Opinion of Mr Advocate General Léger delivered on 15 June 2000. - Commission of the European Communities v Claudine Hamptaux. - Appeal - Officials - Promotion - Consideration of comparative merits. - Case C-207/99 P.



European Court reports 2000 Page I-09485



Opinion of the Advocate-General

1. By the present appeal, the Court is requested to examine the lawfulness of the procedure established by the Commission of the European Communities for the promotion in grade of its officials.

The Commission requests the Court to set aside the judgment of the Court of First Instance of 25 March 1999 in so far as it held that the procedure in issue did not ensure a consideration of the comparative merits of candidates as required under Article 45 of the Staff Regulations of Officials of the European Communities (hereinafter the Staff Regulations).

I - Legal framework

2. Article 45(1) of the Staff Regulations provides:

Promotion shall be by decision of the appointing authority. It shall be effected by appointment of the official to the next higher grade in the category or service to which he belongs. Promotion shall be exclusively by selection from among officials who have completed a minimum period in their grade, after consideration of the comparative merits of the officials eligible for promotion and of the reports on them.

For officials appointed to the starting grade in their service or category, this period shall be six months from the date of their establishment; for other officials it shall be two years.

3. In November 1988 the Commission published a Practical Guide to the Procedure for the Promotion of Officials of the Commission of the EC (hereinafter the Practical Guide). Under the Practical Guide, the annual promotion of officials of the Commission is to take place in accordance with a procedure consisting of five stages, which may be described as follows.

In the first stage of the procedure, the administration publishes in Administrative Notices the list of officials eligible for promotion during the promotions procedure in question. That publication is intended to enable the officials concerned to inform the administration of any errors or omissions.

During the second stage, each Director-General of the Commission undertakes, in accordance with procedures established in each Directorate-General, a comparative examination of the merits of the officials under him who are eligible for promotion and adopts his proposal for promotion, establishing an order of priority which he communicates to the Promotion Committee.

In the third stage, the Promotion Committee selects the officials considered most deserving of promotion by comparing candidates' merits according to a method of assessment appropriate to the grade concerned. The Promotion Committee thus draws up a list of officials considered most deserving of promotion which it forwards to the appointing authority. The number of officials on that draft list is generally higher than the number of promotions for which budgetary funds are available.

In the fourth stage, the appointing authority confirms the list of officials considered most deserving of promotion and publishes it, in alphabetical order, in Administrative Notices.

Last, in the final stage, the appointing authority determines the promotions to be made on the basis of that list and signs the individual decisions. The administration then publishes the list of officials who have been promoted in Administrative Notices.

II - Facts and procedure

4. It is apparent from the case-file that Mrs Hamptaux - the applicant at first instance - was appointed an official of the Commission on 1 June 1973. She is employed in the Directorate-General for Personnel and Administration (DG IX) and has been in Grade B 3 since 1 April 1992.

5. In the course of the 1997 promotions procedure the applicant was proposed by her Directorate-General for promotion to Grade B 2. In the order of priority drawn up by DG IX she was in 13th position out of a total of 14 candidates.

6. However, the applicant did not gain the desired promotion. She was not included on either the list of officials considered most deserving of promotion or the list of officials promoted in 1997.

In the course of that procedure, the appointing authority promoted 10 officials from DG IX. Of these, two candidates - Mrs B. and Mrs D. - had already been on the list of officials considered the most deserving of promotion during the previous procedure, but had not been promoted. The other eight candidates had all been proposed by DG IX the previous year but had not been on the list of officials considered most deserving of promotion.

7. On 8 October 1997 the applicant lodged a complaint under Article 90(2) of the Staff Regulations, which the Commission rejected by decision of 30 January 1998.

8. Mrs Hamptaux brought her action before the Court of First Instance on 13 May 1998. She sought annulment of two measures, namely the decision of the appointing authority refusing to place her on the list of officials considered most deserving of promotion to Grade B 2 in the 1997 promotions procedure and the decision of the appointing authority refusing to promote her to Grade B 2 in the course of that procedure (hereinafter the contested decisions).

II - The contested judgment

9. Before the Court of First Instance, the applicant claimed that in adopting the contested decisions the Commission had infringed the provisions of Article 45(1) of the Staff Regulations. She contended that the appointing authority had not really undertaken a comparative examination of the merits of candidates for promotion.

10. In its defence, the Commission contended that the 1997 promotions procedure had been conducted in accordance with the procedure set out in the Practical Guide.

It observed that of the 10 officials promoted to Grade B 2, two candidates had already been on the list of officials considered most deserving of promotion in 1996, but promotion had not been possible in their case. Furthermore, the other eight candidates had already been proposed by DG IX during the previous procedure but had not been included on either the list of officials considered most deserving of promotion or the list of officials promoted.

The Commission further stated that these 10 officials were entitled to some kind of priority over the applicant. According to the Practical Guide,

- candidates on the list of officials considered most deserving of promotion in one promotions procedure but not promoted during that procedure are automatically entered on the list of officials considered most deserving of promotion during the following procedure and are automatically promoted, unless they are no longer deserving of promotion, and

- candidates who were proposed by their Directorate-General during one promotions procedure but were not placed on the list of officials considered most deserving of promotion are, in the absence of reasoned justification to the contrary, automatically included the following year on the list of officials proposed by their Directorate-General.

11. The applicant maintained that such justification was inconsistent with the provisions of Article 45(1) of the Staff Regulations. She contended that a comparative examination of candidates in a specific promotions procedure could not depend on whether the officials had already been proposed for promotion in a previous procedure.

12. In the contested judgment the Court of First Instance held as follows:

35 It should be pointed out, first of all, that it is settled case-law that the appointing authority has power under the Staff Regulations when deciding on promotions to make a choice on the basis of a consideration of the comparative merits of candidates eligible for promotion carried out in the manner which it considers to be the most appropriate ...

36 In order to evaluate the merits to be taken into account in connection with the decision on promotion provided for in Article 45 of the Staff Regulations, the appointing authority has a wide discretion, and in that respect review by the Community judicature must be confined to the question whether, having regard to the bases and procedures available to the administration for its assessment, it has remained within the proper bounds and has not used its authority in a manifestly incorrect manner. The Court cannot therefore substitute its assessment of candidates' qualifications and merits for that of the appointing authority ...

37 It is clear from the [Practical Guide to the Procedure for the Promotion of Officials of the Commission of the European Communities] and the explanations which the Commission provided at the hearing that officials who had already appeared on the list of most deserving candidates drawn up by the appointing authority for the previous year but who had not been promoted were automatically included on the list of most deserving candidates the following year unless they were now considered "no longer deserving" of promotion. The Commission further stated that in those circumstances the officials concerned are automatically promoted.

38 It must be ascertained whether that procedure infringed the applicant's rights in regard to the promotions procedure.

39 The first subparagraph of Article 45(1) of the Staff Regulations provides:

...

40 It is in that context that it is necessary to consider the first complaint, whereby the applicant alleges that no consideration of the comparative merits was undertaken.

41 It follows from the first subparagraph of Article 45(1) of the Staff Regulations that any official eligible for promotion, that is to say, who has completed a minimum period in grade, is entitled to have his comparative merits and his reports considered by the appointing authority ...

42 The applicant was therefore entitled to have the appointing authority undertake a comparative examination of her merits and of the reports on her in the context of the promotions procedure in issue.

43 Article 45(1) of the Staff Regulations does not distinguish between the position of officials who have already appeared on the list of officials considered most deserving of promotion drawn up by the appointing authority for the previous year and that of other officials. In fact it does not lay down any condition in addition to that of completion of a minimum period in grade ...

44 It follows both from the written submissions lodged by the Commission and from the explanations which it provided at the hearing that officials who were on the list of most deserving officials drawn up by the appointing authority for the previous year and who were not promoted are automatically included on the list of most deserving officials the following year and are automatically promoted, unless they are now considered "no longer deserving" of promotion. Contrary to its obligation under Article 45(1) of the Staff Regulations, therefore, the appointing authority did not, in the context of the promotions procedure in issue, undertake a comparative examination of the applicant's merits and her reports and those of the two officials who had already appeared on the list of most deserving officials drawn up by the appointing authority the previous year, and thus acted in breach of a right which the applicant was unquestionably entitled to exercise in the promotions procedure.

45 At the hearing, the Commission justified that approach by claiming that the applicant's merits had been compared with those of all her colleagues the previous year. Furthermore, the proposals made the previous year give rise to a legitimate expectation on the part of the officials concerned. Last, it emphasised that an official who was on the list of candidates most deserving of promotion drawn up by the appointing authority the previous year but was not promoted, and who is not considered "no longer deserving" of promotion, is regarded by the Commission as having thereby acquired the right to be placed on the list for the current year.

46 In that respect, the Court observes that officials are entitled to have the appointing authority undertake a comparative examination of their merits and their reports in the context of each promotions procedure, more particularly because the officials who were most deserving of promotion the previous year are not necessarily those most deserving of promotion the following year. Likewise, the Commission has not shown either that the applicant's merits were compared in the course of the 1996 promotions procedure with those of the officials considered most deserving in 1996.

47 Nor can the Court accept the Commission's arguments that the principle of legitimate expectations is applicable in the present case. The right to claim protection of legitimate expectations extends to any individual who is in a situation in which it appears to him that the Community administration, by giving him precise assurances, has led him to entertain legitimate expectations ... However, promises which do not take account of the provisions of the Staff Regulations cannot give rise to a legitimate expectation on the part of the person to whom they are made ...

48 Therefore, even if the Commission had given assurances to the officials on the previous year's list of candidates considered most deserving of promotion, those assurances were manifestly illegal and could not give rise to a legitimate expectation on the part of those officials. Furthermore, the Commission did not claim to have given them "precise assurances" capable of leading them to entertain a legitimate expectation. On the contrary, it is common ground that, at least when that list was published in 1997, it was accompanied by a caveat to the effect that "officials on those lists who are not promoted on that date [would] not be automatically entitled to be included on subsequent lists" (see Administrative Notices No 998, 8 August 1997, p. 4).

49 As regards the argument that the officials on the previous year's list of most deserving officials drawn up by the appointing authority thereby acquired the right to be promoted the following year unless they were then considered "no longer deserving" of promotion, it should be observed that the Staff Regulations do not confer a right to promotion, even on officials who meet all the conditions for promotion ...

50 It follows from all the foregoing that the promotions procedure in issue is vitiated by an irregularity constituting a substantive defect in that the consideration of the comparative merits of the applicant and the two officials on the previous year's list of most deserving officials drawn up by the appointing authority fell short of the requirements of Article 45 of the Staff Regulations ...

13. Accordingly, the Court of First Instance, without examining the other complaints formulated by the applicant, annulled the Commission decision refusing to promote the applicant to Grade B 2 in the 1997 promotions procedure.

IV - The appeal

14. By the present appeal, the Commission is requesting the Court to set aside the contested judgment and, determining the matter itself, dismiss Mrs Hamptaux's application. In the alternative, it requests the Court to refer the case back before the Court of First Instance and to reserve the decision as to costs.

15. Mrs Hamptaux contends that the Court should dismiss the appeal and order the Commission to pay the costs of the present proceedings.

16. The Commission relies on a single ground of appeal, alleging defects in the reasoning set out in the contested judgment and an error of law.

The single ground of appeal, alleging defects in the reasoning and an error of law

Arguments of the Commission

17. The Commission maintains that the contested judgment is vitiated by contradictory reasoning and an error of law. There is, it alleges, a contradiction between:

(a) the finding of the Court of First Instance that the procedure set out in the Practical Guide does not ensure a consideration of the comparative merits of candidates on the ground that candidates left over from the previous list automatically appear on the list of officials considered most deserving of promotion, and

(b) its finding that, under the procedure in question, candidates left over from the previous list are entered on the list only on condition that they are not no longer deserving of promotion.

The Commission states that the expression no longer deserving means that there is no longer justification for including the candidate in the order of priority of officials considered most deserving of promotion. Furthermore, it fails to see how it could determine whether an official is no longer deserving of promotion without comparing his merits with those of other candidates for promotion. In that sense, examination of whether an official is no longer deserving is equivalent to consideration of comparative merits within the meaning of Article 45 of the Staff Regulations.

In those circumstances, the Commission contends that the Court of First Instance could not conclude that officials left over from the previous list are automatically included on the list of officials considered most deserving of promotion. On the contrary, it is apparent from the facts accepted by the Court of First Instance itself that the appointing authority ascertains in each case whether officials left over from the previous year's list have come to be considered no longer deserving of promotion between one procedure and the next.

18. The Commission also submits that there is a rebuttable presumption, as it were, that those left over from the previous year's list will be entered on the list of officials considered most deserving of promotion.

In the majority of cases, officials have a relatively consistent level of performance from one year to another. It therefore rarely happens that an official considered most deserving in a specific procedure will be considered no longer deserving of promotion the following year. Furthermore, a candidate's merits cannot be assessed on the basis of a single year, but must necessarily be evaluated over a longer period, since otherwise officials who made special efforts in the years in which they can hope to be promoted would be unduly favoured.

The Commission therefore contends that it is proper, and indeed necessary, that the appointing authority should take into consideration, when consider[ing] ... the comparative merits of candidates for promotion within the meaning of Article 45(1) of the Staff Regulations, the fact that a candidate has already appeared on the previous year's list of officials considered most deserving of promotion.

Discussion

19. First of all, it should be observed that the two complaints formulated by the Commission against the contested judgment - contradictory reasoning and an error of law - are based on the same arguments.

Essentially, the Commission criticises the Court of First Instance for having held that the procedure set out in the Practical Guide fails to comply with the requirements of Article 45 of the Staff Regulations because officials left over are automatically included on the list of officials considered most deserving of promotion and are automatically promoted, unless they are now considered no longer deserving of promotion. The Commission contends that that finding is incorrect and contradictory since, in accordance with the Practical Guide, the appointing authority ascertains in each case whether the officials left over from the previous list must be considered no longer deserving of promotion. The Commission maintains that consideration of whether those officials are no longer deserving is the same as a consideration of the comparative merits of candidates.

20. Article 45(1) of the Staff Regulations places the appointing authority under a fundamental obligation in each promotions procedure. It requires that the administration undertake a consideration of the comparative merits of officials eligible for promotion and of the reports on them.

The use of the word comparative in Article 45 supposes that the administration is to undertake a comprehensive analysis of the merits of candidates for promotion in order to identify the similarities, resemblances or differences between them. It thus supposes that, as well as assessing the specific qualities of each candidate, the administration will compare their respective merits and reports in order to identify the official or officials who can properly be promoted. Under Article 45 of the Staff Regulations, the appointing authority is therefore required, in each promotions procedure, to place the merits of each candidate in order as they relate to those of the other candidates for promotion.

21. The requirement of a consideration of candidates' comparative merits does not mean that the appointing authority cannot take into consideration the fact that a candidate has already been on the list of officials considered most deserving of promotion in a previous procedure.

It is settled case-law that ... in considering candidates' merits, as provided for in Article 45 [of the Staff Regulations], the appointing authority is not required to base itself exclusively on their staff reports but may also base its assessment on other aspects of their merits, such as other information relating to their administrative and personal position ....

In that regard, the fact that a candidate was placed on the list of officials considered most deserving of promotion in a previous procedure is clearly one of the various aspects of his professional merits. Furthermore, as the Commission has pointed out, a candidate's merits cannot be assessed with reference to a single year, but must reasonably be evaluated over a longer period.

22. Contrary to the Commission's argument, however, I am of the view that consideration of whether a candidate is no longer deserving of promotion in the procedure set out in the Practical Guide is not the same as a consideration of candidates' comparative merits for the purposes of Article 45.

As Mrs Hamptaux has submitted, the expression no longer deserving merely supposes an individual assessment of the candidate's qualities. It means comparing that person's professional performance with his own previous performance, for the purpose of ascertaining whether he can be recognised as having qualities of a level at least equal to those displayed during previous procedures. Consideration of whether an official is no longer deserving is therefore limited to an examination of the conduct of the official concerned, taken in isolation. There is no need for the appointing authority to compare the merits of an official left over from the previous list with the merits of other candidates for promotion.

23. Nor is the Commission's argument that the procedure in issue ensures a comparative examination of the merits of candidates supported by either the wording of the Practical Guide or the facts of the present case.

24. There is nothing in the Practical Guide to show that the appointing authority, when considering whether a candidate passed over for promotion is no longer deserving of promotion, also undertakes a comparison of that candidate's merits with those of other candidates for promotion.

Thus, as regards proposals for promotion made by Directors-General (second stage of the procedure), the Practical Guide merely states:

It should be noted in this connection that the Promotion Committees have always insisted that, unless there is an extremely good reason, officials who appear on the Directorate-General's list but are not promoted in that year, must be listed in the same order the following year.

Similarly, as regards the drawing up of the draft list of officials considered most deserving of promotion (third stage of the procedure), the Practical Guide states that [n]ormally officials who appeared on the previous year's "most deserving" list but were not promoted are automatically entered on the draft list.

Admittedly, the reservations which the Practical Guide thus expresses - by means of the expressions unless there is an extremely good reason or normally - may give the impression that the Commission ascertains in each case whether the merits of officials left over from the previous list have become less deserving between one year and another. On the other hand, they do not ensure that the appointing authority will, in accordance with Article 45 of the Staff Regulations, undertake a comparison of those officials' merits with those of other candidates.

25. The facts of the present case also confirm the absence of a consideration of ... comparative merits in the procedure organised by the Practical Guide.

It will be recalled that in the procedure in issue the appointing authority promoted 10 officials from DG IX. Of these, two candidates - Mrs B. and Mrs D. - had already been on the list of officials considered most deserving of promotion during the previous procedure, although they had not been promoted. The other eight candidates had all been proposed by their Directorate-General the previous year but had not been placed on the list of officials considered most deserving of promotion.

It is common ground that the appointing authority adopted its promotion decisions without undertaking a comparison of the applicant's merits with those of Mrs B. and Mrs D.

Before the Court of First Instance, the Commission did not dispute that it had failed to carry out a comparative examination of the applicant's merits and reports with those of the two abovementioned candidates. On the contrary, it confined itself to observing that, in accordance with the Practical Guide, Mrs B. and Mrs D. had been automatically placed on the list of officials considered most deserving of promotion in the course of the 1997 procedure.

The Court of First Instance also made that finding of fact in paragraph 44 of the contested judgment, where it held that:

It follows [from the papers before the Court] that [officials "left over" from the previous year's list] are automatically included on the list of most deserving officials the following year unless they are "no longer deserving" of promotion. Contrary to its obligation under Article 45(1) of the Staff Regulations, therefore, the appointing authority did not, in the context of the promotions procedure in issue, undertake a comparative examination of the applicant's merits ... and those of the two who had already appeared on the previous year's list of most deserving officials ....

In paragraph 50 of the contested judgment, the Court of First Instance concluded ... that the promotions procedure in issue is vitiated by an irregularity constituting a substantive defect in that the consideration of the comparative merits of the applicant and the two officials on the previous year's list of most deserving officials ... fell short of the requirements ....

26. On the basis of the foregoing considerations, I therefore conclude that consideration of whether an official is no longer deserving of promotion in the procedure organised by the Practical Guide is not the same as a consideration of the comparative merits of candidates within the meaning of Article 45 of the Staff Regulations. In particular, the Commission has not established that the appointing authority, when ascertaining whether an official left over from the previous year's list is no longer deserving of promotion, undertakes a comparison of the merits and reports of all officials eligible for promotion.

27. In those circumstances, the finding of the Court of First Instance that the procedure in issue does not ensure compliance with the requirements laid down in Article 45 of the Staff Regulations is not vitiated either by contradictory reasoning or by an error of law.

28. I therefore propose that the Court should dismiss the appeal as unfounded.

Costs

29. Under Articles 69(2) and 118 of the Rules of Procedure of the Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Commission has been unsuccessful, it must be ordered to pay the costs, in accordance with Mrs Hamptaux's application for costs.

Conclusion

30. In the light of the foregoing considerations, I propose that the Court should:

(1) dismiss the appeal;

(2) order the Commission to pay the costs of these proceedings.