JUDGMENT OF THE COURT OF FIRST INSTANCE (Appeal Chamber)

12 March 2008

Case T-107/07 P

Francisco Rossi Ferreras

v

Commission of the European Communities

(Appeal – Civil service – Officials – Career development report – 2003 appraisal – Assessment of facts – Burden of proof and production of evidence – Appeal inadmissible – Appeal unfounded)

Application: Appeal against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 1 February 2007 in Case F-42/05 Rossi Ferreras v Commission [2007] ECR-SC I-A-0000 and II‑0000, for the annulment of that judgment.

Held: The appeal is dismissed. Mr Francisco Rossi Ferreras is to bear his own costs and to pay the costs of the Commission.

Summary

Appeals – Pleas in law – Mere repetition of the pleas and arguments raised before the Civil Service Tribunal – Mistaken assessment of the facts – Inadmissibility – Review by the Court of the assessment of the evidence – Precluded except where evidence has been distorted – Burden of proof and production of evidence

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

It follows from Article 225a EC and Article 11(1) of Annex I to the Statute of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal .

An appeal which merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the Civil Service Tribunal, including those based on facts expressly rejected by that Tribunal, does not satisfy those requirements.

An appeal must be based solely on pleas relating to the infringement of rules of law, excluding any assessment of the facts. 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. The appraisal of the facts does not constitute, save where the clear sense of the evidence produced before the court is distorted, a question of law which is subject, as such, to review by the Court. 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.

However, the jurisdiction of the appeal court to review the findings of fact by the court of first instance extends to the question whether the rules relating to the burden of proof and the taking of evidence have been observed. A ground of appeal alleging that the court of first instance dismissed a complaint without first inviting the other party to provide information capable of proving the complaint well founded must therefore be found admissible.

As for the assessment of the substance of such a ground of appeal, it must be borne in mind that it is for the court of first instance alone to decide whether there is any need to supplement the information it possesses about the cases before it. Furthermore, in order to satisfy the appeal court as to a party’s claims or, at the very least, as to the need for the court itself to take evidence, it is not sufficient merely to refer to certain facts in support of the claim; there must also be adduced sufficiently precise, objective and consistent indicia of their truth or probability. That being so, the court’s involvement in taking evidence in support of applicants must be confined to exceptional cases where, in particular, the applicants, in order to substantiate their arguments, need certain information held by the defendant, who is making it difficult for them to obtain that information or has even refused to supply it.

(see paras 26-31, 36-39)

See: C‑19/95 P San Marco v Commission [1996] ECR I‑4435, para. 37; C‑8/95 P New Holland Ford v Commission [1998] ECR I‑3175, paras 23 and 25; C‑185/95 P Baustahlgewerbe v Commission [1998] ECR I‑8417, para. 93; C‑274/99 P Connolly v Commission [2001] ECR I‑1611, para. 113; C‑315/99 P Ismeri Europa v Court of Auditors [2001] ECR I‑5281, para. 19; C‑551/03 P General Motors v Commission [2006] ECR I‑3173, para. 54; C‑167/04 P JCB Service v Commission [2006] ECR I‑8935, para. 108; C‑403/04 P and C‑405/04 P Sumitomo Metal Industries and Nippon Steel v Commission [2007] ECR I‑729, para. 39; T‑201/00 and T‑384/00 Ajour and Others v Commission [2002] ECR-SC I‑A‑167 and II‑885, para. 75; T-252/06 P Beau v Commission [2007] ECR-SC I-A-0000, paras 45 to 47