José António de Brito Sequeira Carvalho

v

Commission of the European Communities

Commission of the European Communities

v

José António de Brito Sequeira Carvalho

(Appeal – Civil service – Officials – Leave – Medical leave – Placing on compulsory medical leave – Extension of compulsory medical leave – Prior new medical examination – Jurisdiction of the Civil Service Tribunal – Amendment of the subject-matter of the dispute)

Appeal: against the judgment of the Civil Service Tribunal of the European Union (Third Chamber) of 13 December 2006 in Case F-17/05 de Brito Sequeira Carvalho v Commission [2006] ECR-SC I‑A‑1‑149 and II‑A‑1‑577, seeking to have that judgment set aside.

Held: The appeal in Case T‑40/07 P is dismissed. In Case T‑40/07 P, José António de Brito Sequeira Carvalho is to bear his own costs and to pay those incurred by the Commission of the European Communities in the present proceedings. The judgment of the Civil Service Tribunal of the European Union (Third Chamber) of 13 December 2006 in Case F-17/05 de Brito Sequeira Carvalho v Commission [2006] ECR-SC I‑A‑1‑149 and II‑A‑1‑577 is set aside in so far as it annulled the decision of 13 July 2004 and the decisions to extend the compulsory medical leave subsequent to the decision of 22 September 2004. The action brought by Mr de Brito Sequeira Carvalho before the Civil Service Tribunal in Case F-17/05 is dismissed as inadmissible as regards the decision of 13 July 2004 and the decisions to extend the compulsory medical leave subsequent to the decision of 22 September 2004. The remainder of the appeal in Case T‑62/07 P is dismissed. In Case T-62/07 P, Mr de Brito Sequeira Carvalho is ordered to bear half of his own costs relating to the proceedings before the Civil Service Tribunal and the present proceedings. In Case T-62/07 P, the Commission is ordered to bear its own costs and to pay half the costs incurred by Mr de Brito Sequeira Carvalho relating to the proceedings before the Civil Service Tribunal and the present proceedings.

Summary

1. Officials – Decision affecting the administrative status of an official – Taking into account of factors not in his personal file, but having previously been brought to his notice – Legality – Conditions

(Staff Regulations, Art. 26, first para.)

(Rules of Procedure of the General Court, Arts 49, 64 and 65; Council Decision 2004/752, Art. 3(4))

3. Procedure – Production of evidence – Time-limit – Late submission of evidence relied on

(Rules of Procedure of the General Court, Art. 48(1))

(Rules of Procedure of the General Court, Art. 62)

(Staff Regulations, Arts 90 and 91)

(Art. 249 EC)

(Staff Regulations, Art. 2)

8. Officials – Actions – Pleas in law – Misuse of powers

(Staff Regulations, Arts 90 and 91)

1. The lawfulness of the assessment by the Community judicature of an action brought by an official is in no way subject to the defendant institution’s compliance with its obligation laid down in Article 26 of the Staff Regulations to communicate the personal file of that official. It is for the Community judicature alone to assess whether it is appropriate to adopt any measures of organisation of procedure and to order any measure of inquiry.

The purpose of the first paragraph of Article 26 of the Staff Regulations is to guarantee an official’s right to a fair hearing by ensuring that decisions taken by the administration affecting his administrative status and his career are not based on matters concerning his ability, efficiency or conduct which are not included in his personal file. A decision based on such factual matters is therefore contrary to the guarantees contained in the Staff Regulations and must be annulled because it was adopted on the basis of a procedure vitiated by illegality.

However, the mere fact that documents referred to in Article 26 of the Staff Regulations were not placed on an official’s personal file is not enough to justify annulling a decision where they were in fact brought to his notice. It is only where documents concerning his ability, efficiency or conduct have not previously been communicated to an official that they cannot be used against him. This is not the case as regards documents which, although brought to his knowledge, have not yet been placed on his personal file, since the institution cannot be prevented from taking a decision in the interests of the service on the basis of documents previously communicated to the person concerned merely because they have not been placed on his personal file. It follows that an institution commits an infringement of Article 26 of the Staff Regulations and of an official’s right to a fair hearing where it adopts a decision adversely affecting him without having previously communicated to him the factual matters, not included in his personal file, which justify the adoption of that decision. In that regard, the mere establishment that the official concerned knew of these matters cannot be regarded as sufficient evidence that he had the opportunity effectively to defend his interests prior to the adoption of the decision adversely affecting him. In order for the observance of his right to a fair hearing to be ensured, the institution must still demonstrate, by any means, that it had previously enabled the official concerned to understand that the factual matters in question, although not placed on his personal file, were such as to justify the decision adversely affecting him. Failing that, the communication required by Article 26 of the Staff Regulations cannot be deemed to have taken place.

(see paras 91-94)

See: T‑155/03, T‑157/03 and T‑331/03 Cwik v Commission [2005] ECR-SC I‑A‑411 and II‑1865, paras 50 and 51 and the case-law cited therein, and para. 52; T‑47/04 Milbert and Others v Commission [2006] ECR-SC I‑A‑2‑281 and II‑A‑2‑1455, para. 83

(see para. 105)

See: C‑360/02 P Ripa di Meana v Parliament [2004] ECR I‑10339, para. 28

3. Since it is an exception to the rules governing the lodging of evidence offered, Article 48(1) of the Rules of Procedure of the General Court requires parties to give reasons for the delay in offering their evidence. That obligation implies that the court has the power to check the reasons given for the delay in lodging the evidence offered and, depending on the case, the substance of that evidence, as well as the power to disregard the evidence if the application is not sufficiently founded. The same applies, a fortiori, to offers of evidence made after the rejoinder is submitted.

(see para. 115)

See: judgment of 14 April 2005 in C-243/04 P M v Court of Justice, not published in the ECR, para. 33

(see para. 131)

See: C‑199/92 P Hüls v Commission [1999] ECR II‑4287, paras 126 and 128; judgment of 27 April 2006 in C-230/05 P L v Commission, not published in the ECR, para. 68

(see paras 145-146)

See: judgment of 6 December 2001 in C-219/01 P Reyna González del Valle v Commission, not published in the ECR, para. 10; C‑229/05 P PKK and KNK v Council [2007] ECR I‑439, para. 101; judgment of 28 March 2001 in T-130/00 Reyna González del Valle v Commission, not published in the ECR, para. 39; T‑289/04 Lantzoni v Court of Justice [2006] ECR-SC I‑A‑2‑39 and II‑A‑2‑171, paras 40 and 41; judgment of 25 October 2007 in T-274/06 Estaser El Mareny v Commission, not published in the ECR, para. 40

(see paras 150-153)

See: C‑137/92 P Commission v BASF and Others [1994] ECR I‑2555, paras 48 to 50; C‑245/92 P Chemie Linz v Commission [1999] ECR I‑4643, paras 93 to 95; C‑475/01 Commission v Greece [2004] ECR I‑8923, paras 18 to 20

(see para. 155)

See: T‑23/96 De Persio v Commission [1998] ECR-SC I‑A‑483 and II‑1413, para. 111; T-118/04 and T-134/04 Caló v Commission [2007] ECR-SC I-A-2-0000 and II-A-2-0000, paras 68 and 71

8. The concept of misuse of powers has a very precise meaning and encompasses the use by an administrative authority of its powers for a purpose other than that for which they were conferred upon it. A decision is vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent factors, to have been taken with the purpose of achieving ends other than those stated.

In that regard, it is not sufficient to refer to certain facts in support of claims; evidence of a sufficiently specific, objective and consistent nature must also be adduced to support their truth or, at the very least, their probability, failing which the material accuracy of the statements of the institution concerned cannot be challenged.

(see paras 172-173)

See: T‑111/99 Samper v Parliament [2000] ECR-SC I‑A‑135 and II‑611, para. 64; T‑152/00 E v Commission [2001] ECR-SC I‑A‑179 and II‑813, para. 69; Cwik v Commission, paras 179 and 180; T-471/04 Karatzoglou v EAR [2008] ECR-SC I-A-2-0000 and II-A-2-0000, paras 49 and 50

Furthermore, even if an excusable error may have the effect of keeping a time-limit open and, therefore, of allowing a complaint or action to be admissible despite the failure to respect the time-limits imposed by Article 90(2) or Article 91(3) of the Staff Regulations, it cannot have the effect of exempting an applicant from the pre-litigation procedure laid down in Article 90(2) of the Staff Regulations, which is the express condition for the admissibility of an action under Article 91(2) of the Staff Regulations, and of enabling an applicant to bring an action directly before the Civil Service Tribunal.

(see paras 204-206)

See: C‑195/91 P Bayer v Commission [1994] ECR I‑5619, para. 26; C‑193/01 P Pitsiorlas v Council and ECB [2003] ECR I‑4837, para. 24; T‑33/89 and T‑74/89 Blackman v Parliament [1993] ECR II‑249, paras 32 and 33; judgment of 11 November 2008 in T-390/07 P Speiser v Parliament, not published in the ECR, para. 33