JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Full Court)

5 May 2010

Case F-53/08

Vincent Bouillez and Others

v

Council of the European Union

(Civil service — Officials — Promotion — 2007 promotion exercise — Interest in bringing proceedings — Promotion decision — List of promoted officials — Consideration of comparative merits — Criterion of the level of responsibilities exercised — Application for annulment of the promotion decisions — Balance of interests)

Application: brought under Articles 236 EC and 152 EA, in which Mr Bouillez, Mr Van Neyghem and Ms Wagner-Leclercq seek annulment, first, of the decisions whereby the appointing authority refused to promote them to grade AST 7 under the 2007 promotion exercise and, second, in so far as necessary, of the decisions promoting to that grade under that exercise the officials who had performed tasks at a level of responsibility lower than theirs, whose names are on the list of promoted officials published on 16 July 2007 by Staff Note No 136/07.

Held: The decisions whereby the appointing authority refused to promote the applicants to grade AST 7 under the 2007 promotion exercise are annulled. The remainder of the claims in the action are dismissed. The Council is ordered to pay the costs. Ms Eliza Niniou, Ms Maria-Béatrice Postiglione Branco, Ms Maria De Jesus Cabrita and Ms Marie‑France Liegard, officials of the Council and interveners for the Council, are to bear their own costs.

Summary

1.      Officials — Promotion — Consideration of comparative merits

(Staff Regulations, Art. 45(1))

2.      Officials — Actions — Interest in bringing proceedings — Action directed against a decision to promote another official — Admissibility

(Staff Regulations, Art. 91)

3.      Officials — Actions — Judgment annulling a measure — Effects — Annulment of a decision not to promote

(Staff Regulations, Art. 91)

1.      The appointing authority has a wide discretion in the sphere of promotion and the express reference, in Article 45(1) of the Staff Regulations, to the criteria to be taken into account when considering the comparative merits of candidates for promotion shows the particular importance which the legislature attached to their being taken into account. Furthermore, the administration is under an obligation, when it considers those comparative merits in application of that provision, to examine carefully and impartially all the elements relevant to that assessment.

The level of responsibilities exercised by the officials eligible for promotion is one of the three relevant elements that the administration must take into account. Admittedly, the fact of belonging to the same function group and the same grade presupposes the exercise of equivalent duties. The use of the expression ‘where appropriate’ in Article 45(1) of the Staff Regulations confirms that in most cases, in view of that presumption of equivalence of the level of responsibilities exercised by officials in the same grade, the criterion of the level of responsibilities exercised does not constitute an element enabling a distinction to be drawn between the merits of the candidates for promotion. However, that presumption is not irrebuttable, especially since the former categories B and C were merged in the single assistants’ function group. That merger had the automatic consequence of extending the range of responsibilities that might be exercised by an official in function group AST, as shown, moreover, by the table in part A of Annex I to the Staff Regulations. There may therefore exist, as regards the level of responsibilities, appreciable differences between the various functions carried out by officials in the same function group. Nor do the Staff Regulations establish any correspondence between the functions carried out and a particular grade. On the contrary, they allow grade and function to be separated. That disconnection between grade and the level of functions carried out, moreover, is consistent with the wish of the legislature and with a choice taken by the institutions with the aim of facilitating the management of their staff.

It cannot therefore be inferred from such a presumption of equivalence of responsibilities between officials in the same grade that the administration is not required to examine the criterion relating to the level of responsibilities exercised, by ascertaining precisely whether that criterion is capable of revealing differences as to the merits of the officials concerned. Accordingly, the expression ‘where appropriate’ cannot be interpreted as meaning that it authorises the administration to exclude a priori the taking into account of the criterion of the level of responsibilities exercised when it considers the comparative merits. On the contrary, the legislature meant to indicate that the level of responsibilities exercised by officials eligible for promotion was an element that could be relevant in such an analysis.

(see paras 49, 51-56)

See:

T-56/07 P Commission v Economidis [2008] ECR-SC I‑B‑1‑31 and II‑B‑1‑213, paras 58 to 60; T-473/07 P Commission v Berrisford [2009] ECR-SC I‑B‑1‑17 and II‑B‑1‑85, para. 42

F‑107/06 Berrisford v Commission [2007] ECR-SC I‑A‑1‑285 and II‑A‑1‑1603, para. 71; F-97/05 Buendía Sierra v Commission [2008] ECR-SC I‑A‑1‑15 and II‑A‑1‑49, para. 62

2.      While it is true that an official cannot claim a right to be promoted, he nevertheless has an interest in disputing a decision to promote another official to a grade for which he is eligible to apply and against which he lodged a complaint which was rejected by the administration.

(see para. 80)

See:

T-328/01 Robinson v Parliament [2004] ECR-SC I‑A‑5 and II‑23, paras 32 and 33

3.      Where the act that should be annulled benefits a third party, which is the case of an entry on a reserve list, a promotion decision or a decision making an appointment to a vacant post, the Union judicature must first determine whether annulment would constitute an excessive penalty for the irregularity committed.

In that regard, it should be noted that the inferences which the courts of the European Union draw from an irregularity are not the same in the case of a competition and in the case of promotion. The annulment of all the results of a competition constitutes, in principle, an excessive penalty for the irregularity committed, irrespective of the nature of the irregularity and the extent to which it affects the results of the competition.

On the other hand, where promotion is concerned, the courts of the European Union undertake a case-by-case examination. In the first place, they take into consideration the nature of the irregularity. If the irregularity found is merely a procedural defect affecting the situation of just one official, they consider a priori that such an irregularity does not justify invalidating the promotion decisions, as such annulment constitutes an excessive penalty. On the other hand, where there is a substantive defect, such as an error of law which vitiates the entire consideration of comparative merits, the courts of the European Union generally annul the promotion decisions.

In the second place, the courts of the European Union balance the interests involved, taking into consideration, first of all, the interest which the officials concerned have in being reinstated in law and in full in their rights by means of an effective reconsideration of the merits duly taking into account the legally applicable criteria, in not being required to compete in future with officials who have been improperly promoted and in not seeing a subsequent repetition of the irregularity found by the courts. Next, the courts of the European Union take account of the interests of the illegally promoted officials. These, admittedly, have no vested right to retain their promotion, since the promotion decisions are vitiated by illegality and were challenged within the prescribed periods. None the less, the courts take into consideration the fact that these officials were able to rely in good faith on the lawfulness of the decisions promoting them, especially if they had been given favourable assessments by their superiors that would objectively justify promotion. The courts are all the more sensitive to the interests of these officials when they form a significant group. Last, the courts of the European Union examine the interests of the service, that is to say, in particular, respect for legality, the budgetary consequences of the failure to annul illegal decisions, possible difficulties in complying with the judgment to be delivered, any adverse effects on the continuity of the service and the danger of a deterioration in the social atmosphere within the institution.

After having taken the various interests involved into consideration, the courts of the European Union decide, on a case-by-case basis, whether or not to annul the promotion decisions. Where they eventually take the view that annulment of the promotion decisions would constitute an excessive penalty for the illegality found, they may, where appropriate, in order to ensure, in the interest of the applicant, that the judgment annulling the decision not to promote him has practical effect, make use of their unlimited jurisdiction in disputes of a pecuniary nature and may, even of their own motion, order the institution to pay compensation.

(see paras 82-90)

See:

24/79 Oberthür v Commission [1980] ECR 1743, paras 11, 13 and 14; 293/87 Vainker v Parliament [1989] ECR 23

T‑32/89 and T‑39/89 Marcopoulos v Court of Justice [1990] ECR II‑281; T‑68/91 Barbi v Commission [1992] ECR II‑2127, para. 36; T‑44/91 Smets v Commission [1994] ECR-SC I‑A‑97 and II‑319; T-144/95 Michaël v Commission [1996] ECR-SC I‑A‑529 and II‑1429; T‑202/99 Rappe v Commission [2000] ECR-SC I‑A‑201 and II‑911; Robinson v Parliament, T‑281/01 Huygens v Commission [2004] ECR-SC I‑A‑203 and II‑903; T-311/04 Buendía Sierra v Commission [2006] ECR II‑4137, para. 349