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

18 March 2015

Case F‑51/14

Manuel Jaime Ribeiro Sinde Monteiro

v

European External Action Service (EEAS)

(Civil service — EEAS staff — Official — Promotion — Articles 43 and 45(1) of the Staff Regulations — Consideration of comparative merits of all officials eligible for promotion — Officials proposed by EEAS departments and those not proposed — Taking into account of staff reports — Assessments expressed purely in words)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Ribeiro Sinde Monteiro requests the Tribunal to annul the decision of 9 October 2013 of the chief operating officer of the European External Action Service (EEAS), acting as the appointing authority of the EEAS, fixing the list of officials promoted in the 2013 promotion procedure.

Held:      The decision of the appointing authority of the European External Action Service of 9 October 2013 fixing the list of officials promoted in the 2013 promotion procedure is annulled in so far as the name of Mr Ribeiro Sinde Monteiro is not included on that list. There is no need to rule on the application as to the remainder. The European External Action Service is to bear its own costs and is ordered to pay the costs incurred by Mr Ribeiro Sinde Monteiro.

Summary

1.      Officials — Promotion — Consideration of comparative merits — Procedures — Administration’s discretion — Limits — Observance of the principle of equal treatment

2.      Officials — Reports procedure — Staff reports — Assessments in those reports expressed purely in words — Method not allowing merits to be compared on a basis of equality in a promotion procedure

(Staff Regulations, Arts 43 and 45)

3.      Officials — Promotion — Consideration of comparative merits — Prior consideration of personal files within each Directorate-General — Whether permissible — Subsequent consideration a matter for the Promotion Board and then the appointing authority — Effects — Requirement for appointing authority’s consideration to cover all officials eligible for promotion

(Staff Regulations, Art. 45(1))

1.      Even if the appointing authority enjoys a wide discretion in deciding on the procedure or method which it deems most appropriate for considering the comparative merits of candidates for promotion, the discretion thereby conferred on the administration is, however, circumscribed by the need to undertake a consideration of comparative merits with care and impartiality, in the interests of the service and in accordance with the principle of equal treatment. Accordingly, that consideration must be conducted on the basis of comparable sources of information. To that end, in order to make the promotion system as fair as possible, the appointing authority must, under Article 45 of the Staff Regulations, ensure that the consideration of comparative merits is objective, first, by guaranteeing that the assessments of all officials are comparable by establishing a common appraisal scale and, second, by ensuring that assessors apply consistent appraisal criteria.

(see para. 39)

See:

Judgment in Buendía Sierra v Commission, T‑311/04, EU:T:2006:329, para. 172 and the case-law cited therein

Judgment in Stols v Council, T‑95/12 P, EU:T:2014:3, para. 32

Judgment in Nieminen v Council, F‑81/12, EU:F:2014:50, paras 58 and 91 and the case-law cited therein, on appeal before the General Court, Case T‑464/14 P

2.      Assessments expressed purely in words in staff reports make it impossible methodically to identify differences in the appraisal of officials as practised by the various assessors in accordance with their own subjective approach, and those assessments thus affect the appointing authority’s ability to compare merits objectively.

While it cannot, admittedly, be argued that Article 43 of the Staff Regulations requires the use of an analytical and numerical assessment system, 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 assessors.

(see paras 40, 41)

3.      In a promotion procedure, the appointing authority is required, under Article 45(1) of the Staff Regulations, to consider, prior to any promotion, the comparative merits of all officials eligible for promotion. More precisely, in the context of its consideration, the appointing authority may 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, embodied in the first paragraph of Article 21 of the Staff Regulations, under which ‘an official, whatever his rank, shall assist and tender advice to his superiors’.

However, prior consideration, within each directorate-general, of the personal files of officials eligible for promotion must not take the place of the comparative consideration which must be undertaken subsequently by the Promotion Board, where provision is made for such consideration, and then by the appointing authority.

In particular, if consideration of the comparative merits of all the officials eligible for promotion is not to be rendered redundant, the appointing authority cannot be allowed simply to consider the merits of those officials who are placed at the top of the lists prepared by the various departments or directorates-general.

It follows that, although it may be useful first to compare the merits of officials eligible for promotion within each department, in order to take account of each official’s specific qualities, that does not, in the light of Article 45 of the Staff Regulations, exempt the Promotion Board and the appointing authority from comparing the merits of all officials eligible for promotion.

The synoptic tables used by the Promotion Board for all officials eligible for promotion, as provided for by Article 5(2) of the decision by which the European Union High Representative for Foreign Affairs and Security Policy established the rules for the promotion procedure to implement Article 45 of the Staff Regulations, designate, for each grade, the officials proposed for promotion by their departments in accordance with the promotion opportunities resulting from the indicative quotas fixed by the Director of Human Resources. Even if the synoptic tables provide, to a variable extent, a snapshot of the situation of all officials eligible for promotion in the same grade, they do not contain any reference to the principal duties and possible merits of officials eligible for promotion who have not been proposed for promotion by their departments. The opposite is true of the officials eligible for promotion who have been proposed for promotion by their departments, whose principal duties are listed and for whom a brief justification is given of the proposal to promote them based on their merits. The table embodies a difference in treatment between those who have already been proposed for promotion by their departments, and the others. The advantage which the former derive from having their merits thus highlighted in a user-friendly summary document is such as to have rendered unlawful the stages of the promotion procedure in which it may have been used.

(see paras 46, 47, 50, 51, 57)

See:

Judgments in Tsirimokos v Parliament, T‑76/92, EU:T:1993:106, para. 17; Caravelis v Parliament, T‑182/99, EU:T:2001:131, para. 33, and Heurtaux v Commission, T‑172/03, EU:T:2005:34, para. 40