JUDGMENT OF THE EUROPEAN UNION

CIVIL SERVICE TRIBUNAL

(Single judge)

20 July 2016

HL

v

European Commission

‛Civil service — Officials — Article 45 of the Staff Regulations — 2014 promotion exercise — General implementing provisions for Article 45 of the Staff Regulations — List of officials proposed for promotion by the Directors-General and heads of service — Omission of the applicant’s name — Possibility of challenging before the Joint Promotion Committee the list of officials proposed for promotion — Consideration of the comparative merits of the officials eligible for promotion — Opinions adopted by a joint body — Obligation to state grounds’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which HL seeks the 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 7 in the 2014 promotion exercise.

Held:

The action is dismissed. HL is to bear his own costs and is ordered to pay the costs incurred by the European Commission.

Summary

Officials — Promotion — Consideration of comparative merits — Procedures — Administration’s discretion — Limits — Respect for the principle of equal treatment — Need for a procedure capable of neutralising the subjectivity inherent in assessments made by different reporting officers

A claim for annulment is not admissible unless the applicant has an interest in seeing the contested measure annulled. Such an interest can be present only if the annulment of the measure is itself capable of having legal consequences for the person concerned or, to put it another way, if the action is liable, if successful, to procure an advantage for the party who has brought it. Thus, an official or other member of staff is not entitled to act in the interests of the law or of the institutions and may put forward, in support of an action, only such claims as relate to him personally. (see paras 25-26) See: Order of 8 March 2007 in Strack v Commission, C‑237/06 P, EU:C:2007:156, para. 64 Judgment of 26 February 2013 in Labiri v EESC, F‑124/10, EU:F:2013:21, para. 56; orders of 22 April 2015 in ED v ENISA, F‑105/14, EU:F:2015:33, para. 20 and the case law cited; and of 16 December 2015 in Bärwinkel v Council, F‑118/14, EU:F:2015:154, paras 41 and 58

The appointing authority possesses, for the purposes of considering the comparative merits of officials eligible for promotion as provided for in Article 45(1) of the Staff Regulations, a wide discretion. 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 consideration must be carried out on a basis of equality, using comparable sources of information. In this connection, there is considerable heterogeneity in the appraisals of officials in the various services of an institution and that heterogeneity is the source of difficulty when the appointing authority is required to consider the comparative merits of all officials concerned, in accordance with the principle of equal treatment. Thus, the obligation to conduct a comparison of merits on a basis of equality and using comparable sources of information, which is inherent in Article 45 of the Staff Regulations, requires a procedure or method capable of neutralising the subjectivity resulting from the appraisals made by the different reporting officers in the reports drawn up under Article 43 of the Staff Regulations and which must be assessed in accordance with Article 45(1) thereof. However, the appointing authority has the power to undertake a consideration of comparative merits according to the procedure or method which it considers 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 42-45) See: Judgments of 1 July 1976 in de Wind v Commission, 62/75, EU:C:1976:103, para. 17, and of 21 April 1983 in Ragusa v Commission, 282/81, EU:C:1983:105, paras 9 and 13 Judgments of 15 September 2005 in Casini v Commission, T‑132/03, EU:T:2005:324, para. 53 and the case law cited; of 19 October 2006 in Buendía Sierra v Commission, T‑311/04, EU:T:2006:329, para. 169; and of 14 February 2007 in Simões Dos Santos v OHIM, T‑435/04, EU:T:2007:50, para. 132 Judgment of 15 January 2014 in Stols v Council, T‑95/12 P, EU:T:2014:3, paras 29 and 32 Judgments of 14 July 2011 in Praskevicius v Parliament, F‑81/10, EU:F:2011:120, para. 53; of 18 March 2015 in Ribeiro Sinde Monteiro v EEAS, F‑51/14, EU:F:2015:11, para. 41, on appeal before the General Court, Case T‑278/15 P; of 3 June 2015 in Gross v EEAS, F‑78/14, EU:F:2015:52, para. 44, on appeal before the General Court, Case T‑472/15 P; of 22 September 2015 in Silvan v Commission, F‑83/14, EU:F:2015:106, para. 24, on appeal before the General Court, Case T‑698/15 P; of 15 December 2015 in Bonazzi v Commission, F‑88/15, EU:F:2015:150, paras 50 and 62; and of 2 March 2016 in Loescher v Council, F‑84/15, EU:F:2016:29, para. 56

Sole responsibility for promotion decisions, and for the consideration of comparative merits provided for in Article 45 of the Staff Regulations, rests with the appointing authority. In this connection, first, while Article 45(1) of the Staff Regulations requires the appointing authority to consider, prior to any promotion decision, the comparative merits of all officials eligible for promotion, the appointing authority may be assisted by the administrative services at the various hierarchical levels, in accordance with the principles inherent in the operation of any hierarchical administrative structure. Thus, the appointing authority may provide for prior consideration within each Directorate-General of the personal files of officials eligible for promotion, even if such prior consideration cannot take the place of the comparative consideration which must be undertaken subsequently by the promotion committee, where provision is made for such consideration, and then in any event by the appointing authority at the end of the promotion exercise with a view to adopting promotion decisions or decisions of non-promotion, there being express provision in the Staff Regulations only for the latter comparative consideration. In the context of the promotion procedure provided for by the general implementing provisions adopted by the Commission, it is true that the appointing authority cannot be allowed simply to consider the merits of those officials who are placed at the top of the lists prepared by the various services or Directorates-General. However, in the context of the identification — which is decentralised at the level of the Directorates-General of the institution — of the officials eligible for promotion who are to be proposed for promotion at that stage to the appointing authority, the exercise by officials who were not proposed for promotion at that stage by their respective Directors-General and heads of service of their right, laid down by the general implementing provisions, to submit an appeal to the Joint Promotion Committee against those decisions not to propose them for promotion enables those officials to have before that joint body a consideration of their comparative merits not only at the level of their respective Directorates-General, but also at that of the institution as a whole. Second, the appointing authority may have a joint advisory body such as the Joint Promotion Committee take part in the preparatory stage of its decisions on promotion, and may also provide for that body to be assisted by another joint body, whose adopted draft reasoned opinions it may take into account. By bringing their appeals, the officials eligible for promotion but not proposed for it by their Directors-General and heads of service have, under the appeals procedure, the opportunity to bring their cases to the attention of the appointing authority by obliging it on the basis of their challenges, those draft reasoned opinions and, as appropriate, the recommendations of the Joint Promotion Committee to examine in detail their respective situations in its final consideration, undertaken at the end of the promotion procedure, of the comparative merits of all officials eligible for promotion with a view to adopting decisions on promotion. (see paras 48-51) See: Judgment of 4 February 1987 in Bouteiller v Commission, 324/85, EU:C:1987:59, para. 11 Judgment of 30 November 1993 in Tsirimokos v Parliament, T‑76/92, EU:T:1993:106, para. 17 Judgments of 22 September 2015 in Silvan v Commission, F‑83/14, EU:F:2015:106, paras 48 and 50 and the case law cited, on appeal before the General Court, Case T‑698/15 P; and of 15 December 2015 in Bonazzi v Commission, F‑88/15, EU:F:2015:150, paras 83 and 89 and the case law cited

Although the appointing authority is not required to state the reasons for its decisions on promotion, it is nevertheless required to state the reasons for that decision in the decision on the complaint, and to do so in an individualised manner. 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, in accordance with Article 45 of the Staff Regulations, made by selection of the appointing authority, it is enough that the reasons given for the rejection of the complaint relate to the application to the official’s individual situation of the conditions governing promotion laid down by law and the Staff Regulations. Moreover, in the case of a statement of reasons for a decision adopted in a procedure affecting a large number of officials, 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, for example by explaining in particular why the merits of each of the officials promoted were greater than those of the author of the complaint. The statement of reasons for the rejection of the complaint need only deal with the satisfaction of the legal conditions under which the Staff Regulations determine the regularity of procedure, so the appointing authority is not required to disclose to the non-promoted official details of its comparison of his merits or to set out in detail why it considered that the promoted officials ought to be promoted. (see paras 61-63) See: Judgment of 15 December 2015 in Bonazzi v Commission, F‑88/15, EU:F:2015:150, paras 96 to 98 and the case law cited