JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Full Court)
5 May 2010 (*)
(Civil service — Officials — Promotion — 2007 promotion exercise — Interest in bringing proceedings — Promotion decision — List of promoted officials — Consideration of comparative merits — Criterion of the level of responsibilities exercised — Application for annulment of the promotion decisions — Balance of interests)
In Case F‑53/08,
ACTION under Articles 236 EC and 152 EA,
Vincent Bouillez, an official of the Council of the European Union, residing in Overijse (Belgium),
Kris Van Neyghem, an official of the Council of the European Union, residing in Tirlemont (Belgium),
Ingeborg Wagner-Leclercq, an official of the Council of the European Union, residing in Edegem (Belgium),
represented by S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers,
applicants,
v
Council of the European Union, represented by M. Bauer and I. Šulce, acting as Agents,
defendant,
supported by
Eliza Niniou and Maria-Béatrice Postiglione Branco, officials of the Council of the European Union, residing in Schaerbeek (Belgium) and in Kraainem (Belgium) respectively, represented initially by T. Bontinck and S. Woog, lawyers, and subsequently by T. Bontinck and S. Greco, lawyers,
and
Maria De Jesus Cabrita and Marie-France Liegard, officials of the Council of the European Union, residing in Brussels (Belgium), represented initially by N. Lhoëst, lawyer, and subsequently by N. Lhoëst and L. Delhaye, lawyers,
interveners,
THE CIVIL SERVICE TRIBUNAL (Full Court),
composed of P. Mahoney, President, H. Tagaras and S. Gervasoni (Rapporteur), Presidents of Chambers, H. Kreppel and S. Van Raepenbusch, Judges,
Registrar: R. Schiano, Administrator,
having regard to the written procedure and further to the hearing on 9 December 2009,
gives the following
Judgment
1        By application lodged at the Registry of the Tribunal on 28 May 2008 by fax (the original having been received on 3 June 2008), Mr Bouillez, Mr Van Neyghem and Ms Wagner-Leclercq, officials of the Council of the European Union, brought the present action for annulment, first, of the decisions whereby the appointing authority refused to promote them to grade AST 7 under the 2007 promotion exercise and, second, in so far as necessary, of the decisions promoting to that grade under that exercise the officials who had performed tasks at a level of responsibility lower than theirs, whose names are on the list of promoted officials published on 16 July 2007 by Notice to Staff No 136/07.
Legal context
2        Article 45(1) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) provides:
‘Promotion shall be by decision of the appointing authority in the light of Article 6(2). It shall be effected by appointment of the official to the next higher grade in the function group to which he belongs. Promotion shall be exclusively by selection from among officials who have completed a minimum of two years in their grade after consideration of the comparative merits of the officials eligible for promotion. When considering comparative merits, the appointing authority shall in particular take account of the reports on the officials, the use of languages in the execution of their duties other than the language for which they have produced evidence of thorough knowledge in accordance with Article 28(f) and, where appropriate, the level of responsibilities exercised by them.’
3        According to Article 10 of Annex XIII to the Staff Regulations:
‘1. Officials in service before 1 May 2004 [in] categories C or D shall be assigned as of 1 May 2006 to career streams allowing for promotions:
(a)      in former category C up to grade AST 7;
(b)      in former category D up to grade AST 5.
…
3. An official to whom paragraph 1 applies may become a member of the assistants’ function group without restriction if he passes an open competition or on the basis of an attestation procedure. The attestation procedure shall be based on the seniority, experience, merit and level of training of officials and the availability of posts in the function group AST. A joint committee shall examine the candidatures of officials for the attestation. The institutions shall adopt rules implementing this procedure before 1 May 2004. Where necessary, specific provision shall be made by the institutions to take account of such change leading to a change in the applicable promotion rates.
…’
4        Article 7(1) of the Council Decision of 2 December 2004 on the arrangements for implementing the attestation procedure (‘the decision of 2 December 2004’) provides that:
‘… [The officials awarded attestation] shall become members of the assistants’ function group without career restrictions.
The career progression of the officials concerned shall be conditional on actual taking up of a post of assistant “without career restrictions”, identified as such.’
Facts of the case
5        The applicants, officials who entered the service of the Council before 1 May 2004, were in former category B. Following the amendment of the Staff Regulations on 1 May 2004, they were reclassified in function group AST with effect from 1 May 2006 and automatically acceded to a career stream without restriction in that function group.
6        Mr Bouillez is responsible for the general maintenance of the buildings occupied by the General Secretariat of the Council. As head to the ‘general maintenance’ section of the ‘Technical management and planning’ service, he heads a team of six persons. His staff report for the period 1 January 2005 to 30 June 2006 indicates that he has the necessary potential to undertake the duties of administrator.
7        Mr Van Neyghem is the ‘mobility coordinator’ of the General Secretariat of the Council in the framework of the compulsory implementation of a ‘business relocation plan’. In addition, he is responsible for overseeing the renovation of one of the Council’s buildings and is involved in the allocation of office space between the various services of the Secretariat General. His 2004 staff report states that he is capable of undertaking the duties of administrator, which, moreover, he has already performed for several years at the Economic and Social Committee as a member of the temporary staff.
8        Ms Wagner-Leclercq is responsible for the computerised management of budgetary data and for relations with external contributors to the data bases and assists the administrator responsible for budgetary matters relating to external actions.
9        By Notice to Staff No 77/07 of 14 May 2007, the Council drew up the list of officials in former category C who were attested and thus became members of the function group of assistants without career restrictions.
10      By Notice to Staff No 97/07 of 12 June 2007 (‘the Notice of 12 June 2007’) the Council informed the officials of the material placed before the advisory promotion committees and also of the measures adopted in order to implement Article 45 of the Staff Regulations. Annex 2 to that Notice stated, for each grade, the number of possible promotions in 2007 and annex 3 contained the list of officials eligible for promotion.
11      By its report of 13 July 2007 the advisory promotion committee for the function group of assistants without career restrictions proposed to the appointing authority, for the 2007 exercise, a list of 22 officials who were to be promoted to grade AST 7. That list did not mention the applicants’ names but contained the names of a number of attested officials.
12      By Notice to Staff No 136/07 of 16 July 2007 the appointing authority decided to follow the opinion expressed by the advisory promotion committee in its report of 13 July 2007 and to promote the 22 officials proposed.
13      On 15 October 2007 Mr Van Neyghem and Ms Wagner-Leclercq, by separate complaints, challenged the list of officials promoted to grade AST 7.
14      By complaint of 16 octobre 2007 Mr. Bouillez challenged the decision refusing to promote him to grade AST 7 and the decisions promoting the attested officials to that grade.
15      By decisions of 15 February 2008, notified to Mr Bouillez and Ms Wagner‑Leclercq on 18 February 2008 and to Mr Van Neyghem on 20 February 2008, the Council rejected those complaints (‘the decisions rejecting the complaints’).
Forms of order sought by the parties and procedure
16      The applicants claim that the Tribunal should:
—      annul the decisions whereby the appointing authority refused to promote them to grade AST 7 under the 2007 promotion (‘the contested decisions’);
—      annul, ‘in so far as necessary’, the decisions promoting to that grade and for that exercise the officials who had carried out tasks at a lower level of responsibility than the applicants’, whose names are on the list of promoted officials published on 16 July 2007 in Notice to Staff No 136/07 (‘the decisions promoting the attested officials’);
—      order the Council to pay the costs.
17      The Council contends that the Tribunal should:
—      dismiss the application;
—      make an appropriate order as to costs.
18      By letter of 19 November 2008 the Tribunal informed the Council that the case had been referred to the full court, in application of Article 13 of the Rules of Procedure. It also drew the Council’s attention to the fact that the applicants sought not only annulment of the contested decisions but also annulment of the decisions promoting the attested officials. It thus invited the Council to state whether, if the latter decisions were to be annulled and if the Council were to decide to grant the applicants retroactive promotion, such promotion could take effect only after the withdrawal of the promotion decisions initially adopted, which had been challenged within the period prescribed in the Staff Regulations and would be vitiated by the same illegality as that tainting the decisions refusing promotion. In the same letter the Tribunal, finally, requested the Council, in accordance with Article 111(1) of the Rules of Procedure, to comment on whether it would be appropriate to invite the officials whose promotion was challenged by the applicants to intervene.
19      By letter of 19 November 2008 the Tribunal informed the applicants that the case was to be referred to the full court, in application of Article 13 of the Rules of Procedure. It also noted that the applicants sought not only annulment of the contested decisions but also annulment of the decisions promoting the attested officials and that, if the latter application were to be held to be admissible and were to succeed, it would adversely affect the rights of the officials concerned. The Tribunal also stated that it proposed to invite those officials to intervene in the present case and invited the applicants, in accordance with Article 111(1) of the Rules of Procedure, to submit their comments on that possible procedural step.
20      By letter of 24 November 2008 the applicants stated that they did not support the Tribunal’s proposal that the attested officials who had been promoted to grade AST 7 should be invited to intervene, emphasising that such an invitation would delay judgment in the case.
21      By letter of 19 December 2008 the Council stated that, while it saw no apparent need to invite the promoted officials to intervene, it left the matter to the Tribunal’s discretion. The Council also stated that ‘the number of posts for promotion to grade AST 7 for the 2007 exercise was … restrictively fixed’.
22      Neither in the abovementioned letters nor subsequently did any of the parties dispute the Tribunal’s interpretation of the forms of order seeking annulment of the promotion decisions, which were analysed as being directed solely against the decisions promoting the attested officials.
23      By letters of 23 January 2009 the Tribunal, in application of Article 111(1) of the Rules of Procedure, invited the 14 attested officials who had been promoted to grade AST 7 in 2007 and whose promotion decisions are challenged to intervene in the proceedings.
24      By order of 3 April 2009 the President of the Tribunal granted leave to Ms Niniou and Ms Postiglione Branco (‘the first interveners’) and to Ms De Jesus Cabrita and Ms Liegard (‘the second interveners’) to intervene in the proceedings in support of the form of order sought by the defendant.
25      By a statement in intervention received at the Registry of the Tribunal on 11 May 2009 the first interveners claimed that the Tribunal should:
—      dismiss the action;
—      make an appropriate order as to costs.
26      By a statement in intervention received at the Registry of the Tribunal on 21 May 2009 the second interveners claimed that the Tribunal should:
—      dismiss the action;
—      order the applicants to pay the costs, in accordance with Article 89 of the Rules of Procedure.
27      By letter of 30 June 2009 the Council informed the Tribunal that it had no comments to make on the statements in intervention.
28      By a pleading received at the Registry of the Tribunal on 3 July 2009 the applicants submitted their comments on the second interveners’ statement in intervention. They requested the Tribunal to make the same form of order as that set out in the application and, in addition, requested that the Council be ordered to pay the interveners’ costs or, in the alternative, that the second interveners be ordered to bear their own costs.
29      By a pleading lodged at the Registry of the Tribunal on 7 July 2009, concerning the first interveners’ statement in intervention, the applicants requested the Tribunal to make the same form of order sought as that set out in the application and also requested that the Council be ordered to pay the interveners’ costs or, in the alternative, that the first interveners be ordered to bear their own costs.
30      On the day of the hearing the Tribunal, which was sitting as the full court, was composed of only six judges, as one of its members was prevented from attending.
31      In accordance with, first, the first paragraph of Article 17 of the Statute of the Court of Justice and the first paragraph of Article 5 of Annex I to that Statute and, second, Article 27 of the Rules of Procedure, the deliberations of the Tribunal are to be valid only if an uneven number of judges is sitting in the deliberations, and if the Tribunal is sitting with an even number of judges, as a result of a judge’s being absent or prevented from attending, the lowest-ranking judge, according to the order of precedence fixed pursuant to Article 5 of the Rules of Procedure, is to abstain from taking part in the deliberations (see, by analogy, Case C‑26/90 Finsider v Commission [1992] ECR II‑1789, paragraph 38).
32      In application of the abovementioned provisions, the present judgment was deliberated by the five judges whose signatures it bears.
The law
33      The applicants put forward four pleas in law in support of all their claims for annulment:
—      the first plea, alleging insufficient reasoning;
—      the second plea, alleging infringement of Article 45(1) of the Staff Regulations, first, in that the Council took into consideration only as a subsidiary matter the level of responsibilities exercised by the candidates for promotion when it considered their comparative merits and, second, in that when it considered the comparative merits the Council examined only certain subsidiary criteria;
—      the third plea, alleging breach of Article 7(1) of the decision of 2 December 2004;
—      the fourth plea, alleging a manifest error in the assessment of the merits of the officials eligible for promotion.
34      The Tribunal considers it appropriate to examine more particularly the plea alleging breach of Article 45(1) of the Staff Regulations, in that the Council took into consideration only as a subsidiary matter the level of responsibilities exercised by the candidates for promotion when it examined their comparative merits.
The claims directed against the contested decisions
Arguments of the parties
35      The applicants maintain that the Council failed to comply with the provisions of Article 45(1) of the Staff Regulations when it took into consideration only as a subsidiary matter, when examining the comparative merits, the level of responsibilities exercised by the officials eligible for promotion.
36      The Tribunal observed, moreover, in its judgment in Case F‑104/05 Valero Jordana v Commission [2008] ECR‑SC I‑A‑1‑27 and II‑A‑1‑127, that that criterion, which was added in the new version of Article 45 of the Staff Regulations that entered into force on 1 May 2004, was all the more important because the General Court had held, by reference to the provisions of Article 45(1) of the Staff Regulations in the version applicable before that date, that the level of responsibilities exercised could not constitute a decisive criterion in the examination of comparative merits.
37      If the Council’s interpretation of the new version of Article 45(1) of the Staff Regulations were to be followed, that would have the effect of depriving that provision of all practical effect. In reality, the purpose of the expression ‘where appropriate’ in that Article is to require the appointing authority to take account of the special circumstances that might exist in which an official performs duties higher than those of his grade.
38      The Council claims that under Article 45(1) of the Staff Regulations the level of responsibilities exercised is not a decisive element that must be taken into account when the officials’ comparative merits are considered. The Council recalls that, since the officials eligible for promotion are all part of the same function group, they are deemed to exercise equivalent responsibilities. The criterion of the level of responsibilities could become relevant, as a subsidiary matter, only where the official occupies a post in a career bracket of his category or of his service which is higher than the career bracket to which he belongs. In the present case, however, the level of responsibilities exercised by the applicants is not manifestly higher than that of the attested officials who were promoted. That criterion, which comes into play only in a subsidiary manner, was therefore not capable of altering the outcome of the normal comparative examination of the analytical and general assessments.
39      The Council maintains, in the second place, that according to the consistent case‑law of the courts of the European Union it is not required to take subsidiary criteria, such as age and seniority, into consideration, since it considered that the merits of the promoted officials and the applicants’ merits were not equal.
40      The interveners adopt, in their pleadings, the Council’s arguments in defence.
41      At the hearing the Council clarified which interpretation of Article 45(1) of the Staff Regulations should be adopted. The criterion of the level of responsibilities exercised should, like the criteria relating to the officials’ staff reports and linguistic competences, be considered to be one of the criteria for the assessment of the merits of officials who are candidates for promotion and should thus be analysed as a ‘primary’ criterion in the analysis of comparative merit, unlike subsidiary criteria such as age or seniority, which would come into play only later, when the merits of the officials eligible for promotion are found to be equal.
Findings of the Tribunal
–       Admissibility of the plea
42      As regards Mr Van Neyghem, it is apparent both from his complaint (paragraph 29) and from the Council’s decision rejecting that complaint (paragraph 28) that the plea alleging breach of Article 45 of the Staff Regulations, in that the Council took into consideration only as a subsidiary matter the level of the responsibilities exercised by the candidates for promotion when it considered their comparative merits, was explicitly raised at the stage of the pre-contentious procedure.
43      As regards the other two applicants, the Tribunal examined, in the light of the case-law that complaints are to be interpreted with an open mind, whether they were entitled to raise the plea mentioned in the preceding paragraph, in light of the terms of their respective complaints.
44      Mr Bouillez expressly referred in his complaint to a breach of Article 45(1) of the Staff Regulations (paragraph 22) and stated (paragraph 26) that ‘the appointing authority was under an obligation, when undertaking a comparison of the comparative merits of candidates for promotion pursuant to Article 45 of the Staff Regulations, to examine all the relevant elements’. By that complaint, which must be interpreted with an open mind, Mr Bouillez must be considered to have intended to challenge the Council’s failure to take into consideration the level of the responsibilities exercised by the candidates for promotion when it considered their comparative merits.
45      As for Ms Wagner-Leclercq, she claimed in her complaint, which was submitted in English, that the decision refusing to promote her failed to comply with Article 45 of the Staff Regulations. She stated:
‘I believe that owing to the absence of job description slips an analysis of the comparative merits of each candidate, taking into account the importance of the post occupied by the official in the organisational chart and the corresponding responsibilities, was not possible.’
46      By the criticisms which she thus formulated, Ms Wagner-Leclercq referred at least implicitly to the complaint alleging failure by the appointing authority to take into consideration the level of responsibilities exercised by the officials eligible for promotion.
47      It follows from the foregoing that the three applicants are entitled to raise the plea alleging breach of Article 45(1) of the Staff Regulations, in that the Council took into consideration only as a subsidiary matter, when it examined the comparative merits, the criterion of the level of responsibilities exercised by the officials eligible for promotion. The Tribunal notes, moreover, that the Council did not raise any such plea of inadmissibility against the applicants.
–       The merits of the plea
48      Under Article 45(1) of the Staff Regulations, when considering comparative merits, the appointing authority is, in particular, to 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 the officials eligible for promotion.
49      The Tribunal has held that, in a sphere in which the administration has a wide discretion, the express reference to those criteria in Article 45 of the Staff Regulations shows the particular importance which the legislature attached to their being taken into account (Case F‑97/05 Buendía Sierra v Commission [2008] ECR‑SC I‑A‑1‑15 and II‑A‑1‑49, paragraph 62). The particular reference in Article 45(1) of the Staff Regulations to the taking into account, in the assessment of the merits with a view to promotion, where appropriate, of the level of responsibilities exercised by the official seems to acquire even greater significance because the General Court, in Case T‑131/00 Schochaert v Council [2001] ECR-SC I‑A‑141 and II‑743, paragraph 43), had held that the fact of taking as a decisive criterion the level of responsibilities exercised by the officials eligible for promotion was contrary to Article 45(1) in the version in force before 1 May 2004.
50      Furthermore, the Tribunal has held, first, that the provisions of Article 45(1) of the Staff Regulations applicable from 1 May 2004 are clearer, with respect to the elements to be taken into consideration for the purposes of promotion, than the provisions of that Article in the version in force before that date, since, in addition to referring to the staff reports, they refer to the use of languages other than the language for which the officials concerned have produced evidence of thorough knowledge and, where appropriate, the level of responsibilities exercised; the Tribunal has held, second, that in principle it is in the light of those three elements that the appointing authority must now consider the comparative merits of the officials eligible for promotion, the word ‘merits’ in Article 45(1) of the Staff Regulations thus having a different and substantively wider scope than the same word used in the version of that Article applicable before 1 May 2004 (judgment of 7 September 2007 in Case F‑57/06 Hinderyckx v Council [2007] ECR‑SC I‑A‑1‑329 and II‑A‑1‑1831, paragraph 45). When assessing the merits of the officials, the appointing authority may, as a subsidiary matter, where the merits of the officials eligible for promotion are equal, on the basis of the three elements expressly referred to in Article 45(1) of the Staff Regulations, take into account other elements, such as candidates’ age and their seniority in grade or in the service (Hinderyckx v Council, paragraph 46). At the hearing, moreover, the Council defended the same interpretation, stating that new rules applicable to promotion procedures, in the course of being prepared by its services, would emphasise the role in the analysis of the respective merits of candidates for promotion played by the criterion of responsibilities exercised by those candidates.
51      Furthermore, it has been held that when the administration has a wide discretion, as is the case for the appointing authority in promotion matters, it is under an obligation, when it considers the comparative merits of candidates for promotion in application of Article 45(1) of the Staff Regulations, to examine carefully and impartially all the elements relevant to an assessment of those merits (Case T‑473/07 P Commission v Berrisford [2007] ECR‑SC I‑A‑2‑17 and II‑A‑2‑85, paragraph 42; and Case F‑107/06 Berrisford v Commission [2006] ECR‑SC I‑A‑1‑285 and II‑A‑2‑1603, paragraph 71).
52      Thus, it follows from Article 45(1) of the Staff Regulations that the level of responsibilities exercised by the officials eligible for promotion is one of the three relevant elements that the administration must take into account in the analysis of the comparative merits of the officials eligible for promotion.
53      Admittedly, as the Council correctly submits, the fact of belonging to the same function group and the same grade presupposes the exercise of equivalent duties. The use of the expression ‘where appropriate’ in Article 45(1) of the Staff Regulations confirms that in most cases, in view of that presumption of equivalence of the level of responsibilities exercised by officials in the same grade, the criterion of the level of responsibilities exercised does not constitute an element enabling a distinction to be drawn between the merits of the candidates for promotion.
54      However, that presumption is not irrebuttable, especially since the former categories B and C were merged in the single assistants’ function group. That merger had the automatic consequence of extending the range of responsibilities that might be exercised by an official in function group AST, as shown, moreover, by the table in part A of annex I to the Staff Regulations. There may therefore exist, as regards the level of responsibilities, appreciable differences between the various functions carried out by officials in the same function group. Nor do the Staff Regulations establish any correspondence between the functions carried out and a particular grade. On the contrary, they allow grade and function to be separated (see, to that effect, Case T‑56/07 P Commission v Economidis [2008] ECR‑SC I‑B‑1‑31 and II‑B‑1‑213, paragraphs 58 to 60). That disconnection between grade and the level of functions carried out, moreover, is consistent with the wish of the legislature and with a choice taken by the institutions with the aim of facilitating the management of their staff. The General Court had itself acknowledged, when it interpreted Article 45 of the Staff Regulations, in the version in force before 1 May 2004, that in certain situations that presumption of equivalence of responsibilities between officials in the same grade was unfounded (Schochaert v Council, paragraph 42 and the case-law cited).
55      It cannot therefore be inferred from such a presumption of equivalence that the administration is not required to examine the criterion relating to the level of responsibilities exercised, by ascertaining precisely whether that criterion is capable of revealing differences as to the merits of the officials concerned.
56      Accordingly, the expression ‘where appropriate’ cannot be interpreted as meaning that it authorises the administration to exclude a priori the taking into account of the criterion of the level of responsibilities exercised when it considers the comparative merits. On the contrary, by expressly mentioning that criterion in Article 45(1) of the Staff Regulations, when it did not appear in the version of that Article in force before 1 May 2004, the legislature meant to indicate that the level of responsibilities exercised by officials eligible for promotion was an element that could be relevant in such an analysis. The expression ‘where appropriate’ simply means that while, in principle, servants in the same grade are supposed to hold posts involving equivalent responsibilities, where that is not in fact the case that circumstance must be taken into consideration in the promotion procedure.
57      In the present case, such a presumption of equivalence between officials in the same grade could not in any event be applied and thus give the Council reason not to examine the relevance of the criterion based on the level of responsibilities exercised by the officials eligible for promotion. Mr Bouillez’s and Mr Van Neyghem’s staff reports show that those officials had the potential to carry out the functions of administrator, that is to say, functions of a function group above theirs. It was therefore possible that their responsibilities were at a higher level than those carried out by the other officials eligible for promotion in the same grade.
58      In the present proceedings, the Council eventually submitted at the hearing that the level of responsibilities exercised by the officials eligible for promotion is one of the three ‘primary’ criteria to be taken into account when it considers their comparative merits. None the less, the Council maintained that it could not be accused of having failed to comply with the provisions of Article 45(1) of the Staff Regulations in the 2007 promotion exercise, since that element was taken into account when the Council adopted the promotion decisions and the contested decisions.
59      In that regard, review of the grounds of a promotion decision and a decision refusing promotion is made difficult by the fact that those two categories of decision do not need to state the reasons on which they are based (Case T‑6/96 Contargyris v Council [1997] ECR-SC I‑A‑119 and II‑357, paragraph 147 and the case-law cited). Only the decision rejecting a complaint lodged under Article 90(2) of the Staff Regulations by a candidate who has not been promoted needs to state the reasons on which it is based, and the reasons for that decision are deemed to coincide with the reasons forming the basis of the decision against which the complaint was aimed (Case T‑118/95 Anacoreta Correia v Commission [1996] ECR-SC I‑A‑283 and II‑835, paragraph 82).
60      The Tribunal must therefore examine the various documents in the case‑file in order to determine whether the Council, as it maintains, did consider the comparative merits as provided for in Article 45(1) of the Staff Regulations, taking into account, in particular, the level of responsibilities exercised by the officials eligible for promotion: in that regard, the response to the complaint is of particular importance.
61      In order to substantiate its position, the Council relies, in the first place, on the Notice of 12 June 2007. That Notice states, in particular:
‘Each committee shall draw up the lists of candidates eligible for promotion who, following consideration of their comparative merits, are the most suitable to hold the posts which I have opened for 2007. For the purposes of that examination, the following shall, in particular, be taken into consideration: the officials’ reports and also the other elements set out in Article 45 of the Staff Regulations.’
62      Paragraph 3 of annex 1 to the Notice of 12 June 2007 states:
‘This promotion exercise is characterised by the entry into force of Article 45(2) of the Staff Regulations, under which officials are required to demonstrate before their first promotion after recruitment the ability to work in a third language. The officials concerned by that measure who have not produced evidence of their ability to work in a third language cannot be promoted, even if they have the requisite seniority on 1 January 2007 …’
63      Admittedly, the Notice of 12 June 2007 refers, for the consideration of comparative merits, in addition to the staff report, to the ‘other elements’ in Article 45 of the Staff Regulations. However, it does not explicitly mention the level of responsibilities exercised by the officials eligible for promotion, whereas annex 1 to that Notice refers expressly to the criterion of the use of languages other than the language for which the officials concerned have produced evidence of thorough knowledge. In those circumstances, the Notice of 12 June 2007, owing to the general and imprecise nature of its wording, does not in itself show that the Council took account of the level of responsibilities exercised by the officials concerned when it considered their respective merits.
64      In the second place, in support of its contention that it compared the merits of the officials eligible for promotion in accordance with Article 45(1) of the Staff Regulations, the Council relies on the report of the advisory promotion committee. However, it is to be noted that that report does not expressly state the elements which that committee took into consideration when making its proposals. It is apparent on reading that report that the advisory committee had before it the candidates’ staff reports and a list of officials who had proved their ability to work in a third language. On the other hand, there is nothing in the advisory committee’s report to show clearly that it had any relevant and usable evidence relating to the responsibilities exercised by the various officials eligible for promotion. It is significant in that regard that the words ‘level of responsibilities exercised’ are not to be found in that report. Consequently, the advisory committee’s report, too, fails to show that when adopting the contested decisions the Council took account of the level of responsibilities exercised.
65      In the third place, and when the abovementioned uncertainties are taken into account, it is apparent that the reasons for rejecting the applicants’ complaints constitute a particularly important element for the Tribunal’s assessment of the merits of the plea.
66      In that regard, the decisions rejecting Mr Bouillez’s and Ms Wagner-Leclercq’s complaints are not particularly helpful, as they provide no information about the method which the Council actually followed in comparing the officials’ merits.
67      On the other hand, it is apparent from the decision rejecting Mr Van Neyghem’s complaint that, in order to consider the comparative merits of the officials eligible for promotion, the appointing authority relied on the staff reports of the officials concerned, without taking account of the level of responsibilities exercised by them.
68      First of all, the appointing authority takes care, where it refers in that decision to Article 45(1) of the Staff Regulations, to emphasise the phrase ‘in particular take account of the reports on the officials’. Next, the appointing authority states that all the attested officials who were promoted had better staff reports than the complainant. Last, and above all, the administration observes, in that decision, that the criterion relating to the level of responsibilities exercised by the officials should be taken into account only in the event of ‘equal merits’, ‘in order to decide between the officials eligible for promotion’.
69      By those words, the appointing authority informed the applicant that, in the absence of equality, established on the basis of the staff reports, between his merits and those of the officials who had been promoted, the criterion of the level of responsibilities had not been taken into account. However, it may be inferred from the very general words used by the appointing authority in that decision (and those words show that the administration did not adopt a solution specific to the complainant’s situation, but applied to his case the interpretation which it made elsewhere of the provisions of Article 45 of the Staff Regulations), that, in order to assess whether the various officials eligible for promotion to grade AST 7 had the same merits, it did not take account of the responsibilities which they exercised: yet, as stated above, the level of responsibilities is one of the three components enabling the merits of a candidate for promotion to be evaluated.
70      In the fourth place, the Council produced in annex (B 9) to its defence a synoptic table showing the functions and levels of responsibilities of the officials concerned. However, it is not apparent from the case-file that that table existed when the contested decisions were adopted, nor was it maintained that the table constituted a basis for the analysis carried out by the advisory promotion committee whose proposals the Council accepted.
71      Thus, it follows from the foregoing that it has been established to the requisite legal standard that, contrary to its contention, the Council did not take account of the level of responsibilities exercised by the officials when it considered their comparative merits. The Council therefore erred in law. The contested decisions must therefore be annulled on that ground, without there being any need to examine the other grounds of the application.
The claims directed against the decisions promoting the attested officials
Admissibility
–       Arguments of the parties
72      The second interveners maintain that the claims directed against the decisions promoting the attested officials are inadmissible. Those decisions are merely the consequence of the attestation decisions, which were not contested by the applicants.
73      The applicants claim that the plea of inadmissibility thus raised cannot succeed. Their action is not intended to challenge the attestation decisions in favour of the promoted officials who were previously in the former category C, but to secure annulment of the decisions promoting those officials in so far as they did not exercise functions in the career path of assistants without career restrictions.
74      As to the merits, the parties reiterate the same arguments as those previously set out in the part of the judgment relating to the claims for annulment of the contested decisions.
75      In addition, the second interveners claim that the annulment of the decisions promoting the attested officials would be manifestly disproportionate, owing to the number of officials concerned and the harm that annulment of those decisions might well cause. Furthermore, the annulment of those decisions would infringe the principle of protection of legitimate expectations and acquired rights.
–       Findings of the Tribunal
76      Under Article 110 of the Rules of Procedure, the form of order sought in a statement in intervention is admissible only if it is made in support, in whole or in part, of the form of order sought by one of the parties to the proceedings. An intervener therefore has no standing to raise a plea of inadmissibility not formulated during the written procedure and the Tribunal is therefore not called on to examine the pleas which the intervener has raised in that regard.
77      However, under Article 77 of the Rules of Procedure, the Tribunal may at any time, of its own motion, consider where there exists any absolute bar to proceeding with the action, including any raised by an intervener (see, by analogy, Case T‑88/01 Sniace v Commission [2005] ECR II‑1165, points 49, 52 and 53).
78      In the present case, contrary to the second interveners’ contention, the attestation decisions and the promotion decisions are distinct from each other. Consequently, the fact that the applicants did not challenge the attestation decisions cannot render the claims directed against the promotion decisions inadmissible.
79      The plea of inadmissibility raised by the second interveners cannot therefore be upheld.
80      Furthermore, the Tribunal considers it necessary to observe that officials eligible for promotion to a particular grade have, in principle, a personal interest in challenging the decisions promoting other officials to that grade. The Court of Justice has on a number of occasions implicitly accepted that such an action was admissible and has even annulled promotion or appointment decisions on the ground of an error in the consideration of comparative merits or the failure to consider those merits (Case 29/74 de Dapper v Parliament [1975] ECR 35 and Case 293/87 Vainker v Parliament [1989] ECR 23). The General Court has expressly held that while a member of staff cannot claim a right to be promoted, he nevertheless has an interest in disputing a decision to promote another member of staff to a grade for which he is eligible to apply and against which he lodged a complaint which was rejected (Case T‑328/01 Robinson v Parliament [2004] ECR-SC I‑A‑5 and II‑23, paragraphs 32 and 33).
Merits
81      The applicants raised, as against the decisions promoting the attested officials, the plea alleging breach of Article 45(1) of the Staff Regulations, in that the Council took into consideration only as a subsidiary matter the level of responsibilities exercised by the candidates for promotion when it considered their comparative merits. As this plea was effective in support of the claims directed against those decisions and as the Tribunal has held that it was well founded, it should normally entail, in consequence, annulment of those decisions, without there being any need to examine the other pleas put forward in support of those claims.
82      However, the courts of the European Union have acknowledged that where the act that should be annulled benefits a third party, which is the case of an entry on a reserve list, a promotion decision or a decision making an appointment to a vacant post, it must first determine whether annulment would constitute an excessive penalty for the irregularity committed (Case 24/79 Oberthür v Commission [1980] ECR 1743, paragraphs 11 and 13; Case T-68/91 Barbi v Commission [1992] ECR II-2127, paragraph 36).
83      In that regard, it should be noted that the inferences which the courts of the European Union draw from an irregularity are not the same in the case of a competition and in the case of promotion. The annulment of all the results of a competition constitutes, in principle, an excessive penalty for the irregularity committed, irrespective of the nature of the irregularity and the extent to which it affects the results of the competition (see, in particular, concerning the irregular composition of a selection board, Joined Cases T‑32/89 and T‑39/89 Marcopoulos v Court of Justice [1990] ECR II‑281; see, as regards breach of the principle of equal treatment, Case T‑44/91 Smets v Commission [1994] I‑A‑97 and II‑319).
84      On the other hand, where promotion is concerned, the courts of the European Union undertake a case-by-case examination.
85      In the first place, it takes into consideration the nature of the irregularity. If the irregularity found is merely a procedural defect affecting the situation of just one official (see, in particular, for the absence of a staff report, Barbi v Commission, Case T‑144/95 Michaël v Commission [1996] ECR-SC I‑A‑529 and II‑1429, and Case T‑202/99 Rappe v Commission [2000] ECR-SC I‑A‑201 and II‑911; see, for failure to state reasons, Case T‑281/01 Huygens v Commission [2004] ECR-SC I‑A‑203 and II‑903), the courts of the European Union consider a priori that such an irregularity does not justify invalidating the promotion decisions, as such annulment constitutes an excessive penalty. On the other hand, where there is a substantive defect, such as an error of law which vitiates the entire consideration of comparative merits, the courts of the European Union generally annul the promotion decisions (Vainker v Parliament and Robinson v Parliament).
86      In the second place, it balances the interests involved.
87      When balancing the interests, the courts of the European Union take into consideration, first of all, the interest which the officials concerned have in being reinstated in law and in full in their rights by means of an effective reconsideration of the merits duly taking into account the legally applicable criteria, in not being required to compete in future with officials who have been improperly promoted and in not seeing a subsequent repetition of the irregularity found by the courts.
88      Next, the courts of the European Union take account of the interests of the illegally promoted officials. These, admittedly, have no vested right to retain their promotion, since the promotion decisions are vitiated by illegality and were challenged within the prescribed periods (see, for examples of annulment, Vainker v Parliament and Robinson v Parliament). None the less, the courts take into consideration the fact that these officials were able to rely in good faith on the lawfulness of the decisions promoting them, especially if they had been given favourable assessments by their superiors that would objectively justify promotion. The courts are all the more sensitive to the interests of these officials when they form a significant group (see, for a solution rejecting the claims for annulment of the entire list of promoted officials, which contained numerous officials, Case T‑311/04 Buendía Sierra v Commission [2006] ECR II‑4137, paragraph 349).
89      Last, the courts of the European Union examine the interests of the service, that is to say, in particular, respect for legality, the budgetary consequences of the failure to annul illegal decisions (see paragraph 90 below), possible difficulties in complying with the judgment to be delivered, any adverse effects on the continuity of the service and the danger of a deterioration in the social atmosphere within the institution.
90      After having taken the various interests involved into consideration, the courts of the European Union decide, on a case-by-case basis, whether or not to annul the promotion decisions. Where it eventually takes the view that annulment of the promotion decisions would constitute an excessive penalty for the illegality found, it may, where appropriate, in order to ensure, in the interest of the applicant, that the judgment annulling the decision not to promote him has practical effect, make use of its unlimited jurisdiction in disputes of a pecuniary nature and may, even of its own motion, order the institution to pay compensation (Oberthür v Commission, paragraph 14).
91      In the present case, examination of these various criteria for assessment is carried out in a specific context. It must be emphasised that it is only ‘in so far as necessary’ (and not ‘in consequence, following the annulment of the decisions not to promote the applicants’) that the applicants claimed that the Tribunal should annul the decisions promoting the attested officials.
92      Thus, having regard to the way in which those claims are formulated, the Tribunal must, even before ascertaining whether annulment of the promotion decisions constitutes an excessive penalty for the illegality found in the circumstances described above, determine whether such annulment is necessary in order to reinstate the applicants’ prospects of being promoted, the reinstatement of legality implying a fresh analysis of the comparative merits on the basis of the legally applicable criteria and, where appropriate, promotion of the applicants with retroactive effect.
93      The central issue is therefore whether the maintenance in force of the decisions promoting the 14 attested officials would constitute an obstacle to the applicants’ promotion, if, following a fresh comparative examination carried out in order to comply with the judgment of the Tribunal, the applicants’ merits should be deemed superior to those of the unlawfully promoted officials and should enable them to be promoted.
94      Until the end of the written procedure, regard being had in particular to annex 2 of the Notice of 12 June 2007 fixing exhaustively at 22 the number of promotions possible in 2007 in grade AST 7 and to the Council’s letter of 19 December 2008 confirming that information, the annulment of the decisions promoting the attested officials seemed at first sight to be necessary, as it appeared that the applicants could be promoted to grade AST 7 only if the attested officials promoted to that grade were to lose the benefit of that promotion.
95      At the hearing the Council’s representative submitted, by way of introduction to his oral submissions, that the annulment of the decisions promoting the attested officials would no longer be necessary after delivery of the judgment. He stated that if the contested decisions were to be annulled, the Council, as part of measures adopted in order to comply with the judgment, would reinstate the applicants in their rights, by taking, so far as necessary, promotion decisions for 2009 and paying the applicants compensation to cover the harm to their careers resulting from the delay in promotion between 2007 and 2009.
96      After the parties and the interveners had made their initial submissions, the applicants’ lawyer, in answer to a question from the Tribunal seeking to determine whether, in the light of the abovementioned observations of the Council, the applicants wished to withdraw the claims for annulment of the decisions promoting the attested officials, stated that he was prepared to envisage such withdrawal if the Council confirmed in writing the commitments mentioned by its representative.
97      After the hearing, the Council, by letter of 17 December 2009, set out the terms of its commitments. It confirmed that if the Tribunal annulled the contested decisions on the ground that the consideration of comparative merits carried out in the context of the 2007 promotion exercise for grade AST 7 was vitiated by illegality, the Council would take the following measures to comply with the judgment:
‘… the appointing authority will re-convene the advisory promotion committee in order to reconsider the comparative merits of the officials eligible for promotion to grade AST 7 in 2007, in accordance with the findings made in the judgment. This fresh consideration of the comparative merits cannot be limited to the applicants and the officials who were promoted, but would have to cover the merits of all officials eligible for promotion to grade AST 7 for the 2007 exercise.
The applicants will be able to be promoted only if, following that comparative examination and following the application of all the ‘primary’ and subsidiary criteria, they are in a suitable position by comparison with the other officials who are eligible for promotion. If that were in fact the case, the applicants concerned would be promoted retroactively to grade AST 7 with effect from 1 January 2007, over and above the number of officials promoted in the 2007 exercise, whose promotion decisions would not be called in question.’
98      The applicants informed the Tribunal by letter of 7 January 2010 that in the light of the explanation provided by the Council in its letter of 19 December 2009 they would not withdraw their claims for annulment of the promotion decisions.
99      It follows from the exchanges between the parties that the Council gave a definitive commitment that, in order to comply with the present judgment, it would undertake a fresh consideration of the comparative merits and, where appropriate, promote the applicants retroactively in addition to the number of officials already promoted.
100    Therefore, in the light of that unconditional commitment on the part of the Council, in accordance with Article 266 TFEU, the annulment of the promotion decisions does not appear to be strictly necessary in order to reinstate the applicants adequately in their rights, as the applicants could be promoted in addition to the number of attested officials who were promoted, it being understood that such additional promotion, should it take place, will necessarily have the same scope as that of the promotion decisions initially adopted, without any negative connotation being attached to it.
101    While it is true that in their letter of 7 January 2010 the applicants disputed the procedures for complying with the present judgment envisaged by the Council in its letter of 17 December 2009, claiming that their merits should be compared only with those of the officials already promoted and not with those of all officials eligible for promotion, that criticism has no effect on the assessment of the necessity or otherwise of the annulment of the promotion decisions. The precise determination of the officials able to benefit from a fresh consideration of their comparative merits in compliance with this judgment is independent of the question of the annulment of the decisions promoting the attested officials.
102    Thus, in the circumstances of the present case, the annulment of the decisions promoting the attested officials is not necessary. It follows that the claims directed against those decisions must be rejected.
Costs
103    Under Article 87(1) of the Rules of Procedure, without prejudice to the other provisions of that chapter, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under paragraph 2 of that Article, the Tribunal may decide, if equity so requires, that an unsuccessful party is to pay only part of the costs or even that he is not to be ordered to pay any.
104    It follows from the grounds of the present judgment that the Council is essentially the unsuccessful party. Furthermore, the applicants expressly claimed in their pleadings that the Council should be ordered to pay the costs. As the circumstances of the case do not justify the application of Article 87(2) of the Rules of Procedure, the Council must therefore be ordered to pay the costs.
105    The interveners must bear their own costs, in accordance with Article 89(4) of the Rules of Procedure, without prejudice to those costs being paid in whole or in part, as appropriate, by the Council on the basis of Article 24 of the Statute.
On those grounds,
THE CIVIL SERVICE TRIBUNAL (Full Court)
hereby:
1.      Annuls the decisions whereby the Council of the European Union refused to promote Mr Bouillez, Mr Van Neyghem and Ms Wagner-Leclercq to grade AST 7 under the 2007 promotion exercise;
2.      Dismisses the remainder of the claims submitted by Mr Bouillez, Mr Van Neyghem and Ms Wagner-Leclercq;
3.      Orders the Council of the European Union to pay the costs;
4.      Orders the interveners to bear their own costs.
Mahoney
Tagaras
Gervasoni
Kreppel
Van Raepenbusch
Delivered in open court in Luxembourg on 5 May 2010.
W. Hakenberg
P. Mahoney
Registrar
President
* Language of the case: French.