YG v Commission (Civil service - Promotion - Judgment) [2020] EUECJ T-518/18 (28 May 2020)

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(Civil service — Officials — Promotion — 2017 promotion procedure — Decision not to promote the applicant to grade AST 9 — Comparison of the merits — Equal treatment — Manifest error of assessment — Duty to state reasons)

European Commission, represented by G. Berscheid, B. Eggers and L. Radu Bouyon, acting as Agents,

APPLICATION under Article 270 TFEU for annulment of the Commission’s decision of 13 November 2017 not to promote the applicant in the 2017 promotion procedure,

composed, at the time of deliberation, of S. Frimodt Nielsen, President, V. Kreuschitz (Rapporteur) and N. Półtorak, Judges,

1 The applicant, YG, is an established official at the European Commission in grade AST 8 who has been working in the Directorate-General (DG) for IT since 16 April 2014. Prior to that time, he worked at the Commission for DG Eurostat from 1 April 2000 and at the European Parliament from 1 March 2009 to 15 April 2014.

2 By 1 January 2017, the applicant had accrued five years’ service in his grade.

3 By publication in Administrative Notices No 013-2017 of 3 April 2017, addressed to all Commission officials, the Commission launched the 2017 promotion procedure.

4 On 19 June 2017, the list of officials proposed for promotion was published in the Commission’s integrated human resources management system, SYSPER. The applicant’s name was not on that list.

5 On 22 June 2017, the applicant brought an appeal against the decision not to include his name on the list of officials proposed for promotion.

6 The appeal was first considered by the Joint Working Group, which issued an opinion to the effect that it did not recommend the applicant for promotion. The Joint Promotion Committee, after considering the file and the comparative merits in the grade, subsequently issued an opinion which concurred with that of the Joint Working Group.

7 On 13 November 2017, the Commission, as the appointing authority, published the list of officials promoted in the 2017 promotion procedure in Administrative Notices No 025-2017 (‘the contested decision’). The applicant’s name was not on that list.

8 On 25 January 2018, the applicant submitted a complaint pursuant to Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) against that decision.

9 By decision of 23 May 2018, the Commission rejected the applicant’s complaint (‘the decision rejecting the complaint’).

10 The applicant brought the present action by application lodged at the Court Registry on 31 August 2018.

11 By document lodged at the Court Registry on 18 September 2018, the applicant applied for anonymity in accordance with Article 66 of the Rules of Procedure of the General Court, which was granted to him.

12 By document lodged at the Court Registry on 21 March 2019, the applicant stated that he did not wish to be heard at a hearing. The Commission did not express a view within the period prescribed as to whether there should be a hearing.

13 Since no request for a hearing was submitted by the parties and the Court considers that it has sufficient information from the material in the file, it has decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure.

14 By way of measures of organisation of procedure provided for in Article 89 of the Rules of Procedure, the Court (Third Chamber) requested that the Commission produce certain documents and put to it a written question with a request for a response in writing. The Commission complied with that measure of organisation of procedure within the prescribed period. In response to another measure of organisation of procedure by the Court, the applicant submitted his observations on the Commission’s response and on the documents produced within the prescribed period.

17 In support of the present action, the applicant relies on two pleas in law, alleging, first, infringement of Article 45 of the Staff Regulations, manifest errors of assessment, breach of the principle of equal treatment and an inadequate statement of reasons and, second, infringement of the principle of ‘good administration by lack of diligence’.

A. The first plea, alleging infringement of Article 45 of the Staff Regulations, manifest errors of assessment, breach of the principle of equal treatment and an inadequate statement of reasons

18 By the first plea, the applicant disputes, first, the validity of the reasons for the decision rejecting the complaint in so far as they relate to the consideration of his merits, in the light of the three main criteria set out in Article 45 of the Staff Regulations, read in conjunction with Article 4 of Commission Decision C(2013) 8968 final of 16 December 2013 laying down general provisions for implementing Article 45 of the Staff Regulations (‘the GIP’), and, second, whether those reasons are sufficient for the purpose of Article 41(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’).

19 First, as regards the staff reports for 2012 to 2016, the applicant submits that, as a whole, those reports are positive and provide evidence of ‘his numerous and incontestable assets and good performances’. The 2014 staff report thus notes his ‘extensive knowledge around data management and data analysis’, his ‘strong mathematical background’ and the fact that he ‘has shown to be organised, methodical and rational in his approach’. Similarly, according to the 2016 staff report, the applicant ‘has shown to have a great capacity for analytical and rational thinking’ and ‘his knowledge around data management is an important asset’. In relation to his work at the Parliament, the 2013 staff report states that he ‘has a very methodical approach and delivers developments of a very good quality’. The applicant states that he did not dispute those reports, which paint a positive and satisfactory picture of his performance and are such as to enable him to progress normally in his career at an average pace.

20 According to the applicant, his performance has always been good and consistent in equal measure as regards his productivity, ability and conduct in the service, notwithstanding the fact that he has changed post every four to five years and has therefore been appraised by various reporting officers in different contexts. That consistency, the applicant submits, is also highlighted by his previous promotions at the Commission in 2002 and 2008 and at the Parliament in 2012 and by the fact that, in view of the evaluation points he accumulated at the Parliament, he could reasonably have expected to be promoted in the 2017 promotion procedure had he retained his post at that institution. However, the applicant submits that the decision rejecting the complaint merely described his merits without assessing them in a comprehensible manner by reference to the points identified in the relevant extracts from the staff reports for 2012 to 2016, such as those referred to in paragraph 19 above.

21 To the extent that the decision rejecting the complaint refers to the observation recorded in the 2016 staff report that, inter alia, ‘the [applicant’s] assignment requires that he invests further in the management of his project’, the applicant argues that the fact that it was suggested that he could improve his performance does not devalue his merits. Similarly, in so far as the decision rejecting the complaint states that ‘the staff reports of the promoted officials demonstrated particularly excellent merits and outstanding performance which are not evident in the applicant’s 2016 staff report taken in its entirety’, the applicant submits, in essence, that, by definition, for average-paced career progression, there is no need for ‘excellent merits and outstanding performance’, unless it is implied that the average-performing official demonstrates excellent merits and outstanding performance. Finally, the applicant criticises the Commission for ‘depriving the complaint mechanism under Article 90 of the Staff Regulations of all practical effectiveness’ when it contends that his staff reports were analysed at various stages of the promotion procedure.

22 The applicant states, in essence, that he never disputed the fact that he did not meet certain expectations of his superiors for the reasons set out in his self-assessment, as reproduced, in part, on page 9 of the decision rejecting the complaint and discussed with the reporting officer during the 2015 promotion procedure. Having taken the reporting officer’s comments on board, in August 2016 the applicant received his certification as project manager for PM², the project management methodology used at the Commission. According to the applicant, his final comments on the 2015 staff report also make clear that the fulfilment of some of the expectations of his superiors did not depend solely on his skills, professional attitude and willingness to meet those expectations and that he was working in conditions which did not enable him to go beyond the analysis of the actual state of the Commission’s human resources software system (‘the COMREF software system’). The applicant claims that he was in the difficult position of being formally responsible for a project which presented some serious shortcomings while, at the same time, facing insurmountable non-technical or conceptual ‘difficulties’ despite his efforts.

23 Second, the applicant submits that the criterion regarding the use of languages was improperly addressed in the decision rejecting the complaint, since no account was taken of the applicant’s previous promotions or the fact that the post he currently occupies does not require an ‘out of the ordinary’ use of a third language. Since not all of the six promoted officials taken into consideration as part of the comparative examination appear to have prepared technical analytical documents in their second language, it is not possible to understand why, when considering the use of languages, those officials performed better than the applicant. In view of the very specific nature of the tasks he performs, the applicant therefore disputes the finding that ‘his use of languages is not out of the ordinary and does not put him in an advantageous position over his colleagues when considering his comparative merits’. Accordingly, in the comparison of the merits, the criterion regarding the use of languages represents neither an advantage nor a disadvantage for him.

24 Third, as regards the level of responsibilities exercised, the applicant submits that, in his case, that criterion was not specifically examined when the comparative merits were considered. In that regard, the applicant points out that the nature of the tasks connected with his post in the DG for IT and the skills needed to perform those tasks are rather specific and specialised. Accordingly, owing to his specific technical knowledge, after his arrival in April 2014 and within a reasonably short period of time, he made it apparent that there were significant faults and weaknesses in the COMREF software system that had been in use since 2001. Moreover, the applicant’s IT solutions and the results of his technical analytical work were never called into question; on the contrary, it is apparent from the 2016 staff report that those results were ‘of good quality’. The applicant states that, as holder of a university degree in computer science with excellent grades, he has always worked in that field and has 25 years of professional experience, 18 of which as an established EU official. Having regard to his appraisals in all of the staff reports in the light of the three main criteria laid down in Article 45 of the Staff Regulations, the applicant disputes the fact that he was ranked lower than the promoted officials on the ground that their responsibilities were similar to his. The 2016 staff report thus states that the applicant ‘is in charge of the COMREF software system, the critical data-hub of the Commission, … serving over 170 systems … managing over 300 000 identities and centralising the … data … [which] is of a critical importance for the good functioning of applications in numerous institutions’. The applicant adds that, as is apparent from his self-assessments relating to his staff reports for 2014 to 2016, the analysis of the COMREF software system was much more thorough than just the analysis of clients. Similarly, those reports state that the applicant was ‘responsible for a development team of 5 service providers’. The applicant takes the view that the appointing authority did not duly assess those matters and that the extracts from the staff reports of the promoted officials included in the decision rejecting the complaint do not reveal that any of those officials had been entrusted with any comparable responsibility.

25 Fourth, as regards the consideration of the comparative merits, the applicant disputes the evidential value of extracts taken from the staff reports of the promoted officials. The applicant states that the extracts concern only six — out of a total of ten — promoted officials in grade AST 8 working in the DG for IT and, moreover, are from only one annual staff report for each promoted official, two of whom, namely E and F, were promoted after three years of service in their grade. The applicant infers that the merits of the four other promoted officials are less than his or that they do not have the average number of years’ service in the grade, that is to say, at least four. Moreover, the applicant submits that the extracts do not demonstrate that the promoted officials’ merits are greater than his, especially since the tasks described appear to be simpler in nature and the demanding workload of two of the promoted officials did not continue throughout the entire period covered by the promotion procedure. The applicant therefore invites the Court to ask the Commission to produce all of the files concerning the 10 promoted officials. Furthermore, the applicant disputes that E and F are, like him, responsible for a team.

26 In any event, according to the applicant, in its consideration of the comparative merits, the Commission failed to take account of the varying degrees of difficulty encountered by the officials concerned in the performance of their duties and, in particular, of the fact that the nature of the tasks of some of the promoted officials appears to have been simpler so that it was therefore easier to excel when performing them. In that context, the applicant states that A is a main unit secretary, whose seniority is not disclosed, whose tasks should not present any complex conceptual difficulties and whose significant workload as a result of the reorganisation of the Joint Research Centre (JRC) did not affect the entirety of the period covered by the promotion procedure. The applicant concludes, in essence, that A’s responsibilities are not comparable to his. A comparison with B and C is not possible, since the extracts from their staff reports do not specify their respective seniority in the grade or the nature of their duties and cover only 2016. Similarly, D’s seniority is not indicated and, as pointed out in respect of A, the reorganisation of the JRC did not affect the entirety of the period covered by the promotion procedure in question. Furthermore, the assessment that ‘D has profound analysis capabilities and can go far in complex issues’ does not differ significantly from the assessment of the applicant’s merits recorded in the 2016 staff report. Accordingly, the applicant disputes that the merits of A, B, C and D are greater than his and that his merits were taken into consideration in accordance with the principle of equal treatment and the requirements of Article 45 of the Staff Regulations.

27 In the reply, the applicant states that some of the characteristics of the tasks of the other officials are not comparable to the analytical work which he carried out in the DG for IT and that most of the staff report extracts produced do not make it possible to ascertain the nature of the tasks performed by the promoted officials. Neither the decision rejecting the complaint nor the defence provides plausible evidence to establish that the consideration of comparative merits was fair. They merely state, in breach of the obligation to state reasons laid down in Article 41 of the Charter, that the merits of the promoted officials were ‘higher’. Nor, according to the applicant, are the complaints raised in this part of the plea invalidated by the extracts from staff reports, produced by the Commission during the proceedings, of promoted officials in the DG for IT, designated by the acronyms X, Y and Z, and of officials who (apparently) do not work in that service, designated by the acronyms AA and BBB, since only partial extracts were provided, they appear only to relate to the 2016 promotion procedure, they do not indicate the seniority in the grade and, together with the extracts produced previously, they concern only 9 out of the 10 promoted officials. The applicant concludes that, since his situation was comparable to that of the promoted officials in the light of the criteria relating to use of languages and responsibilities exercised, his staff reports should have been compared with the staff reports of those officials, even though it is not apparent, taking account of the evidence disclosed, that they were better.

28 The Commission does not dispute that, overall, the applicant’s staff reports for 2012 to 2016 are positive. However, it points out, in essence, that the staff reports for 2014 to 2016 also identify areas where there is room for improvement and repeatedly make reference to certain expectations of the applicant’s superiors relating to his post in general which the applicant did not meet. In that regard, the Commission states that, according to the description of the applicant’s post in SYSPER, the skills required for his role include, inter alia, ‘ability to work in a team and to lead a team’. However, it is apparent from the staff reports in question that the applicant did not meet his superiors’ expectations with regard to the human resources management and support dimension of his post.

29 According to the Commission, the level of the applicant’s responsibilities for the COMREF software system and for a development team of five service providers corresponds to his grade and job description. In the comparative evaluation, those responsibilities did not give the applicant any advantage over his colleagues promoted in the same grade, some of whom demonstrated a high level of competence and responsibilities and some of whom were put forward for certification. In that regard, the Commission produces anonymised extracts from 2016 staff reports for two officials, designated E and F, the first of whom, inter alia, ‘took on the new role of … lab manager’ and the second of whom, inter alia, ‘is a key member of the … group and takes a level of responsibility that goes far above his/her present grade’.

30 As regards the comparative analysis, the Commission points out that, in the decision rejecting the complaint, it provided an analysis of the comparison of merits and noted that the applicant’s staff reports were positive, but confirmed that the equivalent reports of the other eligible officials were better than his. It is settled case-law that the Commission is not obliged to disclose to an official who has not been promoted details of his comparative merits or to set out in detail why it considered that the promoted candidates deserved the promotion. Nevertheless, having regard to its duty of care, the Commission has produced certain anonymised extracts from the 2016 staff reports of some of the officials in grade AST 8 promoted within the DG for IT and in other DGs, namely officials A, B, C, D, E, F, X, Y, Z, AA and BBB, some of whom had also been put forward for certification. However, as they are voluminous, the Commission has not produced the reports for previous years. In addition, the Commission disputes the applicant’s argument that the decision rejecting the complaint was limited to examining the staff reports of officials promoted in 2016, referring to paragraph 118 of the judgment of 13 July 2018, Pereira v Commission (T‑606/16, not published, EU:T:2018:470), which confirms the legality of the appointing authority’s practice in the present case. Furthermore, the Commission states that the fact that an official has merits which are recognised does not exclude the possibility that, as part of the consideration of comparative merits in a promotion procedure, other candidates eligible for promotion may have similar or greater merits. Thus, the applicant has not adduced any arguments or evidence to show that the Commission committed a manifest error of assessment or infringed the principle of equal treatment when it compared the applicant’s merits with those of the other officials eligible for promotion in the 2017 promotion procedure.

‘Promotion shall be by decision of the appointing authority in the light of Article 6(2). Unless the procedure laid down in Articles 4 and 29(1) is applied, officials may only be promoted if they occupy a post which corresponds to one of the types of posts set out in Annex I, Section A, for the next higher grade. Promotion shall be effected by appointment of the official to the next higher grade in the function group to which he belongs. Promotion shall be exclusively by selection from among officials who have completed a minimum of two years in their grade after consideration of the comparative merits of the officials eligible for promotion. When considering comparative merits, the appointing authority shall in particular take account 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 in accordance with point (f) of Article 28 and the level of responsibilities exercised by them’;

32 As set out in Article 4 of the GIP, under the heading ‘Basis of the promotion procedure’:

‘1. The promotion procedure shall be based on the consideration of the comparative merits of the officials eligible for promotion. The secure electronic system used to administer the exercise shall contain the information required for this comparative examination. For the purposes of that examination, the appointing authority shall take into account, in particular:

(a) reports on the officials drawn up since their last promotion or, failing that, since their recruitment, and in particular staff reports drawn up in accordance with the general provisions for implementing Article 43 of the Staff Regulations;

(b) the use by the officials in the execution of their duties of languages other than the language for which they produced evidence of thorough knowledge in accordance with Article 28(f) of the Staff Regulations, and

2. If officials eligible for promotion have equal merit based on the three factors referred to in paragraph 1, the appointing authority may give subsidiary consideration to other factors.’

33 According to settled case-law, the appointing authority has a wide discretion in assessing the merits to be taken into consideration in making a promotion decision under Article 45 of the Staff Regulations, and the EU judicature’s review must be limited to determining whether, having regard to the ways and means which influenced the authority in making its assessment, it remained within reasonable bounds and did not misuse its power in a manifestly incorrect way. The judicature cannot therefore substitute its own assessment of the qualifications and merits of the officials for that of the appointing authority. It must confine itself to verifying that the consideration of comparative merits under Article 45(1) of the Staff Regulations was conducted objectively and correctly in the light of the details provided by the appointing authority on the promotion procedure prior to that consideration. Consequently, it is not for the judicature to review the merits of the authority’s appraisal of the professional abilities of an official where it involves complex value judgments which, by their very nature, are not amenable to objective verification (see judgments of 16 May 2013, Canga Fano v Council, T‑281/11 P, EU:T:2013:252, paragraph 41 and the case-law cited; and of 13 July 2018, Pereira v Commission, T‑606/16, not published, EU:T:2018:470, paragraph 107).

34 According to the same line of case-law, the discretion thus conferred on the authority is limited by the need to consider candidates’ comparative merits carefully and impartially, in the interest of the service and in accordance with the principle of equal treatment. While the appointing authority has the power under the Staff Regulations to conduct that consideration according to the procedure or method it deems most appropriate, in practice it must be undertaken on a basis of equality, using comparable sources of information (see judgments of 16 May 2013, Canga Fano v Council, T‑281/11 P, EU:T:2013:252, paragraph 42 and the case-law cited, and of 13 July 2018, Pereira v Commission, T‑606/16, not published, EU:T:2018:470, paragraph 108).

35 The appointing authority’s duty to consider the comparative merits of officials who are eligible for promotion, as laid down by 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 that provision when considering comparative merits, subject nevertheless to the principle of equal treatment (see, to that effect, judgments of 16 May 2013, Canga Fano v Council, T‑281/11 P, EU:T:2013:252, paragraph 43 and the case-law cited and of 13 July 2018, Pereira v Commission, T‑606/16, not published, EU:T:2018:470, paragraph 109).

36 In the EU judicature’s review of the authority’s promotion decisions, an error is manifest where it is easily recognisable and can be readily detected in the light of the criteria to which the legislature intended promotion decisions to be subject. Consequently, in order to establish that the authority committed a manifest error in assessing the facts such as to justify the annulment of a decision, the evidence, which it is for the applicant to adduce, must be sufficient to make the findings of the authority implausible. In other words, the plea alleging manifest error must be rejected if, in spite of the evidence put forward by the applicant, the assessment challenged may be accepted as genuine or valid (judgments of 23 November 2017, PF v Commission, T‑617/16, not published, EU:T:2017:829, paragraph 58, and of 13 July 2018, Pereira v Commission, T‑606/16, not published, EU:T:2018:470, paragraph 110).

37 It follows from that line of case-law that the review of legality which the EU judicature is required to carry out with regard to a consideration of comparative merits under Article 45(1) of the Staff Regulations relates to whether that consideration was carried out objectively and correctly in the light of the information previously provided by the appointing authority and, more specifically, to whether the authority complied with its obligation, stemming, in particular, from the principle of equal treatment, to carry out that consideration carefully and impartially on the basis of comparable sources of information. Accordingly, without prejudice to the scope of the appointing authority’s discretion in assessing the merits of each of the eligible officials and selecting the procedure or method of comparison which it considers the most appropriate, the EU judicature must verify that the consideration of comparative merits was carried out objectively and correctly on the basis of comparable sources of information, which means, in principle, that it must carry out a review of the material accuracy of the relevant facts on which the comparability of the situations of those officials is based, in accordance with the requirements of the principle of equal treatment (see, to that effect, judgment of 7 March 2017, RPO, C‑390/15, EU:C:2017:174, paragraphs 41 to 51). In other words, although such a review cannot lead the judicature to substitute its own assessment of the merits for that of the appointing authority in the exercise of its wide discretion, the review cannot be limited to examining a manifest error of assessment in so far as it relates to the question of whether the appointing authority duly took into account, when considering the comparative merits, all of the appraisals as set out in the staff reports of the candidates for promotion. Such a review requires not only an assessment of the material accuracy and completeness of the relevant information on which the appointing authority was required to rely in carrying out its comparative examination, but also that the judicature has all of that information so that it is able to ascertain whether the appointing authority carried out its duty completely, impartially and carefully. On the other hand, in accordance with what is stated in paragraph 33 above, it is not for the judicature to call into question the truth of the facts underlying the appraisals included in each of the staff reports under comparison, still less whether they are well founded.

38 It is in the light of those principles that it is necessary to assess whether, in the present case, the appointing authority fulfilled that duty with regard to the applicant. It should be pointed out that the statement of reasons, in respect of which the Court is required to carry out its review, is, in particular, that set out in the decision rejecting the complaint, which is deemed to be the same as that set out in the contested decision impliedly refusing to promote the applicant (see, to that effect, judgment of 26 October 2017, Paraskevaidis v Cedefop, T‑601/16, EU:T:2017:757, paragraph 37 and the case-law cited).

39 The Commission does not dispute the applicant’s merits as such or that they were assessed as being largely positive, as is clear from his staff reports for 2012 to 2016, nor does it dispute that those merits and the assessments of them justified, in principle, his promotion in the 2017 promotion procedure, but merely draws attention to certain weaknesses or less positive assessments noted in those reports which, in its view, are relevant for the purposes of the consideration of comparative merits including the promoted officials. Similarly, it is clear from the arguments set out in paragraph 22 above that the applicant acknowledges the existence of those weaknesses and less positive assessments but plays down their impact and relevance in the consideration of comparative merits. Accordingly, the first complaint, alleging that the assessment of his merits was manifestly erroneous, is, in general terms, ineffective and must therefore be rejected.

40 In that context, in so far as the applicant criticises the appointing authority for not having assessed his merits in the decision rejecting the complaint in a sufficiently comprehensible manner by making reference to matters set out in the relevant extracts from the staff reports for 2012 to 2016, it is sufficient to note that the fact that those extracts were reproduced on pages 6 to 9 of that decision clearly shows that the appointing authority took account of the merits described in those extracts for the purposes of the comparative examination. The applicant does not explain why reproducing those extracts was not sufficient; the extracts themselves already contain an assessment of his merits which the appointing authority could legitimately adopt — or indeed that it must have adopted by taking the view that it was not vitiated by a manifest error of assessment — without having to reformulate or paraphrase it. It is clear, however, that the applicant has not put forward any argument or evidence to prove that the assessment of his merits, as set out in his staff reports for 2012 to 2016 and endorsed by the appointing authority, was incomplete or implausible, or to demonstrate that it was vitiated by a manifest error of assessment.

41 Finally, the applicant’s argument, which is difficult to comprehend, that the Commission seeks to ‘deprive the complaint mechanism under Article 90 of the Staff Regulations of all practical effectiveness’ on the ground that his staff reports were analysed at various stages of the promotion procedure, disregards settled case-law, referred to by the applicant himself, in which it was held that the appointing authority was not required to give reasons for a promotion decision either to the decision’s addressee or to the candidates who had not been promoted, but that it was obliged to give reasons for its decision rejecting a complaint submitted under Article 90(2) of the Staff Regulations by a candidate who was not promoted, since the reasons for the decision rejecting the complaint are deemed to be the same as those for the decision against which the complaint was directed (see judgment of 26 October 2017, Paraskevaidis v Cedefop, T‑601/16, EU:T:2017:757, paragraph 37 and the case-law cited). It follows that the comparative assessment of the applicant’s merits vis-à-vis those of the promoted officials must necessarily be essentially apparent and readily understandable from the grounds of the decision rejecting the complaint. The applicant does not claim that, in adopting the contested decision, the appointing authority was not guided by the reasons set out — admittedly for the first time expressly — in the decision rejecting the complaint. In any event, the applicant’s argument cannot be interpreted as meaning that the appointing authority erred in law by misconstruing the scope of the review of the reporting officers’ assessments that it was required to carry out.

42 Accordingly, the first complaint must be rejected as unfounded in its entirety.

43 As regards the complaint concerning the use of languages and, in particular, the allegation that that criterion was improperly addressed in the decision rejecting the complaint, it is sufficient to note that the appointing authority neither took the view that, as regards the use of languages, the applicant was in a less favourable position as compared with the promoted officials, nor drew any conclusions from that criterion in its consideration of the comparative merits.

44 It is stated on page 10 of the decision rejecting the complaint that the applicant’s use of languages is not out of the ordinary and does not put him in an advantageous position over his colleagues in the consideration of comparative merits. The applicant does not dispute that finding, since, in his reply, he himself states that the criterion of the use of languages is neither advantageous nor disadvantageous to him in the consideration of the comparative merits.

(3) The complaints relating to the assessment of the merits of the promoted officials and the consideration of the comparative merits

46 By his third complaint, the applicant criticises the comparative consideration of his merits, in the strict sense, vis-à-vis those of the promoted officials in his grade, as set out on pages 10 to 13 of the decision rejecting the complaint.

47 In that regard, it should be noted that, after reproducing extracts from the applicant’s staff reports for 2012 to 2016 describing his merits according to the assessment criteria relating to productivity, ability, conduct in the service and the level of his responsibilities, the decision rejecting the complaint indicates, in general terms, in the light of short extracts from the 2016 staff reports of ‘Commission’ officials A, B, C, D, E and F, first, that the comparison with the ‘particularly excellent merits and outstanding performance’ of the promoted officials, including those in the DG for IT, does not disclose any manifest error of assessment (pages 10 and 12) and, second, that the responsibilities of the promoted officials were similar to those of the applicant and cover, inter alia, the duties of an IT product officer, finance and contract assistant, document manager assistant, etc. (page 11), so that, in conclusion, the contested decision was not based on a manifest error of assessment.

48 By way of measures of organisation of procedure, the Court asked the Commission to provide clarification in that regard and, in particular, to identify the ten promoted officials in the DG for IT in grade AST 8 whose merits had been compared with those of the applicant (see page 11 of the decision rejecting the complaint) and to produce, where appropriate, the 2016 staff reports for those officials (see paragraph 13 above). In its response to the Court’s measure of organisation of procedure, the Commission stated that A, B, C, D, E and F, referred to on pages 12 and 13 of the decision rejecting the complaint, did not come from the DG for IT and that the officials from that directorate whose identity and merits the Commission revealed during the proceedings were officials X, Y and Z. It also produced, on that occasion, the 2016 staff reports for seven other officials promoted in the DG for IT. In his observations on the Commission’s reply, the applicant did not dispute that the merits of the officials thus identified justified their promotion in the 2017 promotion procedure, but stated that the duties and levels of responsibility of, in particular, two of those officials were no greater than his and that the knowledge, competences and skills required depend on the tasks to be performed.

49 Consequently, it is necessary to assess the specific complaints challenging the validity of the comparative examination of the applicant’s merits vis-à-vis those of the promoted officials identified, to the extent that the merits of those officials are sufficiently clear from the staff reports in question. In that regard, the Court is not required to review, as such, the validity of the appointing authority’s finding that the promoted officials had ‘particularly excellent merits and outstanding performance’, but only whether the comparative examination of the merits is vitiated by a manifest error of assessment, in that the merits of some of those officials are clearly not capable of being classified as at least equal to those of the applicant, let alone higher, so as to undermine the plausibility of the contested decision (see paragraph 36 above).

50 First, the applicant disputes the claim that, having regard in particular to the level of responsibilities and tasks performed, E and F have merits which are equal to or greater than his. However, as the Commission submits, there is no evidence to support a finding that the appointing authority’s comparative assessment in that regard lacked plausibility. The Commission was fully entitled to compare the applicant, as the person responsible for managing the COMREF software system and as leader of a team, with both E, who took on the role of ‘lab manager’ and with F, as a ‘key member of the [operators] group [who] takes a level of responsibility that goes far above his present grade’. It is apparent from F’s 2016 staff report that his performance was particularly good and that it exceeded expectations and the targets set. In that regard, it should be recalled that, while the applicant’s assessments were positive in some respects, his work as project manager was also subject to some fairly strong criticism on the part of his superiors and appraisers, who stated that he had not always been on top of his tasks and duties, as defined in the description of his post, and who took account of the fact that he was looking for a new post (see also paragraphs 21 and 28 above). E, for his part, received a very good overall assessment in the 2016 promotion procedure, but recommendations were also made as to how his performance might be improved, which does not, however, support the conclusion that, taken as a whole, his merits should clearly have been classified as equal to or not as good as those of the applicant. It should be pointed out that, whereas the positive aspects of the assessment of E’s merits are apparent from the decision rejecting the complaint (page 13), the more negative aspects were disclosed to the applicant and the Court only during the proceedings by the production of E’s 2016 staff report, without the applicant clarifying or further substantiating his plea. In those circumstances, the appointing authority cannot be accused of having made a manifest error of assessment in finding that, having regard to the responsibilities in question and the performance in the exercise of their respective duties, the applicant’s merits were not as good as those of E and F.

51 Second, in so far as the applicant disputes the comparison of his merits with those of A, it must be noted that A is the main secretary of a unit with at least 75 members of staff, responsible for organising conferences and major scientific meetings, who received very good assessments, as set out on pages 12 and 13 of the decision rejecting the complaint and confirmed, or indeed reinforced, by the 2016 staff report produced during the proceedings. In that regard, even after full disclosure of that staff report, the applicant has not succeeded in showing that those qualitative assessments reflected merits that were either equal to or not as good as those on which he relies. That examination of the comparative merits is therefore not such as to prove the existence of a manifest error of assessment.

52 Third, nor can it be found that there was a manifest error of assessment in the comparison of the applicant’s merits with those of B and C, having regard to the latters’ high level of responsibilities and their positive assessments, which, admittedly, are apparent only from the staff reports produced during the proceedings, whereas the decision rejecting the complaint (page 13) is rather brief in that regard. Thus, B is the site fire brigade officer and commander in chief of the site voluntary fire brigade. The 2016 staff report credits that member of staff with good qualities and performance. The same is true of C, whose 2016 staff report attests to a high level of responsibilities connected with the management of a site, without, however, further specifying his duties, and who, like X and unlike the other promoted officials from the DG for IT, including the applicant, was even put forward for certification to become an administrator. The evidence adduced by the applicant does not make it possible, even after disclosure of those staff reports, to establish that the consideration of the comparative merits was vitiated by a manifest error of assessment as regards those points.

53 Fourth, as regards the comparison of the applicant’s merits with those of D, which are briefly set out on page 13 of the decision rejecting the complaint, it is apparent from D’s 2016 staff report, as produced during the proceedings, that his responsibilities and duties as Financial Verifying Agent consisted in ‘delivering important data and background information to the hierarchy’ by drafting and making available to the Heads of Unit highly valued monthly reports on the implementation of the budget. Furthermore, the assessment of that official’s performance is generally very positive, despite certain criticisms which do not, however, call into question his recognised merits, but, on the contrary, attest to his ongoing professional commitment, even where that was not requested. In those circumstances, since the assessment of the applicant’s merits was negative in some respects, as stated in paragraph 50 above, the appointing authority cannot be accused of having made a manifest error of assessment in its consideration of the comparative merits.

54 In the light of the foregoing considerations, in the absence of a manifest error of assessment, the specific complaints concerning the comparison of the applicant’s merits with those of some of the promoted officials, as identified in the decision rejecting the complaint, must be rejected as unfounded, without there being a need to assess whether the subsidiary criterion of seniority was applicable (see Article 4(2) of the GIP). The same is true of the comparison of merits with those of the other promoted officials in the DG for IT identified only during the proceedings, whose assessments, the applicant acknowledges, in essence, are very good, or even excellent, and some of whom were even put forward for certification.

55 Lastly, those conclusions are not called into question by the fact that the Commission did not explicitly base its consideration of the comparative merits on all of the promoted officials’ staff reports for 2012 to 2015 and relied solely on those for 2016. For the purposes of the Court’s review of the possible existence of manifest errors of assessment, an examination of the various 2016 staff reports, which are most recent in relation to the promotion decision, is sufficient, particularly since it is not for the EU judicature to carry out a detailed examination of all of the files of the candidates eligible for promotion in order to satisfy itself that it agrees with the conclusion reached by the appointing authority (see, to that effect, judgment of 15 January 2014, Stols v Council, T‑95/12 P, EU:T:2014:3, paragraph 31).

56 Accordingly, the complaint alleging infringement of Article 45 of the Staff Regulations, manifest errors of assessment and breach of the principle of equal treatment must be rejected as unfounded.

57 Having regard to the additional complaint alleging infringement of the obligation to state reasons, it is necessary to assess whether the appointing authority fulfilled its duty to state reasons under the second paragraph of Article 25 of the Staff Regulations, read in conjunction with the second paragraph of Article 296 TFEU, and with Article 41(2) of the Charter, on the ground, inter alia, that certain relevant information was produced by the Commission only during the proceedings (see paragraph 48 above).

58 In that connection, it should be recalled that, according to settled case-law, the obligation to state reasons laid down by the second paragraph of Article 25 of the Staff Regulations, which merely reiterates the general obligation laid down by Article 296 TFEU is intended, first, to provide the person concerned with sufficient information to assess the merits of the act adversely affecting him and whether it is appropriate to bring an action before the EU judicature and, second, to enable the latter to review the legality of the act. It follows that the obligation to state reasons thus laid down constitutes an essential principle of EU law, which may be derogated from only for compelling reasons. Its importance is emphasised, in particular, by Article 41(2)(c) of the Charter, which places that obligation among the procedural safeguards forming an integral part of the right to good administration (see judgment of 26 October 2017, Paraskevaidis v Cedefop, T‑601/16, EU:T:2017:757, paragraph 36 and the case-law cited).

59 As regards the statement of reasons for a promotion decision in a decision rejecting a complaint lodged pursuant to Article 90(2) of the Staff Regulations by a candidate who has not been promoted, it has been made clear by settled case-law that an inadequate statement of reasons provided at the pre-litigation stage is not in itself such as to justify annulment of the contested decision where additional information is provided by the appointing authority in the course of the proceedings in order to remedy the inadequacy. That is particularly the case where, before bringing the action, the official concerned already had at his disposal information constituting the beginnings of a statement of reasons or where the decision refusing promotion was taken in a context which was known to him and enabled him to understand the scope of the measure concerning him (see, to that effect, judgment of 26 October 2017, Paraskevaidis v Cedefop, T‑601/16, EU:T:2017:757, paragraphs 43 to 45 and the case-law cited).

60 In the present case, it is true that the grounds for the decision rejecting the complaint were at the very least vague, even incomplete, as regards the merits of the promoted officials, in particular those from the DG for IT, which were compared with those of the applicant in the 2017 promotion procedure, and that the applicant was given additional information in that regard only during the proceedings and, in part, at the Court’s instigation. The fact nevertheless remains that, in that regard, the decision rejecting the complaint already contained important elements of assessment and comparison, including several extracts from staff reports of officials in the same grade from DGs other than the DG for IT, which should be classified as the beginnings of the statement of reasons which led the appointing authority to decide, on the basis of a consideration of the comparative merits of all of the officials who were eligible for promotion, not to promote the applicant.

61 Accordingly, the lack of precision in the statement of reasons set out in the decision rejecting the complaint was capable of being remedied during the proceedings by that additional information, including by the 2016 staff reports of the officials in the same grade who were from the DG for IT. That finding is all the more justified since, as is apparent, in particular, from paragraph 48 above, even on the basis of that additional information, the applicant was unable to clarify and further substantiate his complaints seeking a finding that the appointing authority made manifest errors of assessment or that it did not treat him equally in the comparative examination of merits.

62 Consequently, the complaint alleging that the statement of reasons was inadequate and the first plea in its entirety must be rejected as unfounded.

B. The second plea, alleging breach of the principle of ‘good administration by lack of diligence’

63 According to the applicant, the decision rejecting the complaint ‘was drafted with some carelessness and it does not give sufficient evidence that Article 45 of the Staff Regulations has not been breached, which is not in line with the principle of good administration as enshrined in Article 41(1) of the EU Charter’. The applicant submits that, first, on page 9 thereof, that decision wrongly attributed an extract from the 2015 staff report to a reporting officer, whereas the extract had in fact been written by the applicant to explain his wish to find a new post. Second, on page 6 of that decision, it is stated that the applicant ‘only claims that his time [at] the European Parliament from 1 March 2009 to 15 April 2014 resulted in a heavy career delay’, whereas the applicant claimed that that significant career delay related to his work at the Commission. Third, contrary to what is stated in the decision rejecting the complaint, the applicant never claimed that his assignment in the interests of the service should be taken into account, but only that, when he was transferred from the Parliament to the Commission, the DG for Human Resources had downgraded him from grade AST 8.2 to grade AST 8.1. Lastly, the applicant contends that the allegation that he has not demonstrated that there was a manifest error of assessment is irrelevant, since, before receiving the decision rejecting the complaint, he had no information enabling him to compare his merits with those of the promoted officials. The applicant states that those examples of carelessness ‘are not about typos, but rather about semantic misinterpretation and lack of argumentation’.

64 As its principal argument, the Commission contends that it demonstrated, in its response to the first plea, that the arguments put forward by the applicant were not sufficient to render implausible the assessment of the facts and for it to be concluded that there had been an infringement of Article 45 of the Staff Regulations. In the alternative, it states that, even though the applicant correctly claims that a comment made by him on his 2015 staff report was mentioned in error among the extracts from his staff reports in the decision rejecting the complaint, that error does not show that his reports, in their entirety, were not thoroughly analysed during the promotion procedure. Furthermore, the Commission disputes the applicant’s argument relating to the ‘heavy career delay’ following his transfer from the Parliament to the Commission. Although the Commission accepts that the wording of the decision rejecting the complaint is not especially clear on that point, that argument was fully taken into account by the appointing authority, as was the applicant’s argument concerning his hope of being promoted in 2016, had he retained his post at the Parliament.

65 Having regard to the complaints referred to in paragraph 63 above, it is sufficient to note that the applicant fails to explain to what extent the second plea alleges unlawfulness other than that already relied on in the first plea, and, in particular, the third complaint under that plea. Those complaints overlap with those challenging the substantive validity, in particular those alleging a manifest error of assessment, as well as with those relating to the inadequacy of the statement of reasons, in particular in so far as the applicant criticises the appointing authority for having drafted the decision rejecting the complaint with a certain degree of carelessness or for not having obtained, in good time, all of the information required in order effectively to bring the matter before the Court.

66 Furthermore, to the extent that, in so doing, the applicant seeks to rely on a breach of the duty to have regard for the welfare of officials or the duty of care, in that he refers to ‘the principle of good administration enshrined in Article 41(1) of the Charter’, or the existence of a factual error, those complaints must be rejected as ineffective. First, those complaints concern aspects of the presentation of the facts on which the overall assessment of the comparative merits was based which are negligible or not in themselves decisive. Second, the Commission has acknowledged the existence of a factual or drafting error in the presentation of the applicant’s merits, which it corrected in the course of the proceedings and whose impact on the outcome of the consideration of the comparative merits has not been demonstrated by the applicant and, in any event, was not taken into account.

67 Consequently, the second plea must be rejected as unfounded, as must the action in its entirety.

68 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleading.

69 However, according to Article 135(2) of the Rules of Procedure, the Court may order a party, even if successful, to pay some or all of the costs, if this appears justified by the conduct of that party, including before the proceedings were brought. The Court may inter alia order an institution whose decision has not been annulled to pay the costs on account of the inadequacy of that decision, which may have led an applicant to bring an action (see judgment of 22 April 2016, Italy and Eurallumina v Commission, T‑60/06 RENV II and T‑62/06 RENV II, EU:T:2016:233, paragraph 245 and the case-law cited), since such costs must be classified as unreasonable or even vexatious.

70 In the present case, it must be found that it was the Commission which led the applicant to bring the present action, in particular because of the vague, or even incomplete, statement of reasons for the decision rejecting the complaint as regards the consideration of comparative merits, with the result that the Commission must be ordered to bear its own costs and to pay those incurred by the applicant.

A. The first plea, alleging infringement of Article 45 of the Staff Regulations, manifest errors of assessment, breach of the principle of equal treatment and an inadequate statement of reasons

(3) The complaints relating to the assessment of the merits of the promoted officials and the consideration of the comparative merits

B. The second plea, alleging breach of the principle of ‘good administration by lack of diligence’

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> YG v Commission (Civil service - Promotion - Judgment) [2020] EUECJ T-518/18 (28 May 2020) URL: http://www.bailii.org/eu/cases/EUECJ/2020/T51818.html Cite as: [2020] EUECJ T-518/18, EU:T:2020:221, ECLI:EU:T:2020:221

Court of Justice of the European Communities (including Court of First Instance Decisions)