JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

10 September 2009

Case F-47/07

Joachim Behmer

v

European Parliament

(Civil service – Officials – Promotion – 2005 promotions exercise – Unlawfulness of instructions governing the promotions procedure – Consultation of the Staff Regulations Committee – Consideration of comparative merits – Discrimination against staff representatives)

Application: brought under Articles 236 EC and 152 EA, in which Mr Behmer seeks, in particular, annulment of the Parliament’s decision not to promote him to grade A*13 with effect from 1 January 2005 in the 2005 promotions exercise.

Held: The action is dismissed. Each party is to bear its own costs.

Summary

1. Officials – Staff Regulations – General implementing provisions – Definition

(Staff Regulations, Arts 45 and 110)

2. Officials – Promotion – Change from one system to another

3. Officials – Principles – Protection of legitimate expectations – Change to the promotions system

4. Officials – Promotion – Decision establishing the list of officials promoted

(Staff Regulations, Art. 45)

5. Officials – Promotion – Criteria – Merits – Taking into consideration of seniority in grade

(Staff Regulations, Art. 45)

6. Officials – Promotion – Complaint by a candidate not promoted – Decision to reject – Obligation to state the reasons on which the decision is based – Scope

(Staff Regulations, Arts 25, second para., 45 and 90(2))

1. The phrase ‘the general provisions for giving effect’ [to these Staff Regulations] in Article 110 of the Staff Regulations refers, first, to the implementing measures expressly provided for by certain special provisions of the Staff Regulations, and, in the absence of any express provision, the obligation to adopt implementing measures subject to the formal requirements of that article can be recognised only in exceptional circumstances, that is, when the provisions of the Staff Regulations are so unclear and imprecise that any application of them must be arbitrary.

Instructions governing the promotions procedure adopted by a Community institution pursuant to Article 45 of the Staff Regulations do not constitute ‘general provisions for giving effect’ within the meaning of Article 110 of the Staff Regulations. First, the provisions of Article 45(1) of the Staff Regulations do not expressly require the adoption of ‘general provisions for giving effect’ within the meaning of Article 110. Second, those provisions are sufficiently precise to be applied in a non-arbitrary manner, even in the absence of formal implementing provisions.

(see paras 47-48)

See:

16/64 Rauch v Commission [1965] ECR 135, 143; 19/63 and 65/63 Prakash v Commission [1965] ECR 533, 548

T-156/95 Echauz Brigaldi and Others v Commission [1997] ECR-SC I‑A‑171 and II‑509, para. 53

2. The Community legislature is free to make at any time such amendments as it considers to be consistent with the interests of the service, even where the provisions introduced are less favourable for the officials concerned, provided, however, that the rights duly acquired by the officials or other staff are safeguarded and that those specifically affected by the new rules are treated in exactly the same way.

Consequently, an official may not rely on a breach of the principle of legal certainty where the administration amends the rules on promotion, knowing, first, that the administration was properly entitled to deem it in the interests of the service to amend those rules, second, that the reform of those rules does not alter the guiding principles concerning, among other things, the criteria, procedure and transparency applicable to the promotion exercise for officials within the institution in question and thus does not infringe any rights that might have already been duly acquired as regards promotion, and third, that all officials in the same grade have been treated in an identical manner.

Furthermore, in so far as the change from one set of rules on promotion to another is lawful, the administration cannot be alleged to have breached the principle of equal treatment when it reformed the rules on promotion on the ground that the changes made were to the detriment of officials with considerable seniority in grade.

(see paras 52-54)

See:

28/74 Gillet v Commission [1975] ECR 463, paras 5 and 6

T-121/97 Ryan v Court of Auditors [1998] ECR II‑3885, paras 98 and 104; T-47/05 Angé Serrano and Others v Parliament [2008] ECR-SC I‑A‑2‑0000 and II‑A‑2‑0000, para. 107, on appeal before the Court of Justice, Case C‑496/08 P

F‑59/05 De Smedt v Commission [2006] ECR-SC I‑A‑1‑109 and II‑A‑1‑409, para. 71; F-61/05 Dalmasso v Commission [2008] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, para. 78

3. The right to rely on the principle of the protection of legitimate expectations extends to any individual who is in a situation in which it appears that the Community administration has led him to entertain reasonable expectations. However, an official may not rely on a breach of the principle of legitimate expectations if he has not been given precise assurances by the administration.

Consequently, in the absence of an undertaking by the administration to maintain a previous set of rules on promotion as they stood, an official may not rely on the principle of legitimate expectations in order to oppose the reform of those rules.

(see paras 55-56)

See:

289/81 Mavridis v Parliament [1983] ECR 1731, para. 21

T-123/89 Chomel v Commission [1990] ECR II‑131, para. 25; T-498/93 Dornonville de la Cour v Commission [1994] ECR-SC I‑A‑257 and II‑813, para. 46; Angé Serrano and Others v Parliament, para. 121

4. There is no obligation for the appointing authority to defer publication of the list of officials promoted where the decision allocating merit points to one of the candidates is not yet definitive. The fact that the appointing authority adopts its promotion decisions without having available all the decisions allocating merit points is not in itself unlawful. It is only where the absence of the definitive decision has been caused by a substantial delay ascribable solely to the administration that it may be declared unlawful.

(see para. 76)

See:

263/81 List v Commission [1983] ECR 103, para. 27; C-68/91 P Moritz v Commission [1992] ECR I‑6849, para. 17

T-202/99 Rappe v Commission [2000] ECR-SC I‑A‑201 and II‑911, para. 39; T-194/99 Sebastiani v Commission [2001] ECR-SC I‑A‑215 and II‑991, para. 44 et seq.

5. Seniority in grade is not one of the criteria laid down in Article 45 of the Staff Regulations for determining which officials should be promoted, it being merely a secondary consideration. Consequently, the fact that an official has not been able to be promoted, even though he obtained the same number of merit points as other officials with less seniority in grade who were promoted, is not such as to characterise a manifest error of assessment, since the administration may have considered that the application of other criteria justified their promotion. Furthermore, taking account of seniority in grade does not mean that an official’s entire professional career must be taken into consideration.

(see paras 84-85)

See:

T-134/02 Tejada Fernández v Commission [2003] ECR-SC I‑A‑125 and II‑609, para. 42 and the case-law cited therein

F‑124/07 Behmer v Parliament [2009] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, paras 106 to 110

6. Although the appointing authority is not under an obligation to provide unsuccessful candidates with reasons for its decision on promotion, it must, on the other hand, give reasons for its decision to reject a complaint lodged, pursuant to Article 90(2) of the Staff Regulations, by an official who has not been promoted, the statement of grounds for such a decision being deemed to be the same as the statement of reasons for the decision against which the complaint was directed. The administration is not, however, required to state how it assessed each of the criteria which led it to adopt a decision.

A decision rejecting a complaint in which the appointing authority states that the merits of the official in question were not sufficient to justify his promotion, since the responsibilities exercised by the promoted officials were undeniably greater, satisfies the obligation to provide a statement of reasons. The elements mentioned enable the official in question to deduce the grounds for the decision not to promote him and to lodge an appeal in order to defend his rights and interests. They also enable the lawfulness of that decision to be reviewed.

(see paras 94-97)

See:

188/73 Grassi v Council [1974] ECR 1099, para. 13; 121/76 Moli v Commission [1977] ECR 1971, para. 12; 195/80 Michel v Parliament [1981] ECR 2861, para. 22

F‑44/07 Barbin v Parliament [2008] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, para. 35; F-81/07 Barbin v Parliament [2008] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, para. 27