JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

10 September 2009

Case F-124/07

Joachim Behmer

v

European Parliament

(Civil service – Officials – Promotion – 2006 promotions exercise – Lawfulness of instructions governing the promotions procedure – Consultation of the Staff Regulations Committee – Procedure for allocating merit points in the Parliament – Consideration of comparative merits – Discrimination against staff representatives)

Application: brought under Articles 236 EC and 152 EA, in which Mr Behmer seeks annulment of the Parliament’s decision to allocate him two promotion points for 2005 and annulment of the decision not to promote him to grade AD 13 for the 2006 promotion exercise.

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

Summary

1. Officials – Reports procedure – Staff report – Drawing up – Officials carrying out staff representation duties

(Staff Regulations, Art. 43; Annex II, Art. 1, sixth para.)

2. Officials – Promotion – Decision allocating promotion points – Obligation to state the reasons on which the decision is based – Scope

(Staff Regulations, Art. 45)

3. Officials – Promotion – Consideration of comparative merits – Allocation of promotion points solely by directorate-general to which official is assigned

(Staff Regulations, Art. 45)

4. Officials – Staff Regulations – General implementing provisions – Obligation to adopt such provisions

(Staff Regulations, Arts 45 and 110(1))

5. Plea of illegality – Scope – Measures the illegality of which may be pleaded – Measures no longer applicable at the time of the facts – Not included

(Art. 241 EC)

6. Officials – Promotion – Criteria – Merits – Taking into account of seniority – Subsidiary matter

(Staff Regulations, Art. 45)

7. Officials – Promotion – Procedure

(Staff Regulations, Art. 45)

8. Officials – Promotion – Consideration of comparative merits – Procedures – Obligation to conduct a comparative consideration of all officials eligible for promotion – None

(Staff Regulations, Art. 45)

1. Although the sixth paragraph, first sentence, of Article 1 of Annex II to the Staff Regulations provides that staff representation duties are to be deemed to be part of the normal service which an official is required to provide, the performance of those duties does not, however, in itself justify an increase in the number of merit points to be allocated to an official. Furthermore, failure to take account of staff representation duties is not, in itself, such as to characterise discrimination or imply that it exists.

(see paras 50, 51, 165)

See:

F‑108/06 Diomede Basili v Commission [2007] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, para. 37

2. It is only where the opinion of the Committee on Staff Reports mentions special circumstances likely to cast doubt on the validity or proper foundation of proposals for the allocation of merit points that a decision allocating merit points which departs from the Committee on Staff Reports’ opinion without specifying why should be annulled.

(see para. 60)

See:

T-73/05 Magone v Commission [2006] ECR-SC I‑A‑2‑107 and II‑A‑2‑485, para. 54

3. In the system for allocating merit points introduced by the European Parliament, the consideration of an official’s comparative merits for the purpose of awarding merit points may be conducted only within the directorate-general to which he belongs, so that each official in a directorate or department who is eligible for promotion is competing for a limited number of merit points with all the other officials in his directorate or department, all grades and function groups combined.

(see para. 64)

See:

F‑44/07 Barbin v Parliament [2008] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, paras 43 and 44

4. A Community institution is under an obligation to adopt implementing provisions, subject to the opinion of the Staff Regulations Committee and also consultation of the Staff Committee, pursuant to Article 110(1) of the Staff Regulations, only where there is a mandatory requirement to that effect or where the provisions of the Staff Regulations are so unclear and imprecise that any application of them must be arbitrary.

With regard to the adoption of instructions governing the promotion procedure, Article 45 of the Staff Regulations clearly does not require the adoption of general implementing provisions as provided for in Article 110(1) of the Staff Regulations, and it is also not established that Article 45 is so unclear and imprecise as to make the adoption of general implementing provisions necessary in order to prevent it from being applied arbitrarily.

(see paras 91-92)

See:

16/64 Rauch v Commission [1965] ECR 135, 146; 23/64 Vandevyvere v Parliament [1965] ECR 157, 164; 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

5. The scope of a plea of illegality must be confined to what is essential for resolving the dispute in that, first, the general measure the illegality of which is pleaded must be applicable, directly or indirectly, to the circumstances which are the subject of the action, and second, there must be a direct legal connection between the individual decision and the general measure in question.

An applicant could not benefit from the annulment of measures that were no longer applicable at the time of the facts. A plea of illegality against implementing measures repealed before the action was brought must therefore be dismissed as inadmissible.

(see paras 95-96)

See:

T-6/92 and T-52/92 Reinarz v Commission [1993] ECR II‑1047, para. 57; T-23/96 De Persio v Commission [1998] ECR-SC I‑A‑483 and II‑1413, para. 54

6. Seniority is not one of the decisive criteria for promotion laid down in Article 45 of the Staff Regulations, but is merely a secondary consideration. Internal rules of the European Parliament requiring the consideration of officials’ comparative merits to include an analysis of whether they have consistently shown merit since their last promotion must therefore be interpreted within the limits defined by Article 45 of the Staff Regulations and the other internal rules in force in the Parliament. Consequently, seniority does not constitute the main criterion for promotion, and the administration may opt to take account of it only as a secondary consideration for choosing between the candidates. It is, however, taken into account through other factors provided for in the implementing measures, which do not require the administration to take into consideration an official’s entire professional career.

(see paras 106, 110, 141-142)

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

7. In the promotion system adopted by the appointing authority, recommendations issued by the Advisory Committee on Promotions constitute just one stage of the promotion procedure and are not binding on the administration. Consequently, with regard to a procedure culminating in a decision not to promote an official, the fact that, at the time when it issued its recommendations, the final decision allocating that official merit points was not available to the committee is not relevant if the appointing authority was aware of that final decision when it adopted its promotion decisions.

(see paras 132-133)

8. Neither the provisions of Article 45 of the Staff Regulations nor the internal measures adopted by the European Parliament require the Advisory Committee on Promotions to consider the comparative merits of all officials eligible for promotion. Consequently, the committee is not obliged to consider the periodic reports and summary sheets of all the officials, but need only have those documents available in case it finds it useful to refer to them.

In the absence of an obligation requiring the Promotions Committee to conduct a comparative consideration of all the officials, it may base its proceedings only on the lists of recommended officials drawn up by the directorates-general. That is particularly true in that, because the directorates-general have conducted a comparative consideration in order to draw up their recommendations, the committee may rely on those recommendations to have an idea of the officials’ comparative merits.

(see paras 140,

146)