July 05
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22nd June 2020
Employment & Immigration Institutional law Justice & Litigation

Op-Ed: “New categories in the requirement of reasoning? Commission v Di Bernardo” by Julian Currall

Staff cases are an overlooked source of EU law. Several Charter provisions were first interpreted in them. This subject gave rise to the first specialised EU jurisdiction, the former Civil Service Tribunal (CST). The need for an expert panel to recruit the judges led to this procedure being extended to other EU judicial appointments. While the CST operated, the Statute and the Rules of Procedure confirmed the potential wider importance of staff law: the General Court (GC) ruled on staff appeals, but the Court of Justice (the ‘Court’ or ‘CJ’) could intervene of its own motion under a special ‘review’ procedure, to quash an appeal judgment which it thought posed a threat to the consistency of EU law – to take a recent example, consider a judgment in a staff case about the relevance of the legality of judicial appointments to the legality of the judgments given by the persons concerned (Simpson v Council and HG v Commission, C-542 and 543/18 RX-II

Commission v Di Bernardo (C-114/19 P) is another example: it concerns the obligation of reasoning, an essential procedural requirement of general application. Mr Di Bernardo’s candidature in a recruitment procedure was rejected because the selection board decided that he had not shown that he met the requirement in the competition notice for a minimum number of years of relevant occupational experience, which the board had to apply strictly and equally. The board gave him this reason. He asked it to reconsider, but, notwithstanding several exchanges, it confirmed the decision providing no further reasons, referring to its selection criteria, without telling him what they were. There was no further information; there were also ‘miscommunications’ from the administration, which could have been punished in the costs order, without an annulment (see below); indeed, the Courts even have power to award damages for breach of the principle of sound administration, of their own motion, and thereby avoid annulment. The fact remains that, while the process had certainly not been satisfactory, the candidate had been given, at the least, an indication of a reason (the correctness of which was not in doubt, as the case never got that far). 

The applicant turned to the GC, without a preliminary complaint (unlike Article 263 TFEU, in a staff case under Article 270, there must be a preliminary complaint, which gives the administration an opportunity to provide the reasons, if not already given. However, there is a judicially-recognised exception: an applicant can bring a direct action without making a complaint against decisions of selection boards, as the latter are independent and the administration cannot alter their decisions; this exception is for reasons of procedural economy, a consideration which seems to have been overlooked here – see below). 

Hitherto, the rule – of general application, even if it has been developed mainly in staff cases – has been that, if the decision contains no reasoning at all (‘absence totale de motivation’), the defendant cannot provide it in the court proceedings. However, if it is accompanied (explicitly, or by reason of the context) by at least basic reasoning (‘début de motivation’), the defendant can develop it before the court, which can/must then take it into account. There were thus three categories: (a) sufficient reasons, (b) beginnings of a reason, which can be perfected in court and (c) total absence of reasons. Further, the existence of reasons is a matter which the courts can/must examine of their own motion (which implies inter alia that if the defendant provides one, even late, it should/must be examined). 

However, in Di Bernardo v Commission (T-811/16), the GC annulled the decision, holding that the reason – which was given – amounted to a ‘quasi-absence’ of reasoning (ground 38). The Commission could thus not invoke the case law under (b) above. The GC was thus either creating a new fourth category, or was at least dividing (b) into two sub-groups, insufficient reasons which are perfectible, and insufficient reasons which are not perfectible and are thus equivalent to no reasons at all. 

The Commission’s appeal contained two pleas; the most important concerned what constitutes basic motivation, a question not limited to staff matters, as the Court confirms by referring to non-staff cases. The essential issue was the GC’s creation of a new fourth category, of ‘quasi-absence’ of reasoning. The CJ, following the Advocate General, rejected the appeal. 

Space does not allow a summary of the judgment here, but the essential points are (i) the confirmation of the GC’s position that there is in effect a fourth category – or, at any rate that category (b) now falls into two groups, insufficient reasons which can be perfected, and insufficient reasons which cannot be perfected and are thus to be treated as not being reasons at all; and (ii) an insistence that the possibility of perfecting the reasoning during the court proceedings is ‘exceptional’ (grounds 50-52). 

Concerning the first point, it seems that whether the initial reason is perfectible before the court or not now depends on a case-by-case assessment of the contents of that reason, whether it is contradictory and so on (ground 55, end). 

As to whether it is only in exceptional circumstances that the defendant can complete the reasoning during the court proceedings, the Court refers to judgments where it did say this (ground 31). However, there are other cases, not mentioned, where the courts refer to this possibility without saying that it is exceptional, implying that it is the norm (see for example Benecos v Commission, T-16/94, ground 36, with further references). Moreover, all the cases until now say that it is only when there is a total absence of motivation that the defendant cannot give fuller reasons during the court case, implying that once there is something, this prohibition should not apply. The Commission’s point was that Di Bernardo was not such a case, as a reason certainly had been given, so it should have been examined rather than, in effect, declared non-existent. However, according to the Court, it is not the mere existence of this ‘something’ which matters: the court must look at its actual content (ground 55, last sentence). If it is indeed incomplete or contradictory, it can be treated as a case of absence of motivation. 

The appeal judgment raises several concerns: first, legal certainty. Anyone can identify a total absence of reasoning. But what is the difference between ‘certain elements’ of reasoning which are nevertheless insufficient (ground 55, first sentence) and the ‘beginning of reasoning’which allows the defendant to avoid annulment by providing fuller reasoning before the Court? The latter possibility continues to exist, even after this judgment, so it is essential to know what the difference is (if there is one); for the Court, the reply to this question will depend on a purely casuistic approach (ground 55, last sentence). The concern for legal certainty and predictability is all the more relevant when one considers the facts of Di Bernardo: even if the process was undeniably unsatisfactory (see above), the selection board did not say nothing at all, it referred to the relevant condition in the notice and explained that the applicant had not proved that he met it. It therefore did exactly what the notice required. 

Certainly, the applicant was still entitled to challenge the correctness of the motivation, or the procedure, and to require further information for that purpose. But how could he be allowed to say that that was not a reason at all? If what the board said is not the ‘beginning of a reason’, what is it? It is a relevant reference to an essential condition. What is more, the candidate and the selection board had a further exchange of correspondence during the review process; accordingly, since compliance with the duty to state reasons must be assessed in relation to the context of the decision (in casu, the decision on the request for review), it is difficult to understand the conclusion that there was, in law, no reasoning at all. Finally, the Court’s own case law, quoted in the appeal judgment (ground 38), accepts that the mark obtained in the tests is a sufficient reason for a decision refusing to place a candidate on a reserve list: obtaining a given mark is a condition of success, but so is having the required professional experience. So why is referring to one not only a reason, but a sufficient reason, whereas referring to the other is not a reason at all? Both are the result of an exercise of judgment, by the selection board, whose decisions are subject to secrecy. What is the difference? 

The second concern is this: for a reason which is actually given to be treated as being no reason, it would have to be manifestly irrelevant or wrong, rather than merely incomplete or even contradictory. But that involves an assessment of the validity of the reason – yet the Courts constantly remind us that the merits and legality of the reasoning is an entirely separate question from the existence of reasoning. The Commission made this point in the appeal; the Court denies that the GC confused the two issues, yet at the same time, it is the Court itself which tells us, in ground 55, that the sufficiency of the reason depends on evaluating it. 

The third concern is procedural economy: by basing the distinction between (non-perfectible) absence of reasoning and (perfectible) beginnings of a reason on a case-by-case analysis, the Court seems to create a risk that parties will have to go through two cases before exhausting the matter, an initial annulment for supposed lack of reasoning, followed by a second case in which the reason is given, and the argument is therefore rejected: yet it could have been rejected in the first case, had the defendant been allowed to give it at that stage. This cannot be a good use of court time and the parties’ resources. It is also difficult to square with the pragmatic attitude shown by the GC in other cases, for example Wenk v Commission (T-159/96), where it rejected the application, even though there was a total lack of reasoning for the decision appointing another candidate to a post: the Commission had prepared a reply to the complaint, which contained the missing reasons, but had failed to notify it, and Mr Wenk challenged the resulting deemed rejection. The Commission produced the reply with its defence. The GC held that there had indeed been an infringement of the duty of reasoning, but that in the circumstances it did not justify annulment of the decision and instead, Mr Wenk should be awarded modest damages for the failure to give reasons. The GC even ordered the applicant to pay his own costs incurred after the Commission produced the reply, the implication being that it should have been obvious at that point that the application could not succeed. 

These considerations are of general application. There is at least one other concern, specific to staff matters. The GC has held that in a competition, the administration must provide the candidate with the reasons why s/he was not put on the reserve list, or why someone else was appointed, at the latest in the reply to the complaint: for exampleCarbajo Ferrero v Parliament (T-237/95), grounds 82-83. This means that it does not have to be provided in the original decision, or not in full. By considering that the initial decision must, save in exceptional cases, contain all elements enabling the candidate to understand why he has been excluded, the Court risks depriving the complaints procedure of any meaning, even though it exists precisely to allow the reasoning to be developed, with a view to avoiding hopeless litigation. Admittedly, no complaint is required against decisions of a selection board (see above), but it is still possible: so why deprive it of meaning by requiring full reasons to be given at the first stage, when the point was to avoid unnecessary work by only requiring such reasons if someone complained? 

It is suggested that, rather than extending the obligation of reasoning in relation to the initial decision, the solution to cases like Di Bernardo is to continue to allow the administration, where it has provided at least some initial reasoning, to develop it in Court proceedings, so that the plea of lack of reasoning can be rejected there and then (unless the further arguments are themselves of no value, of course). On the other hand, in fairness to the applicant, who has been obliged to bring a case in order to discover the full reasons, the defendant should be ordered to pay at least some of the costs and perhaps also in some cases, damages for breach of sound administration. This suggests that there was no need in the first place for the puzzling new category of ‘quasi-absence of motivation’”. 

 

Julian Currall was a member of the European Commission’s Legal Service from 1983-2015, latterly as Director and Principal Legal Adviser for European Civil Service Law. He is a member of the Bar of England and Wales, and of the E-list of the Brussels Bar, in private practice in Brussels. He wishes to thank his former colleagues Giacomo Gattinara and Bernard Mongin for reading a draft of this article and providing comments, though he takes sole responsibility for the text. All opinions are strictly personal and cannot be attributed to the Commission or to the law firm where he works.

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