JUDGMENT OF THE CIVIL SERVICE TRIBUNAL
(First Chamber)

15 December 2011

Case F‑9/11

Verónica Sabbag Afota

v

Council of the European Union

(Civil service – Officials – Reports procedure – Promotion – 2010 promotion exercise – No staff report)

Application:      brought under Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, in which Ms Sabbag Afota, an official at the Council, requests the Tribunal to annul her staff report for the period from 1 January 2008 to 30 June 2009, as well as the Council’s decision not to promote her in the 2010 promotion exercise.

Held:      The action is dismissed. The applicant is to bear her own costs and to pay the costs of the Council.

Summary

1.      Officials – Actions – Action against a decision rejecting a complaint – Effect – Referral of contested decision to the Tribunal – Exception – Decision not confirmatory in nature

(Staff Regulations, Arts 90 and 91)

2.      Officials – Promotion – Consideration of comparative merits – Procedures – Taking account of staff reports – Personal file not complete – Consequences

(Staff Regulations, Arts 43 and 45)

3.      Officials – Promotion – Consideration of comparative merits – Administration’s discretion – Scope – Elements that may be taken into consideration

(Staff Regulations of Officials, Art. 45(1))

4.      Officials – Promotion – Consideration of comparative merits – Administration’s discretion – Judicial review – Limits

(Staff Regulations, Art. 45)

5.      Officials – Promotion – Criteria – Merits – Taking into consideration of the level of responsibilities exercised and language skills – Scope

(Staff Regulations, Art. 45)

6.      Officials – Promotion – Complaint by a candidate who has not been promoted – Rejection decision – Obligation to state reasons – Scope – Inadequate statement of reasons – Rectification in the course of the proceedings before the Tribunal – Condition

(Staff Regulations, Arts 25(2), 45 and 90(2))

1.      It follows from Articles 90 and 91 of the Staff Regulations that an action brought by a person to whom the Staff Regulations apply against a decision of the appointing authority or against the failure of that authority to take a measure prescribed by the Staff Regulations is admissible only if the person concerned has previously submitted a complaint to the appointing authority and if the complaint has been rejected, at least in part, by express or implied decision.

The administrative complaint and its rejection, whether express or implied, thus constitute an integral part of a complex procedure and are no more than a precondition for bringing the matter before the judicature. That being so, the action, even if formally directed against the rejection of the complaint, has the effect of bringing before the court the act adversely affecting the applicant against which the complaint was lodged, except where the rejection of the complaint has a different scope from that of the measure against which the complaint was lodged. An express decision rejecting a complaint may, in the light of its content, not be confirmatory of the measure contested by the applicant. That is the case where the decision rejecting the complaint contains a re-examination of the applicant’s situation in the light of new elements of law or of fact, or where it changes or adds to the original decision. In such cases, the rejection of the complaint constitutes a measure subject to review by the court, which will take it into consideration when assessing the lawfulness of the contested measure, and may even regard it as an act adversely affecting the complainant and replacing the contested measure.

(see paras 24, 25)

See:

28 May 1980, 33/79 and 75/79 Kuhner v Commission, para. 9; 17 January 1989, 293/87 Vainker v Parliament, paras 7 and 8

12 December 2002, T‑338/00 and T‑376/00 Morello v Commission, para. 35; 10 June 2004, T‑258/01 Eveillard v Commission, para. 31; 14 October 2004, T‑389/02 Sandini v Court of Justice, para. 49; 7 June 2005, T‑375/02 Cavallaro v Commission, paras 63 to 66; 25 October 2006, T‑281/04 Staboli v Commission, para. 26

9 December 2009, T‑377/08 P Commission v Birkhoff, paras 50 to 59 and 64; 21 September 2011, T‑325/09 P Adjemian and Others v Commission, para. 32

2.      The periodic report constitutes an indispensable criterion of assessment each time an official’s career is taken into consideration for the purpose of adopting a decision concerning his promotion.

It follows that a promotion procedure is tainted with irregularity where the appointing authority has not been able to consider the comparative merits of the candidates because there has been a substantial delay, caused by the administration, in the drawing up of the periodic reports on one or more of them.

Such irregularity does not incur a sanction, however, where the absence of a periodic report may be compensated for by the existence of other information on the official’s merits. Furthermore, the fact that one candidate’s file is irregular and incomplete is not a sufficient ground for the annulment of the promotions, unless it can be established that this was capable of having a decisive effect on the promotion procedure.

(see paras 42-44)

See:

18 December 1980, 156/79 and 51/80 Gratreau v Commission, paras 22 and 24

19 September 1996, T‑386/94 Allo v Commission, para. 38; Morello v Commission, para. 84 and the case-law cited therein; 8 March 2006, T‑289/04 Lantzoni v Court of Justice, para. 62

3.      Pursuant to Article 45(1) of the Staff Regulations, when considering comparative merits for the purpose of granting a promotion, the appointing authority is in particular to take account of the reports on the officials eligible for promotion, the use of languages in the execution of their duties other than the language for which they have produced evidence of thorough knowledge and, where appropriate, the level of responsibilities exercised. It is in the light of those three elements that the appointing authority must consider the comparative merits of officials eligible for promotion. The appointing authority may, however, as a subsidiary matter, where the merits of the officials eligible for promotion are equal on the basis of the three elements expressly referred to in Article 45(1) of the Staff Regulations, take into account other elements, such as candidates’ age and their seniority in grade or in the service.

However, the wide discretion thus conferred on the appointing authority is limited by the need to consider candidates’ comparative merits carefully and impartially, in the interest of the service and in accordance with the principle of equal treatment. In practice, that examination must be carried out on a basis of equality, using comparable sources of information.

(see paras 53, 55, 60)

See:

15 September 2005, T‑132/03 Casini v Commission, para. 53, and the case‑law cited therein

7 November 2007, F‑57/06 Hinderyckx v Council, para. 45; 5 May 2010, F‑53/08 Bouillez and Others v Council, para. 50

4.      The appointing authority possesses, for the purpose of considering the comparative merits of officials who are candidates for promotion, a wide discretion and the Union judicature must restrict itself to consideration of the question whether, regard being had to the various considerations which have influenced the administration in making its assessment, the latter has remained within reasonable limits and has not used its power in a manifestly incorrect way. A court cannot therefore substitute its assessment of the qualifications and merits of the candidates for that of the appointing authority.

(see para. 54)

See:

Casini v Commission, para. 52 and the case-law cited therein

5.      Regarding the criterion of the level of responsibilities exercised, that level cannot primarily be determined, when considering the comparative merits of officials eligible for promotion, by the scale of the management tasks performed, since an official can assume a high level of responsibilities without being in charge of a large number of staff and, conversely, an official may be in charge of a large number of staff without exercising a particularly high level of responsibilities.

Likewise, regarding the criterion of language skills, although an official may state that he knows several working languages, the fact remains that, as the very wording of Article 45 of the Staff Regulations makes clear, it is the use rather than the knowledge of languages that must be taken into account when considering officials’ comparative merits.

(see paras 58, 59)

See:

16 December 2010, T‑175/09 P Council v Stols, para. 48

6.      Although the appointing authority is not obliged to give reasons for its promotion decisions to officials who have not been promoted, it is, however, obliged to state the reasons for its decision rejecting a complaint lodged by an official who has not been promoted against the decision not to promote him, the statement of reasons for that rejection being deemed to be the same as the statement of reasons for the decision against which the complaint was directed. Moreover, the adequacy of the statement of reasons is to be assessed in the light of the fundamental elements of the arguments to which the institution replies.

In that respect, provided that an initial statement of reasons has been provided by the appointing authority, further explanations may be provided in the course of the proceedings before the Tribunal.

(see paras 62, 63, 65)

See:

7 February 1990, C‑343/87 Culin v Commission, para. 13

3 October 2006, T‑171/05 Nijs v Court of Auditors, para. 42; 4 July 2007, T‑502/04 Lopparelli v Commission, para. 77

Hinderyckx v Council, para. 32