JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Third Chamber)

15 February 2011

Case F‑68/09

Florence Barbin

v

European Parliament

(Civil service — Officials — 2006 promotion exercise — Enforcement of a judgment of the Tribunal — Consideration of comparative merits — Principle of equal treatment — Half-time parental leave)

Application:      brought under Articles 236 EC and 152 EA, in which Ms Barbin seeks annulment of the Parliament’s decision not to promote her to grade AD 12 for the 2006 promotion exercise.

Held: The action is dismissed. The applicant is to pay all the costs.

Summary

1.      Officials — Promotion — Obligation to state the reasons for every decision not to promote officials who have reached the reference threshold — None

(Staff Regulations, Art. 45)

2.      Officials — Promotion — Consideration of comparative merits — Award of merit points and fixing of a reference threshold

(Staff Regulations, Art. 45)

3.      Officials — Promotion — Consideration of comparative merits — Procedures

(Staff Regulations, Art. 45)

4.      Officials — Equal treatment — Concept — Limits

5.      Officials — Promotion — Consideration of comparative merits — Decision to promote

(Staff Regulations, Art. 45)

6.      Officials — Actions — Pleas in law — Plea alleging discrimination — Obligation to take account of all the relevant factual context

1.      Under the terms of point I.3.4 of the decision of the Bureau of the European Parliament of 13 February 2006 relating to the ‘Policy on promotion and career planning’, essentially reproduced in the second subparagraph of point II.2(b) of the decision of the Secretary-General of the Parliament of 10 May 2006 adopting implementing measures relating to the award of merit points and to promotion, the administration must give reasons for any decision to promote officials who have not reached the reference threshold. While those provisions do not specify to whom the appointing authority must give reasons for its decisions, accepting that that obligation to state reasons should apply in respect of any official reaching the threshold who is not promoted would not only impose an unnecessary workload on the administration, but would also be contrary to the case-law according to which the statement of reasons for a decision on promotion must relate to the individual situation of the official not promoted. That official is therefore wrong to argue that the administration is under an obligation to give him reasons for promoting those of his colleagues who had not reached the reference threshold.

The obligation arising from those provisions may be regarded as satisfied if the administration has sent the Promotion Committee, a joint body on which officials are represented, a statement of reasons for promoting officials who have not reached the reference threshold.

(see paras 59, 61)

See:

4 July 2007, T‑502/04 Lopparelli v Commission, para. 75

2.      Under the decision of the Bureau of the European Parliament of 13 February 2006 relating to the ‘Policy on promotion and career planning’, merit points are not awarded as the culmination of a comparative consideration of all officials eligible for promotion who are capable of satisfying the requirements of Article 45 of the Staff Regulations. Each official in a directorate or department who is eligible for promotion competes solely with the other officials from his directorate or department for a limited number of merit points. Since the reference threshold is not fixed as a relative value, that is to say, on the basis of the average merit points of the officials concerned, but as an absolute value corresponding to twice the average period spent in the grade (four years for grade AD 11), the fact of reaching that threshold is not equivalent to a direct or indirect comparison of the merits of officials eligible for promotion. Consequently, the administration cannot promote an official solely on the ground that he has reached the reference threshold, since in doing so it would not, at any stage in the promotion procedure, have compared his merits with those of each official eligible for promotion.

(see para. 83)

See:

8 October 2008, F‑44/07 Barbin v Parliament, para. 44

3.      According to Article 45 of the Staff Regulations, the appointing authority cannot confine itself to examining the individual situation of each official, but must compare the merits of all officials in order to decide on promotions. In that respect seniority is merely a secondary promotion criterion. Therefore, a decision granting promotion to an official solely on the ground that he has not lost merit or that he has a certain seniority in the grade, without taking account of the situation of the other officials, would infringe the principle that all officials eligible for promotion must have their comparative merits considered, as provided for in that article. Consequently, even if the decision of the Bureau of the European Parliament of 13 February 2006 relating to the ‘Policy on promotion and career planning’ provides for a reference threshold which depends on the average period spent in a grade, expressed in years, no principle can be inferred that an official must be promoted if he does not lose merit, or that entitlement to regular career progression obliges the administration to promote an official automatically simply because he has reached a certain seniority in the grade.

(see paras 90, 91)

See:

Lopparelli v Commission, para. 75

10 September 2009, F‑124/07 Behmer v Parliament, para. 106

4.      In order to comply with the principles of non-discrimination and equal treatment, the administration must ensure that it does not treat identical situations differently and that it does not apply the same treatment to different situations, unless there is objective justification for doing so. Consequently, where an official exercises a right conferred on him by the Staff Regulations, the administration cannot, without undermining the effectiveness of that right, consider that his situation is different from that of an official who has not exercised that right and therefore apply different treatment to him, unless that difference in treatment is, first, objectively justified, particularly in that it merely draws the appropriate conclusions from the fact that the staff member concerned has not carried out work during the period in question, and, second, strictly proportionate to the justification given.

(see para. 100)

See:

16 October 1980, 147/79 Hochstrass v Court of Justice, para. 7

25 October 2005, T‑368/03 De Bustamante Tello v Council, para. 69

5.      Even though a decision on promotions was formally adopted on the basis of the number of merit points awarded to the official concerned, that fact does not eliminate the possibility that the decision was adopted for less acceptable reasons, such as the taking into consideration of the official’s parental leave, provided, however, that there is evidence casting doubt on the truth of the abovementioned reason.

(see paras 102, 103)

6.      In order to assess a plea alleging discrimination, all the relevant factual context must be taken into account, including assessments contained in previous decisions that have become final. It follows that a decision which has become final may, without any need to review its legality, constitute evidence to be taken into account alongside other factors in order to establish particular conduct, including discrimination, on the part of the administration. That is particularly true where it is possible that discrimination will only become evident after expiry of the time-limits for bringing proceedings against a decision which embodies that discrimination.

(see para. 109)