JUDGMENT OF THE COURT OF FIRST INSTANCE (Appeal Chamber)

2 April 2009

Case T-473/07 P

Commission of the European Communities

v

Michael Berrisford

(Appeal – Civil service – Officials – Promotion – 2005 promotion procedure – Article 45 of the Staff Regulations – Examination of comparative merits – Obligation to take into account the fact that the official concerned was included in the reserve)

Application: appeal against the judgment of the Civil Service Tribunal of the European Union (Third Chamber) of 10 October 2007 in Case F-107/06 Berrisford v Commission (not yet published in the ECR), seeking the setting aside of that judgment.

Held: The appeal is dismissed. The Commission is ordered to bear its own costs and to pay those incurred by Mr Michael Berrisford in the present proceedings.

Summary

1.      Appeals – Pleas in law – Mere repetition of pleas in law and arguments submitted to the Civil Service Tribunal – Inadmissibility – Challenge to the interpretation or application of Community law by the Tribunal – Admissibility

(Art. 225 EC; Statute of the Court of Justice, Annex I, Art. 11(1); Rules of Procedure of the Court of First Instance, Art. 138(1)(c))

2.      Officials – Promotion – Consideration of comparative merits – Factors to be taken into consideration

(Staff Regulations, Art. 45(1))

1.      It follows from Article 225 EC, Article 11(1) of Annex I to the Statute of the Court of Justice and Article 138(1)(c) of the Rules of Procedure of the Court of First Instance that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal. That requirement is thus not satisfied by an appeal which confines itself to repeating or reproducing the pleas in law and arguments submitted to the court of first instance, including those founded on facts explicitly rejected by that court. Such an appeal amounts in reality to a request for no more than a re-examination of the application submitted to the Civil Service Tribunal, which the appeal court does not have jurisdiction to undertake. However, provided that the appellant challenges the interpretation or application of Community law by the court of first instance, the points of law examined at first instance may be discussed again in the course of an appeal. Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the court of first instance, an appeal would be deprived of part of its purpose.

(see para. 37)

See: C-320/05 P Olsen v Commission [2007] ECR 000, paras 48-50, and the case-law cited therein

2.      When considering the comparative merits of officials eligible for promotion, the appointing authority must take account of the fact that a candidate has been proposed for promotion or has even been included in the list of most deserving officials in the previous promotion procedure, on condition that he has not ceased to be deserving of promotion in the meantime. Where the administration enjoys a wide discretion, as the appointing authority does with regard to promotions, it is required to consider all the relevant factors in the particular case carefully and impartially. In such a case, it is enough to establish the relevance of the factor in question, which must be assessed in the light of the wording, purpose and context of the rules governing the exercise of that wide discretion, to conclude that it must be included in the administration’s assessment.

Such recognition of the relevance of the fact that the official concerned was included in the reserve as a merit factor is, however, without prejudice to any practical conclusions to be drawn from the obligation to take that fact into account and, in particular, to the importance which the appointing authority may be prompted, in exercising its wide discretion, to ascribe to it in each individual case involving a comparison of merits. It merely has the effect of requiring that authority not to ignore or overlook, in that context, the fact that the official concerned was included in the reserve.

(see paras 42-43)

See: C-269/90 Technische Universität München [1991] ECR I‑5469, para. 14