JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

21 October 1997

Case T-168/96

Catherine Patronis

v

Council of the European Union

‛Officials — Refusal of promotion — Consideration of comparative merits — Leave for sickness and accident — Consideration of work actually carried out during reference period’

Full text in French II-833

Application for:

annulment of decision refusing promotion.

Decision:

Application dismissed.

Abstract of the Judgment

The applicant, who took up her duties with the Council on 16 May 1980, was put in charge, on 1 July of that year, of setting up and running the Greek section of the typing pool. She was appointed to a post as an administrative assistant in Grade B 3 on 1 July 1981 and promoted to Grade B 2 on 1 June 1987.

The applicant was sixth, in order of seniority, on a list of 36 officials with the requisite seniority on 1 October 1995 for promotion to Grade B 1, under the 1995 promotions procedure. Nine posts in Grade B 1 were to be filled by promotion.

In its report to the appointing authority, the Consultative Committee on Promotions to Category B (‘Consultative Committee’) proposed unanimously to promote to Grade B 1 nine officials amongst whom the applicant was not included. That list was published in Staff Notice No 163/95 of 7 December 1995.

The appointing authority subsequently appointed to Grade B 1 the nine officials proposed by the Consultative Committee.

On 7 March 1996 the applicant lodged a complaint against the appointing authority's decision not to promote her, which was registered on 13 March. That complaint was rejected by decision of 11 July 1996, receipt of which the applicant acknowledged on 5 August.

In support of its rejection of the complaint, the appointing authority explained inter alia that ‘... having considered their comparative merits and staff reports the [Consultative Committee] had to decide between equally deserving candidates. To do so, one of the factors which was taken into account was the work actually performed. Since the time you actually spent at work was reduced because of your sick leave and accident leave the [Consultative Committee] was in the end unable to select you for promotion. ’

The applicant was subsequently promoted to Grade B 1 with effect from 1 January 1996.

Merits

Vie first plea in law, alleging infringement of Article 45 of the Staff Regulations

The Consultative Committee was able to establish, first, that the number of days' leave for sickness and accident taken by Mrs Patronis during the reference period significantly reduced the time she actually worked and, second, that her absence on account of sickness and accident greatly exceeded that of the nine officials promoted (paragraph 31).

Even if it did not systematically check all the sickness and accident leave taken by all the candidates for promotion, the Consultative Committee could not but conclude that diere was a considerable disparity between the number of absences for sickness and accident recorded for Mrs Patronis and that recorded for the nine candidates promoted (paragraph 32).

Under the circumstances, given the limited number of posts available under the budget, and having regard to paragraph 1 of the Guidelines for Staff Representatives on Promotion Committees, adopted by the Staff Committee on 17 November 1994 (‘Guidelines’), which provide that, where candidates are equally well-qualified, the time actually spent at work may be taken into account, the Council quite properly took account, as a secondary consideration, of the actual time worked by Mrs Patronis and, all other merits being equal, gave priority to those officials who had, in addition, on an objective view, carried out their duties on a more sustained basis and tints had contributed to the continuity and, therefore, the interest of the service during the reference period to a much greater extent than the applicant (paragraph 34).

A consultative promotion committee is not bound to rely solely on the staff reports of the candidates but may also base its assessment on other aspects of the merits of the candidates such as other information relating to their administrative and personal position, which qualifies the assessment made solely on the basis of the staff reports (paragraph 35).

See: T-89/91, T-21/92 and T-89/92 X v Commission [1993] ECR II-1235, paras 49 and 50

By virtue of the principle of observance of the hierarchy of norms, the inteipretation which the institution legitimately gave to Article 45 of the Staff Regulations cannot be called into question either by the opinion of the Joint Committee, or by the Guidelines (paragraph 36).

The second plea, alleging breach of the obligation to state reasons

The decision rejecting the complaint explains briefly but explicitly enough the reason for which the Council rejected Mrs Patronis's application for promotion, the merits of which were the subject of the first plea (paragraph 41).

Accordingly, the grounds stated for the decision rejecting the complaint did provide her with the information necessary to make this application and enabled the Court of First Instance to exercise its power of review of the legality of the contested decision (paragraph 42).

See: 36/81, 37/81 and 218/81 Selon v Commission [1983] ECR 1789, paras 47 and 48; T-80/92 Turner v Commission [1993] ECR II-1465. para. 62

The third plea, alleging infringement of Article 26 of the Staff Regulations

The purpose of Article 26 of the Staff Regulations is to guarantee an official's rights of defence by ensuring that decisions taken by the appointing authority affecting his administrative status and his career are not based on matters concerning his conduct which are not included in his personal file (paragraph 46).

See: 233/85 Bonino v Commission [1987] ECR 739, para. 11 ; T-82/89 Marcato v Commission [1990] ECR II-735, para. 78

The third plea cannot succeed, since the Council legitimately took into account Mrs Patronis's sickness and accident leave, and she does not deny having received statements from the administration, as each period of sick leave was taken, and did not dispute their accuracy (paragraph 47).

Operative part:

The application is dismissed.