AL v Council (Civil service - Officials - Promotion - Judgment) [2024] EUECJ T-315/23 (06 November 2024)

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( Civil service - Officials - Promotion - 2022 promotion exercise - Decision not to promote the applicant to grade AST 5 - Consideration of the comparative merits - Misconduct - Abuse of power )

Council of the European Union, represented by M. Bauer and M. Alver, acting as Agents,

composed of R. da Silva Passos, President, N. Półtorak (Rapporteur) and T. Pynnä, Judges,

having regard to the fact that no application for a hearing was submitted by the parties within the period of three weeks from notification of closure of the written procedure and having decided to give a ruling without an oral procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,

1 By his action under Article 270 TFEU, the applicant, AL, seeks annulment of the decision of the Council of the European Union of 18 July 2022 not to promote him to grade AST 5 (‘the contested decision’).

2 The applicant has been an official in the General Secretariat of the Council (‘the GSC’) since 1 December 2007.

3 On 10 February 2021, the appointing authority of the Council decided, on the basis of Article 3 of Annex IX to the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), to initiate disciplinary proceedings against the applicant on conclusion of an investigation conducted by the European Anti-Fraud Office (OLAF), opened at the end of 2016, concerning possible irregularities connected with his declaration of family composition and the requirements for obtaining corresponding family allowances.

4 On 27 September 2021, at the end of the disciplinary proceedings, the appointing authority decided to remove the applicant from his post in accordance with Article 9(1)(h) of Annex IX to the Staff Regulations. The applicant brought an action for annulment against that decision registered as Case T‑22/22, accompanied by an application for interim relief.

5 Following the order of 31 March 2022, AL v Council (T‑22/22 R, not published, EU:T:2022:200), granting suspension of the operation of the decision to remove the applicant from his post, the applicant was reinstated in his post with effect from 1 October 2021.

6 On 20 June 2022, the GSC published the list of officials eligible for promotion and the number of promotions available for each function group and grade. The applicant’s name was included on the list along with the names of his colleagues in the same grade eligible for promotion to grade AST 5.

7 On 12 July 2022, the GSC received from the Advisory Committee on Promotion the list of members of staff in function group AST recommended for promotion, which included the applicant’s name (‘the list of 12 July 2022’).

8 On 14 July 2022, the Director-General of the GSC sent a note to the Advisory Committee on Promotion in which he stated that he held information on the conduct of the applicant that had to be taken into account when examining comparative merits and which led to the conclusion that the applicant should not be promoted (‘the note of 14 July 2022’). Consequently, he requested that the Advisory Committee on Promotion recommend another staff member for promotion instead of the applicant.

9 On 18 July 2022, the Advisory Committee on Promotion sent the appointing authority a new list of members of staff in function group AST recommended for promotion, which did not include the applicant’s name (‘the modified list of 18 July 2022’). The same day, the appointing authority adopted the contested decision.

10 On 18 October 2022, the applicant filed a complaint against the contested decision.

11 On 6 March 2023, the GSC rejected the complaint of 18 October 2022 (‘the decision rejecting the complaint’).

12 By judgment of 10 April 2024, AL v Council (T‑22/22, not published, EU:T:2024:219), the General Court rejected the applicant’s action referred to in paragraph 4 above.

– order the production of (i) the individual comparative evaluation of the applicant on which the contested decision is based, (ii) the precise methodology used for carrying out that individual comparative evaluation, (iii) material evidence that the same methodology has been applied universally to all officials to whom the applicant was compared, notably the officials promoted, (iv) the report sent by the Advisory Committee on Promotion to the appointing authority on 12 July 2022 and the list of officials proposed for promotion, and (v) all the documents related to the relevant promotion exercise which directly or indirectly concern the applicant;

– declare as valid both the list of 12 July 2022 and the modified list of 18 July 2022 and, consequently, order the appointing authority to deduct one possibility of promoting grade AST 4 assistants to grade AST 5 from the ‘possibilities of promotion for a future promotion exercise’;

– order the appointing authority and the Office for the Administration and Payment of Individual Entitlements (PMO) to pay the applicant an amount corresponding to the difference between the salary of an assistant post in grade AST 4 and the salary of an assistant post in grade AST 5 as from 1 January 2022;

16 As regards that request, it should be borne in mind that, according to settled case-law, where such a decision lacks any independent content, the effect of claims formally directed against that decision is to bring before the Court the act against which the complaint was submitted (see judgment of 23 March 2022, NV v eu-LISA, T‑661/20, EU:T:2022:154, paragraph 31 (not published and the case-law cited)).

17 In the present case, it must be held that the decision rejecting the complaint lacks any independent content. It merely confirms, in essence, the contested decision.

18 Therefore, the action must be regarded as being directed against the contested decision, the legality of which must be examined also taking into account the statement of reasons in the decision rejecting the complaint (see, to that effect, judgment of 23 March 2022, NV v eu-LISA, T‑661/20, EU:T:2022:154, paragraph 33 (not published and the case-law cited)).

19 In support of the first head of claim, the applicant puts forward three pleas in law. The first alleges an abuse of power and infringement of Article 54 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and of the principle of the protection of legitimate expectations. The second alleges infringement of Article 45(1) of the Staff Regulations, the principle of equal treatment and the principle of sound administration. The third alleges infringement of the principle ne bis in idem.

20 Since the first two pleas in law are closely connected, it is appropriate to consider them together.

The first and second pleas in law, alleging an abuse of power and infringement of Article 45(1) of the Staff Regulations, the principle of equal treatment and the principle of sound administration in the conduct of the promotion exercise

21 By its arguments put forward in the context of the first and second pleas, the applicant claims, in essence, that the appointing authority misused its powers in its consideration of the comparative merits of the officials eligible for promotion. Those arguments, which overlap to a large extent, may be organised in three parts.

22 In the first part, the applicant submits that the appointing authority infringed Article 45(1) of the Staff Regulations and the Instructions from the GSC to the Advisory Committees on Promotion of 18 June 2014 (‘Instructions from the GSC to the Advisory Committees on Promotion’) by not carrying out its own consideration of the comparative merits and by taking into account a criterion not provided for by the provisions applicable to the promotion procedure.

23 In the second part, the applicant maintains that the appointing authority unlawfully made a representation to the Advisory Committee on Promotion by exerting improper pressure on it. In support of that claim, the applicant calls into question several aspects relating to the promotion exercise.

24 In the third part, the applicant claims that the appointing authority infringed Article 54 of the Charter and the principle of the protection of legitimate expectations.

25 As a preliminary point, it is necessary to take into account the principles that govern the scope of the powers and obligations of the EU Courts when an action for annulment of a decision taken by the institutions relating to the promotion of officials is brought before them.

26 According to Article 45(1) of the Staff Regulations, the appointing authority is to grant promotions after consideration of the comparative merits for the purposes of which it is to ‘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 … and the level of responsibilities exercised by them’.

27 Furthermore, it is apparent from Decision No 194/83 of the GSC and the Instructions from the GSC to the Advisory Committees on Promotion, setting out the criteria to be taken into account when considering comparative merits, that the Council’s policy on promotion was governed by Article 45 of the Staff Regulations.

28 Moreover, it is settled case-law that the requirement laid down in Article 45 of the Staff Regulations that the appointing authority consider the comparative merits of officials eligible for promotion is an embodiment of both the principle of equal treatment of officials and the principle that they are entitled to reasonable career prospects. The consideration of their merits is therefore the decisive factor (see judgment of 16 June 2021, RA v Court of Auditors, T‑867/19, not published, EU:T:2021:361, paragraph 48 and the case-law cited).

29 In that regard, the appointing authority has a wide discretion in assessing the merits to be taken into consideration in a decision on promotion under Article 45 of the Staff Regulations, and review by the EU Courts must be confined to determining whether, regard being had to the various considerations which have influenced the administration in making its assessment, it has not exceeded the proper bounds and has not used its power in a manifestly incorrect way. The EU Courts cannot therefore substitute their assessment of the qualifications and merits of officials for that of the appointing authority. They must confine themselves to verifying that the consideration of comparative merits provided for in 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 EU Courts to review the merits of the administration’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 judgment of 16 June 2021, RA v Court of Auditors, T‑867/19, not published, EU:T:2021:361, paragraph 49 and the case-law cited).

30 Furthermore, the appointing authority has the power to undertake a consideration of comparative merits according to the procedure or method which it considers most appropriate. As is recognised in the case-law, there is no obligation on the institution concerned to adopt a particular appraisal and promotion system, given the wide discretion which it has to implement the objectives of Article 45 of the Staff Regulations in accordance with its own needs for the organisation and management of its staff (see judgment of 18 May 2022, TK v Commission, T‑435/21, not published, EU:T:2022:303, paragraph 44 and the case-law cited).

31 The wide discretion thereby conferred on the appointing authority is circumscribed by the need to undertake a consideration of the candidates’ comparative merits with care and impartiality, in the interests of the service and in accordance with the principle of equal treatment. In practice it must be undertaken on a basis of equality, using comparable sources of information (see judgment of 18 May 2022, TK v Commission, T‑435/21, not published, EU:T:2022:303, paragraph 45 and the case-law cited).

32 In the present case, the Directorate-General Organisational development and services, in its capacity as the appointing authority with regard to the promotion of officials in the AST function group, was the authority empowered to adopt the contested decision. Furthermore, as is apparent from paragraph 30 above, in the consideration of the comparative merits of officials eligible for promotion, the appointing authority was free to choose the procedure or method which it considered to be the most appropriate.

33 In this connection, it is settled case-law that while Article 45(1) of the Staff Regulations requires the appointing authority to consider, prior to any promotion decision, the comparative merits of all officials eligible for promotion, the appointing authority may be assisted by the administrative services at the various hierarchical levels, in accordance with the principles inherent in the operation of any hierarchical administrative structure (judgment of 14 November 2017, De Meyer and Others v Commission, T‑667/16 P, not published, EU:T:2017:801, paragraph 25).

34 Accordingly, the General Court has already held that prior consideration within each directorate-general of the comparative merits of officials eligible for promotion is not likely to hinder proper consideration of their comparative merits and, on the contrary, is in accordance with the principle of sound administration (judgment of 19 March 2003, Tsarnavas v Commission, T‑188/01 to T‑190/01, EU:T:2003:77, paragraph 99). To the same effect, the appointing authority may involve a joint consultative body such as the advisory committees on promotion during the preparatory stage of its promotion decisions (judgment of 14 November 2017, De Meyer and Others v Commission, T‑667/16 P, not published, EU:T:2017:801, paragraph 27).

35 In the present case, it is common ground that the Council established a promotion procedure comprising several consecutive stages. The first stage consisted of prior consideration of the comparative merits of the officials eligible for promotion carried out by the Advisory Committees on Promotion. The second stage was based on the final consideration by the appointing authority of the comparative merits of the officials eligible for promotion.

36 According to Article 1(2) of Decision No 194/83, the task of the Advisory Committees on Promotion is to advise the appointing authority in its consideration of the comparative merits of officials eligible for promotion and of the reports on them, as laid down in Article 45(1) of the Staff Regulations. It is also apparent from paragraph 1 of the Instructions from the GSC to the Advisory Committees on Promotion that ‘the task of the [Advisory Committees on Promotion] is to advise the [appointing authority] in its consideration of the comparative merits of officials eligible for promotion, as laid down in Article 45(1) of the Staff Regulations’.

37 In practice, the Advisory Committees on Promotion carry out a prior consideration of the comparative merits of officials eligible for promotion, as is apparent from paragraphs 5 and 11 of the Instructions from the GSC to the Advisory Committees on Promotion. As part of that consideration, the criteria laid down in Article 45(1) of the Staff Regulations must be taken into account.

38 Under Article 6(1) of Decision No 194/83, on completion of the consideration, the Advisory Committees on Promotion are to ‘send a written report to the [appointing authority] containing a list of officials whom they consider suitable for promotion or a statement that no officials qualify’ and ‘the list shall comprise as many names as there are posts to be filled by promotion.’

39 In accordance with Article 6(1) of Decision No 194/83, in the present case, the Advisory Committee on Promotion submitted to the appointing authority the list of 12 July 2022 containing the names of officials in the AST function group recommended for promotion and containing the applicant’s name.

40 It is apparent, however, from the note of 14 July 2022 that, having read the list of 12 July 2022, the appointing authority considered that certain elements relating to the applicant’s conduct were likely to hinder his promotion and informed the Advisory Committee on Promotion of its position in that regard and requested that it recommend another official for promotion instead of the applicant. The Advisory Committee on Promotion produced the modified list of 18 July 2022, which did not include the applicant’s name.

– The first part, alleging infringement of Article 45(1) of the Staff Regulations and the Instructions from the GSC to the Advisory Committees on Promotion

41 In the context of the first part, the applicant puts forward several arguments. First, he submits that paragraph 11 of the Instructions from the GSC to the Advisory Committees on Promotion strictly lists the three conditions laid down in Article 45(1) of the Staff Regulations. It follows that there is no scope for the secondary criteria listed in Section C of the Instructions from the GSC to the Advisory Committees on Promotion. Those criteria apply only in situations where, following the consideration of comparative merits on the basis of the three criteria laid down in Article 45(1) of the Staff Regulations, merits are equal between several officials eligible for promotion. In the present case, the applicant’s misconduct was also taken into account when deciding not to promote him. However, according to the applicant, since the proceedings were ongoing in the case giving rise to the judgment of 10 April 2024, AL v Council (T‑22/22, not published, EU:T:2024:219), the appointing authority could not reasonably rely on the applicant’s misconduct in the context of personal matters as a secondary criterion for the consideration under Article 45(1) of the Staff Regulations because it would then have had to carry out a second consideration of the merits.

42 Second, the applicant submits that, although his removal from his post was decided in September 2021, his 2021 staff report does not mention any misconduct and makes exclusively positive references. Furthermore, the appointing authority should have taken into consideration the order of 31 March 2022, AL v Council (T‑22/22 R, not published, EU:T:2022:200), from which it is apparent that the applicant did not have any malicious intent or a wish to enrich himself personally. Lastly, the alleged misconduct did not appear in the applicant’s electronic personal file, whereas the consideration of comparative merits should be carried out exclusively on the basis of information available in that file.

43 Third, the applicant maintains that the appointing authority did not carry out a further consideration of the comparative merits after 12 July 2022, in breach of Article 45(1) of the Staff Regulations, the principle of equal treatment and the principle of sound administration.

45 It should be borne in mind that the appointing authority has a wide discretion in assessing the merits to be taken into consideration when taking a decision on promotion under Article 45 of the Staff Regulations and that review by the EU Courts must be confined to determining whether, regard being had to the various considerations which have influenced the administration in making its assessment, it has not exceeded the proper bounds and has not used its power in a manifestly incorrect way (see paragraph 29 above).

46 In the first place, so far as concerns the argument that the taking into account, by the appointing authority, of certain elements relating to the applicant’s conduct infringes Article 45(1) of the Staff Regulations, it should be noted at the outset that although, under Article 6(1) of Decision No 194/83, the Advisory Committee on Promotion is to present for the attention of the appointing authority the list of officials it recommends for promotion, the appointing authority alone is responsible for promotion decisions and consideration of the comparative merits as provided for in Article 45 of the Staff Regulations (see, to that effect, judgment of 11 September 2019, YL v Commission, T‑545/18, EU:T:2019:578, paragraph 22 and the case-law cited).

47 Accordingly, the consideration of comparative merits of officials eligible for promotion carried out by the Advisory Committee on Promotion does not take the place of the consideration of comparative merits which must be undertaken by the appointing authority (see, to that effect, judgment of 28 June 2016, Kotula v Commission, F‑118/15, EU:F:2016:138, paragraph 55). It follows that, while the appointing authority must take into account the reasoned reports of the Advisory Committee on Promotion, it is not bound by the recommendations thereof (see, to that effect, judgment of 24 November 2021, YP v Commission, T‑581/20, not published, EU:T:2021:823, paragraph 162).

48 Furthermore, Article 45 of the Staff Regulations makes it clear, by using the term ‘in particular’, which are the three main criteria that must be taken into account when considering the comparative merits of candidates. It does not, however, preclude the taking into account of other criteria capable of giving an indication of the merits of officials eligible for promotion (judgments of 28 September 2011, AC v Council, F‑9/10, EU:F:2011:160, paragraph 25, and of 14 November 2012, Bouillez v Council, F‑75/11, EU:F:2012:152, paragraph 57).

49 As has been recognised by settled case-law, in the consideration of merits for the purposes of a promotion, the appointing authority is not required to refer only to officials’ appraisal reports but may also base its assessment on other aspects of their merits, such as information about their administrative and personal situation (see, to that effect, judgment of 15 September 2005, Casini v Commission, T‑132/03, EU:T:2005:324, paragraph 55 and the case-law cited).

50 Accordingly, in the case giving rise to the judgment of 11 September 2019, YL v Commission (T‑545/18, EU:T:2019:578), in which the appointing authority of the European Commission had taken into account, in order to decide not to promote the person concerned, an earlier decision by which it imposed on him the penalty of a relegation in step on the grounds that he had acted improperly, the General Court held that Article 45 of the Staff Regulations does not preclude misconduct, in so far as it constitutes an official’s failure to comply with his or her obligations under the Staff Regulations, from being taken into account by the appointing authority in order to reject, where appropriate, the candidature of the person concerned for promotion. It is in the interest of the institution that only persons of irreproachable professional conduct should be appointed to positions of responsibility (see judgment of 11 September 2019, YL v Commission, T‑545/18, EU:T:2019:578, paragraph 21 and the case-law cited).

51 The General Court added that, notwithstanding the fact that the acts giving rise to a penalty did not relate to the duties and responsibilities of the person concerned, suffice it to say that those acts nonetheless concerned failures to fulfil obligations which he was required to meet in his capacity as an official and therefore gave an indication of his merits within the meaning of the case-law cited in paragraph 48 above (judgment of 11 September 2019, YL v Commission, T‑545/18, EU:T:2019:578, paragraph 26).

52 It follows that Article 45(1) of the Staff Regulations does not prevent the appointing authority, when carrying out its own consideration of comparative merits, from taking into account other information about the administrative and personal situation of the official eligible for promotion, such as misconduct, which was not taken into account, in the present case, by the Advisory Committee on Promotion in the context of its recommendation.

53 The applicant argues however that paragraph 11 of the Instructions from the GSC to the Advisory Committees on Promotion strictly lists the three conditions laid down in Article 45(1) of the Staff Regulations which precludes the taking into account of other criteria, such as the secondary criteria listed in Section C of those instructions.

54 In that regard, it must be noted that paragraph 11 of the Instructions from the GSC to the Advisory Committees on Promotion provides that the consideration of comparative merits must be carried out on the basis of the criteria listed in Article 45(1) of the Staff Regulations, namely the reports on the officials, the level of responsibilities exercised by them and 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 Article 28(f) of the Staff Regulations.

55 However, it must be found that, in so far as it merely recalls the three criteria laid down in Article 45(1) of the Staff Regulations that must be taken into account by the Advisory Committees on Promotion when considering the comparative merits of the officials eligible for promotion, paragraph 11 of the Instructions from the GSC to the Advisory Committees on Promotion does not preclude the taking into account by the appointing authority of other information about the administrative and personal situation of an official which may also give an indication of his or her merits, such as a failure to fulfil the obligations which he or she was required to meet under the Staff Regulations.

56 As for Section C of the Instructions from the GSC to the Advisory Committees on Promotion invoked by the applicant, it must be noted that it does not provide an exhaustive list of ‘secondary’ criteria which, in addition to the three principal criteria, may be taken into account when considering the comparative merits of officials eligible for promotion, but merely sets out the criteria which, in the event that merits are equal, may be taken into consideration in order to decide between the persons concerned.

57 It follows that, although the misconduct of an official is not included in the three principal criteria which must be taken into account when considering the comparative merits of the officials eligible for promotion, or among the secondary criteria listed in Section C of the Instructions from the GSC to the Advisory Committees on Promotion, it cannot be inferred therefrom that misconduct cannot be taken into account as an element capable of giving an indication of the merits of an official eligible for promotion.

58 Therefore, without there being any need to rule on the question whether the concept of ‘conduct in the service’, set out in Article 43 of the Staff Regulations, should include the misconduct in question, it must be found that the appointing authority was entitled to take into account information available to it on the applicant’s conduct when carrying out its own consideration of the comparative merits for the purposes of taking a decision on promotion, which remains, within the meaning of the case-law cited in paragraph 46 above, its exclusive responsibility, especially since that conduct was so serious that it had led to the applicant’s removal from his post.

59 That conclusion is not called into question by the other arguments put forward by the applicant.

60 The fact that the applicant’s evaluation reports assess his conduct in the service as ‘very good’ and ‘good’ and make no reference to any misconduct is irrelevant for the reason set out in paragraph 58 above, namely that the appointing authority was justified in taking into account information available to it on the applicant’s conduct when carrying out its own consideration of the comparative merits for the purposes of taking a decision on the promotion.

61 It that regard, it is also irrelevant that, at the time of the adoption of the contested decision, the decision of 27 September 2021 imposing on the applicant the disciplinary penalty of removal from post was the subject of a suspension of operation, pursuant to the order of 31 March 2022, AL v Council (T‑22/22 R, not published, EU:T:2022:200), and of an action before the General Court.

62 In the second place, with regard to the alleged infringement of Article 45(1) of the Staff Regulations, the principle of equal treatment and the principle of sound administration on account of the fact that the appointing authority did not carry out a further consideration of the merits, as has already been mentioned in paragraphs 33 and 35 above, it is common ground that the Council established a promotion procedure comprising several consecutive steps which is not likely to prevent a comprehensive consideration of the comparative merits of officials eligible for promotion and contributes, on the contrary, to the principle of sound administration.

63 It is apparent from the note of 14 July 2022 that the appointing authority carried out its own consideration of the applicant’s merits, before concluding, rightly (see paragraph 58 above), that certain information relating to his conduct was a barrier to his promotion to grade AST 5.

– The second part, alleging that the appointing authority unlawfully made representations to the Advisory Committee on Promotion by exerting improper pressure on it

65 In the second part, the applicant submits, in essence, that the intervention of the appointing authority in the consideration of the comparative merits of officials eligible for promotion was improper. Therefore, that consideration did not take place in accordance with the Council’s internal rules.

66 More specifically, first, the applicant maintains that the request made by the appointing authority in the note of 14 July 2022 for the Advisory Committee on Promotion to remove his name from the list of 12 July 2022 and to propose the promotion of another official is not provided for by the rules of the Staff Regulations applicable to promotion, in particular by Article 6 of Decision No 194/83, which establishes only the possibility for the appointing authority to request that the report be supplemented with further details.

67 Second, the Advisory Committee on Promotion should have carried out a single consideration of the comparative merits of officials of the applicant’s grade, as follows from Article 2(1) of the agreement concluded between the appointing authority of the GSC and the trade unions or professional organisations representing the staff of the GSC (‘the OSPs’) derogating from Chapter IV of the consolidated protocol of 26 May 1988 included in annex to Staff Note 37/14 of the GSC (‘the agreement with the OSPs’). However, by its intervention, the appointing authority compelled the Advisory Committee on Promotion to carry out a further consideration of the comparative merits.

68 Third, it was not possible for the Advisory Committee on Promotion to carry out a second regular consideration of the comparative merits to the extent that, in the note of 14 July 2022, the appointing authority did not provide any evidence in support of its position that the applicant should not be promoted.

69 Fourth, the language used in the note of 14 July 2022 demonstrates the mandatory nature of the order given to the Advisory Committee on Promotion to modify the aforementioned list. The Advisory Committee on Promotion is an independent committee whose role is to carry out the consideration of the comparative merits and to report on that consideration to the appointing authority. However, although the applicant agrees that the appointing authority has full discretion to promote any official and is not bound by the recommendations of the Advisory Committee on Promotion, he argues that, by not promoting him, the appointing authority did not exercise its discretion but made an improper request to the Advisory Committee on Promotion.

70 Fifth, the abuse of power is upheld, on the one hand, by the minutes of the Staff Committee of 20 September 2022, in which the members of the Staff Committee noted that they were shocked by this ‘undue influence by the appointing authority’ and, on the other, by the protest by the Union syndicale fédérale of 1 June 2023 directed against the non-promotion of the applicant, which thus qualified the note of 14 July 2022 as a ‘shocking act of coercion’. Those elements also amount to evidence that the action of the appointing authority is improper and exceeded the proper bounds within the meaning of the judgment of 16 May 2013, Canga Fano v Council (T‑281/11 P, EU:T:2013:252, paragraph 41).

72 In the first place, it must be noted that, by its first and second arguments, the applicant alleges that the appointing authority infringed the rules of the Staff Regulations applicable to promotion, by making representations to the Advisory Committee on Promotion and forcing it to carry out a further consideration of the comparative merits.

73 First, with regard to the claim that the request made by the appointing authority to the Advisory Committee on Promotion in the note of 14 July 2022 is not in line with either Article 6(5) of Decision No 194/83, contrary to what the applicant maintains, or the wording of Article 6(5) of Decision No 194/83, or the fact that the provision provides for the possibility for the appointing authority to request that the Advisory Committee on Promotion supplement the report with further details preclude the appointing authority, having taken into account the list of 12 July 2022 and carried out its own consideration of the comparative merits, from informing the Advisory Committee on Promotion of its decision not to promote the applicant and requesting it to propose another official for promotion.

74 Furthermore, it must be noted that Article 6(5) of Decision No 194/83 provides that, in the course of the promotion exercise, the appointing authority may request that the Advisory Committee on Promotion, at its own discretion, supplement the report with further details, thus establishing, for the appointing authority, an option, and not an obligation (see, to that effect, judgment of 18 May 2015, Pohjanmäki v Council, F‑44/14, EU:F:2015:46, paragraph 54). The appointing authority cannot therefore be criticised for not requesting that the Advisory Committee on Promotion supplement the report with further details, in so far as, in the context of the broad margin of assessment it enjoys in assessing the merits to be taken into consideration in a decision on promotion (see paragraph 29 above), it had already decided that it had sufficient evidence to conclude that the applicant should not be promoted.

75 Second, as for the argument that the note of 14 July 2022 forced the Advisory Committee on Promotion to carry out a further consideration of the comparative merits in breach of Article 2(1) of the agreement with the OSPs, under which it is required to carry out a single consideration of the comparative merits, it must be noted that although Advisory Committees on Promotion must carry out a consideration of the comparative merits of all of the officials eligible for promotion, that provision does not preclude that consideration from being carried out in several consecutive steps. To that effect, Article 2(1) of the agreement with the OSPs does not preclude the appointing authority from requesting that the Advisory Committee on Promotion carries out its consideration of the comparative merits of officials of a certain grade, after it has carried out its own consideration of the comparative merits and has decided, in the light of factors relating to the misconduct of an official, that the latter should not be promoted.

76 It follows that the arguments alleging infringement of Article 2(1) of the agreement with the OSPs and Article 6(5) of Decision No 194/83 must be rejected.

77 In the second place, by its other arguments, the applicant relies on a number of factors demonstrating that the appointing authority acted improperly so that, in assessing the comparative merits of officials eligible for promotion, it exceeded the proper bounds in accordance with the case-law cited in paragraph 29 above.

78 First, so far as concerns the argument that only the Advisory Committee on Promotion carried out the consideration of the comparative merits of officials eligible for promotion, it must be found that the applicant, as is apparent from paragraphs 62 and 63 above, failed to demonstrate that the appointing authority had not carried out its own consideration of the the comparative merits of officials eligible for promotion.

79 Second, as for the argument that the appointing authority should have attached documents to the note of 14 July 2022 in support of its position, it must be borne in mind that, while the appointing authority must take into account the reasoned reports of the Advisory Committee on Promotion, it is not bound by the recommendations thereof and the appointing authority alone is responsible for promotion decisions (see paragraphs 46 and 47 above) which, moreover, the applicant does not contest. Consequently, given that, after having carried out its own consideration of the comparative merits, the appointing authority rightly concluded on 14 July 2022 (see paragraph 58 above) that the applicant should not be promoted, it was not necessary to attach to the note of 14 July 2022 a document with a view to a new consideration of the comparative merits to be carried out in his regard.

80 Furthermore, as the Council notes, none of the rules applicable to the promotion procedure in the Council invoked by the applicant require the appointing authority to inform the Advisory Committee on Promotion of the reasons why it decides, after having carried out its own consideration of the comparative merits, not to promote an official whose name appears on the list of officials proposed for promotion by the Advisory Committee on Promotion.

81 Third, with regard to the argument that the language used in the note of 14 July 2022 amounts to an improper request to the Advisory Committee on Promotion to modify the list of 12 July 2022, on the one hand, it must be noted that, in the note of 14 July 2022, the appointing authority does not order the Advisory Committee on Promotion to modify the list of 12 July 2022, but rather informs the latter of its decision not to promote the applicant after having carried out its own consideration of the comparative merits.

82 On the other hand, in the present case, it is apparent from the documents before the Court that, by requesting the Advisory Committee on Promotion to recommend another official for promotion instead of the applicant, the appointing authority took action in order to exhaust all promotion possibilities for the year and grade in question, so that its decision not to promote the applicant to grade AST 5 does not result in the loss of a possibility of promotion in that grade for the 2022 promotion exercise. In that way, the appointing authority acted in conformity with the principle of sound administration.

83 Lastly, fourth, as for the fact that the appointing authority’s intervention with the Advisory Committee on Promotion had already been criticised by the Staff Committee in its minutes of 20 September 2022 and by the Union syndicale fédérale on 1 June 2023, it must be noted that, as the Council maintains, such statements represent only the subjective point of view of those entities. Consequently, the fact that those entities raised criticisms in respect of the note of 14 July 2022 does not demonstrate that the appointing authority’s intervention in the consideration of the comparative merits of officials eligible for promotion was inconsistent with the rules applicable to the promotion procedure within the Council or that it was improper. Moreover, it should also be noted that, in its note of 1 June 2023, the Union syndicale fédérale put forward an abstract criticism, unsupported by legal arguments, of the 2022 promotion exercise, while referring to the note of 14 July 2022 which is not the subject of the present action.

84 It is apparent from all of the foregoing that the applicant has not established that the appointing authority committed an abuse of powers in breach of the rules which it had imposed on itself or that it exceeded the proper bounds within the meaning of the case-law cited in paragraph 29 above.

– The third part, alleging infringement of Article 54 of the Charter and of the principle of the protection of legitimate expectations

85 With regard to the allegations of an infringement of Article 54 of the Charter and of the principle of the protection of legitimate expectations, it must be found that, in support of those allegations, the applicant merely invokes the existence of an infringement of that provision in so far as the appointing authority exerted pressure on the Advisory Committee on Promotion to modify the list of officials proposed for promotion.

86 It must, however, be noted, in that regard, that the applicant’s written pleadings in no way make it possible to determine why he considers that Article 54 of the Charter has been infringed in the present case, nor why he considers that the conditions for invoking the principle of the protection of legitimate expectations were met. The mere abstract reference to those rules of law does not therefore comply with the requirements of Article 76(d) of the Rules of Procedure of the General Court. Accordingly, that argument must be rejected as inadmissible.

87 Furthermore, in the light of the considerations set out above, it must be found that the appointing authority, acting in accordance with the principle of equal treatment, carried out, in the present case, a consideration of the comparative merits pursuant to Article 45 of the Staff Regulations and that it did not commit any errors in that regard such as to render the contested decision unlawful.

88 It follows that the first and second pleas must be dismissed as being inadmissible in part and unfounded in part.

89 By the third plea, the applicant claims that the Council has already imposed on him a first penalty in respect of the misconduct set out in the note of 14 July 2022 by deciding, on 27 September 2021, to remove him from his post. However, in so far as that misconduct constitutes the ground for the appointing authority’s opposition to his promotion, the appointing authority imposed a second penalty on him for the same reasons. The statement made by the Union syndicale fédérale on 3 August 2022 constitutes evidence in that regard.

91 Under Article 9(3) of Annex IX to the Staff Regulations, a single case of misconduct must not give rise to more than one disciplinary penalty.

92 Moreover, it is clear from Articles 44 and 45 of the Staff Regulations that, unlike advancement, where, in principle, officials automatically advance to the next step after a certain period of time, promotion is awarded only following consideration of the comparative merits of the officials eligible for such promotion.

93 Therefore, under Article 9(1) of Annex IX to the Staff Regulations, deferment of advancement to a higher step – just as a fortiori relegation in step – constitutes a penalty. However, withholding promotion, which, moreover, is not mentioned in that provision, cannot in principle be equated to a penalty, since it is based on consideration of the comparative merits of the officials eligible for the promotion concerned (judgment of 11 September 2019, YL v Commission, T‑545/18, EU:T:2019:578, paragraph 18).

94 First, it should be borne in mind that, as the Court noted in paragraphs 45 to 58 above, on the one hand, the consideration of comparative merits of officials in the AST function group was carried out in accordance with Article 45(1) of the Staff Regulations and, on the other, the appointing authority was entitled, when deciding not to promote the applicant, to take into account the applicant’s misconduct, which was sufficiently serious to justify removing him from his post.

95 Second, it should be pointed out that the applicant produces no evidence to show that the contested decision was adopted, not on the basis of consideration of the comparative merits as provided for in Article 45 of the Staff Regulations, but rather with the aim of penalising him twice for the acts that gave rise to the decision of 27 September 2021 removing him from his post.

96 In that regard, the applicant merely argues that the appointing authority imposed a second penalty on him by forcing the Advisory Committee on Promotion to infringe the applicable legal provisions and to modify the list of officials proposed for promotion which included his name. However, as the Court pointed out in paragraph 58 above, the appointing authority was entitled to take into account, when adopting the contested decision, the applicant’s inappropriate or wrongful conduct. Furthermore, it is not apparent from the note of 14 July 2022 that the contested decision was adopted with the aim of imposing a second penalty on the applicant for the acts that gave rise to the decision of 27 September 2021 removing him from his post. In addition, the argument based on the fact that the Union syndicale fédérale issued a noted on 3 August 2022 by which it stated that it cannot rule out that the non-promotion of the applicant is linked to the adoption of the order of 31 March 2022, AL v Council (T‑22/22 R, not published, EU:T:2022:200), must be rejected on the same grounds as those set out in paragraph 83 above.

98 Having regard to all of the foregoing considerations, the applicant’s claim for annulment must be rejected in its entirety, without there being any need to order the production of the documents requested by the applicant, in so far as the Court has been able to rule on the application on the basis of the forms of order sought, the pleas in law and the arguments put forward during the proceedings and in the light of the documents lodged by the parties.

99 By its third and fourth heads of claim, the applicant requests that the Court, first, declare the list of 12 July 2022 and the modified list of 18 July 2022 to be valid and orders the appointing authority to deduct one possibility of promoting from the ‘possibilities of promotion for a future promotion exercise’ and, second, order the appointing authority and the PMO to pay him an amount corresponding to the difference between the salary of an assistant post in grade AST 4 and that of an assistant post in grade AST 5 as from 1 January 2022.

100 According to the Council, the third and fourth heads of claim must be rejected as inadmissible in so far as, pursuant to Article 270 TFEU and Article 91 of the Staff Regulations, the EU Courts do not have jurisdiction to issue directions to the administration.

101 First, with regard to the request that the list of 12 July 2022 and the modified list of 18 July 2022 be declared valid, that request must be rejected since Article 270 TFEU and Articles 90 and 91 of the Staff Regulations do not confer on the EU Courts jurisdiction to make legal statements (see, to that effect, judgments of 5 October 2020, Broughton v Eurojust, T‑87/19, not published, EU:T:2020:464, paragraph 174, and of 7 September 2022, OE v Commission, T‑486/21, EU:T:2022:517, paragraph 18).

102 Second, as for the request that the appointing authority be ordered to deduct one promotion possibility from the possibilities of promotion for a future promotion exercise, it should be borne in mind that it is settled case-law that, regarding judicial review, the Court does not have jurisdiction to issue directions to the administration (see judgment of 25 January 2023, NS v Parliament, T‑805/21, not published, EU:T:2023:22, paragraph 130 and the case-law cited). That request must therefore be rejected.

103 Third, so far as concerns the applicant’s request that the Court order the appointing authority and the PMO to pay him an amount corresponding to the difference between the salary of an assistant post in grade AST 4 and that of an assistant post in grade AST 5 as from 1 January 2022, it must be found that, irrespective of whether that request requires the exercise by the EU Courts of their unlimited jurisdiction, within the meaning of the second sentence of Article 91(1) of the Staff Regulations, by virtue of the rejection of the head of claim seeking annulment of the contested decision, it must be rejected as unfounded (see, to that effect, judgment of 5 October 2020, Broughton v Eurojust, T‑87/19, not published, EU:T:2020:464, paragraph 175).

104 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 pleadings. Since the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the forms of order sought by Council.

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> AL v Council (Civil service - Officials - Promotion - Judgment) [2024] EUECJ T-315/23 (06 November 2024) URL: http://www.bailii.org/eu/cases/EUECJ/2024/T31523.html Cite as: [2024] EUECJ T-315/23, EU:T:2024:771, ECLI:EU:T:2024:771

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