JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

18 April 2012

Case F‑50/11

Dawn Cheryl Buxton

v

European Parliament

(Civil service — Officials — Award of merit points — Staff report — Part-time work — Equal treatment)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, in which Ms Buxton seeks, essentially, annulment of the Parliament’s decision of 11 May 2010 awarding her one merit point in the merit points procedure following the 2009 reports procedure.

Held: The action is dismissed. The applicant is to bear her own costs and to pay the costs of the Parliament.

Summary

1. Officials — Promotion — Consideration of comparative merits — Procedures — Quantification of merits through the allocation of points — Administration’s discretion — Judicial review — Limits

(Staff Regulations, Art. 45(1))

2. Officials — Equal treatment — Definition — Limits

(Staff Regulations, Art. 1d(5))

3. Officials — Promotion — Decision to award merit points — Complaint — Rejection decision — Obligation to state reasons — Scope

(Staff Regulations, Arts 45 and 90(2))

4. Officials — Reports procedure — Merit points — Promises — Disregard of provisions of the Staff Regulations — Legitimate expectations — None

(Staff Regulations, Art. 43)

1. The administration enjoys wide discretion in appraising the merits to be taken into consideration in the context of a promotion decision under Article 45 of the Staff Regulations, and, consequently, also in the context of a decision awarding merit points, which are taken into account in a promotion system under which such an assessment is quantified. Review by the Courts must therefore be limited to ascertaining whether, regard being had to the factors and reasons that led the administration to its assessment, it remained within unimpeachable limits and did not manifestly misuse its power.

In order to establish that the administration committed a manifest error in assessing the facts such as to justify the annulment of a decision, the evidence, which it is for the applicant to adduce, must be sufficient to make the findings of the authority implausible. In other words, a plea alleging a manifest error must be rejected if, despite the evidence adduced by the applicant, the contested assessment may still be accepted as true or valid.

(see paras 37-38)

See:

12 December 1996, T‑380/94 AIUFFASS and AKT v Commission, para. 59; 3 May 2007, T‑261/04 Crespinet v Commission, para. 58; 12 February 2008, T‑289/03 BUPA and Others v Commission, para. 221; 1 April 2009, T‑385/04 Valero Jordana v Commission, para. 131

2. Where an official exercises a right to take leave or to a specific work scheme conferred on him by the Staff Regulations, the administration cannot, without undermining the effectiveness of that right, consider that his situation is different from that of an official who has not exercised that right and therefore apply different treatment to him, unless that difference in treatment is, first, objectively justified, particularly in that it merely draws the appropriate conclusions from the fact that the staff member concerned has not carried out work during the period in question, and, second, strictly proportionate to the justification given. Thus the fact that an official has exercised the right conferred on him by the Staff Regulations to work part-time in connection with parental leave may constitute an objective circumstance that cannot be disregarded in the appraisal of his merits and, in particular, his efficiency.

A breach of the principle of equal treatment could therefore result from a comparison of the merits of officials which does not take account of reduced performance placing one of them in an objectively different situation from the others.

In that respect, according to Article 1d(5) of the Staff Regulations, where an official who claims to be the victim of discrimination establishes facts from which it may be presumed that there has been discrimination, the onus is on the administration to prove that there has been no breach of the principle of equal treatment.

(see paras 50, 65-66)

See:

15 February 2011, F‑68/09 Barbin v Parliament, para. 100, on appeal before the General Court of the European Union, Case T‑228/11 P

3. In the context of a promotion decision under Article 45 of the Staff Regulations the competent authority is not obliged to give reasons for its decision, either to the person promoted or to the officials competing with him. The same consequently applies in the context of a decision awarding merit points. By contrast, the appointing authority is under an obligation to give reasons for its decision rejecting a complaint lodged under Article 90(2) of the Staff Regulations by an official who considers that he has been harmed by an unfavourable award of points, the statement of reasons for that rejection decision being deemed to be the same as the statement of reasons for the decision against which the complaint was directed.

(see para. 74)

See:

7 February 1990, C‑343/87 Culin v Commission, para. 13

14 June 2001, T‑230/99 McAuley v Council, para. 50; 27 September 2006, T‑156/05 Lantzoni v Court of Justice, para. 77

11 December 2008, F‑83/06 Schell v Commission, para. 89

4. Precise, unconditional and consistent assurances given by the administration to an official that he was to be awarded a particular number of merit points following a reports procedure, without a full consideration of the comparative merits of officials in the directorate-general, directorate or department in question, in view of the limited number of points to be awarded, would be manifestly contrary to the principles of objectivity and impartiality that should govern the assessment of officials’ ability, efficiency and conduct in the service under Article 43 of the Staff Regulations. The principle of protection of legitimate expectations cannot justify a practice that is contrary to a provision of the Staff Regulations.

(see para. 80)

See:

14 July 2011, F‑81/10 Praskevicius v Parliament, para. 67