JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Third Chamber)
2March 2016
Case F‑84/15
Bernd Loescher
v
Council of the European Union
(Civil service— Officials— Union representative— Putting at the disposal of a trade union or staff association— 2014 promotion procedure— Decision not to promote the applicant— Article45 of the Staff Regulations— Comparative merits— No obligation under the Staff Regulations to provide for a specific method for assessing the comparative merits of staff put at the disposal of trade unions or staff associations— Taking into account of staff reports— Assessment of the level of responsibilities held— Evidence— Review of a manifest error of assessment)
Application:under Article270 TFEU, applicable to the EAEC Treaty pursuant to Article106a thereof, in which MrLoescher seeks annulment of the decision of the appointing authority of the Council of the European Union not to promote him to grade AD12 in the 2014 promotion procedure.
Held:The action is dismissed. MrLoescher is to bear his own costs and is ordered to pay the costs incurred by the Council of the European Union.
Summary
1.Officials— Reports procedure— Staff report— Drawing up— Officials performing duties as a staff representative— Obligation to adopt a specific method for comparing the merits of staff put at the disposal of trade unions or staff associations— None— Appraisal conducted by another official put at the disposal of the same organisation— Lawfulness
(Staff Regulations, Art.43)
2.Officials— Promotion— Consideration of comparative merits— Procedures— Administration’s discretion— Limits— Respect for the principle of equal treatment— Need for a procedure capable of neutralising the subjectivity inherent in assessments made by different assessors— Application of a method for refining officials’ appraisal scores— Lawfulness
(Staff Regulations, Art.45)
3.Officials— Promotion— Consideration of comparative merits— Administration’s discretion— Assessment of level of responsibilities held— Judicial review— Limits— Manifest error of assessment— Burden of proof
(Staff Regulations, Art.45(1))
4.Officials— Representation— Constraints associated with performance of duties as staff representative— Taking into account when staff report drawn up— Duties of assessors
(Staff Regulations, Arts24b and 43, and AnnexII, Art.1, sixth para.)
1.Given that the appointing authority enjoys a wide discretion in deciding on the procedure or method which it deems most appropriate for considering the comparative merits of officials, the failure to establish an ad hoc assessment system for officials performing activities at the disposal of a trade union or staff association does not entail any discrimination. Thus, an official cannot call for an institution to adopt rules specifically organising procedures and methods for comparing the merits of officials according to their respective situations under the Staff Regulations.
As regards staff representation activities, these cannot be assessed by assessors from the institution’s departments. Such activities do not come under their authority since they are performed outside the functional framework within which, under Article43 of the Staff Regulations, the ability, efficiency and conduct of each official are usually assessed. An institution has specifically complied with that requirement where it has established and applied to an official put at the disposal of an trade union or staff association a reporting procedure which enables another official put at the disposal of the same trade union or staff association to act as that official’s assessor (and, moreover, his only one) without being his hierarchical superior, and thus to assess his ability, efficiency and conduct in his duties for the trade union or staff association in question.
(see paras62-64)
See:
Judgment of 1July 1976 in de Wind v Commission, 62/75, EU:C:1976:103, para.17
Judgments of 21October 1992 in Maurissen v Court of Auditors, T‑23/91, EU:T:1992:106, para.14; 26September 1996 in Maurissen v Court of Auditors, T‑192/94, EU:T:1996:133, paras41 and 44, and 19October 2006 in Buendía Sierra v Commission, T‑311/04, EU:T:2006:329, para.131
Judgments of 7November 2007 in Hinderyckx v Council, F‑57/06, EU:F:2007:188, para.60, and 14July 2011 in Praskevicius v Parliament, F‑81/10, EU:F:2011:120, para.53
2.In order to make the promotion system as fair as possible, the appointing authority must, under Article45 of the Staff Regulations, ensure that the consideration of comparative merits is objective, first, by guaranteeing that the assessments of all officials are comparable by establishing a common appraisal scale and, second, by ensuring that assessors apply consistent appraisal criteria.
There may be considerable heterogeneity in the appraisals of officials in different departments of an institution, and that heterogeneity creates difficulties for the appointing authority when it is required to consider the comparative merits of all the officials concerned in accordance with the principle of equal treatment. In that regard, a method of assessment which consists in comparing the average analytical assessments of the various departments of an institution, thereby tending to eliminate the subjectivity resulting from assessments made by different assessors, is useful. Consequently, a method of refining the appraisal scores of officials, in order to consider the comparative merits of all officials eligible for promotion, does not appear inappropriate, particularly where it serves to neutralise the relative subjectivity of the various assessors in awarding those scores, some being objectively stricter than others. Furthermore, that method is designed to implement the principle of equal treatment in so far as, first, it is applied uniformly to all officials, including those put at the disposal of a trade union or staff association, whose appraisal reports are drawn up by a single assessor who is not their hierarchical superior. Secondly, it enables the comparative merits of officials to be considered on the basis of comparable sources of information, here in the form of appraisal reports presented in an identical format, and weighted average scores which are consistent throughout the institution.
(see paras65, 67, 68)
See:
Judgments of 3October 2000 in Cubero Vermurie v Commission, T‑187/98, EU:T:2000:225, para.85, and 19October 2006 in Buendía Sierra v Commission, T‑311/04, EU:T:2006:329, para.169
Judgment of 3June 2015 in Gross v EEAS, F‑78/14, EU:F:2015:52, paras44 and 45, on appeal before the General Court of the European Union, Case T‑472/15P
3.The performance of certain staff representation duties, such as those of chairman of a staff committee or president of a trade union or staff association, may, in certain cases, give grounds for assuming that, in themselves, those representation duties involve a high level of responsibilities. However, unless an official put at the disposal of such an organisation can prove the existence, level and duration of the responsibilities which he has actually and specifically held in connection with negotiations on the adoption of the new Staff Regulations, it is not established that, in view of its wide discretion, the appointing authority manifestly cannot consider, for the purposes of a promotion procedure, that the respective duties of other officials promoted to a higher grade, which they held on a permanent basis rather than in the short term, as with the official concerned, involve a higher level of responsibilities than that held by the official put at the disposal of the trade union or staff association.
In that regard, the Civil Service Tribunal, in its review of legality, may not conduct a detailed examination of all the files of the officials eligible for promotion in order to make sure that it agrees with the conclusion reached by the appointing authority, nor may it substitute its own assessment of the qualifications and merits of the officials concerned.
(see paras79, 80, 82)
4.The institutions are required to create the conditions necessary for ensuring the performance of staff representation or trade union duties and, in that regard, an official may not suffer harm as a result of the performance of duties in the staff representation bodies or their associations, such as a trade union.
The second sentence of the sixth paragraph of Article1 of AnnexII to the Staff Regulations is intended to safeguard the rights of members of the Staff Committee and officials appointed by the Committee to organs set up under the Staff Regulations or by the institution, by protecting them from any harm they might suffer because of their activities as staff representatives under the Staff Regulations. That is, in particular, the reason why staff representation activities must be taken into consideration when drawing up the staff reports of the officials concerned. Furthermore, the first sentence of that provision is designed to facilitate the participation of officials in staff representation in their institution, by enabling them, in particular, to carry out those duties within the working time prescribed for their normal service in their institution, and not in addition to it, or by putting them at the disposal of a trade union or staff association, which involves relieving them of some or all of their work in the institution’s departments.
(see paras90, 91)
See:
Judgments of 26September 1996 in Maurissen v Court of Auditors, T‑192/94, EU:T:1996:133, paras40 and 41 and the case-law cited therein, and 5November 2003 in Lebedef v Commission, T‑326/01, EU:T:2003:291, para.49
Judgment of 16December 2010 in Lebedef v Commission, T‑364/09P, EU:T:2010:539, para.23