CELEX: 62009TO0498
Language: en
Date: 2010-09-24 00:00:00
Title: Order of the General Court (Appeal Chamber) of 24 September 2010. # Petrus Kerstens v European Commission. # Appeal - Public service - Officials - Promotion. # Case T-498/09 P.

Reports of Cases
                             ORDER OF THE GENERAL COURT (Appeal Chamber)
                                                  24 September 2010
                                                    Case T-498/09 P
                                                    Petrus Kerstens
                                                             v
                                                European Commission
        (Appeal — Civil service — Officials — Promotion — 2005 promotion year — Award of priority
     points — Burden of proof — Rights of the defence — Appeal in part manifestly inadmissible and in
                                              part manifestly unfounded)
   Appeal:        brought against the judgment of the European Union Civil Service Tribunal (Second
                  Chamber) of 29 September 2009 in Case F-102/07 Kerstens v Commission [2009]
                  ECR-SC I-A-1-359 and II-A-1-1881, seeking the setting aside of that judgment.
   Held:          The appeal is dismissed. Mr Petrus Kerstens is to bear his own costs and to pay those
                  incurred by the European Commission in the appeal proceedings.
                                                        Summary
   1. Appeal — Pleas in law — Admissibility — Points of law
   (Statute of the Court of Justice, Annex I, Art. 11(1))
   2. Officials — Promotion — Consideration of comparative merits — Procedures
   (Staff Regulations, Art. 45(1))
   3. Procedure — Written procedure
   1. According to Article 11 of Annex I to the Statute of the Court of Justice, an appeal to the General
   Court must be limited to points of law. The Civil Service Tribunal has exclusive jurisdiction to
   establish the facts, except where the substantive inaccuracy of its findings is apparent from the
   documents submitted to it, and to assess those facts.
   It is therefore admissible in an appeal before the General Court for the official concerned to rely on an
   error of law in the interpretation of the provisions applicable to the reporting procedure for officials.
                                                                                                            (see paras 25-26)
             See:
             judgment of 19 March 2010 in T-338/07 P Bianchi v ETF, para. 61 and the case-law cited therein
EN
          ECLI:EU:T:2010:406                                                                                                1
 ---pagebreak---                                               SUMMARY — CASE T-498/09 P
                                               KERSTENS v COMMISSION
2. Even though career development reports as a whole constitute the fundamental basis for the review
conducted prior to the allocation of the priority points available to each directorate-general, and even
though there must therefore be a certain coherence between the merit points and the number of
priority points allocated to officials, it cannot, however, be inferred from this that there is a strict
arithmetical correlation between merit points and priority points. The introduction of priority points
was intended to enable the directorates-general to reward officials whom they consider to have
demonstrated special merit which merit points alone do not reflect, either because their performance
goes beyond their individual objectives, or because their effort and performance have been
outstanding. In that context, the directorates-general thus need to be able to exercise a discretion
which they would be denied if there were a correlation between priority points and merit points.
                                                                                                          (see para. 29)
          See:
          judgment of 23 November 2006 in T-422/04 Lavagnoli v Commission, not published in the ECR, paras 61 and 62;
          T-385/04 Valero Jordana v Commission [2009] ECR-SC I-A-2-1 and II-A-2-1, paras 138 and 153
3. The oral procedure is, like the written procedure, an essential and, save in certain cases expressly
provided for, compulsory part of the judicial procedure allowing the parties to present their
arguments properly and, in particular, to submit observations on arguments or evidence on which
they have not had the opportunity to express their views during the written procedure. Consequently,
the fact that a party has not had the opportunity to present in writing some of his observations on the
substance, because the Civil Service Tribunal decided to allow the submission of a rejoinder only on
matters of admissibility, does not constitute an infringement of the rights of the defence.
                                                                                                          (see para. 38)
          See:
          141/81 to 143/81 Holdijk and Others [1982] ECR 1299, para. 7; T-508/93 Mancini v Commission [1994] ECR-SC
          I-A-239 and II-761, paras 33 and 34
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