JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(First Chamber)

8 February 2012

Case F‑23/11

AY

v

Council of the European Union

(Civil service — Officials — Promotion — 2010 promotion exercise — Consideration of comparative merits — Failure to take into account further training and certification — Error of law)

Application:      brought under Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, in which AY seeks, in particular, annulment of the Council’s decision not to promote him to grade AST 9 in the 2010 promotion exercise, and compensation for the harm allegedly suffered.

Held:      The decision of the Council not to promote the applicant to grade AST 9 in the 2010 promotion exercise is annulled. There is no need to adjudicate on the applicant’s alternative heads of claim. The remainder of the applicant’s action is dismissed. The Council is ordered to pay all the costs.

Summary

1.      Officials — Promotion — Consideration of comparative merits — Obligation on the appointing authority — Burden of proof

(Staff Regulations, Art. 45)

2.      Officials — Promotion — Candidates eligible for promotion — Officials who have passed the certification tests — Entitlement to promotion — None

(Staff Regulations, Arts 45 and 45a)

3.      Officials — Promotion — Consideration of comparative merits — Administration’s discretion — Elements that may be taken into consideration — Passing of certification tests

(Staff Regulations, Arts 24a, 43, 45(1) and Art. 45a)

4.      Officials — Actions — Actions for damages — Annulment of the illegal act in dispute — Whether appropriate reparation for non-material damage — Limits

(Staff Regulations, Art. 91)

1.      Where there is a sufficiently consistent body of evidence substantiating the argument of an official who has not been promoted that no real examination of the comparative merits of the candidates took place, it is for the institution to show, by objective evidence amenable to judicial review, that it observed the guarantees given by Article 45 of the Staff Regulations to officials who are eligible for promotion and considered the candidates’ comparative merits.

(see para. 25)

See:

30 January 1992, T‑25/90 Schönherr v ESC, para. 25

2.      The mere fact that an official in the AST function group was selected to follow a training programme and that he passed the certification tests provided for in Article 45a of the Staff Regulations for access to function group AD does not, in itself, confer on him any entitlement to promotion to a higher grade in the AST function group, or even any automatic priority.

(see para. 26)

3.      The appointing authority cannot, without infringing Article 45(1) of the Staff Regulations, fail to take any account of the certification of officials when considering their comparative merits in the context of a promotion exercise.

First of all, the certification of officials in the AST function group by definition comes under the further training and instruction of those officials within the meaning of Article 24a of the Staff Regulations. Secondly, the appointing authority must, pursuant to Article 24a of the Staff Regulations, take account of the training and instruction completed by an official for the purposes of promotion in his career. That obligation is reflected in particular in the content of the periodical reports on ability, efficiency and conduct in the service drawn up pursuant to Article 43 of the Staff Regulations. Thirdly, promotion is one of the elements in the progress of an official’s career. In a promotion exercise, therefore, the appointing authority is obliged to take into consideration the further training and instruction completed by the officials eligible for promotion as one component of their merits. Those merits are in particular reflected in the periodical report, which is one of the three elements expressly referred to in Article 45(1) of the Staff Regulations as having to be taken into consideration when considering comparative merits for the purposes of promotion.

It follows that the appointing authority must not fail to take account, when considering the comparative merits of officials eligible for promotion, of the fact that an official was selected to take part in a training programme with a view to certification, and that he passed the tests showing that he successfully completed that programme. That obligation is particularly important in the case of a training programme for officials in the AST function group which gives access to posts in function group AD, participation in that programme being reserved, according to the conditions laid down in Article 45a of the Staff Regulations and particularly the first paragraph of Article 45a(2), solely for AST officials ‘selected’ on the basis of their annual reports and their level of education and training, and taking account of the needs of the service.

(see paras 27-32)

4.      The annulment of an unlawful act of the administration may in itself constitute appropriate and, in principle, sufficient reparation for the non-material damage which the official may have suffered.

However, the annulment of such an act cannot constitute full reparation for the non-material damage if that act contains an assessment of the abilities and conduct of the person concerned which is capable of offending him, where it has no practical effect, or where the illegality committed is particularly serious.

(see paras 41, 42)

See:

14 July 2011, F‑98/07 Petrilli v Commission, para. 28, and the case-law cited therein