JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(Second Chamber)
29 April 2015 (*)
(Civil service — Promotion — 2011 promotion exercise — Non-inclusion in the list of officials eligible for promotion — Article 45 of the Staff Regulations — Two years’ seniority in grade — Failure to take account of the period of work completed as a member of the temporary staff — Difference in treatment due to the legal nature of the employment of the workers concerned — Directive 1999/70/EC — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Possibility of relying on Clause 4 —None)
In Case F‑78/12,
ACTION brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof,
Viara Todorova Androva, an official of the Council of the European Union, residing in Rhode-Saint-Genèse (Belgium), represented by M. Velardo, lawyer,
applicant,
v
Council of the European Union, represented by J. Herrmann and M. Bauer, acting as Agents,
defendant,
supported by
European Commission, represented by J. Currall and G. Gattinara, acting as Agents,
and
Court of Auditors of the European Union, represented initially by T. Kennedy, N. Scafarto and K. Zavřelová, acting as Agents, and subsequently by N. Scafarto, acting as Agent,
interveners,
THE CIVIL SERVICE TRIBUNAL (Second Chamber)
composed of K. Bradley (Rapporteur), President, H. Kreppel and M.I. Rofes i Pujol, Judges,
Registrar: P. Cullen, Administrator,
having regard to the written procedure and further to the hearing on 15 January 2015,
gives the following
Judgment
1 By application received at the Registry of the Tribunal on 25 July 2012, Ms Todorova Androva brought an action seeking, in essence, first, annulment of the decision of the Council of the European Union not to include her in the list of officials eligible for promotion during the 2011 promotion exercise and, secondly, compensation for the material and non-material damage she allegedly suffered as a result of the unlawfulness of that decision.
Legal context
2 Article 45(1) of the Staff Regulations of Officials of the European Union in the version applicable to the proceedings (‘the Staff Regulations’) provides:
‘Promotion shall be by decision of the Appointing Authority in the light of Article 6(2). It shall be effected by appointment of the official to the next higher grade in the function group to which he belongs. Promotion shall be exclusively by selection from among officials who have completed a minimum of two years in their grade after consideration of the comparative merits of the officials eligible for promotion. …’
3 On 28 June 1999 the Council adopted Directive 1999/70/EC concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43).
4 According to Clause 1 of the Framework Agreement on fixed-term work concluded by ETUC, UNICE and CEEP annexed to Directive 1999/70 (‘the Framework Agreement’), its purpose is to:
‘…
(a) improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination;
(b) establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships.’
5 Clause 4 of the Framework Agreement, entitled ‘Principle of non-discrimination’, provides:
‘1. In respect of employment conditions, fixed-term workers shall not be treated in a less favourable manner than comparable permanent workers solely because they have a fixed-term contract or relation unless different treatment is justified on objective grounds.
…
4. Period-of-service qualifications relating to particular conditions of employment shall be the same for fixed-term workers as for permanent workers except where different length-of-service qualifications are justified on objective grounds.’
Background to the dispute
6 The applicant was employed by the Council, from 1 July 2006, as a member of the temporary staff within the meaning of Article 2(b) of the Conditions of Employment of Other Servants of the European Union in the version which was then in force (‘the CEOS’). She was placed in grade AD 5 and assigned, as a linguistic administrator, to the Bulgarian Language Unit of the Translation and Document Production Directorate of Directorate General (DG) Personnel and Administration of the General Secretariat. Her contract of employment, as amended by successive supplementary agreements, was scheduled to end on 31 December 2010.
7 Having in the meantime passed Competition EPSO/AD/166/09, the applicant was appointed as a probationary official in grade AD 5, by decision of 23 November 2010 which took effect on 1 December 2010. Under the third paragraph of Article 32 of the Staff Regulations, the applicant retained her seniority in step acquired when she was a member of the temporary staff and was therefore graded in step 4.
8 It is not disputed by the parties that after her appointment as a probationary official the applicant continued to perform the same duties as she had previously performed as a member of the temporary staff.
9 By decision of 12 July 2011, which took effect on 1 September 2011, the applicant was established as an official.
10 By Staff Note No 87/11 of 12 September 2011, the appointing authority published the list of officials eligible for promotion in the 2011 promotion exercise. The applicant’s name was not included in that list.
11 On 17 October 2011 Staff Note No 100/11 was published, setting out the list of officials promoted in the 2011 promotion exercise. The applicant’s name was not on that list.
12 On 9 December 2011 the applicant lodged a complaint against the decision not to include her in the list of officials eligible for promotion contained in Staff Note No 87/11.
13 By decision of 18 April 2012, the Deputy Secretary General of the Council, acting in his capacity as the appointing authority, rejected the complaint on the ground inter alia that the applicant had not completed two years in her grade since her appointment as an official as required by Article 45 of the Staff Regulations in order to be included among the officials eligible for promotion (‘the decision rejecting the complaint’).
Procedure and forms of order sought
14 In view of the resignation of the Judge-Rapporteur to whom the case had initially been assigned and the change in the composition of the chambers, on 6 May 2013 the President of the Tribunal appointed a new Judge-Rapporteur.
15 By letter of 24 June 2013, the Tribunal informed the parties that it proposed to invite the European Parliament, the European Commission, the Court of Justice of the European Union and the Court of Auditors of the European Union to intervene in the proceedings and asked them to submit their comments in that regard.
16 The parties having expressed no objection to the proposed invitation to intervene, by order of the President of the Second Chamber of the Tribunal of 4 December 2013 (Todorova Androva v Council, F‑78/12, EU:F:2013:206), the Commission and the Court of Auditors were given leave to intervene. The Parliament and the Court of Justice did not wish to intervene in the present case.
17 The Commission and the Court of Auditors submitted their statements in intervention on 14 and 15 January 2014, respectively.
18 By letter of 13 February 2014, the Council informed the Tribunal that it had no observations on the statements in intervention of the Commission and the Court of Auditors. On 10 March 2014, the applicant sent her observations on the statements in intervention of the Commission and the Court of Auditors.
19 The applicant claims that the Tribunal should:
– annul the decision contained in Staff Note No 87/11 dated 12 September 2011 not to include her in the list of officials eligible for promotion in the 2011 promotion exercise;
– annul the decision rejecting the complaint;
– order the Council to pay compensation for material and non-material damage, provisionally assessed at EUR 40 000, which will be more precisely quantified during the proceedings, and compensatory and late-payment interest at the rate of 6.75%;
– order the Council to pay the costs.
20 The Council contends that the Tribunal should:
– dismiss the action as unfounded;
– order the applicant to pay the costs.
21 The Commission and the Court of Auditors contend that the Tribunal should dismiss the action and order the applicant to pay the costs.
Law
The claim directed against the decision rejecting the complaint
22 According to case-law, a claim for annulment formally directed against the rejection of a complaint has the effect of bringing before the Tribunal the act against which the complaint was submitted, where that claim, as such, lacks any independent content (judgment in Balionyte-Merle v Commission, F‑113/12, EU:F:2013:191, paragraph 24 and the case-law cited).
23 In the present case, the Tribunal notes that the decision rejecting the complaint confirms the decision not to include the applicant’s name in the list of officials eligible for promotion, whilst providing the grounds for that decision. In such circumstances, it is indeed the legality of the initial act adversely affecting the member of staff which must be examined, taking into account the grounds given for the decision rejecting the complaint, which statement of reasons is expected to be the same as that of the initial act (see, to that effect, judgment in Commission v Birkhoff, T‑377/08 P, EU:T:2009:485, paragraphs 58 and 59 and the case-law cited).
24 Consequently, the claim for annulment directed against the decision rejecting the complaint lacks any independent content and the action must be regarded as being directed against the decision contained in Staff Note No 87/11 dated 12 September 2011 not to include the applicant in the list of officials eligible for promotion in the 2011 promotion exercise (‘the contested decision’), the grounds for which are stated in the decision rejecting the complaint (see, to that effect, judgments in Eveillard v Commission, T‑258/01, EU:T:2004:177, paragraphs 31 and 32, and Buxton v Parliament, F‑50/11, EU:F:2012:51, paragraph 21).
The claim for annulment of the contested decision
25 In support of her claim, the applicant formally raises three pleas :
– the first alleging infringement of Article 45 of the Staff Regulations and manifest error of assessment;
– the second alleging breach of the principle of equal treatment;
– the third alleging breach of the duty to have regard for the welfare of officials.
26 However, in the light of the arguments put forward by the applicant in support of her claims and the clarification she provided at the hearing, the first plea must be understood as alleging, primarily, infringement of Article 45 of the Staff Regulations and, by a plea of illegality in the alternative, the unlawfulness of Article 45 of the Staff Regulations, in that it breaches the principle of non-discrimination, as expressed in Clause 4 of the Framework Agreement.
First plea: infringement of Article 45 of the Staff Regulations and, by a plea of illegality, the unlawfulness of that provision
– Arguments of the parties
27 The applicant contends, in essence, that she suffered unjustified discrimination compared with the officials who were eligible for promotion, because although her duties when she was a member of the temporary staff were the same as those of an official, her periods of service in that capacity had not been taken into account for the purposes of calculating the two years’ seniority in grade that were needed under Article 45 of the Staff Regulations in order to be eligible for promotion. The applicant had continuously performed the same functions since her entry into service as a member of the temporary staff.
28 By her first plea, as clarified by the applicant in her observations on the statements in intervention and at the hearing, the applicant contends, primarily that the contested decision is based on a misreading of Article 45 of the Staff Regulations. The applicant asserts that the Council interpreted that provision as meaning that, in the calculation of the two years’ seniority in grade which officials must demonstrate in order to be eligible for promotion, any seniority that may have been acquired by officials who, like the applicant, were members of the temporary staff before becoming established could not be taken into account. According to the applicant, the wording of Article 45 of the Staff Regulations does allow such seniority to be taken into account and that is the only interpretation which accords with Directive 1999/70.
29 The applicant contends that, unless Article 45 of the Staff Regulations can be interpreted as allowing seniority acquired as a member of the temporary staff to be taken into account in the calculation of the two years’ seniority in grade required in order to be eligible for promotion to the next higher grade, it conflicts with Directive 1999/70 and the principle of equal treatment expressed in that directive and must therefore be declared unlawful.
30 According to the applicant, in its judgment in Rosado Santana (C‑177/10, EU:C:2011:557) the Court held that the Framework Agreement was to be interpreted as precluding any difference in treatment as between ‘career civil servants’ and ‘interim civil servants’, unless such different treatment was justified on objective grounds, and that, accordingly, that framework agreement precluded account not being taken, when determining whether a person was eligible for promotion, of periods of service completed by that person as an ‘interim civil servant’ before becoming a career civil servant.
31 The applicant contends that Directive 1999/70 is binding on the EU institutions in their relations with their staff. Clause 4 of the Framework Agreement, on the basis of which the Court held that periods of service completed as interim staff were to be taken into account in the same way as periods of service completed as a civil servant, was the expression of the general principle of equal treatment which is a ‘fundamental principle’.
32 In the alternative, the applicant contends that, even if the Tribunal were to consider that she cannot rely on the existence of a fundamental principle, the institutions would be obliged to interpret Article 45 of the Staff Regulations in the light of Directive 1999/70 in accordance with the principle of sincere cooperation provided for by Article 4(3) TEU.
33 In any event, since Article 45 of the Staff Regulations is open to more than one interpretation, the applicant contends that the Council should have taken account of Directive 1999/70 and hence of the provisions of the Framework Agreement in order to determine what interpretation should be given of the concept of ‘two years in the grade’ within the meaning of Article 45 of the Staff Regulations.
34 Furthermore, the applicant contends that the fact that the judgment in Rosado Santana (EU:C:2011:557) concerned an internal selection procedure and not a promotion procedure does not constitute a reason not to apply the approach adopted by the Court in the present case. A promotion procedure, like an internal selection procedure, plays a part in advancing the careers of public servants and, as such, is covered by the employment conditions mentioned in Clause 4 of the Framework Agreement.
35 According to the applicant, the existence of continuity between seniority acquired as a member of the temporary staff and that acquired as an official is not excluded by the Staff Regulations, and indeed follows from some of the provisions of the Staff Regulations. Article 45 of the Staff Regulations does not expressly state that the period of service referred to in that article must have been completed exclusively as an official. Furthermore, that article does not preclude staff reports other than those drawn up after the person concerned became an official being taken into account. On the contrary, the third paragraph of Article 32 of the Staff Regulations makes it clear that members of the temporary staff who become officials can continue to enjoy the seniority they have formerly acquired, even if they were employed under a different legal regime.
36 The Council contends that the applicant’s argument is contrary to the intention of the legislature to take into account, for the application of Article 45 of the Staff Regulations, only periods of service completed as an official, an intention which is clear from the words ‘two years in [the] grade’ appearing in the wording itself of Article 45 of the Staff Regulations.
37 Furthermore, according to the Council, the applicant’s argument implies the existence of legal continuity between the status of a member of the temporary staff and that of an official. However, analysis of the Staff Regulations and of case-law, in particular the orders in Kyriazi v Commission (F‑66/06, EU:F:2006:92) and Pereira Sequeira v Commission (F‑65/06, EU:F:2006:124) and the judgment in Toronjo Benitez v Commission (F‑33/07, EU:F:2008:25), must lead the Tribunal to rule out such legal continuity.
38 Lastly, according to the Council, the decision of the legislature to take into account, in the context of Article 45 of the Staff Regulations, only periods of service completed as an official cannot be affected by the general principle of equal treatment. According to case-law and in particular the judgments in Chetcuti v Commission (C‑16/07 P, EU:C:2008:549, paragraph 40) and Wasmeier v Commission (T‑381/00, EU:T:2002:190, paragraph 122), no discrimination exists where officials are treated differently from members of the temporary staff, since the definition of each of those categories corresponds to legitimate requirements of the administration and the nature of the duties, permanent or temporary, which it is required to perform.
39 Furthermore, the Council contends that the approach adopted in the judgment in Rosado Santana (EU:C:2011:557) cannot be applied by analogy to the present case.
40 First of all, the Council notes that the judgment in Rosado Santana (EU:C:2011:557) concerns the interpretation of a directive which was to be applied in a Member State and that a directive may be relied on against an institution only indirectly, in the situations described in the judgment in Aayhan and Others v Parliament (F‑65/07, EU:F:2009:43, paragraphs 113 to 116). However, Clause 4 of the Framework Agreement does not relate to any of those situations. In particular, Clause 4 of the Framework Agreement, as implemented by Directive 1999/70, does not constitute the expression of a general principle of law and, as the wording of Article 45 of the Staff Regulations is clear, there is no need to refer to the directive in order to determine the meaning of that provision.
41 Next, the Council contends that there is a fundamental difference between the applicant’s situation and that of Mr Rosado Santana, namely that the latter continued to come under the same basic legal regime, since he was an ‘interim civil servant’ before becoming a ‘career civil servant’, whilst the applicant was covered by two separate regimes in turn, namely the CEOS, as a member of the temporary staff, and then the Staff Regulations, as an official.
42 In its response to the measures of organisation of procedure, the Council explained its position in the light of the order in Rivas Montes (C‑178/12, EU:C:2013:150). According to the Council, it follows from that order that Clause 4 of the Framework Agreement cannot be relied on as a basis for a plea that Article 45 of the Staff Regulations is unlawful. That clause concerns discrimination against workers having a fixed-term employment relationship solely on the ground of the length of that relationship, whereas, in the present case, the difference in treatment between members of the temporary staff and officials is based on the legal nature of their employment relationship with EU institutions.
43 If the approach adopted in the judgment in Rosado Santana (EU:C:2011:557) were to be applied by analogy to the European Union civil service, the Council contends that the legitimate requirements of the administration and the nature of the duties, permanent or temporary, which it is required to perform would constitute objective grounds for not taking into account, for the purposes of the promotion exercise, periods of service completed by the applicant as a member of the temporary staff.
44 According to the Commission, the Tribunal should declare the plea of illegality inadmissible of its own motion, since that plea was not raised in the complaint.
45 As regards the merits, the Commission supports all the Council’s arguments, stressing the radically different nature of the status of a member of the temporary staff from that of an official.
46 In particular, the Commission contends that the fact that the applicant carried out the same duties as a member of the temporary staff as those assigned to her after her appointment as a probationary official has not the slightest relevance. The applicant’s argument, in the Commission’s view, attributes too much importance to purely random factual elements and would give an unjustified advantage to staff who have continued to carry out the same duties, first as members of the temporary staff and then as officials, over multi-skilled staff.
47 In its statement in intervention the Court of Auditors, whilst supporting the Council’s arguments, argues, in essence, that Clause 4 of the Framework Agreement cannot be relied on against institutions of the European Union in a case where seniority acquired by an official when a member of the temporary staff is not taken into account for the purposes of applying Article 45 of the Staff Regulations. It contends that such a situation does not constitute either a breach of the principle of non-discrimination or abuse arising from the use of successive fixed-term employment contracts or relationships and that in any event the applicant has not claimed there was such abuse.
– Findings of the Tribunal
48 The Tribunal will examine first the question whether the Council misconstrued the scope of Article 45 of the Staff Regulations by interpreting it as not allowing it to take into account seniority acquired by the applicant as a member of the temporary staff in the calculation of the two years’ seniority in grade she needed to demonstrate in order to be eligible for promotion. The question of the lawfulness of Article 45 of the Staff Regulations, raised by the applicant in the alternative, is relevant in the present case only if the Council did not misconstrue that provision.
49 It is settled case-law that, in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (judgment in Hoštická and Others, C‑561/13, EU:C:2014:2287, paragraph 29).
50 In the present case, Article 45 of the Staff Regulations provides that promotion is to be ‘exclusively by selection from among officials who have completed a minimum of two years in their grade’. By using the expression ‘two years in their grade’, including the possessive pronoun ‘their’, which refers to ‘officials’, the wording of that provision indicates that the appointing authority must take into account only time completed in a grade as an official.
51 That literal interpretation of Article 45 of the Staff Regulations is supported by an analysis of the Staff Regulations as a whole. It appears that, according to the legislature, there is no legal continuity in the career of a member of the temporary staff who becomes an official (see, to that effect, judgments in Bellantone v Court of Auditors, F‑85/06, EU:F:2007:171, paragraph 51; Toronjo Benitez v Commission, EU:F:2008:25, paragraph 87, and order in Prieto v Parliament, F‑42/07, EU:F:2011:159, paragraph 61).
52 In that regard, the Tribunal notes that Article 34 of the Staff Regulations provides that ‘[o]fficials shall serve a nine-month probationary period before they can be established’. That provision does not differentiate between staff who have been appointed as probationary officials after working as members of the temporary staff and other staff even if they have performed the same functions under both regimes. If the applicant’s argument of legal continuity were well-founded such a provision would serve no purpose for appointed officials who have already worked as members of the temporary staff.
53 Furthermore, where the legislature intended to take into account periods of service completed by a staff member as a member of the temporary staff in order to derive consequences from it for his career as an official, it did so expressly. For example, the third paragraph of Article 32 of the Staff Regulations provides that ‘[m]embers of the temporary staff graded in accordance with the grading criteria adopted by the appointing authority of each institution shall retain the seniority in the step acquired in that capacity if they are appointed officials in the same grade immediately following the period of temporary service’, a provision which derogates from the first paragraph of Article 32, under which an official is to be recruited at the first step in his grade. In the same way, the second paragraph of Article 40 of the CEOS provides that ‘[a]ny period of service on the temporary staff of the Union shall be taken into account for the purpose of calculating years of pensionable service as provided in Annex VIII to the Staff Regulations’.
54 The Council did not therefore commit any error in interpreting Article 45 of the Staff Regulations as meaning that, in the context of the promotion procedure, only seniority in grade acquired as an official can be taken into account, especially since the CEOS do not in any event provide that that article applies in any way to the situation of members of the temporary staff.
55 The claim that the Council misconstrued Article 45 of the Staff Regulations must therefore be rejected and the Tribunal must examine the plea of illegality raised by the applicant in the alternative, which alleges that by not allowing periods of service that an official has completed as a member of the temporary staff to be taken into account Article 45 of the Staff Regulations infringes Clause 4 of the Framework Agreement.
56 In the circumstances of the present case and in the interests of procedural economy, the merits of that plea of illegality must be examined without first ruling on its admissibility, that plea being, in any event and for the reasons set out below, unfounded (judgment in AT v EACEA, F‑113/10, EU:F:2012:20, paragraph 49).
57 First of all, it is necessary to determine whether Clause 4 of the Framework Agreement is applicable in the present case and hence whether a plea that Article 45 of the Staff Regulations is unlawful can be based on a breach of that clause.
58 The Tribunal notes that, according to case-law, the provisions of Directive 1999/70 and of the Framework Agreement annexed thereto cannot be treated, as such, as imposing any obligations on the institutions in their relations with their staff (judgment in Aayhan and Others v Parliament, EU:F:2009:43, paragraph 111).
59 However, they may, inter alia, be indirectly applicable to an institution if they constitute the expression of a general principle of EU law that it must then apply as such (judgments in Adjemian and Others v Commission, T‑325/09 P, EU:T:2011:506, paragraph 56; Aayhan and Others v Parliament, EU:F:2009:43, paragraph 113, and AI v Court of Justice, F‑85/10, EU:F:2012:97, paragraph 134).
60 Clause 4(1) of the Framework Agreement prohibits, with regard to employment conditions, less favourable treatment of fixed-term workers as compared with permanent workers solely because they are employed for a fixed term, unless different treatment is justified on objective grounds. Clause 4(4) lays down the same prohibition as regards period-of-service qualifications relating to particular conditions of employment (judgments in Rosado Santana, EU:C:2011:557, paragraph 64, and Valenza and Others, C‑302/11 to C‑305/11, EU:C:2012:646, paragraph 39).
61 The principles of non-discrimination and equal treatment, of which Clause 4(1) of the Framework Agreement is an application, are fundamental principles of the EU legal order (judgment in Aayhan and Others v Parliament, EU:F:2009:43, paragraph 101) in the light of which Article 45 of the Staff Regulations must be assessed.
62 It is appropriate, however, to state that, when ruling on the application of the Framework Agreement in the context of disputes between officials and the administrative authorities of Member States, the Court has held that possible differences in treatment between staff covered by the Staff Regulations and contract staff are not covered by the principle of non-discrimination contained in the Framework Agreement, since such differences in treatment are based not on the fixed-term or permanent nature of the employment relationship but rather on the statutory or contractual nature of that relationship (order in Rivas Montes, EU:C:2013:150, paragraphs 44 and 45).
63 In the present case, clearly, Article 45 of the Staff Regulations does not provide for any difference in treatment between fixed-term workers and permanent workers. The only factor taken into consideration by Article 45 of the Staff Regulations is the legal nature of the employment of the workers concerned, which gives rise to a de facto difference in treatment between seniority acquired by officials and seniority acquired by other staff. According to case-law, such a difference in treatment is not covered by the principle of non-discrimination contained in the Framework Agreement (see order in Rivas Montes, EU:C:2013:150, paragraphs 44 and 47).
64 The applicant cannot therefore base a plea of illegality of Article 45 of the Staff Regulations on a breach of Clause 4(1) of the Framework Agreement or of the principle of equal treatment of which that clause is an application.
65 In any event, the applicant cannot rely on the principles set out by the Court of Justice in its judgment in Rosado Santana (EU:C:2011:557). The applicant in the main proceedings in that case was seeking essentially to challenge a difference in treatment arising when account was taken, for the purposes of an internal selection procedure, of periods of service as a career civil servant and not of service as an interim civil servant (judgment in Rosado Santana, EU:C:2011:557, paragraph 42). In the present case, the applicant disputes the lawfulness of the difference in treatment between officials, whose seniority is taken into account for the purposes of applying Article 45 of the Staff Regulations, and members of the temporary staff, irrespective of whether they are employed under permanent or fixed-term contracts.
66 The first plea must therefore be rejected in its entirety as unfounded.
The second plea: breach of the principle of equal treatment
67 The applicant observes that the list of officials who were promoted contains the names of ‘several officials’ who, like she, were translators who were members of the temporary staff and who had the same seniority ‘in the post’, but who were established before she was. In drawing up the list of officials who were promoted in those circumstances the appointing authority did not therefore, she argues, carry out a comparative examination which, according to case-law, must be conducted with care and impartiality, in the interests of the service and in accordance with the principle of equal treatment, and, in particular, it acted in breach of the principle of equal treatment.
68 However, the applicant does not state in her application who are the officials who were promoted as the result of a comparative examination flawed by a breach of the principle of equal treatment and does not supply the Tribunal with any evidence enabling it to determine the accuracy of her arguments. The applicant does offer ‘to disclose’ the names of those officials if requested to do so by the Tribunal. However, such an offer is insufficient to rectify the lack of detail in the application.
69 It follows that the second plea must be rejected as inadmissible.
The third plea: breach of the duty to have regard for the welfare of officials
70 The applicant contends that, in adopting the contested decision, the appointing authority failed to take her interests into account and, thus, breached its duty to have regard for the welfare of an official.
71 The Tribunal notes that the third plea is not raised in the complaint, nor is it related to any of the pleas or arguments contained in the complaint, which merely alleges a manifest error of assessment and breach of the principle of non-discrimination between fixed-term workers and permanent workers.
72 The third plea must therefore be rejected as inadmissible, since it was raised for the first time in the application in breach of the rule of correspondence between a complaint, within the meaning of Article 91(2) of the Staff Regulations, and the ensuing application, which states that pleas raised directly against an act adversely affecting a member of staff before the Courts of the European Union must, if they are not to be declared inadmissible, have already been raised in the context of the pre-litigation procedure, in order that the appointing authority or the authority empowered to conclude contract of employment may be in a position to know the criticisms which the official concerned makes against the contested decision (judgment in Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, paragraph 71).
73 The claim for annulment directed against the contested decision must therefore be rejected in its entirety.
The claim for damages
74 First, the applicant contends that she suffered material damage since, if the Council had included her in the list of officials eligible for promotion, in view of the average length of service in the grade mentioned in the Staff Regulations, her length of service as a translator within the Council, the favourable comments contained in her staff reports, and the fact that some of the officials performing the same functions as the applicant had been promoted, she would have had a 90% chance of promotion. The applicant therefore assesses the amount of damages at EUR 30 000, in view of the delay she suffered in her career progress and the impact that delay had on her salary and pension rights.
75 Secondly, the applicant submits that she has suffered non-material damage which would not be compensated for solely by the annulment of the contested decision since, even if it is possible to take all the steps required to rectify the illegality committed, it cannot be ruled out that the Council would merely include the applicant’s name in the list of officials eligible for promotion without giving effect to the annulling judgment in any other way. The applicant assesses that non-material damage at EUR 10 000.
76 The Tribunal notes that, according to settled case-law, where the damage on which an applicant relies arises from the adoption of a decision whose annulment is sought, the rejection of the claim for annulment entails, as a matter of principle, the rejection of the claim for damages, as those claims are closely linked (judgment in Arguelles Arias v Council, F‑122/12, EU:F:2013:185, paragraph 127 and the case-law cited).
77 In the present case, it must be noted that the material and non-material damage to which the applicant refers arises from the decision of the Council not to include her in the list of officials eligible for promotion. However, since the claim seeking annulment of the contested decision was rejected without the Tribunal finding any irregularity in the decision-making conduct of the Council, the applicant’s claim for damages must be rejected.
78 It follows from all the foregoing that the action must be dismissed in its entirety.
Costs
79 Pursuant to Article 101 of the Rules of Procedure, subject to the other provisions of Chapter 8 of Title 2 of those rules, the unsuccessful party is to bear his own costs and is to be ordered to pay the costs incurred by the other party if they have been applied for in the other party’s pleadings. Under Article 102(1) of those rules, if equity so requires, the Tribunal may decide that an unsuccessful party is to bear his own costs, but is to pay only part of the costs incurred by the other party, or even that he is not to be ordered to pay any costs. Lastly, in accordance with Article 103(4) of the Rules of Procedure, the institutions which have intervened in the proceedings are to bear their own costs.
80 It is apparent from the grounds set out in the present judgment that the applicant’s action has been unsuccessful. Furthermore, in its pleadings the Council has expressly requested that the applicant be ordered to pay the costs. Since the circumstances of the case do not warrant the application of the provisions of Article 102(1) of the Rules of Procedure, the applicant must bear her own costs and be ordered to pay the costs incurred by the Council.
81 Lastly, under the first sentence of Article 103(4) of the Rules of Procedure, the Commission and the Court of Auditors must bear their own costs.
On those grounds,
THE CIVIL SERVICE TRIBUNAL (Second Chamber)
hereby:
1. Dismisses the action;
2. Declares that Ms Todorova Androva is to bear her own costs and orders her to pay those incurred by the Council of the European Union;
3. Declares that the European Commission and the Court of Auditors of the European Union are to bear their own costs.
Bradley | Kreppel | Rofes i Pujol |
Delivered in open court in Luxembourg on 29 April 2015.