JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

18 September 2013

Sabine Scheidemann

v

European Commission

‛Civil service — Official — Inter-institutional transfer — Articles 43 and 45 of the Staff Regulations — Promotion — Merit points — Equal treatment — Autonomy of the institutions’

Application:

pursuant to Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, seeking, in substance, firstly, annulment of the European Commission’s decision of 13 October 2011, relating to the conversion of merit points acquired by Ms Scheidemann at the European Parliament, and of the decision relating to the list of officials promoted in the 2011 appraisal and promotion exercise (published in Administrative Notice 48/2011 of 27 October 2011), in so far as this did not include her name, and, secondly, an order for the Commission to pay damages, assessed ex aequo et bono in the provisional sum of EUR 20 000, as compensation for the material damage she claims to have suffered as a result of that decision.

Held:

The application is dismissed. Ms Scheidemann is to bear her own costs and is ordered to pay those incurred by the European Commission.

Summary

Officials — Promotion — Consideration of comparative merits — Administration’s discretion — Scope — Autonomy of the institutions — Official having moved between institutions — Shared power in relation to assessment of merits and promotion — None — Obligation to apply internal provisions of the former institution concerning the award of merit points and promotion — None)

(Staff Regulations, Arts 43, 45 and 110)

Although, under the principle of a single administration, as laid down in Article 9(3) of the Treaty of Amsterdam, all the officials of all the institutions of the Union are subject to a single body of Staff Regulations, such a principle does not mean that the institutions are required to make identical use of the discretion afforded to them by the Staff Regulations. On the contrary, in the management of their staff, the institutions have the benefit of the principle of autonomy. In that regard, Article 43 of the Staff Regulations refers to the general provisions for giving effect to those Regulations adopted by each institution in order to establish the conditions for reporting on the ability, efficiency and conduct in the service of each official in a staff report. Furthermore, Article 110 of the Staff Regulations confers a more general power on the institutions, subject to certain formal requirements, to lay down implementing provisions establishing suitable arrangements for giving effect to the Staff Regulations. This power is exercisable only in exceptional circumstances, namely where the provisions of the Staff Regulations are so unclear and imprecise as to make the adoption of general implementing provisions necessary in order to prevent them from being applied arbitrarily. As is clear from Article 2(2), and notably in the case of a transfer between institutions, the Staff Regulations do not provide for powers relating to the assessment of merits and the promotion of staff to be shared. Each institution is entitled to adopt its own regulatory framework, so as to give effect to Articles 43 and 45 of the Staff Regulations by means of general implementing provisions adopted pursuant to Article 110.

In the case of an official who has moved to another institution, to require the new institution to apply the internal provisions of the old institution concerning the award of merit points and promotion, in particular the implementing provisions for determining promotion points, would have the effect of creating a difference of treatment in the assessment of merits between officials within the new institution, according to whether or not they had moved from another institution. In that regard, the institutions must ensure, firstly, that mobility does not impair the career progress of officials who are transferred, and secondly, that officials who have been transferred are not penalised in a promotion procedure.

(see paras 26-28, 32)

See:

9 July 1997, T‑156/95 Echauz Brigaldi and Others v Commission, para. 53

5 July 2011, F 46/09 V v Parliament, para. 135

JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

18 September 2013

Sabine Scheidemann

v

European Commission

‛Civil service — Official — Inter-institutional transfer — Articles 43 and 45 of the Staff Regulations — Promotion — Merit points — Equal treatment — Autonomy of the institutions’

Application:

pursuant to Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, seeking, in substance, firstly, annulment of the European Commission’s decision of 13 October 2011, relating to the conversion of merit points acquired by Ms Scheidemann at the European Parliament, and of the decision relating to the list of officials promoted in the 2011 appraisal and promotion exercise (published in Administrative Notice 48/2011 of 27 October 2011), in so far as this did not include her name, and, secondly, an order for the Commission to pay damages, assessed ex aequo et bono in the provisional sum of EUR 20 000, as compensation for the material damage she claims to have suffered as a result of that decision.

Held:

The application is dismissed. Ms Scheidemann is to bear her own costs and is ordered to pay those incurred by the European Commission.

Summary

Officials — Promotion — Consideration of comparative merits — Administration’s discretion — Scope — Autonomy of the institutions — Official having moved between institutions — Shared power in relation to assessment of merits and promotion — None — Obligation to apply internal provisions of the former institution concerning the award of merit points and promotion — None)

(Staff Regulations, Arts 43, 45 and 110)

Although, under the principle of a single administration, as laid down in Article 9(3) of the Treaty of Amsterdam, all the officials of all the institutions of the Union are subject to a single body of Staff Regulations, such a principle does not mean that the institutions are required to make identical use of the discretion afforded to them by the Staff Regulations. On the contrary, in the management of their staff, the institutions have the benefit of the principle of autonomy. In that regard, Article 43 of the Staff Regulations refers to the general provisions for giving effect to those Regulations adopted by each institution in order to establish the conditions for reporting on the ability, efficiency and conduct in the service of each official in a staff report. Furthermore, Article 110 of the Staff Regulations confers a more general power on the institutions, subject to certain formal requirements, to lay down implementing provisions establishing suitable arrangements for giving effect to the Staff Regulations. This power is exercisable only in exceptional circumstances, namely where the provisions of the Staff Regulations are so unclear and imprecise as to make the adoption of general implementing provisions necessary in order to prevent them from being applied arbitrarily. As is clear from Article 2(2), and notably in the case of a transfer between institutions, the Staff Regulations do not provide for powers relating to the assessment of merits and the promotion of staff to be shared. Each institution is entitled to adopt its own regulatory framework, so as to give effect to Articles 43 and 45 of the Staff Regulations by means of general implementing provisions adopted pursuant to Article 110.

In the case of an official who has moved to another institution, to require the new institution to apply the internal provisions of the old institution concerning the award of merit points and promotion, in particular the implementing provisions for determining promotion points, would have the effect of creating a difference of treatment in the assessment of merits between officials within the new institution, according to whether or not they had moved from another institution. In that regard, the institutions must ensure, firstly, that mobility does not impair the career progress of officials who are transferred, and secondly, that officials who have been transferred are not penalised in a promotion procedure.

(see paras 26-28, 32)

See:

9 July 1997, T‑156/95 Echauz Brigaldi and Others v Commission, para. 53

5 July 2011, F 46/09 V v Parliament, para. 135