JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

25 February 2010

Case F-91/08

Johanna Gerdina Pleijte

v

European Commission

(Civil service — Officials — Promotion — Attestation procedure — Procedure for 2007 — Applicant’s exclusion from the list of officials preselected — Taking account of a period of leave on personal grounds as professional experience — Article 45a of the Staff Regulations — GIPs for Article 45a)

Application: brought under Articles 236 EC and 152 EA, in which Ms Pleijte seeks, principally, annulment of the decision of the appointing authority of 7 August 2008 rejecting her complaint against the decision not to include her on the list of preselected officials in the context of an attestation procedure, as provided for in Article 45a of the Staff Regulations of Officials of the European Union.

Held: The action is dismissed. The applicant is to bear her own costs and to pay those incurred by the Commission.

Summary

1.      Officials — Actions — Act adversely affecting an official — Definition — Decision excluding an official from the provisional list of preselected candidates in an attestation procedure — Preparatory measure not adversely affecting the official

(Staff Regulations, Arts 90 and 91)

2.      Officials — Actions — Purpose — Direction to the administration — Inadmissibility

(Art. 266 TFEU; Staff Regulations, Art. 91)

3.      Officials — Equal treatment — Difference in treatment between officials who took leave on personal grounds for parental reasons and officials granted parental leave once it was introduced

(Staff Regulations, Arts 40(3) and 42a)

4.      Officials — Attestation procedure — Preselection of candidates — Criteria — Discretion of the institutions

(Staff Regulations, Art. 45a)

1.      A decision by the appointing authority to exclude the name of an official from the provisional list of preselected officials in an attestation procedure is a preparatory measure which does not adversely affect that official and can therefore only be contested incidentally in an appeal against a measure capable of being annulled. However, a decision excluding an official from the final list of preselected officials for an attestation procedure is an act adversely affecting that official and not a preparatory measure.

(see paras 27-28)

See:

C‑471/02 P(R) Gómez-Reino v Commission [2003] ECR I‑3207, para. 62

2.      It is not for the Community judicature to give directions to an institution, apart from the general obligation, set out in Article 266 TFEU, for the institution whose act has been declared void to take the necessary measures to comply with the judgment annulling it. Heads of claim requesting the Civil Service Tribunal to add an official’s name to a list of candidates able to participate in a training programme, or to alter methods set out in administrative notices, are therefore inadmissible.

(see para. 29)

See:

T‑156/89 Valverde Mordt v Court of Justice [1991] ECR II‑407, para. 150

F‑51/07 Bui Van v Commission [2008] ECR-SC I‑A‑1‑289 and II‑A‑1‑1533, para. 17, on appeal before the General Court of the European Union, Case T‑491/08 P

3.      The difference in treatment between officials who applied for leave on person grounds under the version of the Staff Regulations in force before 1 May 2004 and those who applied for parental leave after 1 May 2004 specifically results from the introduction, in the Staff Regulations, of Article 42a relating to parental leave and cannot constitute discrimination since the objective reason for the difference in treatment is the lack of retroactive effect conferred on that article by the legislature.

Moreover, it is for the legislature to decide on the extent of the social entitlements enjoyed by European officials. The creation of new entitlements which are more favourable for officials in the future cannot mean that those entitlements must be granted retroactively to officials who, in the past, would have been likely to satisfy the conditions now required in order to benefit from those entitlements. When the Council introduced parental leave, it did not envisage that leave on personal grounds taken for parental reasons should retroactively be treated as parental leave. The absence of provisions in the Staff Regulations providing for leave on personal grounds granted for parental reasons prior to 1 May 2004 to be treated as parental leave does not, therefore, involve a breach of the principle of equal treatment.

Lastly, since the interpretation of a rule must be strictly confined to its content, particularly where that content is completely unambiguous, Article 40(3) of the Staff Regulations should not be interpreted as requiring officials who took leave on personal grounds for parental reasons to be treated in the same way as those granted parental leave.

(see paras 37, 40, 42)

4.      Differences in treatment which are justified on the basis of objective and reasonable criteria and which are proportionate to the aim pursued by the differential treatment in question do not constitute a breach of the principle of equal treatment. Objective and reasonable criteria capable of justifying a difference in treatment between officials include the interests of the service. The administration enjoys a wide discretion to decide on the measures to take in the interests of the service, so that the Community courts, when reviewing compliance with the principle of non-discrimination, must confine themselves to checking that the differentiation made by the institution concerned was not arbitrary or manifestly contrary to the interests of the service.

In that respect, it is not disproportionate for the administration to take account only of professional experience acquired during the 10 years prior to an attestation procedure in order to assess, in the light of the requirements of the service, the relevance of the professional experience acquired by the candidates, since that relevance depreciates as technologies and skills develop. In the absence of any evidence that such a time limitation is, in actual fact, the result of arbitrary differentiation or differentiation which is manifestly contrary to the interests of the service, that differentiation does not constitute discrimination.

Furthermore, the administration has a wide discretion to decide on the arrangements for selecting candidates. Deciding to limit the professional experience taken into account to the last 10 years does not prevent the administration from selecting the best candidates, since that period may constitute a relevant element of comparison.

(see paras 57-59, 61)

See:

T‑11/03 Afari v ECB [2004] ECR-SC I‑A‑65 and II‑267, para. 65

F‑59/05 De Smedt v Commission [2006] ECR-SC I‑A‑1‑109 and II‑A‑1‑409, para. 76; F-43/05 Chassagne v Commission [2007] ECR-SC I‑A‑1‑27 and II‑A‑1‑139, para. 91; F-54/06 Davis and Others v Council [2007] ECR-SC I‑A‑1‑165 and II‑A‑1‑911, para. 65 and the case-law cited therein; F-6/07 Suvikas v Council [2008] ECR-SC I‑A‑1‑151 and II‑A‑1‑819, para. 87