JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Third Chamber)

4 November 2008

Case F-126/07

Isabelle Van Beers

v

Commission of the European Communities

(Civil service – Officials – Promotion – Attestation procedure – Procedure for 2006 – Exclusion from the list of officials pre-selected – Article 45a of the Staff Regulations)

Application: brought under Articles 236 EC and 152 EA, in which Ms Van Beers seeks, essentially, annulment of the Commission decision of 29 March 2007 rejecting her application under the attestation procedure for 2006.

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

Summary

1.      Officials – Attestation procedure – Pre-selection of candidates – Criteria – Discretion of the institutions

(Staff Regulations, Art. 45a)

2.      Officials – Attestation procedure – Pre-selection of candidates – Criteria – General implementing provisions requiring a certain seniority in a minimum grade in the assistants function group

(Staff Regulations, Art. 45a; Annex XIII, Arts 1, 4(h) and 8(1))

1.      It is clear from the wording and structure of Article 45a of the Staff Regulations that the pre-selection of candidates depends on attestation according to two categories of criteria relating, first, to the candidate himself (his annual career development reports and his level of education and training), and, secondly, to the needs of the service. It is for each institution to clarify those criteria further by drawing up general implementing provisions. An institution is, therefore, entitled, first, to explain in more detail the criteria relating to the candidates themselves, if appropriate, and then to specify the scope which it intends to confer on the ‘needs of the service’ by introducing, where relevant, criteria specifically designed to satisfy those needs, with the option, through the exercise of its discretion, of combining them with those relating to the candidates themselves.

Thus an institution which adopts general implementing provisions requiring, first, a minimum seniority in a certain minimum grade in the assistants function group, adjusted according to the official’s level of education and training, and, second, that three of the last five periodical reports show that the official has the required potential to perform the duties of administrator, does not infringe Article 45a of the Staff Regulations, since those two conditions merely clarify the meaning of Article 45a of the Staff Regulations, in particular the ‘needs of the service’, using the leeway allowed by the legislator concerning that expression.

(see paras 35-38, 41, 43)

2.      In the attestation procedure, the institution’s refusal specifically to assess the professional experience of an official in former category C, who claims to have actually performed tasks corresponding to former categories A or B, does not infringe the principles of equal treatment, sound administration or entitlement to reasonable career prospects. As regards the principle of equal treatment, the failure to take that experience into account is based on the objective criterion that he did not belong to former category B, and there are no grounds for taking exception to the fact that the institution has resorted to categorisation since it is not in essence discriminatory having regard to the objective which it pursues, even if certain fortuitous problems result for an official. As for the principle of sound administration, that is observed where the institution in question determines from the outset the conditions on which the pre-selection of candidates is based, and where it faithfully applies those conditions, so that if a candidate does not satisfy the condition requiring seniority in a certain category, exception cannot be taken to the institution’s failure to take into account the experience which that candidate acquired in former category C. Infringement of the principle of entitlement to reasonable career prospects must also be discounted for the same reasons.

Lastly, an official whose experience in category C is not taken into account for the purposes of admission to the attestation procedure cannot rely on infringement of the principle of legitimate expectations, either on the basis that the criteria set out in Article 45a of the Staff Regulations do not include formal seniority in a category or minimum grade in a function group, since an institution is entitled, having sufficient discretion in view of the needs of the service, to establish a condition relating to minimum seniority in a certain grade in the assistants function group, or on the basis that his immediate superior stated in his periodical reports that, in view of his merits, he should rapidly gain access to the duties of an administrator, since those statements cannot constitute precise and unconditional assurances by the institution, the superior not being the department responsible for conducting the attestation procedure.

(see paras 63, 68, 69, 71, 72, 76-79)

See:

147/79 Hochstrass v Court of Justice [1980] ECR 3005, para. 14