ORDER OF THE CIVIL SERVICE TRIBUNAL
(First Chamber)

27 September 2011


Case F‑75/07


Colin Brown

and

Alberto Volpato

v

European Commission

(Civil service – Officials – Promotion – 2006 promotion exercise – New career structure – Extension of career by the introduction of new grades with no equivalents in the old Staff Regulations – Application of Article 45 of the Staff Regulations, Annex XIII to the Staff Regulations and the GIP applicable from 2005 – Principle of equal treatment – Retroactive effect of promotion decisions to a date prior to 1 May 2004 – Transitional measures – Action manifestly bound to fail)

Application:      brought under Articles 236 EC and 152 EA, in which Mr Brown and Mr Volpato seek, principally, annulment of the decision by which they were promoted to grade A*9 and not to grade A*10 in the 2006 promotion exercise.

Held:      The action is dismissed. The applicants and the Commission are ordered to bear their own costs. The Council, which intervened, is ordered to bear its own costs.

Summary

1.      Procedure – Decision taken by way of reasoned order – Conditions – Action manifestly inadmissible or manifestly lacking any legal basis – Scope

(Rules of Procedure of the Civil Service Tribunal, Art. 76)

2.      Officials – Promotion – Applicable rules – 2004 promotion exercise

(Staff Regulations, Art. 45; Annex XIII, Art. 6, second para.; Council Regulation No 723/2004, 37th recital)

3.      Officials – Promotion – Adoption of a new promotion system – Move from the old to the new system

(Staff Regulations, Art. 45)

4.      Officials – Promotion – Applicable rules – Principle of continuity of career – Principle not enshrined in Union law

5.      Officials – Staff Regulations – Extension by analogy of the benefit of a provision of the Staff Regulations – Conditions

(Staff Regulations, Art. 45; Annex XIII, Art. 6, second para.)

6.      Officials – Promotion – Complaint by a candidate not promoted – Rejection decision – Obligation to state reasons

(Staff Regulations, Arts 25, second para., 45 and 90(2))

7.      Officials – Actions – Interest in bringing proceedings – Plea of breach of essential procedural requirements – Administration’s mandatory duty

(Staff Regulations, Art. 91)

1.      Under Article 76 of the Rules of Procedure of the Civil Service Tribunal, where an action is, in whole or in part, manifestly inadmissible or manifestly lacking any foundation in law, the Tribunal may, by reasoned order, give a decision on the action without taking further steps in the proceedings. The situation referred to by that provision also includes any action that is manifestly bound to fail for reasons relating to the substance of the case.

(see paras 36, 37)

2.      Where a legislative amendment is made to the Staff Regulations, given that staff already employed may be able to rely on legitimate expectations and rights acquired under rules of the Staff Regulations in force prior to their amendment, it may be necessary for the legislature to adopt transitional measures.

When it comes to determining the career structure under which a decision to promote an official in the promotion exercise following the entry into force of the new Staff Regulations on 1 May 2004 has its effects, the second paragraph of Article 6 of Annex XIII to the Staff Regulations draws a distinction between the date when the decision was adopted and the date when it takes effect, and uses the latter date. According to that provision, for promotions taking effect prior to 1 May 2004, the higher grade referred to in Article 45 of the new Staff Regulations must be determined not in accordance with the career structure resulting from the new Staff Regulations, but in accordance with that laid down by the old Staff Regulations. The provision is thus a transitional provision ensuring for the officials concerned that the old career structure applies to promotions taking effect prior to 1 May 2004.

As for the scope of the second paragraph of Article 6 of Annex XIII to the Staff Regulations, that provision may apply only to promotion decisions taken under the 2004 promotion exercise and taking effect prior to 1 May 2004, and it is therefore not applicable to officials who, on 30 April 2004, had not been promoted under the 2004 exercise or, in any event, had not been promoted with effect from before 1 May 2004.

In that respect, since a promotion exercise is an annual exercise which always produces retroactive effects confined to the exercise in question, where an institution has decided to give retroactive effect to certain promotion decisions so that they take effect on a date prior to 1 May 2004, that decision is not unlawful in so far as it has its legal basis in the second paragraph of Article 6 of Annex XIII of the Staff Regulations.

(see paras 56, 59, 60, 113)

3.      Officials eligible for promotion to a higher grade on 30 April 2004, before the new Staff Regulations came into force, but who were actually promoted under the 2006 promotion exercise, are not in the same legal and factual situation as officials in the same grade who were eligible for promotion to a higher grade on 30 April 2004 and were actually promoted under the 2004 promotion exercise.

In accordance with the legal rules governing the advancement of officials, it follows from the assessment of merits that the appointing authority is obliged to ensure, for each annual promotion exercise, that, following that assessment, only those officials eligible for promotion who are the most consistently deserving are promoted. In that respect, there are fundamental differences between the factual and legal position of officials regarded by the appointing authority as less consistently deserving and that of their colleagues who are actually promoted. The former are not in the same group of persons as their promoted colleagues and cannot demand equal treatment.

Moreover, since the Staff Regulations do not delegate any powers to the institutions to adopt transitional measures derogating, in the 2006 promotion exercise, from the immediate application of the new career structure, an institution’s failure to adopt such measures does not infringe the principles of equal treatment and entitlement to reasonable career prospects or the protection of legitimate expectations.

(see paras 72-74, 93, 94)

4.      European Union law does not expressly enshrine either a principle of continuity of career or a principle of entitlement to a career. However, the case-law has laid down a principle of entitlement to reasonable career prospects as a special form of the principle of equal treatment applicable to officials.

(see paras 77, 78, 117)

See:

5 March 2008, F‑33/07 Toronjo Benitez v Commission, paras 87 and 88

5.      One of the conditions for a provision to apply by analogy is that the body of rules governing the persons concerned must contain a gap which is incompatible with a general principle of Union law and which could be filled by the application by analogy envisaged.

Consequently, in so far as it is not established that Article 45 or Annex XIII of the Staff Regulations contains a gap that is incompatible with a general principle of Union law, there is no cause to apply the second paragraph of Article 6 of Annex XIII to the Staff Regulations by analogy to promotion decisions adopted under promotion exercises after the 2004 promotion exercise.

Moreover, it must be taken into account that the legal link between an official and the administration is based upon the Staff Regulations and not upon a contract, and that the rights and obligations of officials may, subject to compliance with the requirements of Union law, be altered at any time by the legislature.

(see paras 95-97)

See:

4 March 2010, C‑496/08 P Angé Serrano, para. 82

15 February 2011, F‑81/09 Marcuccio v Commission, para. 55, on appeal before the General Court of the European Union, Case T‑238/11 P

6.      Although the appointing authority is not obliged to give reasons for its promotion decisions to officials who have not been promoted, it is obliged to state the reasons for its decision rejecting a complaint lodged by an official who has not been promoted. The administration satisfies the requirement to give reasons for administrative decisions where the official is able to assess the merits of the act adversely affecting him and whether it is appropriate to bring an action before the Tribunal, and where he is put in a position to check the legality of the act for himself.

(see paras 124, 125)

See:

2 June 2005, T‑177/03 Strohm v Commission, para. 53

10 September 2009, F‑124/07 Behmer v Parliament, para. 58 and the case-law cited therein

7.      An official does not have any legitimate interest in seeking the annulment for a procedural defect, and in particular for a breach of the obligation to state reasons, of a decision where the administration has no scope for the exercise of discretion but is bound to act as it has done, since the annulment of the contested decision will inevitably lead to the adoption of an identical decision, in essence, to the decision annulled.

(see para. 132)

See:

23 April 2002, T‑372/00 Campolargo v Commission, para. 62