JUDGMENT OF THE GENERAL COURT (Appeal Chamber)
8 July 2010 (*)
(Appeals – Staff cases – Officials – Annulment at first instance of the career development report – 2005 appraisal exercise – Applicable rules – Heading ‘Potential’ – Appraisal procedure – Attestation procedure)
In Case T‑160/08 P,
APPEAL against the judgment of the Civil Service Tribunal of the European Union (First Chamber) of 21 February 2008 in Case F‑31/07 Putterie-De-Beukelaer v Commission [2008] ECR-SC I-A-1-0000 and II-A-1-0000, seeking to have that judgment set aside,
European Commission, represented by C. Berardis-Kayser and K. Hermann, acting as Agents,
appellant,
the other party to the proceedings being
Françoise Putterie-De-Beukelaer, an official of the European Commission, residing in Brussels (Belgium), represented by É. Boigelot, lawyer,
applicant at first instance,
THE GENERAL COURT (Appeal Chamber),
composed of M. Jaeger, President, A.W.H. Meij, M. Vilaras, N.J. Forwood and M.E. Martins Ribeiro (Rapporteur), Judges,
Registrar: C. Kristensen, Administrator,
gives the following
Judgment
1 By its appeal, brought under Article 9 of Annex I to the Statute of the Court of Justice of the European Union, the Commission of the European Communities is seeking to have set aside the judgment of the European Union Civil Service Tribunal (First Chamber) of 21 February 2008 in Case F-31/07 Putterie-De-Beukelaer v Commission [2008] ECR-SC I-A-1-0000 and II-A-1-0000 (‘the judgment under appeal’), whereby the Tribunal annulled Ms Françoise Putterie-De-Beukelaer’s career development report for the period 1 January to 31 December 2005 (‘the 2005 CDR’) in so far as her potential to carry out the functions of category B* is not recognised therein (‘the contested decision’).
Legal context
2 Under Article 43 of the Staff Regulations of Officials of the European Economic Community (the ‘Staff Regulations’):
‘The ability, efficiency and conduct in the service of each official shall be the subject of a periodical report made at least once every two years as provided for by each institution in accordance with Article 110. Each institution shall lay down provisions conferring the right to lodge an appeal within the reporting procedure, which has to be exercised before lodging a complaint as referred to in Article 90(2).
As of grade 4, for officials in function group AST, the report may also contain an opinion as to whether, on the basis of performance, he has the potential to carry out an administrator’s function.
The report shall be communicated to the official. He shall be entitled to make any comments thereon which he considers relevant.’
3 Article 1(1) and (2) of the general provisions for implementing Article 43 of the Staff Regulations (‘the Article 43 GIP’), adopted by the Commission on 23 December 2004, provides:
‘1. In accordance with Article 43 of the … Staff Regulations …, an appraisal exercise shall be conducted at the beginning of each year. The reporting period shall extend from 1 January to 31 December of the preceding year. Accordingly an annual report, known as the career development review, shall be drawn up for every official within the meaning of Article 1 of the Staff Regulations …, who has been on active service or on secondment in the interests of the service for a continuous period of at least one month during the reporting period. …
2. The appraisal exercise shall be aimed in particular at evaluating the jobholder’s efficiency, abilities and conduct in the service. Merit points shall be awarded on the basis of the appraisal for each of these three headings, as shown in the model review set out in Annex II to this Decision.’
4 Article 2 of the Article 43 GIP provides:
‘1. The jobholder is the official …, as defined in Article 1, who is the subject of the appraisal.
2. The reporting officer shall conduct the appraisal. After a dialogue has taken place in accordance with Article 8(5) the reporting officer shall draw up a draft report. Reporting officers shall sign the reports for which they are responsible.
3. The countersigning officer shall ensure that the appraisal standards defined in Article 8(3) are consistently applied to all the career development reports for which he or she is responsible. Before countersigning the career development reports for which they are responsible, countersigning officers shall compare relative merits and harmonise the merit marks proposed by the reporting officers. In cases of disagreement with the reporting officer, final responsibility for the review shall rest with the countersigning officer.
4. The appeal assessor shall decide on the follow-up to the opinion delivered by the Joint Evaluation Committee …’
5 Article 8 of the Article 43 GIP states:
‘1. The annual appraisal exercise shall begin on 15 January at the latest.
…
4. The jobholder shall, within eight working days of receiving a request to that effect from the reporting officer, produce a self-assessment, which shall be included in the career development report.
5. Within 10 working days of the jobholder submitting a self-assessment, the reporting officer and the jobholder shall engage in a formal dialogue …
6. Immediately after the formal dialogue has been held, the reporting officer shall draw up a draft career development report, which shall include appraisals of efficiency, competencies and conduct in the service and a proposed merit mark which is consistent with the indications given during the formal dialogue.
7. When, for a given grade, at least two-thirds of the career development reports for which a given countersigning officer is responsible have been drafted, the latter shall, jointly with the reporting officers, verify that the appraisal standards set in accordance with Article 8(3) have been applied consistently, compare merits and harmonise the proposed merit marks on the basis of the indications given by the reporting officers during the formal dialogue.
Before the reports are finalised, the Director-General shall, in concertation with the countersigning officers, seek to ensure that, across the Directorate-General and within each grade, the merits of the jobholders concerned have been appraised consistently.
8. After the concertation referred to in paragraph 7, the reporting officer and the countersigning officer shall finalise each career development report and transmit it to the jobholder.
…
9. The jobholder shall have up to five working days to accept the report without adding any comments, accept it after adding some comments in the appropriate section, or refuse to accept the report, stating in the appropriate section the reasons for requesting that it be reconsidered.
…
10. If the jobholder refuses to accept the career development report, the countersigning officer shall hold a dialogue with him or her within 10 working days. If the jobholder, reporting officer or countersigning officer so requests, the reporting officer shall also take part in the dialogue.
…
No later than five working days after this dialogue the countersigning officer shall either confirm or amend the report. He or she shall transmit the report to the jobholder.
The jobholder shall have up to 10 working days to accept the report without adding any comments, accept it after adding some comments in the appropriate section, or refuse to accept it, stating the reasons in the appropriate section. If he or she accepts it the career development report shall be closed. If the jobholder fails to react within the time limit set he or she shall be deemed to have accepted the report.
11. The jobholder’s reasoned refusal to accept the report shall automatically mean referral of the matter to the Joint Evaluation Committee referred to in Article 9.
12. The countersigning officer shall keep the reporting officer duly informed of the progress of the various stages in the procedure and the decisions taken.
…
15. The jobholder shall be notified, by e-mail or other means, that the decision rendering the report final has been adopted, pursuant to this Article or Article 9(7), and that it may be consulted in the computer system. Such notification shall constitute communication within the meaning of Article 25 of the Staff Regulations.’
6 Article 9 of the Article 43 GIP provides:
‘1. A Joint Evaluation Committee … shall be set up in each Directorate-General. …
4. The Committee may not take the place of the reporting officer or the countersigning officer as regards appraising the jobholder’s performance. It shall verify that reviews have been drawn up fairly and objectively, [that is] where possible on a factual basis and in accordance with these general implementing provisions and the appraisals guide. It shall verify in particular that the procedure laid down in Article 8 has been followed. To this end it shall carry out the necessary consultations and shall have at its disposal any working documents which may assist it in carrying out its work.
…
5. The [Joint Evaluation Committee] shall, when appealed to under Article 8(11), deliver an opinion within 10 working days of the matter being referred to it.
…
7. The opinion of the [Joint Evaluation Committee] shall be transmitted to the jobholder, reporting officer, countersigning officer and appeal assessor. The [Joint Evaluation Committee]’s opinion shall, where it has been adopted following a vote, state the majority and minority opinions expressed. If the [Joint Evaluation Committee] has been unable to deliver an opinion, this fact shall be reported to the jobholder, reporting officer, countersigning officer and appeal assessor.
The appeal assessor shall confirm or amend the report within five working days. Where the appeal assessor departs from the recommendations set out in the opinion of the [Joint Evaluation Committee], he or she shall provide reasons for that decision.
Where the [Joint Evaluation Committee] is appealed to by a jobholder who shares the same grade as the reporting officer and either does not deliver a unanimous opinion or fails to deliver an opinion, the appeal assessor shall pay particular attention to the appeal and hold a dialogue with the jobholder within five working days. Five working days after the dialogue has taken place, the appeal assessor shall either confirm the report or amend it in accordance with the preceding subparagraph.
The report shall then be closed and communicated to the person concerned, the reporting officer, the countersigning officer and the [Joint Evaluation Committee].’
7 A model career development report form annexed to the Article 43 GIP includes a section 6.5 ‘Potential’, entitled ‘Provision to be taken into account in the context of the attestation procedure referred to in Article 10(3) of Annex XIII to the Staff Regulations’, which is worded as follows:
‘The Jobholder has taken on category B* tasks (or as of 1 May 2006, tasks related to the grades above AST 7 for those officials in categories D or C before 1 May 2004):
– nature of the tasks in question:
[to be completed by the reporting officer]
– proportion of Jobholder’s activities devoted to these tasks:
[to be completed by the reporting officer]
– quality of the Jobholder’s performance in carrying out these tasks:
[to be completed by the reporting officer].’
8 Administrative Notices No 1‑2006 of 12 January 2006 relating to the staff appraisal exercise for 2006, which covers the reporting period from 1 January to 31 December 2005, states as follows with regard to the heading on the assessment of potential:
‘This heading must be completed for the purposes of the attestation and certification procedures. This heading will only be completed by the reporting officer if the jobholder has made a specific request in his/her self assessment (the box has to be crossed).
A change has been made to the heading “potential”. The Reporting Officer now has access to a list of typical functions for the categories A* and B*. The [reporting officer] should cross those tasks which are relevant to the category directly above that of the jobholder and the [reporting officer] must also evaluate the amount of time the [jobholder] has spent on these particular tasks, as well as the quality of his [or] her achievements in accomplishing these specific tasks.
9 Article 10 of Annex XIII to the Staff Regulations provides:
‘1. Officials in service before 1 May 2004 categories C or D shall be assigned as of 1 May 2006 to career streams allowing for promotions:
in former category C up to grade AST 7;
in former category D up to grade AST 5;
…
An official to whom paragraph 1 applies may become a member of the assistants’ function group without restriction if he passes an open competition or on the basis of an attestation procedure. The attestation procedure shall be based on the seniority, experience, merit and level of training of officials and the availability of posts in the function group AST. A joint committee shall examine the candidatures of officials for the attestation. The institutions shall adopt rules implementing this procedure before 1 May 2004. Where necessary, specific provision shall be made by the institutions to take account of such change leading to a change in the applicable promotion rates.’
10 Under Article 1 of the Commission Decision of 7 April 2004 laying down the rules for implementing the attestation procedure (the ‘Decision of 7 April 2004’), which was published in Administrative Notices No 70‑2004 of 22 June 2004:
‘1. The purpose of the attestation procedure is to select officials employed in categories C or D before [1 May 2004] who may become members of the assistants’ function group without restrictions.
…’
11 Article 4 of the decision of 7 April 2004 provides:
‘Before 30 September each year the appointing authority shall decide on the number of posts in the assistants’ function group which can be filled in the following year by officials attested within the meaning of Article 8.
Following that decision a call for applications shall be published by the appointing authority.’
12 Article 5 of the decision of 7 April 2004 states:
‘1. Officials referred to in Article 1 who have applied shall be admitted to the attestation procedure provided they meet both of the following criteria:
– a level of education and training equivalent to that required in Article 5(3)(a) of the Staff Regulations to be appointed official in the assistants’ function group;
– seniority of at least five years in career stream C or D.
2. During each attestation exercise the appointing authority shall draw up and publish the list of officials who have applied for and been admitted to the attestation procedure.
3. Officials who have applied and who consider that they satisfy both the criteria mentioned in paragraph 1 and are not on the list mentioned in paragraph 2 may appeal to the committee referred to in Article 9 within 10 working days following publication of the list in question.
…’
13 Article 6 of the Decision of 7 April 2004 provides that:
‘1. During each attestation exercise the appointing authority shall draw up a list of eligible officials in order of priority based on the following criteria: level of education and training; seniority in career stream C or D; experience, and merit evaluated on the basis of available career development reviews.
2. The value of the criteria and the weighting applied to them shall be decided by the appointing authority before 31 December 2004 after consulting the committee referred to in Article 9. They may be adjusted each year by decision of the appointing authority on the recommendation of the committee referred to in Article 9.
3. Each candidate who is admitted shall be informed of his place on the list drawn up by the [appointing authority] and of the number of points obtained, on the basis of the criteria, values and weightings referred to in paragraphs 1 and 2.
4. Within 10 working days of such notification, admitted applicants may appeal to the committee referred to in Article 9 if they dispute the number of points they have obtained. They must justify their appeal and supply the committee referred to in Article 9 with all the necessary official documents.
The committee referred to in Article 9 shall deliver an opinion within 10 working days and notify the appointing authority of it; the latter shall decide on the action to be taken.’
14 Under Article 7 of the Decision of 7 April 2004:
‘1. The highest-ranked officials on the list referred to in Article 6, down to a ranking equivalent to twice the number of posts decided on in accordance with Article 4, shall be authorised to apply, until 31 December of the following year, for the vacant posts to be filled in the assistants’ function group.
2. The list of officials referred to in paragraph 1 shall be published by the appointing authority.
3. The vacant posts which can be filled by the officials referred to in paragraph 1 shall be indicated when the vacancy notices are published.’
15 Article 8 of the decision of 7 April 2004 states:
‘1. The officials referred to in Article 7(1) appointed to the vacant posts referred to in Article 7(3) shall be deemed to have been attested. They shall become members of the assistants’ function group without career restriction.
2. The appointing authority shall publish before 31 March each year the list of officials attested during the previous attestation exercise.’
16 Article 9 of the Decision of 7 April 2004 establishes a joint attestation committee and lays down its composition and working methods. That article also provides, in paragraph 7, that at the beginning of each year the committee is to adopt an opinion on the results of the previous attestation exercise, which may contain recommendations, inter alia on the values and weightings.
17 The Decision of 7 April 2004 was repealed and replaced by the Commission Decision of 29 November 2006 laying down the rules for implementing the attestation procedure (‘the Decision of 29 November 2006’).
18 Article 5(1) of the Decision of 29 November 2006 provides that:
‘Officials referred to in Article 1 who have applied shall be admitted to the attestation procedure, after consultation of the committee referred to in Article 7, provided they meet each of the following four criteria:
– have a level of education at least equivalent to that required by Article 5(3)(a) of the Staff Regulations to be appointed official in the assistants’ function group;
– have at least five years’ seniority in career stream C or D. ...;
– have the recognised potential to perform “Administrative assistant” level functions;
– not be in a situation of inadequate performance or insufficiency.’
19 The decision of the appointing authority on the application of the admission criteria for the 2006 attestation procedure, published in Administrative Notices No 59‑2006 of 21 December 2006, lays down in point 3, headed ‘Potential’:
‘The potential of applicants to perform “Administrative assistant” level functions must have been positively assessed in the 2005 evaluation exercise.’
Facts
20 The facts of the case are set out at paragraphs 16 to 24 of the judgment under appeal as follows:
‘16 [Ms Putterie-De-Beukelaer] has worked as an official in the Secretariat-General of the Commission since 1985. She was a management secretary until November 1996, when she changed her career direction and became an IT trainer. She was officially recognised as having responsibility for IT training in 2000.
17 Classed as grade C 2 before 1 May 2004, [Ms Putterie-De-Beukelaer] achieved grade C*5 as from that date under Article 2(1) of Annex XIII to the Staff Regulations, then grade AST 5 as from 1 May 2006 pursuant to Article 8(1) of the Staff Regulations.
18 During the period between 1 January and 31 December 2005, which was covered by a CDR, [Ms Putterie-De-Beukelaer] performed the same functions as previously. When her 2005 CDR was drawn up, [she] requested, as she had in connection with her previous CDR, that the reporting officer complete section 6.5 “Potential”, as provided for in Administrative Notice No 1‑2006 of 12 January 2006, so that she could participate in the 2006 attestation procedure.
19 In section 6.5 of the 2005 CDR, the subtitle of which recalls that it must be taken into account for the attestation procedure, the reporting officer considered that the tasks performed by [Ms Putterie-De-Beukelaer] during the reference period did not correspond, even partially, to those incumbent upon an official in category B*. Consequently, the reporting officer considered, as in the preceding CDR, that [Ms Putterie-De-Beukelaer] had not demonstrated her potential to assume the functions relating to that category. Since the decision of the countersigning officer was to the same effect, on 6 June 2006 [Ms Putterie-De-Beukelaer] lodged the reasoned refusal provided for in Article 8(11) of the GIP 43 and thus appealed to the [Joint Evaluation Committee].
20 In its opinion, the [Joint Evaluation Committee] found no inconsistency between the comments and marks attributed to [Ms Putterie-De-Beukelaer], nor manifest error of assessment as regards the non-recognition of her potential to assume the functions of category B*.
21 By a decision of 26 June 2006, the appeal assessor confirmed the 2005 CDR.
22 On 26 September 2006 [Ms Putterie-De-Beukelaer] lodged a ‘complaint under Article 90(1) of the Staff Regulations’ against “the decision of her hierarchical authority regarding the 2005 CDR not to allow [her] admittance to attestation by reason of the failure to properly appreciate [her] work … and an error in the job title” …
23 By a decision of 21 December 2006, the appointing authority rejected [Ms Putterie-De-Beukelaer]’s complaint and considered that the countersigning officer, whose task it is “to decide, on the basis of the information provided by the reporting officer, whether the person assessed has in fact demonstrated her potential to undertake tasks of the higher category”, had committed “no manifest error of assessment”. The 2006 attestation procedure began on the same day with the publication of the call for applications in Administrative Notices No 60‑2006.
24 According to the extract from [Ms Putterie-De-Beukelaer]’s Sysper 2 electronic file lodged by [Ms Putterie-De-Beukelaer] at the hearing, her application, which was submitted on 25 January 2007, was rejected on 1 February 2007 on the ground that her potential had not been acknowledged. [Ms Putterie-De-Beukelaer]’s appeal against that decision, which was lodged on 24 April 2007, was rejected by the appointing authority on 25 May 2007 after examination by the joint attestation committee. In its opinion, which was endorsed by the appointing authority, the committee considered that [Ms Putterie-De-Beukelaer] could not be attested as her potential to perform category B* functions had been denied by the countersigning officer reviewing her 2005 CDR.’
21 By application lodged at the Registry of the Civil Service Tribunal on 2 April 2007, Ms Putterie-De-Beukelaer brought an action, which was registered as Case F-31/07.
22 Ms Putterie-De-Beukelaer claimed, at first instance, that the Civil Service Tribunal should annul her 2005 CDR in so far as the administration did not acknowledge therein her potential to perform category B* functions and order the Commission to pay the costs.
23 The Commission contended, at first instance, that the Civil Service Tribunal should dismiss the application as inadmissible and, in any event, as unfounded, and make an appropriate order as to costs.
The judgment under appeal
24 As regards the substance, and without reference to the pleas which Ms Putterie-De-Beukelaer had raised in support of her application for annulment of the contested decision, the Civil Service Tribunal, after observing that this Court had held in Joined Cases T‑576/93 to T‑582/93 Browet and Others v Commission [1994] ECR II‑677, paragraph 35, that a plea concerned with the scope of the law’s application concerns a matter of public policy and it is for the Court to consider it of its own motion, considered at paragraph 52 of the judgment under appeal that the plea of public policy based on the ground that the contested decision infringed the respective scope of application of Article 43 of the Staff Regulations and of Article 10(3) of Annex XIII to those Regulations must be raised by the Tribunal of its own motion.
25 After having invited the parties to submit their observations on the fact that the Tribunal intended to raise of its own motion the plea of public policy based on the fact that the contested decision infringed the respective scope of application of Article 43 of the Staff Regulations and of Article 10(3) of Annex XIII to those Regulations, the Civil Service Tribunal held:
‘54 In her reply [Ms Putterie-De-Beukelaer] indicated that in her opinion the plea raised of the Tribunal’s own motion was well founded.
55 By contrast, in its written observations on the plea notified by the Tribunal, the Commission denied that the Tribunal had the power to raise pleas of substantive legality of its own motion. First, in its opinion such pleas could be examined by the Community court only if they were raised by the applicants or, at the very least, if they were directly linked to the arguments put forward by the parties themselves. Secondly, the Commission considered that if it were possible for the court to examine of its own motion questions of the substantive legality of a contested measure, that would render entirely ineffective both Article 48(2) of the Rules of Procedure of the Court of First Instance, which prohibits the parties from introducing new pleas in the course of proceedings, and the rule that the application correspond to the complaint. Finally, according to the Commission, the raising of a plea of substantive legality of the court’s own motion was in danger of violating the right to a fair hearing by altering the framework of the adversarial procedure.
56 It is necessary, as a preliminary issue, to address these objections of principle.
57 Firstly, it has already been found that, contrary to the assertions of the Commission, the Community court has the power and, where appropriate, the duty to raise certain pleas of substantive legality of its own motion. As stated in paragraph 50, this is so where the scope of the law’s application has been breached. Similarly, the force of res judicata with absolute effect is a public policy plea relating to substantive legality, which must be raised by the court of its own motion (judgment in Joined Cases C‑442/03 P and C‑471/03 P P & O European Ferries (Vizcaya) and Diputación Foral de Vizcaya v Commission [2006] ECR I‑4845, paragraph 45). Finally, in certain circumstances Community case-law requires that a national court called upon to apply the provisions of Community law within its jurisdiction should raise pleas of substantive legality of its own motion, in particular those based on the unfair nature of a term in contracts concluded by consumers with professionals (judgments in [Case] C‑473/00 Cofidis v Fredout [2002] ECR I‑10875, paragraphs 36 and 38, and [Case] C‑168/05 Mostaza Claro v Centro Móvil Milenium [2006] ECR I‑10421, paragraph 39).
58 As regards the Commission’s argument that the court could raise a plea of substantive legality of its own motion only if that plea had been raised by the parties or if it were directly linked to the arguments they had put forward, that argument is in contradiction with the very purpose of the raising of a plea of the court’s own motion and would be tantamount to denying the Tribunal any possibility of raising a plea of substantive legality of its own motion, whereas case-law provides for it to do so.
59 Secondly, contrary to the arguments put forward by the Commission, the rule prohibiting applicants in civil service cases from raising in their action pleas unconnected with the arguments developed in their prior complaint and the rule, set out in Article 43(1) of the Rules of Procedure, prohibiting the introduction of new pleas after the initial exchange of statement apply to the parties, and not to the Tribunal.
60 Thirdly, the Commission’s argument that the raising of a plea of substantive legality of the Tribunal’s own motion could endanger the adversarial nature of the proceedings and the principle of respect for the right to a fair hearing cannot be accepted. Article 77 of the Rules of Procedure provides that the Tribunal may, of its own motion, decide that there exists an absolute bar to proceeding with an action, on condition that the parties have first been heard. If that condition adequately safeguards the principle of audi alteram partem and respects the right to a fair hearing where the Tribunal decides of its own motion that there exists an absolute bar to proceeding with an action, there is no reason to suppose that the same does not apply where a plea of public policy is raised of the court’s own motion, whether it relate to substantive or external legality. It must therefore be considered that, by notifying the parties of the plea of public policy which it intended to raise, by inviting the written observations of the parties regarding that intention and by enabling them to set out their views in that regard at the hearing, the Tribunal has satisfied the requirements of the principles on which the Commission relies.
61 It follows from the foregoing that the arguments put forward by the Commission against the raising of a plea of substantive legality of the Tribunal’s own motion must be dismissed.’
26 In those circumstances, the Civil Service Tribunal, at paragraph 62 of the judgment under appeal, raised of its own motion the breach in the contested decision of the respective scope of application of Article 43 of the Staff Regulations and Article 10(3) of Annex XIII to those Regulations and held, at paragraph 74 of the judgment under appeal, that the contested decision had been adopted under the rules as to competence, procedure and substantive requirements in relation to the appraisal procedure, not under those in relation to the attestation procedure, which were the only rules applicable. In considering that Ms Putterie-De-Beukelaer could not be admitted to attestation on the ground that she had not demonstrated that she had the required ‘potential’ to obtain attestation, although under the applicable provisions admittance to attestation was not subject to that condition, but depended solely on seniority, experience, merit and level of education/training, the Civil Service Tribunal considered that the administration had breached the respective scope of application of the two provisions in question and, accordingly, annulled the contested decision.
The appeal
Procedure and forms of order sought by the parties
27 By document lodged at the Court Registry on 5 May 2008, the Commission brought the present appeal.
28 The parties presented oral argument at the hearing on 23 September 2009.
29 The Commission claims that the Court should:
– set aside the judgment under appeal;
– refer the case back to the Civil Service Tribunal;
– reserve the costs.
30 Ms Putterie-De-Beukelaer contends that the Court should:
– dismiss the appeal;
– order the Commission to pay the costs of the appeal.
Arguments of the parties
31 The Commission raises a single plea in support of its appeal, referring specifically to paragraphs 50 to 62 of the judgment under appeal. This plea may be subdivided into two parts, one alleging that the Civil Service Tribunal infringed the principles relating to the scope of the review by the Community judicature of its own motion, in a direct action, of the substantive legality of the contested act and the other alleging breach of the principle that a court must rule on the issues submitted to it and is prohibited from adjudicating ultra petita.
First part: breach of the principles relating to the scope of the review by the Community judicature of its own motion, in a direct action, of a plea relating to the substantive legality of the contested act
32 The Commission maintains that the Civil Service Tribunal’s reasoning at paragraphs 50 to 62 of the judgment under appeal is wrong in law, since it fails to have regard to the distinction, which is none the less well established in the case-law of both the Court of Justice and this Court, between, on the one hand, the external legality of an act and the conditions for admissibility of an action relating to public policy and, on the other hand, the substantive legality (internal legality) of that act.
33 The plea alleging failure to have regard to the respective scope of Article 43 and of Article 10(3) of Annex XIII to the Staff Regulations relate to the internal legality of the act, as the Civil Service Tribunal appears to recognise at paragraph 61 of the judgment under appeal, which cannot be raised by the court of its own motion, unlike a plea relating to the external legality or an application to strike out an action on grounds of public policy.
34 In the Commission’s submission, in the first place, no provision of the Statute of the Court of Justice or the Rules of Procedure of this Court or the Civil Service Tribunal affords the Community judicature the possibility to raise at any time a plea relating to the internal legality of the contested act, unlike Article 77 of the Rules of Procedure of the Civil Service Tribunal on an absolute bar to proceeding.
35 In the second place, such a possibility is precluded both by the Court of Justice in its judgment in Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, where it was held that a plea which goes to substantive legality is concerned with an infringement of a rule of law relating to the application of the Treaty and can be examined by the Community judicature only if it is raised by the applicant, and by this Court in its judgment in Case T‑44/00 Mannesmannröhren-Werke v Commission [2004] ECR II‑2223, paragraphs 126 and 192, where it was held that substantive pleas, unlike those alleging inadequacy of reasons, cannot be raised by the Community judicature of its own motion.
36 In the third place, the examples from the case-law which the Civil Service Tribunal cites in support of what it considers to be the raising of its own motion of internal legality tend to contradict its reasoning rather than support it.
37 First, the force of res judicata with absolute effect is not, contrary to what the Civil Service Tribunal held at paragraph 57 of the judgment under appeal, a plea of internal legality, but a ground of inadmissibility of an action or a plea. The Commission submits that the Court of Justice held, at paragraph 45 of its judgment in Joined Cases C‑442/03 P and C‑471/03 P P & O European Ferries (Vizcaya) and Diputación Foral de Vizcaya v Commission [2006] ECR I‑4845, that the force of res judicata with absolute effect is a matter of public policy that may be raised by the court of its own motion, since it prevents a court from re‑examining the pleas dealt with in a judgment which has become final, thus disregarding the principle of res judicata.
38 Second, the examples from the judgments of the Court of Justice based on the interpretation of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29), which preclude the court being prohibited from raising of its own motion the unfairness of a contractual term, have no bearing on the extent to which the Community judicature can raise a plea of its own motion in a direct administrative action within the meaning of Article 236 EC. In any event, the Court of Justice, in Joined Cases C‑222/05 to C‑225/05 van der Weerd and Others [2007] ECR I‑4233, limited the scope of the judgments in Case C‑473/00 Cofidis [2002] ECR I‑10875 and Case C‑168/05 Mostaza Claro [2006] ECR I‑10421 when it held that the principle of effectiveness does not impose a duty on national courts to raise a plea based on a Community provision of their own motion, irrespective of the importance of that provision to the Community legal order, where the parties are given a genuine opportunity to raise a plea based on Community law before a national court.
39 In the fourth place, while the examination of the court’s own motion of a plea based on the scope of the law’s application is at least known in French administrative law, that is not the case in the Community legal order. The apparent recourse to that plea by this Court in Browet and Others v Commission, paragraph 24 above (paragraph 35) has remained a unique case and merely constitutes an obiter dictum in the Court’s reasoning, since the outcome of the dispute was determined on the basis of the pleas submitted by the parties.
40 Ms Putterie-De-Beukelaer maintains, first of all, that under the relevant case-law it is for the Community judicature to raise pleas relating to public policy of its own motion, although it is not easy to define them. As this Court held in Browet and Others v Commission, paragraph 24 above, a plea concerned with the scope of the law’s application certainly constitutes such a plea, and, contrary to the Commission’s contention, not only where it has a direct bearing on the arguments of the opposing party. Such a limitation would contradict the possibility of a plea being raised of the court’s own motion.
41 Next, whether or not the court can raise a plea of its own motion cannot depend on a theoretical classification between substantive legality and external legality, which, moreover, the Court of Justice has not established. That formalistic and uncertain distinction would lead to excessive schematisation. Once a plea is a matter of public policy, it should be raised of the court’s own motion, whether it relates to substantive legality or external legality. The question is therefore whether the plea based on failure to adhere to the scope of the law’s application is a matter of public policy. In that regard, it is unacceptable that that should not be the case with respect to such substantial illegality, when breaches of certain procedural rules must be raised of the court’s own motion.
42 Last, the scope of the case-law on which the Commission relies must not be exaggerated, in so far as the distinction between pleas relating to external legality and those relating to substantive legality was drawn in a situation in which it had no consequence on the outcome of the dispute. Furthermore, that case-law relates solely to pleas based respectively on the obligation to state reasons and a manifest error of assessment, the latter being a substantive plea par excellence. In the cases which the Court of Justice has examined, it took a different approach and raised pleas of its own motion without consideration of their classification. Thus, according to the case-law, a finding concerning the competence of the Commission should be raised of the court’s own motion.
43 Furthermore, in Ms Putterie-De-Beukelaer’s submission, it should be stated that, in the context of contracts containing unfair terms, the Court of Justice attached importance to the fact that the national court can raise the abusive nature of a clause of its own motion and it would therefore be illogical if this Court must preclude that possibility in ‘annulment proceedings’.
44 In any event, the failure to have regard to the scope of the law’s application constitutes, in the present case, a sufficiently important manifest irregularity. The fact of having applied the rules of the assessment procedure in the context of a decision adopted under the attestation procedure entailed substantial irregularities of both competence and form, procedural irregularities relating, in particular, to the method of drawing up the contested decision and, consequently, a breach of Ms Putterie-De-Beukelaer’s rights of defence. The respective objectives of Article 43 of the Staff Regulations and of Article 10(3) of Annex XIII to the Staff Regulations were determined in the interest of officials in general and not of the persons directly concerned.
Second part: breach of the principle that a court must reach its decision on all the issues submitted to it and is prohibited from adjudicating ultra petita
45 The Commission maintains that by annulling the contested decision on the sole basis of a plea raised of its own motion and based on the failure to have regard to the respective scope of application of Article 43 of the Staff Regulations and Article 10(3) of Annex XIII to the Staff Regulations, the Civil Service Tribunal breached the principle that a court is to reach a decision on all the issues submitted to it and adjudicated ultra petita. The Community judicature is bound by the framework of the dispute as defined in the originating application. With the exception of pleas of inadmissibility and public-policy pleas relating to the external legality of the act, the review carried out by the Community judicature must observe the principle that a court must reach its decision on all the issues submitted to it and only those issues, which prohibits a court from unilaterally extending the terms of the dispute. In direct actions, it is for the parties to the case to define the scope of the case and to choose the pleas of substantive legality raised against the act.
46 Thus, in the Commission’s submission, in Browet and Others v Commission, paragraph 24 above, this Court took account of the fact that the plea based on the failure to have regard to the scope of the law’s application was directly linked to the parties’ arguments, since, in order to be able to adjudicate on the applicants’ plea, the Court had in any event to examine the scope of the law’s application.
47 The Court of Justice did not depart from that concept when it held that, although it must rule solely on the application of the parties, whose task it is to define the scope of the dispute, the Court cannot be bound exclusively by the arguments which the parties put forward in support of their claims, since it would otherwise be forced, in some circumstances, to base its decisions on erroneous legal considerations, since it was thereby referring only to the arguments, which the court can supplement at any time, unlike the pleas. The fact that in the present case the Civil Service Tribunal gave the parties the opportunity to express their views on the plea in question cannot suffice for it to be recognised as coming within the scope of the dispute.
48 The Commission contends that the presence of the heading ‘Potential’ did not cause any harm at procedural level to Ms Putterie-De-Beukelaer, but had the opposite effect, since it enabled her to request a new assessment by her countersigning officer and an examination of the case by the joint evaluation committee, and also to lodge a complaint even before the commencement of the attestation procedure. When the sole question for the Civil Service Tribunal was the merits of the failure to recognise Ms Putterie-De-Beukelaer’s potential, it embarked upon an abstract analysis and failed to address the contentious points raised.
49 Whilst the court cannot adopt an illegal decision – which is why it is not bound by Ms Putterie-De-Beukelaer’s legally flawed arguments –, it must have regard to the pleas relating to substantive legality which she raised. In the Commission’s submission, the court is required to have regard to the pleas relating to internal legality raised by Ms Putterie-De-Beukelaer precisely in order to avoid unexpected results, as in the present case, where the Civil Service Tribunal did indeed annul the contested decision but where the annulment had no effect on Ms Putterie-De-Beukelaer’s situation.
50 Even on the assumption that the court reviewing the legality of a decision can adjudicate only within the framework of the legislation in force and that it must therefore examine of its own motion the scope of the application of the law on which Ms Putterie-De-Beukelaer’s claims are based, the Civil Service Tribunal was still not correct to raise that plea of its own motion in the proceedings before it. Nor did it explain why examination of the pleas raised would have led it to neglect its role as arbiter of legality.
51 In the alternative, in so far as paragraphs 75 and 76 of the judgment under appeal might be considered to be severable from the plea alleging failure to have regard to the respective scope of application of Article 43 of the Staff Regulations and of Article 10(3) of Annex XIII to the Staff Regulations and characterised as a separate plea alleging that the author of the contested decision was not competent to adopt it, the decision to annul the 2005 CDR in that it does not recognise Ms Putterie-De-Beukelaer’s potential to undertake category B* tasks was adopted in breach of the rights of the defence, contrary to the requirements of Article 77 of the Rules of Procedure of the Civil Service Tribunal.
52 In addition, the fact of having upheld that plea rests on the incorrect premiss that the heading ‘Potential’ in the 2005 CDR constituted an autonomous decision by comparison with the CDR that could be taken by an authority other than those involved in the appraisal procedure. That heading cannot be separated from the numerous elements constituting the 2005 CDR, which is the act that can be challenged.
53 Moreover, contrary to the findings of the Civil Service Tribunal set out at paragraph 76 of the judgment under appeal, the appointing authority had to decide on admission to the attestation procedure, for which the heading ‘Potential’ in the 2005 CDR was one of the preconditions. The provisions governing the 2006 attestation procedure do not envisage that the existence of potential as a criterion for admission should be established by the appointing authority competent for admission to the attestation procedure.
54 Ms Putterie-De-Beukelaer claims, first of all, that the existence of a public-policy plea, such as the failure to have regard to the scope of the law’s application, constitutes a derogation from the rule that a court must reach its decision on all the questions submitted to it and nothing else and that to deny the court the possibility to raise of its own motion a public-policy plea which is not directly connected with the parties’ arguments would contradict the very object of the court’s power to raise a plea of its own motion.
55 Next, in response to the Commission’s argument that the presence of the heading ‘Potential’ caused no harm to Ms Putterie-De-Beukelaer, she emphasises that she had no effective means of implementing the appeal established in relation to the attestation to challenge the rejection of her application for admission to the attestation procedure. In any event, as the Civil Service Tribunal held, it would have neglected its function if, even in the absence of a challenge in that regard, it had settled the dispute on the basis of a rule that was not applicable to the case. By allowing the parties to discuss the plea, the Civil Service Tribunal had regard to the audi alteram partem principle and the rights of the defence.
56 Last, regard being had to the fact that on the same date the Civil Service Tribunal held in Case F‑19/06 Semeraro v Commission [2008] ECR-SC I-A-1-0000 and II-A-1-0000, that the insertion in a career development report for 2004 of the reference to potential was unlawful, the judgment under appeal meets a desire for consistency, since the same legal framework and the same rules applied to both cases.
57 As regards the Commission’s alternative observations, Ms Putterie-De-Beukelaer agrees with the Commission that paragraphs 75 and 76 cannot be considered a separate plea alleging that the author of the contested decision was not competent to adopt it. In any event, the audi alteram partem principle and the rights of the defence were respected on that point as well.
Findings of the Court
58 In her action, Ms Putterie-De-Beukelaer sought annulment of the 2005 CDR in that, under the heading ‘Potential’, included for the purposes of the attestation procedure, her potential to carry out category B* functions was not acknowledged.
59 It must be borne in mind that the Civil Service Tribunal, without examining the substance of Ms Putterie-De-Beukelaer’s action, raised a plea based on failure to have regard to the scope of the law’s application and concluded, in substance, at paragraph 74 of the judgment under appeal that the contested decision had been adopted under the rules as to competence, procedure and substantive requirements in relation to the appraisal procedure and not under those in relation to the attestation procedure, which were the only rules applicable.
60 In the first place, the Civil Service Tribunal found, at paragraphs 75 and 76 of the judgment under appeal, that the contested decision had not been adopted by the competent authority, that is to say, the appointing authority, which is responsible for ruling on candidatures for the attestation of officials, but by the countersigning officer, who is competent for the adoption of the career development report (‘the CDR’).
61 It must be borne in mind that the incompetence of the author of an act that adversely affects the applicant is a plea of public policy (see to that effect Case 14/59 Société des fonderies de Pont-à-Mousson v High Authority [1959] ECR 445, 473, and Case T‑182 Marx Esser and Del Amo Martinez v Parliament [1996] ECR-SC. I‑A‑411 and II‑1197, paragraphs 42 and 44) which the Union judicature must examine, where necessary of its own motion (Case C‑210/98 P Salzgitter v Commission [2000] ECR I‑5843, paragraph 56, and Case T‑165/04 Vounakis v Commission, T‑165/04 [2006] ECR-SC I‑A‑2-155 and II-A-2-735, paragraph 30).
62 In the second place, the Civil Service Tribunal concluded at paragraphs 77 to 79 of the judgment under appeal that Ms Putterie-De-Beukelaer had been unable effectively to invoke the appeal established with regard to attestation in order to challenge the rejection of her application for admission to the attestation procedure, since the joint committee for the attestation exercise, which, in accordance with Article 10(3) of Annex XIII to the Staff Regulations, is consulted if an official disputes the decision rejecting his candidature for attestation, had declined jurisdiction to examine the applicant’s internal appeal.
63 According to the case-law, failure to comply with the procedural rules relating to the adoption of an act adversely affecting an individual constitutes a breach of essential procedural requirements, which the Union judicature may examine of its own motion (judgment of 13 December 2007 in Case T‑113/05 Angelidis v Parliament [2007] ECR-SC I-A-2-0000 and II-A-2-0000, and judgment of 2 October 2009 in Joined Cases T‑300/05 and T‑316/05 Cyprus v Commission, not published in the ECR, paragraph 206). The refusal to examine an internal appeal provided for in the procedural rules applicable to the adoption of an act adversely affecting an individual clearly constitutes a breach of essential procedural requirements within the meaning of that case-law and could therefore be raised by the Civil Service Tribunal of its own motion.
64 In the third place, the Civil Service Tribunal concluded at paragraphs 80 to 86 of the judgment under appeal that potential was not among the criteria provided for in the provisions applicable to the attestation procedure.
65 It must be held that the interpretation of the rules which are relevant for the purpose of determining whether or not the administration should have ruled in the contested decision on Ms Putterie-De-Beukelaer’s potential constituted a necessary precondition to the examination of the plea alleging an error of assessment which she raised in her action. It has consistently been held that while the court must adjudicate only on the application of the parties, who must define the scope of the dispute, it cannot be bound solely by the arguments which they put forward in support of their claims, as otherwise it would, should the case arise, be compelled to base its decisions on legally flawed considerations (orders of 27 September 2004 in Case C‑470/02 P UER v M6 and Others, not published in the ECR, paragraph 69, and of 13 June 2006 in Case C‑172/05 P Mancini v Commission, not published in the ECR, paragraph 41).
66 It follows that, in the circumstances of the present case, the Civil Service Tribunal did not err in law when it examined the possible breach of the relevant rules by Ms Putterie-De-Beukelaer’s 2005 CDR, in so far as that examination was necessary, first, for the analysis of the pleas alleging that the author of the contested act was not competent to adopt it and that there had been a breach of essential procedural requirements, which the Civil Service Tribunal could raise of its own motion, and second, in order to respond to a preliminary question which had to be resolved in the light of the arguments put forward by Ms Putterie-De-Beukelaer.
67 Consequently, the Court must reject the Commission’s main objection to the judgment under appeal, alleging an error of law in relation to the Civil Service Tribunal’s examination of the three questions referred to above, without there being any need to address the question whether the Union judicature can examine of its own motion a plea based on failure to have regard to the scope of the law’s application.
68 It must be further noted that in its subsidiary observations the Commission takes issue, in substance, with the Civil Service Tribunal’s analysis of the rules applicable to the facts of the case. First, the Commission maintains that the Civil Service Tribunal relies on an incorrect premiss that the heading ‘Potential’ constitutes an autonomous decision by comparison with the CDR, which can be taken by a different authority from the authorities competent to undertake the appraisal procedure. Second, the Commission submits that the provisions governing the 2006 attestation procedure do not provide that the existence of potential as a criterion for admission to the attestation procedure must be established not by the reporting officer but by the appointing authority competent for admission to the attestation procedure.
69 At the hearing, the Commission stated, in answer to a question put by the Court, that the reporting officer and the countersigning officer were the persons competent to appraise Ms Putterie-De-Beukelaer’s potential and that the Civil Service Tribunal, in considering that such an appraisal was a matter for the appointing authority competent for admission to the attestation procedure, erred in holding that the Commission had failed to have regard to the respective scope of Article 43 of the Staff Regulations and Article 10(3) of Annex XIII to those regulations.
70 In that regard, it must be observed, as a preliminary point, that according to consistent case-law, in interpreting a provision of Community law, it is necessary to consider not only its wording and its context but also the objects of the rules of which it forms part (Case C‑84/95 Bosphorus [1996] ECR I‑3953, paragraph 11; judgment of 22 October 2009 in Case C‑301/08 Bogiatzi [2009] ECR I-10185, paragraph 39; and Case T‑94/98 Alferink and Others v Commission [2008] ECR II‑1125, paragraph 68).
71 It must be borne in mind that the first paragraph of Article 43 of the Staff Regulations requires that, for each official, a CDR is to be drawn up, as provided for by each institution, at least once every two years, covering ability, efficiency and conduct in the service.
72 It is settled case-law that the CDR, as an internal document, is primarily intended to provide the administration with periodic information on the performance of their duties by its officials. For the official himself, it plays an important part in the progress of his career, mainly as regards transfer and promotion (see judgment of 12 September 2007 in Case T‑249/04 Combescot v Commission [2007] ECR-SC I-A-2-181 and II-A-2-1219, paragraph 37 and the case-law cited).
73 As regards, in the first place, officials in group AST, as of grade four, the second paragraph of Article 43 of the Staff Regulations provides that their CDR may also contain an opinion as to whether, on the basis of performance, the official concerned has the potential to carry out an administrator’s functions.
74 As regards, in the second place, officials in categories C and D in service before 1 May 2004, referred to in Article 10(1) of Annex XIII to the Staff Regulations, whose career streams are set at grades AST 7 and AST 5 respectively, they may also undertake tasks coming within higher grades in the AST function group. Article 10(2) of Annex XIII to the Staff Regulations provides that, other than by being successful in a competition, such an official may become a member of the assistants’ function group without restriction on the basis of an attestation procedure, based on seniority, experience, merit and level of training of officials and the availability of posts in the function group AST. The rules implementing that procedure were adopted by the Commission by decision of 7 April 2004, applicable to the first attestation procedure relating to 2005, and by decision of 29 November 2006, applicable to the 2006 attestation procedure, which commenced on 21 December 2006.
75 As regards the appraisal procedure, first, it should be observed that the Article 43 GIP state, in Article 1(2), that the appraisal exercise is to be aimed in particular at evaluating the jobholder’s efficiency, abilities and conduct in the service. That provision adds that merit points are to be awarded on the basis of the appraisal for each of these three headings, as shown in the model review set out in Annex II to those GIP. That model GIP (see, in the version applicable to the 2005 appraisal exercise, Semeraro v Commission, paragraph 56 above) contains, in particular, a heading ‘Potential’, entitled ‘Mention to be taken into account in the appraisal procedure referred to in Article 10(3) of Annex XIII to the Staff Regulations’, which must indicate the nature of the tasks in question, the proportion of the jobholder’s activities devoted to those tasks and the quality of the jobholder’s achievements in accomplishing those tasks.
76 That is the case of Ms Putterie-De-Beukelaer’s CDR for the 2005 and 2006 appraisal exercises.
77 Furthermore, Administrative notices No 1-2006 of 12 January 2006 relating to the staff appraisal exercise for 2006, state, with respect to ‘Potential’:
‘This heading must be completed for the purposes of the attestation and certification procedures. This heading will only be completed by the reporting officer if the jobholder has made a specific request in his/her self assessment (the box has to be crossed).
A change has been made under the heading “potential”. The Reporting Officer now has access to a list of typical functions for the categories A* and B*. The [Reporting Officer] should cross out those tasks which are relevant to the category directly above that of the jobholder and the [Reporting Officer] must also evaluate the amount of time the [jobholder] has spent on these particular tasks, as well as the quality of his [or] her achievement in accomplishing these specific tasks.
…
Henceforth it is the countersigning offer who indicates whether the jobholder has demonstrated his [or] her potential to carry out tasks in the higher category.
N.B. The attention of officials in categories B*, C* or D* is drawn to the fact that renewal of the preceding report does not cover the heading “Potential”, established for the needs of the attestation and certification procedures. In accepting that renewal, you therefore waive the right to have your potential appraised for the activities during 2005.’
78 It follows from the Article 43 GIP and from Administrative notices No 1-2006 that the heading ‘Potential’ in the CDR of a jobholder wishing to carry out the functions of the higher category is intended in substance to obtain an assessment relating to the tasks of the higher category actually carried out by the official in the normal course of his work during the period covered by the CDR for the purposes of enabling him to be attested.
79 Regard being had to the object of the appraisal carried out in relation to an official’s potential, namely the proportion of his activity and the quality of his performance in relation to the higher-category tasks category which he has actually carried out during the period covered by the CDR, it appears that that appraisal forms an integral part of the appraisal intended to evaluate the official’s work experience and merits, which are necessarily reflected, at least, in the evaluation of his competence during the same period.
80 Thus, it must be held that the authorities empowered to evaluate, in the context of the appraisal procedure, an official’s merits under the various headings in the CDR, namely the reporting officer and the countersigning officer, subject to the possible intervention of the appeal assessor, are the ones who are also called upon to appraise the ‘potential’ of officials who have requested that the relevant heading be completed by the reporting officer.
81 As regards the attestation procedure, it must be borne in mind that the Decision of 7 April 2004 relating to the 2005 attestation procedure, which the Civil Service Tribunal held to be applicable to the facts of the present case, makes provision, in Articles 4 to 8, for four stages.
82 It follows from those provisions that the appointing authority, after having determined, in a first stage, the number of posts that can be filled the following year by attested officials (Article 4), and after having drawn up and published, in a second stage, the list of officials who have applied for and been admitted to the attestation procedure and who have satisfied the conditions relating to the level of training and seniority (Article 5) must, in the third stage, draw up another list of candidates in which candidates will be classified according to certain criteria (Article 6) and then, in the fourth stage, draw up the list of officials authorised to apply for vacant posts to be filled in the assistants’ function group (Article 7).
83 The criteria for classification are, according to Article 6(1) of the Decision of 7 April 2004, first, the level of training and seniority in career stream C or D – already taken into consideration for the purposes of admission to the procedure – and, second, experience and merit evaluated on the basis of available CDRs.
84 The value of those criteria and the weighting applied to them, which, according to Article 6(2) of the Decision of 7 April 2004, are to be decided by the appointing authority before 31 December 2004, formed the subject-matter of the appointing authority’s decision of 11 May 2005 on the criteria for classification relating to the 2005 attestation period (Administrative notices No 33-2005 of 20 May 2005), after receiving the unanimous opinion of the committee referred to in Article 9 of the Decision of 7 April 2004.
85 First, as regards the value of the criteria for classification, the appointing authority stated, in its decision of 11 May 2005, that the potential of an official admitted to the attestation procedure to carry out category B* functions must be taken into consideration in the context of the criterion relating to experience, explaining that that potential must have been recognised in the official’s 2004 CDR.
86 Second, as regards the weighting of the criteria for classification, the appointing authority stated in the same decision that it would proceed in two stages. In the first place, it would draw up two preparatory lists of priority, one based on the criteria of seniority and merit and the other based on the criteria of education/training and merit. In order to separate ex aequo officials on each of those lists, the appointing authority stated that it would take into account grade, equal opportunity aspects and, last, information from the CDRs relating to the official’s potential for taking on category B* duties. In the second place, the appointing authority would draw up the list of officials authorised to apply for vacant posts identified for the needs of the attestation procedure.
87 It is apparent upon reading the provisions of the Commission’s Decision of 7 April 2004 together with those of the appointing authority’s decision of 11 May 2005 that, in the context of the attestation procedure, the appointing authority was not competent to appraise the potential of officials who were candidates for the attestation procedure. Apart from the fact that potential did not constitute a condition of admission to the procedure, it must be observed that it is only in the fourth stage of the procedure, when the appointing authority draws up the list of officials authorised to apply for vacant posts in the assistants ‘function group, that, in order to separate the ex aequo officials on the two preparatory lists drawn up on the basis of seniority, merit and training, the appointing authority takes the potential of each official into consideration. However, even when the appointing authority takes officials’ potential for taking on duties in the higher grade into account, it does not itself assess that potential, but relies on information under the corresponding heading of the CDR for the preceding year.
88 No provision in those two decisions mentions the adoption by the appointing authority of a decision appraising the potential of officials who have applied for the attestation procedure which is distinct from and precedes the taking into consideration by the appointing authority of the information under the heading ‘Potential’ in their CDRs for the purposes of drawing up the list of officials authorised to apply for vacant posts to be filled in the assistants’ function group, in accordance with Article 7 of the Decision of 7 April 2004.
89 That interpretation, moreover, is consistent with the structure of the system designed to ensure, in the context of the new career structure based on two function groups, that officials assigned to career streams allowing promotions to a certain grade will have the possibility to accede to the assistants’ function group without restrictions, by means, in particular, of an attestation procedure based on appraisals which have been carried out, in the context of the appraisal procedure, by the reporting officer and the countersigning offer, subject to the possible intervention of the appeal assessor.
90 Although it has consequences in the context of the attestation procedure, the heading ‘Potential’ is to be found in the context of the appraisal of officials. Thus, in the absence of any provision expressly stipulating that it forms part of an appraisal that has to be made in the context of the attestation procedure, that heading cannot be detached from the appraisal procedure, as it was by the Civil Service Tribunal in the judgment under appeal, in order to be brought within the exclusive competence of the appointing authority in the context of the attestation procedure.
91 It thus follows from the system that potential, which must be recognised in advance, is intimately linked, on the same basis as merit in the broad sense, with the appraisal of the official and may have the consequence, in accordance with Article 6 of the Decision of 7 April 2004, that there is no effective classification of an official wishing to assume functions in a higher grade than those that he would be able to exercise and whose potential would not have been recognised in advance, in the context of the CDR, by the persons authorised to carry out his appraisal.
92 It must also be stated that the reporting officer, as the jobholder’s head of unit and as the authority called upon to appraise the official, is better able to appraise the way in which the official being appraised has carried out functions belonging to a category above his own category. The same applies to the countersigning officer and to the appeal assessor. The determination of an official’s potential to carry out tasks associated with a category above the category to which he belongs must necessarily be appraised specifically by reference to the tasks actually carried out by that official and the way in which they were carried out.
93 That interpretation is also endorsed by the definition of the respective scope of the appraisals carried out by the joint evaluation committee and that carried out by the joint committee for the attestation exercise.
94 The joint evaluation committee, by ensuring that the CDRs were drawn up fairly, objectively and in accordance with the Article 43 GIP, is competent, without substituting itself for the reporting officers and the countersigning officers, for the purposes of the specific appraisals which the latter make under the various headings of the CDRs (see, in particular, Article 9(4) of the Article 43 GIP).
95 On the other hand, as regards the joint committee for the attestation exercise, it must be stated, first of all, that, in accordance with Article 6(2) of the Decision of 7 April 2006, it issues an opinion for the purposes of the appointing authority’s decision as to the value of the criteria – relating to the level of training, seniority in career stream C or D, experience and merit assessed on the basis of available CDRs – and the weighting applied to them. Furthermore, Article 9(7) of that decision states that at the beginning of each year the joint committee for the attestation exercise is to adopt an opinion on the results of the last attestation exercise and may also make recommendations, including on values and the weightings applied to them. Next, in the context of the second stage of the procedure referred to at paragraph 82 above, Article 5(3) of the Decision of 7 April 2004 provides that an appeal lies to that committee by officials who consider that they satisfy the criteria relating to the level of training and seniority in career stream and who are not on the list of officials who have applied for and been admitted to the attestation procedure. Last, in the context of the third stage of the procedure, Article 6(1) to (4) of the Decision of 7 April 2004 establishes that the officials admitted to the procedure, classified according to an order of priority on the basis of the abovementioned criteria, of values and weightings, may appeal to the joint committee for the attestion exercise if they dispute the number of points they have obtained.
96 It therefore follows from the wording of those provisions, first, that the joint evaluation committee is competent with respect to the specific appraisals made as to official’s merit in the broad sense.
97 It follows, second, that the joint committee for the attestation exercise is competent for the purpose of examining the appeals brought by officials who are not on the list of officials who have applied for and been admitted to the attestation procedure and also those concerning, more particularly, the value ascribed to the various criteria set out at paragraph 95 above and the weighting applied to them. Conversely, the joint committee for the attestation exercise cannot extend its competence to the various appraisals or evaluations to be found under the various headings of the CDR, which come exclusively under the control carried out by the joint evaluation committee.
98 Last, the fact that Article 43 of the Staff Regulations provides solely that the CDR of officials in function group AST, as of grade 4, may contain an opinion as to whether, on the basis of performance, the official concerned has the potential to carry out an administrator’s functions, but does not expressly state that the heading ‘Potential’ must, with respect to officials in categories C and D wishing to accede without restriction to function group AST, also be completed, cannot have the consequence, as the Civil Service Tribunal held, that such competence belonged to the appointing authority competent for the attestation procedure.
99 It should be borne in mind, in that regard, that it follows from consistent case-law that the general implementing rules adopted under the first paragraph of Article 110 of the Staff Regulations may lay down criteria capable of guiding the administration in the exercise of its discretionary power or explain more fully the scope of provisions of the Staff Regulations which are not wholly clear (see Case T‑75/89 Brems v Council [1990] ECR II‑899, paragraph 29 and the case-law cited; see also, to that effect, Case T‑4/92 Vardakas v Commission [1993] ECR II‑357, paragraph 44).
100 In the present case, it must be held that, as indicated at paragraphs 3 and 7 above, Article 1(2) of the Article 43 GIP sets out the object of the appraisal exercise and refers to a model report in Annex II, which therefore includes the heading entitled ‘Potential’. That annex, which forms an integral part of the Article 43 GIP, reflects the legislature’s intention that officials in categories C and D wishing to accede without restriction to function group AST should be recognised in advance, in the context of the CDR, as having the potential to carry out such functions (see, by analogy, Case 80/72 Koninklijke Lassiefabrieken [1973] ECR 635, paragraph 15).
101 It follows that the Article 43 GIP merely guide the administration in the exercise of its discretionary power in the context of Article 43 of the Staff Regulations as to the determination of the merit in the broad sense of certain category C and D officials wishing to accede without restriction to function group AST.
102 It follows from all the foregoing that the Civil Service Tribunal’s premiss that the heading ‘Potential’ in the 2005 CDR constituted an autonomous decision by reference to that CDR is incorrect and that it therefore erred in holding that the competent authorities in that regard were those that were competent for the attestation procedure. It follows that the judgment under appeal must be set aside.
Referral of the case to the Civil Service Tribunal
103 In accordance with Article 13(1) of Annex I to the Statute of the Court of Justice, if the appeal is well founded, the General Court is to quash the decision of the Civil Service Tribunal and itself give judgment in the matter. However, it is to refer the case back to the Civil Service Tribunal for judgment where the state of the proceedings does not permit a decision by the Court.
104 As the Civil Service Tribunal did not adjudicate on the pleas put forward by Ms Putterie-De-Beukelaer at first instance, the Court holds that the state of the present proceedings does not permit a decision by the Court and that the case must be referred back to the Civil Service Tribunal for judgment.
105 Since the case is to be referred back to the Civil Service Tribunal, the costs relating to the present appeal proceedings should be reserved.
On those grounds,
THE GENERAL COURT (Appeal Chamber)
hereby:
1. Sets aside the judgment of the Civil Service Tribunal of the European Union (First Chamber) of 21 February 2008 in Case F‑31/07 Putterie-De-Beukelaer v Commission;
2. Refers the case back to the Civil Service Tribunal of the European Union;
3. Reserves the costs.
Delivered in open court in Luxembourg on 8 July 2010.
[Signatures]