JUDGMENT OF THE GENERAL COURT (Tenth Chamber)
13 March 2024 (*)
(Civil service – Officials – Promotion – 2020 promotion exercise – Decision not to promote the applicant – Article 45 of the Staff Regulations – Consideration of comparative merits – Equal treatment – Manifest error of assessment – Obligation to state reasons – Liability)
In Case T‑531/21,
QN, represented by L. Levi and N. Flandin, lawyers,
applicant,
v
European Commission, represented by M. Brauhoff and L. Hohenecker, acting as Agents,
defendant,
THE GENERAL COURT (Tenth Chamber),
composed of O. Porchia, President, L. Madise and S. Verschuur (Rapporteur), Judges,
Registrar: V. Di Bucci,
having regard to the written part of the procedure,
having regard to the withdrawal of the request for a hearing submitted by the applicant and having therefore decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,
gives the following
Judgment
1 By his action based on Article 270 TFEU, the applicant, [confidential], (1) seeks, first, annulment of the European Commission’s decision not to include his name on the list, published on 12 November 2020, of officials promoted in the 2020 promotion exercise (‘the contested decision’) and, secondly, compensation in respect of the harm he claims to have suffered as a result of that decision.
Background to the dispute
2 That applicant, who was employed at Grade AD 8 at the time when the action was brought, has been an official at the Commission since the end of 2009 and works in the Taxation and Customs Union Directorate-General (DG).
The appraisal report in respect of 2019
3 On 14 April 2020, the applicant received his appraisal report in respect of 2019, in which his general performance was considered satisfactory and a need for improvement was observed.
4 On 4 June 2020, the applicant appealed against his appraisal.
5 On 5 June 2020, the appeal assessor, Director of the Taxation and Customs Union DG, confirmed the appraisal report in respect of 2019, following an interview with the applicant in the presence of a Staff Committee representative.
6 On 4 September 2020, the applicant submitted a complaint pursuant to Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) against the appraisal report in respect of 2019. On 22 December 2020, the appointing authority rejected the applicant’s complaint.
7 On 31 March 2021, the applicant lodged an action before the General Court seeking annulment of his appraisal report in respect of 2019, which was dismissed by judgment of 14 September 2022, QN v Commission (T‑179/21, not published, EU:T:2022:557). The appeal lodged by the applicant against that judgment was then dismissed by order of 22 June 2023, QN v Commission (C‑720/22 P, not published, EU:C:2023:536).
The 2020 promotion exercise
8 On 18 June 2020, a list of officials eligible for career advancement in 2020 was published.
9 The applicant lodged an appeal, since the list of officials eligible for career advancement in 2020 did not contain his name. That appeal was, first, examined by the joint working group, which issued the unanimous opinion not to recommend the applicant for promotion. The joint promotion committee (JPC) followed that draft opinion and therefore did not propose the applicant for promotion.
10 On 12 November 2020, the appointing authority closed the 2020 promotion exercise by the publication of the contested decision.
11 On 5 February 2021, the applicant submitted a complaint pursuant to Article 90(2) of the Staff Regulations against the contested decision.
12 On 1 June 2021, the appointing authority rejected the applicant’s complaint (‘the decision rejecting the complaint’).
Forms of order sought
13 The applicant claims that the Court should:
– annul the contested decision;
– annul, in so far as necessary, the decision rejecting the complaint;
– order compensation to be paid for the non-material damage suffered;
– order the Commission to pay all the costs.
14 The Commission contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
The application for annulment
15 As a preliminary point, it must be recalled that, so far as concerns the subject matter of the application for annulment, according to the case-law, a claim for annulment formally directed against the decision rejecting a complaint has the effect of bringing before the Court the act against which the complaint was submitted, where that claim, as such, lacks any independent content (see judgment of 14 September 2022, QN v Commission, T‑179/21, not published, EU:T:2022:557, paragraph 19 and the case-law cited).
16 In the present case, since the decision rejecting the complaint merely confirms the contested decision, the claim for annulment of the decision rejecting the complaint lacks any independent content. There is, therefore, no need to give a specific ruling on it, even though, in the examination of the lawfulness of the contested decision, it will be necessary to take into consideration the reasoning contained in the decision rejecting the complaint (see, to that effect, judgment of 14 September 2022, QN v Commission, T‑179/21, not published, EU:T:2022:557, paragraph 20 and the case-law cited).
17 In support of his application for annulment, the applicant raises three pleas in law alleging, in essence (i) infringement of Article 45 of the Staff Regulations and of Article 4(1) of Commission Decision C(2013) 8968 final of 16 December 2013 laying down general provisions for implementing Article 45 of the new Staff Regulations (‘the GIP’), (ii) infringement of the principle of equal treatment, the rules of objectivity and impartiality and manifest errors of assessment vitiating the consideration of comparative merits, and (iii) infringement of the obligation to state reasons.
The first plea in law, alleging infringement of Article 45 of the Staff Regulations and of Article 4(1) of the GIP
18 By his first plea, in the first place, the applicant submits that the procedure relating to the 2020 promotion exercise was unlawful on the ground that, in breach of Article 45 of the Staff Regulations and the GIP, it is based on an appraisal report in respect of 2019 which must be regarded as illegal in that it is vitiated by various irregularities.
19 In particular, the appraisal report does not set any objectives and contains specific comments which are manifestly erroneous, are not substantiated by concrete examples, result from a situation of harassment and are vitiated by misuse of power. In addition, the assessors responsible for that report lacked objectivity and impartiality, insufficient reasons were given in the report and it was not signed by his head of unit, but by a person from the Human Resources Directorate-General.
20 The Commission disputes the applicant’s arguments.
21 In that regard, it must be stated that, following the order of 22 June 2023, QN v Commission (C‑720/22 P, not published, EU:C:2023:536, paragraphs 11, 23, 31, 38, 43 and 54) (see paragraph 7 above), the appraisal report in respect of 2019 has become final, without any of the irregularities or illegalities relied on by the applicant having been established. Moreover, that has been confirmed by the applicant. Furthermore, in his observations on that order, the applicant states that the arguments alleging that the procedure relating to the 2020 promotion exercise was unlawful on account of the failure to fix objectives in that appraisal report have become irrelevant.
22 In the second place, the applicant states that, contrary to the case-law according to which information other than the appraisal report may be taken into account in the consideration of comparative merits in so far as it is largely equivalent to that report so far as concerns its provenance, the procedure for drawing it up and its purpose, the appointing authority referred to information other than his appraisal report, namely the use of languages and the level of responsibilities, although that information is not equivalent to an appraisal report.
23 The Commission disputes those arguments.
24 In that regard, first of all, it must be noted that Article 45(1) 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 after consideration of the comparative merits of the officials eligible for promotion and that, when considering comparative merits, the appointing authority is in particular to take account of the reports on the officials, the use of languages in the execution of their duties other than the language for which they have produced evidence of thorough knowledge in accordance with point (f) of Article 28 and the level of responsibilities exercised by them. Thus, the use of languages and the level of responsibilities are explicitly provided for in Article 45(1) of the Staff Regulations as factors to be taken into account in the consideration of comparative merits, in the same way as the appraisal report, so that the appointing authority could take them into consideration.
25 Next, the case-law cited by the applicant refers to situations in which the appointing authority had adopted a non-promotion decision in the absence of an appraisal report, which is not the situation in the present case, the appraisal report in respect of 2019 having moreover become final.
26 Lastly, it must be held that it is not apparent from the appraisal report in respect of 2019, or from any other evidence submitted by the applicant, that the appointing authority took into account, in the consideration of comparative merits, elements other than that report, the use of languages and the level of responsibilities.
27 In the light of the foregoing, the first plea must be rejected.
The second plea in law, alleging the illegality of the consideration of comparative merits
28 In his second plea in law, which may be divided into three parts, the applicant argues, in essence, that the consideration of comparative merits is vitiated, first, by an infringement of the principle of equal treatment, secondly, by a lack of objectivity and impartiality for the purposes of Article 41(1) of the Charter of Fundamental Rights of the European Union, and, thirdly, by manifest errors of assessment.
29 In that regard, it must be recalled that it is settled case-law that the appointing authority has a wide discretion in assessing the merits to be taken into consideration in making a promotion decision under Article 45 of the Staff Regulations, and review by the EU judicature must be confined to determining whether, regard being had to the various considerations which have influenced the administration in making its assessment, it has remained within reasonable bounds and has not used its power in a manifestly incorrect way. The judicature cannot therefore substitute its own assessment of the qualifications and the merits of the officials for that of the appointing authority. It must confine itself to verifying that the consideration of comparative merits under Article 45(1) of the Staff Regulations was conducted objectively and correctly in the light of the details provided by the appointing authority on the promotion exercise prior to that consideration. Thus, it is not for the EU judicature to review the merits of the administration’s appraisal of the professional abilities of an official where it involves complex value judgments which, by their very nature, are not amenable to objective verification (see judgment of 9 June 2021, Hill Mansilla v Commission, T‑575/19, not published, EU:T:2021:324, paragraph 61 and the case-law cited).
30 According to the same line of case-law, the discretion thus conferred on the administration is limited by the need to consider candidates’ comparative merits carefully and impartially, in the interest of the service and in accordance with the principle of equal treatment. While the appointing authority has the power under the Staff Regulations to conduct that consideration according to the procedure or method it deems most appropriate, in practice it must be undertaken on a basis of equality, using comparable sources of information (see judgment of 9 June 2021, Hill Mansilla v Commission, T‑575/19, not published, EU:T:2021:324, paragraph 62 and the case-law cited).
31 The appointing authority’s duty to consider the comparative merits of officials who are eligible for promotion, as laid down by Article 45 of the Staff Regulations, is an expression of the principle of equal treatment of officials and their career prospects, the assessment of their merits being the decisive criterion. In that regard, Article 45(1) of the Staff Regulations provides that, when considering comparative merits, the appointing authority is to take account, as well as of the reports on the officials, of their use of languages in the execution of their duties other than the language for which they have produced evidence of thorough knowledge and of the level of responsibilities exercised by them. Article 45(1) of the Staff Regulations gives the appointing authority a certain amount of discretion as to the weight it gives to each of the three factors mentioned in that provision, subject nevertheless to the principle of equal treatment (see judgment of 9 June 2021, Hill Mansilla v Commission, T‑575/19, not published, EU:T:2021:324, paragraph 63 and the case-law cited).
32 In the context of the review by the EU judicature of the promotion choices made by the administration, 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 decisions on promotion 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 (see judgment of 9 June 2021, Hill Mansilla v Commission, T‑575/19, not published, EU:T:2021:324, paragraph 64 and the case-law cited).
– The first part of the second plea in law, alleging infringement of the principle of equal treatment
33 In the first part of the second plea, the applicant claims that there was an infringement of the principle of equal treatment in the consideration of comparative merits and, in that context, he calls into question several aspects of the procedure relating to the promotion exercise.
34 Specifically, he draws attention to the facts, first, that the appraisal report is the only source of information on which the contested decision is based, secondly, that the promotion exercise was carried out on the basis of an appraisal report that does not contain any objectives, thirdly, that the director is the only person who represents the jobholder in the various meetings of the hierarchy which take place in connection with promotion exercises and, fourthly, that he did not receive the minutes of the meeting in May 2020 between the representatives of the Central Staff Committee and the Director-General of the Taxation and Customs Union DG.
35 In this connection, it must be recalled that the principle of equal treatment requires, in accordance with settled case-law, that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see judgment of 25 March 2021, Alvarez y Bejarano and Others v Commission, C‑517/19 P and C‑518/19 P, EU:C:2021:240, paragraph 52 and the case-law cited).
36 It must also be recalled that, having regard to the wide discretion of the administration in the implementation of Article 45 of the Staff Regulations, the court, in its review of the observance of the principle of equal treatment, must confine itself to ascertaining that the institution concerned did not apply a distinction which was arbitrary or manifestly inappropriate by reference to the objective pursued (see, to that effect, judgment of 15 February 2023, Freixas Montplet and Others v Committee of the Regions, T‑260/22, not published, EU:T:2023:71, paragraph 56 and the case-law cited).
37 It must be stated that the applicant has in no way demonstrated how the circumstances described in paragraph 34 above allegedly led to an infringement of the principle of equal treatment as defined by the case-law cited above. The applicant has not adduced any evidence such as to demonstrate that he was treated differently from other officials eligible for promotion when he was in a comparable situation, or that he was treated in the same way as other officials eligible for promotion when he was in a different situation.
38 In any event, the various complaints raised by the applicant must also be rejected.
39 As regards, first, the complaint that the appraisal report is the only source of information on which the non-promotion decision is based, it must be stated that it is apparent from the decision rejecting the complaint that, in accordance with what is laid down in Article 45(1) of the Staff Regulations, in respect of all officials eligible for promotion to grade AD 8, the appointing authority took into account, for the purposes of the consideration of comparative merits, not only the appraisal reports since their last promotion, but also their ability in terms of use of languages and the level of their responsibilities.
40 It thereby follows that the applicant’s first complaint has no factual basis.
41 As regards, secondly, the complaint that, since the promotion exercise was carried out on the basis of an appraisal report which contains no objective with regard to the applicant, the appointing authority could not proceed with an objective consideration of comparative merits, the following observations must be made.
42 In the first place, even if the applicant’s complaint seeks to call into question the 2020 promotion exercise inasmuch as the consideration of comparative merits is based on the appraisal report in respect of 2019, which the applicant considers to be unlawful on the ground that it does not set out objectives, it must be recalled, as stated in paragraph 21 above, that, following the order of 22 June 2023, QN v Commission (C‑720/22 P, not published, EU:C:2023:536), that appraisal report has become final, which the applicant has moreover confirmed, without any of the irregularities or illegalities he invoked, such as that connected with the failure to fix objectives, having been established. Thus, he stated that the arguments alleging procedural irregularity relating to the 2020 promotion exercise on account of the failure to fix objectives in that appraisal report had become irrelevant.
43 In that regard, in paragraph 43 of the order of 22 June 2023, QN v Commission (C‑720/22 P, not published, EU:C:2023:536), the Court of Justice confirmed the General Court’s reasoning, as developed in the judgment of 14 September 2022, QN v Commission (T‑179/21, not published, EU:T:2022:557). In paragraph 63 of that judgment, the General Court found that neither the Staff Regulations nor the GIP contained guidance regarding the setting of objectives and that there were no rules within the Commission requiring the setting of objectives for officials at the beginning of an appraisal period, so that there was no obligation on the Commission to set objectives.
44 It follows that the failure to set objectives in the appraisal report in respect of 2019 did not lead to that report’s illegality, nor to that of the 2020 promotion exercise.
45 In the second place, even if the applicant’s complaint seeks to call into question the 2020 promotion exercise inasmuch as the setting of objectives was not provided for in the conduct of that procedure, it must be recalled, as stated in paragraph 24 above, that Article 45(1) of the Staff Regulations provides expressly (i) that promotion is to 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 official eligible for promotion, and (ii) that, when considering comparative merits, the appointing authority is to take account of the reports on the officials, the use of languages in the execution of their duties other than the language for which they have produced evidence of thorough knowledge and the level of responsibilities exercised by them.
46 It must thus be noted that that article does not provide for any obligation on the administration to specifically fix objectives providing a framework for the promotion exercise.
47 In addition, it must be recalled that officials’ entitlement to reasonable career prospects provided for by the Staff Regulations does not confer on them a personal right to promotion, even if they satisfy all the conditions for promotion (see, to that effect, judgment of 20 October 2021, YG v Commission, T‑599/20, not published, EU:T:2021:709, paragraph 96 and the case-law cited). It follows that, even if there had been some obligation to fix objectives during the promotion exercise, and if the applicant had fulfilled those objectives, he would not have had a right to promotion since, as stated in paragraph 45, that exercise is based on a consideration of comparative merits.
48 Consequently, the second complaint must also be rejected.
49 As regards, thirdly, the applicant’s complaints that, first, the director was the only person who represented him in the various meetings with the hierarchy in the course of the promotion exercise, and, secondly, that he did not receive the minutes of the meeting which took place in May 2020 between the Central Staff Committee representatives and the Director-General of the Taxation and Customs Union DG, it must be observed that not only is the presence of the representative of the jobholder at the various meetings and the drawing up of minutes not required by any legal provision and not based on any legal principle, which is moreover not disputed by the applicant, but also, as it was already noted in paragraph 37 above, the applicant has not demonstrated how those circumstances allegedly led to an infringement of the principle of equal treatment.
50 Consequently, those complaints must be rejected as must, accordingly, the first part of the second plea in its entirety.
– The second part of the second plea in law, alleging the lack of objectivity and of impartiality of the consideration of comparative merits
51 In the second part of the second plea, the applicant claims, in essence, in the application and in the reply, that the consideration of comparative merits is vitiated by a lack of objectivity and impartiality inasmuch as the appraisal made by the reporting officer and the appeal assessor in the appraisal procedure for the purposes of drawing up the appraisal report in respect of 2019 was itself vitiated by a lack of objectivity and impartiality.
52 In his observations on the order of 22 June 2023, QN v Commission (C‑720/22 P, not published, EU:C:2023:536), the applicant submits that the Court of Justice had confirmed that there was bad cooperation only in his relationship with the head of unit and not with other colleagues. However, he submits, the lack of objectivity and impartiality concerned also all the directors of the Directorate-General who were involved in the promotion exercise and, in particular, the Director of Human Resources, which is demonstrated by the emails submitted as an annex to the reply.
53 The Commission disputes the lack of objectivity and impartiality alleged.
54 In that regard, it must be recalled, as stated in paragraph 21 above, that, following the order of 22 June 2023, QN v Commission (C‑720/22 P, not published, EU:C:2023:536), the appraisal report in respect of 2019 became final, which the applicant moreover confirmed, without any of the irregularities or illegalities he put forward, such as the lack of objectivity and impartiality of the reporting officer and the appeal assessor, having been established. Thus, he stated that the arguments alleging procedural irregularity relating to the 2020 promotion exercise on account of the illegality of that appraisal report had become irrelevant.
55 In the order of 22 June 2023, QN v Commission (C‑720/22 P, not published, EU:C:2023:536), the Court of Justice rejected the arguments raised by the applicant against the judgment of 14 September 2022, QN v Commission (T‑179/21, not published, EU:T:2022:557). In paragraph 52 of that judgment the General Court held, as regards the alleged lack of objectivity and impartiality of the reporting officer, that the events described by the applicant, which appeared to show that there were differences between the applicant and the reporting officer and that there was a certain amount of irritation on the part of the latter, did not, as such, mean that the reporting officer was no longer able to assess the merits of the applicant objectively. In paragraph 54 of that judgment the General Court held, as regards the alleged lack of objectivity and impartiality of the appeal assessor, that, failing evidence of breach of the duty of impartiality and given that the appeal assessor, being the direct hierarchical superior of the initial reporting officer, was well placed to assess freely whether the initial reporting officer’s appraisal was well founded, the applicant’s reasoning had to be rejected.
56 It follows that it is necessary to reject the second part of the second plea, without the arguments raised by the applicant for the first time in his observations on the order of 22 June 2023, QN v Commission (C‑720/22 P, not published, EU:C:2023:536), referred to in paragraph 52 above, being such as to cast doubt on that finding.
57 As stated in paragraph 51 above, both in the application and in the reply the applicant pleaded a lack of objectivity and impartiality of his head of unit, acting as reporting officer, and of his director, acting as appeal assessor, in connection with the procedure relating to the appraisal report in respect of 2019.
58 Inasmuch as the applicant is now pleading, following the order of 22 June 2023, QN v Commission (C‑720/22 P, not published, EU:C:2023:536), a lack of objectivity and impartiality also on the part of other persons in connection with the procedure relating to the 2020 promotion exercise, that constitutes a new plea. That plea has been raised for the first time at an advanced stage of the procedure and cannot be regarded as an amplification of the arguments raised in the application, which, as is apparent from paragraph 57 above, concerned exclusively the procedure in relation to the appraisal report in respect of 2019. Consequently, in accordance with Article 84 of the Rules of Procedure, that argument must be rejected as inadmissible.
59 Indeed, it must be stated that the applicant cannot argue in that regard that the argument is based on a new matter of law or of fact which came to light in the course of the procedure and that he could not have raised at an earlier stage of the procedure. Admittedly, he did not possess, at the time when the application was lodged, the emails which he submitted as an annex to the reply to demonstrate that the reporting officer and the appeal assessor had failed to show objectivity and impartiality. However, as is made clear in the reply, the applicant relied on those emails to call into question the objectivity and impartiality of his hierarchy in connection with the procedure relating to the appraisal report in respect of 2019, whereas he could have, at that stage, challenged a lack of objectivity and impartiality of his hierarchy in connection with the procedure relating to the 2020 promotion exercise.
– The third part of the second plea in law, alleging manifest errors of assessment vitiating the consideration of comparative merits
60 In the third part of the second plea, the applicant raises several manifest errors of assessment vitiating the consideration of comparative merits.
61 First, the applicant takes the view that, in the decision rejecting the complaint, the production of excerpts from his appraisal reports and excerpts from the appraisal reports of the officials promoted does not address his principal complaint, namely that his appraisal report in respect of 2019 is vitiated by irregularities and that, as a result, the consideration of comparative merits carried out by the appointing authority is also vitiated by irregularities and, accordingly, by a manifest error of assessment.
62 Secondly, the applicant refers to the opinion of the JPC, which was not adopted unanimously and contains certain comments in the minority confirming the absence of an institution-wide comparison of merits.
63 Thirdly, as regard the seniority in grade, the applicant notes that the average promotion rate referred to in the decision rejecting the complaint corresponds to an average promotion rate for underperformance, which has never been his case.
64 Lastly, according to the applicant, the Commission has yet to produce evidence enabling it to be understood why the merits of two officials promoted, despite their lower seniority than him in grade, were higher than his own.
65 The Commission disputes the applicant’s arguments.
66 In that regard, first, it must be stated, as it was by the Commission, that the production of those excerpts was not aimed at addressing the complaint relating to the irregularities allegedly vitiating the appraisal report in respect of 2019, but sought rather to present and illustrate why the appointing authority had considered the merits of the officials promoted to grade AD 8 to be higher than those of the applicant. In any event, it should be recalled that the appraisal report in respect of 2019 has become final.
67 Secondly, so far as concerns the fact that the JPC’s opinion was not adopted unanimously and contains comments in the minority according to which no institution-wide comparison of merits was conducted and the variable quality of reports does not allow for a transparent and ‘reproducible’ comparison of merits, it must first be noted that the applicant has not developed his argument. Moreover, in the absence of concrete evidence confirming those comments, the sole opinion of a minority of the members of a committee which is required to submit a non-binding recommendation to the appointing authority cannot demonstrate that the consideration of comparative merits of the applicant was flawed.
68 Thirdly, as the Commission observes, the criterion of seniority was not applied in the decision rejecting the complaint since the merits of the promoted officials were higher than those of the applicant and that, pursuant to Article 4(2) of the GIP, it is only in the event of equal merits between the officials that the appointing authority may, in the alternative, take into account other factors, such as the seniority of the officials in the grade.
69 It follows from this that the applicant’s arguments in that regard concerning the rate of promotion referred to and the promotion of two officials with a seniority in the grade lower than his own are ineffective.
70 Lastly, as regards the applicant’s argument that the Commission committed a manifest error of assessment inasmuch as it did not adduce evidence enabling it to be understood why the merits of the two officials promoted were higher than his own, it must be stated that the applicant does not put forward any evidence such as to call into question the validity of the consideration of comparative merits carried out by the appointing authority (see, to that effect, judgment of 8 July 2020, WH v EUIPO, T‑138/19, not published, EU:T:2020:316, paragraph 91).
71 Should, by that argument, the applicant be seeking to claim that the Commission did not, to the requisite legal standard, state why those two officials were promoted, in breach of its obligation to state reasons, that argument will be examined in connection with the third plea in law.
72 Having regard to the foregoing explanations, none of the arguments submitted by the applicant is such as to show that the consideration of comparative merits was vitiated by a manifest error of assessment.
73 Consequently, the third part must be rejected, as must, accordingly, the second plea in its entirety.
The third plea in law, alleging infringement of the obligation to state reasons
74 In the present plea, the applicant submits, in the application and in the reply, that, in breach of Article 41(2) of the Charter of Fundamental Rights of the European Union, of the second paragraph of Article 296 TFEU and the second paragraph of Article 25 of the Staff Regulations, the Commission, in the contested decision, produced excerpts from his appraisal reports and from those of the officials promoted, but without stating which elements in the former are regarded as reflecting lesser merits than the elements contained in the latter, or giving individual and relevant reasons for not promoting him.
75 In addition, the applicant states that, in the action brought in Case T‑179/21, he requested the annulment of certain comments in the appraisal report in respect of 2019. If those comments were not taken into account to justify the contested decision in the present case, he is unaware of what other elements could have been taken into account. However, had those comments indeed been taken into account to justify the contested decision in the present case, and had they been annulled by the General Court, the applicant does not see on the basis of which elements the contested decision could have been taken.
76 Furthermore, the applicant states that he has not received any information as to the deliberations of the JPC or as to the meeting of the representatives of the Central Staff Committee and the Director-General of the Taxation and Customs Union DG, even though they are not to be regarded as confidential in his connection and that they may contain elements allowing him to understand the contested decision and the reasoning behind it. The applicant submits that he has the right to obtain all the documents which mention his name.
77 Lastly, according to the applicant, he was not the only person in his directorate who was criticised for deficiencies in political skills and he wishes to ascertain whether all those other colleagues have, like him, been delayed in their careers on account of that alleged lack of ‘strong political skills’.
78 In his observations on the order of 22 June 2023, QN v Commission (C‑720/22 P, not published, EU:C:2023:536), the applicant argues that there is a contradiction between, on the one hand, paragraph 39 of the judgment of 14 September 2022, QN v Commission (T‑179/21, not published, EU:T:2022:557), in which the General Court found that the appraisal in respect of 2019 was not less favourable than that of the preceding years and, on the other hand, paragraph 14 of the order of 22 June 2023, QN v Commission (C‑720/22 P, not published, EU:C:2023:536), according to which his appraisal in respect of 2019 in fact identified some weaknesses. Specifically, the applicant submits that, in the light of that contradiction, the Commission should have explained more precisely why it considered that the appraisal report in respect of 2019 was not equivalent to that of the preceding years.
79 The Commission disputes the applicant’s arguments.
80 In that regard, it must be recalled at the outset that the duty to state reasons laid down by the second paragraph of Article 25 of the Staff Regulations, which merely reiterates the general obligation laid down by Article 296 TFEU, is intended, first, to provide the person concerned with sufficient information to assess the merits of the measure adversely affecting him or her and whether it is appropriate to bring an action before the EU judicature and, secondly, to enable the latter to review the legality of that measure (see judgment of 20 October 2021, YG v Commission, T‑599/20, not published, EU:T:2021:709, paragraph 106 and the case-law cited).
81 Specifically, in civil service cases and as regards the statement of reasons for a promotion decision, the question whether the statement of reasons is sufficient is assessed in the light of the factual and legal context in which the contested act was adopted. In particular, the administration is not required to reveal to the non-promoted official the comparative assessment which it made of his or her merits and of those of the officials promoted, nor to set out in detail the way in which it found that the promoted candidates merited promotion (judgment of 16 June 2021, RA v Court of Auditors T‑867/19, not published, EU:T:2021:361, paragraph 26).
82 It is in the light of that case-law and those principles that it is therefore necessary to ascertain whether, in the present case, the contested decision contains a general and stereotypical statement of reasons without any information specific to the applicant’s situation, which amounts, pursuant to settled case-law, to a total absence of a statement of reasons (see, to that effect, judgment of 20 October 2021, YG v Commission, T‑599/20, not published, EU:T:2021:709, paragraph 108 and the case-law cited).
83 In that regard, it must be stated that the decision rejecting the complaint contains several elements relating to the applicant’s specific and individual situation. Although the appointing authority acknowledges, in the section entitled ‘Review of the comparative assessment of merits’, that, overall, the applicant’s appraisal reports were positive, it also observes that those reports contained comments suggesting that there was room for improvement. Moreover, since the applicant’s request to annul the comments in the appraisal report in respect of 2019 was dismissed by the General Court, the argument raised by the applicant in that regard (see paragraph 75 above) cannot succeed.
84 Next, the appointing authority undertook a more thorough examination and comparison of the merits in three sections, which correspond, in essence, to the three criteria set out in Article 45 of the Staff Regulations on which the consideration of comparative merits is to be based.
85 In the first place, so far as concerns efficiency, ability and conduct in the service, the appointing authority quoted excerpts from the applicant’s appraisal reports in respect of the years 2017 to 2019, containing assessments of the latter’s merits, which are phrased in terms which show a degree of satisfaction, without nevertheless bestowing praise upon him. Subsequently, the appointing authority stated that the appraisal reports of the officials promoted attest, in essence to ‘excellent merits’ and ‘outstanding performance’.
86 While stating, correctly, that it was not obliged to give the non-promoted official details of the comparison of his or her merits or to set out in detail in what way it considered that the promoted candidates merited the promotion (see judgment of 10 April 2014, Nieminen v Council, F‑81/12, EU:F:2014:50, paragraph 25 and the case-law cited), the appointing authority nevertheless, for the sake of completeness, quoted excerpts from the appraisal reports of officials A to E, with a view to illustrating the level of their respective merits having regard to the criteria referred to in paragraph 84 above, which were in particular described in more laudatory terms than those of the applicant.
87 In the second place, so far as concerns the use of languages in the exercise of his duties, the appointing authority concluded, quoting excerpts from the appraisal reports of officials A to E, that the use of three languages by the applicant, namely English, French and Bulgarian (his native language), was not exceptional and did not put him in an advantageous position in relation to those officials.
88 In the third place, so far as concerns the level of responsibilities exercised by the applicant, the appointing authority, again, quoted excerpts from the appraisal reports of officials A to E to reach the conclusion that the responsibilities of the officials promoted were at least similar to those of the applicant and were, for the most part, greater.
89 In addition, so far as concerns the applicant’s claim that he should have been sent the documents mentioning his name following the deliberations of the JPC and the meeting between the representatives of the Central Staff Committee and the Director-General of the Taxation and Customs Union DG, it should be observed that the deliberations of the committee are confidential and that no provision requires the establishment of minutes of meetings between the representatives of the Central Staff Committee and the Directors-General.
90 Lastly, so far as concerns the applicant’s wish to ascertain whether some of his colleagues have, like him, been delayed in their careers (see paragraph 77 above), it must be recalled that the administration is not required to reveal to the non-promoted official the comparative assessment it made of the merits of other officials.
91 It follows from all of the foregoing that the appointing authority provided the applicant with sufficient information to enable him to understand why, on the basis of a consideration of the appraisal reports, the use of languages and the level of responsibilities, his merits were regarded as lower than those of the officials promoted.
92 In those circumstances, it must be concluded that the contested decision, as clarified by the decision rejecting the complaint, satisfies the requirement to state reasons laid down in Article 296 TFEU and the second paragraph of Article 25 of the Staff Regulations.
93 That finding is not called into question by the applicant’s argument relating to an alleged contradiction referred to in paragraph 78 above.
94 In that regard, in the first place, it must be recalled (i) that the plea alleging infringement of the obligation to state reasons concerns, as indicated in paragraph 16 above, the degree of reasoning of the contested decision, which must be examined in the light of the reasoning in the decision rejecting the complaint and (ii) that it is apparent from the examination of the latter, as indicated in paragraphs 83 to 92 above, that the contested decision satisfies the requirement to state reasons laid down in Article 296 TFEU and the second paragraph of Article 25 of the Staff Regulations.
95 In the second place, it must be noted that the date of the contested decision is 12 November 2020 and that of the decision rejecting the complaint is 1 June 2021, whereas the judgment in Case T‑179/21 was delivered on 14 September 2022 and the order in Case C‑720/22 P on 22 June 2023.
96 Consequently, even if the contradiction and the subsequent obligation for the Commission to state reasons, as described by the applicant in paragraph 78 above, exist, it would have been impossible for the Commission, having regard to the chronology of the decisions at issue and of the judgment and the order, to state in the contested decision and in the decision rejecting the complaint, why it considered that the applicant’s appraisal in respect of 2019 was not equivalent to that of the preceding years, so that the applicant’s argument is ineffective.
97 In the light of all the foregoing considerations, the third plea in law must be rejected and, accordingly, the application for annulment in its entirety must be dismissed.
The application for compensation
98 The applicant considers that the illegality of the contested decision, which derives from the illegalities of the appraisal in connection with the appraisal report in respect of 2019, constitutes fault. He seeks compensation for the non-material damage he suffered as a result of those illegalities and which caused him great stress and strong feelings of injustice, disrespect and defamation, and which has affected his health, as well as his dignity and professional reputation.
99 In addition, the applicant considers that the way he was put under pressure in 2019 and in 2020 and criticised in a recurrent way by both his head of unit and his head of sector, without any recognition of his work and expertise, and finally the contested decision, have severely impaired his working conditions and constitute a situation of harassment, which was the cause of two serious mental breakdowns in 2019 leading to several months of sick leave. This damage may not be compensated by the sole annulment of the contested decision. Therefore, the applicant seeks financial compensation estimated ex aequo et bono at EUR 2 000.
100 The Commission disputes the applicant’s arguments.
101 In that connection, it must be recalled that, according to settled case-law, an application for compensation in respect of material or non-material damage must be dismissed where it has a direct link with an application for annulment which has itself been dismissed as inadmissible or unfounded (see, to that effect, judgment of 30 September 2003, Martínez Valls v Parliament, T‑214/02, EU:T:2003:254, paragraph 43 and the case-law cited).
102 In the present case, inasmuch as the applicant’s claim for compensation is based on the alleged illegality of the contested decision, there is a close link between that claim for compensation and the claim for annulment. Given that the claim for annulment has been dismissed as unfounded, the claim for compensation, which is based on the alleged illegality of the contested decision, must also be dismissed (see, to that effect, judgment of 24 November 2021, CX v Commission, T‑743/16 RENV II, not published, EU:T:2021:824 paragraph 418).
103 As regards the part of the non-material harm which was allegedly caused by the conduct of the applicant’s head of unit and head of sector, it must be held that the file does not contain any evidence in support of the applicant’s claims as regards the illegality of the conduct of which they are accused. The applicant’s claims in that regard must therefore be dismissed.
104 It follows that the application for compensation must be dismissed in its entirety.
The request for measures of organisation of procedure
105 The applicant requests, by means of measures of organisation of procedure, that the Commission be ordered to produce an anonymised copy of the minutes of the JPC, of the minutes of the meeting between the representatives of the Central Staff Committee and the Director-General of the Taxation and Customs Union DG and a non-anonymised version of the annexes to the reply, namely the emails (i) between his hierarchical superiors and the Commission’s medical service and the Human Resources Directorate, and (ii) between himself and the Human Resources Director, as well as the note on the complaint which he brought against his appraisal report in respect of 2019. In addition, in the event that those minutes have not been prepared, the applicant requests written testimonies about those minutes. Lastly, the applicant requests counter-testimonies in relation to the meetings which took place between himself and his head of unit and to the interview which he had concerning the appraisal report in respect of 2019.
106 In that connection, it must be observed that, so far as concerns requests seeking that documents be included in the file relating to the proceedings, it is for the EU judicature to decide, in the light of the circumstances of the case in accordance with the provisions of the Rules of Procedure applicable, whether it is necessary for such a document to be produced (see, to that effect, judgments of 6 April 2000, Commission v ICI, C‑286/95 P, EU:C:2000:188, paragraph 49, and of 2 October 2003, Ensidesa v Commission, C‑198/99 P, EU:C:2003:530, paragraph 28).
107 The General Court is free in its absolute discretion to assess the value to be given to the whole of the facts and evidence which have been submitted to it or which it has itself adduced (see, to that effect, order of 29 October 2004, Ripa di Meana v Parliament, C‑360/02 P, EU:C:2004:690, paragraph 28). Thus, the General Court is the sole judge of any need for the information available to it concerning the cases before it to be supplemented (judgment of 10 July 2001, Ismeri Europa v Court of Auditors, C‑315/99 P, EU:C:2001:391, paragraph 19).
108 In the present case, having regard to all the evidence submitted to it, the General Court takes the view that a measure of organisation of procedure is not necessary in order to rule on the file, and therefore the applicant’s request must be rejected.
109 It follows from all of the foregoing that the action must be dismissed in its entirety.
Costs
110 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
111 In the present case, since the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Tenth Chamber)
hereby:
1. Dismisses the action;
2. Orders QN to pay the costs.
Delivered in open court in Luxembourg on 13 March 2024.
V. Di Bucci | | M. van der Woude |