JUDGMENT OF THE CIVIL SERVICE TRIBUNAL
(Third Chamber)

28 September 2011

Case F-9/10

AC

v

Council of the European Union

(Civil service – Promotion – 2009 promotion exercise – Consideration of comparative merits – Manifest error of assessment)

Application:      brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which AC seeks, essentially, annulment of the Council’s decision not to include him in the list of officials promoted to grade AD 13 in the 2009 promotion exercise.

Held:      The action is dismissed. The applicant is ordered to pay the entirety of the costs.

Summary

1.      Officials – Promotion – Consideration of comparative merits

(Staff Regulations, Art. 45)

2.      Officials – Promotion – Consideration of comparative merits

(Staff Regulations, Art. 45)

3.      Officials – Promotion – Consideration of comparative merits

(Staff Regulations, Art. 45)

4.      Officials – Promotion – Consideration of comparative merits

(Staff Regulations, Art. 45)

5.      Officials – Promotion – Complaint by a candidate not promoted

(Staff Regulations, Art. 25, second para., and Art. 90(2))

6.      Officials – Promotion – Consideration of comparative merits

(Staff Regulations, Art. 45)

7.      Officials – Promotion – Consideration of comparative merits

(Staff Regulations, Art. 45)

8.      Officials – Administration’s duty to have regard for the interests of officials

(Art. 21, third para., EC; Charter of Fundamental Rights of the European Union, Art. 41(4))

1.      The broad discretion enjoyed by the administration when considering the comparative merits of officials eligible for promotion is circumscribed by the need to undertake that consideration with care and impartiality, in the interest of the service and in accordance with the principle of equal treatment. In practice, that consideration must be undertaken on a basis of equality, using comparable sources of information.

(see para. 14)

See:

15 September 2005, T-132/03 Casini v Commission, para. 53

2.      There is no obligation for an institution 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.

(see para. 16)

See:

14 February 2007, T-435/04 Simões Dos Santos v OHIM, para. 132

3.      In considering the comparative merits of candidates to be taken into consideration in a decision on promotion under Article 45 of the Staff Regulations, the appointing authority has a wide discretion and in this connection the review of the judicature must be confined to determining whether, regard being had to the factors and reasons that led the administration to its assessment, it remained within unimpeachable bounds and did not manifestly misuse its power. The Union court cannot therefore substitute its assessment of the qualifications and merits of officials for that of the appointing authority.

In order to preserve the effectiveness of the discretion which the legislature saw fit to confer on the appointing authority in connection with promotion, the court may not annul a decision solely on the ground that it considers there to be evidence raising plausible doubts about the appointing authority’s assessment, or proving that there has been an error of assessment. Annulment for a manifest error of assessment is possible only where it is clear from the documents in the case that the appointing authority exceeded the confines of its discretion.

It is therefore not for the Union court to re-examine in detail all the files of the candidates eligible for promotion in order to make sure that it agrees with the conclusion reached by the appointing authority, since, if it undertook such an exercise, it would exceed its powers of judicial review by substituting its own assessment of the merits of the candidates eligible for promotion for that of the appointing authority.

(see paras 22-24)

See:

Casini v Commission, para. 52

4.      Article 45(1) of the Staff Regulations allows the institutions a certain freedom to decide on the factual elements to be taken into account when considering the comparative merits of officials eligible for promotion, since it does not lay down an exhaustive list on the subject. In providing that the appointing authority must ‘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 […] and, where appropriate, the level of responsibilities exercised by them’, Article 45(1) of the Staff Regulations makes it clear, by using the term ‘in particular’, which are the three main factual elements that must be taken into account when considering the comparative merits of candidates. It does not, however, preclude the taking into account of other factual elements also capable of giving an indication of the merits of officials eligible for promotion. That finding is not called into question by the fact that, as regards promotion, the appointing authority may take into account candidates’ age and seniority in grade or in the service only as a secondary consideration, where the officials eligible for promotion prove to have equal merits particularly in the light of the three elements expressly referred to in Article 45(1) of the Staff Regulations. Age and seniority are not in themselves capable of giving any indication of the merits of candidates for promotion. That is why they may be taken into account only in order to decide between candidates with equivalent merits.

The administration enjoys a certain discretion when it comes to the respective importance it ascribes to each of the three factual elements mentioned in Article 45 of the Staff Regulations that are to be taken into account when considering the comparative merits of officials eligible for promotion, since the provisions of that article do not preclude the allocation of different weightings to those criteria where justified.

(see paras 25, 65)

See:

5 May 2010, F-53/08 Bouillez and Others v Commission, para. 50

5.      The appointing authority is not under an obligation to provide unsuccessful candidates with reasons for its decisions on promotion and that also applies to that authority’s decisions to reject a candidature. It is required, on the other hand, to provide a statement of grounds for its decision rejecting a complaint lodged pursuant to Article 90(2) of the Staff Regulations by a candidate who has not been promoted, the statement of grounds for such a decision being deemed to be the same as the statement of reasons for the decision against which the complaint was directed.

(see para. 29)

See:

29 May 1997, T-6/96 Contargyris v Council, para. 147

6.      In the light of the wording of Article 45 of the Staff Regulations, which states that ‘[w]hen considering comparative merits, the Appointing Authority shall in particular take account of […] the use of languages in the execution of their duties’, it is not a breach of that article to include in the assessment of officials’ merits only languages the use of which brings sufficiently substantial added value, having regard to the actual needs of the service, to appear necessary for the successful functioning of that service.

(see para. 61)

7.      Where it applies to a tribunal, there are two aspects to the requirement of impartiality. In the first place, the tribunal must be subjectively impartial, that is, none of its members must show bias or personal prejudice, there being a presumption of personal impartiality in the absence of evidence to the contrary. In the second place, the tribunal must be objectively impartial, that is to say, it must offer guarantees sufficient to exclude any legitimate doubt in this respect.

However, it should be pointed out that since the promotion procedure for officials of the institutions is not judicial but administrative, the institution cannot be regarded as a ‘tribunal’. Consequently, the institutions cannot be expected to comply with all the features which that case-law requires of a ‘tribunal’ where, as part of a promotion procedure, they compare the merits of officials eligible for promotion.

In any event, although the Union judicature has accepted that the administration may be under an ‘obligation of impartiality’, it should be remembered that decisions on promotion are adopted, in particular, on the basis of prior knowledge of the merits of the officials eligible for promotion which their hierarchical superiors have acquired in the course of their professional relationship with them. The aim in this situation is therefore not so much to preclude any predetermined opinion, whether negative or otherwise, as to ensure that the comparison of the merits of the officials eligible for promotion is objective in order, first, to avoid arbitrary decisions and discrimination, and, second, to ensure equal treatment for all candidates for promotion.

(see paras 113-115)

See:

19 February 2009, C-308/07 P Gorostiaga Atxalandabaso v Parliament, para. 46

19 March 1998, T-74/96 Tzoanos v Commission, para. 339; 10 June 2008, T-282/03 Ceuninck v Commission, para. 73

8.      The institutions are under a duty to have regard for the welfare of their officials and therefore to address to an official an individual decision worded in a language of which he has a thorough knowledge. The fact that documents sent by the administration to one of its officials are written in a language other than that official’s mother tongue, or the first foreign language he has chosen, does not constitute an infringement of the rights of that official if he has an understanding of the language used by the administration which enables him effectively and easily to acquaint himself with the content of the documents in question.

That finding is not called into question by the argument that an official has the right, under Article 21, third paragraph, EC and Article 41(4) of the Charter of Fundamental Rights of the European Union, to receive replies to letters he sends in the language of the initial correspondence.

(see paras 116, 119)

See:

23 March 2000, T-197/98 Rudolph v Commission, para. 46; 17 May 2006, T-95/04 Lavagnoli v Commission, para. 48

3 February 2011, T-205/07 Italy v Commission, paras 54 and 55