JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

15 January 2014

Case T‑95/12 P

Willem Stols

v

Council of the European Union

(Appeal — Civil service — Officials — Promotion — 2007 promotion procedure — Decision not to promote the official concerned to grade AST 11 — Comparison of merits — Review by the court of a manifest error of assessment)

Appeal:      against the judgment delivered by the European Union Civil Service Tribunal (First Chamber) on 13 December 2011 in Case F‑51/08 RENV Stols v Council [2011] ECR-SC, seeking the setting aside of that judgment.

Held:      The appeal is dismissed. Mr Willem Stols is to bear his own costs and is ordered to pay the costs incurred by the Council of the European Union in the appeal proceedings.

Summary

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

(Staff Regulations, Art. 45)

2.      Officials — Promotion — Consideration of comparative merits — Administration’s discretion — Scope — Taking account of staff reports — Other matters which may be taken into consideration

(Staff Regulations, Art. 45)

3.      Officials — Promotion — Criteria — Merits — Taking account of seniority in grade — Secondary consideration — Taking account of long-term consistency of merits — Scope

(Staff Regulations, Art. 45)

1.      The appointing authority possesses, for the purpose of considering the comparative merits of officials who are candidates for promotion, a wide discretion and in that context the Union judicature must restrict itself to consideration of the question whether, regard being had to the various considerations which have influenced the administration in making its assessment, the latter has remained within reasonable limits and has not used its power in a manifestly incorrect way. The Union judicature cannot therefore substitute its assessment of the qualifications and merits of candidates for that of the appointing authority.

In that regard, in order to preserve the effectiveness of the discretion which the legislature saw fit to confer on the appointing authority in connection with promotion, the Union judicature may not annul a decision solely on the ground that it considers there to be evidence raising plausible doubts about the appointing authority’s assessment, or proving that there has been an error of assessment.

It is therefore not for the Union judicature to examine in detail all the files of the candidates eligible for promotion in order to make sure that it agrees with the conclusion reached by the appointing authority, since, if it undertook such an exercise, it would exceed its powers of judicial review by substituting its own assessment of the merits of the candidates eligible for promotion for that of the appointing authority.

However, the wide discretion thus conferred on the appointing authority is limited by the need to consider candidates’ comparative merits carefully and impartially, in the interest of the service and in accordance with the principle of equal treatment. In practice, that examination must be carried out on a basis of equality, using comparable sources of information.

(see paras 29-32)

See:

282/81 Ragusa v Commission [1983] ECR 1245, paras 9 and 13; C‑277/01 P Parliament v Samper [2003] ECR I‑3019, para. 35

T‑132/03 Casini v Commission [2005] ECR-SC I‑A‑253 and II‑1169, paras 52 and 53

2.      The appointing authority’s duty to consider the comparative merits of officials who are eligible for promotion, as laid down in Article 45 of the Staff Regulations, is an expression of the principle of equal treatment of officials and their career prospects, the assessment of their merits being the decisive criterion. Article 45(1) of the Staff Regulations provides that, when considering comparative merits, the appointing authority is to take account in particular of the reports on the officials, the use of languages in the execution of their duties other than the language for which they have produced evidence of thorough knowledge and, where appropriate, the level of responsibilities exercised by them. That provision gives the appointing authority a certain amount of discretion as to the weight it gives to each of the three factors mentioned in considering comparative merits, while still, however, observing the principle of equal treatment.

Where the merits of the officials eligible for promotion are equal on the basis of the three factors set out in Article 45(1), the appointing authority has a secondary power to take other matters into consideration, such as their age or seniority in grade or in the service. Such matters may then be a decisive factor in the choice made.

(see paras 33-34)

See:

T‑281/11 P Canga Fano v Council [2013] ECR-SC, paras 43 and 44 and the case-law cited therein

3.      Seniority in grade and in the service may be applied as a criterion for promotion only as a secondary consideration, where candidates prove to have equal merits on the basis, in particular, of the three criteria expressly referred to in Article 45(1) of the Staff Regulations. However, the appointing authority may lawfully assess the comparative merits of officials eligible for promotion on the basis of the long-term consistency of their respective merits.

In that regard, the criterion of long-term consistency of merits is not separate from the three criteria listed in Article 45 of the Staff Regulations, 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.

If the appointing authority took account solely of the most recent report(s), the consideration of comparative merits would be distorted or, at the very least, incomplete, given that the appointing authority would then not be considering all the merits of all the officials eligible for promotion, and particularly those with more than two years’ seniority in the grade.

Moreover, the criterion of long-term consistency of merits does not simply reintroduce seniority as a criterion in the consideration of comparative merits carried out under Article 45(1) of the Staff Regulations, since considerable seniority may well not go hand in hand with outstanding merits that have been consistent in the long term, so that the two criteria are not at all the same, even though they are linked in some ways.

Lastly, the criterion of long-term consistency of merits enables the appointing authority in reality to strike a fair balance between the aim of ensuring rapid career progression for outstanding officials with an exceptionally high performance level, and the aim of ensuring a normal career for officials who have performed consistently well over a long period.

(see paras 40-45)