Simpson v Council (Civil service - Refusal of the Council to reclassify the person concerned, after he passed an open competition - Judgment) [2021] EUECJ T-646/16PRENV-RX (13 October 2021)

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(Appeal – Civil service – Officials – Refusal of the Council to reclassify the person concerned, after he passed an open competition, at the grade laid down in the competition notice – Dismissal of the action on the merits – Appeal – Judgment set aside – Appeal judgment reviewed by the Court of Justice and set aside – Referral back to the General Court as the appeal court – Obligation to state grounds – Equal treatment)

Erik Simpson, residing in Brussels (Belgium), represented by M. Velardo, lawyer,

Council of the European Union, represented by M. Bauer and R. Meyer, acting as Agents,

APPEAL brought against the order of the European Union Civil Service Tribunal (Second Chamber) of 24 June 2016, Simpson v Council (F‑142/11 RENV, EU:F:2016:136), and seeking to have that order set aside,

composed of S. Gervasoni, President, L. Madise (Rapporteur) and P. Nihoul, Judges,

1 The present proceedings follow on from the judgment of 26 March 2020, Review Simpson v Council and Review HG v Commission (C‑542/18 RX-II and C‑543/18 RX-II, EU:C:2020:232; ‘the review judgment’), by which the Court of Justice, after finding that the judgment of 19 July 2018, Simpson v Council (T‑646/16 P, not published, EU:T:2018:493; ‘the second judgment on appeal’), concerning an appeal brought against the order of 24 June 2016, Simpson v Council (F‑142/11 RENV, EU:F:2016:136; ‘the order under appeal’), affected the unity and consistency of EU law, set aside the second judgment on appeal and referred the case back to the General Court.

2 By his appeal, brought under Article 9 of Annex I to the Statute of the Court of Justice of the European Union, the appellant, Erik Simpson, seeks to have set aside the order under appeal, by which the European Union Civil Service Tribunal dismissed his action seeking, first, the annulment of the decision of the Council of the European Union of 9 December 2010 (‘the decision at issue’) rejecting his request for an upgrade to grade AD 9 after he had passed Open Competition EPSO/AD/113/07 organised for the recruitment of heads of unit at grade AD 9 in the field of translation, inter alia those with Estonian as their main language (‘Competition EPSO/AD/113/07’), and of the decision of 7 October 2011 rejecting his complaint and, secondly, an order that the Council pay compensation for the harm suffered. The order under appeal was issued following the judgment of 22 October 2015, Council v Simpson (T‑130/14 P, EU:T:2015:796; ‘the first judgment on appeal’), setting aside the judgment of 12 December 2013, Simpson v Council (F‑142/11, EU:F:2013:201; ‘the original judgment’) and referring the case back to the Tribunal.

3 The second judgment on appeal set aside the order under appeal on the ground that there was an irregularity in the composition of the panel of judges having delivered that order which, according to the General Court, constituted a breach of the principle of the right to a judge assigned by law, enshrined in the first sentence of the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union. That judgment was set aside by the Court of Justice in the review judgment on the ground that the General Court had erred in law in holding that the irregularity it had found was sufficient to find an infringement of the first sentence of the second paragraph of Article 47 of the Charter of Fundamental Rights and on the ground that that error of law was such as to affect the unity and consistency of EU law. The Court of Justice referred the examination of the appeal to the General Court after pointing out that, in the second judgment on appeal, the General Court had not examined the grounds relied on in support of that appeal.

4 The factual background to the dispute is set out in paragraphs 3 to 9 of the order under appeal as follows:

‘3 The [appellant], who had been a member of the auxiliary staff in the Estonian translation unit at the Council since 1 June 2004, was recruited on 1 January 2005 as a probationary official at grade AD 5, after passing Open Competition EPSO/LA/3/03 intended to constitute a reserve list for the recruitment of assistant translators of grade [LA] 8. He was promoted to grade AD 6 on 1 January 2008.

4 In 2009, the [appellant] passed … Competition EPSO/AD/113/07. The reserve list for that competition was published on 28 April 2009.

5 On 25 June 2010, the [appellant] requested, under Article 90(1) of the Staff Regulations, to be upgraded to grade AD 9, putting forward the fact that he had passed Competition EPSO/AD/113/07 corresponding to that grade and that three officials from the Polish and Slovak units, including Mr F., who, the [appellant] claimed, were in a situation comparable to his own, had been awarded an upgrade, in 2006 and 2007 respectively, after passing a competition for a grade higher than their own.

6 By note of 9 December 2010 [the decision at issue] the Council, rejecting that request, stated that, in the absence of a provision of the Staff Regulations conferring a right on officials to be automatically upgraded on the basis that they had passed a competition for a higher grade than their own, such a decision could only be adopted where it was in the interest of the service, and in the present case, given the situation in 2010 in the Estonian translation unit, that was not the case ….

8 On 8 March 2011, the [appellant] lodged a complaint under Article 90(2) of the Staff Regulations seeking the withdrawal of the [decision at issue].

9 By decision of 7 October 2011, the Council rejected the complaint, arguing, first, that there was a series of differences between the [appellant]’s situation and that of the three officials of the Polish and Slovak units, so that the principle of equal treatment had not been infringed by reason of the upgrades granted in the past to those officials. In addition, that institution stated that the interest of the service was not a constant element but could vary in the course of time. Secondly, the Council stressed that passing a competition did not confer either the right to be recruited or, by analogy with that principle, the right for a successful candidate in a competition who was already an official to be upgraded in the same post.’

5 On 27 December 2011, the appellant brought an action against the decision at issue before the Civil Service Tribunal, which was registered as case number F‑142/11.

6 In the original judgment, the Tribunal annulled the decision at issue as a result of the finding that it infringed the obligation to state grounds, dismissed the action as to the remainder and ordered the Council to pay all the costs.

7 By application lodged at the Registry of the General Court on 24 February 2014, the Council brought an appeal against the original judgment, registered as case number T‑130/14 P.

8 By the first judgment on appeal, the General Court upheld the appeal and set aside the original judgment.

9 In examining the single plea, alleging in essence a distortion of the evidence on the part of the Tribunal, the General Court found that the Tribunal had vitiated its reasoning by a material inaccuracy in so far as in the original judgment it had always referred to the term ‘promotion’, so far as the documents of the parties during the administrative proceedings were concerned, whereas it was clear from the administrative file that the expression used both by the appellant in his request and complaint, and by the Council in the decision at issue and the decision rejecting the complaint, was ‘upgrade’.

10 Accordingly, the General Court held that the Tribunal’s finding that the Council had failed to comply with the obligation to state grounds by failing to explain that, in the case of the three officials in the Polish and Slovak translation units to which the appellant had referred in his claim, there had not been either a promotion, within the meaning of Article 45 of the Staff Regulations of Officials of the European Union, or a recruitment, but a measure not provided for in the Staff Regulations of Officials of the European Union, namely an upgrade following success in a competition, was based on an incorrect premiss. That premiss resulted from a distortion of certain items of evidence, presumably due to translation errors which might have led to ambiguity in the understanding of the decision at issue and of the decision rejecting the complaint.

11 Having set aside the original judgment, the General Court did not itself rule on the dispute, considering that the state of the proceedings did not permit a decision, and referred the case back to the Tribunal so that that court could rule on the three pleas raised by the appellant against the decision at issue.

Proceedings before the Civil Service Tribunal after referral of the case back to it and the order under appeal

12 Following the referral of the case back to the Civil Service Tribunal (Second Chamber), the appellant and the Council submitted pleadings in the form of written observations.

13 In the order under appeal, the Tribunal dismissed the action in its entirety.

14 At the outset, the Tribunal held that, since the decision rejecting the complaint lacked any independent content in relation to the decision at issue, the claims for annulment were to be regarded as being directed solely against the decision at issue.

15 Next, the Tribunal rejected the claim for annulment of the decision at issue.

16 In the first place, having regard to the first plea for annulment of the decision at issue alleging infringement of the obligation to state grounds, after holding, in paragraph 30 of the order under appeal, that the General Court had not found, in the first judgment on appeal, that there was no infringement of the obligation to state grounds as such but had observed that the finding made in the original judgment regarding an infringement of that obligation was based on a false premiss resulting from a distortion of certain items of evidence, the Tribunal held that it was necessary to examine the plea concerning the obligation to state grounds.

17 Thus, in paragraph 32 of the order under appeal, relying on paragraph 35 of the first judgment on appeal, first, it observed that in the decision at issue the Council had first pointed out that there was no provision in the Staff Regulations conferring the right upon officials who have passed a competition for a grade higher than their own to automatically receive an upgrade, going on to state that such a measure could only be adopted in the interest of the service and, lastly, concluding that the criterion in question was not satisfied so far as the appellant’s request was concerned since the situation in the translation unit to which he belonged was different at the time of his request to that of the translation units concerned at the time when the three officials in comparison to whom he claimed to have been treated differently received an upgrade.

18 Secondly, in paragraph 33 of the order under appeal the Tribunal found that the Council had expressly replied to the complaint alleging breach of the principle of equal treatment inasmuch as it had observed that the three officials in relation to whom the appellant considered himself to have been treated differently were in different situations to that of the appellant, that an official who had passed a competition did not have the right to be upgraded while remaining in the same post and that, in the absence of a statutory provision, it had been guided by the interest of the service, under which recruitment at grade AD 9 in the appellant’s language unit was not justified. The Tribunal thus concluded, in paragraph 34 of the order under appeal, that the Council had stated grounds to the requisite legal standard for the decision at issue.

19 In the second place, having regard to the second plea for annulment of the decision at issue, alleging breach of the principle of equal treatment, after recalling in paragraphs 45 to 47 of the order under appeal that it was apparent from case-law that the interest of the service was one of the objective and reasonable criteria which could warrant a difference in treatment between officials and, furthermore, that the administration enjoyed a wide discretion to decide on the measures to take in the interest of the service so that review by the court had to be confined to checking that the differentiation made by the institution concerned was not arbitrary or manifestly contrary to that interest, the Tribunal observed, in paragraph 50 of the order under appeal, that the assessment of the interest of the service was not a constant element and could vary in the course of time depending on objective factors. Thus it held in paragraphs 51 and 52 of the order under appeal that the interest of the translation units of the languages of the new Member States, as it stood in 2006, clearly could not have been the same as that in 2010, six years after they had been established, so that the interest of the service consisting in preserving the human resources of the new language units was undoubtedly less significant than in 2006. Having also noted, in particular, that the Council had stated, without being contradicted, that six officials in a situation similar to that of the appellant had also been refused an upgrade between 2008 and 2011 and that neither the upgrade granted to Mr F., the official whose personal situation was the most comparable to that of the appellant, nor the upgrade requested by the appellant constituted promotions within the meaning of Article 45 of the Staff Regulations of Officials of the European Union, which would have required a comparison of the merits of the officials concerned, the Tribunal concluded, in paragraph 58 of the order under appeal, that by refusing in the case at issue to grant the appellant an upgrade, the differentiation made by the Council was not arbitrary or manifestly contrary to the interest of the service.

20 In the third place, in paragraphs 62 to 64 of the order under appeal, the Tribunal rejected as manifestly unfounded the third plea for annulment of the decision at issue, alleging a manifest error of assessment, on the ground that the appellant had simply repeated the arguments already raised in support of his second plea for annulment without putting forward any supplementary evidence.

21 In the fourth place, the Tribunal rejected the appellant’s claim for compensation as a consequence of the rejection of those applications for annulment.

22 Lastly, the Tribunal declared that the appellant was to bear his own costs incurred in Cases F‑142/11, T‑130/14 P and F‑142/11 RENV respectively, and ordered him to pay those incurred by the Council in Case F‑142/11.

23 By pleading lodged at the Registry of the General Court on 6 September 2016, the appellant brought the present appeal on the basis of Article 9 of Annex I to the Statute of the Court of Justice of the European Union.

24 By document lodged at the Court Registry on 20 December 2016, the Council filed a statement in response.

25 By decision of the President of the Appeal Chamber dated 10 February 2017, the appellant was authorised to produce a reply in accordance with Article 201(1) of the Rules of Procedure of the General Court.

27 By document lodged at the Court Registry on 11 May 2016, the Council lodged a rejoinder.

29 By letters lodged at the Court Registry on 13 June 2017 and 19 June 2017 respectively, the appellant and the Council stated that they were not requesting a hearing.

30 The General Court (Appeal Chamber) decided, pursuant to Article 207(2) of the Rules of Procedure, to rule on the appeal without an oral part of the procedure.

31 By decision of 21 March 2018, the President of the Appeal Chamber decided to re-open the written part of the procedure.

32 On 22 March 2018, the General Court invited the parties to submit observations on the conclusions which they drew, for the proceedings, from the judgment of 23 January 2018, FV v Council (T‑639/16 P, EU:T:2018:22), by which the General Court set aside a judgment of the Civil Service Tribunal on the ground that there had been an irregularity in the formation of the Tribunal which had delivered it. The parties complied with that request within the prescribed period.

34 The second judgment on appeal, setting aside the order under appeal on the ground of the irregularity in the formation of the Tribunal which had ruled, was delivered following those proceedings, but it was reviewed and subsequently set aside by the Court of Justice, as set out in paragraphs 1 and 3 above, and the appeal was referred back to the General Court. Accordingly, the case which had been referred back for judgment on the merits pursuant to the second judgment on appeal (Case T‑441/18 RENV) was closed by decision of the Registry.

35 Owing to the reorganisation of the General Court following the implementation of Article 4 of Regulation (EU, Euratom) 2016/1192 of the European Parliament and of the Council of 6 July 2016 on the transfer to the General Court of jurisdiction at first instance in disputes between the European Union and its servants (OJ 2016 L 200, p. 137), the General Court no longer included, at the time of the referral of the appeal, an Appeal Chamber. The appeal was therefore assigned to the Fourth Chamber, which is one of those specifically responsible, pursuant to the decision of the General Court of 11 March 2020 on the Formation of Chambers and assignment of Judges to Chambers (OJ 2020 C 114, p. 2), for cases brought under Article 270 TFEU in disputes between the European Union and its servants.

36 Since Article 222 of the Rules of Procedure provides that, following the referral of an appeal to the General Court, the parties to the proceedings before the General Court may, within one month of service of the judgment of the Court of Justice, lodge their written observations on the conclusions to be drawn from that judgment, the Council lodged written observations on 5 May 2020. The appellant did not lodge any such observations within the period prescribed.

37 The Council did not make any specific observations on the consequences to be drawn from the review judgment for the outcome of the dispute and summarised the arguments which it had developed in the response and rejoinder.

40 The appeal concerns the Civil Service Tribunal’s examination, in the order under appeal, of the pleas for annulment of the decision at issue referred to in paragraphs 16 to 20 above, namely infringement of the obligation to state grounds, infringement of the principle of equal treatment and the existence of a manifest error of assessment.

Examination by the Civil Service Tribunal of the plea alleging infringement of the obligation to state grounds

41 The appellant refers to the reasons given in the order under appeal for the Civil Service Tribunal to have rejected the plea alleging infringement of the obligation to state grounds, which are summarised in paragraphs 17 and 18 above. According to the appellant, the legal basis of the decision at issue is still unknown, which shows that an essential element of the statement of grounds for that decision is lacking. In that regard, the appellant states that the Council put forward three legal bases in the course of the judicial proceedings, namely the interest of the service in the statement in defence, Article 31(2) of the Staff Regulations at the hearing which preceded the original judgment and, in the observations following referral of the case back to the Tribunal, a staff note from the General Secretariat of the Council on Reclassification to a higher grade following an open competition, stating that the Staff Regulations do not contain any specific provisions in that regard. The appellant states that the contention, relied on by the Council, that it was not in the interest of the service to reclassify him is a factual reason, but not a legal basis. The circumstances cannot as such constitute a legal basis, particularly as in the present case the Council allegedly abruptly changed its practice. The Tribunal did not itself identify in the order under appeal the factors from which a legal basis for the decision at issue could be determined. Thus, the order under appeal itself is vitiated by a failure to state reasons.

42 The appellant submits, in essence, that indicating the legal basis of an institution’s decision is essential in order to ensure that that institution is acting within the sphere of its competence. Thus, by failing to indicate the legal basis of the decision at issue, the Council failed to state to the requisite legal standard the grounds on which it was based and, by taking the contrary view, the Tribunal erred in law. In so ruling, the court adjudicating on the substance of the case also distorted the evidence by finding that the Council had, in invoking the interest of the service as a specific provision in the legislation authorising it to grant an upgrade, stated a legal basis. The staff note referred to in paragraph 41 above indicates that there is no provision of the Staff Regulations allowing such an upgrade to be granted.

43 In essence, therefore, according to the appellant, while the Council failed to satisfy its obligation to state grounds for the decision at issue by failing to indicate its legal basis, the Tribunal itself failed to comply with that obligation by failing to indicate the legal basis of a decision which it confirmed, erred in law by considering adequate grounds to be stated for that decision and distorted the file by holding that the Council had accepted the interest of the service as a legal basis.

44 As regards the first of those three complaints against the order under appeal, it is settled case-law that the appeal court may review whether the court adjudicating on the substance has answered to the requisite legal standard all the arguments put forward by the appellant. The plea alleging that the court adjudicating on the substance of the case failed to respond to a plea or argument amounts, in essence, to alleging infringement of the obligation to state reasons arising from Article 36 of the Statute of the Court of Justice of the European Union, which was applicable to the Civil Service Tribunal by virtue of Article 7(1) of Annex I to that statute (see, to that effect, judgments of 1 October 1991, Vidrányi v Commission, C‑283/90 P, EU:C:1991:361, paragraph 29; of 17 July 1997, Ferriere Nord v Commission, C‑219/95 P, EU:C:1997:375, paragraph 31; and of 11 September 2013, L v Parliament, T‑317/10 P, EU:T:2013:413, paragraph 29).

45 In the present case, it must first be noted that, in his pleadings before the court adjudicating on the substance of the case, the appellant did not ever raise, as an argument in support of his plea alleging infringement of the obligation to state grounds, the failure to indicate a legal basis for the decision at issue therein or in the decision rejecting his complaint. In those pleadings, the appellant criticised only the lack of explanations in those decisions as to the difference in the assessment of the interest of the service which had led to the reclassification in grade of some of his colleagues and not him. In those circumstances, he cannot criticise the Tribunal for failing to respond to one of his arguments concerning the failure to indicate a legal basis for the decision at issue.

46 Next, it is admittedly apparent from settled case-law that, in an action for annulment, a plea alleging that the statement of grounds for a measure is lacking or inadequate constitutes a plea involving a matter of public policy which may, and even must, be raised by the EU Courts of their own motion (judgment of 20 February 1997, Commission v Daffix, C‑166/95 P, EU:C:1997:73, paragraph 24; see, also, judgment of 20 July 2017, Badica and Kardiam v Council, T‑619/15, EU:T:2017:532, paragraph 42 and the case-law cited).

47 In the present case, having regard to the line of argument in the appeal developed by the appellant, it may first be verified, as a matter of procedural economy, whether the Tribunal identified in the decision at issue an indication of a legal basis for that decision. However, if this is so, there will be no need to examine whether the ground for the decision at issue, identified as constituting its legal basis, could legitimately be considered as such. The grounds of appeal examined here, referred to in paragraphs 42 and 43 above, relate only to the Tribunal’s examination of whether the Council complied with its obligation to state grounds and not to the examination by that court of a plea challenging the merits of the statement of grounds adopted by the Council.

48 It should also be noted that what is at issue in the present case is a refusal to grant an official in a certain grade an upgrade in the same post after he had passed a recruitment competition for duties corresponding to a higher grade, and not a decision to the contrary. Consequently, the identification by the Tribunal within the decision at issue of a provision allowing the appellant to be upgraded in the same post after he had passed such a competition is not at issue, but rather the identification of the grounds relied on as constituting the legal basis for the refusal to grant the appellant that upgrade. In that regard, the Tribunal rightly pointed out, with regard to the obligation to state grounds, in paragraphs 32 and 33 of the order under appeal, that the Council had justified its refusal, in the absence of a provision of the Staff Regulations governing upgrades such as that requested by the appellant, on the ground that it was not in the interest of the service to grant the appellant such an upgrade. It follows that the Tribunal did indeed identify a statement of grounds concerning the legal basis of the decision at issue and that there was no obligation for it to examine of its own motion whether the Council had provided grounds justifying a contrary decision to grant an official in a certain grade an upgrade in the same post after he or she had passed a recruitment competition for duties corresponding to a higher grade. The argument put forward in that regard by the appellant in support of the third complaint referred to in paragraphs 42 and 43 above, according to which the Tribunal distorted the file, which allegedly contained a document indicating that there is no provision of the Staff Regulations permitting such an upgrade, is therefore ineffective in that it cannot, by definition, be put forward against a refusal to grant such an upgrade, irrespective of the ground for that refusal. Accordingly, the Tribunal neither itself infringed the obligation to state reasons, nor, in the light of the second and third complaints put forward against the order under appeal mentioned in paragraphs 42 and 43 above, committed an error of law in that regard, nor indeed distorted the file.

49 The grounds of appeal concerning the Tribunal’s examination of the plea for annulment of the decision at issue, alleging infringement of the obligation to state reasons, must therefore be rejected.

Examination by the Civil Service Tribunal of the plea alleging breach of the principle of equal treatment

50 According to the appellant, the Civil Service Tribunal distorted the facts in the order under appeal. He points out that in that order it was stated that the ground given for the refusal to grant him an upgrade was that it was not in the interest of the service, the situation of his translation unit being, according to that statement of grounds, different, in the light of the principle of equal treatment, at the time of his request for reclassification, in 2010, from the situation of that of Mr F. – whose personal situation was most comparable to his – at the time when Mr F. obtained such an upgrade in 2006. The appellant claims that the Tribunal completely disregarded, considering them to be unnecessary, in paragraph 53 of the order under appeal, the documents which he had produced and which allegedly showed that the situation of those two units was comparable. He claims that those documents, the authenticity of which was not disputed by the Council, indicate that Mr F.’s translation unit was fully staffed by senior established officials in 2006 and that that unit was at that time well stabilised. He submits that the Tribunal also distorted the facts by stating, in essence, in paragraphs 51 and 52 of the order under appeal, that while in 2006 there was a strong interest in retaining the most qualified and experienced translators, who were in high demand externally, in the translation units of the languages of the new Member States, such an interest no longer existed in 2010. First, he maintains that the Council itself never put forward that argument, including during the judicial proceedings, and there was no evidence that Mr F. had been offered a post in another institution. Moreover, there were always candidates who had passed competitions for the recruitment of translators on the reserve lists. Likewise, in paragraph 55 of the order under appeal, the appellant claims that the Tribunal endorsed without evidence an assertion put forward at a late stage in the proceedings by the Council, stating that six other upgrades had been refused between 2008 and 2011 to translators in a personal situation comparable to that of the appellant. The account taken of the fact that the appellant did not refute that statement also distorts the facts, since it was impossible for him to verify the truth of that assertion due to the Council countering any such attempt on the basis of the confidentiality of personal data concerning officials, as is shown by the response given to the appellant when he requested access to the decision classifying colleagues in the higher grade. According to the appellant, the Tribunal also distorted the evidence by failing to take account of the staff note from the General Secretariat of the Council on Reclassification to a higher grade following an open competition, referred to in paragraph 41 above.

51 Furthermore, the lack of explanation, in paragraph 55 of the order under appeal, of the reasons which led the Tribunal to accept as such the Council’s assertion that six other upgrades were refused between 2008 and 2011 to translators in a personal situation comparable to that of the appellant, is also an expression of a breach of the obligation to state reasons on the part of the Tribunal.

52 As regards the role of the appeal court, it should be recalled that it follows from Article 11 of Annex I to the Statute of the Court of Justice of the European Union, relating to the Tribunal, that the Tribunal had exclusive jurisdiction, first, to find the facts, except where the substantive inaccuracy of its findings was apparent from the documents submitted to it, and, second, to assess those facts, save where it had distorted the clear sense of the evidence (see, to that effect and by analogy, judgments of 1 June 1994, Commission v Brazzelli Lualdi and Others, C‑136/92 P, EU:C:1994:211, paragraph 49; of 25 January 2007, Sumitomo Metal Industries and Nippon Steel v Commission, C‑403/04 P and C‑405/04 P, EU:C:2007:52, paragraph 39; and order of 8 October 2015, Nieminen v Council, T‑464/14 P, EU:T:2015:787, paragraphs 26 and 35).

53 In the present case, the appellant first complains of a distortion by the Tribunal of the evidence which he produced in order to show that, in 2006, Mr F.’s translation unit was fully staffed by senior established officials and that that unit was at that time well stabilised, on the ground that the Tribunal held, in paragraph 53 of the order under appeal, that there was no need to demonstrate those facts. The reasoning followed by the Tribunal in that passage of the order under appeal is that the interest of the service in granting or not granting an upgrade such as that requested by the appellant was not linked to the fact that the staff were full or incomplete, but to the degree of consolidation of the translation units in organisational, functional and structural terms. It is true that the appellant did not intend to show only, with the evidence he produced, that in 2006 Mr F.’s translation unit was fully staffed, as is apparent from paragraph 3 of the reply, but also that its translators were all established officials, as is apparent from paragraph 4 of the reply. As paragraph 33 of the reply shows, the emphasis placed on that second aspect was intended to establish that that unit was well stabilised in 2006, since established officials were, in the appellant’s view, supposed to be inclined to remain in their institution. By contrast, as the appellant argued, in 2010 his translation unit still had members of temporary staff and a post which was vacant, which justified encouraging the appellant to retain his post by granting him the upgrade which he sought more so than did granting such an upgrade to Mr F. in 2006.

54 However, the assessment made by the Tribunal in paragraph 53 of the order under appeal, which begins with ‘in this connection’, forms part of a broader statement of reasons, which begins at paragraph 51 of that order and which consists of accepting the Council’s argument that in 2006, in essence, it was in the interest of the service to retain the translators present in translation units which had existed for scarcely two years, whereas they were in high demand externally. Meanwhile, that situation had changed considerably by 2010, the year when the appellant requested to be reclassified, since those units were at that stage stabilised in organisational, functional and structural terms. In the light of those considerations, it seems inconclusive that in 2006 all the translators in Mr F.’s unit were already established officials, since such staff can also leave to work outside their institution of origin, and that in 2010 there were temporary staff and a vacant post within the appellant’s unit, a situation which is not exceptional under normal circumstances within the ‘basic’ structure of an EU institution.

55 It follows that the Tribunal in no sense distorted the evidence referred to in paragraph 53 above, since it did not cast doubt on its veracity but rightly dismissed its relevance in the context of the reasoning which it followed.

56 As regards the second distortion of the facts complained of by the appellant, which he claims is expressed specifically in the consideration that while, in 2006, there was an interest in retaining in the translation units of the languages of the new Member States the most qualified and experienced translators, who were in high demand externally, no such interest existed in 2010, the appellant has not submitted any argument allowing such a distortion to be found.

57 In the first place, it is incorrect that the Council itself at no point put forward that argument, including during the judicial proceedings. The decision at issue states: ‘I regret to inform you that given the current situation of the Estonian Language Unit, which is different from that of the Polish and Slovak Language Units at the time [Mr F. in particular was] granted an upgrade, it would not be in the interest of the service to award you an upgrade’. That statement of grounds was set out in paragraph 34 of the defence as follows: ‘The criteri[on] of the interest of the service is not a constant factor, and it may therefore evolve over time[; a]t the time when [Mr F. in particular was] upgraded, the language units for the “new Member States” were still relatively recent and thus still under development[; i]t was therefore imperative to maintain qualified translators to preserve the coherence in the translations and the knowledge and experience so far achieved, notably as regards terminology[; t]hat situation had changed in 2010 when the [appellant] made his request as the language units in question had become further consolidated and had already built up a certain experience’. The same statement of grounds was essentially reiterated in paragraph 16 of the rejoinder. Contrary to what the appellant claims, the Tribunal did not, therefore, base its reasoning on matters not relied on in the file.

58 In the second place, in the light of the argument that there is no evidence that Mr F. had been offered a post in another institution before obtaining an upgrade, it must be held that that fact is not alleged in the order under appeal, since only the general situation of the translation units of the languages of the new Member States was taken into account. Moreover, encouraging officials to remain in their allocated posts by responding favourably to certain of their requests cannot be reduced to a matter of offering them a higher salary than the proposals which they have mentioned made to them elsewhere.

59 In the third place, the argument that in 2006 there were still candidates on the reserve lists who had passed competitions for translators for the languages concerned constitutes a matter of fact put forward by the appellant only at the appeal stage and the Civil Service Tribunal cannot be criticised for failing to take it into account (see, to that effect, judgment of 26 February 2016, Bodson and Others v EIB, T‑240/14 P, EU:T:2016:104, paragraph 80). Moreover, there is distortion of the clear sense of the evidence where, without recourse to new evidence, the assessment of the existing evidence appears to be clearly incorrect (see judgment of 18 July 2007, Industrias Químicas del Vallés v Commission, C‑326/05 P, EU:C:2007:443, paragraph 60 and the case-law cited).

60 As regards the third distortion of the facts complained of by the appellant, which is allegedly expressed in paragraph 55 of the order under appeal by the Council’s assertion, without evidence, that six other upgrades were refused between 2008 and 2011 to translators in a personal situation comparable to that of the appellant, it must be held that that assertion was made at the stage of the defence, in paragraph 36. Furthermore, it is apparent, in essence, from a statement by the Tribunal, that it was not disputed by the appellant and that, if the appellant had doubts as to its veracity, he should have mentioned that in the reply or in his observations in the context of the referral of the case back after the first judgment on appeal, observations in paragraph 32 of which he moreover mentioned those refusals. The appellant’s contention that he did not himself have the means to check that veracity, in view of the Council’s opposition to disclose personal data, did not preclude him from casting doubt on the statement in question and, as appropriate, from requesting that it be disregarded or substantiated. In the absence of such a response from the appellant in due time, it cannot be held that the Tribunal distorted the evidence in that regard.

61 Finally, as regards the fourth distortion of the facts complained of, alleging that the Tribunal did not take into account the staff note of the General Secretariat of the Council on Reclassification to a higher grade following an open competition, referred to in paragraph 41 above, the appellant’s argument is unclear because it fails to show how and in what way in his view that note, post-dating the facts, should have been taken into account. In those circumstances, the Court must reject the complaint in question.

62 It follows from paragraphs 53 to 61 above that the distortion of the facts by the Tribunal in its examination of the plea for annulment of the decision at issue alleging infringement of the principle of equal treatment, as claimed by the appellant, has not been established.

63 As stated in paragraph 51 above, the appellant also submits that the lack of explanation in the order under appeal as to the reasons which led the Tribunal to accept as such the Council’s assertion that six other upgrades were refused to translators in a personal situation comparable to that of the appellant also reflects a failure to comply with the obligation to state reasons.

64 However, it must be noted that in paragraph 55 of the order under appeal in which that assertion was taken into account, the Tribunal, without distorting the file as is apparent from paragraph 60 above, stated that the appellant had not disputed that assertion. That statement constitutes a sufficient statement of reasons to explain why the Tribunal took into account that statement.

65 The grounds of appeal concerning the Tribunal’s examination of the plea for annulment of the decision at issue, alleging infringement of the principle of equal treatment, must therefore be rejected.

Examination by the Civil Service Tribunal of the plea alleging a manifest error of assessment

66 The appellant points out that, in order to rebut the plea for annulment of the decision at issue alleging a manifest error of assessment, the Civil Service Tribunal referred in the order under appeal to its analysis of the plea for annulment of the decision at issue alleging infringement of the principle of equal treatment inasmuch as the appellant put forward the same arguments in support of those two pleas. The appellant therefore refers to his grounds of appeal directed against the examination of the latter of those pleas in order to challenge the examination of the former.

67 In the light of the analysis of the grounds of appeal directed against the examination of the plea for annulment of the decision at issue alleging infringement of the principle of equal treatment carried out in paragraphs 52 to 65 above, the grounds of appeal directed against the examination of the plea for annulment of the decision at issue alleging a manifest error of assessment must therefore be rejected.

68 Noting that, in paragraphs 67 and 68 of the order under appeal, the Civil Service Tribunal relied on the close link between the application for annulment of the decision at issue and the claim for compensation in order to reject that claim after rejecting the application for annulment, the appellant submits that, since the order under appeal must be set aside in so far as it relates to his application for annulment of the decision at issue, it must also be set aside in so far as it relates to his claim for compensation. He argues that that claim should be upheld on the grounds of harm resulting from unequal treatment as compared with Mr F., harm to his career prospects and non-material damage.

69 However, since the order under appeal has been upheld inasmuch as it dismissed the application for annulment of the decision at issue and the legality of that decision has therefore been confirmed, the close link between that application and the claim for compensation not being disputed, the order under appeal must likewise be upheld in so far as it also dismissed the claim for compensation. In that regard, as the Civil Service Tribunal correctly stated in paragraph 67 of that order, it is settled case-law that if a claim for compensation is closely linked to an application for annulment, the rejection of the latter, either as inadmissible or as unfounded, also results in the rejection of the claim for compensation (see, to that effect, judgment of 30 September 2003, Martínez Valls v Parliament, T‑214/02, EU:T:2003:254, paragraph 43 and the case-law cited).

70 It follows from all of the foregoing that the appeal must be dismissed in its entirety.

71 In accordance with Article 223 of the Rules of Procedure, the General Court is to decide on the costs relating to the proceedings instituted before it following review of its decision by the Court of Justice and, in accordance with Article 211(2) of those rules, where the appeal is unfounded, the General Court is to make a decision as to costs.

72 Under Article 134(1) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 211(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 211(4) of those rules, by way of derogation from that provision, in appeals brought by officials, the General Court may decide to apportion the costs between the parties where equity so requires.

73 In the present case, account must be taken of the fact that the review in the present case, the proceedings before the General Court after the review and the closure of the procedure for referral of the substance of the case, which was resumed after the second judgment on appeal, do not entail the acceptance of a plea put forward by one of the parties in the proceedings closed by the second judgment on appeal, which was set aside by the Court of Justice. The Court therefore considers it equitable that each party bear its own costs relating, first, to the proceedings referred back to the General Court closed by decision of the Registry after the second judgment on appeal was set aside by the Court of Justice (T‑441/18 RENV), it being noted that the Court of Justice decided that each party was to bear its own costs relating to the review procedure and, second, to the proceedings before the General Court after the review (T‑646/16 P RENV-RX).

74 Furthermore, since the appellant has been unsuccessful and the Council has applied for costs, the appellant must be ordered to pay the costs of the appeal proceedings which were incurred before the second judgment on appeal was delivered (T‑646/16 P).

2. Declares that Mr Erik Simpson is to bear his own costs and to pay those incurred by the Council of the European Union in Case T‑646/16 P;

3. Declares that each party is to bear its own costs in Cases T‑441/18 RENV and T‑646/16 P RENV-RX.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Simpson v Council (Civil service - Refusal of the Council to reclassify the person concerned, after he passed an open competition - Judgment) [2021] EUECJ T-646/16PRENV-RX (13 October 2021) URL: http://www.bailii.org/eu/cases/EUECJ/2021/T64616PRENVRX.html Cite as: EU:T:2021:692, ECLI:EU:T:2021:692, [2021] EUECJ T-646/16PRENV-RX

Court of Justice of the European Communities (including Court of First Instance Decisions)