JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

12 May 2010 (*)

(Appeals – 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)

In Case T‑560/08 P,

APPEAL against the judgment of the European Union Civil Service Tribunal (First Chamber) of 14 October 2008 in Case F‑74/07 Meierhofer v Commission [2008] ECR-SC I‑A‑1-0000 and II‑A-1-0000 seeking to have that judgment set aside,

European Commission, represented by J. Currall and B. Eggers, acting as Agents, assisted by B. Wägenbaur, lawyer,

appellant,

the other party to the proceedings being

Stefan Meierhofer, residing in Munich (Germany), represented by H.‑G. Schiessl, lawyer,

applicant at first instance,

THE GENERAL COURT (Appeal Chamber),

composed of M. Jaeger (Rapporteur), President, A.W.H. Meij and M. Vilaras, Judges,

Registrar: B. Pastor, Deputy Registrar,

having regard to the written procedure and further to the hearing on 13 January 2010,

gives the following

Judgment

1        In its appeal, brought under Article 9 of Annex I to the Statute of the Court of Justice of the European Union, the Commission of the European Communities is seeking to have set aside the judgment of the European Union Civil Service Tribunal (First Chamber) of 14 October 2008 in Case F‑74/07 Meierhofer v Commission [2008] ECR-SC I‑A‑1-0000 and II‑A-1-0000 (‘the judgment under appeal’), by which the Tribunal annulled the decision of the selection board in Competition EPSO/AD/26/05 of 19 June 2007 confirming that Mr Meierhofer had failed the oral test for that competition.

 Background to the dispute and legal context

2        As is apparent from the judgment under appeal (paragraphs 8 to 11), Mr Stefan Meierhofer, the applicant at first instance, a German national, took part in competition EPSO/AD/26/05 (‘the competition’), notice of which was published in the Official Journal of the European Union of 20 July 2005 (OJ 2005 C 178 A, p. 3). After passing the pre-selection tests and the written tests, he took part in the oral test on 29 March 2007.

3        By letter of 10 May 2007, the chairman of the selection board in competition EPSO/AD/26/05 informed Mr Meierhofer that he had obtained 24.5 marks in the oral test, thus not reaching the pass mark of 25 out of 50, and that he could not be included on the reserve list (‘the decision of 10 May 2007’).

4        By letter of 11 May 2007, Mr Meierhofer submitted a request for review of the decision of 10 May 2007, taking the view, with reference to the report which he himself had drawn up following the oral test and which is annexed to the application, that he had answered correctly at least 80% of the questions during that test. He thus called for a review of the marking of his oral test and, in the alternative, for an explanation of the marks which he had obtained for each of the questions put during that test.

5        By letter of 19 June 2007, the chairman of the selection board informed Mr Meierhofer that, after reviewing his candidature, the selection board had not found any reason to change his results (‘the decision of 19 June 2007’). In that letter, it was also made clear to the applicant, firstly, that, as regards his specialist knowledge, the number of unsatisfactory answers had exceeded the number of satisfactory answers, secondly, that the oral test had been conducted in accordance with the criteria specified in the notice of competition and, thirdly, that, having regard to the secrecy of the proceedings of the selection board required by Article 6 of Annex III to the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’), it was not possible to provide candidates with either the marking grid or the breakdown of their marks for the oral test.

6        The notice of competition, under the title ‘B. Successive stages of the competition’, lays down the following rules concerning the oral test and inclusion on the reserve list:

‘3. Oral test — Marking

(e)      Interview with the selection board in your main language to enable it to assess your suitability to carry out the duties described at section A.I above. This interview will focus in particular on your specialist knowledge in the field chosen and your knowledge of the European Union, its institutions and its policies. Knowledge of your second language will also be tested. The interview is also designed to evaluate your ability to adjust to working as a European civil servant in a multicultural environment.’

7        In addition, Article 6 of Annex III to the Staff Regulations reads as follows:

‘The proceedings of the Selection Board shall be secret.’

 Procedure at first instance and the judgment under appeal

8        By application received at the Tribunal Registry on 3 July 2007, Mr Meierhofer brought an action for annulment of the decision of 10 May 2007 and the decision of 19 June 2007, as well as for a series of directions to be addressed to the Commission.

9        By way of measures of organisation of procedure prescribed pursuant to Article 55 of its Rules of Procedure, the Tribunal called on the Commission, in the preparatory report for the hearing sent to the parties on 7 February 2008, to lodge, prior to the hearing:

‘(a)      the marking grid and the breakdown of the applicant’s marks for the oral test, as referred to in the decision of 19 June 2007 not granting his request for review,

(b)      any other information relating to the assessment of the quality of the applicant’s performance in the oral test,

(c)      a list of the marks, without names, obtained by the other candidates who received an eliminatory mark in the oral test,

(d)      the calculations which led to the precise result of 24.5 out of 50 for the applicant’s marking in the oral test.’

10      That preparatory report for the hearing stated that the communication to Mr Meierhofer of the items listed above would take place in so far as such communication could be reconciled with the principle of secrecy of the selection board’s proceedings and/or after omission, where appropriate, of certain particulars whose disclosure would conflict with that principle.

11      In response to those measures of organisation of procedure, by letter received at the Tribunal Registry on 18 February 2008, the Commission sent to the Tribunal, as called for in point (c) of the preparatory report for the hearing, a table, without names, of the eliminatory marks of the candidates who had failed the oral test. However, the Commission failed to produce the items indicated under points (a), (b) and (d) of that report, contending in essence that, in the absence of proof of infringement of the rules governing the proceedings of the selection board, the plea in law concerning the statement of reasons alone did not justify, having regard to the secrecy of the proceedings of the selection board, the production of the other information and documents requested.

12      At the end of paragraph 16 of the judgment under appeal, the Tribunal made the following remark:

‘The Commission also pointed out that it was not obliged to produce such information and documents, whether the [Civil Service] Tribunal asks for them by way of measures of organisation of procedure, as in this case, or even by way of measures of inquiry.’

13      Mr Meierhofer lodged at the Tribunal Registry, on 20 March 2008, observations on the measures of organisation of procedure addressed to the Commission, and inter alia on the latter’s reaction to those measures.

14      By letter of 19 May 2008, the Commission replied to those observations, a copy thereof having been given to them at the hearing on 23 April 2008.

15      In the judgment under appeal, the Civil Service Tribunal noted, first, that the action must be held to be directed solely against the decision of 19 June 2007 on the ground that where a candidate in a competition seeks review of a decision taken by a selection board, it is the decision taken by the latter after the review of the candidate’s situation that constitutes the act adversely affecting him (paragraphs 19 and 20 of the judgment under appeal). Subsequently, after considering and allowing the first plea put forward by Mr Meierhofer, alleging breach of the obligation to state reasons (paragraphs 30 to 55 of the judgment under appeal, the Civil Service Tribunal annulled the decision of 19 June 2007 and ordered the Commission to pay the costs, while rejecting the other heads of claim on the ground that the Community judicature manifestly has no jurisdiction to issue directions to the Community institutions.

16      For the purposes of the present appeal, it must first be stated that the Civil Service Tribunal recalled that any decision relating to a specific individual which is taken under the Staff Regulations and adversely affects that person must state the reasons on which it is based, on the one hand, to enable the competent court to review the legality of the decision and, on the other, to provide the person concerned with the information necessary to allow him to ascertain whether or not the decision is well founded and to enable him to decide whether to bring an action. It added, however, referring to Case C‑254/95 P Parliament v Innamorati [1996] ECR I‑3423, paragraphs 24 to 28, that, as far as concerns decisions taken by a selection board in a competition, the obligation to state reasons must be reconciled with observance of the secrecy surrounding the proceedings of selection boards by virtue of Article 6 of Annex III to the Staff Regulations, secrecy which was instituted with a view to guaranteeing the independence of selection boards and the objectivity of their proceedings. Thus, observance of this secrecy precludes both disclosure of the attitudes adopted by individual members of selection boards and disclosure of any factors relating to individual or comparative assessments of candidates and that the obligation to state the reasons on which decisions of a selection board in a competition are based must take account of the nature of the proceedings concerned, which, at the stage of examination of the abilities of the candidates, are primarily comparative in character and accordingly covered by the secrecy inherent in those proceedings (paragraphs 30 and 31 of the judgment under appeal).

17      The Civil Service Tribunal pointed out that it has consistently been held that ‘communication of the marks obtained in the various tests’ constitutes an adequate statement of the reasons on which the selection board’s decisions are based’ (Parliament v Innamorati, paragraph 16 above, paragraph 31; Case T‑153/95 Kaps v Court of Justice [1996] ECR-SC I‑A‑233 and II‑663, paragraph 81; Joined Cases T‑167/99 and T‑174/99 Giulietti and Others v Commission [2001] ECR-SC I‑A‑93 and II‑441, paragraph 81; Case T‑53/00 Angioli v Commission [2003] ECR-SC I‑A‑13 and II‑73, paragraph 69; and Case T‑294/03 Gibault v Commission [2005] ECR-SC I‑A‑141 and II‑635, paragraph 39) (paragraph 32 of the judgment under appeal).

18      Secondly, the Civil Service Tribunal stated, with regard to the scope of the relevant case-law, that communication to the candidate of only a single individual eliminatory mark does not always constitute a sufficient statement of reasons, irrespective of the particular circumstances of the case in question (paragraph 34 of the judgment under appeal).

19      In addition, the Civil Service Tribunal referred to the existing case-law concerning failure to pass the written phase of a competition, according to which the candidate receives in practice a sufficiently full explanation of his failure by obtaining not only the various individual marks, but also the reasons for the eliminatory individual mark which led to his exclusion from the rest of the competition, and other information (Case T‑72/01 Pyres v Commission [2003] ECR-SC I‑A‑169 and II‑861, paragraph 70; Case T‑233/02 Alexandratos and Panagiotou v Council [2003] ECR-SC I‑A‑201 and II‑989, paragraph 31; Case T‑371/03 Le Voci v Council [2005] ECR-SC I‑A‑209 and II‑957, paragraphs 115 to 117; Case F‑73/06 Van Neyghem v Commission [2007] ECR-SC I‑A‑1-0000 and II‑A-1-0000, paragraphs 72, 79 and 80; and Case F‑147/06 Dragoman v Commission [2008] ECR-SC I‑A‑1-0000 and II‑A-1-0000, paragraphs 21, 82 and 83) (paragraph 39 of the judgment under appeal).

20      In that regard, the Civil Service Tribunal took the view that while the examiners marking the written tests, in contrast to the members of the selection board sitting in the oral phase, may admittedly not be known to the persons concerned, and are thereby protected from interference and pressures to which the judgment in Parliament v Innamorati, paragraph 16 above, refers, that circumstance does not objectively justify the existence of significant differences between the requirements concerning the statement of reasons in the case of failure in the written phase, as those requirements are formulated in the case-law cited in paragraph 39 of the judgment under appeal, and those advocated by the Commission in the case of failure in the oral test, which, in particular in the instant case, would consist in giving the applicant only his eliminatory individual mark.

21      Thirdly, the Civil Service Tribunal observes that even though the outcome of reconciling the obligation to state reasons and observance of the principle of the secrecy of the selection board’s proceedings, in particular as to whether the communication of a single eliminatory individual mark to the candidate eliminated in the oral phase satisfies that obligation, is more often than not in favour of the principle of the secrecy of the selection board’s proceedings, the position may be otherwise when special circumstances exist, all the more so as the recent case-law concerning Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43) shows a development of Community case-law in favour of openness (see, to that effect, Case C‑64/05 P Sweden v Commission [2007] ECR I‑11389, and Joined Cases C‑39/05 P and C‑52/05 P Sweden and Turco v Council [2008] ECR I‑4723) (paragraph 40 of the judgment under appeal).

22      Fourthly, the Civil Service Tribunal explains the various reasons why special circumstances exist in the present case within the meaning of paragraph 21 above (paragraphs 42 to 48 of the judgment under appeal).

23      Fifthly, the Civil Service Tribunal held, in consequence of the existence of those special circumstances, that although the communication to the applicant of the individual eliminatory mark, of 24.5 out of 50, which he received in the oral test constitutes more than merely the initial elements of a statement of reasons which, according to the case-law (Case T‑71/96 Berlingieri Vinzek v Commission [1997] ECR-SC I‑A‑339 and II‑921, paragraph 79), was susceptible of being supplemented by further information provided during the proceedings, that mark alone not being sufficient, in the particular circumstances, to satisfy fully the obligation to state reasons. It followed that the Commission’s refusal to provide any further information constituted, in the view of the Civil Service Tribunal, a breach of that obligation (paragraph 49 of the judgment under appeal).

24      In that connection, although the Civil Service Tribunal, accepted that it was not for it to determine the items of information which the Commission must communicate to the person concerned in order to satisfy its obligation to state reasons, it observed, in particular, that certain additional particulars, such as the intermediate marks for each of the assessment criteria laid down in the notice of competition and the evaluation sheets, could have been sent to Mr Meierhofer with any items of information covered by the secrecy of the selection board’s proceedings blacked out without disclosing either the attitudes adopted by individual members of the selection board or any factors relating to individual or comparative assessments of candidates (paragraphs 50 and 51 of the judgment under appeal).

25      Furthermore, it stated that the Commission’s refusal to communicate, even to the Civil Service Tribunal alone, those items of information meant that the Tribunal could not exercise properly its power of judicial review (paragraph 51 of the judgment under appeal).

26      In addition, the Civil Service Tribunal pointed out that to accept the Commission’s reasoning that items such as those referred to in paragraph 25 above are irrelevant would amount to removing from the European Union judicature any capacity to judicially review the marking of the oral phase. In the view of the Civil Service Tribunal, although it is indeed precluded from substituting its assessment for that of the members of the selection board, it must be in a position to ascertain, having regard to the obligation to state reasons, that they marked the applicant’s performance on the basis of the assessment criteria set out in the notice of competition and that no errors occurred in the calculation of the mark awarded to him; similarly, it must be in a position to carry out a limited review of the relationship between the assessments made by the members of the selection board and the numbers of marks awarded by them (Case 40/86 Kolivas v Commission [1987] ECR 2643, paragraph 11; Van Neyghem v Commission, paragraph 19 above, paragraph 86; and Case F‑127/07 Coto Moreno v Commission [2008] ECR-SC I‑A‑1-0000 and II‑A-1-0000, paragraphs 34 and 36). For that purpose, it needs to order whatever measures of organisation of procedure seem appropriate to it, in the light of the particular circumstances, making it clear where appropriate to the defendant institution that the replies would be passed on to the person concerned only to the extent that this would be compatible with the principle of the secrecy of the selection board’s proceedings (paragraph 52 of the judgment under appeal).

27      Sixth and finally, the Civil Service Tribunal took note of the failure on the part of the Commission to produce the items of information requested by it by way of measures of organisation of procedure and, considering that the reasons put forward by the Commission to justify that failure were unconvincing, concluded that the decision of 19 June 2007 had to be annulled on the ground that there had been a breach of the obligation to state reasons (paragraphs 53 to 55 of the judgment under appeal).

 The appeal

 Procedure and forms of order sought

28      By application lodged at the Registry of the Court on 19 December 2008, the Commission brought the present appeal.

29      Following lodgement of a response by Mr Meierhofer on 17 March 2009, the Commission, by letter of 6 April 2009, applied under Article 143 of the Rules of Procedure of the Court for leave to submit a reply.

30      The President of the Appeal Chamber having allowed that application by decision of 15 April 2009, the second exchange of pleadings took place and the oral procedure was closed on 20 July 2009.

31      By letter of 18 August 2009, the Commission made a reasoned application under Article 146 of the Rules of Procedure to be heard in the oral stage of the procedure.

32      After hearing the report of the Judge-Rapporteur, the General Court (Appeal Chamber) decided to allow that application and opened the oral procedure.

33      The parties presented oral argument and replied to questions put by the Court at the hearing on 13 January 2010.

34      The Commission claims that the Court should:

–        set aside the judgment under appeal;

–        order each party to bear its own costs.

35      Mr Meierhofer contends that the Court should:

–        dismiss the appeal as inadmissible;

–        in the alternative, dismiss the appeal as unfounded;

–        order the Commission to pay the costs in these proceedings and in those brought before the Civil Service Tribunal.

36      At the hearing, Mr Meierhofer abandoned his plea of inadmissibility based on the fact that the present appeal was brought out of time, which was noted in the minutes.

 Law

 Admissibility

37      As a preliminary point, and even though Mr Meierhofer no longer claims that the present appeal was brought out of time, it must be observed that time-limits for appeals are a matter of public policy and are not subject to the discretion of the parties or the court, since they were laid down with a view to ensuring clarity and legal certainty. Therefore, the General Court must examine, of its own motion, whether the action was brought within the prescribed period (Joined Cases T‑142/01 and T‑283/01 OPTUC v Commission [2004] ECR II‑329, paragraph 30 and the case-law cited).

38      The time-limit of two months which the Commission had to appeal against the judgment under appeal ran from the reception of the judgment on 16 October 2008. With the single period of 10 days on account of distance added, pursuant to Article 102(2) of the Rules of Procedure, the time-limit therefore expired on 26 December 2008 at midnight. Clearly, therefore, the appeal, which was received at the Court Registry on 19 December 2009, was brought in good time.

39      Moreover, in his response, Mr Maierhofer argues that the appeal is inadmissible on the ground that the Commission no longer has a legal interest in bringing the proceedings since it has already fulfilled its obligations flowing from the judgement under appeal with respect to communication to Mr Maierhofer of the intermediate marks for his oral test.

40      In the reply, the Commission challenges that plea on the basis of the obligation to comply with the judgment under appeal flowing from Article 233 EC and on the basis of the fact that the second paragraph of Article 9 of Annex I to the Statute of the Court of Justice does not make the possibility of bringing an appeal by a Community institution subject to its having a legal interest in bringing the proceedings.

41      It must be recalled, first, in that regard that, according to settled case-law regarding 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 (Case C‑174/99 P Parliament v Richard [2000] ECR I‑6189, paragraph 33, and Case C‑277/01 P Parliament v Samper [2003] ECR I‑3019, paragraph 28).

42      Thus, the Commission is wrong to rely on the case-law to the effect that, under the third paragraph of Article 56 of the Statute of the Court of Justice, on the one hand, the institutions of the European Union do not have to show interest in order to bring an appeal and, on the other, it is not for the European Union judicature to review the choices made in this regard by those institutions. That case-law states clearly that the said provision of the Statute of the Court of Justice does not apply to cases relating to disputes between the Community and its servants (Case C‑49/92 P Commission v Anic Partecipazioni [1999] ECR I‑4125, paragraphs 171 and 172).

43      In the present case, it must be noted that the Commission does indeed have an interest in bringing proceedings.

44      In that regard, it must be recalled that, by the judgment under appeal, the Civil Service Tribunal annulled the decision of 19 June 2007 on the ground of a breach of the obligation to state reasons (see paragraph 27 above). It follows that, in order to comply with that judgment and to implement it fully, the Commission was required to adopt a new decision to include, or not to include, Mr Meierhofer 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.

45      It is clear that the Commission has not adopted such a decision. Although, as a result of the judgment under appeal, the intermediate marks which he had obtained in the written test were communicated to Mr Meierhofer, the letter in which those marks were communicated contained no formal decision to include, or not to include, Mr Meierhofer’s name on the reserve list. Consequently, unless the judgment under appeal is set aside, the Commission must adopt a new decision, which Mr Meierhofer can challenge, if he wishes, in a fresh action. On the other hand, if the appeal is considered to be well founded and the judgment under appeal is set aside, the decision of 19 June 2007 is once again in full force and must be re-considered in the light of the pleas put forward in Mr Meierhofer’s action.

46      It is true that since the communication of the intermediate marks is irreversible, there would be no need, on the second hypothesis mentioned in paragraph 45 above, to consider whether a measure of inquiry requiring production of those marks must be adopted. However, the consequence of that is merely that the plea alleging a breach of the obligation to give reasons, which Mr Meierhofer put forward in his action at first instance, might become devoid of purpose. On the other hand, the other pleas put forward by him in that action, but not considered by the Civil Service Tribunal, will have to be considered on that hypothesis.

47      Moreover, setting aside the judgment under appeal will, in any event, procure a definite advantage for the Commission inasmuch as, if the action at first instance is ultimately dismissed, it will then be protected from an action for damages by Mr Meierhofer on account of the loss he could claim to have suffered by reason of the decision of 19 June 2007 (see, to that effect, Parliament v Richard, paragraph 34, and Parliament v Samper, paragraph 31, both cases cited in paragraph 41 above).

48      In the light of the foregoing considerations, the plea of inadmissibility raised by Mr Meierhofer must be rejected.

 Substance

49      In support of its appeal, the Commission relies, essentially, on three grounds alleging, first, a misinterpretation of the scope of the obligation to give reasons, second, the incompatibility with Community law of the review of assessments made by the members of the selection board and, third, disregard for certain procedural rules in the context of the measures of organisation of procedure adopted at first instance and of the assessment of the evidence.

50      The third ground of appeal must be considered first.

 Arguments of the parties

51      The Commission submits that the Civil Service Tribunal was wrong to hold that it refused, generally, to produce the documents requested. On the contrary, it merely stated, on the one hand, that those documents were irrelevant for the purposes of the dispute before the Tribunal and, on the other, that the documents in question were particularly sensitive in nature. Thus, both at the hearing and in its observations of 19 May 2008, it asked the Tribunal to call for production of those documents by adopting a measure of inquiry, in the form of an order, and not merely a measure of organisation of procedure under Article 55 of the Rules of Procedure of the Civil Service Tribunal.

52      The Commission states that although the Rules of Procedure of the Civil Service Tribunal, unlike those of the General Court, do not provide for the adoption of a measure of inquiry ordering the parties to the dispute to produce documents, Article 24 of the Statute of the Court of Justice, which is applicable to the Civil Service Tribunal, would have permitted the adoption of such a measure since that provision permits, inter alia, the Courts of the European Union to require the parties to produce all documents and to supply all information which they consider desirable.

53      Moreover, the Commission adds that Article 44(2) of the Rules of Procedure of the Civil Service Tribunal contains a provision which would have permitted, in the present case, the adoption of an order addressing its concerns arising from the sensitive nature of the documents requested. At the hearing before the General Court, however, it accepted that it had not expressly relied on that provision before the Civil Service Tribunal.

54      First of all, Mr Meierhofer replies that an appeal to the General Court can be based only on grounds alleging breaches of procedure, committed at first instance which adversely affect the interests of the party concerned.

55      Irrespective of whether the Civil Service Tribunal is or is not entitled to adopt a measure of inquiry of the kind sought by the Commission, the absence of such a measure does not adversely affect the Commission’s interests since the adoption and implementation of such a measure would, at most, have convinced the Tribunal that Mr Meierhofer’s performance had been correctly assessed. However, production of the documents requested would not have changed the fact that the decision of 19 June 2007 lacked an adequate statement of reasons justifying the failure to include Mr Meierhofer in the reserve list for the competition.

56      Secondly, according to Mr Meierhofer, any possible procedural error on the part of the Civil Service Tribunal was of no consequence since the Commission, taking refuge behind the obligation of confidentiality derived from Article 6 of Annex III to the Staff Regulations, would not have produced the documents requested.

57      Thirdly, Mr Meierhofer argues that the Civil Service Tribunal is not required to adopt a measure of organisation of procedure or a measure of inquiry inasmuch as Article 55(2) of its Rules of Procedure provides merely that it ‘may’ order measures of organisation of procedure and Article 58(1) of those Rules provides that measures of inquiry are to be prescribed by the Tribunal. Moreover, in reply to several questions from the Court, Mr Meierhofer stated, at the hearing, that, in his opinion, measures of organisation of procedure and measures of inquiry are intended to serve the same purpose, namely, to permit the court to have available to it all the factors necessary to deal with a case. Therefore, the form that such measures take is of no particular importance.

58      Finally, Article 44(2) of the Rules of Procedure of the Civil Service Tribunal does not confer any subjective right on the parties inasmuch as it merely prohibits the Tribunal from communicating to one party documents regarded as confidential by the other party before it has ruled on the confidentiality of those documents.

 Findings of the Court

59      First of all, it must be pointed out that, as indicated in paragraph 49 of the judgment under appeal, the decision of 19 June 2007 is not vitiated by the complete absence of a statement of reasons inasmuch as Mr Meierhofer’s overall eliminatory mark was communicated to him, but by an inadequate statement of reasons. Thus, further information could have been provided during the proceedings, depriving of its purpose the ground of appeal alleging the absence of a statement of reasons, bearing in mind, however, that the Commission was not entitled to substitute an entirely new statement of reasons for the initial, erroneous, statement (see, to that effect, Berlingieri Vinzek v Commission, paragraph 23 above, paragraph 79, and Case T‑277/02 Pascall v Council [2004] ECR-SC I‑A‑137 and II‑621, paragraph 31).

60      Secondly, it is true that the minutes of the hearing before the Civil Service Tribunal contain nothing regarding the conduct which the Commission would have adopted if the Tribunal had adopted a measure of inquiry ordering production of the documents at issue. Thus, those minutes do not allow the Court to verify the nature of the Commission’s statements on that question at the hearing. However, it is clear from points 20 to 23 of the Commission’s observations of 19 May 2008 that its refusal to produce the documents at issue in the light of their sensitive character could refer only to measures actually adopted by the Civil Service Tribunal, namely, measures of organisation of procedure, and give no indication of what the Commission’s reaction would have been if confronted with a measure of inquiry ordered by the Tribunal.

61      Thirdly, it must be pointed out that 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.

62      That reasoning is not undermined by the judgment in Case T‑34/92 Fiatagri and New Holland Ford v Commission [1994] ECR II‑905, relied on by the Commission. In paragraph 27 of that judgment, the General Court held that, since the applicants had failed to produce the slightest evidence which might rebut the presumption of validity enjoyed by European Union measures, it was not appropriate for the Court to order the measures of inquiry requested. At the same time, however, the Court ruled on the appropriateness of adopting the measures of inquiry sought by the applicants. Thus, that judgment confirms, at least implicitly, but none the less necessarily, that 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, which the Commission appears to deny in the present case. 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.

63      Fourthly, it must be noted that, as the Commission pointed out at the hearing before the Court, the action was brought before 1 November 2007, the date on which, pursuant to Article 121 thereof, the Rules of Procedure of the Civil Service Tribunal entered into force. However, since preparatory inquiries in the case began with the preparatory report for the hearing being sent to the parties on 7 February 2008, it is common ground that those enquiries took place entirely under those Rules of Procedure. The differences between the Rules of Procedure of the Civil Service Tribunal and the Rules of Procedure of the General Court in regard to measures of organisation of procedure and measures of inquiry must therefore be recapitulated briefly.

64      One of the criteria adopted in the Rules of Procedure of the Civil Service Tribunal to distinguish those two categories of measure seems to be the fact that measures of organisation of procedure (covered by Articles 55 and 56 of the Rules) are always addressed to the parties, whereas measures of inquiry (covered by Articles 57 and 58 of the Rules) may also be addressed to third parties. That is a different criterion from the one which emerges from the General Court’s case-law, according to which the purpose of measures of organisation of procedure (covered by Article 64 of the Rules of Procedure of the General Court) is to ensure efficient conduct of the written and oral procedure and to facilitate the taking of evidence, and also to determine the points on which the parties must present further argument or which call for measures of inquiry, whereas measures of inquiry (covered by Articles 65 to 67 of those Rules) are intended to prove the veracity of the facts alleged by one of the parties in support of its pleas in law (Case T‑141/01 Entorn v Commission [2005] ECR II‑95, paragraphs 129 and 130).

65      Furthermore, with regard to the form of measures, Article 56 of the Rules of Procedure of the Civil Service Tribunal states that the Registrar is responsible for notifying measures of organisation of procedure to the parties. According to Article 58(2) of the Rules of Procedure of the Civil Service Tribunal, the same is true in regard to measures of inquiry except for those concerning oral testimony, commissioning of expert’s reports and inspections of places or things, which must be adopted by means of an order.

66      It follows that, unlike Chapter 3, Section 2, of the Rules of Procedure of the General Court, Chapter 3, Section 2, of the Rules of Procedure of the Civil Service Tribunal does not provide an express legal basis for an order to one of the parties to produce documents by way of measure of inquiry.

67      Without there being any need to rule on whether the Civil Service Tribunal could none the less make such an order under Article 24 of the Statute of the Court of Justice, it must be held that such a possibility is provided for, at least in certain circumstances, in Article 44(2) of the Rules of Procedure of the Civil Service Tribunal, and Article 56 of those Rules is stated to be ‘without prejudice’ to Article 44(2).

68      According to Article 44(2) of the Rules of Procedure of the Civil Service Tribunal:

‘Where it is necessary for the Tribunal to verify the confidentiality, in respect of one or more parties, of a document that may be relevant in order to rule in a case, that document shall not be communicated to the parties before such verification is completed. The Tribunal may by way of order request the production of such a document.’

69      A similar provision appears in the second paragraph of Article 67(3) of the Rules of Procedure of the General Court, except for the reference to acting by way of order, which would be superfluous inasmuch as the said Rules already provide, in the second paragraph of Article 66(1), that such measures are to be taken by way of order.

70      It follows that, in Article 44(2) of its Rules of Procedure, the Civil Service Tribunal possesses an instrument for dealing with situations, such as that in the present case, where one of the parties does not want confidential information contained in the documents which it has been asked to produce to be communicated to the other party in accordance with the rule that the parties should be heard.

71      That provision permits a request to be made, by way of order, for the production of allegedly confidential documents while requiring the Civil Service Tribunal to verify whether the party claiming that the documents are confidential is justified in opposing communication of them to the other party, the final decision being taken by the Tribunal.

72      It follows that, 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, namely, 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 (see, to that effect, Case T‑48/05 Franchet and Byk v Commission [2008] ECR II‑1585, paragraphs 54 and 55, and Case T‑299/05 Shanghai Excell M & E Enterprise and Shanghai Adeptech Precision v Council [2009] ECR II‑0000, paragraphs 24 to 26).

73      It must admittedly be observed that 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 (see, to that effect, Case 155/78 M. v Commission [1980] ECR 1797, paragraphs 20 and 21), which is what the Civil Service Tribunal did in the judgment under appeal.

74      The fact remains that, before doing so, the Civil Service Tribunal was required to exhaust all the instruments at its disposal to obtain production of the documents at issue. That is all the more true given that the Commission, in addition to the arguments relating to the alleged irrelevance of the documents, clearly based its refusal to communicate them on their confidential nature.

75      Although it is for the Civil Service Tribunal, and not the Commission, to verify whether the confidential nature of the documents really prevents their being placed on the file and communicated to the other party, the fact remains that the Civil Service Tribunal should have made use of the provision in its Rules of Procedure laid down for that purpose.

76      Thus, the Commission was entitled to emphasise, before the Civil Service Tribunal, the allegedly confidential character of the documents requested of it. In such circumstances, the Civil Service Tribunal should have relied on the provision in its Rules of Procedure which permitted it, in an appropriate case, to take account of that confidential character and, if need be, to take appropriate measures to protect it.

77      Furthermore, the fact that the Commission, as it accepted at the hearing before the Court in reply to a question from the bench, never referred expressly, at first instance, to Article 44(2) of the Rules of Procedure of the Civil Service Tribunal is of no consequence, since the Tribunal was required, of its own motion, to choose the appropriate procedural measure to complete the preliminary investigation of the case adequately. However, in the present case, as the Commission also stated at that hearing, without being contradicted by Mr Meierhofer, that article of the Rules of Procedure of the Civil Service Tribunal permits the making of an order requiring production of an allegedly confidential document.

78      In the light of the foregoing considerations, the third ground of appeal must be upheld and, on that basis, the judgment under appeal must be set aside, without it being necessary to consider the other two grounds of appeal.

 Referral of the case back to the Civil Service Tribunal

79      Pursuant to Article 13(1) of Annex I to the Statute of the Court of Justice, if the appeal is well founded, the General Court is to quash the decision of the Civil Service Tribunal and itself give judgment in the matter. It is to refer the case back to the Civil Service Tribunal for judgment where the state of the proceedings does not permit a decision by the Court.

80      In the present case, since the Civil Service Tribunal has ruled on the substance of only one of the pleas in law put forward by Mr Meierhofer, the Court considers that the state of the proceedings does not permit a decision on its part. It therefore refers the case back to the Civil Service Tribunal.

81      Since the case is being referred back to the Civil Service Tribunal, the costs relating to the present appeal proceedings must be reserved.

On those grounds,

THE GENERAL COURT (Appeal Chamber)

hereby:

1.      Sets aside the judgment of the Civil Service Tribunal of 14 October 2008 in Case F‑74/07 Meirehofer v Commission [2008] ECR-SC A‑I‑1-0000 and II‑A-1-0000;

2.      Refers the case back to the Civil Service Tribunal;

3.      Reserves the costs.

Jaeger

Meij

Vilaras

Delivered in open court in Luxembourg on 12 May 2010.

[Signatures]

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* Language of the case: German.