires the administration to adopt a fresh decision awarding merit points each year, which must be based solely on the performance of the official concerned during the reference period. Furthermore, the fact that the content of the complaint lodged by the official in question proved that he understood the marking system does not mean that he had the opportunity to learn the reasons leading to the decision awarding points.

The absence of a statement of reasons is also not called into question by the case-law, according to which, where there is a problem of lateness in communicating the statement of reasons for a decision which is well founded, there is no need to annul the decision given that, if it were annulled, the administration could do no more than adopt a fresh decision with an identical statement of reasons, and the applicant would therefore derive no advantage. In so far as an applicant challenges the validity of a decision of the administration, it is possible that, following the retroactive disappearance of that decision as a result of its annulment, and the subsequent reconsideration, a different decision may be adopted in respect of him.

(see paras 25, 29-34)

See:

195/80 Michel v Parliament [1981] ECR 2861, para. 22; C-343/87 Culin v Commission [1990] ECR I‑225, para. 15; C-150/03 P Hectors v Parliament [2004] ECR I‑8691, para. 50

T-52/90 Volger v Parliament [1992] ECR II‑121, paras 40 and 41; T-86/98 Gouloussis v Commission [2000] ECR-SC I‑A‑5 and II‑23; T-117/01 Roman Parra v Commission [2002] ECR-SC I‑A‑27 and II‑121, para. 32; T-281/01 Huygens v Commission [2004] ECR-SC I‑A‑203 and II‑903, para. 109; T-132/03 Casini v Commission [2005] ECR-SC I‑A‑253 and II‑1169, para. 31 and the case-law cited therein

F-81/07 Barbin v Parliament [2008] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, para. 28