JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
20 October 2021 (*)
(Civil service – Officials – Promotion – 2019 promotion exercise – Decision not to promote the applicant to grade AST 9 – Article 45 of the Staff Regulations – Comparison of merits – Manifest error of assessment – Duty to state reasons)
In Case T‑599/20,
YG, represented by S. Rodrigues and A. Champetier, lawyers,
applicant,
v
European Commission, represented by L. Hohenecker, L. Radu Bouyon and L. Vernier, acting as Agents,
defendant,
APPLICATION under Article 270 TFEU for annulment of the Commission’s decision of 14 November 2019 not to promote the applicant to grade AST 9 in the 2019 promotion exercise,
THE GENERAL COURT (Fourth Chamber),
composed of S. Gervasoni, President, R. Frendo (Rapporteur) and J. Martín y Pérez de Nanclares, Judges,
Registrar: E. Coulon,
gives the following
Judgment
Background to the dispute
1        The applicant, YG, is an official at the European Commission in grade AST 8 who has been working in the Directorate-General (DG) for Informatics (‘DIGIT’) since 16 April 2014. Prior to that time, he worked at the Commission for DG ‘Eurostat’ from 1 April 2000 to 28 February 2009 and at the European Parliament from 1 March 2009 to 15 April 2014.
2        On 1 January 2019, the applicant had accrued seven years’ service in grade AST 8.
3        By publication in Administrative Notices No 14-2019 of 2 April 2019 addressed to all Commission officials, the Commission launched the 2019 promotion exercise, covering the period from 1 January to 31 December 2018.
4        On 18 June 2019, the list of officials proposed for promotion was published in the Commission’s human resources management IT system, Sysper2. The applicant’s name was not on that list.
5        On 20 June 2019, the applicant brought an internal appeal against the failure to include his name on the list of officials proposed for promotion.
6        The applicant’s appeal referred to in paragraph 5 above was first considered by the Joint Working Group, which issued an opinion to the effect that it did not recommend the applicant for promotion. The Joint Promotion Committee, after considering the file and the comparative merits in the grade, subsequently issued an opinion which concurred with that of the Joint Working Group.
7        On 14 November 2019, the Commission’s appointing authority published in Administrative Notices No 32-2019 the list of officials promoted in the 2019 promotion exercise (‘the contested decision’). The applicant’s name was not on that list.
8        On 13 February 2020, the applicant submitted a complaint pursuant to Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) against the contested decision.
9        By decision of 11 June 2020, the Commission rejected the applicant’s complaint (‘the decision rejecting the complaint’).
Procedure and forms of order sought
10      The applicant brought the present action by application lodged at the Court Registry on 22 September 2020.
11      By separate document lodged at the Court Registry on 9 October 2020, the applicant applied for anonymity vis-à-vis the public pursuant to Article 66 of the Rules of Procedure of the General Court. By decision of 27 November 2020, the Court (Fourth Chamber) granted that application.
12      The Commission lodged its defence on 15 December 2020.
13      On 6 January 2021, the Court (Fourth Chamber) decided, pursuant to Article 83(1) of the Rules of Procedure, that a second exchange of pleadings was unnecessary.
14      By document lodged at the Court Registry on 2 February 2021, the applicant requested authorisation to lodge a reply in accordance with Article 83(2) of the Rules of Procedure.
15      On 10 February 2021, the Court (Fourth Chamber) decided to refuse the applicant’s request for authorisation to lodge a reply.
16      On 25 February 2021, the Court (Fourth Chamber) invited the applicant, by way of measures of organisation of procedure provided for in Article 89 of the Rules of Procedure, to submit his observations on Annexes B3 to B5 to the defence, which had been produced by the Commission for the first time in the course of the present proceedings.
17      The applicant complied with that request within the prescribed period. On 26 March 2021, the Commission submitted its observations on the applicant’s response.
18      In view of the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, the Court, considering that it had sufficient information available to it from the material in the file, decided, pursuant to Article 106(3) of the Rules of Procedure, to rule on the action without an oral part of the procedure.
19      The applicant claims that the Court should:
–        annul the contested decision;
–        annul the decision rejecting the complaint;
–        order the Commission to pay the costs even if the present action is dismissed.
20      The Commission contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
Preliminary observations
21      In the response to the measures of organisation of procedure referred to in paragraph 16 above, the applicant expressed his regret at the Court’s decision to refuse his request for authorisation to lodge a reply.
22      In that regard, it should be noted that, under Article 83(1) and (2) of the Rules of Procedure, the Court may decide that a second exchange of pleadings is unnecessary where it considers that the contents of the file are sufficiently comprehensive.
23      It follows that the Court’s decision whether or not to allow the applicant to lodge a reply under that provision falls within the Court’s discretion and cannot therefore constitute an infringement of EU law (see order of 15 January 2020, BS v Parliament, C‑642/19 P, not published, EU:C:2020:32, paragraph 5 and the case-law cited).
24      In the light of the foregoing, the Court cannot, in any event, be criticised for not having granted the applicant’s request.
Subjectmatter of the present action
25      By his first and second heads of claim, the applicant seeks the annulment, first, of the contested decision and, second, of the decision rejecting the complaint.
26      It is settled case-law that claims directed against a decision rejecting a complaint have the effect of bringing before the Court the act against which the complaint was submitted and, as such, lack any independent content. Since that is the case here, the present action for annulment must be regarded as directed solely against the contested decision (see, to that effect, judgment of 20 November 2007, Ianniello v Commission, T‑205/04, EU:T:2007:346, paragraphs 27 and 28 and the case-law cited).
27      Nevertheless, in the present case, the relevant statement of reasons for assessing the legality of the contested decision is contained in the decision rejecting the complaint, so that it must be concluded that the action has the effect of bringing before the Court the contested decision, the grounds for which were clarified by the decision rejecting the complaint (see, to that effect, judgments of 10 June 2004, Eveillard v Commission, T‑258/01, EU:T:2004:177, paragraphs 31 and 32, and of 10 April 2014, Nieminen v Council, F‑81/12, EU:F:2014:50, paragraph 16 and the case-law cited).
Substance
28      In support of the present action, the applicant relies on two pleas in law, alleging infringement of Article 45 of the Staff Regulations and breach of the duty to state reasons.
The first plea, alleging infringement of Article 45 of the Staff Regulations
29      By his first plea, the applicant disputes the validity of the reasons for the contested decision, as clarified by the decision rejecting the complaint, in so far as the reasons relate to the consideration of his merits in the light of Article 45 of the Staff Regulations, read in conjunction with Article 4 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’). Four complaints should essentially be distinguished.
–       The first complaint, alleging that the Commission did not produce sufficient extracts from the appraisal reports of the promoted officials
30      In the first place, the applicant alleges that the Commission failed to provide him with sufficient extracts from the appraisal reports of all the promoted officials working in the same directorate-general as him or from those of all the officials who appealed to the Joint Promotion Committee.
31      In that regard, it should be borne in mind that, in accordance with case-law, in the light of the broad discretion enjoyed by the appointing authority as regards promotion, subject to review by the EU judicature as to the existence of, inter alia, an error of law (see, to that effect, judgment of 31 January 2008, Valero Jordana v Commission, F‑104/05, EU:F:2008:13, paragraph 75), the review by the EU judicature must be confined to the question of whether, regard being had to the various considerations that have influenced the administration in making its assessment, the latter has remained within reasonable limits and has not used its power in a manifestly incorrect way, and the EU judicature cannot therefore substitute its assessment of the qualifications and merits of candidates for that of the appointing authority (judgments of 21 April 1983, Ragusa v Commission, 282/81, EU:C:1983:105, paragraphs 9 and 13; of 3 April 2003, Parliament v Samper, C‑277/01 P, EU:C:2003:196, paragraph 35; and of 15 September 2005, Casini v Commission, T‑132/03, EU:T:2005:324, paragraph 52).
32      Therefore, subject to verification by the EU judicature as to whether there has been an error of law, it is not for the EU judicature to review the merits of the administration’s assessment of an official’s professional abilities, which involves complex value judgements which, by their nature, are not amenable to objective verification (see judgment of 16 May 2013, Canga Fano v Council, T‑281/11 P, EU:T:2013:252, paragraph 41 and the case-law cited). Nor is it for the 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 (judgments of 15 January 2014, Stols v Council, T‑95/12 P, EU:T:2014:3, paragraph 31, and of 28 September 2011, AC v Council, F‑9/10, EU:F:2011:160, paragraph 24).
33      Since the Court cannot, in any event, carry out an in-depth review of the comparison conducted by the appointing authority of the merits of the promoted officials without substituting its own assessment for that of the appointing authority, the Commission cannot be required, contrary to what the applicant claims, to produce all of the extracts from the appraisal reports of, first, all the officials promoted within DIGIT, to which the applicant is attached, and, second, all the officials who appealed to the Joint Promotion Committee.
34      In his pleadings, the applicant relies on the case that gave rise to the judgment of 28 May 2020, YG v Commission (T‑518/18, not published, under appeal, EU:T:2020:221), which was brought in the context of the 2017 promotion exercise. It is clear, however, that in that case the Court merely asked the Commission to produce complete versions of the appraisal reports of the promoted officials in the same directorate-general as the applicant whose extracts had been cited in the decision rejecting the complaint, and not, as the applicant appears to be claiming, also extracts from the appraisal reports of all the promoted officials in the same directorate-general as the applicant or those who appealed to the Joint Promotion Committee.
35      Furthermore, it is clear from the file that, during the course of the proceedings, the Commission has produced, as annexes to its defence, complete and confidential versions of the appraisal reports of the officials anonymously designated by the letters A, B, C, D, E and F (‘officials A to F’). At the same time, the Commission also produced complete and confidential versions of the appraisal reports of the promoted officials designated by the letters X and Y (‘officials X and Y’), who were assigned to the same directorate-general as the applicant.
36      In the light of the considerations set out in paragraphs 31 to 35 above, the applicant’s argument that the Commission should have produced extracts from the appraisal reports of the promoted officials working in the same directorate-general as him or those of all the officials who appealed to the Joint Promotion Committee must be rejected.
37      The same applies to the applicant’s criticism in the response to the measures of organisation of procedure that the appraisal reports produced by the Commission were not sufficiently complete. He submits that, their being confidential versions, the fact that the section relating to the self-assessment of officials A to F is redacted hinders the assessment and better understanding of the precise nature of their duties and, consequently, their level of responsibilities.
38      In that regard, it should be pointed out that requiring the institutions to produce complete versions of the appraisal reports of other, promoted, officials, including in an anonymised form, must be weighed against the need to preserve the confidentiality of the information about those officials, which may pose specific difficulties, particularly in smaller administrative units. It might prove possible, or even easy, in such units to deduce the identity of promoted officials from the content of the appraisal reports, despite their being anonymised.
39      It follows that the Commission cannot be required to produce complete and non-confidential versions of the appraisal reports of officials A to F (see, to that effect and by analogy, order of 8 October 2015, Nieminen v Council, T‑464/14 P, EU:T:2015:787, paragraph 32).
40      The Court, considering that it has sufficient information from the material in the file, finds that the production of the complete and non-confidential versions of the appraisal reports of officials A to F is unnecessary (see, to that effect, judgment of 24 March 2015, Maggiulli v Commission, F‑61/14, EU:F:2015:20, paragraph 54).
41      Furthermore, as regards the reports of officials X and Y, it should be noted that they were not taken into account at all in the decision rejecting the complaint.
42      As the considerations contained in the appraisal reports of officials X and Y constitute new grounds, having regard to the content of the contested decision, they cannot serve as a basis for its legality, since the EU judicature cannot, according to settled case-law, substitute such a ground for that or those contained in the contested measure (see, to that effect, judgments of 9 September 2014, MasterCard and Others v Commission, T‑516/11, not published, EU:T:2014:759, paragraph 60, and of 19 July 2017, Dessi v EIB, T‑510/16, not published, EU:T:2017:525, paragraph 78).
43      Accordingly, all of the arguments set out by the applicant in the context of the present complaint relating to the appraisal reports of officials X and Y, which did not serve as a basis for the contested decision, must be rejected as ineffective.
44      In any event, the applicant’s observations on the reports of officials X and Y are limited to criticising the assessment carried out by the appointing authority in adopting the decision to promote those officials.
45      In that regard, it should be borne in mind that, since the appointing authority enjoys a broad discretion as regards the consideration of candidates’ comparative merits, in the absence of any indication whatsoever of a clear breach of the rules governing the promotion exercise, it is not for the applicant to substitute his or her own assessment for that of the appointing authority (see, to that effect and by analogy, judgments of 1 December 1994, Michaël-Chiou v Commission, T‑46/93, EU:T:1994:285, paragraphs 48 and 49, and of 7 May 2019, WP v EUIPO, T‑407/18, not published, EU:T:2019:290, paragraph 84).
46      In the second place, the applicant takes issue, inter alia, with the fact that the decision rejecting the complaint contains no information about the directorates-general to which officials A to F, whose extracts were cited in that decision, were assigned.
47      In that regard, it should be borne in mind that the promotion procedure within the Commission, as provided for in Article 5 of the GIP for Article 45, comprises two stages.
48      In the first stage, officials eligible for promotion are identified in a decentralised manner for each directorate-general. That stage is completed when each head of service provides, through the Commission’s human resources management IT system, to all members of staff (see paragraph 4 above), the list of officials in each grade who have been proposed for promotion.
49      In the second stage, officials not proposed for promotion have the opportunity to lodge an internal appeal before the Joint Promotion Committee. The exercise of that right entitles those officials to a consideration of their comparative merits not only at the level of their respective directorate-general, but also at the level of the institution as a whole (judgment of 20 July 2016, HL v Commission, F‑112/15, EU:F:2016:161, paragraph 50).
50      In those circumstances, since the applicant lodged, in the second stage of the procedure, an internal appeal against the failure to include his name on the list of officials proposed for promotion (see paragraph 5 above), it must be found, in the absence of any evidence to the contrary, that his merits were compared with those of the promoted officials at the level of the institution.
51      Furthermore, it should be noted that, at the meeting of 26 November 2019, referred to in paragraph 56 below, the applicant was assured, as is apparent from the minutes of that meeting, that the appointing authority had indeed carried out a comparison of the merits of the officials eligible for promotion in the 2019 promotion exercise.
52      In that regard, the appointing authority fulfils its obligations under the Staff Regulations if, in the decision rejecting the complaint, it clearly highlights, as it did in the present case, the fact that it considered the comparative merits of all the officials eligible for promotion, on the basis of all the information available, in particular the appraisal reports, irrespective of whether or not they were included on the initial lists of officials proposed for promotion by the directors-general and heads of service of the institution (see, to that effect, judgment of 28 June 2016, Kotula v Commission, F‑118/15, EU:F:2016:138, paragraph 58 and the case-law cited).
53      It follows that the fact that the decision rejecting the complaint contained no indication as to the directorates-general to which officials A to F – from whose appraisal reports extracts were quoted – were assigned does not lead to the conclusion that there was an infringement of Article 45 of the Staff Regulations.
54      In the light of the foregoing, the same necessarily applies to all of the applicant’s arguments relating to the existence of an alleged distinction between the officials who were proposed for promotion during the first stage of the procedure and those who brought an internal appeal against that decision.
55      Accordingly, the first complaint must be rejected as unfounded.
–       The second complaint, alleging a failure to consider the comparative merits of the officials eligible for promotion
56      By his second complaint, the applicant argues that the contested decision was taken exclusively on the basis of negative feedback from the Head of Unit B3 in relation to the quality of the applicant’s work in 2018. That feedback was given to him in a meeting on 26 November 2019 held with one of the Directors of DIGIT and a human resources representative, to discuss his non-promotion. The applicant concludes that the appointing authority did not consider the comparative merits of the officials eligible for promotion, as required by Article 45(1) of the Staff Regulations.
57      In that regard, Article 45(1) of the Staff Regulations provides that, when considering comparative merits, the appointing authority is to take account in particular of the reports on the officials, their use of languages in the execution of their duties other than the language for which they have produced evidence of thorough knowledge upon their appointment and the level of responsibilities exercised by them. The use of the phrase ‘in particular’ implies the possibility of taking into account other considerations that may also give an indication of the merits of officials eligible for promotion. It follows that that provision allows the institutions a certain amount of freedom as to which factual matters to take into account in their consideration of the comparative merits of officials eligible for promotion, since it does not provide an exhaustive list in that regard (see judgment of 28 September 2011, AC v Council, F‑9/10, EU:F:2011:160, paragraph 25 and the case-law cited).
58      In addition, Article 5(3) of the GIP for Article 45 provides, in essence, that the directors within each directorate-general are to consider the comparative merits of the officials eligible for promotion after consulting those officials’ reporting officer.
59      Accordingly, Article 45(1) of the Staff Regulations does not preclude the possibility of taking into account other forms of assessment in addition to, inter alia, appraisal reports. Indeed, in accordance with Article 5(3) of the GIP for Article 45, the Director of DIGIT was supposed to consult the applicant’s reporting officer in order to take account of his feedback when considering comparative merits.
60      It follows that the fact that the applicant’s Head of Unit was consulted and his feedback was taken into account does not in itself constitute the slightest indication that, in the present case, the appointing authority failed to consider the comparative merits in accordance with Article 45(1) of the Staff Regulations.
61      Furthermore, it is apparent from the decision rejecting the complaint that the appointing authority did carry out a comparative examination of the applicant’s merits vis-à-vis those of the other officials who were eligible for promotion in the light of the criteria laid down in Article 45(1) of the Staff Regulations.
62      Indeed, it is apparent from the decision rejecting the complaint that, in the first place, the appointing authority analysed the applicant’s merits in terms of efficiency, ability and conduct in the service on the basis of the appraisal reports, that is to say, the first criterion laid down by Article 45(1) of the Staff Regulations. In that regard, the appointing authority compared the applicant’s merits with those of officials A to F, as is apparent from the analysis carried out in the context of the third complaint (paragraphs 70 to 80 below).
63      In the second place, the appointing authority also took into consideration the criterion relating to the use of languages in the execution of duties, while observing that the applicant did not exceed the average level of linguistic proficiency expected of an official in the same grade.
64      In the third place, as is apparent from the analysis carried out in the context of the third complaint (paragraphs 84 to 86 below), the decision rejecting the complaint contains a comparative examination as regards the level of responsibilities exercised.
65      The Commission therefore fulfilled its obligation to undertake a comparative examination of the applicant’s merits vis-à-vis those of the officials promoted to grade AST 9, as required by Article 45(1) of the Staff Regulations.
66      Accordingly, the second complaint must be rejected as unfounded.
–       The third complaint, alleging a manifest error of assessment in relation to the applicant’s merits
67      By his third complaint, the applicant argues that the contested decision is vitiated by a manifest error of assessment in relation to his merits.
68      In addition to the case-law cited in paragraphs 31 and 32 above, it should be borne in mind that the discretion conferred on the administration in matters of promotion is limited by the need to undertake a comparative examination of merits with care and impartiality, in the interests of the service and in accordance with the principle of equal treatment. While the appointing authority has the power under the Staff Regulations to conduct that examination according to the procedure or method it deems most appropriate, in practice it must be undertaken on a basis of equality, using comparable sources of information (see judgments of 16 May 2013, Canga Fano v Council, T‑281/11 P, EU:T:2013:252, paragraph 42 and the case-law cited, and of 13 July 2018, Pereira v Commission, T‑606/16, not published, EU:T:2018:470, paragraph 108 and the case-law cited).
69      In the present case, in the decision rejecting the complaint the appointing authority quoted extracts from the applicant’s appraisal reports for the period from 2012 to 2018 and extracts from the appraisal reports of officials A to F for 2018. Those extracts contain an assessment of the merits of all of those officials, which the appointing authority largely adopted.
70      The applicant takes the view that the appointing authority incorrectly assessed his appraisal reports, which are said to make reference to the consistency of his performance, his efficiency and his conduct and to contain positive feedback despite several changes of post and the fact that, during his career, his performance has been assessed by different reporting officers.
71      It is apparent from page 15 of the decision rejecting the complaint that the appraisal reports of the applicant’s colleagues who were promoted attest, in essence, to ‘excellent merits’ and ‘outstanding performance’, which, moreover, the applicant does not dispute. On the other hand, the appointing authority’s assessments of the applicant’s merits are formulated in markedly less laudatory terms and can essentially be described as satisfactory.
72      As regards, specifically, the applicant’s reports, and, in particular, the extracts from the appraisal reports for the period from 2012 to 2016, it is true that they contain, as the applicant claims, reasonably positive feedback as regards the quality of his performance. The fact remains, however, that those extracts also reveal that the applicant’s performance displayed certain weaknesses and that improvement remained necessary, which he himself acknowledges, while qualifying the impact and importance of those comments in the examination of merits. More specifically, the applicant claims that those matters must be regarded as mere suggestions as to the areas on which he was to focus, suggestions which cannot, in any event, be treated in the same way as criticisms of the quality of his performance.
73      It is clear, however, as the Commission states without making a manifest error of assessment, that the remarks in question appear in an unchanged form during the period from 2012 to 2016. That is an indication that the weak points highlighted in the applicant’s appraisal reports and subsequently reproduced by the appointing authority in the decision rejecting the complaint did not substantially improve over a four-year period.
74      In the light of the fact that those remarks are repeated, they cannot, contrary to what the applicant claims, be regarded as mere ‘polite suggestions’ or ‘directions for improvement’, but, on the contrary, must be regarded as repeated criticisms of the quality of the applicant’s performance, which has not shown satisfactory improvement over time.
75      The applicant also argues that the possible weaknesses referred to in paragraph 72 above, which, in his view, constitute the only less positive aspect of his appraisal reports, appear only in the extracts from the reports for the period from 2012 to 2016. He observes that, since those remarks do not appear in his more recent appraisal reports, it would be unfair to continue to cite them to justify the delay in his promotion.
76      However, in the decision rejecting the complaint, the appointing authority relied not only on the applicant’s appraisal reports for the period from 2012 to 2016, but also, and rightly, on the more recent appraisal reports for 2017 and 2018.
77      During the period from July 2017 to October 2018, the applicant was made available to a different unit of DIGIT, namely Unit D1. He submits that, despite this change in circumstances, the reports for that period contain no hint of a lack of contribution on his part to the institution or of the fact that he was not performing at the level to be expected of officials of the same grade.
78      In that regard, it should be noted that, during that period, the applicant had the necessary time to adapt to his new working environment following his posting to a different unit and to find a way to contribute effectively to the achievement of that unit’s objectives. However, as the Commission states, the appraisal reports for 2017 and 2018 show a limited number of tasks, responsibilities and interactions. It is not apparent therefrom that the applicant accumulated as many merits to justify a promotion as the officials in the same grade who were promoted.
79      In addition, the applicant has not put forward any argument, let alone evidence, which substantiates incompleteness, or casts doubt on the veracity, of the assessment of his merits as set out in his appraisal reports for 2017 and 2018 and adopted by the appointing authority, or which demonstrates that it was vitiated by a manifest error within the meaning of the case-law cited in paragraph 31 above.
80      It is also necessary to reject all of the applicant’s arguments relating to his appraisal report for the period from 1 January to 31 December 2019, which is not relevant in the present proceedings, since the promotion exercise at issue relates to the period up to 31 December 2018.
81      In the light of the foregoing, the applicant’s arguments alleging a manifest error of assessment in respect of his appraisal reports must be rejected as unfounded.
82      In the response to the measures of organisation of procedure, following production by the Commission, as annexes to its defence, of the complete and confidential versions of the appraisal reports of officials A to F, the applicant puts forward a series of arguments relating to the assessment of his level of responsibilities.
83      In that regard, it should be pointed out that the applicant does not dispute the decision to promote officials B and C. He accepts that, in the light of their seniority in grade and appraisal reports, they were rightly promoted. The same applies to officials D to F, who appealed to the Joint Promotion Committee.
84      The applicant claims that the appointing authority erroneously assessed the level of the responsibilities he exercised in that his tasks were much more complex and required more expertise than those performed by A. He observes that A’s tasks consisted in maintaining and monitoring a list of external providers of A’s unit and a list of hardware and software licences. The applicant concludes that those tasks, unlike the tasks which he was required to perform, had very little complexity and did not require any particular expertise.
85      In that regard, it should be noted that, in the decision rejecting the complaint, the appointing authority described the responsibilities exercised by the applicant as involving ‘[the production of] dedicated studies related to selected subjects on data’, whereas the extract from A’s appraisal report shows that A fulfilled his or her obligations satisfactorily as, in essence, coordinator of four cells within his or her unit.
86      It should also be noted that, according to the principle established by Article 5 of the Staff Regulations that duties must be equivalent to the grade, officials and other staff in the same grade are supposed to hold posts involving equivalent responsibilities. Consequently, the administration must, when considering the comparative merits of officials eligible for promotion, take account of the level of responsibilities exercised by such an official only where they exceed those normally conferred on an official in his or her grade (judgment of 18 May 2015, Pohjanmäki v Council, F‑44/14, EU:F:2015:46, paragraph 66).
87      However, the applicant has adduced no evidence to show that his responsibilities exceeded the usual responsibilities normally exercised by an official in grade AST 8.
88      Furthermore, even if the applicant’s merits linked to the level of the responsibilities he exercised were greater than those of A, as he claims, that would also not support the conclusion that there was a manifest error of assessment in the consideration of comparative merits, in the light of what has already been found with regard to the other two criteria, in paragraphs 63 and 72 to 79 above, which did not place the applicant at an advantage compared with his colleagues.
89      In that regard, it should also be borne in mind that the administration enjoys a broad 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 them (judgments of 16 May 2013, Canga Fano v Council, T‑281/11 P, EU:T:2013:252, paragraph 123, and of 14 November 2012, Bouillez v Council, F‑75/11, EU:F:2012:152, paragraph 58).
90      Accordingly, the appointing authority cannot be accused of having made a manifest error of assessment in finding that, having regard to their responsibilities and performance in the exercise of their respective duties, the applicant’s merits were below those of A.
91      It follows that the applicant has not demonstrated that the appointing authority’s exercise of the discretion it enjoys in matters of promotion was manifestly incorrect within the meaning of the case-law cited in paragraph 31 above.
92      That conclusion cannot be called into question by the other arguments put forward by the applicant.
93      In the first place, the applicant argues that his appraisal reports for the period from 1 May 2017 to 31 December 2018, during which he was made available to Unit D1, were not completed and signed by the head of that unit, but by the Head of Unit B3 to which he had initially been posted.
94      That argument must necessarily fail since the reports to which the applicant refers also contain, as is apparent from the material before the Court, the assessment made by the Head of Unit D1, to which the applicant was posted after he had been made available to that unit.
95      In the second place, the applicant takes the view that, since he has consistently received positive feedback, the administration is required to explain the reasons justifying the long delay in his promotion. He adds that, since he was not promoted in the 2019 promotion exercise, he has spent at least eight years in his current grade, whereas the average rate of promotion for that grade is four years.
96      That argument is not convincing. First, it should be pointed out that officials’ entitlement to reasonable career prospects provided for by the Staff Regulations does not confer on them a personal right to promotion, even if they satisfy all the conditions for promotion (see, to that effect, judgment of 13 April 2005, Nielsen v Council, T‑353/03, EU:T:2005:127, paragraph 57 and the case-law cited). The fact that a candidate has good merits but was not promoted in a previous exercise does not guarantee his promotion in the next exercise and does not imply any presumption concerning the assessment of his merits in a subsequent exercise. A promotion decision depends not only on the candidate’s qualifications and abilities, but also, in particular, on their assessment in comparison with those of the other candidates eligible for promotion in each new promotion exercise (judgment of 31 May 2005, Dionyssopoulou v Council, T‑284/02, EU:T:2005:188, paragraph 20).
97      Secondly, it is true that the appointing authority may, where the merits of the officials eligible for promotion are equal in the light of the three criteria expressly referred to in Article 45(1) of the Staff Regulations, take into account other factors as a secondary consideration, such as the seniority of the officials in the grade or service. However, such other criteria cannot constitute a starting factor in the decision, with the result that the appointing authority could have taken into account the seniority criterion only where the merits of the officials eligible for promotion were equal, which, as is apparent from the analysis in paragraphs 62 to 64 and 71 above, was not the case here (see, to that effect, judgment of 16 May 2013, Canga Fano v Council, T‑281/11 P, EU:T:2013:252, paragraph 44 and the case-law cited).
98      The same applies to the applicant’s argument that the appointing authority failed to take the consistency of his performance into account in the comparative examination. It is sufficient to note in that regard that that is a factor which, like seniority, is not one of the main criteria referred to in Article 45 of the Staff Regulations and which, therefore, in the light of the case-law cited in paragraph 97 above, can be taken into account when considering comparative merits only as a secondary consideration, where the merits of the officials eligible for promotion are equal.
99      In the light of all of the foregoing, the third complaint must be rejected as unfounded.
–       The fourth complaint, alleging that the applicant would have been promoted if the promotion system applicable at the Parliament had been applied to him
100    The applicant submits that, if he had retained his post at the Parliament instead of being transferred to the Commission, he would have been assessed according to a points system, which, in his view, would necessarily have led to his promotion within that institution.
101    In that regard, it should be noted at the outset that the applicant’s assertion is purely speculative.
102    Furthermore, in view of the broad discretion which an institution has for implementing the objectives of Article 45 of the Staff Regulations in accordance with its own needs for the organisation and management of its staff, there is no obligation on an institution to adopt a particular appraisal and promotion system (judgment of 14 February 2007, Simões Dos Santos v OHIM, T‑435/04, EU:T:2007:50, paragraph 132).
103    The Commission was therefore not in any way obliged to adopt rules specifically governing the situation of officials who have been transferred, such as the applicant, and, still less, to apply a points system to promotions like the system at the Parliament. Accordingly, the appointing authority cannot be criticised for having considered the applicant’s comparative merits in accordance with the procedure and general methods adopted by the Commission, in the exercise of its discretion, for all its officials eligible for promotion (see, to that effect, judgment of 28 June 2016, Kotula v Commission, F‑118/15, EU:F:2016:138, paragraph 46 and the case-law cited).
104    It follows that the applicant’s complaint relating to the points system, applicable at the Parliament, which would have enabled him to reach the threshold required for promotion is ineffective, and, in any event, unfounded.
105    In the light of the foregoing, the fourth complaint and, therefore, the first plea in its entirety must be rejected.
The second plea, alleging breach of the duty to state reasons
106    It is settled case-law that the duty to state reasons laid down by the second paragraph of Article 25 of the Staff Regulations, which merely reiterates the general obligation laid down by Article 296 TFEU, is intended, first, to provide the person concerned with sufficient information to assess the merits of the measure adversely affecting him or her and whether it is appropriate to bring an action before the EU judicature and, second, to enable the latter to review the legality of the measure (see judgment of 13 September 2016, Pohjanmäki v Council, T‑410/15 P, not published, EU:T:2016:465, paragraph 77 and the case-law cited).
107    The applicant alleges that the appointing authority failed to provide an individual and relevant statement of reasons in the decision rejecting the complaint, as required by case-law. The appointing authority merely cited the extracts from his appraisal reports and those of the promoted officials, concluding that the merits of those officials were greater than his, without, however, providing any detail relating to his individual situation. In that context, the applicant submits that the decision rejecting the complaint does not specify the precise elements that were used to assess his individual situation.
108    It is therefore necessary to ascertain whether, in the present case, the decision rejecting the complaint contains a general and stereotypical statement of reasons without any information specific to the applicant’s situation, which amounts, pursuant to settled case-law, to a total absence of a statement of reasons (see, to that effect, judgments of 8 July 2020, EP v Commission, T‑605/19, not published, EU:T:2020:326, paragraph 33 and the case-law cited, and of 10 April 2014, Nieminen v Council, F‑81/12, EU:F:2014:50, paragraph 24 and the case-law cited).
109    In that regard, it is apparent from the decision rejecting the complaint that it contains several elements relating to the applicant’s specific and individual situation. After setting out the relevant facts, the decision rejecting the complaint summarised the applicant’s arguments and then began an analysis of the applicable legal framework. That analysis, which is rather generic, may be described as stereotypical. The fact remains, however, that the rest of that decision relates again to circumstances specific to the applicant.
110    Thus, in the decision rejecting the complaint, the appointing authority acknowledges, in the section headed ‘On the comparison of merits’, that, in general, the applicant’s appraisal reports were positive, but it also notes that those reports identified a need for improvement (see paragraphs 72 to 74 above).
111    Next, the appointing authority undertook a more thorough examination and comparison of the merits in three sections, namely ‘i. efficiency, ability and conduct in the service’, ‘ii. use of languages’ and ‘iii. level of responsibilities’, which correspond, in essence, to the three criteria set out in Article 45 of the Staff Regulations on which the consideration of comparative merits is to be based.
112    In the first place, in the section headed ‘i. efficiency, ability and conduct in the service’, the appointing authority cited extracts from the applicant’s appraisal reports for 2012 to 2018, including the reporting officers’ assessments for the period during which the applicant was made available to Unit D1 of DIGIT, reproducing them in three subsections, namely ‘efficiency’, ‘ability’ and ‘conduct in the service’.
113    As has been pointed out in paragraphs 71 to 78 above, the appointing authority concluded that the applicant’s appraisal reports did not demonstrate that the applicant displayed particular merits compared with the promoted officials, who, by contrast, demonstrated excellent merits and outstanding performance.
114    While stating, correctly, that it was not obliged to disclose to an official who was not promoted the comparative assessment carried out in respect of that official, or to set out in detail how it reached the conclusion that the promoted candidates deserved the promotion, inter alia in the light of the judgment of 10 April 2014, Nieminen v Council (F‑81/12, EU:F:2014:50, paragraph 25 and the case-law cited), the appointing authority nevertheless, for the sake of completeness, cited the extracts from the appraisal reports of officials A to F in order to illustrate the level of their respective merits in the light of the criteria referred to in paragraph 111 above.
115    It follows from the analysis carried out in the context of the first plea (see, inter alia, paragraphs 73, 74 and 78 above) that the appointing authority provided the applicant with sufficient information to enable him to understand why his merits were below those of the promoted officials in the light of the considerations contained in their respective appraisal reports.
116    In the second place, as regards the criterion relating to the use of languages in the exercise of duties, the decision rejecting the complaint states that, even though Article 45(2) of the Staff Regulations requires officials to demonstrate, prior to their first promotion after recruitment, the ability to work in a third language, many officials use two other languages in addition to their mother tongue. In the light of that observation, the appointing authority concluded that the applicant’s use of three languages, namely English, French and Italian, which is his mother tongue, was not exceptional and did not place him at an advantage as compared with his colleagues.
117    In that regard, the appointing authority also stated that the fact that the applicant was not promoted did not mean that the language criterion was not taken into account. It also pointed out that the administration enjoys a broad discretion as to the respective importance that it ascribes to each of the three criteria provided for in Article 45(1) of the Staff Regulations (see paragraph 89 above).
118    In the third place and lastly, the appointing authority considered, as has already been observed in paragraph 87 above, that the responsibilities exercised by the applicant did not give him an advantage over his colleagues.
119    It is true that the statement of reasons for the decision rejecting the complaint, as regards the section relating to the level of responsibilities exercised by the applicant, is rather succinct.
120    However, the characterisation of the statement of reasons as succinct is not sufficient in itself to justify the annulment of the contested decision given that, in matters of promotion, the duty to state reasons is fulfilled if, in the decision rejecting the complaint, the appointing authority informs the official concerned of the relevant individual ground justifying the decision not to promote him (see judgment of 10 April 2014, Nieminen v Council, F‑81/12, EU:F:2014:50, paragraph 25 and the case-law cited).
121    As regards the level of responsibilities, the appointing authority cited extracts from the appraisal reports of officials A to F, which contained the assessment of the merits that the appointing authority adopted, while indicating to the applicant the relevant individual ground justifying the decision not to promote him, namely that the tasks he carried out did not, in the light of the criterion relating to the level of responsibilities exercised, give him an advantage over officials A to F (see paragraph 86 above).
122    By citing extracts from the appraisal reports of officials A to F in the decision rejecting the complaint, the appointing authority went beyond its duty to state reasons under Article 296 TFEU and the second paragraph of Article 25 of the Staff Regulations, within the meaning of the case-law cited in paragraph 114 above.
123    Furthermore, the decision rejecting the complaint contains other responses from the appointing authority to the applicant’s arguments relating to his secondment to Unit D1, his transfer from the Parliament to the Commission in 2014 and the fact that the contested decision was based exclusively on the negative feedback from the Head of Unit B3. It is clear that all of those responses also constitute individual considerations relating to the applicant’s specific situation, for the purposes of the case-law cited in paragraph 108 above.
124    It follows from the foregoing considerations that the statement of reasons for the contested decision contained in the decision rejecting the complaint is neither general nor stereotypical, since it contains specific considerations and relevant details relating to the applicant’s individual situation. It follows that that decision contains an adequate statement of reasons enabling the applicant to understand the administration’s reasoning and to assess whether it was appropriate to bring an action and, lastly, enabling the Court to exercise its power of review, within the meaning of the case-law cited in paragraph 108 above.
125    Accordingly, it must be concluded that the contested decision, as clarified by the decision rejecting the complaint, satisfies the requirement to state reasons laid down in Article 296 TFEU and the second paragraph of Article 25 of the Staff Regulations.
126    Therefore, in the light of all of the foregoing considerations, the second plea must be rejected and, consequently, the action must be dismissed in its entirety.
Costs
127    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.
128    It follows that, since the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by the Commission. Moreover, as regards the applicant’s request that he should not be ordered to pay the costs even if his action is dismissed since the Commission, owing to its conduct, left him no choice but to bring the action, it is sufficient to observe that he has not put forward any argument capable of substantiating that assertion.
129    It follows that, since the applicant has been unsuccessful, he 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 YG to pay the costs.
Gervasoni
Frendo
Martín y Pérez de Nanclares
Delivered in open court in Luxembourg on 20 October 2021.
[Signatures]
*      Language of the case: English.