JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Single Judge)

28 June 2016

Marcin Kotula

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 put forward for promotion by their directors-general or heads of service — Applicant’s name not included on the list — Interinstitutional transfer — Taking into account of staff reports drawn up by the previous institution — Possibility of challenging the list of officials put forward for promotion before the joint promotions committee — Consideration of the comparative merits of officials eligible for promotion’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, by which Mr Kotula 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 9 in the 2014 promotion exercise.

Held:

The action is dismissed. The parties are each to bear their own costs.

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

Officials — Promotion — Consideration of comparative merits — Consultation of candidates’ personal files — Explanation of the use made of the available information — Duty of the administration to provide — None

Officials — Promotion — Consideration of comparative merits — Administration’s discretion — Scope — Obligation to adopt rules for the conduct of promotion procedures, particularly in relation to officials who have transferred between institutions — None

The staff report constitutes an indispensable criterion of assessment each time the official’s career is taken into consideration by the administration, such that a decision not to promote is tainted with irregularity where the appointing authority has not been able to consider the comparative merits of the officials eligible for promotion because one or more staff reports covering the reference period, corresponding to the period following the appointment or most recent promotion of the official concerned, were not available owing to an error on the part of the administration. The fact that a staff report is not available is not necessarily such, in itself, as to prevent the appointing authority from adopting a promotion decision and, in any case, is not an irregularity of a kind resulting in the annulment of a promotion decision, except in so far as the fact that the report was not taken into account may have had a decisive impact on the procedure. (see paras 38, 43) See: Judgment of 27 January 1983 in List v Commission, 263/81, EU:C:1983:17, paras 25 and 26 Judgments of 3 March 1993 in Vela Palacios v ESC, T‑25/92, EU:T:1993:17, para. 43; 12 December 2002 in Morello v Commission, T‑338/00 and T‑376/00, EU:T:2002:314, para. 111, and 11 July 2007 in Konidaris v Commission, T‑93/03, EU:T:2007:209, paras 88 and 90 and the case-law cited Judgment of 15 December 2015 in Bonazzi v Commission, F‑88/15, EU:F:2015:150, para. 84

In order to preserve the career prospects of officials choosing to take advantage of interinstitutional mobility, the EU institutions must, first, ensure that mobility does not impair the career progress of those officials and, secondly, consider the situation of such officials as have moved between institutions in order to ensure that, having transferred from one institution to another, those officials are not penalised in a promotion exercise. In relation more specifically to the way in which staff reports drawn up by the previous institution of an official are to be taken into account by the appointing authority, in the context of the transfer of that official to another institution, the appointing authority cannot be criticised, in exercising its broad discretion in matters of promotion, for basing its judgment of the merits of that official on an outline reading of all the appraisal and staff reports relating, wholly or partly, to the reporting period for that official since his promotion, and adopted both by the appointing authority of the new institution and by the previous institution. Equally, the appointing authority cannot be criticised for considering the comparative merits of that official in accordance with the general methods and procedure recently adopted by the new institution, in the exercise of its discretion, for all officials of that institution eligible for promotion, it being emphasised that there is no obligation on the new institution to lay down specific rules governing the situation of officials who have moved between institutions. (see paras 39, 46) See: Judgment of 3 October 2000 in Cubero Vermurie v Commission, T‑187/98, EU:T:2000:225, paras 68 and 69 Judgment of 7 November 2007 in Hinderyckx v Council, F‑57/06, EU:F:2007:188, paras 50, 55, 58 and 59 and the case-law cited

While the personal files of officials eligible for promotion must be available to the appointing authority, the authority cannot be required to explain in each case the use it has made of the information available to it. (see para. 48) See: Judgment of 17 March 1983 in Hoffmann v Commission, 280/81, EU:C:1983:82, para. 7 Judgment of 15 December 2015 in Bonazzi v Commission, F‑88/15, EU:F:2015:150, para. 52

There is great diversity in the appraisals of officials in the various services of an institution, which gives rise to difficulties for the appointing authority when it comes to consider the comparative merits of all the 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 assessments made by the different reporting officers in reports drawn up under Article 43 of the Staff Regulations and required to be taken into consideration under Article 45(1) of the Staff Regulations. 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 for the institution concerned to adopt a particular appraisal and promotion system, given the wide margin of 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 50, 51) See: Judgment of 1 July 1976 in de Wind v Commission, 62/75, EU:C:1976:103, para. 17 Judgments of 19 October 2006 in Buendía Sierra v Commission, T‑311/04, EU:T:2006:329, para. 169, and 14 February 2007 in Simões Dos Santos v OHIM, T‑435/04, EU:T:2007:50, para. 132 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, subject to an appeal before the General Court of the European Union, Case T‑278/15 P; 3 June 2015 in Gross v EEAS, F‑78/14, EU:F:2015:52, para. 44, subject to an appeal before the General Court of the European Union, Case T‑472/15 P; 22 September 2015 in Silvan v Commission, F‑83/14, EU:F:2015:106, para. 24, subject to an appeal before the General Court of the European Union, Case T‑698/15 P, and 15 December 2015 in Bonazzi v Commission, F‑88/15, EU:F:2015:150, para. 62

Decisions on promotion and the consideration of the comparative merits provided for in Article 45 of the Staff Regulations are the sole responsibility of the appointing authority. In this regard, first, while Article 45(1) of the Staff Regulations requires the authority to consider, prior to any promotion decision, the comparative merits of all officials eligible for promotion, it may nevertheless 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 make provision for prior consideration, within each directorate-general, of the personal files of officials eligible for promotion, although such prior consideration must not take the place of the consideration of comparative merits which must subsequently be undertaken by the promotions committee, where so provided, and then, in all cases, by the appointing authority upon the conclusion of the promotion exercise, when decisions to promote or not to promote are adopted. In the context of the promotion procedure provided for by the general implementing provisions adopted by the Commission, the appointing authority cannot, of course, 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, the exercise by officials who have not been put forward for promotion by their director-general of their right, provided for by the general implementing provisions, to appeal to the joint promotions committee, enables those officials to benefit from a comparative examination carried out by that joint body, not only at the level of their directorate-general, but also at the level of the institution as a whole. Secondly, the appointing authority may involve in the preparatory stage of its promotion decisions a joint advisory body such as the joint promotions committee. It may also provide for that committee to be assisted by another joint body, and may take into consideration the draft reasoned opinions adopted by that body. In formulating their appeals, officials eligible for promotion, but not put forward by their directors-general or heads of service, have the opportunity to draw the appointing authority’s attention to their cases and to require it, on the basis of their claims, of those draft reasoned opinions and, where applicable, of the recommendations of the joint promotions committee, to carry out a detailed examination of their respective situations, in the course of the consideration of comparative merits of all officials eligible for promotion which it ultimately carries out, at the conclusion of the promotion procedure, with a view to the adoption of promotion decisions. (see paras 54-57) 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, subject to an appeal before the General Court of the European Union, Case T‑698/15 P, and 15 December 2015 in Bonazzi v Commission, F‑88/15, EU:F:2015:150, paras 83 and 89 and the case-law cited