PB v Single Resolution Board (SRB) (C-727/23 P)

Contents

Judgment of the Court (Seventh Chamber)29 January 2026^note(Appeal — Civil service — Conditions of Employment of Other Servants — Members of the temporary staff — Decision not to reclassify — Possibility for the administration to supplement before the Courts of the European Union the statement of reasons for the decision not to reclassify — Conditions — Exceptional cases — Principle of correspondence between the administrative complaint and the subsequent action — Action for annulment)In Case C‑727/23 P,APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 28 November 2023,PB, represented by N. de Montigny, avocate,the other party to the proceedings being:Single Resolution Board (SRB), represented by H. Ehlers and L. Forestier, acting as Agents, and A. Duron and D. Waelbroeck, avocats,THE COURT (Seventh Chamber),composed of F. Schalin, President of the Chamber, M. Gavalec and Z. Csehi (Rapporteur), Judges,Advocate General: R. Norkus,Registrar: A. Calot Escobar,having regard to the written procedure,having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,gives the following

Judgment

1By his appeal, PB seeks to have set aside the judgment of the General Court of the European Union of 20 September 2023, PB v SRB (T‑293/22, EU:T:2023:577; ‘the judgment under appeal’), by which the General Court dismissed his action under Article 270 TFEU seeking annulment of the decision of the Single Resolution Board (SRB) of 16 July 2021 not to reclassify him at the end of the 2021 reclassification exercise (‘the decision at issue not to reclassify’).

Legal context

The Staff Regulations

2Article 45(1) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), applicable by analogy to members of the temporary staff under the first paragraph of Article 16 of the Conditions of Employment of Other Servants (‘the CEOS’), is worded as follows:‘Promotion shall be by decision of the appointing authority in the light of Article 6(2). Unless the procedure laid down in Articles 4 and 29(1) is applied, officials may only be promoted if they occupy a post which corresponds to one of the types of posts set out in Annex I, Section A, for the next higher grade. Promotion shall be effected by appointment of the official to the next higher grade in the function group to which he belongs. Promotion shall be exclusively by selection from among officials who have completed a minimum of two years in their grade after consideration of the comparative merits of the officials eligible for promotion. When considering comparative merits, the appointing authority shall in particular take account of the reports on the officials, the use of languages in the execution of their duties other than the language for which they have produced evidence of thorough knowledge in accordance with point (f) of Article 28 and the level of responsibilities exercised by them.’

3Article 90(2) of the Staff Regulations provides:‘Any person to whom these Staff Regulations apply may submit to the appointing authority a complaint against an act affecting him adversely, either where the said authority has taken a decision or where it has failed to adopt a measure prescribed by the Staff Regulations. The complaint must be lodged within three months. …’

The CEOS

4Article 2 of the CEOS provides:‘For the purposes of these Conditions of Employment, “temporary staff” means:…(f) staff engaged to fill a post which is included in the list of posts appended to the section of the budget relating to an agency as referred to in Article 1a(2) of the Staff Regulations and which the budgetary authorities have classified as temporary, except heads of agencies and deputy heads of agencies as referred to in the Union act establishing the agency and officials seconded in the interests of the service to an agency.’

5Article 54 of the CEOS provides:‘In the case of temporary staff referred to in Article 2(f), classification in the next higher grade shall be exclusively by selection from among staff members who have completed a minimum period of two years in their grade, after consideration of the comparative merits of such temporary staff and of the reports on them. The last sentence of Article 45(1) and Article 45(2) of the Staff Regulations shall apply by analogy. The multiplication rates for guiding average career equivalence, as set out for officials in Section B of Annex I to the Staff Regulations, may not be exceeded.In accordance with Article 110 of the Staff Regulations, each agency shall adopt general provisions for the implementation of this Article.’

The GIPs

6Article 4 of the SRB decision, of 24 April 2017, laying down general implementing provisions regarding Article 54 of the Conditions of Employment of Other Servants (‘the GIPs’), entitled ‘Basis of the reclassification procedure’, is worded as follows:1.The reclassification procedure shall be based on the consideration of the comparative merits of the temporary staff eligible for reclassification. The secure electronic system used to administer the exercise shall contain the information required for this comparative examination. For the purposes of the examination, [the authority authorised to conclude contracts of employment (“AACC”)] shall take into account, in particular:(a) the reports on the temporary staff drawn up since their last reclassification or, failing that, since their recruitment, and in particular temporary staff reports drawn up in accordance with the SRB’s general provisions for implementing Article 43 of the Staff Regulations;(b) the use by the temporary staff in the execution of their duties of languages other than the language for which they produced evidence of thorough knowledge in accordance with Article 12(2)(e) of the CEOS; and(c) the level of responsibilities exercised by them.2. If temporary staff eligible for reclassification have equal merit based on the three factors referred to in paragraph 1, the AACC may give subsidiary consideration to other factors.’

7Under Article 5 of the GIPs, the SRB’s reclassification exercise is to take place in the following stages:– in the first place, the Human Resources Department is to publish an administrative notice announcing the end of the appraisal exercise (Article 5(1) of the GIPs);– in the second place, the members of the Board are to consult the reporting officers of the members of the temporary staff eligible for reclassification (first subparagraph of Article 5(3) of the GIPs) and then carry out an initial comparative examination of their merits (second subparagraph of Article 5(3) of the GIPs);– in the third place, the Chair of the SRB is to hold a discussion with the Staff Committee and, at the latter’s request, specify the criteria that were given subsidiary consideration in the case of equal merits (Article 5(4) of the GIPs);– in the fourth place, the Chair of the SRB is to draw up a list of members of the temporary staff proposed for reclassification (Article 5(5) of the GIPs), which he is to communicate to all the staff members of the SRB and to the Joint Reclassification Committee (‘the Joint Committee’) (Article 5(6) of the GIPs);– in the fifth place, the members of the temporary staff who do not appear on that list may lodge a complaint with the Joint Committee against the fact that he or she was not on the list; the latter is to compare the merits of the members of the temporary staff eligible for reclassification and to present for the attention of the AACC a list of the members of the temporary staff it recommends for reclassification (Article 5(7) of the GIPs);– in the sixth place, the AACC in turn is to carry out a comparative examination of the merits of eligible members of the temporary staff and to adopt the list of those members to be reclassified (Article 5(8) of the GIPs). That list is to be published for the attention of the SRB’s staff members (Article 5(9) of the GIPs).

Background to the dispute

8The background to the dispute is set out in paragraphs 2 to 10 of the judgment under appeal as follows:2 On 1 November 2016, the [appellant] was recruited by the SRB as a member of the temporary staff under Article 2(f) of the [CEOS] and classified in grade AD 6, step 2. He was then appointed as a lawyer in Unit 01 of the SRB Secretariat.3 After having successfully participated in an external recruitment procedure organised by the SRB, the [appellant] concluded a new contract of employment, within the same unit, reclassifying him at grade AD 7 with effect from 1 October 2017.4 By a staff notice from the Chair of the SRB (“the Chair”) of 11 May 2021, communicated to the staff of the SRB …, the SRB launched the 2021 reclassification exercise for members of the temporary staff …5 The Chair did not include the [appellant] in the list of members of the temporary staff proposed for reclassification, published on 14 June 2021.6 On 22 June 2021, the [appellant] lodged a complaint with the [Joint Committee] challenging the failure to put him forward for reclassification. On 9 July 2021, that committee, by three votes against two, did not recommend to the [AACC] that he be reclassified.7 On 16 July 2021, the Chair, as AACC, published the list of the members of the temporary staff reclassified under the 2021 exercise for the attention of the staff, which did not include the [appellant]’s name.8 Between 19 July and 19 September 2021, the [appellant] submitted several requests for access to documents concerning, inter alia, the 2019 to 2021 reclassification exercises … On 1 October 2021, the SRB granted the [appellant] partial access to the documents requested.9 On 15 October 2021, the [appellant] lodged a complaint against the decision not to reclassify under Article 90(2) of the [Staff Regulations], applicable by analogy to members of the temporary staff pursuant to Article 46 of the CEOS. That complaint was rejected by decision of the SRB on 14 February 2022 (“the rejection decision”).10 After the application was lodged, the SRB did not renew the [appellant’s] contract and terminated his duties.’

The action before the General Court and the judgment under appeal

9By application lodged at the Registry of the General Court on 19 May 2022, the appellant brought the action referred to in paragraph 1 of the present judgment.

10In paragraph 31 of the judgment under appeal, the General Court found that, in support of his action, the appellant relied, in essence, on six pleas in law:– the first, alleging a failure to consider the comparative merits of all eligible members of the temporary staff;– the second, alleging a breach of the obligation to state reasons and an error in the calculation of seniority in grade;– the third, relating to the assessment of the levels of responsibility;– the fourth, relating to irregularities vitiating the reclassification procedure;– the fifth, alleging infringement of the target average referred to in Annex II to the GIPs; and– the sixth, alleging, in the alternative, a manifest error of assessment of the appellant’s merits and seniority in grade.

11By the judgment under appeal, the General Court rejected all those pleas and, consequently, dismissed the appellant’s action for annulment.

Forms of order sought by the parties to the appeal

12The appellant claims that the Court should:– set aside the judgment under appeal;– annul the decision at issue not to reclassify; and– order the SRB to pay the costs incurred by the appellant in the appeal proceedings and in the proceedings at first instance.

13The SRB contends that the Court should:– dismiss the appeal as inadmissible and, in any event, as unfounded; and– to order the appellant to pay the costs.

The appeal

14In support of his appeal, the appellant relies, essentially, on eight grounds of appeal. In addition to the six grounds of appeal listed in the appeal, the appellant raises, as a preliminary point, an ‘introductory’ ground of appeal – this ground of appeal, which is overarching in nature, was identified as constituting his first ground of appeal in the reply and concerns the admissibility of the annexes and submissions – and, in conclusion, a ground of appeal alleging incorrect allocation of costs in the judgment under appeal. With regard to the grounds set out in the appeal, the second alleges that there was no comparative examination of the merits of all eligible members of the temporary staff, the third alleges a failure to state reasons, the fourth alleges an incorrect assessment of the levels of responsibility, the fifth alleges procedural defects, the sixth alleges infringement of the target averages under the Staff Regulations as reproduced in the GIPs and, the seventh alleges a manifest error of assessment.

Admissibility of the appeal

Arguments of the parties

15The SRB pleads, primarily, that the appeal is inadmissible in its entirety on the ground that it is confused and repetitive, with the result that certain parts and complaints of that appeal are devoid of any coherent structure.

16The appellant disputes the merits of that line of argument.

Findings of the Court

17It follows from the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, as well as from Article 168(1)(d) of the Rules of Procedure of the Court of Justice, that an appeal must indicate precisely the contested elements of the judgment or order which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal, failing which the appeal or the ground of appeal in question will be dismissed as inadmissible (judgment of 3 March 2022, WV v EEAS, C‑162/20 P, EU:C:2022:153, paragraph 44 and the case-law cited).

18A ground of appeal which is supported by an argument that is not sufficiently clear and precise to enable the Court to exercise its powers of judicial review, in particular because essential elements on which the ground of appeal is based are not indicated sufficiently coherently and intelligibly in the text of the appeal, which is worded in a vague and ambiguous manner in that regard, does not satisfy those requirements and must be declared inadmissible. The Court has also held that an appeal lacking any coherent structure which simply makes general statements and contains no specific indications as to the points of the contested decision which may be vitiated by an error of law must be dismissed as manifestly inadmissible (judgment of 3 March 2022, WV v EEAS, C‑162/20 P, EU:C:2022:153, paragraph 45 and the case-law cited).

19In the present case, although the presentation of the arguments put forward in support of the appeal could have been expressed more clearly in order to facilitate how it is to be understood, the fact remains that that appeal indicates the criticised paragraphs of the judgment under appeal and includes a series of legal arguments relating precisely to clearly identified elements of the judgment under appeal. Consequently, the SRB’s arguments cannot lead to that appeal being declared inadmissible in its entirety.

20In those circumstances, the present appeal must be declared admissible.

Substance

21By the first part of the third ground of appeal and by the first part of his seventh ground of appeal, which it is appropriate to analyse together and at the outset, the appellant submits that the General Court, first, erred in law in finding that the SRB was entitled, in the course of the proceedings, to supplement the statement of reasons for the decision at issue not to reclassify and, second, infringed the principle of correspondence between the administrative complaint and the action, in so far as it had rejected as inadmissible the plea relating to the error of assessment of the appellant’s merits.

First part of third ground of appeal

Arguments of the parties

22By the first part of his third ground of appeal, the appellant submits, in essence, that the General Court erred in law, in paragraphs 238 and 240 to 245 of the judgment under appeal, in finding that the SRB was entitled, in the course of the proceedings, to supplement the statement of reasons for the decision at issue not to reclassify. In that regard, the General Court, first, should have taken account of the exceptional nature of such an option and, second, could not validly have considered that the pieces of information which had been communicated to the appellant on 1 October 2021, in response to his requests for access, constituted the initial elements of a statement of reasons in accordance with the requirement laid down by the case-law to which that court referred. In addition, in the context of the first part of the third ground of appeal, the appellant raises arguments closely linked to the examination of the first part of the seventh ground of appeal, concerning the consequences of the inadequacy of the statement of reasons for the decision at issue not to reclassify on the admissibility of the seventh ground of appeal submitted in the application, alleging, in the alternative, a manifest error of assessment of his merits.

23The SRB contends that the first part of the third ground of appeal is inadmissible and, in any event, unfounded. In that regard, first, the SRB submits that, by that part, the appellant merely reproduces the line of argument alleging infringement of the obligation to state reasons which he had previously relied on before the General Court, thus inviting the Court of Justice to re-examine that argument, which falls outside the jurisdiction of the Court of Justice. Second, the SRB submits that it is apparent from the case-law of the General Court, to which the General Court refers in paragraph 238 of the judgment under appeal, that an inadequate statement of reasons provided in the course of the pre-litigation procedure cannot justify the annulment of the decision concerned where additional information is provided by the AACC in the course of the proceedings and where, before bringing his or her application, the person concerned already had information constituting the initial elements of a statement of reasons. From that point of view, the fact that relevant information was produced only in response to questions put by the General Court is irrelevant.

Findings of the Court

24As regards the admissibility of the first part of the third ground of appeal, it should be recalled that, by that part, the appellant criticises the General Court, in essence, for having accepted that the SRB could supplement, in the course of the proceedings, the statement of reasons for the decision at issue not to reclassify. Accordingly, that argument cannot constitute a mere repetition of the argument put forward in the action before the General Court, since that additional statement of reasons was provided by the SRB after that action was brought. The plea of inadmissibility raised by the SRB in respect of the first part of the third plea must therefore be rejected.

25As to whether the first part of the third plea is well founded, it should be noted, first of all, that the statement of reasons must, in principle, be communicated to the person concerned at the same time as the act adversely affecting him or her and that a failure to state reasons cannot be remedied by the fact that the person concerned learns of the reasons for that decision during the proceedings before the EU Courts. According to settled case-law, it is not in the case of an absence, but of an inadequacy of reasoning, and only in the latter case, that grounds put forward in the course of the proceedings may, in exceptional cases, render devoid of purpose a plea alleging infringement of the obligation to state reasons for the decision concerned (see, to that effect, judgments of 28 February 2008, Neirinck v Commission, C‑17/07 P, EU:C:2008:134, paragraphs 50 and 51, and of 11 June 2020, Commission v Di Bernardo, C‑114/19 P, EU:C:2020:457, paragraphs 51 and 52).

26Therefore, the possibility of remedying, a posteriori, an inadequate statement of reasons, as a procedural defect, by adding reasons in the course of the proceedings, is not absolute. Indeed, such a possibility is limited to ‘exceptional cases’, where it is established that at least the principal reasons that gave rise to adoption of the administrative decision having an adverse effect have been communicated in a clear and unequivocal fashion to its addressee.

27In the present case, the General Court found, in paragraphs 232 and 235 of the judgment under appeal, that the relevant individual ground justifying the decision at issue not to reclassify did not appear clearly in the rejection decision, since the SRB had not taken a position on the level of the appellant’s merits. Specifically, the General Court noted, in paragraphs 233 and 234 of that judgment, that that decision did not expressly specify the individual result, for the appellant, of the comparative examination of the merits of all the eligible members of the temporary staff in succession, even though the AACC should have at least informed him whether his merits had proved to be lower or, as the case may be, equal to those of members of the temporary staff in the same grade as his own who had been reclassified and, in the event that they were equal, specified the alternative criterion or criteria applied which had allowed those members to be differentiated.

28Nevertheless, in paragraphs 239 to 245 of that judgment, the General Court held, in essence, that the appellant could have inferred from the Joint Committee’s opinion, communicated to him on 1 October 2021 in response to his request for access, that it was the inadequacy of his merits which could have been the reason why he was not reclassified, with the result that the information provided by the SRB in the course of the proceedings made it possible to supplement the reasons for the rejection decision and to provide an adequate statement of reasons for the decision at issue not to reclassify.

29In that regard, in the first place, it should be recalled that the requirement to state reasons must, first, make clear and unequivocal the reasoning of the EU institution or body concerned which is the author of the act, so as to enable the persons affected to know the reasons for the measure taken and the competent court to exercise its review, and, second, be assessed in the light of all the circumstances of the case, in particular the content of the act, the nature of the grounds relied on and the interest which the addressees of the act or other persons directly and individually concerned by it may have in receiving explanations. Consequently, it is in the light of the purpose of that requirement and of all the abovementioned factors that the statement of reasons of a decision may be considered either absent or inadequate (judgment of 11 June 2020, Commission v Di Bernardo, C‑114/19 P, EU:C:2020:457, paragraph 54).

30A distinction must therefore be drawn between two different situations, namely, on the one hand, a failure to state reasons for a measure and, on the other, an inadequate statement of reasons for that measure, each of those situations being subject to its own rules. In the absence of a statement of reasons for the contested decision, the institution or body which adopted it cannot remedy such a defect by producing that statement of reasons before the EU Courts, whereas a decision vitiated by a defect resulting from an inadequate statement of reasons may possibly be rectified a posteriori, but only if exceptional circumstances justify it (see, to that effect, judgment of 11 June 2020, Commission v Di Bernardo, C‑114/19 P, EU:C:2020:457, paragraphs 52 and 60).

31Additionally, the absence of a statement of reasons may be found even where the decision in question contains certain elements of reasoning. Thus, a contradictory or unintelligible statement of reasons amounts to a failure to state reasons. The same applies where the statement of reasons in the decision in question is so incomplete that it does not in any way enable the addressee, in the context of its adoption, to understand its author’s reasoning (judgment of 11 June 2020, Commission v Di Bernardo, C‑114/19 P, EU:C:2020:457, paragraph 55 and the case-law cited).

32In the present case, it is common ground that neither the decision at issue not to reclassify, in the form of a table listing the reclassified members of the temporary staff and referring to a comparative examination of the merits of all the eligible members of the temporary staff, nor the rejection decision contained an individual ground justifying the non-reclassification of the appellant.

33As regards the Joint Committee’s opinion, communicated to the appellant in response to his request for access, it is apparent from paragraphs 138, 157, 240 and 388 of the judgment under appeal that that opinion merely states that that committee presented its recommendation not to reclassify the appellant after examining his file and carrying out a comparative analysis of his merits and those of the other eligible members of the temporary staff in the same grade as his own. It follows that the statement of reasons for the Joint Committee’s opinion concerning the comparative examination of merits was formulated in general terms, equivalent from that point of view to those set out in the decision at issue not to reclassify, with the result that that statement of reasons does not make it possible to discern, clearly and unequivocally, whether the appellant’s merits had proved to be lower than or equal to those of the reclassified members of the temporary staff in his grade.

34Consequently, in the absence of the initial elements of a statement of reasons for the decision at issue not to reclassify as regards the particular reasons why the appellant, individually, had to be the subject of such a decision, it must be held that that opinion is vitiated by an ‘absence’ of a statement of reasons, within the meaning of the case-law cited in paragraph 31 of the present judgment, which the body concerned, in the present case the SRB, cannot remedy a posteriori by adding reasons in the course of the proceedings (see, by analogy, judgment of 11 June 2020, Commission v Di Bernardo, C‑114/19 P, EU:C:2020:457, paragraph 60).

35In the second place, even if the General Court was fully entitled to find that the Joint Committee’s opinion did indeed constitute the initial elements of a statement of reasons for the decision at issue not to reclassify, the fact remains that the EU institutions and bodies do not, in principle, have a right to remedy their insufficiently reasoned decisions before the EU Courts and that the latter are under no obligation, in order to assess whether the obligation to state reasons has been satisfied, to take into account additional explanations provided by the institution or body in question during the proceedings (judgment of 11 June 2020, Commission v Di Bernardo, C‑114/19 P, EU:C:2020:457, paragraph 58).

36Accordingly, it is only in ‘exceptional cases’, such as those which characterise the circumstances connected with the organisation of a competition with a large number of candidates, in which the EU institution or body in question is unable, from a practical point of view, to provide each candidate with an adequate statement of reasons in good time, that the statement of reasons may be supplemented by explanations provided by the author of the act during the proceedings (see, to that effect, judgments of 28 February 2008, Neirinck v Commission, C‑17/07 P, EU:C:2008:134, paragraph 57, and of 11 June 2020, Commission v Di Bernardo, C‑114/19 P, EU:C:2020:457, paragraphs 53 and 59).

37In the present case, the General Court, as the appellant correctly submits, did not in any way verify whether the SRB could rely on the existence of such exceptional circumstances, within the meaning of the case-law cited in paragraph 30 of the present judgment.

38In that regard, it should be added that the SRB has not even claimed, let alone demonstrated, that it would not have been in a position, from a practical point of view, to provide, in good time, an adequate statement of reasons for each member of the temporary staff not reclassified. In any event, even if the Joint Committee’s opinion, communicated to the appellant in response to his request for access, constituted the initial elements of a statement of reasons for the decision at issue not to reclassify, the act of sending a detailed reply to the appellant following his complaint before that committee or, a fortiori, in the rejection decision, would not have caused the SRB an excessive workload, in so far as the comparative examination of the complaints concerned only the appellant and two other members of the temporary staff in the same grade as his own (see, by analogy, judgment of 28 February 2008, Neirinck v Commission, C‑17/07 P, EU:C:2008:134, paragraph 58).

39Furthermore, the ‘exceptional cases’ referred to in paragraph 36 of the present judgment, cover situations in which the EU institution or body in question is not in a position, from a practical point of view, to provide each person concerned with an adequate statement of reasons in good time. In the present case, it has in no way been established that it was impossible in practice for the SRB to state to the requisite legal standard the reasons for the decision at issue not to reclassify. Accordingly, the mere assertions made by the SRB in its written pleadings at first instance or in response to the questions put by the General Court cannot compensate for the inadequacy of the statement of reasons which vitiated that decision at the outset.

40In the third place, it should be noted that the General Court also failed to ascertain whether its decision to accept, exceptionally, that the SRB could supplement the statement of reasons for that decision in the course of the proceedings was likely to infringe the appellant’s rights of defence and, in particular, to infringe the principle of equality of arms.

41Even where the EU courts find that there is an ‘exceptional case’ in which they may authorise the institution or body in question to supplement the statement of reasons for the act having an adverse effect, such authorisation is not automatic in nature. In view of the imbalance between the parties which late communication of the grounds for that act is liable to create, the EU Courts must still ascertain whether the decision to authorise the production of an additional statement of reasons is not liable to infringe the rights of the defence. In that regard, it is incumbent on the Court to take into account the stage of the procedure at which the explanations were provided by the EU institution or body concerned and to ensure that the person concerned was actually able to respond to them (see, to that effect, judgment of 11 June 2020, Commission v Di Bernardo, C‑114/19 P, EU:C:2020:457, paragraph 59).

42In the present case, by deciding that the SRB should be authorised to supplement the statement of reasons for the decision at issue not to reclassify essentially on the ground that the appellant had ‘been able’ to infer from a preparatory document for that decision what ‘could’ be the cause of his failure to be reclassified, the General Court did not comply with those principles and, in particular, did not ensure that the appellant’s rights of defence were not infringed.

43It follows from all of the foregoing that the General Court therefore erred in holding that such an additional statement of reasons could be provided by the SRB in the course of the proceedings. In holding that the decision at issue not to reclassify was not vitiated by an inadequate statement of reasons, the General Court therefore erred in law.

44It follows that the first part of the third ground of appeal is well founded.

The first part of the seventh ground of appeal

Arguments of the parties

45By the first part of his seventh ground of appeal, relating to paragraphs 365 to 373 of the judgment under appeal, the appellant alleges, in essence, that the General Court infringed the principle of correspondence between the administrative complaint and the action, in so far as it rejected as inadmissible his plea alleging an error of assessment of his merits by the SRB.

46In support of that part, the appellant submits, first, that the arguments put forward in the context of that plea in support of his action at first instance corresponded to those set out in his complaint. He also points out that, according to the case-law of the General Court, in so far as the facts relied on and the line of argument put forward remain the same, the applicant may alter, before the General Court, the title of the plea which he raised in his complaint, which plea cannot therefore be declared inadmissible on that basis. Second, since the appellant lodged his complaint alone and reproduced the same arguments in his action at first instance, the General Court interpreted the principle of correspondence in a particularly strict manner. By contrast, the General Court allowed the SRB to provide the individual ground for not reclassifying the appellant only at the contentious stage of the procedure. In the present case, the ground of appeal alleging an error of assessment of the appellant’s merits was put forward in the alternative by him, in the event that the decision at issue not to reclassify was in fact based on that appraisal. It was only in the light of the additional statement of reasons provided by the SRB in the course of the proceedings that it became apparent that that statement of reasons was actually based on that appraisal.

47The SRB contends that the first part of the seventh ground of appeal is inadmissible on the ground that, by that part, the appellant is in fact asking the Court of Justice to re-examine the plea already raised before the General Court. In its view, that part of the seventh ground of appeal is, in any event, unfounded.

Findings of the Court

48As regards the admissibility of the first part of the seventh ground of appeal, by which the appellant alleges that the General Court infringed the principle of correspondence between the administrative complaint and the action, it should be noted that such a ground could not have been relied on in the action at first instance, since that correspondence was examined by the General Court only in the judgment under appeal. The plea of inadmissibility raised by the SRB in respect of that part must therefore be rejected.

49As regards the merits of that first part, it is apparent from the case-law of the Court that, in order for a pre-litigation procedure to achieve its objective, namely to enable an amicable settlement of differences, it is necessary, first, that the appointing authority be in a position to know with sufficient precision the criticisms formulated by the persons concerned with regard to the decision adversely affecting him or her. Second, the administration must not interpret complaints in a restrictive manner, but must, on the contrary, examine them with an open mind. It follows that, in actions brought by officials, although the relief sought in the application to the EU Courts must be the same as that set out in the complaint and although the application may only contain heads of claim based on the same legal basis as that relied on in the complaint, those heads of claim may, in the contentious stage of the procedure, be developed by the submission of pleas and arguments not necessarily appearing in the complaint, as long as they are closely linked to it (see, to that effect, judgment of 23 April 2002, Campogrande v Commission, C‑62/01, EU:C:2002:248, paragraphs 33 and 34).

50Thus, since the pre-litigation procedure is informal in character and the parties concerned are generally acting without the assistance of a lawyer at that stage, Article 91 of the Staff Regulations is not intended to be strictly and definitively binding for the purposes of the possible contentious stage of the procedure, provided always that neither the legal basis nor the subject matter of the complaint is changed in the action brought (see, to that effect, judgments of 7 May 1986, Rihoux and Others v Commission, 52/85, EU:C:1986:199, paragraph 12, and of 23 April 2002, Campogrande v Commission, C‑62/01 P, EU:C:2002:248, paragraph 35).

51In the present case, it is common ground that the appellant’s complaint against the decision at issue not to reclassify was drafted by the appellant alone, without him expressly formulating a ground of challenge alleging an error in the SRB’s assessment of his merits. At that stage, the appellant lodged his complaint even though he was only aware of the list of the reclassified members of the temporary staff. As the appellant correctly submits in his appeal, in that complaint, while he was unaware of the reasons why his professional experience had been deemed insufficient, the appellant concluded at that time that he had been under-evaluated by the SRB, by comparing, for that purpose, his situation with that of other colleagues in the same grade as his own who had been reclassified. The same arguments were reproduced identically in the sixth plea in law of the action at first instance. In those circumstances, the plea alleging an error in the assessment of the appellant’s merits must be regarded as being sufficiently closely linked to the complaint which he had lodged in the pre-litigation procedure.

52Moreover, it should be noted that, since it is apparent from paragraphs 232 to 235 of the judgment under appeal that, even after the rejection decision, the appellant still did not have all the relevant information enabling him to ascertain the individual ground supporting the decision at issue not to reclassify, it is not certain, a fortiori, that, at complaint stage, he was in a position to rely on that ground (see, by analogy, judgment of 25 June 2020, Schneider v EUIPO, C‑116/19 P, EU:C:2020:501, paragraph 36).

53Furthermore, the first part of the seventh ground of appeal must be analysed in the light of a specific procedural situation, in which the General Court allowed the administration to provide additional reasons for the decision at issue not to reclassify, without ascertaining to the requisite legal standard whether such authorisation would result in an infringement of the appellant’s rights of defence. Such an infringement may be found where the additional reasons provided by the administration have the effect of altering the very essence of the act having an adverse effect, thus obliging its addressee to adapt its line of argument in a substantial manner in order to respond adequately to the new arguments.

54It follows from all the foregoing that, by rejecting as inadmissible the appellant’s plea in law alleging an error of assessment of his merits by the SRB, the General Court erred in law.

55Accordingly, it follows that the first part of the seventh ground of appeal is well founded.

56In the light of all those considerations, the first part of the third ground of appeal and the first part of the seventh ground of appeal must be upheld and the judgment under appeal must be set aside, without it being necessary to examine the other parts of the third and seventh grounds of appeal and the other grounds of appeal.

The action before the General Court

57In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, the Court of Justice may, after setting aside a decision of the General Court, refer the case back to the General Court for judgment or, where the state of the proceedings so permits, itself give final judgment in the matter.

58Since the state of the proceedings so permits, it is appropriate to give judgment on the claims in the action for annulment of the decision at issue not to reclassify.

59It must be held, in that regard, that, by failing, in that decision, to state whether the appellant’s merits had proved to be lower or, as the case may be, equal to those of other members of the temporary staff in the same grade as his own who had been reclassified or, in the event of equality between the appellant and other members of the temporary staff, to specify the alternative criterion or criteria which had been applied for the purposes of differentiating between those members, the SRB failed to fulfil its obligation to state reasons. That decision should therefore be annulled on that ground.

Costs

60Under Article 184(2) of the Rules of Procedure, where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to costs.

61Under Article 138(1) of those rules, which apply to the procedure on appeal by virtue of Article 184(1) of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

62In the present case, since the appellant has applied for costs and the SRB has been unsuccessful, the SRB must be ordered to bear its own costs and to pay those incurred by the appellant both in the present appeal and in the proceedings at first instance.

Operative part

On those grounds, the Court (Seventh Chamber) hereby:

1.Sets aside the judgment of the General Court of the European Union of 20 September 2023, PB v SRB (T‑293/22, EU:T:2023:577);

2.Annuls the decision of the Single Resolution Board (SRB) of 16 July 2021 not to reclassify PB at the end of the reclassification exercise for 2021;

3.Orders the SRB to bear, in addition to its own costs, those incurred by PB in connection with both the present appeal and the proceedings at first instance.