JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

10 April 2014

Case F‑81/12

Risto Nieminen

v

Council of the European Union

(Civil service — Promotion — 2010 promotion procedure — 2011 promotion procedure — Decision not to promote the applicant — Duty to state reasons — Consideration of comparative merits — Administrators assigned to linguistic functions and administrators assigned to functions other than linguistic functions — Promotion quotas — Long-term consistency of merits)

Application: under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Nieminen brought the present action seeking annulment of the decisions of the Council of the European Union not to promote him to Grade AD 12 in the 2010 and 2011 promotion procedures.

Held: The action is dismissed. Mr Nieminen is to bear his own costs and is ordered to pay the costs incurred by the Council of the European Union.

Summary

1. Officials — Promotion — Consideration of comparative merits — Factors which may be taken into consideration — Administrators assigned to linguistic functions and functions other than linguistic functions — Promotion quotas — Infringement of Article 45(1) of the Staff Regulations

(Staff Regulations, Art. 45(1))

2. Officials — Promotion — Criteria — Merits — Taking into consideration of seniority in grade — Secondary consideration — Taking into consideration of long-term consistency of merits — Scope

(Staff Regulations, Art. 45(1))

3. Officials — Promotion — Consideration of comparative merits — Procedures — Administration’s discretion — Limits — Observance of the principle of equal treatment — Judicial review — Limits

(Staff Regulations, Art. 45)

4. Officials — Promotion — Consideration of comparative merits — Administration’s discretion — Scope — Manifest error of assessment of the merits of an official who has not been promoted

(Staff Regulations, Art. 45)

1. Reserving a particular number of promotion posts for administrators assigned to linguistic functions may prevent one or more administrators assigned to functions other than linguistic functions from being promoted even though their merits were greater than those of their colleagues in linguistic functions who were promoted. Reserving posts in that way would infringe Article 45(1) of the Staff Regulations, which requires the comparative merits of candidates to be considered on a basis of equality.

(see para. 40)

See:

15 December 2010, F‑14/09 Almeida Campos and Others v Council, paras 37 and 38

2. Seniority in grade and in the service may be applied as a criterion for promotion only as a secondary consideration, where candidates prove to have equal merits on the basis, in particular, of the three criteria expressly referred to in Article 45(1) of the Staff Regulations. However, the appointing authority may lawfully assess the comparative merits of officials eligible for promotion on the basis of the long-term consistency of their respective merits.

The criterion of long-term consistency of merits is not separate from the three criteria listed in Article 45(1) of the Staff Regulations, but is directly covered by the first of them, relating to the reports on officials. More specifically, the criterion of long-term consistency of merits makes it possible to take better account of all the merits of officials eligible for promotion, in accordance with the principle of equal treatment. If the appointing authority took account solely of the most recent report(s) on officials eligible for promotion, the consideration of comparative merits would be distorted or, at the very least, incomplete, given that the appointing authority would then not be considering all the merits of officials with more than two years’ seniority in the grade. However, the use of the plural in the expression ‘reports on the officials’ in Article 45(1) of the Staff Regulations indicates that the appointing authority is, as a general rule, required to take account of all reports on the officials since they entered the grade, which necessarily amounts to taking account of the criterion of long-term consistency of merits. Finally, the criterion of long-term consistency of merits does not simply reintroduce seniority as a criterion in the consideration of comparative merits under Article 45(1), since considerable seniority might very well not go hand in hand with outstanding merits that have been consistent in the long term, so that the two criteria are by no means the same, even though they are connected.

(see paras 43, 44)

See:

15 January 2014, T‑95/12 P Stols v Council, paras 41 to 44

13 December 2011, F‑51/08 RENV Stols v Council, para. 47

3. The appointing authority has a wide discretion in assessing the merits to be taken into consideration in a decision on promotion under Article 45 of the Staff Regulations, and review by the Union judicature must be confined to determining whether, having regard to the various considerations which have influenced the administration in making its assessment, it has remained within reasonable bounds and has not used its power in a manifestly incorrect way. The Court cannot therefore substitute its assessment of the qualifications and merits of the officials for that of the appointing authority. It must confine itself to verifying that the consideration of comparative merits provided for in Article 45(1) of the Staff Regulations was conducted objectively and correctly in the light of the details provided by the appointing authority on the promotion procedure prior to that consideration. Consequently, it is not for the Court to review the merits of the administration’s appraisal of the professional abilities of an official where it involves complex value judgments which, by their very nature, are not amenable to objective verification.

The discretion thereby conferred on the administration is, however, circumscribed by the need to undertake a consideration of comparative merits with care and impartiality, in the interests of the service and in accordance with the principle of equal treatment. While the appointing authority has the power under the Staff Regulations to conduct that consideration according to the procedure or method it deems most appropriate, in practice it must be undertaken on a basis of equality, using comparable sources of information.

A method of assessment for comparing the merits of officials which consists in comparing the average analytical assessments of the officials with the average analytical assessments awarded by their reporting officers is relevant in so far as it tends to eliminate the subjectivity resulting from assessments made by different reporting officers.

Furthermore, the appointing authority has the power under the Staff Regulations to consider the comparative merits of officials, as provided for in Article 45 of the Staff Regulations, according to the procedure or method it deems most appropriate. That power is, however, circumscribed by the need to undertake that consideration with care and impartiality, in the interests of the service and in accordance with the principle of equal treatment. In practice, that examination must be carried out on a basis of equality, using comparable sources of information.

(see paras 57, 58, 90, 91)

See:

13 July 1995, T‑557/93 Rasmussen v Commission, para. 20 and the case-law cited therein; 3 October 2000, T‑187/98 Cubero Vermurie v Commission, para. 85

16 May 2013, T‑281/11 P Canga Fano v Council, paras 41, 42, and the case-law cited therein; Stols v Council, paras 29 to 31

14 July 2011, F‑81/10 Praskevicius v Parliament, para. 53

4. In the context of the review by the Union judicature of the promotion choices made by the administration, an error is manifest where it is easily recognisable and can be readily detected, in the light of the criteria to which the legislature intended decisions on promotion to be subject. Consequently, in order to establish that the administration committed a manifest error in assessing the facts such as to justify the annulment of a decision, the evidence, which it is for the applicant to adduce, must be sufficient to make the findings of the administration implausible. In other words, a plea alleging a manifest error must be rejected if, despite the evidence adduced by the applicant, the contested assessment may still be accepted as true or valid.

(see para. 59)

See:

T‑281/11 P Canga Fano v Council, para. 127

24 March 2011, F‑104/09 Canga Fano v Council, para. 35; 12 December 2012, F‑43/10 Cerafogli v ECB, para. 131, on appeal before the General Court of the European Union, Case T‑114/13 P