JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (First Chamber)

30 September 2010

Case F-43/09

Carlo van Heuckelom

v

European Police Office (Europol)

(Civil service — Staff Regulations of Europol — Article 29 — Advancement in step granted on the basis of staff reports — Plea of illegality of the decision establishing the policy for determining grades and steps — Respective powers of Europol’s Director and Management Board — Europol’s Director’s discretion — Limits)

Application: brought under Article 40(3) of the Convention based on Article K.3 of the Treaty on European Union, on the establishment of a European Police Office (Europol Convention), and Article 93(1) of the Staff Regulations applicable to Europol employees, in which Mr van Heuckelom seeks annulment of the decision of the Director of Europol of 14 July 2008 awarding him advancement of a single step from 1 April 2008, and of the decision of 19 January 2009 rejecting his complaint against the first decision.

Held: The applicant’s action is dismissed. Each party is ordered to bear its own costs.

Summary

1. Actions for annulment — Interest in bringing proceedings — Natural or legal persons

(Art. 263, fourth para., TFEU)

2. Officials — Actions — Prior administrative complaint — Correspondence between the complaint and the application — Same subject-matter and legal basis — Plea of illegality relating to a legal cause of action other than that set out in the complaint — Admissibility

(Staff Regulations, Arts 90 and 91)

3. Officials — Staff of Europol — Two-yearly advancement in step

(Europol Staff Regulations, Arts 28 and 29)

4. Officials — Staff of Europol — Two-yearly advancement in step

(Europol Staff Regulations, Art. 29)

1. An action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in the annulment of the contested measure. In order for such an interest to be present, the annulment of the measure must of itself be capable of having legal consequences or, in accordance with a different form of words, the action must be liable, if successful, to procure an advantage for the party who has brought it.

(see para. 31)

See:

53/85 AKZO Chemie and AKZO Chemie UK v Commission [1986] ECR 1965, para. 21

T-480/93 and T-483/93 Antillean Rice Mills and Others v Commission [1995] ECR II-2305, paras 59 and 60 and the case-law cited therein; T-188/99 Euroalliages v Commission [2001] ECR II-1757, para. 26; T-310/00 MCI v Commission [2004] ECR II-3253, para. 44

2. The rule of correspondence between administrative complaint and legal action requires, in substance, that the relief sought and the cause of action should be the same in the application and in the complaint. That requirement is to be interpreted flexibly. The correspondence rule can therefore apply only where the judicial action alters the relief sought in the complaint or its cause of action, and the concept of ‘cause of action’ must be given a broad interpretation. According to such an interpretation, as regards claims for annulment, the ‘cause of action of the dispute’ must be understood as the applicant’s challenge to the substantive legality of the contested decision or, in the alternative, the challenge to its procedural legality.

As regards pleas of illegality, even where they relate to a legal cause of action other than that set out in the complaint, to hold them inadmissible for breach of the correspondence rule would upset the balance between the protection of the official’s procedural rights and the purpose pursued by the pre-contentious procedure and would amount to a disproportionate and unjustified penalty for the official. Given the intrinsically legal nature of a plea of illegality, and also of the reasoning which underlies contemplating and then pleading illegality of this nature, the official or servant who lodges the complaint, and who does not necessarily have the appropriate legal expertise, cannot be required to formulate such a plea at the pre-contentious stage, failing which it will be declared inadmissible in the legal proceedings. That is particularly so since to raise a plea of illegality at the pre-contentious stage seems hardly liable to result in the complainant being successful at that stage, as the administration is unlikely to choose to disapply a provision in force, on the ground of the provision’s possible non-compliance with a higher-ranking rule, for the sole purpose of allowing an extrajudicial resolution of the dispute.

(see paras 43-44)

See:

judgment of 1 July 2010 in F-45/07 Mandt v Parliament, paras 109, 115 and 119 and the case-law cited therein, and para. 121

3. The system for determining grades and steps in force in Europol involves two separate procedures: first, periodical reports, which are the subject of Article 28 of the Europol Staff Regulations and which are the responsibility of the reporting officer, and second, advancement in steps, provided for in Article 29 of those Staff Regulations, for which the Director of Europol is responsible.

According to the first sentence of the first paragraph of Article 29 of the Europol Staff Regulations, decisions of the Director of Europol concerning the award of two-yearly steps to Europol staff are adopted on the basis of an ‘assessment’, which takes into account the performance of each official concerned. It follows that, where the third sentence of the first paragraph of Article 29 of the Europol Staff Regulations provides that ‘further details on the assessment procedure shall be laid down by the Management Board’, that provision refers to the procedure by which the performance of Europol staff is evaluated and assessed. It thus does not require the Europol Management Board to lay down details on the procedure relating to advancement in step.

(see paras 48-50)

See:

T-209/02 and T-210/04 Mausolf v Europol [2006] ECR-SC I-A-2-79 and II-A-2-335, para. 37

4. Under Article 29 of the Europol Staff Regulations, the Director may award a maximum of two incremental points every two years, on the basis of an assessment, taking into account the performance of the official concerned. The application of that article falls within an area in which the Director of Europol has a wide discretion, similar to that enjoyed by the appointing authority in applying Article 45 of the Staff Regulations of Officials.

Article 5(1) of the policy for determining grades and steps of Europol staff, adopted by the Director, determines the criteria for the award of incremental points. Taking the two most recent annual assessments as a basis, the Director awards two incremental points to staff who have consistently or frequently exceeded expectations, no incremental points to those who have not, or only partly, met expectations, and one incremental point to all other staff.

It is clear from Article 5(1) that the Director awards two incremental points only where the performance of the staff member concerned has been particularly outstanding and has more than met expectations during both years of the reference period. Those criteria, albeit very demanding, are designed to reward consistent effort. It cannot be denied that the policy of encouraging staff to persist in their efforts to exceed expectations, adopted by the Director of Europol in exercising the discretion conferred on him by Article 29 of the Europol Staff Regulations, seeks to benefit the interests of the service.

Since the Director does not have any discretion in applying Article 5(1) of the abovementioned policy and must strictly adhere to the criteria laid down by that provision, the very fact that his power as regards advancement in step is circumscribed by those criteria enables him to ensure that candidatures are examined carefully, fairly and in accordance with the principle of equal treatment.

(see paras 59, 61-63)

See:

Mausolf v Europol, para. 67