Language of document : ECLI:EU:F:2016:164

JUDGMENT OF THE EUROPEAN UNION

CIVIL SERVICE TRIBUNAL

(Second Chamber)

21 July 2016

Case F‑125/15

HB

v

European Commission

(Civil service — Officials — 2014 promotion procedure — Article 45(1) of the Staff Regulations — Comparative merits — 2011 and 2012 staff reports — Absence of several months due to maternity leave in 2013 — Staff report lacking any substantive assessment for the year in question — Decision not to promote the applicant in 2014 — Obligation to state reasons — Consideration of the comparative merits — No recommendation from the Joint Promotion Committee — Access to the applicant’s individual computerised file — Composition of the Joint Promotion Committee — Discrimination based on gender — Non-material damage)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which HB seeks the annulment of the decision of the appointing authority of the European Commission, notified to the staff of that institution on 14 November 2014, not to promote her to grade AD 8 in the 2014 promotion procedure and compensation for the non-material damage which she claims to have suffered.

Held:      The action is dismissed. HB is to bear half of her own costs. The European Commission is to bear its own costs and to pay half of the costs incurred by HB.

Summary

1.      Officials — Promotion — Complaint by a candidate not promoted — Rejection decision — Obligation to state reasons — Scope

(Staff Regulations, Art. 45)

2.      Officials — Promotion — Consideration of comparative merits — Administration’s discretion — Judicial review — Limits

(Staff Regulations, Art. 45)

3.      Officials — Promotion — Consideration of comparative merits — Consultation of candidates’ personal files — Explanation of the use made of the available information — Duty of the administration — None

(Staff Regulations, Art. 45)

4.      Officials — Promotion — Consideration of comparative merits — Procedures — Intervention by the Joint Promotion Committee — Failure on the part of the latter to make recommendations — Consequences — Obligation of the administration to remedy the failure

(Staff Regulations, Art. 45)

5.      Officials — Equal treatment — Equality between male and female officials — Fundamental right — Compliance ensured by the EU judicature — Decision not to promote — Discrimination on grounds of pregnancy — Burden of proof

(Charter of Fundamental Rights of the European Union, Art. 23, first para.; Council Directive 76/207)

1.      Although the appointing authority is not obliged to give reasons for its promotion decisions to officials who have not been promoted, it is, however, obliged to state the reasons for its decision rejecting a complaint lodged by an official 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.

Moreover, as promotions involve choices, the statement of reasons for the rejection of the complaint need only deal with the existence of the legal conditions laid down by the Staff Regulations for the procedure to be lawful.

In particular, the appointing authority is not required to disclose to the unsuccessful candidate details of its comparison of his merits and those of the candidates who are promoted. It is sufficient that, in its decision rejecting the complaint, the appointing authority informs the official concerned of the relevant individual ground justifying the rejection of his candidature. Moreover, it is by no means incumbent on the appointing authority to explain to an unsuccessful candidate why the merits of each of the officials promoted were greater than his.

(see paras 29, 30, 33)

See:

Judgment of 7 February 1990 in Culin v Commission, C‑343/87, EU:C:1990:49, para. 13, and order of 25 October 2007 in Nijs v Court of Auditors, C‑495/06 P, EU:C:2007:644

Judgment of 3 October 2006 in Nijs v Court of Auditors, T‑171/05, EU:T:2006:288, para. 42

Order of 16 September 2013 in Bouillez v Council, T‑31/13 P, EU:T:2013:521, para. 26

Judgments of 15 December 2011 in Sabbag Afota v Council, F‑9/11, EU:F:2011:196, para. 62, and of 15 December 2015 in Bonazzi v Commission, F‑88/15, EU:F:2015:150, paras 98 and 99 and the case law cited

2.      The appointing authority possesses, for the purpose of considering the comparative merits of officials who are eligible for promotion, a wide discretion and in that context the Union judicature must restrict itself to consideration of the question whether, regard being had to the various considerations which have influenced the administration in making its assessment, the latter has remained within reasonable limits and has not used its power in a manifestly incorrect way. The Union judicature cannot therefore substitute its assessment of the qualifications and merits of those officials for that of the appointing authority.

In order to preserve the effectiveness of the discretion which the legislature saw fit to confer on the appointing authority in connection with promotion, the Union judicature may not annul a decision of the latter solely on the ground that it considers there to be evidence raising plausible doubts about the appointing authority’s assessment, or proving that there has been an error of assessment. Only a finding of manifest error can lead to the annulment of a decision on promotion and, in that respect, the evidence that the applicant must adduce must be sufficient to render implausible the assessment of the facts made in the decision not to promote the official concerned. In other words, the complaint alleging a manifest error of assessment must be rejected if, in spite of the evidence put forward by the applicant, the contested assessment appears in any event to be plausible.

However, the wide discretion thus conferred on the appointing authority is limited by the need to carry out a comparative examination of candidates’ files carefully and impartially, in the interest of the service and in accordance with the principle of equal treatment. In practice, that examination must be carried out on a basis of equality, using comparable sources of information.

(see paras 44-46)

See:

Judgment of 15 January 2014 in Stols v Council, T‑95/12 P, EU:T:2014:3, paras 29 and 32

Judgments of 15 December 2015 in Bonazzi v Commission, F‑88/15, EU:F:2015:150, para. 48, and of 2 March 2016 in Loescher v Council, F‑84/15, EU:F:2016:29, paras 56, 57 and 59 and the case law cited

3.      While the personal files of officials eligible for promotion must be made available to the appointing authority, the appointing authority cannot be required to explain in each case the use it has made of the information available to it.

(see para. 57)

See:

Judgment of 15 December 2015 in Bonazzi v Commission, F‑88/15, EU:F:2015:150, para. 52

4.      In the context of a promotion procedure, the fact that the Joint Promotion Committee has failed to make a recommendation by no means implies that no effective comparison of merits has been made, since that is incumbent in all cases on the appointing authority itself. In that regard, the deficiency on the part of the Joint Promotion Committee does not render the promotion procedure unlawful since, in any event, sole responsibility for promotion decisions, and for the consideration of comparative merits provided for by Article 45 of the Staff Regulations, rests with the appointing authority.

(see para. 58)

See:

Judgment of 15 December 2015 in Bonazzi v Commission, F‑88/15, EU:F:2015:150, paras 82 and 83

5.      The principle of equal treatment for men and women in matters of employment and, at the same time, the principle of the prohibition of any direct or indirect discrimination on grounds of gender, as laid down in the first paragraph of Article 23 of the Charter of Fundamental Rights of the European Union, form part of the fundamental rights the observance of which the EU judicature must ensure.

It is necessary, inter alia, to ensure equal working conditions for female and male staff employed by the European Union itself, under the Staff Regulations, on the understanding that the requirements which that principle imposes in relations between the EU institutions and their staff are not limited to those resulting from the Treaties or from the EU directives adopted in that field.

Moreover, Directive 76/207 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions precludes national rules which deprive a woman of the right to an assessment of her performance and, consequently, to the possibility of qualifying for promotion because she was absent from the undertaking on account of maternity leave.

However, discrimination on grounds of gender may not be presumed to exist merely because a woman is pregnant. On the contrary, it is incumbent on the woman concerned to provide at least some evidence from which it may be presumed that such discrimination exists, namely, in the present case, information to suggest that the appointing authority adopted the decision not to promote her on grounds of her pregnancy and the absences which that pregnancy caused.

(see paras 74-76, 78)

See:

Judgments of 15 June 1978 in Defrenne, 149/77, EU:C:1978:130, para. 29; of 20 March 1984 in Razzouk and Beydoun v Commission, 75/82 and 117/82, EU:C:1984:116, para. 17; and of 30 April 1998 in Thibault, C‑136/95, EU:C:1998:178, para. 33

Judgment of 23 January 2003 in Hectors v Parliament, T‑181/01, EU:T:2003:13, paras 117 and 124