JUDGMENT OF THE GENERAL COURT (Appeal Chamber)
16 May 2013
Case T‑281/11 P
Diego Canga Fano
v
Council of the European Union
(Appeal — Civil service — Officials — Promotion — 2009 promotion exercise — Decision not to promote the applicant to grade AD 13 — Comparison of merits — Review by the Courts of manifest error of assessment)
Appeal: against the judgment of the European Union Civil Service Tribunal (First Chamber) of 24 March 2011 in Case F‑104/09 Canga Fano v Council [2011] ECR-SC, seeking to have that judgment set aside.
Held: The appeal is dismissed. Mr Diego Canga Fano is to bear his own costs and pay those incurred by the Council of the European Union.
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 can be taken into consideration
(Staff Regulations, Art. 45)
3. Appeals — Pleas in law — Mistaken assessment of the facts — Inadmissibility — Review by General Court of assessment of 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))
4. Officials — Promotion — Criteria — Merits — Regard to be had to level of responsibilities exercised — Scope — Judicial review
(Staff Regulations, Art. 45)
5. Officials — Promotion — Criteria — Merits — Regard to be had to language skills — Scope
(Staff Regulations, Art. 45)
1. See the text of the decision.
(see paras 41-42, 84, 102)
See:
27/63 Raponi v Commission [1964] ECR 247, 268; 62/75 de Wind v Commission [1976] ECR 1167, para. 17; 280/80 Bakke-d’Aloya v Council [1981] ECR 2887, para. 10; C‑277/01 P Parliament v Samper [2003] ECR I‑3019, para. 35
T‑169/89 Frederiksen v Parliament [1991] ECR II‑1403, para. 70; T‑76/92 Tsirimokos v Parliament [1993] ECR II‑1281, para. 21; T‑547/93 Lopes v Court of Justice [1996] ECR-SC I‑A‑63 and II‑185, para. 133 and the case-law cited; T‑134/02 Tejada Fernández v Commission [2003] ECR-SC I‑A‑125 and II‑609, para. 41; T‑132/03 Casini v Commission [2005] ECR-SC I‑A‑253 and II‑1169, para. 54; T‑156/05 Lantzoni v Court of Justice [2006] ECR-SC I‑A‑2-189 and II‑A‑2-969, para. 46; 16 December 2010, T‑175/09 P Council v Stols [2010] ECR-SC, paras 23 and 47 and the case-law cited
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) 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. Article 45(1) gives the authority a certain amount of discretion as to the weight it gives to each of the three factors mentioned in considering comparative merits, subject nevertheless to 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, seniority in grade or length of service. Such matters may then be a decisive factor in the choice made.
(see paras 43-44)
See:
12 February 1992, T‑52/90 Volger v Parliament [1992] ECR II‑121, para. 24; Lopes v Court of Justice, paras 133 and 138; 5 March 1998, T‑221/96 Manzo-Tafaro v Commission [1998] ECR-SC I‑A‑115 and II‑307, para. 17; 27 April 1999, T‑283/97 Thinus v Commission [1999] ECR-SC I‑A‑69 and II‑353, paras 48 and 49; 18 September 2003, T‑241/02 Callebaut v Commission [2003] ECR-SC I‑A‑215 and II‑1061, para. 44; 10 June 2004, T‑330/03 Liakoura v Council [2004] ECR-SC I‑A‑191 and II‑859, para. 46
3. See the text of the decision.
(see paras 75, 79, 94, 101)
See:
C‑59/96 P Koelman v Commission [1997] ECR I‑4809, para. 31; C‑8/95 P New Holland Ford v Commission [1998] ECR I‑3175, para. 72; C‑551/6 P General Motors v Commission [2006] ECR I‑3173, paras 51 and 54; C‑167/04 P JCB Service v Commission [2006] ECR I‑8935, para. 106
T‑222/07 P Kerstens v Commission [2008] ECR-SC I‑B‑1-37 and II‑B‑1-267, paras 60 and 62; 7 December 2011, T‑274/11 P Mioni v Commission [2011] ECR-SC, para. 18
4. In considering the comparative merits of officials who are eligible for promotion, bearing in mind that the level of responsibilities exercised by an official may not depend solely on the legal classification of his functions under the Regulations, the Courts of the European Union may have regard to the duties actually carried out by the officials in question, other than their official duties, for the purposes of determining whether the appointing authority has made a manifest error in comparing the level of responsibilities exercised by them.
(see para. 78)
5. Article 45(1) of the Staff Regulations does not require an official to have perfect knowledge of a language in order for it to be taken into account in assessing the factor relating to use of languages. The minimum level of knowledge required must be determined by reference to the needs of the service, with particular regard to the nature of the tasks to be performed.
(see para. 117)