Language of document : ECLI:EU:F:2015:46

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

18 May 2015

Case F‑44/14

Jaana Pohjanmäki

v

Council of the European Union

(Civil service — Officials — Promotion — Consideration of comparative merits — Respective roles of the appointing authority and of the ACP — Absence of staff reports — Failure by members of the ACP to consult staff reports — Compatibility of the functions of rapporteur in the ACP and of former reporting officer — Manifest error of assessment — Seniority in grade — Level of responsibilities exercised — Duty of care)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Ms Pohjanmäki brought the present action seeking annulment of the decision of the Council of the European Union not to promote her to grade AD 13 in the 2013 promotion year, and an order that the Council compensate her for the non-material harm allegedly suffered as a result of that decision.

Held:      The action is dismissed. Ms Pohjanmäki is to bear half of her own costs. The Council of the European Union is to bear its own costs and is ordered to pay half of the costs incurred by Ms Pohjanmäki.

Summary

1.      Officials — Promotion — Consideration of comparative merits — Procedures — Taking account of staff reports — Incomplete and irregular personal file — Consequences

(Staff Regulations, Art. 45)

2.      Officials — Promotion — Consideration of comparative merits — Procedures — Taking account of staff reports — Prior consideration by Advisory Committees on Promotion — Procedures — Consideration of staff reports by one single member of an Advisory Committee on Promotion — Lawfulness

(Staff Regulations, Art. 45)

3.      Officials — Promotion — Consideration of comparative merits — Procedures — Taking account of staff reports — Prior consideration by Advisory Committees on Promotion — Procedures — Examination of staff reports by a member of an Advisory Committee on Promotion who was the reporting officer of the official concerned — Lawfulness

(Staff Regulations, Art. 45)

4.      Actions brought by officials — Prior administrative complaint — Rejection decision — Substitution of grounds for the contested decision

(Staff Regulations, Arts 45, 90 and 91)

5.      Officials — Promotion — Criteria — Merits — Taking account of seniority in grade — Secondary consideration — Taking account of long-term consistency of merits — Scope

(Staff Regulations, Art. 45)

6.      Officials — Promotion — Consideration of comparative merits — Administration’s discretion — Judicial review — Limits — Manifest error of assessment — Concept

(Staff Regulations, Art. 45)

7.      Officials — Promotion — Consideration of comparative merits — Administration’s discretion — Factors which may be taken into consideration — Level of responsibilities exercised

(Staff Regulations, Arts 5 and 45)

8.      Officials — Promotion — Complaint by a candidate who has not been promoted — Rejection decision — Obligation to state reasons — Scope — Inadequate statement of reasons — Rectification in the course of the judicial proceedings — Conditions

(Staff Regulations, Arts 25 and 45)

1.      The fact that one candidate’s file is irregular and incomplete is not a sufficient ground for the annulment of a decision not to promote, unless it can be established that this was capable of having a decisive effect on the promotion procedure.

Thus, in the case of an irregularity consisting of a lack of information on an official’s performance during two periods covering a total of seven months, it has not been established that that irregularity may have had a decisive effect on the promotion procedure. The total period of seven months during which the official’s performance was not appraised in connection with his staff reports is very short compared with the period of eight years spent in the grade concerned, and the official has not demonstrated or even claimed that his merits during those seven months were so significant that the outcome of the consideration of comparative merits might have been different if those merits had been taken into account.

(see paras 41, 43, 44)

See:

Judgment in Sabbag Afota v Council, F‑9/11, EU:F:2011:196, paras 42 to 44

2.      Where the promotion system established by an institution allows a rapporteur to be appointed within each Advisory Committee on Promotion, whose role is to study the files and staff reports and report back on them to the Advisory Committee on Promotion, the fact that the staff reports on one of the officials eligible for promotion were consulted by only one member of the committee does not lead to the conclusion that the consideration of comparative merits as a whole was unlawful. Furthermore, given that the institution’s internal rules do not lay down any procedure or special formalities for the appointment of a rapporteur in an Advisory Committee on Promotion, the consultation of staff reports by one of the Committee’s members is sufficient to regard that member as having acted as rapporteur in the Committee.

(see para. 46)

3.      Where the promotion system established by an institution allows a rapporteur to be appointed within each Advisory Committee on Promotion, whose role is to study the files and staff reports and report back on them to the Advisory Committee on Promotion, and where the first assessor of one of the officials eligible for promotion is a member of an Advisory Committee on Promotion, that member must refrain from taking part in the discussion on the official concerned. However, there is no reason to extend the scope of the latter rule to include also the duties of rapporteur which the member in question is called on to perform within the Advisory Committee on Promotion, in the phase when the relevant files and reports are examined.

(see para. 49)

4.      The evolving nature of the pre-litigation procedure enables the administration, at the complaint stage, to review the contested measure in the light of new facts and points of law and, if necessary, to amend or supplement the grounds on the basis of which it was adopted.

(see para. 52)

See:

Judgment in Mocová v Commission, T‑347/12 P, EU:T:2014:268, paras 34, 35 and 45

Judgments in AZ v Commission, F‑26/10, EU:F:2011:163, para. 38, and BD v Commission, F‑36/11, EU:F:2012:49, para. 47

5.      Article 45 of the Staff Regulations requires that promotion must be exclusively by selection from among the most deserving of the officials who are eligible for promotion. Consequently, for the purpose of the promotion of an official, seniority in the grade and in the service may be applied as a criterion for promotion only as a secondary consideration, where he proves to have equal merits with other officials eligible for promotion.

The criterion of long-term consistency of merits is not separate from the three criteria listed in Article 45 of the Staff Regulations, but is directly covered by the first of them, relating to the staff reports on officials, and enables the appointing authority to strike a fair balance between the aim of ensuring rapid career progression for outstanding officials with an exceptionally high performance level, and the aim of ensuring a normal career for officials who have performed consistently well over a long period.

(see paras 57, 58)

See:

Judgment in Stols v Council, T‑95/12 P, EU:T:2014:3, paras 40 to 45

Judgments in Barbin v Parliament, F‑68/09, EU:F:2011:11, para. 91, and Nieminen v Council, F‑81/12, EU:F:2014:50, paras 43 and 44, on appeal before the General Court of the European Union, Case T‑464/14 P

6.      The appointing authority possesses, for the purpose of considering the comparative merits of officials who are candidates for promotion, a wide discretion and review by the Union judicature, in that context, must be confined to determining whether, regard being had to the various considerations which may 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. A court cannot therefore substitute its assessment of the qualifications and merits of the candidates for that of the appointing authority.

In that regard, an error is manifest where it is easily recognisable and can be readily detected, in the light of the criteria to which the legislature intended promotion decisions to be subject. Consequently, in order to establish that the administration committed a manifest error in assessing the facts such as to justify the annulment of a decision, the evidence, which it is for the applicant to adduce, must be sufficient to make the findings of the administration implausible. In other words, a plea alleging a manifest error must be rejected if, despite the evidence adduced by the applicant, the contested assessment may still be accepted as true or valid.

(see paras 61, 62)

See:

Judgments in AC v Council, F‑9/10, EU:F:2011:160, paras 22 to 24, and Nieminen v Council, EU:F:2014:50, para. 59

7.      According to the principle laid down in Article 5 of the Staff Regulations that the duties must be equivalent to the grade, officials and other staff in the same grade are supposed to hold posts involving equivalent responsibilities. Consequently, when considering the comparative merits of officials eligible for promotion, the administration must take account of the level of responsibilities exercised by such an official where they exceed those normally conferred on an official in his grade.

(see para. 66)

See:

Judgment in Merhzaoui v Council, F‑18/09, EU:F:2011:180, para. 59

8.      Although the appointing authority is not obliged to give reasons for its promotion decisions to candidates who have not been promoted, it is, however, obliged to state the reasons for its decision rejecting a complaint lodged by a candidate who has not been promoted against the decision not to promote him, the statement of reasons for that rejection being deemed to be the same as the statement of reasons for the decision against which the complaint was directed.

In that connection, the adequacy of the statement of reasons is to be assessed in the light of the fundamental elements of the arguments to which the institution replies. Since promotions are made by selection among the officials concerned, in accordance with Article 45 of the Staff Regulations, it is enough that the reasons given for the rejection of the complaint relate to the application of the conditions governing promotion laid down by law and the Staff Regulations to the official’s individual situation.

Moreover, provided that an initial statement of reasons has been provided by the appointing authority, further explanations may be provided in the course of the proceedings before the Tribunal.

(see paras 79, 80, 83)

See:

Order in Van Neyghem v Council, T‑113/13 P, EU:T:2013:568, para. 17

Judgments in AC v Council, EU:F:2011:160, para. 29; Sabbag Afota v Council, EU:F:2011:196, para. 65, and Bouillez and Others v Council, F‑11/11, EU:F:2012:8, para. 22