62018TJ0545_RES
Case T‑545/18
YL
v
European Commission
Judgment of the General Court (Ninth Chamber), 11 September 2019
(Civil service — Officials — Promotion — 2017 promotion procedure — Decision not to promote the applicant to grade AD 7 with effect from 1 January 2017 — Article 45 of the Staff Regulations — Article 9(3) of Annex IX to the Staff Regulations — Misuse of powers — Disciplinary measure)
Officials — Promotion — Consideration of comparative merits — Discretion of the administration — Factors that may be taken into consideration
(Staff Regulations, Art. 45)
(see paragraphs 20, 25, 26)
Officials — Promotion — Withholding promotion — Promotion withheld on grounds of misconduct constituting an official’s failure to comply with his obligations — Lawfulness
(see paragraph 21)
Résumé
In the judgment in YL v Commission (T‑545/18), delivered on 11 September 2019, the General Court dismissed an official’s action, first, for annulment of the decision of the appointing authority of the Commission not to promote him to grade AD 7 with effect from 1 January during the 2017 promotion procedure (‘the contested decision’) and, secondly, for compensation for the damage he allegedly suffered as a result of that decision. By decision of 23 March 2016, the appointing authority had previously imposed on the applicant the penalty of a relegation in step, on the ground, inter alia, that during leave on personal grounds he had engaged in conduct that could have been damaging to the reputation of the Commission. In support of his claim for annulment, the applicant submitted that taking into account the decision of 23 March 2016 (the relegation in step) for the purposes of consideration of the comparative merits as provided for in Article 45 of the Staff Regulations had the effect of penalising him twice for the same acts.
In the first place, the Court noted that Article 45 of the Staff Regulations does not contain an exhaustive list of criteria that may be taken into account for the purposes of consideration of comparative merits and also that, in that context, failure to comply with obligations under the Staff Regulations may be taken into consideration by the appointing authority in order to reject, where appropriate, the candidature of the person concerned for promotion.
Secondly, the Court held that the acts giving rise to the penalty of relegation in step gave an indication of the applicant’s merits since they concerned failures to fulfil obligations which he was required to meet in his capacity as an official. Accordingly, even the circumstance that some of those acts took place during the applicant’s leave on personal grounds did not, on its own, preclude them from being taken into account for the purposes of consideration of the comparative merits as provided for in Article 45 of the Staff Regulations.
Thirdly, the Court found that the applicant produces no evidence to show that the decision not to promote him was adopted, not on the basis of consideration of the comparative merits as provided for in Article 45 of the Staff Regulations, but rather with the aim of penalising him twice for the acts that gave rise to the decision of 23 March 2016.
Lastly, the Court held that the contested decision cannot be regarded as having the effect of bringing about an unlimited and arbitrary blocking of the applicant’s career, in breach of the principle of legal certainty. First, the appointing authority took into account a decision to impose a penalty adopted on 23 March 2016, that is to say, during the year immediately preceding the 2017 promotion procedure. Secondly, the contested decision does not preclude the applicant, if appropriate, being awarded a promotion during a subsequent promotion procedure, which was moreover the case during the 2018 promotion procedure.