JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(First Chamber)
9 June 2015
Case F‑65/14
EF
v
European External Action Service (EEAS)
(Civil service — Member of staff of the EEAS — Officials — 2013 promotion procedure — Decision not to promote the applicant to grade AD 13 — Applicant’s objection to the list of officials proposed for promotion — Article 45 of the Staff Regulations — Completion of a minimum of 2 years in the grade — Calculation of the two-year period — Date of the promotion decision)
Application: under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which EF 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 to grade AD 13 under the 2013 promotion procedure.
Held: The action is dismissed. EF is to bear his own costs and is ordered to pay the costs incurred by the European External Action Service.
Summary
1. Officials — Promotion — Conditions — Minimum period completed in the grade — Requirement for it to be the same period as that covered by appraisal reports — No such requirement — Date to be taken into consideration
(Staff Regulations, Art. 45)
2. Officials — Promotion — Consideration of comparative merits — Criteria — Personal merits of candidates — Discretion of the appointing authority
(Staff Regulations, Art. 45)
3. Officials — Promotion — Complaint by a candidate who has not been promoted — Rejection decision — Statement of reasons — Scope
(Staff Regulations, Arts 45 and 90(2))
1. It is clear from Article 45 of the Staff Regulations that only officials who have completed a minimum of two years in their grade are eligible for promotion. That provision does not make it a supplementary condition that the two years required in the grade must also be exactly the same as the two-year period covered by two annual appraisal reports, such reports being, as a rule, prepared for each official for a period corresponding to the calendar year.
The date of the promotion decision is the relevant date for assessing whether the official has completed the minimum period required to be eligible for promotion.
Moreover, Article 45 of the Staff Regulations does not require that the date on which the minimum period requirement must be satisfied must necessarily be the same as the end of the appraisal period covered by the annual appraisal report.
(see paras 26, 27, 29)
See:
Judgment in Casini v Commission, T‑132/03, EU:T:2005:324, para. 84
Judgment in Balabanis and Le Dour v Commission, F‑77/05, EU:F:2006:127, para. 35
2. The fact that an official has obvious and acknowledged merits does not exclude the possibility that, in the context of consideration of the comparative merits of candidates for promotion, other officials may have higher merits.
In that regard, the administration did not commit a manifest error of assessment, that is, an error which is easily recognisable and can be readily detected, in basing its decision on the appraisal reports of the officials promoted and in considering that the merits of those officials were higher than those of the official concerned.
The same finding must be made concerning the administration’s position on the criterion of use of languages, which was that a thorough knowledge of English and French is, as a general rule, sufficient for an EU body’s operational requirements, and knowledge of other languages is therefore of secondary usefulness.
As regards the responsibilities of the official concerned in his various duties, he has not shown that the administration’s view that those responsibilities are on a par with those normally exercised by officials in the same grade and that they cannot, therefore, be assessed as particularly deserving of promotion is vitiated by a manifest error of assessment.
(see paras 43-46)
See:
Judgment in Cubero Vermurie v Commission, C‑446/00 P, EU:C:2001:703, para. 21
Judgment in Morello v Commission, T‑164/00, EU:T:2002:312, para. 100
Judgment in Trentea v FRA, F‑112/10, EU:F:2012:179, para. 104
3. The appointing authority is not under an obligation to provide unsuccessful candidates with reasons for its decisions on promotion. It is required, on the other hand, to provide a statement of grounds for its decision rejecting a complaint lodged pursuant to Article 90(2) of the Staff Regulations by a candidate who has not been promoted, the statement of grounds for such a decision being deemed to be the same as the statement of reasons for the decision against which the complaint was directed.
Since promotion is, according to the wording of Article 45 of the Staff Regulations, ‘by selection’, the statement of reasons should only deal with the existence of the legal conditions laid down by the Staff Regulations for promotion 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.
(see paras 50, 51)
See:
Judgment in Contargyris v Council, T‑6/96, EU:T:1997:76, paras 147 and 148
Judgment in Merhzaoui v Council, F‑18/09, EU:F:2011:180, para. 71 and the case-law cited therein