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

8 February 2012

Case F-11/11

Vincent Bouillez and Others

v

Council of the European Union

(Civil service — Officials — Promotion — 2010 promotion exercise — Refusal of promotion — Consideration of comparative merits of officials in the AST function group according to their career stream — Obligation on an institution not to apply a provision giving effect to the Staff Regulations which is tainted by illegality)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, seeking annulment of the decisions by which the Council refused to promote them to a higher grade in the 2010 promotion exercise.

Held: The action is dismissed. The Council is to bear its own costs and to pay the applicants’ costs.

Summary

1. Officials — Promotion — Complaint by a candidate who has not been promoted — Decision rejecting the complaint — Obligation to state the reasons on which the decision is based — Scope

(Staff Regulations, Arts 25 and 45)

2. Officials — Promotion — Consideration of comparative merits — Procedures — Officials in the AST function group — Comparison only with others in the same career stream

(Staff Regulations, Art. 45; Annex XIII, Art 10)

3. Officials — Promotion — Consideration of comparative merits — Administration’s discretion — Elements that may be taken into consideration — Level of responsibilities exercised

(Staff Regulations, Art. 45(1))

4. Officials — Staff Regulations — General implementing provisions — Powers of the institutions — Limits — Unlawful derogation from superior provisions — Not permissible

(Staff Regulations, Art. 110)

1. Although the appointing authority is not obliged to give reasons for its promotion decisions to candidates who have not been promoted, it is, however, obliged to state the reasons for its decision rejecting a complaint lodged by a candidate who has not been promoted.

In that context, the adequacy of the statement of reasons is to be assessed in the light of the factual and legal context in which the contested act is adopted. Since promotions are made by selection, in accordance with Article 45 of the Staff Regulations, it is enough that the reasons given for the rejection of the complaint relate to the application of the conditions governing promotion laid down by law and the Staff Regulations to the official’s individual situation.

Moreover, in the case of a statement of reasons for a decision adopted in a procedure affecting a large number of officials or other staff, the appointing authority cannot be expected, when rejecting a complaint, to provide reasons for its decision which go further than the claims relied on in that complaint, in particular by explaining why the merits of each of the officials promoted were greater than those of the author of the complaint.

(see paras 21-23)

See:

2 June 2005, T-177/03 Strohm v Commission, para. 54

10 November 2011, F-18/09 Merhzaoui v Council, para. 60; 10 November 2011, F-20/09 Juvyns v Council, para. 70

2. As regards officials in the AST function group, Article 10 of Annex XIII to the Staff Regulations lays down reference multiplier rates, which vary for the different career streams, for determining the number of vacant posts for each grade. Since the administration is obliged to comply with those rates, the appointing authority is fully entitled to compare the merits of officials in the AST function group only with those of other officials in the same career stream.

In that respect, comparing the merits of officials in the AST function group by career stream for the purpose of the promotion procedure does not infringe Article 45 of the Staff Regulations, since Article 10 of Annex XIII to the Staff Regulations is a special rule which derogates from the general provisions of the Staff Regulations.

(see paras 31, 32, 34)

See:

Juvyns v Council, paras 42 and 43

3. It follows from Article 45(1) of the Staff Regulations that the level of responsibilities exercised by the officials eligible for promotion is one of the three relevant elements that the administration must primarily take into account in the analysis of the comparative merits of the officials eligible for promotion.

(see para. 38)

See:

5 May 2010, F-53/08 Bouillez and Others v Council, para. 52

4. Although the institutions are under an obligation to adopt decisions laying down the rules for implementing a procedure established by the Staff Regulations, particularly where the adoption of those implementing provisions is expressly provided for in the Staff Regulations, those decisions may not lawfully lay down rules which derogate from hierarchically superior provisions, such as general principles of law or the provisions of the Staff Regulations.

In that regard, where a decision of a general nature adopted by an institution unlawfully derogates from superior provisions, it is for the institution to disapply that general decision. That is particularly true where the institution has to take a decision on an official’s individual situation and is confronted with a general implementing provision which infringes a superior rule: the institution must decide on the official’s individual situation without applying the unlawful general implementing provision.

Thus, in the case of a general implementing provision under which the career progress of an AST official who has received an attestation under Article 10(3) of Annex XIII to the Staff Regulations is subject to the actual performance of assistant’s duties, which the institution reserves, contrary to Article 7(1) of the Staff Regulations, for a certain category of AST officials, even though, moreover, that condition is not required by Article 45 of the Staff Regulations, the institution does not commit any error of law if it complies with the superior provisions of the Staff Regulations and disapplies that unlawful general implementing provision.

(see paras 45, 46, 50,51)

See:

28 April 2011, C-61/11 PPU El Dridi, para. 61

20 November 2007, T-308/04 Ianniello v Commission, para. 38