JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

4 July 2007

Case T-502/04

Stéphane Lopparelli

v

Commission of the European Communities

(Civil service – Officials – Promotion – 2003 promotions procedure – Award of promotion points)

Application: for annulment of the decision awarding promotion points to the applicant in respect of the 2003 promotions procedure and of the decision not to enter his name on the list of officials promoted to grade A5 under that procedure.

Held: The action is dismissed. The parties are ordered to bear their own costs.

Summary

1.      Officials – Promotion – Consideration of comparative merits – Arrangements

(Staff Regulations, Arts 43 and 45)

2.      Officials – Promotion – Consideration of comparative merits – Arrangements

(Staff Regulations, Art. 45)

1.      In the promotion system introduced by an internal regulation of the Commission, which is based on the quantification of merits and is characterised by the annual award to officials of different types of points and by the need, from the 2003 procedure onwards, to attain a certain threshold corresponding to a particular points tally in order to be promoted, the transitional measure under which a very small number of priority points was automatically awarded on the basis of seniority in grade in the 2003 procedure is justified by an overriding need associated with the transition to a new promotion system, and is also not disproportionate in that it does not, in itself, make seniority in grade a decisive factor. That measure may not, therefore, be regarded as exceeding the powers which the appointing authority has to introduce, on a transitional basis, changes to the rules governing the promotion of officials, and it is thus not contrary to Articles 43 and 45 of the Staff Regulations.

(see paras 51-54)

2.      In the promotion system introduced by an internal regulation of the Commission, which is based on the quantification of merits and is characterised first, by the annual award to officials of different types of points, some of them – ‘merit points’ – resulting from the conversion of the mark awarded to the official in his periodical report under Article 43 of the Staff Regulations, and others – ‘priority points’ – being designed to identify the most deserving officials, in order to increase their chances of promotion, and second, by the need to attain a certain threshold corresponding to a particular points tally in order to be able to be promoted, neither the existence of the promotion threshold, nor the existence of a quota of priority points to be awarded within each directorate-general, nor the setting of a target average number of merit points to be awarded is such as to prevent a consideration of comparative merits, contrary to Article 45 of the Staff Regulations, to the principle of equal treatment and to the principle of entitlement to reasonable career prospects. On the contrary, it appears that those mechanisms are likely to encourage the genuine expression of a representative assessment of officials’ merits while still ensuring that assessments throughout the Commission’s directorates-general are as comparable as possible and therefore that the officials in question are treated equally. It is important to note that in practice the consideration of comparative merits must be undertaken on a basis of equality, using comparable sources of information.

The quota of priority points in each directorate-general fulfils the general purpose of that type of points, which is to identify the most deserving officials in order to increase their chances of promotion. Limiting the number of points available is likely to prompt the directorates-general to make that selection. That purpose is itself compatible with Article 45 of the Staff Regulations and with the principles of equal treatment and entitlement to reasonable career prospects. The fact that the award of those points in a particular case may mean that only one official in a directorate-general is promoted is a logical consequence of that purpose of selection. Moreover, it is also logical and proportionate for a small directorate-general to have only a few officials obtaining that category of points compared with directorates-general which have a larger number of officials eligible for promotion. In any event, the argument that quotas of priority points penalise small directorates-general because they can promote only one official is irrelevant, since the number of such priority points awarded to an official is not, in itself, decisive for attaining the promotion threshold, given that other types of priority points may be awarded by the appointing authority in order to enable the official to reach that threshold.

Lastly, the system introduced is not contrary to the spirit or letter of Article 45 of the Staff Regulations in that there is no comparison of the merits of officials from different directorates-general at the time when the priority points are awarded within each directorate-general, since the director-general cannot compare in advance the performances achieved in his directorate-general with those of officials in the other directorates-general. Firstly, the variety of the tasks performed by officials in different directorates-general in an institution like the Commission means that the responsibilities borne by officials on the same grade within the institution are not equivalent and their merits are therefore difficult to compare. Because a limited number of priority points is available in each directorate-general, each official eligible for promotion is competing with all the other officials in his directorate or department for a limited number of points for promotion purposes. Secondly, the award of priority points within each directorate-general is given concrete expression in the drawing up of a merit list, which does not definitively fix the order of promotion of officials, whether or not they are on the list, since the appointing authority decides which officials are to be promoted in each grade on the basis of the proposals of the promotion committees which accompany that list, but which are not binding on the appointing authority. In accordance with Article 45 of the Staff Regulations, the appointing authority decides to promote an official after consideration of the comparative merits of all the officials in the institution who are eligible for promotion on that list. It thus respects the principle that officials should have equal treatment and entitlement to reasonable career prospects according to their grade.

(see paras 111-112, 147-152)

See: T‑76/92 Tsirimokos v Parliament [1993] ECR II‑1281, para. 21; T‑157/98 Oliveira v Parliament [1999] ECR-SC I‑A‑163 and II‑851, para. 35