JUDGMENT OF THE CIVIL SERVICE TRIBUNAL
(First Chamber)

7 June 2011

Case F‑64/10

Andreas Mantzouratos

v

European Parliament

(Civil service — Officials — Promotion — Promotion period 2009 — Decision not to promote — Admissibility of plea of illegality — Consideration of comparative merits — Manifest error of assessment)

Application:      brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Mantzouratos seeks annulment of the European Parliament’s decision not to promote him to Grade AD 13 in the promotion period 2009 and also of the decisions to promote officials having fewer promotion points than the applicant in the same promotion period.

Held:      The action is dismissed. Each party is to bear its own costs.

Summary

1.      Officials — Actions — Interest in bringing proceedings — Action directed against a decision to promote another official — Admissibility

(Staff Regulations, Art. 91)

2.      Procedure — Application initiating proceedings — Formal requirements

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

3.      Officials — Actions — Prior administrative complaint — Correspondence between complaint and action

(Staff Regulations, Arts 90 and 91)

4.      Officials — Decision adversely affecting an official — Obligation to state the reasons on which the decision is based — Possibility of providing a statement of reasons for a decision not to promote an official at the pre-litigation stage — Consequences

(Staff Regulations, Arts 25, second para., and 90(2))

5.      Officials — Promotion — Consideration of comparative merits

(Staff Regulations, Art. 45)

6.      Procedure — Introduction of new pleas during the proceedings — Plea based on elements brought to light during the proceedings

(Rules of Procedure of the Civil Service Tribunal, Art. 43(1))

7.      Officials — Promotion — Consideration of comparative merits

(Staff Regulations, Art. 45)

8.      Officials — Promotion — Consideration of comparative merits

(Staff Regulations, Art. 45)

9.      Officials — Promotion — Conditions — Officials having reached the reference threshold — Automatic right to promotion — None

(Staff Regulations, Art. 45)

10.    Procedure — Costs — Application for an appropriate order

(Rules of Procedure of the Civil Service Tribunal, Art. 87(1))

1.      Officials eligible for promotion to a particular grade have, in principle, a personal interest in challenging decisions promoting other officials to that grade.

(see para. 15)

See:

5 May 2010, F‑53/08 Bouillez and Others v Council, para. 80

2.      Although the Union judicature may not of its own motion base its decision on a plea in law which has not been raised by the parties, unless it is a matter of public policy, it must nevertheless interpret an applicant’s pleas in the light of their substance rather than their legal characterisation, provided, however, that the pleas are sufficiently clearly identifiable from the application. However, irrespective of any question of terminology, the pleas must be sufficiently clear and precise to enable the defendant to prepare its defence and to enable the Civil Service Tribunal to give judgment in the action, if appropriate, without having to seek further information.

(see para. 16)

See:

15 December 1961, 19/60, 21/60, 2/61 and 3/61 Fives Lille Cail and Others v High Authority; 13 December 2005, C‑78/03 P Commission v Aktionsgemeinschaft Recht und Eigentum, para. 45

24 February 2000, T‑145/98 ADT Projekt v Commission, para. 66

26 March 2010, T‑577/08 Proges v Commission, para. 21

3.      As regards pleas alleging illegality of a legislative or regulatory text, even where they relate to a legal cause of action other than that set out in the complaint, to hold them inadmissible for breach of the correspondence rule would upset the balance between the protection of the official’s procedural rights and the purpose pursued by the pre-contentious procedure and would amount to a disproportionate and unjustified penalty for the official. Given the intrinsically legal nature of a plea alleging illegality of a legislative or regulatory text, and also of the reasoning which underlies contemplating and then pleading illegality of this nature, the official or servant who lodges the complaint, and who does not necessarily have the appropriate legal expertise, cannot be required to formulate such a plea at the pre-contentious stage, failing which it will be declared inadmissible in the legal proceedings. That is particularly so since to raise a plea of illegality at the pre-contentious stage seems hardly liable to result in the complainant being successful at that stage, as the administration is unlikely to choose to disapply a provision in force, on the ground of the provision’s possible non-compliance with a higher-ranking rule, for the sole purpose of allowing an extrajudicial resolution of the dispute.

However, the illegality of general decisions may be pleaded only in so far as there is a direct legal connection between the contested measure and those general decisions. A plea of illegality can indirectly challenge only the validity of the regulatory measures which form the legal basis for the decision which the applicant seeks to have set aside.

In order to ascertain whether the applicant’s plea of illegality is admissible, therefore, it is necessary to determine which is the legal basis of the contested measure. In that respect, it may be inferred that there is a direct legal connection between the contested individual decision and the general decision in question from the finding that the contested decision is essentially based on a provision of the decision whose legality is contested, even if the latter decision does not formally constitute its legal basis. Where, in the decision rejecting the complaint, the appointing authority rejects, on the merits, all the arguments advanced by the applicant in support of a plea of illegality of a measure, that measure normally constitutes the legal basis for the decision in question.

(see paras 22, 25, 26)

See:

6 March 1979, 92/78 Simmenthal v Commission, para. 36

26 October 1993, T‑6/92 and T‑52/92 Reinarz v Commission, paras 56 and 57; 22 April 2004, T‑343/02 Schintgen v Commission, para. 25; 20 November 2007, T‑308/04 Ianniello v Commission, para. 33 and the case-law cited therein

1 July 2010, F‑45/07 Mandt v Parliament, para. 121

4.      The administration has the right to provide a statement of reasons for a decision not to promote an official at the pre-litigation stage. However, where the administration exercises that right, it denies the officials concerned the possibility of lodging a complaint with knowledge of the grounds for the contested decision and, therefore, of developing their arguments accordingly. Consequently, in a situation where an official has been apprised of the reasons for a decision only at the point when his complaint was rejected, it cannot be objected that he has failed to observe the principle of consistency between the complaint and the application.

(see para. 23)

See:

29 September 2009, F‑125/07 Hau v Parliament, para. 24

5.      In the European Parliament, merit points, with the exception of points reserved for the Secretary-General, are not awarded as the culmination of a comparative review of all officials in the same grade who are eligible for promotion. Consequently, the administration cannot promote an official solely on the basis of the award of those merit points. Nevertheless, the award of three merit points, pursuant to paragraph I.3.1 of the decision of the Bureau of the European Parliament of 6 July 2005 on the ‘Policy on promotion and career planning’, as amended, following the annual review of an official’s merit may be an important factor in the subsequent comparative assessment of the merits of officials in the same grade with a view to their promotion, in accordance with Article 45 of the Staff Regulations.

The use of the recommendation of the directorates-general as a criterion, which enables a decision to be made between certain candidates who have obtained the same number of merit points, is not contrary to Article 45 of the Staff Regulations, since the classification of officials eligible for promotion by the directorates-general is based on the professional qualities of those staff. Furthermore, the criterion relating to the performance of tasks of paramount importance is also not contrary to Article 45 of the Staff Regulations, since it rewards outstanding performance by an official who has been entrusted with a difficult and important task.

The criterion of level of responsibilities exercised cannot be entirely reduced to the number of staff managed by an official or, more generally, the importance of the management tasks performed.

Nevertheless, while performance of the role of head of unit cannot be the only yardstick for assessing the level of responsibilities exercised by officials eligible for promotion, it is a relevant criterion in the comparative analysis which the appointing authority must conduct in that respect.

(see paras 45, 52, 54, 55)

See:

16 December 2010, T‑175/09 P Council v Stols, para. 48

6.      Article 43(1) of the Rules of Procedure of the Civil Service Tribunal prohibits the introduction of new pleas after the first exchange of written pleadings unless they are based on elements which come to light in the course of the procedure. The same applies to a submission made in support of a plea in law. Moreover, that provision does not exclude the possibility that the elements may have been discovered in the context of a measure of organisation of procedure. Lastly, the time-bar laid down by that provision, inasmuch as it restricts the interested party’s ability to put forward all matters necessary for the success of its claims, should be interpreted restrictively.

(see para. 48)

See:

13 October 2008, T‑43/07 P Neophytou v Commission, paras 75 to 91 and the case-law cited therein

7.      The appointing authority possesses, for the purpose of considering the comparative merits of officials who are candidates for promotion, a wide discretion and 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. A court cannot therefore substitute its assessment of the qualifications and merits of the candidates for that of the appointing authority.

(see para. 63)

See:

15 September 2005, T‑132/03 Casini v Commission, para. 52 and the case-law cited therein

Council v Stols, para. 48

8.      The wide discretion conferred on the administration for the purpose of considering the comparative merits of officials who are candidates for promotion under Article 45 of the Staff Regulations 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.

In that respect, without prejudice to the practical effect that the appointing authority’s discretion must be acknowledged to have, an error in the assessment of the merits of an official who has not been promoted is manifest where it is easily recognisable and can be readily detected, in the light of the criteria to which the legislature intended decisions on promotion to be subject.

(see paras 64, 65)

See:

Casini v Commission, para. 53 and the case-law cited therein

24 March 2011, F‑104/09 Canga Fano v Council, paras 29 to 35

9.      Even if the decision of the Bureau of the European Parliament of 6 July 2005 relating to the ‘Policy on promotion and career planning’, as amended, provides for a reference threshold which depends on the average period spent in a grade, expressed in years, Article 45 of the Staff Regulations requires promotion to be made exclusively by selection, so that no principle can be inferred that an official must be promoted if he does not lose merit, or that entitlement to regular career progression obliges the administration to promote an official automatically simply because he has reached a certain seniority in the grade.

(see para. 70)

See:

15 February 2011, F‑68/09 Barbin v Parliament, paras 90 and 91

10.    Under Article 87(1) of the Rules of Procedure of the Civil Service Tribunal, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. An application made in those pleadings for an appropriate order as to costs cannot be regarded as an application for the unsuccessful party to be ordered to pay the costs.

(see para. 76)

See:

10 July 2008, F‑141/07 Maniscalco v Commission, paras 30 to 33 and the case-law cited therein