JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

13 December 2011

Case F‑51/08 RENV

Willem Stols

v

Council of the European Union

(Civil service – Officials – Referral back to the Tribunal after setting aside – Promotion – 2007 promotion exercise – Consideration of comparative merits – Manifest error of assessment – None – Grounds for the decision – Supererogatory ground – Ineffective plea)

Application: brought under Articles 236 EC and 152 EA, in which Mr Stols seeks annulment of the Council’s decision of 16 July 2007 refusing to include his name on the list of officials promoted to grade AST 11 for the 2007 promotion exercise, together with the decision of 5 February 2008 by which the Deputy Secretary-General of the Council rejected his complaint lodged on the basis of the provisions of Article 90(2) of the Staff Regulations of Officials of the European Communities, in the version in force since 1 May 2004.

Held: The action is dismissed. The applicant is to bear his own costs and to pay those of the Council in Case F‑51/08. The applicant and the Council are each to bear their own costs in Case T‑175/09 P and the present case.

Summary

1. Officials – Promotion – Consideration of comparative merits – Administration’s discretion – Scope – Elements which may be taken into consideration

(Staff Regulations, Art. 45(1))

2. Officials – Promotion – Consideration of comparative merits – Administration’s discretion – Judicial review – Limits

(Staff Regulations, Art. 45)

3. Officials – Promotion – Criteria – Merits – Taking into account of seniority in grade – Subsidiary matter

(Staff Regulations, Art. 45(1))

4. Officials – Promotion – Criteria – Merits – Taking into account of language skills – Scope

(Staff Regulations, Art. 45(1))

5. Officials – Promotion – Criteria – Merits – Taking into account of the level of responsibilities exercised – Scope

(Staff Regulations, Art. 45)

6. Officials – Promotion – Consideration of comparative merits – Elements which may be taken into consideration – Actual time worked by the official – Lawfulness

(Staff Regulations, Art. 45)

1. Pursuant to Article 45(1) of the Staff Regulations, when considering comparative merits for the purpose of granting a promotion, the appointing authority is in particular to take account of the reports on the officials eligible for promotion, the use of languages in the execution of their duties other than the language for which they have produced evidence of thorough knowledge and, where appropriate, the level of responsibilities exercised. It is in the light of those three elements that the appointing authority must consider the comparative merits of officials eligible for promotion.

However, the wide discretion thus conferred on the appointing authority is limited by the need to consider candidates’ comparative merits carefully and impartially, in the interest 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 35, 39)

See:

15 September 2005, T‑132/03 Casini v Commission, para. 53, and the case‑law cited therein

7 November 2007, F‑57/06 Hinderyckx v Council, para. 45

2. The appointing authority possesses, for the purpose of considering the comparative merits of officials who are candidates for promotion, a wide discretion and the Union judicature must restrict itself to consideration of the question whether, regard being had to the various considerations which have influenced the administration in making its assessment, the latter has remained within reasonable limits and has not used its power in a manifestly incorrect way.

In that regard, in order to preserve the effectiveness of the discretion which the legislature saw fit to confer on the appointing authority in connection with promotion, the Union judicature may not annul a decision solely on the ground that it considers there to be evidence raising plausible doubts about the appointing authority’s assessment, or proving that there has been an error of assessment. Annulment for a manifest error of assessment is possible only where it is clear from the documents in the case that the appointing authority exceeded the confines of its discretion.

It is therefore not for the Tribunal to re-examine in detail all the files of the candidates eligible for promotion in order to make sure that it agrees with the conclusion reached by the appointing authority, since, if it undertook such an exercise, it would exceed its powers of judicial review by substituting its own assessment of the merits of the candidates eligible for promotion for that of the appointing authority.

(see paras 36-38)

See:

Casini v Commission, paragraph 52 and the case-law cited therein.

28 September 2011, F‑9/10 AC v Council, paras 23 and 24

3. 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, and consider, in the light of that assessment, that the merits of one official are inferior to those of another.

(see para. 47)

See:

10 September 2009, F‑124/07 Behmer v Parliament, para. 106, and the case‑law cited therein; 15 February 2011, F‑68/09 Barbin v Parliament, paras 90 and 91, on appeal before the General Court of the European Union, Case T‑228/11 P

4. The wording of Article 45(1) of the Staff Regulations requires that the assessment of officials’ merits should include only languages the use of which brings sufficiently substantial added value, having regard to the actual needs of the service, as to appear necessary for its successful functioning.

In that respect, an official who cannot prove that he habitually uses other languages in the performance of his duties is not entitled to claim that his merits are manifestly, on the basis of the criterion of language skills, greater than those of other officials. Furthermore, the fact that one of an official’s tasks consists of processing and filing documents drafted in all the official languages of the Union does not mean that he has a thorough knowledge of all those languages or, particularly, that he uses them habitually in the performance of his duties.

(see paras 49, 51)

See:

AC v Council, para. 61

5. Regarding the criterion of the level of responsibilities exercised, that level cannot necessarily be determined, when considering the comparative merits of officials eligible for promotion, by the scale of the management tasks performed, since an official can assume a high level of responsibilities without being in charge of a large number of staff and, conversely, an official may be in charge of a large number of staff without exercising a particularly high level of responsibilities.

(see para. 53)

See:

16 December 2010, T‑175/09 P Council v Stols, para. 48

6. In view of the limited number of posts available under the budget, an institution may, for the purpose of the promotion procedure, properly take into account, as a secondary consideration, without breaching the principle of equal treatment, the actual time worked by an official and, all other merits being equal, give priority for promotion to other officials who, on an objective view, have carried out their duties on a more sustained basis and thus contributed to the continuity and, therefore, the interests of the service during the reference periods to a much greater extent than the applicant.

(see para. 59)

See:

21 October 1997, T‑168/96 Patronis v Council, para. 34; 13 April 2005, T‑353/03 Nielsen v Council, para. 76