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

24 March 2015

Case F‑61/14

Carola Maggiulli

v

European Commission

(Civil service — Promotion — 2013 promotion procedure — Decision not to promote — Consideration of comparative merits)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Ms Maggiulli brought the present action seeking annulment of the decision of the European Commission not to promote her to Grade AD 13 in the 2013 promotion procedure.

Held:      The application is dismissed. Ms Maggiulli is to bear her own costs and is ordered to pay the costs incurred by the European Commission.

Summary

1.      Officials — Promotion — Consideration of comparative merits — Administration’s discretion — Scope — Taking account of staff reports — Other elements which may be taken into account

(Staff Regulations, Art. 45(1))

2.      Officials — Promotion — Consideration of comparative merits — Administration’s discretion — Judicial review — Limits — Manifest error of assessment — Definition

(Staff Regulations, Art. 45(1))

1.      Under Article 45(1) of the Staff Regulations, the appointing authority, in order to promote to the next higher grade in the function group to which officials belong, must in particular, when considering comparative merits, take account of the reports on the officials, 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 by the officials eligible for promotion. Those are the three main factual elements which must necessarily be taken into account when considering the comparative merits. The appointing authority may, 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.

(see para. 28)

See:

Judgment in Casini v Commission, T‑132/03, EU:T:2005:324, para. 57

Judgments in Bouillez and Others v Council, F‑53/08, EU:F:2010:37, para. 50, and AC v Council, F‑9/10, EU:F:2011:160, para. 25

2.      The appointing authority possesses, for the purpose of considering the comparative merits of officials who are candidates for promotion, a wide discretion and review by the Union judicature in that context must be confined 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. The Civil Service Tribunal may therefore not substitute its own assessment of the qualifications and merits of the candidates for that of the appointing authority. It is thus not for the Union judicature to review the merits of the administration’s assessment of the professional abilities of an official, where it involves complex value-judgments which by their very nature are not amenable to objective verification. It is also not for the Civil Service Tribunal to re-examine in detail all the files of the candidates eligible for promotion in order to make sure that it agrees with the conclusion reached by the appointing authority, since, if it undertook such an exercise, it would exceed its powers of judicial review by substituting its own assessment of the merits of the candidates eligible for promotion for that of the appointing authority.

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. While the appointing authority has the power under the Staff Regulations to conduct that consideration according to the procedure or method it deems most appropriate, in practice it must be undertaken on a basis of equality, using comparable sources of information.

In the context of the review by the Union judicature of the promotion choices made by the administration, an error is manifest where it is easily recognisable and can be readily detected, in the light of the criteria to which the legislature intended decisions on promotion to be subject and in accordance with Article 45(1) of the Staff Regulations. Consequently, in order to establish that the administration committed a manifest error in assessing the facts such as to justify the annulment of a decision, the evidence, which it is for the applicant to adduce, must be sufficient to make the findings of the administration implausible. In other words, a plea alleging a manifest error must be rejected if, despite the evidence adduced by the applicant, the contested assessment may still be accepted as true or valid.

(see paras 29-31)

See:

Judgment in Casini v Commission, EU:T:2005:324, paras 52 and 53

Judgments in Canga Fano v Council, T‑281/11 P, EU:T:2013:252, paras 35, 41 and 42, and the case-law cited therein, and Stols v Council, T‑95/12 P, EU:T:2014:3, para. 31

Judgments in AC v Council, EU:F:2011:160, paras 22 and 24; Buxton v Parliament, F‑50/11, EU:F:2012:51, para. 38, and order in Debaty v Council, F‑47/13, EU:F:2013:215, para. 33