JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

21 February 2008

Case F-31/07

Françoise Putterie-De-Beukelaer

v

Commission of the European Communities

(Civil service – Officials – Promotion – Appraisal procedure – Attestation procedure – Appraisal of potential – Breach of the scope of the law – Plea raised by the Court of its own motion)

Application: brought under Articles 236 EC and 152 EA, in which Mrs Putterie-De‑Beukelaer seeks annulment of her career development report for 2005, in so far as, in section 6.5 ‘Potential’, that report does not acknowledge her potential to carry out duties in category B* for the purposes of the attestation procedure.

Held: The applicant’s career development report concerning the period from 1 January to 31 December 2005 is annulled in so far as it does not acknowledge her potential to carry out duties in category B*. The Commission is ordered to pay all the costs.

Summary

1. Officials – Actions – Prior administrative complaint – Definition

(Staff Regulations, Art. 90(1) and (2))

2. Officials – Actions – Plea based on a breach of the scope of the law’s application – Finding made by the Court of its own motion – Conditions

(Rules of Procedure of the Civil Service Tribunal, Art. 77)

3. Officials – Attestation procedure – Rules for its implementation in the Commission – Competence to rule on candidatures – Distinction from the appraisal procedure – Criteria for admission

(Staff Regulations, Art. 43; Annex XIII, Art. 10(3))

1. The precise legal categorisation of a letter or memorandum is a matter for the Tribunal alone and not for the parties. A letter in which an official asks the administration to take certain actions is to be regarded as a complaint within the meaning of Article 90(2) of the Staff Regulations where that letter, even though it might have been interpreted as a request within the meaning of Article 90(1) of the Staff Regulations, was explicitly interpreted by the appointing authority as a complaint and the person concerned was thus entitled to believe that he had met the requirements of the pre-litigation procedure laid down in Articles 90 and 91 of the Staff Regulations and that he could bring an action directly before the Tribunal.

In a situation where the conduct of an institution has been, either alone or to a decisive extent, such as to give rise to a pardonable confusion in the mind of a party acting in good faith and exercising all the diligence required of a normally experienced person, the administration may not rely on its own failure to observe the principles of legal certainty and the protection of legitimate expectations out of which the party’s error arose.

(see paras 34, 35, 38-40)

See:

T-12/90 Bayer v Commission [1991] ECR II‑219, para. 29; T-115/92 Hogan v Parliament [1993] ECR II‑895, para. 36

2. The Community Court has the power and, where appropriate, the duty to raise certain pleas of substantive legality of its own motion. This is so where a public policy plea alleges that a decision breaches the scope of the law’s application. The Tribunal would be neglecting its function as the arbiter of legality if, even in the absence of a challenge by the parties in this regard, it failed to make a finding that the contested decision before the Tribunal had been adopted on the basis of a rule that was not applicable to the case in point and if, as a consequence, it was led to adjudicate on the dispute before it by itself applying such a rule.

The argument that the raising of a plea of substantive legality of the Tribunal’s own motion could endanger the adversarial nature of the proceedings and the principle of respect for the right to a fair hearing cannot be accepted. Article 77 of the Rules of Procedure of the Civil Service Tribunal provides that the Tribunal may, of its own motion, decide that there exists an absolute bar to proceeding with an action, on condition that the parties have first been heard. If that condition adequately safeguards the principle of audi alteram partem and respects the right to a fair hearing where the Tribunal decides of its own motion that there exists an absolute bar to proceeding with an action, there is no reason to suppose that the same does not apply where a plea of public policy is raised of the court’s own motion, whether it relate to substantive or external legality. It must therefore be considered that, by notifying the parties of the plea of public policy which it intends to raise, by inviting the written observations of the parties regarding that intention and by enabling them to set out their views in that regard at the hearing, the Tribunal satisfies the requirements of the principle of audi alteram partem and respects the right to a fair hearing.

(see paras 50, 51, 57, 60)

See:

C-473/00 Cofidis [2002] ECR I‑10875, paras 36 and 38; C‑442/03 P and C‑471/03 P P & O European Ferries (Vizcaya) and Diputación Floral de Vizcaya v Commission [2006] ECR I‑4845, para. 45; C‑168/05 Mostaza Claro [2006] ECR I‑10421, para. 39

T‑576/93 to T‑582/93 Browet and Others v Commission [1994] ECR II‑677, para. 35

3. Article 43(1) of the Staff Regulations lays down that, in accordance with conditions set by each institution, a periodical report shall be drawn up for each official describing his ability, efficiency and conduct in the service. For officials in function group AST, as of grade 4 the report may also contain, pursuant to Article 43(2) of the Staff Regulations, an opinion as to whether, on the basis of performance, the person concerned has the potential to carry out an administrator’s function .

By contrast, Article 10 of Annex XIII to the Staff Regulations is a transitional provision. It relates to the career development of officials in former categories C and D in the assistants’ function group to which they were assigned as from 1 May 2006. Attestation is granted on the basis of the seniority, experience, merit and level of training of the officials and in accordance with a procedure whose rules, laid down by the institutions, include an examination of candidatures by a joint attestation committee. Pursuant to Article 10(3) of Annex XIII to the Staff Regulations, the Commission laid down the rules for implementing the attestation procedure for its staff by means of a Decision of 7 April 2004.

The appraisal and attestation procedures, defined by the General Implementing Provisions for Article 43 of the Staff Regulations adopted by the Commission and the Decision of 7 April 2004 respectively, are separate and are based on entirely different rules.

Although the countersigning officer is competent to adopt the career development report, subject to the report not being amended by the appeal assessor, it is for the appointing authority to rule, at each stage in the attestation procedure, on the candidatures for attestation. In particular, it is the responsibility of the appointing authority, hence an authority other than the countersigning officer of the appraisal procedure, to assess, on the basis of the available career development reports, the experience and merit of candidates for attestation. Moreover, only the appointing authority is in a position to standardise the conditions for the assessment of these criteria by the different services of the Commission, as the view of the countersigning officer or appeal assessor tends to be restricted to the services under their responsibility.

Where, in connection with a career development report drawn up for a Commission official in former categories C and D, the administration refuses to admit the official concerned to the attestation procedure provided for in Article 10(3) of Annex XIII to the Staff Regulations, on the ground that he has not demonstrated, in the appraisal exercise, that he had the required ‘potential’ to obtain attestation, the decision to refuse him admission was not reached – as it should have been, given its purpose – on the basis of Article 10(3) of Annex XIII applicable to the attestation procedure, but on the basis of Article 43 of the Staff Regulations applicable to the appraisal procedure. In doing so, the administration breaches the scope of application of Article 43, which is distinct from that of Article 10(3) of Annex XIII to the Staff Regulations, and infringes the independence of the appraisal and attestation procedures, and the official concerned is therefore justified in seeking the annulment of his career development report in so far as it takes a view on his potential to perform the function of assistant.

Furthermore, neither Article 10(3) of Annex XIII to the Staff Regulations nor the Decision of 7 April 2004 lays down that the benefit of attestation, which permits admission without restriction to the assistants’ function group, is granted on the basis of criteria other than seniority, experience, merit and level of education and training. Under Article 5(1) of the Decision of 7 April 2004, the admittance of an official to attestation, the second stage in the procedure, is subject only to the satisfaction of two conditions, namely the level of training and education and seniority, and not to a condition relating to potential.

(see paras 64-66, 76, 80, 82, 87, 88, 91)

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

21 February 2008 ( )

(Civil service – Officials – Promotion – Appraisal procedure – Attestation procedure – Evaluation of potential – Breach of the scope of the law – Plea raised by the Court of its own motion)

In Case F‑31/07,

ACTION under Articles 236 EC and 152 EA,

Françoise Putterie-De-Beukelaer, official of the Commission of the European Communities, residing in Brussels (Belgium), represented by É. Boigelot, avocat,

applicant,

v

Commission of the European Communities, represented by C. Berardis-Kayser and K. Herrmann, acting as Agents,

defendant,

THE TRIBUNAL (First Chamber),

composed of H. Kreppel, President, H. Tagaras and S. Gervasoni (Rapporteur), Judges,

Registrar: C. Schilhan, Administrator,

having regard to the written procedure and further to the hearing on 13 November 2007,

gives the following

Judgment

1 By application lodged at the Registry of the Tribunal on 2 April 2007, Ms Putterie-De-Beukelaer applied for the annulment of her Career Development Report for 2005 in so far as, in section 6.5 ‘Potential’ drawn up for the purposes of the attestation procedure, that report does not acknowledge her potential to carry out duties in category B*.

Legal context

2 Under Article 43 of the Staff Regulations of Officials of the European Economic Community (the ‘Staff Regulations’):

‘The ability, efficiency and conduct in the service of each official shall be the subject of a periodical report made at least once every two years as provided for by each institution in accordance with Article 110. Each institution shall lay down provisions conferring the right to lodge an appeal within the reporting procedure, which has to be exercised before lodging a complaint as referred to in Article 90(2).

As of grade 4, for officials in function group AST, the report may also contain an opinion as to whether, on the basis of performance, he has the potential to carry out an administrator’s function.

The report shall be communicated to the official. He shall be entitled to make any comments thereon which he considers relevant.’

3 The Commission Decision on general provisions for implementing Article 43 of the Staff Regulations (the ‘GIP 43’) was adopted on 23 December 2004 and was applicable to the staff appraisal exercise for 2006 (covering the period from 1 January to 31 December 2005). The GIP 43 define the procedure for drawing up an annual appraisal report, termed the Career Development Report (the ‘CDR’). In accordance with Article 43(1) of the Staff Regulations, Article 8(11) of the GIP 43 provides that the jobholder may lodge a reasoned refusal to accept the CDR, on which the appeal assessor rules in the light of the opinion delivered by the Joint Evaluation Committee (the ‘JEC’).

4 Administrative Notice No 1‑2006 of 12 January 2006 relating to the staff appraisal exercise for 2006, which covers the reporting period from 1 January to 31 December 2005, states as follows with regard to the section on the assessment of potential:

‘This heading must be completed for the purposes of the attestation and certification procedures. This heading will only be completed by the reporting officer if the jobholder has made a specific request in his/her self assessment (the box has to be crossed).

A change has been made to the heading “potential”. The Reporting Officer now has access to a list of typical functions for the categories A* and B*. The RO should cross those tasks which are relevant to the category directly above that of the jobholder and the RO must also evaluate the amount of time the JH has spent on these particular tasks, as well as the quality of his/her achievements in accomplishing these specific tasks.

…’

5 Under Article 10 of Annex XIII to the Staff Regulations:

‘1. Officials in service before 1 May 2004 categories C or D shall be assigned as of 1 May 2006 to career streams allowing for promotions:

(a) in former category C up to grade AST 7;

(b) in former category D up to grade AST 5;

…

3. An official to whom paragraph 1 applies may become a member of the assistants’ function group without restriction if he passes an open competition or on the basis of an attestation procedure. The attestation procedure shall be based on the seniority, experience, merit and level of training of officials and the availability of posts in the function group AST. A joint committee shall examine the candidatures of officials for the attestation. The institutions shall adopt rules implementing this procedure before 1 May 2004. Where necessary, specific provision shall be made by the institutions to take account of such change leading to a change in the applicable promotion rates.’

6 Under Article 1 of the Commission Decision of 7 April 2004 laying down the rules for implementing the attestation procedure (the ‘Decision of 7 April 2004’), which was published in Administrative Notice No 70‑2004 of 22 June 2004:

‘1. The purpose of the attestation procedure is to select officials employed in categories C or D before 1.5.2004 who may become members of the assistants’ function group without restrictions.

…’

7 Under Article 4 of the Decision of 7 April 2004:

‘Before 30 September each year the appointing authority shall decide on the number of posts in the assistants’ function group which can be filled in the following year by officials attested within the meaning of Article 8.

Following that decision a call for applications shall be published by the appointing authority.’

8 Under Article 5 of the Decision of 7 April 2004:

‘1. Officials referred to in Article 1 who have applied shall be admitted to the attestation procedure provided they meet both of the following criteria:

– a level of education and training equivalent to that required in Article 5(3)(a) of the Staff Regulations to be appointed official in the assistants’ function group;

– seniority of at least five years in career stream C or D. ...

2. During each attestation exercise the appointing authority shall draw up and publish the list of officials who have applied for and been admitted to the attestation procedure.

…’

9 Article 6 of the Decision of 7 April 2004 provides that:

‘1. During each attestation exercise the appointing authority shall draw up a list of eligible officials in order of priority based on the following criteria: level of education and training; seniority in career stream C or D; experience, and merit evaluated on the basis of available career development reviews.

2. The value of the criteria and the weighting applied to them shall be decided by the appointing authority before 31 December 2004 after consulting the committee referred to in Article 9. They may be adjusted each year by decision of the appointing authority on the recommendation of the committee referred to in Article 9.

…

4. Within 10 working days of such notification, admitted applicants may appeal to the committee referred to in Article 9 if they dispute the number of points they have obtained.

They must justify their appeal and supply the committee referred to in Article 9 with all the necessary official documents.

The committee referred to in Article 9 shall deliver an opinion within 10 working days and notify the appointing authority of it; the latter shall decide on the action to be taken.’

10 Under Article 7 of the Decision of 7 April 2004:

‘1. The highest-ranked officials on the list referred to in Article 6, down to a ranking equivalent to twice the number of posts decided on in accordance with Article 4, shall be authorised to apply, until 31 December of the following year, for the vacant posts to be filled in the assistants’ function group.

2. The list of officials referred to in paragraph 1 shall be published by the appointing authority.

3. The vacant posts which can be filled by the officials referred to in paragraph 1 shall be indicated when the vacancy notices are published.’

11 Under Article 8 of the Decision of 7 April 2004:

‘1. The officials referred to in Article 7(1) appointed to the vacant posts referred to in Article 7(3) shall be deemed to have been attested. They shall become members of the assistants’ function group without career restriction.

2. The appointing authority shall publish before 31 March each year the list of officials attested during the previous attestation exercise.’

12 Article 9 of the Decision of 7 April 2004 establishes a joint attestation committee and lays down its composition and working methods.

13 The Decision of 7 April 2004 was repealed and replaced by the Commission Decision of 29 November 2006 laying down the rules for implementing the attestation procedure (the ‘Decision of 29 November 2006’).

14 Article 5(1) of the Decision of 29 November 2006 provides that:

‘Officials referred to in Article 1 who have applied shall be admitted to the attestation procedure, after consultation of the committee referred to in Article 7, provided they meet each of the following four criteria:

– have a level of education at least equivalent to that required by Article 5(3)(a) of the Staff Regulations to be appointed official in the assistants’ function group;

– have at least five years’ seniority in career stream C or D. ...;

– have the recognised potential to perform “Administrative assistant” level functions;

– not be in a situation of inadequate performance or insufficiency.’

15 The decision of the appointing authority on the application of the admission criteria for the 2006 attestation procedure, published in Administrative Notice No 59‑2006 of 21 December 2006, lays down in point 3, headed ‘The potential’:

‘The potential of applicants to perform “Administrative assistant” level functions must have been positively assessed in the 2005 evaluation exercise.

…’

Facts

16 The applicant has worked as an official in the Secretariat-General of the Commission since 1985. She was a management secretary until November 1996, when she changed her career direction and became an IT trainer. She was officially recognised as having responsibility for IT training in 2000.

17 Classed as grade C 2 before 1 May 2004, the applicant achieved grade C*5 as from that date under Article 2(1) of Annex XIII to the Staff Regulations, then grade AST 5 as from 1 May 2006 pursuant to Article 8(1) of the Staff Regulations.

18 During the period between 1 January and 31 December 2005, which was covered by a CDR (the ‘2005 CDR’), the applicant performed the same functions as previously. When her 2005 CDR was drawn up, the applicant requested, as she had in connection with her previous CDR, that the reporting officer complete section 6.5 ‘Potential’, as provided for in Administrative Notice No 1‑2006 of 12 January 2006, so that she could participate in the 2006 attestation procedure.

19 In section 6.5 of the 2005 CDR, the subtitle of which recalls that it must be taken into account for the attestation procedure, the reporting officer considered that the tasks performed by the applicant during the reference period did not correspond, even partially, to those incumbent upon an official in category B*. Consequently, the reporting officer considered, as in the preceding CDR, that the applicant had not demonstrated her potential to assume the functions relating to that category. Since the decision of the countersigning officer was to the same effect, on 6 June 2006 the applicant lodged the reasoned refusal provided for in Article 8(11) of the GIP 43 and thus appealed to the JEC.

20 In its opinion, the JEC found no inconsistency between the comments and marks attributed to the applicant, nor manifest error of assessment as regards the non-recognition of her potential to assume the functions of category B*.

21 By a decision of 26 June 2006, the appeal assessor confirmed the 2005 CDR.

22 On 26 September 2006 the applicant lodged a ‘complaint under Article 90(1) of the Staff Regulations’ against ‘the decision of her hierarchical authority regarding the 2005 CDR not to allow [her] admittance to attestation by reason of the failure to properly appreciate [her] work … and an error in the job title’ (‘the contested decision’).

23 By a decision of 21 December 2006, the appointing authority rejected the applicant’s complaint and considered that the countersigning officer, whose task it is ‘to decide, on the basis of the information provided by the reporting officer, whether the person assessed has in fact demonstrated her potential to undertake tasks of the higher category’, had committed ‘no manifest error of assessment’. The 2006 attestation procedure began on the same day with the publication of the call for applications in Administrative Notice No 60‑2006.

24 According to the extract from the applicant’s Sysper 2 electronic file lodged by the applicant at the hearing, her application, which was submitted on 25 January 2007, was rejected on 1 February 2007 on the ground that her potential had not been acknowledged. The applicant’s appeal against that decision, which was lodged on 24 April 2007, was rejected by the appointing authority on 25 May 2007 after examination by the joint attestation committee. In its opinion, which was endorsed by the appointing authority, the committee considered that the applicant could not be attested as her potential to perform category B* functions had been denied by the countersigning officer reviewing her 2005 CDR.

Procedure and forms of order sought

25 By way of measures of organisation of procedure provided for in Article 64 of the Rules of Procedure of the Court of First Instance of the European Communities, which are applicable mutatis mutandis to the Tribunal pursuant to Article 3(4) of Council Decision 2004/752/EC, Euratom of 2 November 2004 establishing the European Union Civil Service Tribunal (OJ 2004 L 333, p. 7) until the entry into force of the rules of procedure of the latter, the Tribunal asked the Commission to answer a written question and to forward documents.

26 By letter dated 17 September 2007, the Tribunal also informed the parties that it intended to raise of its own motion a public policy plea based on the ground that the contested decision failed to observe the scope of Article 43 of the Staff Regulations and Article 10(3) of Annex XIII to the Staff Regulations, respectively.

27 On 15 October 2007 the parties lodged their written observations on the public policy plea raised of the Tribunal’s own motion and notified to them by the Tribunal.

28 The parties presented oral argument and replied to the questions put to them by the Tribunal at the hearing on 13 November 2007.

29 The applicant claims that the Tribunal should:

– annul her 2005 CDR in so far as it does not acknowledge her potential to carry out functions in category B*;

– order the Commission to pay the costs.

30 The Commission contends that the Tribunal should:

– dismiss the application as inadmissible and, in any event, as unfounded;

– make an appropriate order as to costs.

Law

Admissibility

Arguments of the parties

31 The Commission considers first that the applicant’s letter dated 26 September 2006 entitled ‘Complaint under Article 90(1) of the Staff Regulations’, is not a complaint within the meaning of Article 90(2) and Article 91(2) of the Staff Regulations but a request. According to the Commission, in that letter the applicant merely asked the administration to take certain actions, in particular to grant her attestation for the 2006 exercise. Since the present action was not preceded by a complaint, in the opinion of the Commission it is therefore inadmissible.

32 Secondly, should the Tribunal regard the letter of 26 September 2006 as a complaint, there is, in the view of the Commission, a manifest inconsistency between the subject-matter of that complaint and that of the subsequent action. Whereas the purpose of the application is to obtain annulment of the 2005 CDR, that CDR was allegedly not even mentioned in the letter of 26 September 2006. In that case too, in the submission of the Commission, the action is therefore inadmissible.

Findings of the Tribunal

33 The Commission contends, in the first place, that the application was preceded by a request and not by a complaint.

34 It is settled case-law that the precise legal categorisation of a letter or memorandum is a matter for the Court alone and not for the parties (see, for example, the order of the Court of First Instance of 15 July 1993 in Case T‑115/92 Hogan v Parliament [1993] ECR II‑895, paragraph 36).

35 In the present case, the letter of 26 September 2006 is to be regarded as a complaint within the meaning of Article 90(2) and Article 91(2) of the Staff Regulations.

36 To begin with, it should be pointed out that for the said letter the applicant used a complaint form under Article 90(2) of the Staff Regulations and that under the heading ‘Contested decision’ she cited ‘the decision of [her] hierarchical authority relating to the 2005 CDR not to grant [her] admittance to attestation because of the failure to properly appreciate [her] work as [a person responsible for IT training] and an error in the title of the generic post relating thereto’.

37 Secondly, the letter of 26 September 2006 reiterates and develops a line of argument that the applicant had already put forward in the appeal procedure laid down in the GIP 43 against the contested decision. Moreover, the appointing authority read this letter as being a follow-up to the applicant’s appeal to the JEC regarding her 2005 CDR, since it explicitly rejected it as a complaint against that CDR.

38 Thirdly, even supposing that the letter of 26 September 2006 could be interpreted as a request and not as a complaint against the contested decision and that the applicant was therefore required to precede her application by a complaint against the rejection of her request, the resulting irregularity in the pre-litigation procedure would nevertheless stem from an excusable error.

39 As laid down in the case-law, excusable error occurs where the conduct of the institution concerned has been, either alone or to a decisive extent, such as to give rise to a pardonable confusion in the mind of a party acting in good faith and exercising all the diligence required of a normally experienced person. In such an event, the administration may not rely on its own failure to observe the principles of legal certainty and the protection of legitimate expectations out of which the party’s error arose (judgment in Case T‑12/90 Bayer v Commission [1991] ECR II‑219, paragraph 29).

40 As stated in paragraph 37 of this judgment, in its reply dated 21 December 2006 to the letter of 26 September 2006, the appointing authority explicitly interpreted that letter as a complaint about the 2005 CDR, in so far as it refused to acknowledge that the applicant had sufficient potential to be admitted to the attestation procedure. In the light of that reply, the applicant was entitled to believe that she had met the requirements of the pre-litigation procedure laid down in Articles 90 and 91 of the Staff Regulations and that she could bring an action directly before the Tribunal. The Commission is in any event not justified in relying on inadmissibility due to its own conduct.

41 It follows from the foregoing that the Commission is not justified in maintaining that the letter of 26 September 2006 must be regarded as a request or that the application must be dismissed as inadmissible on the ground that it was not preceded by a complaint.

42 Secondly, the Commission disputes that the action was in any event preceded by a complaint based on the same subject-matter.

43 According to settled case-law, the subject-matter of the forms of order sought in actions brought by officials must be the same as that set out in the prior administrative complaint and the heads of claim must be based on the same legal basis as that relied on in the complaint (judgment in Case T‑193/96 Rasmussen v Commission [1998] ECR‑SC I‑A‑495 and II‑1495, paragraph 47).

44 Whereas the purpose of the application is said to be to obtain annulment of the 2005 CDR, according to the Commission that report was not even mentioned in the letter of 26 September 2006, which could therefore not be regarded as a complaint against the said CDR.

45 As a preliminary point, it should be observed that, contrary to the Commission’s assertions, the object of the action is not the annulment of the applicant’s 2005 CDR but annulment of the contested decision; that decision, which is included in the 2005 CDR and the reasons for which are clear from section 6.5 of that report, denies that the applicant has the necessary potential to be admitted to the assistants’ function group and consequently refuses her admittance to the attestation procedure provided for in Article 10(3) of Annex XIII to the Staff Regulations.

46 It is clear from a reading of the letter of 26 September 2006 that that letter was already directed against the contested decision.

47 In the first place, in the complaint of 26 September 2006 the applicant indicated, as stated in paragraph 36 of this judgment, that she challenged ‘the decision of [her] hierarchical authority relating to the 2005 CDR not to grant [her] admittance to the attestation’. She then concluded her complaint by asking the Commission to grant her the benefit of attestation, in other words to retract the refusal made in this regard in her 2005 CDR. Finally, she explicitly attempted to show in the said complaint that ‘the reasons adduced for not granting [her] attestation are not correct’.

48 It follows that the plea of inadmissibility alleging inconsistency between the subject-matter of the complaint and that of the application is not substantiated by the facts and must therefore be dismissed.

49 It follows from all of the foregoing that the two pleas of inadmissibility raised by the Commission must be dismissed.

Merits

50 As the Court of First Instance held in the judgment in Joined Cases T‑576/93 to T‑582/93 Browet and Others v Commission [1994] ECR II‑677, paragraph 35, a plea concerned with the scope of the law’s application concerns a matter of public policy and it is for the Court to consider it of its own motion.

51 The Tribunal would be neglecting its function as the arbiter of legality if, even in the absence of a challenge by the parties in this regard, it failed to make a finding that the contested decision before the Tribunal had been adopted on the basis of a rule that was not applicable to the case in point and if, as a consequence, it was led to adjudicate on the dispute before it by itself applying such a rule.

52 In the present case, the plea of public policy based on the ground that the contested decision infringed the respective fields of application of Article 43 of the Staff Regulations and of Article 10(3) of Annex XIII to those Regulations must be raised by the Tribunal of its own motion.

53 By letter of 17 September 2007 the parties were served notice that the Tribunal intended to raise this plea of its own motion and were invited to submit their observations.

54 In her reply the applicant indicated that in her opinion the plea raised of the Tribunal’s own motion was well founded.

55 By contrast, in its written observations on the plea notified by the Tribunal, the Commission denied that the Tribunal had the power to raise pleas of substantive legality of its own motion. First, in its opinion such pleas could be examined by the Community court only if they were raised by the applicants or, at the very least, if they were directly linked to the arguments put forward by the parties themselves. Secondly, the Commission considered that if it were possible for the court to examine of its own motion questions of the substantive legality of a contested measure, that would render entirely ineffective both Article 48(2) of the Rules of Procedure of the Court of First Instance, which prohibits the parties from introducing new pleas in the course of proceedings, and the rule that the application correspond to the complaint. Finally, according to the Commission, the raising of a plea of substantive legality of the court’s own motion was in danger of violating the right to a fair hearing by altering the framework of the adversarial procedure.

56 It is necessary, as a preliminary issue, to address these objections of principle.

57 Firstly, it has already been found that, contrary to the assertions of the Commission, the Community court has the power and, where appropriate, the duty to raise certain pleas of substantive legality of its own motion. As stated in paragraph 50, this is so where the scope of the law’s application has been breached. Similarly, the force of res judicata with absolute effect is a public policy plea relating to substantive legality, which must be raised by the court of its own motion (judgment in Joined Cases C‑442/03 P and C‑471/03 P P & O European Ferries (Vizcaya)and Diputación Foral de Vizcaya v Commission [2006] ECR I‑4845, paragraph 45). Finally, in certain circumstances Community case-law requires that a national court called upon to apply the provisions of Community law within its jurisdiction should raise pleas of substantive legality of its own motion, in particular those based on the unfair nature of a term in contracts concluded by consumers with professionals (judgments in Cases C‑473/00 Cofidis v Fredout [2002] ECR I‑10875, paragraphs 36 and 38, and C‑168/05 Mostaza Claro v Centro Móvil Milenium [2006] ECR I‑10421, paragraph 39).

58 As regards the Commission’s argument that the court could raise a plea of substantive legality of its own motion only if that plea had been raised by the parties or if it were directly linked to the arguments they had put forward, that argument is in contradiction with the very purpose of the raising of a plea of the court’s own motion and would be tantamount to denying the Tribunal any possibility of raising a plea of substantive legality of its own motion, whereas case-law provides for it to do so.

59 Secondly, contrary to the arguments put forward by the Commission, the rule prohibiting applicants in civil service cases from raising in their action pleas unconnected with the arguments developed in their prior complaint and the rule, set out in Article 43(1) of the Rules of Procedure, prohibiting the introduction of new pleas after the initial exchange of statement apply to the parties, and not to the Tribunal.

60 Thirdly, the Commission’s argument that the raising of a plea of substantive legality of the Tribunal’s own motion could endanger the adversarial nature of the proceedings and the principle of respect for the right to a fair hearing cannot be accepted. Article 77 of the Rules of Procedure provides that the Tribunal may, of its own motion, decide that there exists an absolute bar to proceeding with an action, on condition that the parties have first been heard. If that condition adequately safeguards the principle of audi alteram partem and respects the right to a fair hearing where the Tribunal decides of its own motion that there exists an absolute bar to proceeding with an action, there is no reason to suppose that the same does not apply where a plea of public policy is raised of the court’s own motion, whether it relate to substantive or external legality. It must therefore be considered that, by notifying the parties of the plea of public policy which it intended to raise, by inviting the written observations of the parties regarding that intention and by enabling them to set out their views in that regard at the hearing, the Tribunal has satisfied the requirements of the principles on which the Commission relies.

61 It follows from the foregoing that the arguments put forward by the Commission against the raising of a plea of substantive legality of the Tribunal’s own motion must be dismissed.

62 In the present case, the Tribunal raised of its own motion the breach in the contested decision of the respective scope of application of Article 43 of the Staff Regulations and Article 10(3) of Annex XIII to those Regulations.

63 It is necessary at the outset to recall the subject-matter of each of these provisions of the Staff Regulations.

64 Article 43(1) of the Staff Regulations lays down that, in accordance with conditions set by each institution, a periodical report shall be drawn up for each official describing his ability, efficiency and conduct in the service. For officials in function group AST, as of grade 4 the report may also contain, pursuant to Article 43(2) of the Staff Regulations, an opinion as to whether, on the basis of performance, the person concerned has the potential to carry out an administrator’s function.

65 By contrast, Article 10 of Annex XIII to the Staff Regulations is a transitional provision. It relates to the career development of officials in former categories C and D in the assistants’ function group to which they were assigned as from 1 May 2006. The first paragraph of that article assigns these officials to career streams with ceilings of AST 7 and AST 5 respectively. Under paragraph 3 of Article 10 of Annex XIII to the Staff Regulations, officials in former categories C and D may nevertheless become members of the assistants’ function group without restriction after passing an open competition or on the basis of an attestation procedure. Attestation is granted on the basis of the seniority, experience, merit and level of training of the officials and in accordance with a procedure whose rules, laid down by the institutions, include an examination of candidatures by a joint committee. Pursuant to Article 10(3) of Annex XIII to the Staff Regulations, the Commission laid down the rules for implementing the attestation procedure for its staff by means of the Decision of 7 April 2004.

66 The appraisal and attestation procedures, defined by the GIP 43 and the Decision of 7 April 2004 respectively, are separate and are based on entirely different rules.

67 The appraisal procedure, which is conducted each year between January and April, makes a reporting officer and an countersigning officer responsible for drawing up the official’s CDR, provides a facility for the official to make an internal appeal to the JEC and gives an appeal assessor responsibility to decide on the follow-up to give to the opinion of that committee.

68 The attestation procedure laid down in the Decision of 7 April 2004 consists of four stages.

69 First, before 30 September each year the appointing authority decides on the number of posts in the assistants’ function group which can be filled in the following year by attested officials. Following that decision a call for applications is published.

70 Secondly, in accordance with Article 5(2) of the Decision of 7 April 2004, the appointing authority draws up and publishes a list of officials who have been admitted to the attestation procedure. For inclusion on the list, officials need meet only two conditions: a level of education and training at least equivalent to that required in Article 5(3)(a) of the Staff Regulations to be appointed official in the assistants’ function group, and seniority of at least five years in career stream C or D. This list can be challenged before the joint attestation committee, the composition of which is different from that of the JEC.

71 Thirdly, under Article 6 of the Decision of 7 April 2004, the officials admitted to the attestation procedure are classified according to the following criteria: level of education and training; seniority in career stream C or D; experience and merit evaluated on the basis of available career development reviews. The value of the criteria and the weighting applied to them were decided by the appointing authority before 31 December 2004. The classification can be challenged before the joint attestation committee.

72 Fourthly, the highest-ranked officials on the list, down to a ranking equivalent to twice the number of posts available to be filled by attested officials, are authorised to apply, until 31 December of the following year, for the vacant posts to be filled in the assistants’ function group. The officials appointed to these posts are deemed to have been attested.

73 In the present case, although the contested decision was included in the applicant’s 2005 CDR, it is concerned, not with the assessment of the applicant, but, as the title of heading 6.5 of the CDR indicates, with the conditions for the applicant’s admittance to the attestation procedure. The object of that decision is to deny the applicant recognition of the necessary potential to be admitted without restriction to the assistants’ function group and, as evidenced by the position adopted by the joint attestation committee and the appointing authority in the context of the 2006 attestation procedure (see paragraph 24 of this judgment), had the effect of depriving her of any possibility of admittance to that procedure.

74 It is clear from the file that the contested decision was adopted under the rules as to competence, procedure and substantive requirements in relation to the appraisal procedure, not under those in relation to the attestation procedure, which were the only rules applicable.

75 In the first place, it is clear from point 7.2 of the 2005 CDR that the contested decision was taken by the applicant’s countersigning officer, and that the 2005 CDR as a whole was confirmed without comment by the appeal assessor after consulting the JEC. Moreover, in its reply to the complaint the Commission maintained that ‘it [was] then for the countersigning officer to decide, on the basis of the information provided by the reporting officer, whether the person assessed [had] in fact demonstrated her potential to undertake tasks of the higher category’.

76 However, although the countersigning officer is competent, under Article 2(3) of the GIP 43, to adopt the CDR, subject to the report not being amended by the appeal assessor, Articles 5, 6, 7 and 8 of the Decision of 7 April 2004 taken pursuant to Article 10(2) of Annex XIII to the Staff Regulations make clear that it is for the appointing authority to rule, at each stage in the attestation procedure, on the candidatures for the attestation of officials of former categories C and D. In particular, it is the responsibility of the appointing authority, hence an authority other than the countersigning officer of the appraisal procedure, under Article 6(1) of the Decision of 7 April 2004, to assess, on the basis of the available CDRs, the experience and merit of candidates for attestation. Moreover, only the appointing authority is in a position to standardise the conditions for the assessment of these criteria by the different services of the Commission, as in most cases the view of the countersigning officer or appeal assessor is restricted to the services under their responsibility. The contested decision was therefore not adopted by the competent authority.

77 Secondly, the prior complaint lodged by the applicant against the contested decision within the framework of the 2005 CDR was examined by the JEC. That committee considered that the countersigning officer had not committed a manifest error in the assessment of the applicant’s potential to undertake the functions of category B*. Hence the JEC ruled directly on the applicant’s candidature to the attestation procedure. By contrast, the joint attestation committee, to which the applicant also appealed on 24 April 2007 against the rejection of her candidature to the attestation procedure, disclaimed jurisdiction in the following terms: ‘In the event of disagreement with all or part of your CDR (including the section “Potential”) the appraisal procedure made provision for an appeal [; but] the joint attestation committee has no jurisdiction to question a CDR that has been closed’.

78 However, although the JEC established under Article 9 of the GIP 43 is the body to which is addressed, for opinion, a prior complaint by an official against his CDR drawn up under Article 43(1) of the Staff Regulations, it is the joint attestation committee provided for in Article 10(3) of Annex XIII to the Staff Regulations and the composition of which, defined in Article 9 of the Decision of 7 April 2004, differs from that of the JEC, that is to be consulted if an official disputes the decision by which the appointing authority has dismissed his candidature for attestation, as follows from Articles 5 and 6 of the Decision of 7 April 2004.

79 Consequently, the applicant was unable effectively to invoke the internal appeal mechanism established with regard to attestation in order to challenge the rejection of her application for admission to the attestation procedure.

80 Thirdly, it is clear from the statement of reasons for the contested decision, contained in section 6.5 of the 2005 CDR, that the administration refused to admit the applicant to attestation on the ground that she had not demonstrated, in the staff appraisal exercise for 2006, that she had the required ‘potential’ to obtain attestation.

81 Hence, in section 6.5 ‘Potential’ of the 2005 CDR, the reporting officer considered that the tasks performed by the applicant were not such as to allow ‘attestation of the potential’. In view of that assessment, the countersigning officer stated that the applicant had not demonstrated the potential that would enable her to become a member of function group AST without restriction. In the opinion it delivered following the applicant’s appeal against her 2005 CDR, the JEC stated in this regard that it had not found any indication ‘that could lead to review of the evaluation made ... by the countersigning officer as regards acknowledgement of the potential of the person concerned in the context of the attestation exercise’.

82 In fact, neither Article 10(3) of Annex XIII to the Staff Regulations nor the Decision of 7 April 2004 lays down that the benefit of attestation, which permits admission without restriction to the assistants’ function group, is granted on the basis of criteria other than seniority, experience, merit and level of education and training. Under Article 5(1) of the Decision of 7 April 2004 adopted to implement Article 10(3) of Annex XIII to the Staff Regulations, the admittance of an official to attestation, the second stage in the procedure described in paragraph 70 of this judgment, is subject only to the satisfaction of two conditions, namely the level of training and education and seniority, and not to a condition relating to potential.

83 The concept of potential appears in Article 43(2) of the Staff Regulations only in relation to the ability of an official of the function group AST to carry out an administrator’s functions. That provision does not in any way provide, as indeed the GIP 43 do not provide, for the author of the CDR to comment on the potential of an official from the former categories C and D for the purposes of his attestation, that is to say his access without restriction to the function group AST.

84 It is clear from the foregoing that in the present case the administration applied, by analogy, Article 43(2) of the Staff Regulations, and not Article 10(3) of Annex XIII to those Regulations.

85 It is true that the authors of the 2005 CDR could believe they were entitled, in the light of Administrative Notice No 1‑2006 of 12 January 2006 on the 2006 staff appraisal exercise, to assess whether the applicant had the potential necessary for admittance to the attestation procedure. That Administrative Notice provided that the heading ‘Potential’ be completed by the reporting officer in the context of the attestation procedure if the jobholder so requested in his self assessment.

86 However, Administrative Notice No 1‑2006 of 12 January 2006 could not lawfully prescribe either a further criterion for obtaining attestation or a further condition for admittance to the attestation procedure, since the relevant criteria and conditions had been laid down in the Decision of 7 April 2004, which was adopted by the Commission to implement Article 10(3) of Annex XIII to the Staff Regulations. In any case, the Commission has not maintained that the decision set out in Administrative Notice No 1‑2006 of 12 January 2006 was capable of having such a legislative scope.

87 It follows from all of the foregoing that the contested decision, which prevented the applicant’s admittance to attestation, was not reached – as it should have been, given its purpose – on the basis of Article 10(3) of Annex XIII to the Staff Regulations and the Decision of 7 April 2004 applicable to the attestation procedure but on the basis of Article 43 of the Staff Regulations and the GIP 43 applicable to the appraisal procedure.

88 Consequently, the contested decision, which was wrongly adopted on the basis of Article 43 of the Staff Regulations, breached the scope of application of Article 43, which is distinct from that of Article 10(3) of Annex XIII to the Staff Regulations, and infringed the independence of the appraisal and attestation procedures, defined by the GIP 43 and the Decision of 7 April 2004 respectively for the implementation of the abovementioned provisions of the Staff Regulations.

89 It is true that at the hearing the Commission stated that its Decision of 29 November 2006, which repealed and replaced the Decision of 7 April 2004, had created a link between the attestation and appraisal procedures. Article 5(1) of the Decision of 29 November 2006 provides that a candidate can be admitted to the attestation procedure only if he or she has the recognised potential to perform ‘Administrative assistant’ level functions.

90 However, the Decision of 29 November 2006 did not enter into force until the day following its adoption, pursuant to Article 9 of that decision. The Decision of 7 April 2004 was therefore still applicable on 26 June 2006, the date on which the 2005 CDR containing the contested decision was confirmed by the appeal assessor and closed. Consequently, if the Commission took the contested decision on the basis of the subsequent Decision of 29 November 2006, as it maintained at the hearing, and on the assumption that such a possibility was conceivable, it violated not only the scope of application of Article 43 of the Staff Regulations and Article 10(3) of Annex XIII to those Regulations and their implementing provisions but also the temporal scope of its Decisions of 7 April 2004 and 29 November 2006.

91 The applicant is therefore justified in seeking the annulment of the contested decision, that is to say her 2005 CDR in so far as it contained a denial that she had the necessary potential to perform the function of assistant and consequently refused her admittance to the attestation procedure.

Costs

92 Pursuant to Article 122 of the Rules of Procedure, the provisions of Title 2, Chapter 8, of those Rules relating to costs apply only to cases brought before the Tribunal from the date on which those Rules enter into force, that is to say 1 November 2007. The relevant provisions of the Rules of Procedure of the Court of First Instance on the subject continue to apply mutatis mutandis to cases pending before the Tribunal before that date.

93 Under Article 87(2) of the Rules of Procedure of the Court of First Instance, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has been unsuccessful, it must be ordered to pay all the costs, in accordance with the form of order sought by the applicant.

On those grounds,

THE TRIBUNAL (First Chamber)

hereby:

1. Annuls the Career Development Report of Ms Putterie‑De‑Beukelaer concerning the period from 1 January 2005 to 31 December 2005 in so far as it does not acknowledge the applicant’s potential to carry out duties in category B*;

2. Orders the Commission of the European Communities to pay all the costs.

Kreppel Tagaras Gervasoni

Delivered in open court in Luxembourg on 21 February 2008.

W. Hakenberg H. Kreppel

Registrar President