JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

3 June 2015

Case F‑78/14

Philipp Oliver Gross

v

European External Action Service (EEAS)

(Civil service — Staff of the EEAS — Officials — Promotion — Articles 43 and 45(1) of the Staff Regulations — Consideration of the comparative merits of all officials eligible for promotion — Officials put forward by the services of the EEAS and those not put forward — Taking into account of appraisal reports — Purely literal assessments)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Gross seeks annulment of the decisions of the appointing authority of the European External Action Service (EEAS) of 9 and 14 October 2013 not to promote him under the 2013 promotion procedure, and annulment of the decisions of 9 and 14 October 2013 establishing the list of officials promoted in that promotion procedure.

Held:      The decision of the appointing authority of the European External Action Service of 9 October 2013 establishing the list of officials promoted under the promotion procedure 2013 is annulled in so far as the name of Mr Gross is not included. The European External Action Service is to bear its own costs and is ordered to pay the costs incurred by Mr Gross.

Summary

1.      Actions brought by officials — Prior administrative complaint — Correspondence between the complaint and the action — Obligation to reproduce in the action all the arguments put forward in the complaint — None

(Staff Regulations, Arts 90 and 91)

2.      Judicial proceedings — Application initiating proceedings — Formal requirements — Clear and precise summary of the pleas relied on

(Rules of Procedure of the Civil Service Tribunal, Art. 35(1)(e))

3.      Officials — Promotion — Consideration of comparative merits — Procedures — Administration’s discretion — Establishment of a system based solely on assessors’ comments, without recourse to marks or analytical assessments — Not permissible

(Staff Regulations, Art. 45)

4.      Officials — Promotion — Consideration of comparative merits — Procedures — Administration’s discretion — Need for Promotions Committee to consider merits of all officials eligible for promotion in the institution, although prior consideration within different administrative units is permissible

(Staff Regulations, Art. 21, first para., and Art. 45(1))

1.      The rule that the complaint and the action must correspond does not mean that the action must reproduce all the arguments put forward in the prior administrative complaint. Even though it may not provide an outcome which satisfies the person concerned, the pre-litigation procedure may have the effect of circumscribing the hearing before the Union judicature, in that the appointing authority’s response to the complaint may persuade the complainant that some of his arguments are unfounded.

(see para. 26)

2.      The Courts of the Union must interpret the pleas in law raised by an applicant in the light of their substance, provided that those pleas can be identified sufficiently clearly from the application.

(see para. 38)

See:

Judgment in Mantzouratos v Parliament, F‑64/10, EU:F:2011:72, para. 16

3.      Even if the appointing authority enjoys a wide discretion in deciding on the procedure or method which it deems most appropriate for considering the comparative merits to be taken into account in the context of a promotion decision under Article 45 of the Staff Regulations, the discretion thereby conferred on the administration is, however, circumscribed by the need to undertake a consideration of comparative merits with care and impartiality, in the interests of the service and in accordance with the principle of equal treatment. Accordingly, that consideration must be conducted on the basis of comparable sources of information. To that end, in order to make the promotion system as fair as possible, the appointing authority must, under Article 45 of the Staff Regulations, ensure that the consideration of comparative merits is objective, first, by guaranteeing that the assessments of all officials are comparable by establishing a common appraisal scale and, second, by ensuring that assessors apply consistent appraisal criteria.

From that point of view, purely literal assessments make it impossible methodically to identify differences in the way in which officials are appraised and thus affect the appointing authority’s ability to compare merits objectively.

The obligation to conduct a comparison of merits on a basis of equality and using comparable sources of information, which is inherent in Article 45 of the Staff Regulations, requires a procedure or method capable of neutralising the subjectivity resulting from the assessments made by the different assessors.

(see paras 40, 45-47)

See:

Judgment in de Wind v Commission, 62/75, EU:C:1976:103, para. 17

Judgments in Casini v Commission, T‑132/03, EU:T:2005:324, para. 52 and the case-law cited therein, and Buendía Sierra v Commission, T‑311/04, EU:T:2006:329, paras 131 and 172 and the case-law cited therein

Judgment in Stols v Council, T‑95/12 P, EU:T:2014:3, para. 32

Judgments in Praskevicius v Parliament, F‑81/10, EU:F:2011:120, para. 53; Van Neyghem v Council, F‑77/11, EU:F:2012:187, para. 38, and Nieminen v Council, F‑81/12, EU:F:2014:50, paras 58 and 91 and the case-law cited therein, on appeal before the General Court of the European Union, Case T‑464/14 P

4.      Article 45(1) of the Staff Regulations requires the appointing authority, before making any promotion, to consider the comparative merits of all the officials eligible for promotion. More precisely, when undertaking its consideration, the appointing authority may be assisted by the administrative services at the various hierarchical levels, in accordance with the principles inherent in the operation of any hierarchical administrative structure, embodied in the first paragraph of Article 21 of the Staff Regulations. However, prior consideration, within each Directorate-General, of the files of officials eligible for promotion must not take the place of the comparative consideration which must be undertaken subsequently by the Promotions Committee and then by the appointing authority, where provision is made for such consideration. In particular, the appointing authority cannot be allowed simply to consider the merits of those officials who are placed at the top of the lists prepared by the various departments or Directorates-General, since that would render consideration of the comparative merits of all the officials eligible for promotion redundant.

Consequently, in the absence of a procedure or method for making assessment more objective, such as, for example, statistical averages, the award of appraisal points with weightings designed to neutralise differences in the appraisal method from one Directorate-General or separate department to another, the allocation of merit points, or guidelines laying down common objective criteria for the career profiles of categories of officials, the system does not guarantee an objective comparison of officials eligible for promotion in the various grades across the entire staff and, in that respect, it is even a factor in compartmentalising the comparison of merits which gives even greater weight to the subjectivity of the appraisal reports.

Moreover, the fact that the Joint Promotion Committee determined that there were manifest errors in the assessment of the merits of officials eligible for promotion does not lead to the conclusion that the merits of all those officials were actually compared.

(see paras 54, 62, 80)

See:

Judgments in Tsirimokos v Parliament, T‑76/92, EU:T:1993:106, para. 17; Allo v Commission, T‑386/94, EU:T:1996:123, para. 31 et seq.; Séché v Commission, T‑112/96 and T‑115/96, EU:T:1999:134, para. 61; Cubero Vermurie v Commission, T‑187/98, EU:T:2000:225, para. 85; Caravelis v Parliament, T‑182/99, EU:T:2001:131, paras 33 and 34; Tsarnavas v Commission, T‑188/01 to T‑190/01, EU:T:2003:77, para. 121; Heurtaux v Commission, T‑172/03, EU:T:2005:34, para. 40, and Nielsen v Council, T‑353/03, EU:T:2005:127, para. 63 et seq.

Order in Debaty v Council, F‑47/13, EU:F:2013:215, para. 31