JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (Third Chamber)

1 December 2010

Case F-82/09

Michel Nolin

v

European Commission

(Civil service — Officials Promotion — Withdrawal of merit and priority points)

Application: brought under Articles 236 EC and 152 EA, in which Mr Nolin seeks, principally, annulment of the decision of the Director of the Directorate-General ‘Personnel and Administration’ at the Commission of 19 December 2008 withdrawing the 87.5 merit and priority points accumulated by the applicant toward promotion.

Held: The action is dismissed. The applicant is to pay all the costs.

Summary

1. Officials — Promotion — Procedure — Merit and priority points

(Staff Regulations, Arts 29 and 45)

2. Officials — Principles — Principle of legality

(Staff Regulations, Arts 90 and 91)

3. Officials — Promotion — Procedure — Merit and priority points

4. Officials — Measures of the administration — Implied decision — Definition

5. Officials — Principles — Protection of legitimate expectations — Conditions

6. Officials — Promotion — Procedure — Merit and priority points

(Staff Regulations, Arts 29 and 45)

7. European Union law — Principles — Fundamental rights — Right to an inter partes hearing

(Art. 6(2) TEU)

1. It follows from the general scheme of the provisions applicable to the promotion of officials, as interpreted in accordance with the principle of equal treatment, that the number of merit and priority points corresponding to the promotion threshold must be deducted from the total number of points accumulated by an official who has been promoted, whether on the basis of Article 29 of the Staff Regulations or Article 45 of the Staff Regulations.

While those articles lay down two distinct promotion procedures, Article 29, unlike Article 45, only refers to the possibility of promotion indirectly, as one of the options for filling a vacant post, but without defining the effects of such a promotion. Since Article 29 of the Staff Regulations says nothing on the subject, it cannot be considered that a promotion on the basis of that provision would not have the same legal effects as a promotion on the basis of Article 45 of the Staff Regulations; on the contrary, it must be inferred that the legislature, despite having laid down separate promotion procedures, did not intend promotions on the basis of Article 29 of the Staff Regulations to have different legal effects from those of promotions based on Article 45 of the Staff Regulations.

(see paras 46, 48)

2. In any decision of the administration, it must be established clearly and precisely on what legal basis that decision was adopted, knowing that the legal basis mentioned must provide a legitimate basis for the administration’s jurisdiction on the subject.

(see para. 51)

3. The decision to withdraw an official’s merit and priority points constitutes the consequence of the decision to promote him. The authority with responsibility for promotions therefore has a residual competence to adopt such a decision, which merely draws the appropriate conclusions from the official’s promotion.

(see para. 57)

4. An implied decision presupposes that a request has been made to the administration to which it has failed to reply, or that it may be inferred from the facts of the case that a decision has been taken by the administration which it has omitted to formalise. On the other hand, merely keeping an official’s legal situation unchanged cannot indicate the existence of a decision.

(see paras 68, 70)

See:

judgment of 11 May 2010 in F-55/09 Maxwell v Commission, para. 66

5. Three conditions must be satisfied in order to claim entitlement to the protection of legitimate expectations. First, precise, unconditional and consistent assurances originating from authorised and reliable sources must have been given to the person concerned by the administration. Second, those assurances must be such as to give rise to a legitimate expectation on the part of the person to whom they are addressed. Third, the assurances given must comply with the rules of the Staff Regulations and the applicable rules in general or, at the very least, any irregularity must be capable of escaping the notice of a normally diligent official, in the light of the information at his disposal and his ability to carry out the necessary checks.

In the absence of a written or verbal assurance, the mere passage of time between the withdrawal of an official’s merit and priority points and his promotion does not constitute a precise assurance given by the administration to the official concerned where the rules on promotion, the lawfulness of which is not disputed by the official, require the administration to deduct from the total number of points he has accumulated the number of merit and priority points corresponding to the promotion threshold.

(see paras 74-75)

See:

T-203/97 Forvass v Commission [1999] ECR-SC I-A-129 and II-705, para. 70; T-381/00 Wasmeier v Commission [2002] ECR-SC I-A-125 and II-677, para. 106; T-205/01 Ronsse v Commission [2002] ECR-SC I-A-211 and II-1065, paras 54 and 55; T-145/04 Righini v Commission [2005] ECR-SC I-A-349 and II-1547, para. 130

6. The fact that an official is promoted, whether under Article 29 or Article 45 of the Staff Regulations, is alone sufficient to justify the deduction of the number of merit and priority points corresponding to the promotion threshold from the total number of points accumulated by that official. Accordingly, promoted officials are all in the same position in terms of having had a certain number of accumulated points deducted, regardless of the legal basis on which their promotion was decided. Consequently, there is no discrimination in treating an official promoted on the basis of Article 29 of the Staff Regulations in the same way as an official promoted on the basis of Article 45 of the Staff Regulations.

(see para. 88)

7. In accordance with the right to an inter partes hearing, any party in a dispute may present legal or factual arguments which it considers appropriate to support its claims, including any pleas of illegality. In order to claim abuse of the exercise of a right, it is necessary to demonstrate that that right has been exercised for a purpose different from the one for which it was conferred, in that its exercise reveals the intention of causing harm.

(see para. 96)