JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

22 September 2015

Juha Tapio Silvan

v

European Commission

‛Civil service — Officials — 2013 promotion procedure — Decision not to promote the applicant — Articles 43 and 45(1) of the Staff Regulations — Commission GIPs — Plea of illegality — Comparison of merits — Account taken of staff reports — Lack of marks or analytical assessments — Wording of comments’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Silvan essentially seeks annulment of the decision of the appointing authority of the European Commission not to promote him to grade AST 10 in the 2013 promotion procedure.

Held:

The action is dismissed. Mr Silvan is to bear his own costs and is ordered to pay the costs incurred by the European Commission.

Summary

1. Officials — Promotion — Consideration of comparative merits — Procedures — Administration’s discretion — Establishment of a system based on assessors’ comments, without recourse to marks or analytical assessments — Lawfulness — Conditions

   (Staff Regulations, Arts 43 and 45)

2. Officials — Promotion — Consideration of comparative merits — Prior consideration of files within each directorate-general — Lawfulness — Subsequent consideration a matter for the promotions committee then the appointing authority — Scope

   (Staff Regulations, Arts 21(1) and 45(1))

1.  The appointing authority has the power to undertake a consideration of comparative merits according to the procedure or method which it considers most appropriate. There is no obligation for the institution concerned to adopt a particular appraisal and promotion system, given the wide margin of discretion which it has to implement the objectives of Article 45 of the Staff Regulations in accordance with its own needs for the organisation and management of its staff.

   The discretion thereby conferred on the appointing authority is, however, circumscribed by the need to undertake a consideration of comparative merits with care and impartiality, in the interests of the service and in accordance with the principle of equal treatment. Accordingly, that consideration must be conducted on the basis of comparable sources of information.

   While it cannot, admittedly, be argued that Article 43 of the Staff Regulations requires the use of an analytical and numerical assessment system, the obligation to conduct a comparison of merits on a basis of equality and using comparable sources of information, which is inherent in Article 45 of the Staff Regulations, requires a procedure or method capable of neutralising the subjectivity resulting from assessments made by different assessors.

   Any assessment of the merits of officials in the context of the appraisal procedure generally and inherently involves a certain risk that the subjectivity of the various assessors will lead to heterogeneous results. In that regard, in order for a comparative consideration for the purposes of promotion to comply with the requirements laid down in Article 45 of the Staff Regulations, it is necessary and sufficient for the institutions to circumscribe the heterogeneous nature of the assessments, confining it as far as possible to the risk inherent in any appraisal procedure.

   (see paras 24-26, 34)

   See:

   Judgment of 1 July 1976 in de Wind v Commission, 62/75, EU:C:1976:103, para. 17

   Judgments of 16 May 2006 in Magone v Commission, T‑73/05, EU:T:2006:127, para. 28; 19 October 2006 in Buendía Sierra v Commission, T‑311/04, EU:T:2006:329, paras 131 and 172 and the case-law cited therein, and 14 February 2007 in Simões Dos Santos v OHIM, T‑435/04, EU:T:2007:50, para. 132

   Judgment of 15 January 2014 in Stols v Council, T‑95/12 P, EU:T:2014:3, para. 32

   Judgments of 14 July 2011 in Praskevicius v Parliament, F‑81/10, EU:F:2011:120, para. 53; 28 September 2011 in AC v Council, F‑9/10, EU:F:2011:160, para. 16, and 18 March 2015 in Ribeiro Sinde Monteiro v EEAS, F‑51/14, EU:F:2015:11, para. 41, on appeal before the General Court of the European Union, Case T‑278/15 P

2.  Article 45(1) of the Staff Regulations requires the appointing authority to consider, prior to any promotion decision, the comparative merits of all officials eligible for promotion. Specifically, as part of its consideration, the appointing authority may be assisted by the administrative services at the various hierarchical levels, in accordance with the principles inherent in the operation of any hierarchical administrative structure, embodied in the first paragraph of Article 21 of the Staff Regulations, under which an official, whatever his rank, must assist and tender advice to his superiors. However, prior consideration, within each directorate-general, of the personal files of officials eligible for promotion must not take the place of the comparative consideration which must be undertaken subsequently by the promotions committee, where provision is made for such consideration, and then by the appointing authority. In particular, the appointing authority cannot be allowed simply to consider the merits of those officials who are placed at the top of the lists prepared by the various departments or directorates-general, since that would render consideration of the comparative merits of all the officials eligible for promotion redundant.

   (see para. 48)

   See:

   Judgments of 30 November 1993 in Tsirimokos v Parliament, T‑76/92, EU:T:1993:106, para. 17; 8 May 2001 in Caravelis v Parliament, T‑182/99, EU:T:2001:131, para. 34, and 3 February 2005 in Heurtaux v Commission, T‑172/03, EU:T:2005:34, para. 40