JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

8 October 2013

Case T‑167/12 P

Council of the European Union

v

AY

(Appeal — Civil service — Officials — Promotion — 2010 promotion procedure — Consideration of comparative merits — Further training and instruction — Success at examinations in the training programme for AST function group officials in the certification procedure for access to the AD function group — Distortion of the clear sense of the evidence)

Appeal:      against the judgment of the Civil Service Tribunal of the European Union (First Chamber) of 8 February 2012 in Case F‑23/11 AY v Council [2012] ECR-SC I‑A‑1-0000 and II‑A‑1-0000, seeking that that judgment be set aside in part.

Held:      The judgment of the Civil Service Tribunal of the European Union (First Chamber) of 8 February 2012 in Case F‑23/11 AY v Council is set aside in so far as the Civil Service Tribunal annulled the decision by which the Council of the European Union refused to promote AY to AST grade 9 under the 2010 promotion procedure and in so far as it ordered the Council to pay all of the costs (points 1 and 4 of the operative part of that judgment). The case is referred back to the Civil Service Tribunal. The costs are reserved.

Summary

1.      Appeals — Pleas in law — Incorrect assessment of the facts — Inadmissibility — Review by the General Court of the assessment of the facts and evidence — Possible only where the clear sense of the evidence has been distorted

(Art. 257 TFEU; Statute of the Court of Justice, Annex I, Art. 11(1))

2.      Officials — Promotion — Consideration of comparative merits — Administration’s discretion — Elements that may be taken into consideration — Success in certification tests

(Staff Regulations, Arts 24a, 43 and 45(1))

1.      See the text of the decision.

(see paras 25, 28)

See:

T‑222/07 P Kerstens v Commission [2008] ECR-SC I‑B‑1-37 and II‑B‑1-267, paras 60-62 and the case-law cited therein

2.      The administration has a wide discretion to evaluate the merits to be taken into consideration in connection with a decision on promotion pursuant to Article 45 of the Staff Regulations, which is, however, circumscribed by the need to undertake a consideration of the comparative merits of candidatures with care and impartiality, in the interests of the service and in accordance with the principle of equal treatment. The administration’s duty to have regard for the welfare of officials implies in particular that when the appointing authority takes a decision concerning the situation of an official, it should take into consideration all the factors which may affect its decision and that when doing so it should take into account not only the interests of the service but also those of the official concerned.

Consequently, the appointing authority must not fail to take account, when considering the comparative merits of officials eligible for promotion, of the fact that an official was selected to take part in a training programme with a view to certification, and that he passed the tests showing that he successfully completed that programme, even though that fact does not, in itself, confer on him any entitlement to promotion to a higher grade in the AST function group, or even any automatic priority.

In that context, the appointing authority must, pursuant to Article 24a of the Staff Regulations, take account of the further training and instruction completed by the official for the purposes of promotion in his career as one component of his merits.

However, 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.

In that regard, the obligation to take account of the further training and instruction completed by an official is reflected in particular in the periodical reports on ability, efficiency and conduct in the service, which are drawn up pursuant to Article 43 of the Staff Regulations and are one of the three elements expressly referred to in Article 45(1) of the Staff Regulations as having to be taken into consideration when considering comparative merits for the purposes of promotion.

It follows that the administration may, for the purpose of considering an official’s comparative merits, also include his certification when taking into account the report on that official reflecting his merits.

(see paras 33-38)

See:

T‑132/03 Casini v Commission [2005] ECR-SC I‑A‑253 and II‑1169, paras 52-54; T‑156/05 Lantzoni v Court of Justice [2006] ECR-SC I‑A‑2-189 and II‑A‑2-969, para. 88 and the case-law cited therein; T‑473/07 P Commission v Berrisford [2009] ECR-SC I‑B‑1-17 and II‑B‑1-85, para. 42; T‑51/08 P Commission v Dittert [2011] ECR-SC I‑B‑1-0000 and II‑B‑1-0000, para. 54