JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(First Chamber)

15 October 2014

Case F‑23/11 RENV

AY

v

Council of the European Union

(Civil service — Officials — Referral back to the Tribunal after setting aside — Promotion — 2010 promotion procedure — Consideration of comparative merits — Decision not to promote the applicant)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which AY sought annulment of the decision of the Council of the European Union not to promote him to Grade AST 9 under the 2010 promotion procedure, and compensation for the harm he claims to have suffered.

Held:      The action is dismissed. AY is to bear his own costs incurred in Cases F‑23/11, T‑167/12 P and F‑23/11 RENV respectively and is ordered to pay the costs incurred by the Council of the European Union in Case F‑23/11. The Council of the European Union is to bear its own costs incurred in Cases T‑167/12 P and F‑23/11 RENV.

Summary

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

(Staff Regulations, Art. 45)

2.      Officials — Promotion — Criteria — Merits — Taking into account of seniority in grade — Subsidiary matter — Taking into account of long-term consistency of merits — Scope

(Staff Regulations, Art. 45)

1.      In assessing the interests of the service and the qualifications and merits of the candidates to be taken into consideration in making a promotion decision pursuant to Article 45 of the Staff Regulations, the appointing authority possesses a wide discretion and, in that connection, the Union Court’s review must be confined to the question whether, having regard to the various considerations which have influenced the administration in making its assessment, the latter has remained within reasonable bounds and has not used its power in a manifestly incorrect way. The Union Court cannot therefore substitute its assessment of the qualifications and merits of the candidates for that of the appointing authority.

Without prejudice to the practical effect that the appointing authority’s discretion must be acknowledged to have, 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.

The appointing authority has the power under the Staff Regulations to consider the merits of the candidates for promotion, as provided for in Article 45 of the Staff Regulations, according to the procedure or method it deems most appropriate.

(see paras 38-40)

See:

judgment in Bouteiller v Commission, 324/85, EU:C:1987:59, para. 6

judgment in Commission v Dittert, T‑51/08 P, EU:T:2011:702, para. 54

judgment in Canga Fano v Council, F‑104/09, EU:F:2011:29, para. 35

2.      Although no principle can be inferred from Article 45 of the Staff Regulations that an official must be promoted if he does not lose merit, or that entitlement to regular career progression obliges the administration to promote an official automatically simply because he has reached a certain seniority in the grade, that provision does not, however, prevent the administration from taking account, for the purposes of promotion, of officials’ merits throughout the period they have spent in that grade.

The criterion of long-term consistency of merits is not separate from the three criteria expressly listed in Article 45(1) of the Staff Regulations, which must primarily be taken into account when considering candidates’ comparative merits, but is directly covered by the first of them, that is to say, the reports on the officials. More specifically, the criterion of long-term consistency of merits makes it possible to take better account of all the merits of the officials eligible for promotion, assessed on the basis of the reports on them.

However, the use of the plural in the expression ‘reports on the officials’ in Article 45(1) of the Staff Regulations indicates that the appointing authority is, as a general rule, required to take account of all the reports on the officials since they entered the grade, which necessarily involves taking account of criteria such as the long-term consistency of merits.

(see paras 50, 58, 59)

See:

judgment in Stols v Council, T‑95/12 P, EU:T:2014:3, paras 41 and 42

judgments in Barbin v Parliament, F‑68/09, EU:F:2011:11, para. 90; and Canga Fano v Council, EU:F:2011:29, para. 68