JUDGMENT OF THE GENERAL COURT (Ninth Chamber)

11 September 2019 ( *1 )

(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)

In Case T‑545/18,

YL, official of the European Commission, represented by P. Yon and B. de Lapasse, lawyers,

applicant,

v

European Commission, represented initially by L. Radu Bouyon and R. Striani, and subsequently by L. Radu Bouyon and B. Mongin, acting as Agents,

defendant,

APPLICATION under Article 270 TFEU, first, for annulment of the Commission Decision, communicated to the staff of that institution on 13 November 2017, not to promote the applicant to grade AD 7 during the 2017 promotion procedure, secondly, for promotion of the applicant to grade AD 7 with effect from 1 January 2017 and, thirdly, for compensation for the damage the applicant allegedly suffered,

THE GENERAL COURT (Ninth Chamber),

composed of S. Gervasoni, President, K. Kowalik-Bańczyk (Rapporteur) and C. Mac Eochaidh, Judges,

Registrar: M. Marescaux, Administrator,

having regard to the written part of the procedure and further to the hearing on 3 July 2019,

gives the following

Judgment

Background to the dispute

1 The applicant, YL, is an official employed in Directorate-General (DG) [confidential] ( 1 ) of the European Commission since 16 May 2010. He has been in grade AD 6 since 1 January 2012.

2 From 6 January 2014 to 15 January 2016, the applicant took leave on personal grounds.

3 By decision of 23 March 2016 (‘the decision of 23 March 2016’), the Commission’s appointing authority imposed on the applicant the penalty of a relegation in step on the grounds that, in the first place, he had improperly obtained a day’s sick leave on 18 June 2013 during which he had engaged in political activity, secondly, he had published on his personal website on 6 February 2014 a ‘controversial’ article concerning the European Union, without first informing the appointing authority, thirdly, he had made statements to journalists between 11 April and 1 May 2014 that could have been damaging to the reputation of the Commission, fourthly, although he was on leave on personal grounds he had failed to inform the appointing authority that on 30 March 2014 he had been elected to public office, and, fifthly, he had engaged in an outside activity, between 25 February and 15 April 2014, without first obtaining the permission of the appointing authority.

4 The applicant did not challenge the decision of 23 March 2016.

5 By letter of November 2017, the Director-General of DG [confidential] informed the applicant that, in accordance with the recommendations of the Joint Promotion Committee, he would be promoted to grade AD 7 retroactively with effect from 1 January 2017.

6 On 13 November 2017, the appointing authority published the list of officials promoted during the 2017 promotion procedure. The applicant’s name was not on that list.

7 On 12 February 2018, the applicant lodged a complaint against the appointing authority’s decision not to promote him. He claimed, inter alia, that the appointing authority was not entitled to take the decision of 23 March 2016 into account for that purpose.

8 The appointing authority dismissed the applicant’s complaint of 8 June 2018 on the grounds that Article 45 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) did not contain an exhaustive list of criteria to be taken into account for the purposes of consideration of the comparative merits as provided for in that article, and so the decision of 23 March 2016 could be taken into account for the purposes of such consideration. Moreover, it stated that the concept of ‘conduct in the service’ could also constitute one of those criteria.

Procedure and forms of order sought

9 The applicant brought this action by application lodged at the Court Registry on 11 September 2018. The Commission lodged a defence at the Court Registry on 14 December 2018.

10 The applicant claims that the Court should: – annul the decision not to promote him to grade AD 7 during the 2017 promotion procedure; – annul the decision rejecting his complaint; – promote him to grade AD 7 with effect from 1 January 2017; – compensate him for the damage, evaluated at EUR 100000, suffered as a result of the adoption of the decision not to promote him to grade AD 7 during the 2017 promotion procedure; – order the Commission to pay the costs, evaluated at EUR 10000.

11 The Commission contends that the Court should: – dismiss the action; – order the applicant to pay the costs.

Law

12 As a preliminary point, it should be noted that, according to settled case-law, an official’s complaint and its rejection by the competent authority constitute an integral part of a complex procedure, so that the action, even if it is formally directed against the rejection of the official’s complaint, has the effect of bringing before the General Court the act adversely affecting the applicant against which the complaint was lodged (judgments of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 8, and of 25 October 2018, KF v CSUE, T‑286/15, EU:T:2018:718, paragraph 115).

13 Consequently, the claim for annulment of the appointing authority’s decision rejecting the applicant’s complaint must be regarded as being a claim for annulment of the decision not to promote him to grade AD 7 during the 2017 promotion procedure (‘the contested decision’).

14 Although the applicant formally puts forward two separate pleas, the first alleging a manifest breach of legal rules, the second alleging misuse of powers and abuse of process, it must be held that those pleas form, in essence, a single plea alleging that taking into account the decision of 23 March 2016 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. The applicant thus claims that the appointing authority both infringed Article 45 of the Staff Regulations, Article 9(3) of Annex IX to the Staff Regulations and the non bis in idem principle and committed a misuse of powers and an abuse of process.

15 The Commission challenges the applicant’s arguments.

16 Under Article 9(3) of Annex IX to the Staff Regulations, which reiterates the general principle of EU law non bis in idem, a single case of misconduct must not give rise to more than one disciplinary penalty.

17 Moreover, it is clear from Articles 44 and 45 of the Staff Regulations that, unlike advancement, where, in principle, officials automatically advance to the next step after a certain period of time, promotion is awarded only following consideration of the comparative merits of the officials eligible for such promotion.

18 Therefore, under Article 9(1) of Annex IX to the Staff Regulations, deferment of advancement to a higher step – just as a fortiori relegation in step – constitutes a penalty. However, withholding promotion, which, moreover, is not mentioned in that provision, cannot in principle be equated to a penalty, since it is based on consideration of the comparative merits of the officials eligible for the promotion concerned.

19 In that regard, it should be noted that Article 45 of the Staff Regulations provides that ‘when considering comparative merits, the appointing authority shall in particular take account of the reports on the officials, the use of languages in the execution of their duties other than the language for which they have produced evidence of thorough knowledge … and the level of responsibilities exercised by them’.

20 Article 45 of the Staff Regulations makes it clear, by using the term ‘in particular’, which are the three main criteria that must be taken into account when considering the comparative merits of candidates. It does not, however, preclude the taking into account of other criteria also capable of giving an indication of the merits of officials eligible for promotion (judgments of 28 September 2011, AC v Council, F‑9/10, EU:F:2011:160, paragraph 25, and of 14 November 2012, Bouillez v Council, F‑75/11, EU:F:2012:152, paragraph 57).

21 Accordingly, misconduct, in so far as it constitutes an official’s failure to comply with his 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 (see, to that effect and by analogy, judgment of 23 February 2001, De Nicola v EIB, T‑7/98, T‑208/98 and T‑109/99, EU:T:2001:69, paragraph 220). It is in the interest of the institution that only persons of irreproachable professional conduct should be appointed to positions of responsibility (judgment of 2 April 1998, Apostolidis v Court of Justice, T‑86/97, EU:T:1998:71, paragraph 58).

22 Lastly, it should be noted that although, under Article 5(7) of Commission Decision C(2013) 8968 final of 16 December 2013 laying down general provisions for implementing Article 45 of the Staff Regulations, the Joint Promotion Committee is to present for the attention of the appointing authority the list of officials it recommends for promotion, the appointing authority alone is responsible for promotion decisions and consideration of the comparative merits as provided for in Article 45 of the Staff Regulations (see, to that effect, judgment of 14 November 2017, HL v Commission, T‑668/16 P, not published, EU:T:2017:802, paragraph 30).

23 In those circumstances, in the first place, it should be observed that the appointing authority was not bound by the recommendations of the Joint Promotion Committee and it was entitled, when withholding the applicant’s promotion, to take into account the decision of 23 March 2016 for the purposes of consideration of the comparative merits as provided for in Article 45 of the Staff Regulations.

24 That finding is not invalidated by the applicant’s argument in which he criticises the appointing authority for considering, in the decision rejecting his complaint, that the concept of ‘conduct in the service’ could include the decision of 23 March 2016 or the acts which gave rise to imposition of a penalty under that decision.

25 First, in so far as that argument may be based on the concept of ‘conduct in the service’ appearing in Article 43 of the Staff Regulations, it should be noted that that concept relates to the content of officials’ annual reports, which, as was stated in paragraph 20 above, constitute only one of the criteria to be taken into account when considering the comparative merits as provided for in Article 45 of the Staff Regulations.

26 Secondly, notwithstanding the applicant’s contention that the acts giving rise to a penalty under the decision of 23 March 2016 – to quote that decision – ‘bore no relation to his functions and [his] responsibilities within DG [confidential]’ and a fortiori had taken place during his leave on personal grounds, suffice it to say that those acts nonetheless concerned failures to fulfil obligations which he was required to meet in his capacity as an official and therefore gave an indication of his merits within the meaning of the case-law cited in paragraph 20 above. Accordingly, even the fact 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.

27 In the second place, it should be pointed out that the applicant produces no evidence to show that the contested decision 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.

28 In that regard, the applicant merely asserts, first, that the appointing authority withheld his promotion without first informing DG [confidential] and, secondly, that DG Human Resources has a policy of withholding promotion from officials on whom a penalty has been imposed, irrespective of any recommendations made by the Joint Promotion Committee.

29 However, first, it should be stated that the fact that DG [confidential] was expecting the applicant to be promoted, and thus its Director-General had informed him, incorrectly, that he would be promoted during the 2017 promotion procedure, does not show that the contested decision was adopted with the aim of penalising him rather than following consideration of the comparative merits as provided for in Article 45 of the Staff Regulations.

30 Secondly, it should be noted that, in order to establish the existence of the policy of withholding promotion claimed by the applicant, the latter merely produces a draft report of a meeting between, inter alia, representatives of trade union organisations and the Director-General of DG Human Resources and a note addressed by some of those trade union organisations to that Director-General. It appears from those documents that some trade union organisations consider that a decision not to promote officials on whom a penalty has been imposed ‘may lead’ to those officials being penalised twice, and so a ‘clear legal framework’ should be negotiated between those organisations and the Commission. Nonetheless, the fact that the appointing authority withheld promotion from other officials on whom a penalty had previously been imposed and that those trade union organisations consider, without further clarification, that the provisions concerning consideration of the merits of those officials are not sufficiently clear, does not in itself show that, in the present case, the contested decision was adopted with the aim of penalising him rather than following consideration of the comparative merits as provided for in Article 45 of the Staff Regulations.

31 Thirdly, although the applicant states that he provided ‘sufficient relevant and consistent evidence’ to establish that the appointing authority committed a manifest error of assessment with regard to consideration of the merits as provided for in Article 45 of the Staff Regulations, suffice it to say that that statement is not supported by any precise information enabling its validity to be assessed.

32 Therefore no breach of Article 45 of the Staff Regulations or of Article 9(3) of Annex IX to the Staff Regulations, or of the non bis in idem principle, or misuse of powers, of which abuse of process is merely one form (judgment of 2 April 1998, Apostolidis v Court of Justice, T‑86/97, EU:T:1998:71, paragraph 84), are established in the present case.

33 That finding is not invalidated by the applicant’s other arguments. The applicant contends that the fact that the appointing authority penalised him by withholding his promotion, first, allows the appointing authority to avoid ‘setting an end date for the blocking of [his] career’ in breach of the principle of legal certainty and, secondly, deprived him of his right to an effective remedy in that he was not able to challenge ‘the full effect that [the appointing authority] intended’ the decision of 23 March 2016 to have.

34 However, suffice it to say that the arguments referred to in paragraph 33 above are based on an incorrect premise, namely, that the contested decision constitutes a penalty, which, as was stated in paragraph 27 above, is not established in the present case.

35 Moreover, 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.

36 The single plea must therefore be rejected as unfounded. Accordingly, it is necessary to reject the applicant’s claim for annulment of the contested decision and, consequently, to reject his claims, first, for promotion to grade AD 7 with effect from 1 January 2017 and, secondly, for compensation for the damage he allegedly suffered as a result of the adoption of that decision.

Costs

37 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 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 (Ninth Chamber) hereby:

1. Dismisses the action;

2. Orders YL to pay the costs.

Gervasoni Kowalik-Bańczyk Mac Eochaidh Delivered in open court in Luxembourg on 11 September 2019. [Signatures]

( *1 ) Language of the case: French.

( 1 ) Confidential data removed.