JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
2 October 2024 (*)
( Civil service – Officials – Promotion – 2017 promotion exercise – Decision not to promote the applicant to grade AD 6 – Article 45 of the Staff Regulations – Implementation of a judgment of the General Court – Right to be heard – Obligation to state reasons – Principle of impartiality – Manifest error of assessment )
In Case T‑11/23,
XH, represented by K. Górny, lawyer,
applicant,
v
European Commission, represented by L. Hohenecker, A. Sauka and L. Vernier, acting as Agents,
defendant,
THE GENERAL COURT (Fourth Chamber),
composed of R. da Silva Passos (Rapporteur), President, S. Gervasoni and T. Pynnä, Judges,
Registrar: V. Di Bucci,
having regard to the written part of the procedure,
having regard to the request for convening a hearing submitted by the applicant and having decided, nevertheless, to rule without an oral phase of the procedure,
gives the following
Judgment
1        By her action based on Article 270 TFEU, the applicant, XH, seeks, in essence, first, the annulment of the decision of the European Anti-Fraud Office (OLAF) of 31 May 2022 by which her name was not included in the list of officials promoted to grade AD 6 under the 2017 promotion exercise, as published in Administrative Notices
No 25-2017 of 13 November 2017 (‘the decision of 31 May 2022 not to promote her’/ ‘the decision of 31 May 2022 not to promote the applicant’) and, secondly, compensation for the damage which she claims to have suffered.
I.      Background to the dispute and events subsequent to the bringing of the action
2        The applicant is an OLAF official. She was recruited and appointed to grade AD 5 in July 2014.
3        On 3 April 2017, by a notice published in Administrative Notices
No 13-2017, the European Commission announced the opening of the 2017 promotion procedure. That announcement was followed, on 19 June 2017, by the publication of the list of officials proposed for promotion by the Director-General of OLAF for 2017. That list did not include the applicant’s name.
4        On 26 June 2017, the applicant challenged, before the Joint Promotion Committee (‘the JPC’), the decision of the Director-General of OLAF not to include her name in the list of officials proposed for promotion for 2017.
5        On 27 August 2017, a member of the JPC accessed the applicant’s interim probation report.
6        On 21 September 2017, a joint working group (‘the JWG’) issued a draft opinion, stating that the applicant should not be recommended for promotion. That draft opinion was followed by an opinion of the JPC of 27 October 2017, in which the JPC did not recommend the applicant for promotion to the competent appointing authority.
7        On 13 November 2017, the Commission published a notice in Administrative Notices
No 25-2017. That notice contained the list of officials promoted in the 2017 promotion exercise. The applicant’s name was not on that list (‘the 2017 decision not to promote her’/‘the 2017 decision not to promote the applicant’).
8        On 18 January 2018, the Commission’s Directorate-General for Human Resources and Security informed the applicant that the interim probation report and her comments on that report had been removed from her personal file.
9        On 10 February 2018, the applicant lodged a complaint against the 2017 decision not to promote her. By Decision R/96/18 of 7 June 2018, the competent appointing authority rejected that complaint.
10      On 13 November 2018, the applicant was promoted to grade AD 6 in the 2018 promotion exercise, with effect from 1 January 2018.
11      On 4 February 2019, the applicant brought an action, registered as Case T‑511/18, seeking, on the basis of Article 270 TFEU, the annulment of the 2017 decision not to promote her.
12      That action was upheld in part by the judgment of 25 June 2020, XH v Commission (T‑511/18, EU:T:2020:291), which annulled the 2017 decision not to promote her, on the ground that the competent appointing authority had improperly taken into account, for the purposes of the consideration of the comparative merits carried out in the 2017 promotion exercise, the applicant’s interim probation report and end-of-probation report.
13      On 27 July 2020, in the course of enforcing the judgment of 25 June 2020, XH v Commission (T‑511/18, EU:T:2020:291), the Director of Directorate B of the Directorate-General for Human Resources and Security adopted decision Ares (2020)3954283, by which he decided not to promote the applicant to grade AD 6 under the 2017 promotion exercise (‘the decision of 27 July 2020 not to promote her’).
14      On 26 October 2020, the applicant filed a complaint under Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) against the decision of 27 July 2020 not to promote her, registered under reference R/495/20. On 10 February 2021, the Director of Directorate HR.E of the Directorate-General for Human Resources and Security upheld that complaint and annulled that decision on the ground that the authority which had adopted it was not the competent appointing authority.
15      On 30 April 2021, the Director-General of OLAF adopted decision Ares(2021)2890505, by which the applicant was not promoted to grade AD 6 under the 2017 promotion exercise (‘the decision of 30 April 2021 not to promote her’ / ‘the decision of 30 April 2021 not to promote the applicant’).
16      On 15 July 2021, the applicant filed a complaint under Article 90(2) of the Staff Regulations against the decision of 30 April 2021 not to promote her, registered under reference R/382/21.
17      By decision of 15 November 2021, the Director-General of OLAF decided to annul that decision, asking the competent service to re-examine the applicant’s case on the ground that the 2017 promotion exercise had to be re-examined from the stage at which the JWG was consulted by the JPC, in accordance with Article 1(7) of the Rules of Procedure for the Joint Promotion Committees (‘Rules of Procedure for the JPC’).
18      On 31 May 2022, the Director-General of OLAF adopted the decision of 31 May 2022 not to promote the applicant, by which he decided not to include the applicant’s name in the list of officials promoted to grade AD 6 under the 2017 promotion exercise. On 26 August 2022, the applicant filed a complaint against that decision, registered under reference R/404/22.
19      On 13 November 2022, the applicant was promoted to grade AD 7 in the 2022 promotion exercise, with effect from 1 January 2022.
20      On 3 January 2023, the Director-General of OLAF, as the competent appointing authority, rejected complaint R/404/22 of 26 August 2022 and confirmed the decision of 31 May 2022 not to promote her (‘the decision rejecting the complaint’).
21      On 18 January 2022, the applicant brought a second action, registered as Case T‑522/21, seeking, on the basis of Article 270 TFEU, first, the annulment of Commission Decision D/386/20 of 24 November 2020, refusing to amend her personal file, secondly, the annulment of the Commission decision published in Administrative Notices
No 32-2020 of 12 November 2020 not to include her name in the list of officials promoted in 2020 and, thirdly, compensation for the damage which she allegedly suffered.
22      That action was dismissed by order of 19 December 2022, XH v Commission (T‑522/21, not published, appeal pending, EU:T:2022:867).
23      On 1 June 2022, the applicant brought a third action on the basis of Article 270 TFEU, by which she sought the annulment of the Commission’s decision published in Administrative Notices
No 31-2021 of 10 November 2021 not to include her name in the list of officials promoted as part of the 2021 promotion exercise and compensation for the damage she claimed to have suffered.
24      That action was dismissed by judgment of 7 February 2024, XH v Commission (T‑353/22, not published, appeal pending, EU:T:2024:63).
II.    Forms of order sought
25      The applicant claims that the Court should:
–        annul the decision rejecting the complaint;
–        order the Commission to pay her EUR 25 000 by way of compensation for the non-material damage suffered and EUR 50 000 per promotion exercise by way of compensation for the material damage suffered;
–        order the Commission to pay the costs.
26      The Commission contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
III. Law
A.      The oral part of the procedure
27      With regard to the applicant’s letter of 10 December 2023, lodged at the Court Registry, it should be recalled that it follows from Article 106(3) of the Rules of Procedure of the General Court that, in the absence of a request for a hearing stating the reasons why a main party wishes to be heard, the General Court may, if it considers that it has sufficient information available to it, rule on the action without an oral part of the procedure.
28      In that regard, the Practice Rules for the implementation of the Rules of Procedure (‘the PRI’) state, in point 142, that a main party who wishes to present oral argument must submit a reasoned request for a hearing within three weeks after service on the parties of notification of the close of the written part of the procedure. That point specifies that that reasoning must be based on a real assessment of the benefit of a hearing to the party in question and must indicate the elements of the case file or arguments which that party considers it necessary to develop or refute more fully at a hearing. It states that, in order to better to ensure that the arguments remain focused at the hearing, ‘the statement of reasons should preferably not be in general terms merely referring, for example, to the importance of the case’. Point 143 of the PRI provides that, if no reasoned request is submitted by a main party within the prescribed time limit, the Court may decide to rule on the action without an oral part of the procedure.
29      It thus follows from Article 106 of the Rules of Procedure and from points 142 and 143 of the PRI that, if no request for a hearing is made, or if a request for a hearing is made without a statement of reasons, the Court may decide to rule on the action without an oral part of the procedure if it considers that it has sufficient information available to it from the material in the case file (judgment of 7 December 2022, PNB Banka v ECB, T‑330/19, appeal pending, EU:T:2022:775, paragraph 80).
30      In the present case, it is apparent from the first point of the letter of 10 December 2023 that the applicant is requesting ‘measures of inquiry and witness interview[s]’. The final point of that letter states that the applicant does not request a hearing unless ‘parties are granted the opportunity to conduct witness interviews’.
31      Such a ground is akin to a request for the examination of witnesses in accordance with Articles 93 and 94 of the Rules of Procedure. Thus, it does not relate to an element of the case whose content has already been placed in the file and could be developed or debated at a hearing for the purposes of Article 106 of the Rules of Procedure. The request for a hearing contained in the letter of 10 December 2023 therefore aims to request further investigation and does not meet the reasoning requirements prescribed by the PRI and cited in paragraphs
28 and 29 above (see, to that effect, judgment of 7 February 2024, XH v Commission, T‑353/22, not published, under appeal, EU:T:2024:63, paragraph 23).
32      Under those circumstances, the Court, finding that it has sufficient information available to it, and for reasons relating to the sound administration of justice, has decided to rule on the action without an oral part of the procedure, in accordance with Article 106(3) of the Rules of Procedure.
B.      The application for annulment
1.      The subject matter of the application for annulment
33      As a preliminary point, it should be noted that the applicant seeks annulment of the decision rejecting the complaint, without however referring to the decision of 31 May 2022 not to promote her. In that regard, it should be recalled that, according to settled case-law, claims for annulment formally directed against a decision rejecting a complaint, where that decision has no independent content, have the effect of bringing before the General Court the act against which the complaint was submitted (see, to that effect, judgments of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 8, and of 21 September 2011, Adjemian and Others v Commission, T‑325/09 P, EU:T:2011:506, paragraph 33).
34      In the present case, since the decision rejecting the complaint merely confirms the decision of 31 May 2022 not to promote the applicant, it lacks any independent content. Thus, the claim for annulment must be regarded as being directed against the decision of 31 May 2022 not to promote the applicant, the legality of which must be examined by also taking into consideration the statement of reasons contained in the decision rejecting the complaint.
2.      Substance
35      In support of her application for annulment, the applicant raises, in essence, two pleas in law. The first plea alleges, in essence, a failure to comply with the judgment of 25 June 2020, XH v Commission (T‑511/18, EU:T:2020:291), on account of irregularities allegedly committed in the course of the procedure, implemented for that purpose, for the re-examination of the 2017 promotion exercise in so far as it concerns her. The second plea alleges an absence of a fair comparison of her merits in respect of the 2017 to 2023 promotion exercises and a manifest error of assessment allegedly committed by the competent appointing authority, during that re-examination, in applying the promotion criteria.
(a)    The first plea in law, alleging failure to comply with the judgment of 25 June 2020, XH  v Commission (T‑511/18), during the procedure for the re-examination of the 2017 promotion exercise
36      In the context of the first plea, the applicant claims, in essence, that the Commission did not properly implement the judgment of 25 June 2020, XH v Commission (T‑511/18, EU:T:2020:291), on account of a number of irregularities committed during the procedure for the re-examination of the 2017 promotion exercise. In the first part, she submits that the Commission did not resume that procedure at the appropriate stage. In the second part, she claims that the vote taken within the JPC, concerning the opinion on her promotion, was in breach of Article 7(3) of the Rules of Procedure for the
JPC, since the majority of its members did not vote against her promotion. In the third part, she submits that the Commission failed to respect her right to be heard, as protected by Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’), by not allowing her to submit additional arguments concerning the 2017 promotion exercise. Consequently, she was deprived of the opportunity to lodge a complaint ‘with supporting arguments’, within the meaning of Article 5(7) of Commission Decision C(2013) 8968 final of 16 December 2013 laying down general provisions for implementing Article 45 of the Staff Regulations (‘the GIP for Article 45 of the Staff Regulations’), published in Administrative Notices
No 55-2013 of 19 December 2013.
(1)    The first part of the first plea in law, alleging a failure to resume the procedure for the re-examination of the 2017 promotion exercise at an appropriate stage
37      The applicant claims that it follows from paragraph 116 of the judgment of 25 June 2020, XH v Commission (T‑511/18, EU:T:2020:291), that the Commission acknowledged that, during the 2017 promotion exercise, the reporting officers always, de facto, had the possibility of consulting the documents available in her personal file, which included her interim probation report and end-of-probation report, which were vitiated by irregularities.
38      The applicant concludes from this that, in order for the new promotion decision concerning her to be based on a consideration of comparative merits carried out in accordance with a regular procedure, the re-examination should have been resumed from at least the stage at which her Directorate-General consulted the delegation appointed by the Central Staff Committee, as provided for in Article 5(3) of the GIP for Article 45 of the Staff Regulations.
39      The applicant considers that, since that re-examination was initiated only from the stage of the consultation of the JWG and the JPC, it is vitiated by a procedural defect.
40      Moreover, the applicant complains that the Commission did not inform her of the notification by the Secretariat launching the written procedure for the re-evaluation of the merits for the 2017 promotion exercise, or of the document summarising the matter to be examined by the JPC, as provided for in Article 7(1) of the Rules of Procedure for the JPC.
41      The Commission disputes those arguments.
42      Under Article 266 TFEU, the institution, body, office or entity whose act has been declared void or whose failure to act has been declared contrary to the Treaties is required to take the necessary measures to comply with the judgment of the Court of Justice of the European Union.
43      In that regard, it is settled case-law that, in order to comply with an annulment judgment and to implement it fully, the institution is required to have regard not only to the operative part of the judgment but also to the grounds which led to the judgment and constitute its essential basis, in so far as they are necessary to determine the exact meaning of what is stated in the operative part. It is those grounds which, on the one hand, identify the precise provision held to be illegal and, on the other, indicate the specific reasons which underlie the finding of illegality contained in the operative part and which the institution concerned must take into account when replacing the annulled measure. Moreover, Article 266 TFEU requires the institution concerned to ensure that any act intended to replace the annulled act is not affected by the same irregularities as those identified in the judgment annulling the original act (see judgment of 15 November 2023, PL v Commission, T‑790/21, EU:T:2023:724, paragraph 128 and the case-law cited).
44      In order to comply with its obligation under Article 266 TFEU, the institution must adopt specific measures capable of eliminating the illegality committed vis-à-vis the person concerned (judgment of 15 November 2023, PL v Commission, T‑790/21, EU:T:2023:724, paragraph 129).
45      In the present case, it should be recalled that, in the judgment of 25 June 2020, XH v Commission (T‑511/18, EU:T:2020:291), the General Court annulled the 2017 decision not to promote the applicant after finding that the taking into account, on the part of the competent appointing authority, of the reports relating to the applicant’s probationary period, namely the interim and end-of-probation reports, constituted an irregularity capable of vitiating the 2017 promotion exercise in so far as it concerned the applicant.
46      In those circumstances, it must be ascertained whether, in order to remedy the unlawfulness at issue and, therefore, to ensure that the decision taken at the end of the procedure for the re-examination of the 2017 promotion exercise is not affected by the same irregularities, the competent appointing authority could have considered it appropriate to resume, so far as the applicant was concerned, the 2017 promotion exercise only at the stage of the consultation of the JWG and the JPC, as provided for in Article 5(7) of the GIP for Article 45 of the Staff Regulations.
47      It should be recalled that Article 5 of the GIP for Article 45 of the Staff Regulations, entitled ‘Promotion procedure’, provides as follows:
‘1.      The promotion exercise shall be launched only once the appraisal exercise organised in the same year has been finalised. The end of the appraisal exercise shall be announced by the Directorate-General [(DG)] responsible for human resources by means of the publication of an administrative notice.
2.      At the start of the exercise, the [DG] responsible for human resources shall notify the Directorates-General of the arrangements for the current exercise, giving an indication of the financial resources available for the current year.
3.      Within each [DG], the Directors shall consult the reporting officer referred to in the general provisions for implementing Article 43 of the Staff Regulations.
4.      In each [DG], following the consultation under paragraph 3 above, the Director-General, Deputy Directors-General, Directors and, where appropriate, the Principal Advisers, shall proceed with the examination of the comparative merits of the officials eligible for promotion. If [a DG] is parent [DG] of an executive agency, the Executive Director of the executive agency shall also participate in this examination, even if the Executive Director is seconded from another [DG].
5.      Following the examination in paragraph 4 above, the Director-General shall hold a discussion with a delegation appointed by the Central Staff Committee.
6.      Following the discussion in paragraph 5 above, the Director-General shall communicate to all the [DG’s] staff the list of the officials he or she wishes to propose for promotion and shall forward this list to the [JPC] referred to in Annex I.
7.      The jobholder shall have five working days from the date of publication of this list in which to lodge a complaint with the [JPC] against the fact that he or she is not on the list, with supporting arguments. On receipt of the lists referred to in paragraph 6, the [JPC], taking into account any complaints it has received, shall compare the merits of the officials eligible for promotion and present for the attention of the appointing authority the list of officials it recommends for promotion. At the same time, it shall forward the complaints and the discrepancies, if any, referred to in Annex III.
8.      Once it has received the information referred to in paragraph 7 above, and has at its disposal the files of all the officials eligible for promotion, the appointing authority shall carry out a final comparison of the merits of the eligible officials and, taking into account the budgetary resources available, shall adopt the list of officials promoted. Promotion shall entail the appointment of the official concerned to the next higher grade in the function group to which he or she belongs.
…’
48      Thus, the promotion procedure within the Commission comprises two stages. In the first stage, officials eligible for promotion are identified in a decentralised manner for each Directorate-General. That stage is completed when each Director-General communicates to all members of staff the list of officials in each grade proposed for promotion. In the second stage, officials who were not proposed for promotion have the possibility of lodging an internal appeal with the JPC. The exercise of that right enables those officials to have a consideration of their comparative merits not only at the level of their respective Directorates-General, but also at that of the institution as a whole (see, to that effect, judgment of 14 November 2017, HL v Commission, T‑668/16 P, not published, EU:T:2017:802, paragraph 26).
49      In that regard, the appointing authority satisfies its obligations under the Staff Regulations if it highlights clearly in the decision rejecting the complaint the fact that it has, on the basis of all the information available and in particular the appraisal reports of the staff members concerned, itself compared the merits of all officials eligible for promotion, irrespective of whether or not they were included in the initial lists of officials proposed for promotion by the Directors-General and heads of service of the institution (see judgment of 14 November 2017, HL v Commission, T‑668/16 P, not published, EU:T:2017:802, paragraph 29 and the case-law cited).
50      In the present case, it is true that the competent appointing authority resumed the promotion procedure only from the stage of the consultation of the JWG and the JPC, provided for in Article 5(7) of the GIP for Article 45 of the Staff Regulations, that is to say at the second stage described in paragraph 48 above, with the result that the consideration of comparative merits carried out in that context was not carried out at the level of the applicant’s Directorate-General.
51      However, it should be noted that the effect of such an arrangement was, in reality, to require the JPC to carry out a fresh consideration of the comparative merits of all officials eligible for promotion at the level of the institution as a whole, in accordance with the second sentence of Article 5(7) of the GIP for Article 45 of the Staff Regulations. The JPC was therefore required to take due account, to that end, of the applicant’s candidature, as it would have been required to do if the examination of the comparative merits of the officials eligible for promotion referred to in paragraph 4 of that provision had actually taken place and had led, after the discussion provided for in paragraph 5 thereof, to the inclusion of the applicant’s name in the list referred to in paragraph 6 of that provision.
52      Thus, the fact that the 2017 promotion exercise was re-examined only at that second stage of the consultation of the JWG and the JPC actually benefited the applicant. Such a procedure enabled her to progress beyond the first stage, described in Article 5(1) to (6) of the GIP for Article 45 of the Staff Regulations and, therefore, the assessment carried out by the Directors-General. That assessment would have been likely to result in her name not being proposed, at that stage, for inclusion in the list of officials proposed for promotion and, therefore, to require her to lodge any complaint with the JPC in accordance with the first sentence of Article 5(7) of the GIP for Article 45 of the Staff Regulations.
53      In so far as such a procedure does not, therefore, have any prejudicial consequences for the applicant, she cannot claim that the competent appointing authority implemented the judgment of 25 June 2020, XH v Commission (T‑511/18, EU:T:2020:291) improperly, on the ground that it did not re-examine the 2017 promotion exercise from the stage provided for in Article 5(3) of the GIP for Article 45 of the Staff Regulations. Moreover, since the applicant’s interim report was deleted from her personal file on 18 January 2018 (see paragraph 8 above) and it is not apparent from the decision rejecting the complaint that the new consideration of comparative merits carried out by the JPC took into consideration her end-of-probation report, the re-examination procedure at issue, carried out from the stage provided for in Article 5(7) of the GIP for Article 45 of the Staff Regulations, was capable of ensuring that the decision taken at the end of that procedure was not vitiated by the irregularities found by the General Court in that judgment.
54      Furthermore, as regards the applicant’s reliance on Article 7(1) of the Rules of Procedure for the JPC, it should be noted that that article provides that the Secretariat is to notify the launch of the written procedure and provide a document summarising the matter to be examined only to the members of the JPC. Consequently, it does not provide that the JPC be
subject to an obligation to notify the applicant of those matters. Therefore, the argument put forward by the applicant in that regard must be rejected as unfounded.
55      It follows from the foregoing that the first part of the first plea in law must be rejected as unfounded.
(2)    The second part of the first plea in law, alleging that the vote within the JPC was irregular
56      The applicant submits that the procedure for the re-examination of the 2017 promotion exercise did not comply with Article 7(3) of the Rules of Procedure for the JPC, read in conjunction with Article 6(1) of those rules, concerning the number of votes needed in order to reach a majority. She notes that, by the written procedure, the JPC adopted its opinion by a majority of 13 votes against her promotion and 11 votes in favour, whereas some members did not express a vote or voted after the deadline of 5 working days laid down for that purpose. She submits that the ‘majority of members’ referred to in Article 7 of those Rules of Procedure should be understood as the ‘majority of all members’, envisaged in Article 6, with the result that, in those circumstances, the required majority of 15 members was not met in respect of the refusal to propose her for promotion.
57      The Commission disputes that interpretation.
58      It should be recalled that Article 6(1) of the Rules of Procedure for the JPC, concerning voting by show of hands in plenary session, provides that opinions and recommendations of the JPC are to be adopted by a simple majority of the members who are entitled to vote. By contrast, Article 7(3) of the Rules of Procedure for the JPC, concerning the written procedure, provides that opinions and recommendations are adopted if a majority of members has expressed agreement regarding the matter that is the subject of the written procedure.
59      In that regard, first, the voting rule laid down in Article 7(3) of the Rules of Procedure for the JPC must be interpreted as referring to the majority of votes cast, in particular for reasons of efficiency and economy in the use of the Commission’s resources in the context of the administrative procedure for promotion.
60      Secondly, it is clear from the wording of those two provisions that the written procedure, which was followed in the present case, is subject to a different majority rule from that provided for in respect of voting in plenary sessions. In the context of a written procedure, the Rules of Procedure for the JPC do not stipulate a majority of members ‘who are entitled to vote’ and, consequently, limit the majority to that of the votes cast.
61      The Commission is therefore right to submit that the JPC vote concerning the opinion on the applicant’s promotion is not vitiated by any irregularity, since it was adopted in the context of the written procedure by 13 votes against promotion and 11 in favour of promotion, which corresponds to a simple majority of the total number of votes cast within the meaning of Article 7(3) of the Rules of Procedure for the JPC.
62      Consequently, the second part of the first plea in law must be rejected as unfounded, without there being any need to rule on the plea of inadmissibility raised in that regard by the Commission, alleging failure to comply with the rule of correspondence between the complaint and the application.
(3)    The third part of the first plea in law, alleging infringement of the right to be heard
63      The applicant submits that the competent appointing authority infringed the right to good administration and, in particular, did not respect her right to be heard as provided for in Article 41 of the Charter, in so far as she did not have the opportunity to present additional arguments before the JPC in order to supplement those which she had initially produced in the 2017 promotion exercise, in breach of Article 5(7) of the GIP for Article 45 of the Staff Regulations, in accordance with which all complaints must be able to contain ‘supporting arguments’.
64      The Commission disputes those arguments.
65      It should be recalled that Article 41(2)(a) of the Charter provides that the right to good administration includes, inter alia, the right of every person to be heard, before any individual measure which would affect him or her adversely is taken. The right to be heard guarantees every person the opportunity to make known his views effectively during an administrative procedure and before the adoption of any decision liable to affect his interests adversely (judgment of 4 June 2020, EEAS v De Loecker, C‑187/19 P, EU:C:2020:444, paragraphs 67 and 68).
66      The right to be heard pursues a dual objective: first, to enable the case to be examined and the facts to be established in as precise and correct a manner as possible, and, second, to ensure that the person concerned is in fact protected. The right to be heard is intended in particular to guarantee that any decision adversely affecting a person is adopted in full knowledge of the facts, and its purpose is to enable the competent authority to correct an error or to enable the person concerned to submit such information relating to his or her personal circumstances as will argue in favour of the adoption or non-adoption of the decision, or in favour of its having a specific content (see judgment of 13 December 2017, HQ v CPVO, T‑592/16, not published, EU:T:2017:897, paragraph 85 and the case-law cited).
67      The right to be heard also requires the authorities to pay due attention to the observations thus submitted by the person concerned, examining carefully and impartially all the relevant aspects of the individual case (judgment of 23 February 2022, OA v EESC, T‑671/20, not published, EU:T:2022:82, paragraph 34; see also, to that effect, judgment of 22 November 2012, M., C‑277/11, EU:C:2012:744, paragraph 88 and the case-law cited).
68      The right to be heard must therefore allow the authorities to investigate the matter in such a way as to be able to adopt a decision in full knowledge of the facts and to state reasons for that decision adequately, so that, where appropriate, the person concerned can duly exercise his or her right to bring legal proceedings (judgment of 10 January 2019, RY v Commission, T‑160/17, EU:T:2019:1, paragraph 27).
69      The question whether there is an infringement of the right to be heard must be examined in relation, inter alia, to the legal rules governing the matter concerned (judgment of 10 January 2019, RY v Commission, T‑160/17, EU:T:2019:1, paragraph 28 and the case-law cited).
70      In that regard, it should be borne in mind that a person who lodges a complaint against an act adversely affecting him or her under Article 90(2) of the Staff Regulations may not, in principle, properly claim that he or she has not been heard in the pre-litigation procedure, in so far as the very purpose of the complaint is to enable the person concerned to make observations (judgment of 14 December 2018, UC v Parliament, T‑572/17, not published, EU:T:2018:975, paragraph 90).
71      It is in the light of those principles that it is necessary to consider whether, in the present case, the competent appointing authority infringed the applicant’s right to be heard in the context of the procedure for the re-examination of the 2017 promotion exercise.
72      First, it should be noted that, since that procedure was correctly organised from the stage of the consultation of the JWG and the JPC, provided for in the second sentence of Article 5(7) of the GIP for Article 45 of the Staff Regulations, the applicant was able to have her application considered on the basis of a consideration of comparative merits taking into account the merits of all officials eligible for promotion at the level of the institution as a whole, in the same way as the officials whose names had previously been included in the list provided for in paragraph 6 of that article.
73      In those circumstances, the possibility of lodging a complaint as provided for in the first sentence of Article 5(7) of the GIP for Article 45 of the Staff Regulations did not concern the applicant and she cannot, therefore, rely on the application of that provision.
74      Accordingly, the applicant is wrong to rely on a right to lodge a complaint within the meaning of the first sentence of Article 5(7) of the GIP for Article 45 of the Staff Regulations and to claim that she was thus prevented from lodging a complaint before the JPC with a view to submitting additional ‘supporting arguments’ in that context.
75      Secondly, as regards, more generally, respect for the right to be heard during the procedure for the re-examination of the 2017 promotion exercise, it should be noted that the applicant had the opportunity to submit several complaints, under Article 90(2) of the Staff Regulations, in particular on 26 October 2020, 15 July 2021 and 26 August 2022 against, respectively, the decisions of 27 July 2020, 30 April 2021 and 31 May 2022 not to promote her. In that context, she was able to put forward, with reasons, arguments capable, in her view, of justifying the inclusion of her name in the list of promoted officials. Those complaints were examined by the competent appointing authority in the decisions of 10 February and 15 November 2021 and the decision rejecting the complaint (see paragraphs 14 to 18 above).
76      Therefore, in accordance with the case-law set out in paragraph 70 above, the applicant cannot claim that she was not given the opportunity to be heard in the procedure for the re-examination of the 2017 promotion exercise.
77      It follows that the applicant’s right to be heard has not been infringed and that the third part of the first plea must be rejected as unfounded and, consequently, that the first plea in law must be rejected in its entirety.
(b)    The second plea in law, alleging an absence of fair comparison of her merits in respect of the 2017 to 2023 promotion exercises and a manifest error of assessment committed by the competent appointing authority in applying the criteria relating to promotion
78      In the context of the second plea, the applicant submits, in essence, that the competent appointing authority infringed her right to a fair and objective comparison of her merits. In the first part, she submits that the Commission was late in adopting the decision of 31 May 2022 not to promote her and that that prevented the Commission from carrying out a fair examination of the merits of the officials in the 2017 to 2023 promotion exercises, to the detriment of her career progression. In the second part, she states that several of her colleagues intervened in the procedure which led to the re-examination decisions relating to the 2017 promotion, even though they knew her beforehand, with the result that those decisions were biased. In the third part, she states that, in the 2017 promotion exercise, the Commission committed a manifest error of assessment in the application of the criteria for promotion provided for in Article 45 of the Staff Regulations, in the light of Article 7 of the Charter, while failing to give sufficient reasons for its decision not to promote her.
(1)    The first part of the second plea in law, alleging the late re-examination of the 2017 decision not to promote her
79      The applicant states that the procedure for the re-examination of the 2017 decision not to promote her was delayed as a result of the successive annulments of the decisions of 27 July 2020 and 30 April 2021 not to promote her, on the ground of procedural irregularities found following her complaints (see paragraphs 14 and 18 above). She submits that that delay prevented the judgment of 25 June 2020, XH v Commission (T‑511/18, EU:T:2020:291) being implemented within a reasonable time. That had the effect of preventing a fair comparison of her merits during the 2017 to 2023 promotion exercises and, thus, of impeding her career progression.
80      The Commission disputes those arguments.
81      It should be recalled that the obligation to conduct administrative procedures within a reasonable time is a general principle of EU law the observance of which the EU judicature must ensure and which is laid down, as an element of the right to good administration, by Article 41(1) of the Charter (judgment of 6 December 2012, Füller-Tomlinson v Parliament, T‑390/10 P, EU:T:2012:652, paragraph 115; see also, to that effect, judgment of 7 April 2011, Greece v Commission, C‑321/09 P, not published, EU:C:2011:218, paragraph 32).
82      The question whether the duration of an administrative procedure is reasonable must be determined in relation to the particular circumstances of each case and, in particular, its context, the various procedural stages followed by the institution, the conduct of the parties in the course of the procedure, the complexity of the case and its importance for the various parties involved (see judgment of 14 September 2010, AE v Commission, F‑79/09, EU:F:2010:99, paragraph 105 and the case-law cited).
83      In the present case, it should be borne in mind that the decision of 27 July 2020 not to promote the applicant was annulled by the decision of 10 February 2021, as it had not been signed by the validly competent authority (see paragraph 14 above). The decision of 30 April 2021, which was subsequently adopted, was also annulled by the decision of 15 November 2021, since it was established that the 2017 promotion procedure had to be resumed at the stage of consultation of the JWG and the JPC in accordance with Article 1(7) of the Rules of Procedure for the JPC (see paragraph 17 above). It was only after the adoption of the decision of 31 May 2022 not to promote the applicant, as confirmed by the decision rejecting the complaint, that the procedure for the re-examination of the 2017 decision not to promote her was definitively closed.
84      In that regard, the Commission acknowledges that it took more than two years for the competent appointing authority to adopt a lawful and final decision concerning the re-examination of the 2017 decision not to promote her, in compliance with the judgment of 25 June 2020, XH v Commission (T‑511/18, EU:T:2020:291).
85      In that regard, it should be pointed out that, contrary to what the Commission contends, that delay is not attributable to the complaints lodged by the applicant (see paragraphs 14 and 16 above), but to the successive procedural errors it committed, as evidenced by the fact that two of those complaints were upheld by the competent appointing authority (see paragraphs 14 and 17 above).
86      Moreover, the passage of more than two years between the date of the judgment of 25 June 2020, XH v Commission (T‑511/18, EU:T:2020:291), the implementation of which was not particularly complex, the decision of 31 May 2022 not to promote the applicant and the decision rejecting the complaint is not reasonable (see, to that effect, judgment of 15 November 2023, PL v Commission, T‑790/21, EU:T:2023:724, paragraph 109).
87      Accordingly, the applicant is entitled to rely on the fact that the judgment of 25 June 2020, XH v Commission (T‑511/18, EU:T:2020:291), relating to the 2017 promotion exercise procedure, was not implemented within a reasonable time.
88      Nevertheless, it should be borne in mind that infringement of the reasonable time principle justifies the annulment of a decision taken at the culmination of an administrative procedure only where the passing of an excessive period is likely to have an effect on the actual substance of the decision adopted at the end of the administrative procedure and in breach of the reasonable time principle (see, to that effect, judgment of 17 May 2018, Commission v AV, T‑701/16 P, EU:T:2018:276, paragraph 46 and the case-law cited).
89      In the present case, it must be held, first, that the applicant has failed to put forward arguments capable of demonstrating the extent to which the excessive length of the procedure had an impact on the content of the decision rejecting the complaint and, correspondingly, on the content of the decision of 31 May 2022 not to promote her, since the arguments relating to the promotion exercises other than the one in 2017 are not relevant in that regard. Secondly, as the Commission rightly points out, the applicant has been promoted twice since the occurrence of irregularities vitiating the 2017 promotion exercise, on 13 November 2018 and 13 November 2022. Thus, she cannot validly claim that the delay in the procedure put in place with a view to adopting a final decision, in respect of the re-examination of the 2017 promotion exercise in so far as she was concerned, had the consequence of impeding her career progression from 2017 to 2023.
90      Therefore, the breach of the obligation to adjudicate within a reasonable time guaranteed by Article 41(1) of the Charter does not justify, in the present case, the annulment of the decision rejecting the complaint and, correspondingly, the decision of 31 May 2022 not to promote the applicant.
91      Accordingly, the first part of the second plea in law must be rejected.
(2)    The second part of the second plea in law, alleging the existence of conflicts of interest
92      The applicant submits that, in the context of the procedure for the re-examination of the 2017 promotion exercise, some of her colleagues disregarded the rules on declaring conflicts of interest.
93      In that regard, the applicant states that the consultation of her file reveals that five of her current and former colleagues took part in that re-examination, even though they had no statutory function enabling them to intervene in that procedure. She claims that, in so far as she knew them beforehand, as a result of private and professional relationships, they should have declared a conflict-of-interest situation. Failing that, it should, in her view, be found that Articles 11 and 11a of the Staff Regulations and Article 3 of Annex I to the GIP for Article 45 of the Staff Regulations have been infringed.
94      In particular, the applicant asserts that a person in OLAF’s Human Resources Unit was involved in the preparation of the decision of 30 April 2021 not to promote her, in his capacity as a representative of the competent appointing authority, even though, in his capacity as a trade union representative, he had previously advised her in her choice of legal representation in 2018, telling her how she should defend herself in order to challenge the presence of her interim probation report in her personal file.
95      The applicant also submits that another person, within OLAF’s
Legal Service Unit, had conflicting interests since she had previously obtained from her information which could possibly be used against her in the context of the re-examination of the procedure for the 2017 promotion exercise. In that regard, she states that that person was a co-author of the decision of 31 May 2022 not to promote her even though she had previously advised her in respect of several of her complaints and in the context of a procedure before the European Ombudsman.
96      The Commission disputes those arguments.
97      First, as a preliminary point, it should be noted that, as an annex to the reply, the applicant produces several emails dating from 2014 to 2021 which, in her view, are capable of demonstrating the existence of her links with her colleagues and, therefore, a situation of alleged conflict of interest from the time of the application. In that regard, the production of those documents, bearing a date prior to the date of the action, must be regarded as out of time and, therefore, as inadmissible, in accordance with Article 85(2) of the Rules of Procedure, which provides that the production of evidence at the reply stage is permitted only if the delay in the submission of such evidence is justified. In the present case, the applicant has not produced any justification in that regard.
98      Secondly, it should be recalled that Article 41 of the Charter, which, pursuant to Article 6(1) TEU, has the same legal value as the Treaties, establishes the right to good administration. Under Article 41(1) of the Charter, that right means that every person has the right to have his or her affairs handled impartially by the institutions, bodies, offices and agencies of the European Union.
99      Moreover, it is for the administration, in accordance with the principle of sound administration, to examine carefully and impartially all the relevant aspects of the case before it and to gather all the factual and legal information necessary to exercise its discretion and to ensure the proper conduct and effectiveness of the procedures that it implements (judgments of 20 October 2021, Kerstens v Commission, T‑220/20, EU:T:2021:716, paragraph 33, and of 6 April 2022, FC v EUAA, T‑634/19, not published, EU:T:2022:222, paragraph 81).
100    The requirement of impartiality encompasses, on the one hand, subjective impartiality, in so far as no member of the institution concerned who is responsible for the matter may show bias or personal prejudice, and, on the other hand, objective impartiality, in so far as the institution concerned must offer sufficient guarantees to exclude any legitimate doubt as to any possible bias (see judgment of 7 November 2019, ADDE v Parliament, T‑48/17, EU:T:2019:780, paragraph 43 and the case-law cited; see also, to that effect, judgment of 25 February 2021, Dalli v Commission, C‑615/19 P, EU:C:2021:133, paragraph 112 and the case-law cited).
101    As regards subjective impartiality, it is apparent from the case-law that this is presumed in the absence of evidence to the contrary (see judgment of 27 November 2018, Mouvement pour une Europe des nations et des libertés v Parliament, T‑829/16, EU:T:2018:840, paragraph 49 and the case-law cited).
102    With regard objective impartiality, the Court of Justice has stated that, in order to show that the organisation of an administrative procedure did not ensure sufficient guarantees to exclude any legitimate doubt as to possible bias, it was not necessary to prove lack of impartiality. It is sufficient for a legitimate doubt to arise which cannot be dispelled (see judgment of 21 October 2021, Parliament v UZ, C‑894/19 P, EU:C:2021:863, paragraph 54 and the case-law cited).
103    It is also clear from the case-law that prior knowledge of the facts by those called upon to participate in the adoption of a judicial or administrative decision is not, in itself, capable of vitiating that decision with a procedural defect of lack of impartiality. Such prior knowledge is sometimes inevitable in the light of a professional activity carried out previously or in parallel by the persons concerned. Thus, it is necessary to establish whether, in a particular case, there is an objective factor such as a conflict of interest on the part of officials and agents acting on behalf of the institutions, bodies, offices and agencies of the European Union, capable of giving rise to a legitimate doubt in the eyes of third parties as to the impartiality of the procedure in question (see judgment of 11 January 2024, Hamers v Cedefop, C‑111/22 P, not published, EU:C:2024:5, paragraph 48 and the case-law cited).
104    In the present case, as a preliminary point, first, it should be noted that Article 3 of Annex I to the GIP for Article 45 of the Staff Regulations, as regards the principle of impartiality, concerns only the members of the JPC and not all officials. Secondly, the Commission is right to point out that the applicant did not submit any evidence capable of demonstrating a conflict of interests in relation to members of the JPC within the meaning of Article 3 of Annex I to the GIP for Article 45 of the Staff Regulations. Consequently, the applicant’s argument based on the application of that provision in the present case must be rejected.
105    Next, and in the first place, as regards three of the five colleagues mentioned by the applicant in her application, it should be noted that the application does not specify the extent to which they participated in the drafting of the decision rejecting the complaint. Nor does the applicant produce any evidence to show that they participated in the procedure for the re-examination of the 2017 promotion exercise. Consequently, since it is not sufficiently substantiated, that argument must be rejected.
106    In the second place, as regards the two persons in respect of whom the applicant produces, as an annex to the application, several exchanges of emails and screenshots taken from the Ares platform mentioning them specifically, namely the person in OLAF’s Human Resources Unit and the person in OLAF’s Legal Service Unit, it is true that it appears from those email exchanges that the first person advised the applicant, in his capacity as a trade union representative, on her choice of legal representation and on possible steps to be taken before the Commission following the judgment of 25 June 2020, XH v Commission (T‑511/18, EU:T:2020:291), and that the second advised her on administrative appeals and the procedure before the European Ombudsman.
107    In addition, it should be noted that the Commission acknowledges, in essence, that, due to the nature of their posts and functions, the person in OLAF’s Human Resources Unit and the person in OLAF’s Legal Service Unit could have been involved in the conduct of the promotion procedures.
108    However, it is not apparent from that exchange of emails that those two persons participated in the procedure for the re-examination of the 2017 promotion exercise. Moreover, the screenshots taken from the Ares platform submitted in addition by the applicant are unclear and imprecise and, therefore, insufficient, as such, to demonstrate the involvement of those persons in the conduct of that procedure and their possible influence on that conduct.
109    In those circumstances, it must be concluded that the applicant has not adduced sufficient evidence to prove the participation of the two persons in question in the procedure for the re-examination of the 2017 promotion exercise.
110    In any event, even if the screenshots taken from the Ares platform were sufficiently clear to support the conclusion that those persons had actually participated in the procedure for re-examining the 2017 decision not to promote the applicant, first, as regards subjective impartiality, it is not apparent from the correspondence added to the file that they expressed in one way or another a personal prejudice or bias in respect of the applicant in the conduct of that procedure, since that correspondence is limited to recounting exchanges, without bias, with a view to objectively advising the applicant in her various administrative and litigation procedures. Accordingly, all of those factors are not capable of demonstrating a lack of subjective impartiality on their part, within the meaning of the case-law referred to in paragraphs 100 and 101 above.
111    Secondly, as regards objective impartiality, it should be pointed out that the Commission stated, without this being seriously disputed by the applicant, that the duties of the person in the OLAF’s
Human Resources Unit were solely to assist OLAF’s management in human resources matters, by liaising with the Directorate-General for Human Resources and coordinating the administrative aspects of promotion exercises, whereas the position held by the person in the OLAF’s Legal Service Unit did not involve any decision-making role in promotion procedures. Moreover, it should be noted that neither of those two persons is a signatory of the decision rejecting the complaint and the decision of 31 May 2022 not to promote the applicant, taken by the Director-General of OLAF on the basis of the opinion of the JPC, of which they are not members.
112    Thus, in the context of such administrative organisation and having regard to the case-law referred to in paragraph 103 above, the fact that those two persons may, in the context of previous private and professional contacts, have had prior knowledge of certain facts concerning the applicant, is not capable, in itself, of giving rise to conflicts of interest and a doubt as to their impartiality such as to vitiate the procedure for the re-examination of the 2017 promotion exercise, the decision of 31 May 2022 not to promote the applicant and the decision rejecting the complaint with a procedural defect of lack of impartiality.
113    Consequently, the second part of the second plea in law must be rejected as unfounded.
(3)    The third part of the second plea in law, alleging a manifest error of assessment committed by the appointing authority in applying the criteria relating to promotion and an inadequate statement of reasons
114    In the first place, the applicant submits that, in the decision rejecting the complaint, the competent appointing authority did not refer correctly to the criteria for promotion set out in Article 45 of the Staff Regulations or explain the elements of her file taken into account. In that regard, she criticises the appointing authority for failing to specify when the assessment took place, which applicants were compared and whether the appraisal reports analysed in respect of the other applicants were similar to hers for the same period. She also criticises the appointing authority for not having examined the consequences of the irregularities caused by the presence in her file of her interim probation report on her subsequent appraisal reports for 2015 and 2016, in breach of Articles 7, 8, 41 and 47 of the Charter. Lastly, the applicant submits that the competent appointing authority took into account, in the decision of 27 July 2020 not to promote her, relating to the re-examination of the 2017 promotion exercise, elements of her end-of-probation report and her 2015 appraisal report, which were found by the Court to be irregular in paragraphs 141 and 156 of the judgment of 25 June 2020, XH v Commission (T‑511/18, EU:T:2020:291), by mentioning, inter alia, the existence of ‘room for improvement’. Moreover, she states that the 2016 appraisal report also refers to the end-of-probation report and to 2015. In her view that demonstrates that the competent appointing authority did not resume the 2017 promotion exercise correctly and did not treat her fairly.
115    In the second place, the applicant submits that the decision rejecting the complaint is based solely on subjective value judgments which do not take account of facts and which, consequently, cannot be objectively verified and compared. Moreover, in her view, the JPC did not express an objective point of view by means of a valid reasoned opinion, in breach of Articles 2, 5 and 6 of Annex I to the GIP for Article 45 of the Staff Regulations. She adds that the competent appointing authority did not provide in a precise and explicit manner the individual and relevant reasons justifying the decision not to promote her. In that regard, she considers that all of the decisions not to promote her, adopted in particular after the delivery of the judgment of 25 June 2020, XH v Commission (T‑511/18, EU:T:2020:291), follow a generic template which does not give any information relating to other candidates and her particular case, in breach of the obligation to state reasons.
116    For all those reasons, the Commission is claimed to have committed a manifest error of assessment and to have not been transparent and fair when applying the promotion criteria, which is such as to raise doubts as to whether a selection was made on the basis of an objective and fair comparison of the merits of officials eligible for promotion in the re-examination of the 2017 promotion exercise.
117    The Commission disputes those arguments.
118    As regards the alleged failure to state reasons, the Commission submits that the decision rejecting the complaint contains 14 pages of detailed explanations and extracts from the appraisal reports of other officials promoted to grade AD 6 under the 2017 promotion exercise, capable of demonstrating that, following the consideration of comparative merits carried out in that regard, it had to be concluded that the merits of the applicant’s colleagues were indeed superior to her own.
119    In the first place, with regard to the application of the promotion criteria provided for in Article 45 of the Staff Regulations, it is settled case-law that the administration has a certain discretion as to the respective importance which it ascribes to each of the three criteria provided for in Article 45(1) of the Staff Regulations, the provisions of which do not preclude the possibility of weighting being applied between those criteria (see judgment of 16 May 2013, Canga Fano v Council, T‑281/11 P, EU:T:2013:252, paragraph 123).
120    However, the wide discretion thus conferred on the appointing authority is circumscribed by the need to consider the officials’ comparative merits carefully and impartially, in the interest of the service and in accordance with the principle of equal treatment. In practice, such consideration must be undertaken on a basis of equality, using comparable sources of information (see judgment of 16 May 2013, Canga Fano v Council, T‑281/11 P, EU:T:2013:252, paragraph 42 and the case-law cited).
121    In that field, the Court’s review must be confined to the question whether, having regard to the various considerations which have influenced the administration in making its assessment, the latter has remained within reasonable bounds and has not used its power in a manifestly incorrect way (see judgment of 16 May 2013, Canga Fano v Council, T‑281/11 P, EU:T:2013:252, paragraph 84 and the case-law cited).
122    It is therefore not for the General 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 (judgment of 15 January 2014, Stols v Council, T‑95/12 P, EU:T:2014:3, paragraph 31).
123    Moreover, the Court cannot substitute its assessment of the officials’ qualifications and merits for that of the appointing authority and annulment on grounds of a manifest error of assessment is possible only if it is apparent from the documents in the file that that authority exceeded the bounds of its discretion (see to that effect, judgment of 15 January 2014, Stols v Council, T‑95/12 P, EU:T:2014:3, paragraph 29).
124    Lastly, without prejudice to the practical effect that the appointing authority’s discretion must be acknowledged to have, an error is manifest where it is easily recognisable and can be readily detected, in the light of the criteria to which the legislature intended decisions on promotion to be subject (judgments of 13 March 2024, QN v Commission, T‑531/21, not published, EU:T:2024:166, paragraph 32, and of 24 March 2011, Canga Fano v Council, F‑104/09, EU:F:2011:29, paragraph 35).
125    It is in the light of those principles that it is necessary to examine whether, in the present case, in applying the promotion criteria laid down in Article 45 of the Staff Regulations, the decision rejecting the complaint, which confirms the decision of 31 May 2022 not to promote the applicant, is vitiated by a manifest error of assessment.
126    First of all, as regards the reports on the officials and the level of responsibilities exercised, it should be noted that, in the decision rejecting the complaint, the appointing authority states that the appraisal reports relating to 2015 and 2016 were taken into account when examining the applicant’s merits and with a view to the re-examination of the 2017 promotion exercise.
127    In that regard, it is apparent from the decision rejecting the complaint that, in 2017, nine officials in grade AD 5 at OLAF were eligible for promotion to the higher grade, six of whom were ultimately promoted. In particular, the competent appointing authority reproduces anonymised extracts from the reports of the promoted officials. It mentions, for example, that those persons were, respectively, noted for working with ‘remarkable resilience and a positive attitude’, were ‘able to lead a process independently and without any major guidance’, ‘regularly engage[d] in activities that [went] beyond [the] job description’, had ‘excellent analytical skills’, ‘systematically delivered high quality work’, contributing ‘substantially to the achievement of the objectives of the unit and of [OLAF]’, ‘consult[ing] with [their] colleagues and [their] hierarchy in an exemplary way, while still being fully capable of working and progressing autonomously’, were ‘proactive and efficient’, being ‘very well appreciated by [their] direct colleagues, hierarchy and also by the user community and the high management’, working with ‘competence, diligence and great efficiency’ or were able ‘to lead a process independently’.
128    As far as the applicant is concerned, it is true that it appears from her 2016 appraisal report that she ‘displays commitment to her work and is determined to meet her targets and those of her unit’ and that she is ‘a solid investigator who delivers on time high quality results’. However, in her 2015 appraisal report, it is noted that she was still learning as it states that she ‘should continue to make all necessary efforts to get fully acquainted with office procedures’, that ‘eventually she should be able to manage … complex cases’ and that ‘she identified areas where she [could] improve her personal skills in order to take on new responsibilities’.
129    In those circumstances, it must be held that all of those extracts demonstrate that the promoted officials all obtained a higher general assessment than that of the applicant.
130    Next, as regards the criterion of the use of languages, it is apparent from the decision rejecting the complaint that the applicant uses two languages, other than her mother tongue, in the course of her duties. It should be noted that, by comparison, the competent appointing authority took account of the fact that four of the officials promoted used three, four or more languages in addition to their mother tongue in the course of their duties.
131    Lastly, as regards the alleged consideration of the interim probation report and end-of-probation report, it should be noted, first, that the competent appointing authority explains, in the decision rejecting the complaint, that those reports did not serve as a basis for the purposes of the consideration of the applicant’s comparative merits in the context of the re-examination of the 2017 promotion exercise in so far as it concerns her. Secondly, the interim probation report was deleted from the applicant’s personal file in January 2018 in compliance with the judgment of 25 June 2020, XH v Commission (T‑511/18, EU:T:2020:291). Moreover, the Commission is correct in stating that, in the absence of an effective challenge, the applicant’s 2015 and 2016 appraisal reports had become final and could be taken into account in that context, whereas the extracts from those two appraisal reports, mentioned in the decision rejecting the complaint, taken after annulment of the decisions of 27 July 2020 and 30 April 2021 not to promote the applicant, do not reproduce the elements of the two probation reports at issue, identified as irregular by the Court in paragraph 156 of the judgment of 25 June 2020, XH v Commission (T‑511/18, EU:T:2020:291). Furthermore, as regards the alleged infringement of Articles 7, 8, 41 and 47 of the Charter, the Commission rightly observes that, since it is not substantiated, that argument cannot succeed. Accordingly, the applicant is not justified in relying on the fact that the decision rejecting the complaint did not draw the conclusions from the irregularities found by the General Court resulting from the earlier presence of her interim probation report in her personal file.
132    It follows from all the foregoing that, although the applicant’s appraisal reports taken into account in the re-examination of the 2017 promotion exercise do indeed demonstrate that she was a deserving official, nevertheless, in the light of the finding that she was still learning, the applications for promotion by other officials could, without any manifest error of assessment, have been preferred by the competent appointing authority, on the basis of a comparison of the merits of all the candidates within OLAF which revealed that they had greater merits.
133    In the second place, as regards the claim that the statement of reasons for the decision rejecting the complaint is inadequate, it is appropriate to recall the settled case-law according to which the right to good administration includes, inter alia, under Article 41(2) of the Charter, the obligation for the administration to give reasons for its decisions (judgments of 22 November 2012, M., C‑277/11, EU:C:2012:744, paragraph 83, and of 4 April 2019, OZ v EIB, C‑558/17 P, EU:C:2019:289, paragraph 52). The purpose of the obligation to give reasons is to enable interested parties, first, to know the justification for the measure so as to enable them to protect their rights and, secondly, to enable the Courts of the European Union to exercise their power to review the legality of the decision. That obligation, laid down in the second paragraph of Article 25 of the Staff Regulations, merely reiterates the general obligation laid down in Article 296 TFEU (see, to that effect, judgment of 9 July 2019, VY v Commission, T‑253/18, not published, EU:T:2019:488, paragraph 48), which requires that the statement of reasons must disclose in a clear and unequivocal manner the reasoning followed by the institution which adopted the measure in question (see, to that effect, judgment of 28 June 2018, EUIPO v Puma, C‑564/16 P, EU:C:2018:509, paragraphs 64 and 65).
134    The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question of whether the statement of reasons for a measure is to be deemed adequate must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgment of 14 July 2021, BG v Parliament, T‑253/19, not published, EU:T:2021:459, paragraph 45; see also, to that effect, judgment of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 63 and the case-law cited). In particular, the reasons given for a measure adversely affecting a person are sufficient if that measure was adopted in a context which was known to that person and which enables him or her to understand the scope of the measure concerning him or her (judgment of 23 November 2022, Bowden and Young v Europol, T‑72/21, not published, EU:T:2022:720, paragraph 41).
135    It follows that a statement of reasons need not be exhaustive but must, on the contrary, be regarded as adequate if it sets out the facts and legal considerations which are of decisive importance in the general scheme of the decision (see judgment of 6 April 2022, KU v EEAS, T‑425/20, not published, EU:T:2022:224, paragraph 40 and the case-law cited).
136    Moreover, according to settled case-law, although the appointing authority
need not state reasons for a promotion decision, either to its addressee or to the candidates who were not promoted, it has, by contrast, an obligation to give reasons for its decision rejecting a complaint lodged under
Article 90(2) of the Staff Regulations by a candidate who had not been promoted, since the reasons
given for the latter decision are deemed to be the same as those for the decision which was the subject of the complaint. The statement of reasons must be made no later than the rejection of the complaint (see judgment of 21 May 2014, Mocová v Commission, T‑347/12 P, EU:T:2014:268, paragraph 41 and the case-law cited).
137    In addition, since promotions are made by selection, in accordance with Article 45 of the Staff Regulations, it is enough that the reasons given for the rejection of the complaint relate to the application of the conditions governing promotion laid down by law and the Staff Regulations to the official’s individual situation (see judgment of 26 October 2017, Paraskevaidis v Cedefop, T‑601/16, EU:T:2017:757, paragraph 39 and the case-law cited).
138    In the present case, it should be noted that the decision rejecting the complaint comprises a total of 25 pages setting out, first, the legal framework applicable to promotion procedures and, secondly, in detail, the reasons why the applicant was not promoted. In that regard, it should be noted that the competent appointing authority is seeking to respond exhaustively to the arguments put forward by the applicant in her complaint, with regard to an alleged manifest error in the comparison of the merits of the officials eligible for promotion. In support of that response, anonymised extracts from the appraisal reports of other OLAF officials promoted to grade AD 6 are included and provided for the purpose of comparison with the applicant’s merits in terms of efficiency, ability, conduct in the service, languages known and responsibilities undertaken. Moreover, the decision rejecting the complaint includes several other parts dedicated to examining the condition of seniority in the applicant’s grade under the 2017 promotion exercise. That decision also examines the arguments that the applicant put forward in her complaint regarding non-compliance with the judgment of 25 June 2020, XH v Commission (T‑511/18, EU:T:2020:291), and the ‘conflicting roles’ allegedly assumed by a colleague in the promotion exercise at issue.
139    Under those circumstances, it must be found that the statement of reasons provided in the decision rejecting the complaint discloses in a clear and unequivocal fashion the reasons which, under the conditions governing promotion laid down by law and the Staff Regulations, led the competent appointing authority not to promote, retroactively and following re-examination, the applicant in the 2017 promotion exercise. The fact that, moreover, the applicant was able, as part of the present action, to submit arguments contesting the merits of that statement of reasons demonstrates that that decision was adopted in a context which was known to her and that that statement of reasons was sufficient. The applicant was therefore in a position to understand the scope of the decision, and the Courts of the European Union were able to exercise their power to review the legality
of that decision and, correspondingly, of the decision of 31 May 2022 not to promote her.
140    It follows that the third part of the second plea must be rejected as unfounded and, consequently, that the second plea in law must be rejected in its entirety.
141    In the light of the foregoing, the application for annulment, in essence, of the decision of 31 May 2022 not to promote the applicant, as confirmed by the decision rejecting the complaint, must be rejected in its entirety.
C.      Claim for damages
142    The applicant seeks compensation for the non-material and material damage that she claims to have suffered due, in particular, to the adoption of the decision rejecting the complaint, confirming the decision of 31 May 2022 not to promote her and additional career delay resulting from the 2017 promotion exercise.
143    With regard to the non-material damage, the applicant estimates it, in essence, at EUR 25 000. She relies, in essence, on the permanent stigmatisation within her work environment which allegedly harmed her professional progress and caused damage to her reputation. This is allegedly the consequence, in particular, of the influence, during the various evaluation and promotion exercises from 2017 to 2021, of the inclusion of her interim probation report in her personal file on the decision of 31 May 2022 not to promote her, confirmed by the decision rejecting the complaint.
144    As regards the material damage, the applicant estimates it, in essence, at EUR 50 000 per promotion exercise corresponding to the approximate amount of an increase in remuneration, taking into account an average progression in the career of an official, which she should have received if her name had been included in the lists of promoted officials drawn up for the 2017, 2020 and 2021 exercises.
145    The applicant also states that she incurred fees necessary for her defence in several pre-litigation procedures, in particular the submission of complaints in that context, between 2015 and 2023, which are not covered by the costs. She states that she is prepared to set out in detail the elements constituting her material damage, excluding the costs of the present proceedings.
146    The Commission disputes those arguments.
147    It should be borne in mind that it follows from settled case-law regarding claims for compensation in staff cases that the European Union may incur non-contractual liability only if a number of conditions are fulfilled, namely: (i) the institution’s conduct must be unlawful, (ii) actual damage must have been suffered, and (iii) there must be a causal link between the conduct and the damage alleged. Those three conditions are cumulative, which means that, if one of them is not satisfied, the European Union cannot be held liable (judgment of 25 June 2020, XH v Commission, T‑511/18, EU:T:2020:291, paragraph 161 and the case-law cited; see also, to that effect, judgment of 1 June 1994, Commission v Brazzelli Lualdi and Others, C‑136/92 P, EU:C:1994:211, paragraph 42).
148    Moreover, it is settled case-law that claims for compensation for material or non-material damage must be rejected to the extent that they are closely linked to the claims for annulment which have themselves been rejected as inadmissible or unfounded (judgments of 5 February 1997, Ibarra Gil v Commission, T‑207/95, EU:T:1997:12, paragraph 88, and of 22 March 2018, Popotas v Ombudsman, T‑581/16, EU:T:2018:169, paragraph 171).
149    In the present case, since the applicant’s request for annulment of the decision of 31 May 2022 not to promote her, as confirmed by the decision rejecting the complaint, has been rejected in its entirety (see paragraph 141 above), the condition relating to the unlawfulness of the Commission’s alleged conduct is not satisfied.
150    Consequently, the claim for compensation for the non-material and material damage referred to in paragraphs 143 and 144 above must be rejected in accordance with the case-law recalled in paragraphs 147 and 148 above.
151    Moreover, with regard to the applicant’s claim for reimbursement of the expenditure she claims to have incurred for her defence in the context of pre-litigation procedures, in particular her complaints between 2015 and 2023, it should be noted that an application seeking compensation for damage allegedly caused by an EU institution must state the evidence from which the conduct alleged against the institution may be identified, the reasons why the applicant considers that a causal link exists between that conduct and the damage which he or she claims to have suffered, and the nature and extent of that damage (judgment of 25 June 2020, XH v Commission, T‑511/18, EU:T:2020:291, paragraph 164 (not published)).
152    In that regard, it must be held that the damage which the applicant alleges in that respect is imprecise. By using the terms ‘pre-litigation requests’ and ‘complaint procedures in 2015 [to] 2023’, the applicant appears to refer, within that extended period of time, both to the procedure relating to her complaint R/96/18, brought following the 2017 decision not to promote her, and to those connected with her complaints R/495/20, R/382/21 and R/404/22 concerning the decisions not to promote her during the re-examination of the 2017 promotion exercise and to all her other complaints in the context of her earlier actions concerning subsequent promotion exercises. Moreover, a similar claim by the applicant for the reimbursement of pre-litigation expenditure
incurred in respect of her 2015 and 2016 complaints has already been held inadmissible by the Court in the judgment of 25 June 2020, XH v Commission (T‑511/18, EU:T:2020:291), for failure to identify the nature and extent of the material damage allegedly suffered. Furthermore, the applicant adds, without further explanation and also with little clarity, that her material damage ‘does not consist solely in the reimbursement of lawyers’ fees and costs by way of expenditure’. Above all, she does not identify precisely the extent of the material damage for which she seeks compensation and merely states that she is ‘prepared to provide details of the constituent elements of [her] material damage’.
153    Thus, in accordance with the case-law referred to in paragraph 151 above, the claim for compensation for material damage referred to in paragraph 145 above must also be rejected as inadmissible on account of the failure to identify, in the application, the nature and extent of the material damage allegedly suffered.
154    Therefore, the applicant’s claim for compensation should be rejected in its entirety.
D.      The measures sought by the applicant
155    In the application, as part of her first head of claim, the applicant asks the Court to order the Commission to produce numerous documents relating to the 2017 promotion exercise. In addition, she asks the Court to order that a number of persons be heard, on account of their participation in the appraisal and promotion procedures at issue and their knowledge of those procedures.
156    Furthermore, on 10 December 2023, the applicant submitted a request for measures of inquiry and for the hearing of witnesses, with a view to their participation at a subsequent hearing.
157    In that regard, it must be borne in mind that Article 90 of the Rules of Procedure provides that measures of organisation of procedure are to be prescribed by the Court. Moreover, it is clear from Article 92(1) of the Rules of Procedure that the Court has exclusive jurisdiction to assess the usefulness of measures of inquiry for the purpose of resolving the dispute (judgment of 10 July 2012, Interspeed v Commission, T‑587/10, not published, EU:T:2012:355, paragraph 81).
158    In the present case, since the present dispute may be resolved on the basis of the documents in the Court’s file, the measures of inquiry requested by the applicant are irrelevant for the purpose of resolving the dispute. Thus, all of those requests must be rejected.
159    Accordingly, the measures sought by the applicant must be rejected and, consequently, the action in its entirety must be dismissed.
IV.    Costs
160    Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
161    Since the applicant has been unsuccessful, she must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders XH to pay the costs.
da Silva Passos
Gervasoni
Pynnä
Delivered in open court in Luxembourg on 2 October 2024.
V. Di Bucci
S. Papasavvas
Registrar
President
*      Language of the case: English.