JUDGMENT OF THE COURT OF FIRST INSTANCE (First Chamber)

6 June 2007

Case T-432/04

Walter Parlante

v

Commission of the European Communities

(Civil service – Officials – Promotion – 2003 promotions procedure – Refusal of promotion – Award of promotion points – Consideration of comparative merits – Equal treatment – General implementing provisions of Article 45 of the Staff Regulations – Plea of illegality – Legitimate expectations)

Application: for annulment of (1) the appointing authority’s decision of 5 July 2004 rejecting the applicant’s complaint against that same authority’s decision to refuse him promotion to Grade C1 under the procedure for 2003 and (2), in so far as it is necessary, the decision which was the subject of that complaint.

Held: The action is dismissed. Each party is ordered to bear its own costs.

Summary

1.      Officials – Promotion – Consideration of comparative merits

(Staff Regulations, Arts 43 and 45(1))

2.      Officials – Promotion – Consideration of comparative merits

(Staff Regulations, Art. 45(1))

3.      Officials – Promotion – Promises

(Staff Regulations, Art. 45(1))

1.      Even in a promotion system such as that introduced by the general provisions for implementing Articles 43 and 45 of the Staff Regulations, adopted by the Commission, in which the number of points accumulated by officials eligible for promotion is decisive for their promotion, the fact that the directors-general or directors are responsible for awarding certain promotion points is not, in itself, incompatible with the requirement that an extended consideration of the merits of officials eligible for promotion must be carried out by the institution, in accordance with the principle of equal treatment of officials and the principle of entitlement to reasonable career prospects. Firstly, their involvement in the promotion procedure allows account to be taken of factors specific to their directorate-general or directorate, of which they are aware through consultation of the various senior officials in it, and it allows the staff reports of the various officials eligible for promotion, which have been drawn up by different assessors, to be viewed in a uniform manner. Secondly, given the considerable number of officials eligible for promotion in each grade, such a system, in which the assessment of the merits of officials by different levels of the hierarchy is expressed in terms of promotion points, is intended to enable the appointing authority to have access to comparable sources of information on the merits of officials eligible for promotion. It thus meets the need to undertake a comparative consideration of candidatures with care and impartiality, in the interests of the service and in accordance with the principle of equal treatment.

As regards, more particularly, the method of awarding the priority points made available to the directorates-general in order to reward officials with outstanding merits in each directorate-general with a view to their promotion, it cannot be regarded as incompatible with the extended consideration of merits pursuant to Article 45 of the Staff Regulations, or with the principle of equal treatment. Such aspects of the merits of officials eligible for promotion must inevitably be assessed in comparison with officials belonging to the same directorate-general, the requirement for extended consideration being satisfied when the appointing authority compares the total promotion points accumulated by all the officials eligible for promotion, regardless of the directorate-general where they are employed. That being so, the fact that the number of priority points made available to the directorates-general is determined by the number of officials eligible for promotion in them is designed to prevent an inflationary increase in the number of priority points awarded by each directorate-general, thereby ensuring that the promotion points are comparable and that there is equal treatment between officials belonging to different directorates-general.

In situations where, because of the particular circumstances in a directorate-general, the straightforward application of those priority point quotas would prevent the merits of the officials eligible for promotion from being adequately rewarded, it would be for the appointing authority, exercising its power to take decisions on promotions, to ensure observance of Article 45 of the Staff Regulations and of the principle of equal treatment, an appropriate measure here possibly being to grant an unspecified number of priority points over and above the quota, in response to appeals by the officials concerned.

Regarding the system of target averages indicated to assessors for the purpose of awarding merit points on the basis of the marks and assessments given in the career development report, while the result is, admittedly, that those reports are first compared within a directorate-general and that it is only at a second stage that the total number of promotion points accumulated is compared at the overall Commission level, such a system is nevertheless not unlawful since it pursues a legitimate objective, which is to eliminate the subjectivity resulting from the assessments of the different assessors and, consequently, its function is to ensure greater comparability of reports on officials from different directorates-general. As such, it cannot be regarded as incompatible with the requirement for an extended consideration of merits.

Although the rigorous application of the target average in directorates-general which have a very small number of officials eligible for promotion in a given grade, and which therefore do not constitute a representative sample reflecting the most commonly observed situation, would be likely to distort the comparative consideration of career development reports in the Commission, contrary to Article 45 of the Staff Regulations and to the principle of equal treatment, the general provisions for the implementation of that article, adopted by the Commission, do, however, allow the appointing authority, when deciding on informal appeals brought by officials, and the promotion committees, which can in exceptional cases annul the reduction in the quota of promotion points awarded to a directorate-general which has exceeded the target average, to take account of special situations if they arise and to ensure that the typical mark given to the merits of officials in a certain grade in a directorate-general, in the form of merit points, does not have an unjustified impact on the individual situation of the officials eligible for promotion, in terms of the number of promotion points awarded to each directorate-general.

(see paras 56, 59-61, 63-68, 71-72, 74-77)

See: T-53/91 Mergen v Commission [1992] ECR II‑2041, para. 36; T‑557/93 Rasmussen v Commission [1995] ECR-SC I‑A‑195 and II‑603, para. 22; T-234/97 Rasmussen v Commission [1998] ECR-SC I‑A‑507 and II‑1533, para. 24; T‑187/98 Cubero Vermurie v Commission [2000] ECR-SC I‑A‑195 and II‑885, para. 61; T‑22/99 Rose v Commission [2000] ECR-SC I‑A‑27 and II‑115, para. 57; T‑233/01 Callebaut v Commission [2002] ECR-SC I‑A‑115 and II‑625, para. 46; T‑188/01 to T‑190/01 Tsarnavas v Commission [2003] ECR-SC I‑A‑95 and II‑495, para. 121; T-132/03 Casini v Commission [2005] ECR-SC I‑A‑253 and II‑1169, para. 53 and the case-law cited therein

2.      The transitional arrangements introduced by the general provisions for the implementation of Article 45 of the Staff Regulations, adopted by the Commission, which allow the directorates-general to award, for the 2003 promotions procedure, up to four special additional priority points to take account of officials recommended for promotion during the previous year’s promotions procedure but not promoted, within a limit of 150% of the possible promotions in that procedure, are not contrary to Article 45 of the Staff Regulations. The award of those points, which is not mandatory and does not automatically lead to promotion, is intended to effect the transition from one promotion system to another, and is an appropriate way to take account of the fact that those officials had already been recommended for promotion in the previous year’s procedure, while also taking into consideration the budgetary limitations concerning the posts available in the 2003 procedure.

Those arrangements also do not undermine the principle of equal treatment. In so far as the special additional priority points are designed to reward particularly deserving officials in a directorate-general for the merits they have demonstrated in the past even though they were not promoted, those officials are not in a comparable situation, with regard to that aspect of their merits, to other officials who were not recommended for promotion in the previous year’s procedure. They are also not in a comparable situation to that of officials recommended for promotion in the previous year’s procedure but not promoted, who, because of the limit of 150% of possible promotions in that procedure, cannot be awarded those points, since the merits of the latter, as assessed by the directorates-general in the previous year’s procedure, are lower than those of the former, the order in which officials are placed on the lists of recommendations being determined by the assessment of their merits by the directorate-general where they are employed. In that respect, the fact that the number of officials who can be awarded those points varies according to the size of the directorates-general does not constitute an infringement of the principle of non‑discrimination. On the contrary, equal treatment between officials from different directorates-general is ensured precisely because the limit in question is expressed as a percentage of the possible promotions in the previous year’s procedure and therefore allows account to be taken of differences between directorates-general as regards the number of officials eligible for promotion in each of them.

(see paras 91-92, 94-97, 106-110)

3.      A promise to promote an official because he was included in the reserve from the previous year’s promotion procedure, if proved, could not give rise to legitimate expectations on his part since it was made without taking account of the relevant provisions of the Staff Regulations, infringing the obligation to consider the comparative merits of officials eligible for promotion, as provided for in Article 45 of the Staff Regulations.

(see para. 122)

See: T-138/99 Verheyden v Commission [2000] ECR-SC I‑A‑219 and II‑1001, para. 71 and the case-law cited therein