Staff case summary



Staff case summary

Summary

1. Officials – Actions – Prior administrative complaint – Definition

(Staff Regulations, Art. 90(1) and (2))

2. Officials – Actions – Plea based on a breach of the scope of the law’s application – Finding made by the Court of its own motion – Conditions

(Rules of Procedure of the Civil Service Tribunal, Art. 77)

3. Officials – Attestation procedure – Rules for its implementation in the Commission – Competence to rule on candidatures – Distinction from the appraisal procedure – Criteria for admission

(Staff Regulations, Art. 43; Annex XIII, Art. 10(3))

1. The precise legal categorisation of a letter or memorandum is a matter for the Tribunal alone and not for the parties. A letter in which an official asks the administration to take certain actions is to be regarded as a complaint within the meaning of Article 90(2) of the Staff Regulations where that letter, even though it might have been interpreted as a request within the meaning of Article 90(1) of the Staff Regulations, was explicitly interpreted by the appointing authority as a complaint and the person concerned was thus entitled to believe that he had met the requirements of the pre-litigation procedure laid down in Articles 90 and 91 of the Staff Regulations and that he could bring an action directly before the Tribunal.

In a situation where the conduct of an institution has been, either alone or to a decisive extent, such as to give rise to a pardonable confusion in the mind of a party acting in good faith and exercising all the diligence required of a normally experienced person, the administration may not rely on its own failure to observe the principles of legal certainty and the protection of legitimate expectations out of which the party’s error arose.

(see paras 34, 35, 38-40)

See:

T-12/90 Bayer v Commission [1991] ECR II‑219, para. 29; T-115/92 Hogan v Parliament [1993] ECR II‑895, para. 36

2. The Community Court has the power and, where appropriate, the duty to raise certain pleas of substantive legality of its own motion. This is so where a public policy plea alleges that a decision breaches the scope of the law’s application. The Tribunal would be neglecting its function as the arbiter of legality if, even in the absence of a challenge by the parties in this regard, it failed to make a finding that the contested decision before the Tribunal had been adopted on the basis of a rule that was not applicable to the case in point and if, as a consequence, it was led to adjudicate on the dispute before it by itself applying such a rule.

The argument that the raising of a plea of substantive legality of the Tribunal’s own motion could endanger the adversarial nature of the proceedings and the principle of respect for the right to a fair hearing cannot be accepted. Article 77 of the Rules of Procedure of the Civil Service Tribunal provides that the Tribunal may, of its own motion, decide that there exists an absolute bar to proceeding with an action, on condition that the parties have first been heard. If that condition adequately safeguards the principle of audi alteram partem and respects the right to a fair hearing where the Tribunal decides of its own motion that there exists an absolute bar to proceeding with an action, there is no reason to suppose that the same does not apply where a plea of public policy is raised of the court’s own motion, whether it relate to substantive or external legality. It must therefore be considered that, by notifying the parties of the plea of public policy which it intends to raise, by inviting the written observations of the parties regarding that intention and by enabling them to set out their views in that regard at the hearing, the Tribunal satisfies the requirements of the principle of audi alteram partem and respects the right to a fair hearing.

(see paras 50, 51, 57, 60)

See:

C-473/00 Cofidis [2002] ECR I‑10875, paras 36 and 38; C‑442/03 P and C‑471/03 P P & O European Ferries (Vizcaya) and Diputación Floral de Vizcaya v Commission [2006] ECR I‑4845, para. 45; C‑168/05 Mostaza Claro [2006] ECR I‑10421, para. 39

T‑576/93 to T‑582/93 Browet and Others v Commission [1994] ECR II‑677, para. 35

3. Article 43(1) of the Staff Regulations lays down that, in accordance with conditions set by each institution, a periodical report shall be drawn up for each official describing his ability, efficiency and conduct in the service. For officials in function group AST, as of grade 4 the report may also contain, pursuant to Article 43(2) of the Staff Regulations, an opinion as to whether, on the basis of performance, the person concerned has the potential to carry out an administrator’s function .

By contrast, Article 10 of Annex XIII to the Staff Regulations is a transitional provision. It relates to the career development of officials in former categories C and D in the assistants’ function group to which they were assigned as from 1 May 2006. Attestation is granted on the basis of the seniority, experience, merit and level of training of the officials and in accordance with a procedure whose rules, laid down by the institutions, include an examination of candidatures by a joint attestation committee. Pursuant to Article 10(3) of Annex XIII to the Staff Regulations, the Commission laid down the rules for implementing the attestation procedure for its staff by means of a Decision of 7 April 2004.

The appraisal and attestation procedures, defined by the General Implementing Provisions for Article 43 of the Staff Regulations adopted by the Commission and the Decision of 7 April 2004 respectively, are separate and are based on entirely different rules.

Although the countersigning officer is competent to adopt the career development report, subject to the report not being amended by the appeal assessor, it is for the appointing authority to rule, at each stage in the attestation procedure, on the candidatures for attestation. In particular, it is the responsibility of the appointing authority, hence an authority other than the countersigning officer of the appraisal procedure, to assess, on the basis of the available career development reports, the experience and merit of candidates for attestation. Moreover, only the appointing authority is in a position to standardise the conditions for the assessment of these criteria by the different services of the Commission, as the view of the countersigning officer or appeal assessor tends to be restricted to the services under their responsibility.

Where, in connection with a career development report drawn up for a Commission official in former categories C and D, the administration refuses to admit the official concerned to the attestation procedure provided for in Article 10(3) of Annex XIII to the Staff Regulations, on the ground that he has not demonstrated, in the appraisal exercise, that he had the required ‘potential’ to obtain attestation, the decision to refuse him admission was not reached – as it should have been, given its purpose – on the basis of Article 10(3) of Annex XIII applicable to the attestation procedure, but on the basis of Article 43 of the Staff Regulations applicable to the appraisal procedure. In doing so, the administration breaches the scope of application of Article 43, which is distinct from that of Article 10(3) of Annex XIII to the Staff Regulations, and infringes the independence of the appraisal and attestation procedures, and the official concerned is therefore justified in seeking the annulment of his career development report in so far as it takes a view on his potential to perform the function of assistant.

Furthermore, neither Article 10(3) of Annex XIII to the Staff Regulations nor the Decision of 7 April 2004 lays down that the benefit of attestation, which permits admission without restriction to the assistants’ function group, is granted on the basis of criteria other than seniority, experience, merit and level of education and training. Under Article 5(1) of the Decision of 7 April 2004, the admittance of an official to attestation, the second stage in the procedure, is subject only to the satisfaction of two conditions, namely the level of training and education and seniority, and not to a condition relating to potential.

(see paras 64-66, 76, 80, 82, 87, 88, 91)