JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(First Chamber)

15 December 2015

Matteo Bonazzi

v

European Commission

‛Civil service — Officials — 2014 promotion procedure — General implementing provisions for Article 45 of the Staff Regulations — List of officials put forward for promotion by the Directorates-General and Services — Non-inclusion of the applicant — Whether possible to challenge the list of officials put forward for promotion by the Joint Promotions Committee — Joint Promotions Committee not adopting a position on the matter — Consideration of comparative merits carried out by the appointing authority alone’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, by which Mr Bonazzi principally seeks annulment of the decision of the appointing authority of the European Commission, communicated to the staff of that institution on 14 November 2014, not to promote him to grade AD 12 in the 2014 promotion procedure.

Held:

The application is dismissed. Mr Bonazzi shall bear his own costs and is ordered to pay the costs incurred by the European Commission.

Summary

Officials — Promotion — Consideration of comparative merits — Procedures — Involvement of an advisory body not provided for by the Staff Regulations — Failure of that body to issue recommendations — Consequences — Obligation of the administration to remedy the failure — Scope

Officials — Promotion — Consideration of comparative merits — Intervention of an advisory body not required by the Staff Regulations — Duty of the administration to take account of the opinion given by such a body

Article 45(1) of the Staff Regulations provides that, when considering comparative merits, the appointing authority is in particular to take account of the reports made on the officials in the execution of their duties in the grade held at the time of the relevant promotion procedure, the use of languages by the officials in the execution of their duties other than the language for which they have produced evidence of thorough knowledge, and the level of responsibilities exercised by them. That provision nevertheless leaves a certain amount of discretion to the appointing authority, to be exercised consistently with the principle of equal treatment, as to the weight to be given to each of the three factors referred to in Article 45 of the Staff Regulations in considering comparative merits, on the understanding that the merits are the decisive factor in that procedure. Thus it is only secondarily, in the event that the officials eligible for promotion have equal merits on the basis of the three factors for the consideration of comparative merits expressly set out in Article 45(1) of the Staff Regulations, that the appointing authority can take other matters into consideration, such as the officials’ age or their seniority in grade or length of service. (see paras 51, 57) See: Judgments of 16 May 2013 in Canga Fano v Council, T‑281/11 P, EU:T:2013:252, paragraph 44, and 15 January 2014 in Stols v Council, T‑95/12 P, EU:T:2014:3, paragraphs 33 and 34 and the case-law cited therein

While the personal files of officials eligible for promotion must be made available to the appointing authority, the appointing authority cannot be required to explain in each case the use it has made of the information available to it. (see para. 52) See: Judgment of 17 March 1983 in Hoffmann v Commission, 280/81, EU:C:1983:82, paragraph 7

Seniority in grade or length of service is not a matter to be taken into account directly in considering comparative merits, as required by Article 45 of the Staff Regulations, since it is precisely the merits which are to be considered, these being the decisive factor. The fact that an official has been classified in a grade for a certain number of years does not in any way demonstrate that he has particular merits, and to elevate seniority in grade to a decisive element would be to make promotion to some extent automatic, contrary to the principle of a civil service which seeks to promote the highest standards of ability, efficiency and conduct, as envisaged by the first paragraph of Article 27 and the first paragraph of Article 43 of the Staff Regulations. Nevertheless, seniority relates directly to the first of the three factors which are to be taken into account in the consideration of comparative merits referred to in Article 45 of the Staff Regulations, which relates to the reports on the officials. More specifically, this element in the assessment makes it possible to take better account of all the merits of the officials eligible for promotion, assessed on the basis of this first factor. Taking account of the officials’ merits in that way enables the appointing authority to strike a fair balance between the aim of ensuring rapid career progression for outstanding officials with an exceptionally high performance level, and the aim of ensuring a normal career for officials who have performed consistently well over a long period. (see paras 56, 58) See: Judgment of 15 January 2014 in Stols v Council, T‑95/12 P, EU:T:2014:3, paragraphs 41 and 45

In relation to the promotion of officials, divergences give rise to difficulties when the appointing authority comes to consider the comparative merits of all the officials concerned in a manner consistent with the principle of equal treatment. Accordingly, the obligation to consider the comparative merits on equal terms and on the basis of comparable sources of information, which is inherent in Article 45 of the Staff Regulations, requires a procedure or method which is capable of neutralising the subjectivity resulting from the assessments being made by different reporting officers. However, the appointing authority has the power to consider the comparative merits of officials according to the procedure or method which it considers the most appropriate. There is no obligation on the institution concerned to adopt a particular appraisal and promotion system, given the wide discretion which it has to implement the objectives of Article 45 of the Staff Regulations in accordance with its own needs for the organisation and management of its staff. (see paras 61, 62) See: Judgment of 1 July 1976 in de Wind v Commission, 62/75, EU:C:1976:103, paragraph 17 Judgments of 19 October 2006 in Buendía Sierra v Commission, T‑311/04, EU:T:2006:329, paragraphs 131 and 169, and 14 February 2007 in Simões Dos Santos v OHIM, T‑435/04, EU:T:2007:50, paragraph 132 Judgments of 14 July 2011 in Praskevicius v Parliament, F‑81/10, EU:F:2011:120, paragraph 53; 28 September 2011 in AC v Council, F‑9/10, EU:F:2011:160, paragraph 16; 18 March 2015 in Ribeiro Sinde Monteiro v EEAS, F‑51/14, EU:F:2015:11, paragraph 38; 3 June 2015 in Gross v EEAS, F‑78/14, EU:F:2015:52, paragraph 44, subject to an appeal before the General Court of the European Union in Case T‑472/15 P, and 22 September 2015 in Silvan v Commission in F‑83/14, EU:F:2015:106, paragraph 24, subject to an appeal before the General Court of the European Union in Case T‑698/15 P

Where an institution sets up an internal advisory committee not required by the Staff Regulations in order to obtain an opinion, regarding the appointment of its officials to certain posts or their promotion, in relation to the abilities and aptitudes of candidates or officials eligible for promotion, that measure is designed to ensure that the institution, as appointing authority, has a better basis for carrying out the consideration of comparative merits required by Article 45 of the Staff Regulations. It follows that an opinion expressed by a Joint Promotions Committee in the form of a recommendation for promotion must, in so far as the committee actually makes such a recommendation, be one of the factors on which the appointing authority is required to base its own assessment of the merits of the officials, even if it considers itself obliged not to follow it. (see para. 76) See: Judgments of 30 January 1992 in Schönherr v ESC, T‑25/90, EU:T:1992:8, paragraphs 27 and 28, and the case-law cited therein, and 21 September 1999 in Oliveira v Parliament, T‑157/98, EU:T:1999:173, paragraph 39 and the case-law cited therein

In a situation where a deficiency in the consideration of the comparative merits of officials eligible for promotion is attributable to a joint advisory body, not formally provided for by the Staff Regulations, which has failed to pursue the objective assigned to it by the appointing authority in provisions adopted by that authority, in that it has not made promotion recommendations, it is incumbent on the appointing authority to act in such a way that its obligations under the Staff Regulations are complied with in any event. In such circumstances, it is for the appointing authority to remedy the deficiency brought about by the joint advisory body, a body which the authority itself established, by means of general implementing provisions, in order to assist it in meeting its statutory obligations, since sole responsibility for promotion decisions, and for the consideration of comparative merits provided for by Article 45 of the Staff Regulations, rests with the appointing authority. The appointing authority must conduct the annual promotion procedure even where the most recent appraisal report of the person concerned, regarded though it may be as indispensable, is not available. Thus, a fortiori, the appointing authority cannot be required to delay the adoption of promotion decisions regarding all the institution’s officials indefinitely, in circumstances where a joint advisory body has not been able to adopt promotion recommendations addressed to that authority. However, the appointing authority must base its assessment on all the relevant available information. Furthermore, that examination must be undertaken on a basis of equality, using comparable sources of information. Thus, in a situation where the appointing authority adopts decisions concerning promotion when, because of a failure to adopt promotion recommendations, it has not received a list of officials recommended for promotion from the joint advisory body whose function it is to issue recommendations, the appointing authority complies with its obligations under the Staff Regulations if, in the decision rejecting the complaint, it makes it clear that it has itself considered, on the basis of all the available information and in particular the appraisal reports of the officials eligible for promotion, the comparative merits of all officials eligible for promotion, regardless of whether or not they appeared on the lists initially put forward by the Directorates-General and services of the institution. Furthermore, given that the appointing authority may have a joint advisory body take part in the preparatory stage of its decisions concerning promotion, and may also provide for that body to be assisted by another joint body, the fact that the appointing authority takes account of the draft reasoned opinion of the latter body is not such, in itself, as to vitiate the decision not to promote. (see paras 82-84, 86, 87, 89) See: Judgments of 17 March 1983 in Hoffmann v Commission, 280/81, EU:C:1983:82, paragraph 7, and 4 February 1987 in Bouteiller v Commission, 324/85, EU:C:1987:59, paragraph 11 Judgments of 21 September 1999 in Oliveira v Parliament, T‑157/98, EU:T:1999:173, paragraph 50, and 12 December 2002 in Morello v Commission, T‑338/00 and T‑376/00, EU:T:2002:314, paragraph 111 Judgment of 10 October 2007 in Berrisford v Commission, F‑107/06, EU:F:2007:172, paragraph 103