62023TJ0202_RES
(Case T‑202/23)
Ville Kivikoski and Others
v
Council of the European Union
Judgment of the General Court (Ninth Chamber, Extended Composition) of 30 April 2025
(Civil service – Officials – Promotion – 2022 promotion exercise – Decision not to promote the applicant to grade AST 8 – Action for annulment – Interest in bringing proceedings – Demonstration of the prospect of promotion – Admissibility – Article 6(2) of the Staff Regulations – Guiding multiplication rates – Article 45(1) of the Staff Regulations – Comparison of merits)
Actions brought by officials – Interest in bringing proceedings – Action brought against a refusal of promotion – Need to demonstrate prospects of promotion
(Staff Regulations, Arts 6(2), 35, 45(1), 90 and 91)
(see paragraphs 15-28)
Officials – Promotion – Conditions – Compliance with the multiplication rates for guiding average career equivalence – Subject matter of the rates – Possibility of applying a rate different from that provided for in the Staff Regulations in the event of imbalances between the number of officials eligible for promotion in certain grades and the average waiting time in those grades – Precluded
(Staff Regulations of Officials, Arts 6(2) and 45, and Annex I, Section B)
(see paragraphs 36-49)
Résumé
Hearing an action brought by Mr Kivikoski and two other officials of the Council of the European Union, the General Court, sitting in extended composition, annuls the Council’s decision not to promote them to grade AST 8 in the 2022 promotion exercise (‘the contested decision’). In doing so, it clarifies the demonstration of interest, for a potential applicant, in claiming that the reference multiplication rates (‘the multiplication rates’) provided for in Section B of Annex I to the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), applied in the context of a promotion exercise, are incompatible with Article 6(2) of those Staff Regulations. Furthermore, in that context, it interprets Article 6(2) of the Staff Regulations, read in conjunction with Section B of Annex I thereto (‘the rules of the Staff Regulations’), by ruling on the meaning to be given, first, to the words ‘principle of promotion based on merit’, set out in Article 45 of the Staff Regulations and, second, to the expression ‘officials in active employment’, referred to in Article 35 of those Staff Regulations.
On 20 June 2022, the Council published the list of officials eligible for promotion having completed, inter alia, at least two years’ service in their grade as of 1 January 2022, as well as the number of promotions available for each function group and each grade, under the 2022 promotion exercise. The list mentioned the names of the applicants among the 81 officials eligible for promotion to grade AST 8 and stated that 18 possibilities of promotion to that grade were available.
In July 2022, the Council adopted the contested decision by publishing and approving the list of staff members of the AST function group recommended for promotion by the promotion consultative committee, a list which did not include the applicants’ names.
In their complaint, which was rejected by the Council, the applicants claimed that the contested decision infringed the rules of the Staff Regulations, since there should have been 37 possibilities of promotion to grade AST 8, rather than 18, available for the 2022 promotion exercise.
Findings of the Court
In the first place, as regards the admissibility of the action, the Court notes that, where an official relies on a plea alleging incompatibility of the multiplication rates applied in the context of a promotion exercise with Article 6(2) of the Staff Regulations, he or she is required to establish his or her interest in invoking it by demonstrating that, given his or her personal situation, if the number of posts claimed had been respected, he or she would have had the prospect of being promoted.
Under this provision of the Staff Regulations, without prejudice to the principle of promotion based on merit as laid down in Article 45 of the Staff Regulations, the number of vacant positions at every grade on 1 January of each year corresponds to the number of officials in the lower grade in active employment on 1 January of the preceding year, multiplied by the rates laid down in Section B of Annex I to the Staff Regulations, that is 25% for grades AST 5 to AST 8.
Accordingly, the expression ‘officials in active employment’ refers to any of the positions covered by Article 35 of the Staff Regulations. It follows from a combined reading of that provision with Article 6(2) of the Staff Regulations that, during the annual calculation of the number of vacant positions at every grade, only the administrative position of officials in active employment in the lower grade on 1 January of the preceding year must be taken into account, regardless of their eligibility for promotion.
The Court notes that, in the present case, all the officials eligible for promotion to grade AST 8, including the applicants, justified a minimum required period of service in grade AST 7 on 1 January 2022. Furthermore, the fact that the applicants were not singled out from other civil servants eligible for promotion in terms of the basis of their reports or responsibilities exercised tends to demonstrate that, had the multiplication rates been applied, the applicants would have had the prospect, in the same way as the other officials eligible for promotion and subject to the comparative examination of merits provided for in Article 45(1) of the Staff Regulations, of being promoted in the 2022 promotion exercise.
The Court therefore concludes that the applicants have established that, had the number of opportunities for promotion to grade AST 8 they claim been complied with in the 2022 promotion exercise, namely 37 instead of the 18 announced by the Council, they would have had a prospect of being promoted and that, consequently, they have demonstrated an interest in invoking the incompatibility of the multiplication rates applied with Article 6(2) of the Staff Regulations and, therefore, their interest in bringing proceedings.
In the second place, as regards application of the multiplication rates, the Court observes that it cannot be inferred from the words ‘without prejudice to the principle of promotion based on merit as laid down in Article 45 of the Staff Regulations’ in Article 6(2) of the Staff Regulations and referring to a later stage in the promotion process, that that principle may be implemented in order to derogate from the application of multiplication rates to the number of officials who were in active employment at the grade below on 1 January of the preceding year, when determining the annual number of vacant positions for each grade and, therefore, the possibilities of promotion.
Moreover, the multiplication rates pursue two distinct objectives. First, under Article 6(2) of the Staff Regulations, they allow the number of positions available for promotions to be calculated for each grade and, to that end, they are applied on a five-year average basis. Second, they can also be used, independently of Article 6(2) of the Staff Regulations, to determine the average duration of a career in a grade. For that question, account should be taken of the multiplication rates applicable during the years in which the official was in the grade in question and the limitation of the five-year basis provided for in Article 6(2) of the Staff Regulations therefore does not apply. It follows that the question of determining the average career duration in a grade must be separate from that of determining the number of positions that must be open to a particular grade for a promotion exercise.
Thus, the Council could neither apply a multiplication rate different from that laid down in Section B of Annex I to the Staff Regulations nor depart from the number of officials in active employment in grade AST 7 on 1 January of 2021, within the meaning of Article 35 of the Staff Regulations, read in conjunction with Article 6(2) thereof.
First, the particular circumstances characterising the situation of grade AST 7 officials, described by the Council in its written submissions and assuming they are established, cannot justify derogating, by means of corrective measures, from the clear and precise wording of the rules of the Staff Regulations without compromising the implementation of hierarchically superior provisions, such as the provisions of the Staff Regulations and the Conditions of Employment of Other Servants of the European Union or the general principles of law.
In that regard, the Council’s argument that the actual career progression of officials should approximate the average time spent in each grade provided for in Section B of Annex I to the Staff Regulations in the event of imbalances between the number of officials eligible for promotion in certain grades and the average waiting time in those grades is not relevant, since the question of determining the number of possibilities of promotion to grade AST 8 for the 2022 promotion exercise cannot be confused with that aimed at establishing the average career duration in grade AST 7, which is not, unlike the first question, subject to the limitation arising from the five-year average basis provided for in Article 6(2) of the Staff Regulations.
Second, the Council has not demonstrated that the application of the statutory rules in the present case, particularly in view of the difference between the number of officials eligible for promotion and the number of possibilities of promotion, was such as to prevent the consideration of the comparative merits of the officials provided for in Article 45(1) of the Staff Regulations.