JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

25 November 2009

Case F-1/09

Françoise Putterie-De-Beukelaer

v

Commission of the European Communities

(Civil service – Officials – Promotion – Attestation procedure – Appraisal of potential)

Application: brought under Articles 236 EC and 152 EA, in which Ms Putterie-De‑Beukelaer seeks, first, annulment of the Commission’s decision of 30 September 2008 rejecting her complaint against the appointing authority’s decision of 27 March 2008 declaring that she was not admitted to the 2007 attestation procedure, and second, annulment of the latter decision.

Held: The action is dismissed. The applicant is ordered to bear the costs.

Summary

1. Officials – Actions – Action against a decision rejecting a complaint – Admissibility

(Staff Regulations, Arts 90 and 91)

2. Officials – Attestation procedure – Complaint from a candidate not admitted to the attestation exercise – Decision to reject – Obligation to state the reasons on which the decision is based – Scope

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

3. Officials – Attestation procedure – Arrangements for implementing within the Commission – Criteria for admission – Potential to undertake duties at ‘administrative assistant’ level

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

4. Officials – Psychological harassment – Definition – Career development report containing unfavourable marks and assessments which are wholly appropriate – Not included

(Staff Regulations, Art. 12a)

1. Where, in addition to the annulment of a contested decision, an official also seeks the annulment of the decision rejecting his complaint, the latter claims have, as such, no autonomous substance and are, in reality, indissociable from the claims against the contested decision. However, even if the official’s action must be regarded as seeking the annulment of the contested decision, that fact does not prevent him from asserting claims directed solely against the decision rejecting the complaint. If it were otherwise, an official who considers that the appointing authority has not provided a proper statement of reasons for its decision on his complaint would be denied the opportunity to bring his challenge before the Community courts, even though the decision rejecting the complaint is the decision in the light of which he must be able to assess whether the administration’s position is well founded and whether it is appropriate to bring legal proceedings.

(see paras 32, 42)

See:

293/87 Vainker v Parliament [1989] ECR 23, para. 8

T-330/03 Liakoura v Council [2004] ECR-SC I‑A‑191 and II‑859, para. 13

F‑34/07 Skareby v Commission [2008] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, para. 27, on appeal before the Court of First Instance, Case T‑91/09 P

2. A decision declaring that an official is not admitted to an attestation exercise under Article 10 of Annex XIII to the Staff Regulations need not contain a statement of reasons. As is true of decisions on promotion, the appointing authority is not obliged to state reasons for decisions concerning candidates who are not admitted to the attestation exercise, but only for decisions rejecting complaints submitted by those candidates pursuant to Article 90(2) of the Staff Regulations, since the reasons for the latter decisions are deemed to coincide with the reasons forming the basis of the decisions against which the complaints were aimed, so that scrutiny of the one is indissociable from scrutiny of the other. With attestation as with promotion, the duty to provide a statement of reasons extends only as far as consideration of the legal conditions which have to be met under the Staff Regulations and their implementing legislation if the contested decision is to be lawful.

(see paras 43, 44, 51)

See:

C-115/92 P Parliament v Volger [1993] ECR I‑6549, para. 22; 188/73 Grassi v Council [1974] ECR 1099, paras 11 to 14

T-142/95 Delvaux v Commission [1997] ECR-SC I‑A‑477 and II‑1247, para. 84; T-230/99 McAuley v Council [2001] ECR-SC I‑A‑127 and II‑583, para. 51; T-131/00 Schochaert v Council [2001] ECR-SC I‑A‑161 and II‑743, para. 19

3. The third condition to which the attestation of officials of the Commission is subject pursuant to Article 5(1) of the Commission’s Decision of 29 November 2006 laying down the rules for implementing the attestation procedure, concerning the potential to perform ‘administrative assistant’ level functions, does not in any way infringe the provisions of the Staff Regulations governing the attestation procedure. The decision merely clarifies, on that point, the scope of the condition relating to ‘merit’ set out in Article 10(3) of Annex XIII to the Staff Regulations. Furthermore, it is clear from the latter provision that, since merit is one of the conditions required for an official to be attested, an official may be granted an attestation only if he performs his duties to his superiors’ satisfaction.

Moreover, Article 5(1) of the Decision of 29 November 2006 must be interpreted, despite its wording, as referring only to duties corresponding to those performed, prior to the creation of the assistants’ function group, by officials in category B, which became category B* from 1 May 2004. Furthermore, in the absence of a precise definition of the concept of ‘potential’ to perform former B* level functions, a definition must be adopted which makes the demonstration of potential conditional not just on the actual performance of at least some former B* level tasks, but also on the manner in which the attestation candidate performs his duties. Such a view of the concept of ‘potential’ is entirely in accordance with the aims pursued by the Community legislature with the attestation procedure. Attestation allows officials who are awarded it to gain more advantageous career prospects by becoming eligible for promotion procedures that would normally be closed to them, and, eventually, to reach levels of responsibility and remuneration sometimes comparable to those of officials belonging to the administrators’ function group. It is therefore reasonable for the removal of the ‘ceiling’ on the opportunities for promotion offered to officials belonging to the former categories C and D, which attestation allows, to be based in part on the performance of the officials in question, rather than solely on the nature of the tasks entrusted to them.

(see paras 59, 62, 64-67)

4. The fact that an official’s career development report contains unfavourable marks and assessments cannot in itself be regarded as evidence of psychological harassment, where those marks and assessments seem wholly appropriate in the light of the available evidence on which they are based.

(see para. 84)

See:

T-73/05 Magone v Commission [2006] ECR-SC I‑A‑2‑107 and II‑A‑2‑85, paras 29 and 79