JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (First Chamber)

12 December 2013 ( )

(Civil service – Promotion – Decision not to promote the applicant to grade AD 9 after he passed a competition for grade AD 9 – Equal treatment)

In Case F‑142/11,

ACTION brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof,

Erik Simpson, official at the Council of the European Union, residing in Brussels (Belgium), represented by M. Velardo, lawyer,

applicant,

v

Council of the European Union, represented by M. Bauer and A.F. Jensen, acting as Agents,

defendant,

THE CIVIL SERVICE TRIBUNAL (First Chamber)

composed of H. Kreppel, President, E. Perillo and R. Barents (Rapporteur), Judges,

Registrar: J. Tomac, Administrator,

having regard to the written procedure and further to the hearing on 16 April 2013,

gives the following

Judgment

1 By application lodged at the Tribunal Registry on 27 December 2011, Mr Simpson brought the present action seeking, first, the annulment of the decision of 9 December 2010 by which the Council of the European Union rejected his request for promotion to grade AD 9 after he had passed Open Competition EPSO/AD/113/07 organised for the recruitment of heads of unit at grade AD 9 in the field of translation, and of the decision of 7 October 2011 rejecting his complaint and, secondly, an order that the Council pay compensation for the harm suffered.

Legal context

2 The second paragraph of Article 25 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) provides:

‘Any decision relating to a specific individual which is taken under these Staff Regulations shall at once be communicated in writing to the official concerned. Any decision adversely affecting an official shall state the grounds on which it is based.’

3 Article 45(1) of the Staff Regulations provides:

‘Promotion shall be by decision of the Appointing Authority in the light of Article 6(2). It shall be effected by appointment of the official to the next higher grade in the function group to which he belongs. Promotion shall be exclusively by selection from among officials who have completed a minimum of two years in their grade after consideration of the comparative merits of the officials eligible for promotion. 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 in accordance with Article 28(f) and, where appropriate, the level of responsibilities exercised by them.’

Facts

4 The applicant, a member of the auxiliary staff in the Estonian translation unit at the Council since 1 June 2004, was recruited on 1 January 2005 as a probationary official at grade AD 5, after having passed Open Competition EPSO/A/3/03 intended to constitute a reserve list for the recruitment of assistant administrators of grade AD 8 in the field of the European public administration. He was promoted to grade AD 6 on 1 January 2008 and to grade AD 7 on 1 January 2011.

5 In 2009, the applicant passed Competition EPSO/AD/113/07 intended to constitute a reserve list for the recruitment of Heads of Unit of grade AD 9 in the field of translation who have Czech, Estonian, Hungarian, Lithuanian, Latvian, Maltese, Polish, Slovak or Slovene as their main language. The reserve list for that competition was published on 28 April 2009.

6 On 25 June 2010, the applicant requested, under Article 90(1) of the Staff Regulations, promotion to grade AD 9, putting forward the fact that he had passed Competition EPSO/AD/113/07 corresponding to that grade and that three officials from the Polish and Slovak units in a comparable situation had been promoted, in 2006 and 2007 respectively.

7 By letter of 9 December 2010 the Council, rejecting that request, stated that, in the absence of a provision of the Staff Regulations conferring a right on officials to be automatically promoted on the basis that they had passed a competition for a higher grade than their own, such a decision could only be adopted where it was in the interest of the service, and in the present case this was not in the interest of the Estonian translation unit (‘the contested decision’).

8 On 8 March 2011, the applicant lodged a complaint under Article 90(2) of the Staff Regulations seeking the withdrawal of the contested decision.

9 In its decision of 7 October 2011, the Council, rejecting the complaint, argued, first, that the differences found between the applicant’s situation and that of the three officials of the Polish and Slovak units were such that the situations were not comparable and that the allegation of infringement of the principle of equal treatment in relation to the earlier promotions was therefore unfounded, and, secondly, that passing a competition did not confer either the right to be recruited or, by analogy with that principle, the right of an official to be promoted in the same post.

10 By a note of 11 November 2011, the applicant requested, on the basis of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), that the promotion decisions relating to the three officials of the Polish and Slovak units be sent to him.

11 By letter of 1 December 2011, the Council refused to disclose those decisions, relying on Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ 2001 L 8, p. 1) and on Article 26 of the Staff Regulations, relating to the confidential nature of the personal file.

12 On 14 December 2011, the applicant sent a confirmatory application, under Article 7(2) of Regulation No 1049/2001, seeking the reconsideration by the Council of its refusal. In that application, the applicant argued that access to the documents requested was necessary to understand the legal basis of the classification of his colleagues, and the grounds given by the Council, based on the interest of the service, in order to assess whether it was appropriate to bring an action against the decision of 7 October 2011 rejecting his complaint of 8 March 2011. No response was received to that confirmatory application.

Forms of order sought

13 The applicant claims that the Tribunal should:

– annul the contested decision and the decision of 7 October 2011 rejecting his complaint;

– order the Council to pay compensation for the harm suffered;

– order the Council to pay the costs, together with interest at the rate of 8%.

14 The Council contends that the Tribunal should:

– dismiss the action;

– order the applicant to pay the costs.

Law

The claim for annulment of the decision rejecting the complaint

15 According to established case-law, claims for annulment formally brought against a decision to reject a complaint have, where that decision lacks any independent content, the effect of bringing before the Tribunal the act against which the complaint was submitted (judgment of 17 January 1989 in Case 293/87 Vainker v Parliament, paragraph 8; see also judgment of 9 July 2009 in Case F‑104/07 Hoppenbrouwers v Commission, paragraph 31). In those circumstances, since the decision of 7 October 2011 rejecting the complaint lacks any independent content, the claim for annulment must be regarded as directed only against the contested decision.

The claim for annulment of the contested decision

16 In support of his action, the applicant puts forward three pleas in law, alleging, respectively, that insufficient grounds were stated for the contested decision, infringement of the principle of equal treatment and a manifest error of assessment.

Arguments of the parties

17 In his first plea in law, the applicant submits that the explanations provided by the Council to show that the refusal to promote him to grade AD 9 was not contrary to the principle of equal treatment, namely the facts (i) that the applicant and the three officials in comparison with whom he considered himself to have been discriminated against took part in different competitions, (ii) that they belonged to different language units and (iii) that those officials were promoted before the applicant, do not enable him to understand why the promotion of those three officials was in the interest of the service while his own was not. Drawing attention to his unsuccessful attempts to obtain more information pursuant to Regulation No 1049/2001, the applicant stated that he was obliged to ‘lodge a less than complete [action] “in the dark”’ because of a lack of information.

18 The Council submits that the other officials obtained their advancement in grade not by promotion, but by an ‘upgrade in the interest of the service’. That concept, which, as the Council concedes, is not provided for in the Staff Regulations, concerns an ‘upgrade’ granted to an official who has passed a competition for a higher grade than his current grade and who remains in the same post. The aim of that ‘upgrade’ is essentially to retain the official in his functions within the unit, a consideration which, according to the Council, was particularly important in the first years which followed the 2004 enlargement of the European Union, when new translation units were established.

19 According to the Council, an ‘upgrade’ is characterised by the fact, first, that it is based only on the interest of the service. Secondly, the assessment of the interest of the service with a view to an ‘upgrade’ is not necessarily based on an assessment of the merits of the person concerned, in the sense that it is a different assessment from that carried out under Article 45 of the Staff Regulations relating to promotion. Thirdly, an ‘upgrade in the interest of the service’ is not equivalent to a promotion, but is merely an incentive to stay.

20 The Council adds that at the time the applicant lodged his request the language units of the new Member States were fully operational, so that a measure such as an ‘upgrade’ in the interest of the service ‘to preserve the coherence in the translations and the knowledge and experience so far achieved’ was no longer necessary. It was indeed for that reason that the Council refused to grant six requests for ‘upgrades’ which it received from 2008 to 2011, brought by officials in the administrator function group. Like the applicant, those officials had also passed competitions for a higher grade. The Council essentially submits that the applicant’s situation in 2010 was not comparable to the situation from 2006 to 2008 and that therefore the ‘upgrade’ was not in the interest of the service.

Findings of the Tribunal

21 It is settled case-law that the purpose of the obligation to state grounds laid down by Article 25 of the Staff Regulations is both to provide the person concerned with sufficient details to determine whether the decision taken by the administration is well founded and whether it is appropriate to bring an action before the Civil Service Tribunal and to enable the latter to carry out its review. The extent of that obligation must be determined on the basis of the specific circumstances of each case, in particular the content of the act, the nature of the grounds put forward and the interest which the addressee may have in receiving explanations (judgment of 6 October 2004 in Case T-294/02 Vicente-Nuñez v Commission, paragraph 94).

22 The Council, in the contested decision, first of all pointed out to the applicant that, according to Competition Notice EPSO/AD/113/07 for the recruitment of heads of unit at grade AD 9 in the field of translation, any such recruitment would depend on posts and funds becoming available. Secondly, the Council drew attention to the fact that, since there was no provision in the Staff Regulations conferring a right on officials to be automatically promoted solely on account of having passed a competition for a grade higher than their own, such a decision can be taken only where it is in the interest of the service, and it added that it has a wide discretion in that field. The Council took the view that, as the situation of the Estonian translation unit in 2010 was different from that of the Polish and Slovak translation units when the three officials in comparison with whom that applicant considered himself to have been discriminated against received an ‘upgrade’ in 2006 and 2007, it was therefore not in the interest of the service to award the applicant an ‘upgrade’.

23 Next, the Council, in its response of 7 October 2011 to the complaint brought by the applicant on 8 March 2011, found that there had been no infringement of the principle of equal treatment after having explained in detail the differences between the situation of the three officials in comparison with whom the applicant considered himself to have been discriminated against and the applicant’s situation, and referred to its wide discretion with regard to the organisation of its services, the management of its budget and in the assessment of the interest of the service. After having noted the principle that passing a competition conferred neither the right to be recruited nor, by analogy with that principle, the right of an official to be promoted in the same post, the Council concluded that the situation in the applicant’s language unit did not require recruitment at AD 9.

24 It is common ground that neither in the contested decision nor in its response of 7 October 2011 did the Council mention or explain to the applicant that, in the case of the three officials referred to in his request, there had not been either a promotion within the meaning of Article 45 of the Staff Regulations or a recruitment, but an ‘upgrade in the interest of the service’, as described in the defence. That lack of clarity, as regards the legal basis of the decisions on the situation of those three officials compared with that of the applicant, is borne out by the fact that the applicant stated, in his application, that it was still difficult for him to understand why, in the case of the three officials concerned, their promotion was justified in the interest of the service and how the factual background warranted such a promotion.

25 Lastly, although, in response to the applicant’s request and complaint, the Council explained how the applicant’s situation and that of the three officials referred to in his request were not comparable, it must be stated that the Council submitted in the defence that an ‘upgrade in the interest of the service’ did not constitute an assessment of comparative merits under Article 45 of the Staff Regulations, since an upgrade in the interest of the service was not equivalent to a promotion.

26 It follows that the Council, in essence, justified the rejection of the applicant’s request and complaint simply by referring to the interest of the service, without providing any other explanation. In particular, the Council failed to explain that the case of the three officials in the Polish and Slovak translation units promoted in 2006 and 2007 did not concern a promotion but a measure not provided for in the Staff Regulations. The absence of such an explanation prevents the Tribunal from exercising its power of review.

27 In this connection, the failure to state grounds for the decision not to promote the applicant because the situation of his language unit did not require recruitment at AD 9 cannot be remedied by explanations provided by the administration after the action has been initiated (see, to that effect, judgment of 17 February 1998 in Case T‑56/96 Maccaferri v Commission, paragraph 38).

28 Furthermore, it is also not permissible for an institution to amend subsequently the grounds of a decision which it has adopted, justifying that decision, for example, in the light of different provisions from those relied upon initially (judgment of 9 January 1996 in Case T‑23/95 Bitha v Commission, paragraph 30). In the contested decision, the Council points out that there is no provision in the Staff Regulations which enables a person to be automatically promoted as a result of a competition, whereas at the hearing it stated that Article 31(2) of the Staff Regulations was the legal basis for such a decision. Adopting such a course of action would lead an institution to infringe its obligation to state grounds for its decisions, laid down by Article 25(2) in conjunction with Article 90(2) of the Staff Regulations, which is intended, first, to provide the applicant with sufficient information to determine whether the refusal of his request is well founded and whether it is appropriate to bring proceedings before the Civil Service Tribunal and, secondly, to enable the latter to carry out its review (judgments of 26 November 1981 in Case 195/80 Michel v Parliament, paragraph 22; of 7 February 1990 in Case C-343/87 Culin v Commission, paragraph 15, and of 12 February 1992 in Case T-52/90 Volger v Parliament, paragraph 40).

29 On the other hand, an inadequate statement of grounds provided in the course of the pre-litigation procedure is not such as to justify annulment of the contested decision where additional information is provided by the appointing authority during the proceedings, it being understood, however, that the institution is not allowed to substitute an entirely new statement of grounds for the defective original statement of grounds (see judgments of 30 May 1984 in Case 111/83 Picciolo v Parliament, paragraph 22; of 3 March 1993 in Case T-25/92 Vela Palacios v ESC, paragraphs 26 and 27; of 12 December 2002 in Joined Cases T‑338/00 and T-376/00 Morello v Commission paragraph 55, and of 29 September 2005 in Case T‑218/02 Napoli Buzzanca v Commission, paragraph 63). In the present case, the statement of grounds for the contested decision merely points out that the recruitment of the applicant at grade AD 9 was not in the interest of the service while, in the defence, the Council explains that the three officials referred to by the applicant in his request received an ‘upgrade in the interest of the service’, a measure which is not a promotion based on an assessment of the merits of the official under Article 45 of the Staff Regulations and which, moreover, is not provided for in the Staff Regulations.

30 Furthermore, at the hearing the Council stated that, since March 2012, following a notice to staff, the practice had changed and that the applicant had been the first to be subject to that new, more restrictive, policy as regards ‘upgrades in the interest of the service’.

31 Accordingly, the contested decision is unlawful on grounds of infringement of the obligation to state grounds and must therefore be annulled.

32 It is therefore no longer necessary to rule on other pleas.

The claim for compensation

Arguments of the parties

33 The applicant claims that he has suffered material harm, in so far as he has continued to carry out more complex tasks than those of an official promoted to grade AD 9 but on a lower grade and salary, even though he passed a high-level competition.

34 The applicant also claims harm assessed on equitable principles at EUR 80 000 in so far as the contested decision adversely affected his career prospects, and non-material harm on the grounds that he had to make a number of requests and bring a complaint in order for his rights to be recognised.

35 The Council contends that there was no unlawful conduct, which is one of the conditions necessary in order for the institution to incur liability. Nor has the applicant proved that he has suffered any harm, his career having progressed normally. Furthermore, the annulment of the contested decision by the Tribunal would constitute sufficient compensation. The Council also disputes that the applicant suffered any non-material harm.

Findings of the Tribunal

36 It is settled case-law that the annulment of an act of the administration which has been challenged by an official in itself constitutes appropriate and, in principle (that is to say, in the absence from that act of any expressly negative assessment of the applicant’s abilities likely to cause him damage), sufficient reparation for any non-material harm which the applicant may have suffered by reason of the annulled act (see, to that effect, Culin v Commission, paragraph 27; judgment of 26 January 1995 in Case T‑60/94 Pierrat v Court of Justice, paragraph 62; judgment of 13 December 2007 in Case F‑42/06 Sundholm v Commission, paragraph 44).

37 In the present case, no document produced by the applicant contains any evidence as to the extent of the material harm which he allegedly suffered nor, a fortiori, as regards whether the non-material harm could not be fully compensated for by the annulment of the contested decision.

38 Accordingly, the application seeking compensation for the material harm must be dismissed and the annulment of the contested decision constitutes, in the present case, adequate compensation for the non-material harm suffered.

39 The claim for damages must consequently be dismissed in its entirety.

Costs

40 Under Article 87(1) of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title 2 of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 87(2), the Tribunal may, if equity so requires, decide that an unsuccessful party is to pay only part of the costs or even that that party is not to be ordered to pay any.

41 First of all it must be pointed out that a decision on costs made pursuant to Article 86 of the Rules of Procedure determines only who should bear the costs, not the amount of the costs to be recovered. The latter issue is to be determined, in the event of any dispute, under the procedure provided for in Article 92(1) of the Rules of Procedure (see, to that effect, order of 20 January 1995 in Case T‑124/93 Werner v Commission, paragraph 10). Consequently, the applicant’s application seeking that the order to pay costs cover also the payment of interest at the rate of 8% is inadmissible.

42 It follows from the grounds set out in the present judgment that it is the Council for the main part which has been unsuccessful. Furthermore, in his pleadings the applicant has expressly applied for the Council to be ordered pay the costs. Since the circumstances of this case do not warrant application of the provisions of Article 87(2) of the Rules of Procedure, the Council must bear its own costs and be ordered to pay the costs incurred by the applicant.

On those grounds,

THE CIVIL SERVICE TRIBUNAL (First Chamber)

hereby:

1. Annuls the decision of the Council of the European Union of 9 December 2010;

2. Dismisses the action as to the remainder;

3. Declares that the Council of the European Union is to bear its own costs and orders it to pay the costs incurred by Mr Simpson.

Kreppel Perillo Barents

Delivered in open court in Luxembourg on 12 December 2013.

W. Hakenberg H. Kreppel