JUDGMENT OF THE COURT OF FIRST INSTANCE (Appeal Chamber)

12 May 2010

Case T-560/08 P

European Commission

v

Stefan Meierhofer

(Appeal — Civil service — Recruitment — Open competition — Decision that a candidate had failed the oral test — Commission’s refusal to comply with a measure of organisation of procedure)

Appeal: against the judgment of the European Union Civil Service Tribunal (First Chamber) in Case F-74/07 Meierhofer v Commission [2008] ECR-SC I-A-1-319 and II-A-1-1745 seeking to have that judgment set aside.

Held: the judgment of the Civil Service Tribunal in Case F-74/07 Meierhofer v Commission [2008] ECR-SC I-A-1-319 and II-A-1-1745 is set aside. The case is referred back to the Civil Service Tribunal. The costs are reserved.

Summary

1.      Appeals — Interest in bringing proceedings — Condition — Advantage for the applicant

(Statute of the Court of Justice, Art. 56, para. 3)

2.      Procedure — Measures of organisation of procedure — Measures of inquiry — Discretion of the Courts of the Union — Scope

3.      Procedure — Measures of organisation of procedure — Request for production of a document — Account to be taken of confidential nature

(Rules of Procedure of the Civil Service Tribunal, Art. 44(2))

1.      In appeals brought by an institution which was the defendant at first instance against a judgment in favour of an official, the admissibility of the appeal is subject to the existence of a legal interest in bringing the proceedings, which presupposes that the appeal must be liable, if successful, to procure an advantage to the party bringing it.

In that regard, where the Civil Service Tribunal has annulled, on the ground of a breach of the obligation to state reasons, a decision that a candidate has failed the oral test of a competition, in order to comply with that judgment the institution concerned is required to adopt a new decision to include, or not to include, the name of the person concerned on the reserve list for the competition. That new decision would take the place of the decision of 19 June 2007, annulled by the judgment under appeal. On the other hand, where the judgment under appeal is set aside, the decision set aside is once again in full force and must be re-considered in the light of the other pleas put forward in the action.

Moreover, setting aside the judgment under appeal will, in any event, procure a definite advantage for the defendant institution inasmuch as, if the action at first instance is ultimately dismissed, it will then be protected from an action for damages by the applicant on account of the loss he could claim to have suffered by reason of the contested decision.

(see paras 41, 44-45, 47)

See: C-174/99 P Parliament v Richard [2000] ECR I-6189, paras 33 and 34; C-277/01 P Parliament v Samper [2003] ECR I-3019, paras 28 and 31

2.      Assessment of the appropriateness of adopting a measure of organisation of procedure or a measure of inquiry is a matter for the court, not the parties, and the latter may, if they see fit, challenge the choice made at first instance in the framework of an appeal. Thus it is for the court, and not for the parties, to consider whether a measure of inquiry is necessary for the purposes of the decision which the court must make.

Although it is true that a party cannot require the Courts of the European Union to adopt a measure of inquiry, it is none the less true that the court cannot draw inferences from the absence of certain items in the file until it has exhausted all the means provided for in its rules of procedure to obtain production of those items from the relevant party.

(see paras 61-62)

See: T-34/92 Fiatagri and New Holland Ford v Commission [1994] ECR II-905

3.      Notwithstanding the differences between the Rules of Procedure of the General Court and those of the Civil Service Tribunal, the latter is none the less entitled to follow the same procedure as that followed by the General Court, whereby, when a party informs the court that it is not able to comply with measures of organisation of procedure since some of the requested documents are confidential, that court can order that party to produce the requested documents, but provide that they will not be communicated to the other party at that stage.

Admittedly, neither the Statute of the Court of Justice nor the Rules of Procedure of the Civil Service Tribunal, nor indeed the Rules of Procedure of the Court of Justice or those of the General Court, provide for the imposition of a sanction in the case of refusal to comply with such an order, the only possible response to a refusal being for the court to draw the appropriate inferences from that refusal in the decision closing the case.

The fact remains that, before doing so, the Civil Service Tribunal is required to exhaust all the instruments at its disposal to obtain production of the documents at issue. Thus, where an institution emphasises the allegedly confidential character of the documents requested of it, the Civil Service Tribunal should, of its own motion, rely on the provision in its Rules of Procedure which permits it, in an appropriate case, to take account of that confidential character and, if need be, to take appropriate measures to protect it. Article 44(2) of the Rules of Procedure of the Civil Service Tribunal permits the making of an order requiring production of an allegedly confidential document.

(see paras 72-74, 76-77)

See: 155/78 M. v Commission [1980] ECR 1797, paras 20 and 21; T-48/05 Franchet and Byk v Commission [2008] ECR II-1585, paras 54 and 55; T-299/05 Shanghai Excell M & E Enterprise and Shanghai Adeptech Precision v Council [2009] ECR II-573, paras 24 to 26