17 May 2018 (*1)

(Appeal — Civil service — Temporary staff — Recruitment — Medical examination — Incomplete declarations at the medical examination — Retroactive application of medical cover deferment — Not eligible for the invalidity allowance — Enforcement of a judgment of the Civil Service Tribunal setting aside the initial decision)

In Case T‑701/16 P,

APPEAL brought against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 21 July 2016, AV v Commission (F‑91/15, EU:F:2016:170), seeking to have that judgment set aside,

European Commission, represented initially by C. Berardis-Kayser, C. Ehrbar and T. Bohr, and subsequently by C. Ehrbar and T. Bohr, acting as Agents,

appellant,

the other party to the proceedings being

AV, former member of the temporary staff of the Commission, represented by J.‑N. Louis and N. de Montigny, lawyers,

applicant at first instance,

THE GENERAL COURT (Appeal Chamber),

composed of M. Jaeger, President, M. Prek (Rapporteur) and A. Dittrich, Judges,

Registrar: G. Predonzani, Administrator,

having regard to the written part of the procedure and further to the hearing on 18 January 2018,

gives the following

By its appeal lodged under Article 9 of Annex I to the Statute of the Court of Justice of the European Union, the European Commission seeks to have set aside the judgment of the European Union Civil Service Tribunal (Second Chamber) of 21 July 2016, AV v Commission (F‑91/15, ‘the judgment under appeal’, EU:F:2016:170), by which the Civil Service Tribunal annulled its own decision of 16 September 2014 to make AV’s appointment subject to the medical cover deferment provided for in Article 32 of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’).

Background to the dispute

The factual background to the dispute is set out in the following terms in paragraphs 3 to 30 of the judgment under appeal:

3.‘3

On 18 March 2005, [AV] underwent a medical examination with a view to being appointed by the Commission as a temporary member of staff under a fixed-term contract for the period from 16 April 2005 to 15 April 2009. During that examination, [AV] signed a form in which he declared that there were no personal risk factors affecting him other than a form of dyslipidaemia, that he had no medical history and that he was not under any pharmacological therapy.

4.4

The medical officer who carried out the pre-recruitment medical examination, Dr A, expressed the opinion that [AV] was physically fit to perform the duties for which he was to be appointed.

5.5

On 16 April 2005, [AV] took up his duties with the Commission and was assigned to the Joint Research Centre (JRC) in Ispra (Italy).

On 26 June 2005, the medical officer from the Ispra medical service diagnosed [AV] as suffering from a psychiatric illness. On 21 July 2005, [AV] informed the head of the Ispra medical service that he had been receiving treatment for such illness for around 15 years. In addition, a report prepared by the head of the Ispra medical service shows that, during an interview with [AV] on 5 December 2005, [AV] confirmed when questioned that he had failed to mention at his pre-recruitment medical examination that he suffered from that illness.

[AV] took numerous days of sick leave which led to the Commission deciding, on 12 September 2008, to place him on unpaid leave pursuant to Article 16 of the CEOS.

On 17 November 2008, counsel for [AV] applied for the matter to be referred to the Invalidity Committee.

9.9

By a letter of 16 February 2009, the authority empowered to conclude contracts informed [AV] that, by decision of 4 February 2009, it had decided to refer his case to the Invalidity Committee.

10.10

On 9 May 2009, the Invalidity Committee unanimously found that, on account of his psychiatric illness, [AV] was suffering from total permanent invalidity making it impossible for him to perform the duties associated with his post.

11.11

On 24 July 2009, the head of the Ispra medical service informed counsel for [AV] of the Invalidity Committee’s findings, of the decision of 9 July 2009 taken by the authority empowered to conclude contracts to defer [AV’s] medical cover retroactively from the date he entered into service and of the decision of 13 July 2009 taken by that same authority to terminate [AV’s] employment due to his permanent invalidity and not to grant him the invalidity allowance.

12.12

[AV] lodged a complaint against the decisions of 9 July 2009 and 13 July 2009. Following that complaint, the authority empowered to conclude contracts withdrew those decisions, on 5 February 2010.

13.13

By letter of 5 February 2010, the authority empowered to conclude contracts invited [AV] to make representations explaining why he had not, at his pre-recruitment medical examination, declared “an illness from which he [had] been suffering for many years and for which he was still receiving treatment at the time [of signing the form at the pre-recruitment examination]”.

14.14

[AV] made representations in a letter of 15 February 2010, which were further clarified in a letter from his counsel of 16 February 2010. [AV] confirmed, inter alia, that, at the time of his pre-recruitment medical examination, he was in an “optimal” state of health, that he had “held positions of responsibility in private companies for many years” and that, at the time of his appointment, the illness from which he suffered was “but a memory”.

15.15

By an internal note of 3 March 2010, the head of the Ispra medical service, Dr B, informed the Director-General of the Directorate-General (DG) for Human Resources and Security that if, at his pre-recruitment medical examination, [AV] had mentioned the condition from which he suffered, the doctors would have declared him “unfit” for the post of skilled worker or “fit with reservations” for a purely administrative post (“the note of 3 March 2010”).

On 12 April 2010, the authority empowered to conclude contracts decided that the deferment of medical cover provided for in the first paragraph of Article 32 of the CEOS should be applied to [AV] with retroactive effect from the date of his appointment, holding, in essence, that, if [AV] had mentioned his pre-existing illness at the time of his pre-recruitment medical examination, “his medical cover would have been deferred” (“the decision of 12 April 2010”).

On 16 April 2010, the authority empowered to conclude contracts decided, first, to “suspend [AV’s] service from 30 April 2010” on account of his total invalidity and, secondly, not to grant him the invalidity allowance as his invalidity was “the same as that which was the subject of the medical cover deferment” (“the decision of 16 April 2010”).

By an application received by the Court Registry on 31 March 2011 and registered under reference F‑4/11, [AV] sought the annulment of the decisions of 12 April 2010 and 16 April 2010.

19.19

By judgment of 10 July 2012, AV v Commission (F‑4/11, EU:F:2012:96, “the judgment of 10 July 2012”), the Court annulled the decision of 12 April 2010 and the decision of 16 April 2010 in so far as the latter refused to grant [AV] the invalidity allowance.

In particular, the Court held that, “in a particular case where, after the pre-recruitment medical examination, it is apparent that a staff member did not answer sincerely and completely the questions asked about his health by the medical officer during that examination, the authority empowered to conclude contracts of employment may withdraw its original decision not to defer medical cover and take a fresh decision applying that deferment retroactively”. The Court added that “the authority empowered to conclude contracts of employment is nevertheless first required to follow the procedure provided for in Article 32 of the CEOS, that is to say, it must first refer the matter to the medical officer so that he can issue an opinion on the question whether the sickness or invalidity warranted deferring medical cover when the staff member was engaged, and second, it must inform the staff member of the decision it has taken on the basis of that opinion, so that the staff member may, if appropriate, lodge an appeal with the Invalidity Committee”. According to the Court, “such a question, which involves ascertaining whether the sickness or invalidity was capable of resulting in the staff member’s invalidity or death within a period of five years from the date of his entering the service of the institution, is of a medical nature and is strictly a matter for the medical officer and, on appeal, the Invalidity Committee” (judgment of 10 July 2012, paragraph 34).

21.21

The Court went on to hold that the Commission was justified in maintaining that [AV] had not answered sincerely and completely the questions asked by the medical officer during the pre-recruitment medical examination (judgment of 10 July 2012, paragraph 36), but that neither the medical officer nor the Invalidity Committee was seised with the precise question of whether, had the illness been declared during the pre-recruitment medical examination, the medical service would have considered it to be an illness in respect of which medical cover should be deferred in view of its effects and consequences (judgment of 10 July 2012, paragraphs 37 [to] 40). With particular regard to the note of 3 March 2010, the Court held that the Commission had expressly confirmed that the authority empowered to conclude contracts did not base the decision of 12 April 2010 on that note (judgment of 10 July 2012, paragraph 39).

22.22

By letter of 20 July 2012, the Commission notified [AV] that it considered that “the correct means of enforcing the judgment [of 10 July 2012] would be to reconvene the Invalidity Committee, so that it can answer the question framed in paragraphs 37 [to] 40 of the grounds [of the judgment], in other words, whether, had [AV’s] illness been declared at the pre-recruitment medical examination, it would have warranted the deferment of medical cover”. In the same letter, the Commission invited [AV] to nominate a doctor to represent him before the Invalidity Committee.

23.23

On 7 February 2013, [AV] nominated a doctor to represent him before the Invalidity Committee. The Commission nominated a doctor in March 2013 and the Invalidity Committee met on 30 April 2013.

24.24

By letter of 16 December 2013, [AV] asked the doctor who had represented the Commission before the Invalidity Committee to send him the committee’s findings and, if applicable, the decision taken by the authority empowered to conclude contracts.

25.25

By letter of 10 April 2014, the Commission sent [AV] the findings of the Invalidity Committee, according to which, if [AV] had declared his illness at his pre-recruitment medical examination, “the medical officer … would have asked the [authority empowered to conclude contracts] to defer medical cover [pursuant] to [Article] 32 of the [CEOS]”.

26.26

By letter of 10 April 2014, [AV] asked the Commission to indicate the reasons for the delay in notifying him of the findings of the Invalidity Committee and to inform him whether the authority empowered to conclude contracts had adopted a decision following those findings.

27.27

On 16 September 2014, the Commission decided to apply to [AV] the deferment of medical cover provided for by Article 32 of the CEOS, for a period of five years commencing on the date he began service as a temporary member of staff, namely 16 April 2005, and not to grant him an invalidity allowance, as his invalidity was the same as that which was the subject of the medical cover deferment (“the contested decision”).

28.28

On 22 December 2014, [AV] submitted a complaint, within the meaning of Article 90(2) of the Staff Regulations of Officials of the European Union, against the contested decision. In addition, [AV] requested, “based on the findings of the Invalidity Committee of 30 April 2013”, to be suspended from service and to be granted an invalidity allowance. Finally, he claimed compensation of EUR 50000 for infringement of Article 41(1) of the Charter of Fundamental Rights of the European Union.

29.29

By decision of 21 April 2015, the Commission rejected [AV]’s complaint.

30.30

On 22 June 2015, [AV] asked to be granted legal aid, pursuant to Article 110 of the Rules of Procedure, with a view to bringing proceedings against the contested decision. [AV] was granted legal aid by an order of the President of the Court of 9 September 2015.’

3.3

The relevant legal framework is set out in paragraph 2 of the judgment under appeal.

Procedure at first instance and the judgment under appeal

4.4

By an application lodged at the Registry of the Civil Service Tribunal on 19 October 2015 and registered under reference number F‑91/15, AV brought an action seeking (i) the annulment of the decision of the Commission of 16 September 2014 to apply to him the medical cover deferment provided for in Article 32 of the CEOS and to refuse to grant him the invalidity allowance (‘the decision of 16 September 2014’) and (ii) an order for the Commission to pay him compensation of EUR 50000 by way of non-material damage.

5.5

By the judgment under appeal, the Civil Service Tribunal annulled the decision of 16 September 2014 and ordered the Commission to pay AV the sum of EUR 2000 as compensation for the non-material damage he had suffered and to bear AV’s costs in addition to its own.

First of all, the Civil Service Tribunal observed that ‘compliance with the reasonable time requirement in the conduct of administrative procedures constitute[d] a general principle of Union law whose observance the Courts of the Union ensure[d]’ and that that right was laid down by Article 41(1) of the Charter of Fundamental Rights of the European Union as a ‘component of the right to good administration’ (judgment under appeal, paragraph 44).

However, the Civil Service Tribunal stated that, as a general rule, ‘infringement of the reasonable time principle [did] not … justify the annulment of a decision taken as the culmination of an administrative procedure’ and that ‘it [was] only where the passing of an excessive period [was] likely to affect the content itself of the decision adopted … that failure to observe the reasonable time principle affect[ed] the validity of the administrative procedure’ (judgment under appeal, paragraph 45).

The Civil Service Tribunal held that, despite the Commission’s assertions to the contrary, ‘the date to be taken into account in determining whether the procedure [had] been concluded within a reasonable time’ was not 17 November 2008 (the date on which AV had made his application initiating the invalidity procedure), but ‘5 December 2005, being the date on which [AV] [had] acknowledged, in a clear and unequivocal manner, that he had failed to mention his psychiatric illness during the pre-recruitment medical examination’ (judgment under appeal, paragraph 47).

9.9

Having reiterated that ‘it [was] not disputed between the parties that, from at least [5 December 2005] onwards, the [authority empowered to conclude contracts of employment] was aware … that the medical examination was based on incomplete information’, the Civil Service Tribunal held that ‘as a result of that significant irregularity that had been brought to light, [the said authority] was clearly in a position to draw the legal consequences in relation to the validity of [AV’s] contract and the potential deferment of medical cover’. The Civil Service Tribunal noted, however, that ‘the first time [that authority] stated its position on the possibility of deferring [AV’s] medical cover with retroactive effect from the date he began service was not until 9 July 2009, that is, more than three years and seven months after [the authority in question] [had] been informed that [AV] had himself acknowledged that he had failed to mention at his pre-recruitment medical examination the illness from which he suffered’ (judgment under appeal, paragraphs 47 and 48).

10.10

The Civil Service Tribunal therefore held that ‘such a delay, which the Commission [had] not been able to explain, [could not] be regarded as reasonable and, therefore, infringe[d] the right to good administration’ (judgment under appeal, paragraph 49).

11.11

Next, the Civil Service Tribunal noted that ‘Article 32 of the CEOS provide[d] an assumption that the authority empowered to conclude contracts of employment [would] take a final decision on whether or not medical cover should be deferred on the basis of information obtained by the medical officer at the time of the pre-recruitment medical examination or, in the very specific circumstances of the present case, upon receipt of any relevant additional information that significantly amend[ed] the information obtained at the time of the pre-recruitment medical examination’. The Civil Service Tribunal noted that, in the present case, ‘the Commission [had] only taken its first decision to defer [AV’s] medical cover on 9 July 2009, almost three months after expiry of his contract and around eight months after his application for the matter to be referred to the Invalidity Committee’ (judgment under appeal, paragraph 50).

12.12

The Civil Service Tribunal held that ‘the length of the procedure may have had an impact on the content of the decision of 9 July 2009 to apply medical cover deferment to [AV] retrospectively, because three years and seven months had passed not only since the [authority empowered to conclude contracts of employment] had become aware of [AV’s] illness but above all since the Invalidity Committee had established on 9 May 2009 that [AV] was in a state of total permanent invalidity making it impossible for him to perform his duties’. The Tribunal found that ‘the decision to defer medical cover … had been altered to a decision to exclude [AV], with immediate effect, from receiving invalidity benefits in respect of invalidity that had already occurred’ (judgment under appeal, paragraph 51).

13.13

Finally, in relation to the decision adopted by the authority empowered to conclude contracts of employment (‘the AECC’) on 12 April 2010 to defer medical cover in respect of AV with retroactive effect from the date he took up his post (‘the decision of 12 April 2010’), the Civil Service Tribunal stated that ‘that decision, which was essentially identical to that of 9 July 2009, was taken four years and four months after the AECC became aware of [AV’s] illness, although the AECC, was ready, four days later, to suspend [AV] from service due to his invalidity’ (judgment under appeal, paragraph 52).

14.14

The Civil Service Tribunal observed that, even if the unreasonable delay found ‘prevented the Commission from deferring medical cover in respect of [AV]’, ‘the decision [of 16 September 2014], which [was essentially] identical to the decisions of 9 July 2009 and of 12 April 2010, [had been] taken almost nine years after the Commission [had been] made aware of an irregularity in the pre-recruitment examination’ and that ‘that decision was necessarily affected by the same irregularity’ (judgment under appeal, paragraph 53).

15.15

The Civil Service Tribunal noted in that regard that ‘the fact that [the decision of 12 April 2010] [had been] annulled because of a breach of procedure [did] not deprive [AV] of the possibility of raising, in the context of the judgment enforcing the annulment judgment, a substantive plea that was raised in the action that gave rise to the annulment judgment’. The Tribunal pointed out that ‘paragraph 29 of the judgment of 10 July 2012 [showed that AV] did indeed raise in that case a plea alleging infringement of the principle of legal certainty’ (judgment under appeal, paragraph 54).

Procedure before the General Court and forms of order sought

By application lodged at the Court Registry on 30 September 2016, the Commission brought the present appeal.

On 24 February 2017, AV lodged a response in which he also lodged a cross-appeal.

By letter lodged at the Court Registry on 29 March 2017, the Commission requested leave to lodge a reply, which the President of the Appeal Chamber allowed by decision of 3 April 2017.

19.19

On 12 May 2017, the Commission lodged its reply.

On 12 July 2017, AV lodged a rejoinder. By letter of the same date, AV withdrew his cross-appeal. On 4 August 2017, the Commission stated that it had no observations to make on that withdrawal.

21.21

By letter lodged at the Court Registry on 5 September 2017, AV requested a hearing in the oral part of the procedure, pursuant to Article 207 of the Rules of Procedure of the Court. The Commission did not submit a request for a hearing within the period prescribed by that provision.

22.22

On 21 November 2017, the Second Chamber, acting upon a proposal by the Judge-Rapporteur, decided to open the oral part of the procedure.

23.23

The Commission claims that the Court should:

set aside the judgment under appeal;

refer the case back to the Court sitting at first instance;

reserve the costs.

24.24

AV contends that the Court should:

dismiss the appeal as manifestly unfounded;

by way of cross-appeal, order the Commission to pay him the sum of EUR 50000 in respect of non-material and material damage;

order the Commission to pay the costs.

25.25

The Court takes note of the fact that AV withdrew his cross-appeal. There is therefore no longer a need to rule on AV’s claim for the Commission to be ordered to pay him the sum of EUR 50000 in respect of non-material and material damage.

Law

26.26

In support of the appeal, the Commission relies on two pleas in law. By the first plea, the Commission submits that, in finding that the undue delay in taking the decision of 16 September 2014 was likely to affect the content itself of that decision, the Civil Service Tribunal wrongly applied the reasonable time principle and infringed the duty to provide reasons. The second plea alleges an infringement of the principle of res judicata in relation to the judgment of 10 July 2012, AV v Commission (F‑4/11, EU:F:2012:96).

27.27

The Court considers it appropriate to examine the second plea first and the first plea second.

The second plea, alleging infringement of the principle of res judicata

28.28

By its second plea, the Commission maintains that the Civil Service Tribunal infringed the principle of res judicata in relation to the judgment of 10 July 2012, AV v Commission (F‑4/11, EU:F:2012:96).

29.29

First of all, it should be noted that, in order to ensure both stability of the law and legal relations and the sound administration of justice, it is important that judicial decisions which have become definitive after all rights of appeal have been exhausted or after expiry of the time limits provided for in that connection can no longer be called in question (judgment of 30 September 2003, Köbler, C‑224/01, EU:C:2003:513, paragraph 38), which is why definitive judicial decisions have the force of res judicata.

30.30

Next, it should be pointed out that the force of res judicata applies to the matters of fact or law actually or necessarily settled by the judicial decision in question (see, to that effect, order of 17 December 2009, Nijs v Court of Auditors, T‑567/08 P, EU:T:2009:523, paragraph 32, and judgment of 25 February 2015, Walton v Commission, T‑261/14 P, EU:T:2015:110, paragraph 36) and that the force of res judicata attaches not only to the operative part of that decision, but also to the ratio decidendi of that decision which is inseparable from it (judgment of 19 April 2012, Artegodan v Commission, C‑221/10 P).

EU:C:2012:216

Finally, it has been held that, even though the arguments raised in support of an action may coincide to a certain extent with those put forward in earlier proceedings, the second action is not a repetition of the first but is a new dispute, in that it is based also on other pleas of fact and law (judgment of 13 September 2011, Michail v Commission, F‑100/09, EU:F:2011:132, paragraph 31; see also, to that effect, judgment of 12 December 1996, Altmann and Others v Commission, T‑177/94 and T‑377/94, EU:T:1996:193, paragraph 52).

In the present case, it should be noted that the annulment of the decision of 12 April 2010 and the annulment of the decision of 16 September 2014 by, respectively, the judgment of 10 July 2012, AV v Commission (F‑4/11, EU:F:2012:96) and the judgment under appeal, are not based on the same grounds.

Thus, in the judgment of 10 July 2012, AV v Commission (F‑4/11, EU:F:2012:96), which acquired the force of res judicata, the Civil Service Tribunal based its decision to annul the decision of 12 April 2010 on non-compliance with the procedure laid down in Article 32 of the CEOS. The Tribunal stated unequivocally that it was not necessary to examine the complaint alleging infringement of the reasonable time principle.

The question arises, however, whether, in the grounds of the judgment of 10 July 2012, AV v Commission (F‑4/11, EU:F:2012:96), which form the necessary ratio decidendi for the operative part, the Civil Service Tribunal had already taken a position on the question of whether the reasonable time principle had been infringed and, if applicable, on the consequences of that infringement on the adoption of a new decision under the procedure in Article 32 of the CEOS.

It must be stated that nothing in any paragraph of the judgment of 10 July 2012, AV v Commission (F‑4/11, EU:F:2012:96), indicates that the Civil Service Tribunal intended to take a position, whether directly or indirectly, on the question of whether the reasonable time principle had been infringed and, a fortiori, on the consequences of that infringement.

Despite what the Commission, in essence, asserts to the contrary, the fact that the Civil Service Tribunal, in the judgment of 10 July 2012, AV v Commission (F‑4/11, EU:F:2012:96), annulled the decision of 12 April 2010 on the basis of an infringement of Article 32 of the CEOS cannot be interpreted as the Tribunal taking a position which implicitly resolved the question of whether the reasonable time principle had been infringed, thereby allowing the AECC to withdraw the decision of 12 April 2010 and adopt a new decision pursuant to the procedure in Article 32 of the CEOS, permanently precluding any possible discussion on whether the reasonable time principle had been infringed and, a fortiori, on the consequences of that infringement.

Such an interpretation is even harder to justify given that it contradicts paragraph 42 of the judgment of 10 July 2012, AV v Commission (F‑4/11, EU:F:2012:96), in which, as observed in paragraph 33 above, the Civil Service Tribunal expressly stated that it did not consider it necessary to examine the other pleas in the application.

It follows that the Commission based its arguments on the false premiss that the Civil Service Tribunal had ruled on the plea alleging infringement of the reasonable time principle in the judgment of 10 July 2012, AV v Commission (F‑4/11, EU:F:2012:96).

Moreover, it should be noted that, in the present case, the grounds forming the necessary ratio decidendi for the operative part of the judgment of 10 July 2012, AV v Commission (F‑4/11, EU:F:2012:96), related only to Article 32 of the CEOS. Therefore, even if the Civil Service Tribunal had examined the plea alleging infringement of the reasonable time principle and had found that there had been no infringement or that any infringement had no effect on the decision that was the subject of the action, none of the grounds relating to that plea would have acquired the force of res judicata since they did not constitute the necessary ratio decidendi for the operative part of that judgment.

It follows from the foregoing that the second plea must be rejected.

The first plea, alleging misapplication of the reasonable time principle and infringement of the duty to provide reasons

In its first plea, la Commission submits that the Civil Service Tribunal misapplied the reasonable time principle. First of all, the Commission alleges that the Civil Service Tribunal did not take into account the fact that a decision for infringement of that principle may only be annulled in exceptional circumstances. Next, the Commission claims that the Civil Service Tribunal was wrong to find that the undue delay in adopting the decision of 16 September 2014 was likely to affect the actual content thereof. Finally, it takes the view that the reasoning provided in the judgment under appeal was insufficient in that respect in that the Civil Service Tribunal did not give any reasons why the undue delay would have affected the content of that decision.

AV disputes the Commission’s arguments. First of all, he submits that the judgment under appeal contains sufficient reasoning in that the Civil Service Tribunal clearly stated, in its paragraphs 44 to 51, the reasons why it considered that a reasonable time had been exceeded in the present case and why the undue delay was likely to affect the content of the decision of 16 September 2014. Next, he argues that, in view of the undue delay, it was impossible for him to provide useful clarification concerning the statements he had made at his pre-recruitment medical examination. He claims that the Commission did not ask the doctor who had carried out the pre-recruitment medical examination and the annual medical check-up in 2006 to specify how the examination had been carried out or to explain why he had issued a ‘fitness to work’ statement without reservations in 2006, even though he was aware of AV’s illness. Further, he comments that the Commission only made his appointment subject to the medical cover deferment after finding that he was suffering from a permanent invalidity that was regarded as total and as rendering it impossible for him to perform his duties. In addition, he notes that, in the judgment under appeal, the Civil Service Tribunal held that the Invalidity Committee did not rule on the separate question of whether his illness warranted the deferment of medical cover. In this respect, he submits that the Commission infringed the reasonable time principle through its failure to act for three years and seven months. Finally, he adds that the Commission infringed Article 266 TFEU by failing to take the measures contained in the judgment of 10 July 2012, AV v Commission (F‑4/11, EU:F:2012:96), since it unlawfully refrained from instructing a medical officer to examine whether his illness warranted the deferment of medical cover.

It is important to note from the outset that, in its reply, the Commission stated clearly and explicitly that ‘the finding [by the Civil Service Tribunal in the judgment under appeal that] the time taken to decide to defer medical cover retroactively was excessive [was] not disputed’ and affirmed that ‘criticism of the judgment under appeal [was] directed at the conclusions that [the Tribunal] [had] drawn from that finding, namely annulment of the contested decision’.

It must be pointed out that the Commission does not dispute that, by waiting three years and seven months after being informed that the applicant himself had acknowledged that he had failed to mention at his pre-recruitment medical examination the illness from which he suffered, prior to it adopting the decision of 9 July 2009, it infringed the reasonable time principle. Neither does it dispute that, as a consequence, the decisions of 12 April 2010 and of 16 September 2014 were not adopted within a reasonable time. On the other hand, the Commission challenges the findings of the Civil Service Tribunal in the judgment under appeal that the undue delay was likely to affect the actual content of the decision of 16 September 2014.

According to the case-law, compliance with the reasonable time requirement in the conduct of administrative procedures constitutes a general principle of EU law which is enforced by the EU Courts and is, moreover, laid down as a component of the right to good administration by Article 41(1) of the Charter of Fundamental Rights (judgments of 11 April 2006, Angeletti v Commission, T‑394/03, EU:T:2006:111, paragraph 162, and of 6 December 2012, Füller-Tomlinson v Parliament, T‑390/10 P, EU:T:2012:652, paragraph 115).

However, infringement of the reasonable time principle does not, as a general rule, justify the annulment of a decision taken at the culmination of an administrative procedure. It is only where the passing of an excessive period is likely to have an effect on the actual substance of the decision adopted at the end of the administrative procedure that non-compliance with the reasonable time principle affects the validity of the administrative procedure (judgments of 6 December 2012, Füller-Tomlinson v Parliament, T‑390/10 P, EU:T:2012:652, paragraph 116, and of 12 May 2016, Guittet v Commission, F‑92/15, EU:F:2016:118, paragraph 76).

In addition, it should be recalled that, in a particular case where, after the pre-recruitment medical examination, it is apparent that a staff member did not answer sincerely and completely the questions asked about his health by the medical officer during that examination, the AECC may withdraw its original decision not to defer medical cover and take a fresh decision applying that deferment retroactively (judgment of 20 July 2016, HC v Commission, F‑132/15, EU:F:2016:158).

paragraph 85).

48It is in the light of that case-law that the first plea must be examined.

49As a preliminary point, it is necessary to examine the Commission’s complaint that the judgment under appeal is insufficiently reasoned, in so far as the Civil Service Tribunal did not state the reasons why it considered that the undue delay was likely to affect the content of the decision of 16 September 2014.

50It should be recalled that judgments of the Civil Service Tribunal must be sufficiently reasoned in order for the Court to be able to review them. The reasoning may be implicit on condition that it enables the party concerned to know why the court of first instance has not upheld his arguments and provides the appeal court with sufficient material for it to exercise its power of review (judgments of 16 December 2010, Lebedef v Commission, T‑52/10 P, EU:T:2010:543, paragraphs 83 and 84, and of 23 April 2015, BX v Commission, T‑352/13 P, EU:T:2015:225, paragraph 44). What is more, the obligation to state reasons is an essential procedural requirement which must be distinguished from the merits of the reasons given, which concern the substantive legality of the contested measure (judgments of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 67, and of 21 April 2004, M v Court of Justice, T‑172/01, EU:T:2004:108, paragraph 61).

51In the present case, paragraphs 50 to 54 of the judgment under appeal contain the reasons why the Civil Service Tribunal regarded the undue delay as being likely to affect the actual content of the decision adopted at the end of the administrative procedure, being the decision of 16 September 2014. The Civil Service Tribunal stated that the first decision to make AV’s appointment subject to the deferment of medical cover, namely the decision of 9 July 2009, was taken almost three months after expiry of his contract, approximately eight months after his request for the matter to be referred to the Invalidity Committee, more than three years and seven months after the AECC was made aware of his illness and after confirmation from the Invalidity Committee that he suffered from total permanent invalidity due to that illness. The Civil Service Tribunal thus concluded that the decision of 9 July 2009 had, in effect, been converted into a decision to exclude AV with immediate effect from invalidity benefits. It therefore considered that the undue delay was inevitably likely to affect the content of that decision.

52It must be held that this reasoning enables the Court to exercise its power of review and informs the Commission why the Civil Service Tribunal did not uphold its arguments. It follows that the Commission’s complaint alleging infringement of the obligation to state reasons must be rejected.

53As regards the substance, it is necessary to examine whether the Civil Service Tribunal was entitled to find that infringement of the reasonable time principle was likely to affect the content of the decision of 16 September 2014.

54It must first of all be noted that, in the decision of 16 September 2014, the AECC stated that it had relied on the findings of the doctors sitting on the Invalidity Committee, made on 30 April 2013, according to which, ‘if [AV] had declared his illness to the doctor who interviewed him at his pre-recruitment medical examination, his illness would have warranted the application of a deferment of medical cover as provided for in Article 32 of the CEOS’. It is therefore clear from the decision of the AECC that the decision to make AV’s appointment subject to the deferment of medical cover was based solely on the illness that he should have declared at the pre-recruitment medical examination and not on the subsequent progression of that illness after the examination.

55The Civil Service Tribunal nevertheless held, in paragraphs 50 to 53 of the judgment under appeal, that the undue delay between the AECC becoming aware of AV’s illness and the decision of 9 July 2009, by which AV’s appointment was made subject to the deferment of medical cover, affected the content of that decision (and, therefore, also the content of the decisions of 12 April 2010 and 16 September 2014). The Tribunal identified several factors which occurred during the period of undue delay, namely that the decision of 9 July 2009 was made after expiry of the contract, after AV’s request for the matter to be referred to the Invalidity Committee, several years after the AECC was made aware of AV’s illness and after the Invalidity Committee had confirmed that AV was suffering from total permanent invalidity. It held that, as a result of the aforementioned events over that long period, the decision to make AV’s appointment subject to the deferment of medical cover with retroactive effect from the day his service commenced had, in effect, been converted into a decision to exclude AV with immediate effect from invalidity benefits in respect of an invalidity that had already occurred.

56It must be held that the Civil Service Tribunal erred in law in finding, on the basis of the circumstances described in paragraph 55 above, that the undue delay had affected the content of the decision of 16 September 2014.

57It is important to note that, in the present case, the AECC adopted two separate decisions, namely (i) a decision under Article 33 of the CEOS to declare AV in a state of total permanent invalidity and (ii) a decision under Article 32 of the CEOS to make his appointment subject to the deferment of medical cover. The decisions were therefore taken on the basis of criteria specific to each of those provisions.

58In that regard, it should be noted that, even though, from a chronological point of view, a decision to make an appointment subject to medical cover deferment is taken at the pre-recruitment medical examination and therefore, in principle, prior to the findings of the Invalidity Committee and the decision of the AECC to assign invalidity status to a member of staff, it is only because of the particular circumstances of the present case that the decision to make the appointment subject to medical cover deferment did not occur until after the findings concerning invalidity had been made and after the contract had ended.

59In holding that the decision of 16 September 2014‘[had], in effect, been converted into’ a decision to exclude AV with immediate effect from invalidity benefits, the Civil Service Tribunal relied, in the present case, on a presumption that, where a decision to make the appointment subject to medical cover deferment for an illness is taken after a finding of invalidity in relation to that same illness and after the contract has ended, those factors will automatically lead to the content of that decision being affected. Since the decision to make the appointment subject to medical cover deferment was based solely on information that the applicant should have declared at his pre-recruitment medical examination, the mere fact that the decision to make the appointment subject to the deferment of medical cover was made after the contract had ended and after the Invalidity Committee had made its findings does not in itself establish that the undue delay affected the content of that decision.

60In addition, as noted in paragraph 47 above, it should be recalled that, in a particular case where, after the pre-recruitment medical examination, it is apparent that a staff member did not answer sincerely and completely the questions asked about his health by the medical officer during that examination, the AECC may withdraw its original decision not to defer medical cover and take a fresh decision applying that deferment retroactively (judgment of 20 July 2016, HC v Commission, F‑132/15, EU:F:2016:158, paragraph 85).

61The judgment under appeal contains no concrete evidence to show, as is required by the case-law cited in paragraph 46 above, that the undue delay was likely to have an effect, on a legal or factual level, on the decision to make the appointment subject to the deferment of medical cover.

62In other words, the factors relied on by the Civil Service Tribunal in the judgment under appeal do not allow the conclusion to be drawn that the content of the decision of 16 September 2014 might have been different had it been adopted prior to the findings of the Invalidity Committee or prior to the end of the contract.

63Thus, in the absence of any concrete evidence to show the actual or potential effect of the undue delay on the decision of 16 September 2014, the exclusion of AV from invalidity benefits cannot be regarded as the result of a conversion, in effect, of the decision to make the appointment subject to the deferment of medical cover. On the contrary, the only explanation at this stage for that exclusion is that it was the consequence of two separate decisions, the first being the decision to make AV’s appointment subject to the deferment of medical cover for the illness which preceded his appointment and which the Invalidity Committee found, had it been declared at the pre-recruitment medical examination, would have warranted the deferment of medical cover, and the second being the decision declaring that AV was in a state of total permanent invalidity due to that illness.

64In the light of the foregoing, the first plea is well founded. The appeal should therefore be upheld and the judgment under appeal set aside.

Consequences of the setting aside of the judgment under appeal

Under 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), where the Court sets aside a decision of the Civil Service Tribunal but considers that the state of the proceedings does not permit a decision, it shall refer the case to a chamber other than that which ruled on the appeal.

In the present case, the Civil Service Tribunal did not examine the first plea, alleging infringement of Article 32 of the CEOS, nor the second plea, alleging infringement of the conditions that must be met for the withdrawal of an act creating subjective rights. The Court therefore considers that it is not in a position to rule on the case. Accordingly, the case must be referred back to a chamber of the Court other than that which ruled on the appeal.

Costs

67Since the case has been referred back to a chamber of the Court other than that which ruled on the present appeal, the costs relating to the present appeal proceedings must be reserved.

On those grounds,

hereby:

3. Reserves costs.

Jaeger

Prek

Dittrich

Delivered in open court in Luxembourg on 17 May 2018.

[Signatures]

*1 Language of the case: French.