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

14 November 2012

Case F‑75/11

Vincent Bouillez

v

Council of the European Union

(Civil service — Officials — Promotion — 2007 promotion exercise — Refusal to promote an official — Annulment — Implementing measures — New consideration of the comparative merits — Consideration of comparative merits of officials in the AST function group following their career stream)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, in which Mr Bouillez seeks, in essence, annulment of the decision not to promote him to grade AST 7 in the 2007 promotion exercise, adopted by the Council on 1 October 2010 following a new consideration of the comparative merits in implementation of the judgment of 5 May 2010 in Case F‑53/08 Bouillez and Others v Council (‘the judgment of 5 May 2010’).

Held: The action is dismissed. The Council is to bear its own costs and one quarter of the costs incurred by Mr Bouillez. The applicant is to bear three quarters of his own costs.

Summary

1.      Officials — Promotion — Consideration of comparative merits — Procedures — Administration’s discretion — Limits — Respect for the principle of equal treatment — Need for consideration by the appointing authority of all officials eligible for promotion

(Staff Regulations, Art. 45)

2.      Officials — Promotion — Consideration of comparative merits — Procedures — Officials in function group AST — Separate consideration according to career stream

(Staff Regulations, Art. 45; Annex XIII, Art. 10)

3.      Officials — Promotion — Consideration of comparative merits — Administration’s discretion — Factors which may be taken into consideration

(Staff Regulations, Art. 45(1))

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

(Staff Regulations, Art. 45)

1.      Article 45 of the Staff Regulations, which requires the appointing authority to consider the comparative merits of the officials eligible for promotion, presupposes that that consideration will be extended to all officials eligible for promotion, regardless of the duties they perform. Such a requirement is an expression both of the principle of equal treatment of officials and of the right to reasonable career prospects.

Although the legislature, when adopting the Staff Regulations, intended to combine all administrators in a single function group, irrespective of whether they perform linguistic or other duties, it is for that authority to undertake a single comparison of merits for all the administrators eligible for promotion in the same grade.

(see paras 33-34)

See:

15 December 2010, F‑14/09 Almeida Campos and Others v Council, paras 31 and 35 and the case-law cited

2.      As regards officials in the AST function group, Article 10 of Annex XIII to the Staff Regulations lays down reference multiplier rates for determining the number of vacant posts for each grade, which vary for the different career streams.

Since the administration is obliged to comply with those rates, the appointing authority is fully entitled to compare the merits of officials in the AST function group only with those of other officials in the same career stream.

In that regard, the comparison, for purposes of the promotion exercise, of the merits of AST officials by career stream does not breach Article 45 of the Staff Regulations, since Article 10 of Annex XIII to the Staff Regulations derogates, as a lex specialis, from the general provisions of the Staff Regulations.

(see paras 35-37)

See:

10 November 2011, F‑20/09 Juvyns v Council, paras 42 and 43

3.      The appointing authority has wide discretion as regards consideration of comparative merits when taking a promotion decision as provided for in Article 45 of the Staff Regulations.

In that regard, Article 45(1) of the Staff Regulations allows the institutions a certain amount of freedom as to which factual elements to take into account in their consideration of the comparative merits of officials eligible for promotion, since it does not draw up an exhaustive list in that regard. Article 45(1) of the Staff Regulations states, using the words ‘in particular’, the three main factual elements which must necessarily be taken into account when considering the comparative merits. It does not, however, preclude the taking into account of other factual elements also capable of giving an indication of the merits of officials eligible for promotion. That conclusion is not called into question by the fact that, in promotion matters, the appointing authority may take into account the age of candidates and their seniority in grade or in the service only as a subsidiary matter, namely where the merits of the officials eligible for promotion are equal, in particular as regards the three elements expressly referred to in Article 45(1) of the Staff Regulations. Age and seniority are not in themselves likely to give an indication of the merits of the candidates for promotion. That is why they may be taken into account only in order to decide between candidates with equivalent merits.

Also, the administration has a broad discretion as to the respective importance that it ascribes to each of the three criteria provided for in Article 45(1) of the Staff Regulations, as that provision does not preclude the possibility of weighting.

(see paras 56-58)

See:

15 September 2005, T‑132/03 Casini v Commission, para. 52 and the case‑law cited

24 March 2011, F‑104/09 Canga Fano v Council, para. 68, on appeal to the General Court, Case T‑281/11 P; 28 September 2011, F‑9/10 AC v Council, para. 25 and the case-law cited

4.      The appointing authority’s discretion 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.

In that connection the Court's review must be confined to the question whether, having regard to the various considerations which have influenced the administration in making its assessment, the latter has remained within reasonable bounds and has not used its power in a manifestly incorrect way.

It is therefore not for the 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.

Moreover, the Tribunal cannot substitute its assessment of the candidates’ qualifications and merits for that of the appointing authority and annulment for a manifest error of assessment is possible only if it is apparent from the documents on the case-file that that authority exceeded the bounds of its discretion.

(see paras 59-62)

See:

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

AC v Council, paras 14 and 23; 13 December 2011, F‑51/08 RENV Stols v Council, paras 37 and 38