Report for the Hearing delivered in Case 293/87

I — Summary of the facts

1. The applicant, François Vainker, is an official of the European Parliament and since 1 August 1983 has been in Grade A 5 in career bracket A 5/A 4.

2. According to Article 45(1) of the Staff Regulations of Officials of the European Communities (hereinafter referred to as ‘the Staff Regulations’), promotion is to be exclusively by selection, after consideration of the comparative merits of the officials eligible for promotion and of the report on them.

3. In 1982, by an internal directive on the composition and functioning of the Advisory Committee on Promotions, the President of the European Parliament set up an Advisory Committee on Promotions (hereinafter referred to as ‘the Promotions Committee’) to make recommendations on promotions to the appointing authority. According to Article 4 of the directive, the Promotions Committee meets four times a year and for promotions within career brackets draws up lists of officials who are to be recommended to the appointing authority for promotion on the basis of lists of officials eligible for promotion drawn up by the Directorate-General for Personnel, proposals made by the competent Director-General and specified promotion criteria.

4. In 1986 an agreement was concluded between the Director-General for Personnel, Budget and Finance and the Staff Committee on the criteria for promotion. It was published in June 1986 in the Bulletin of the Syndicat général du personnel des organismes européens under the title ‘Schéma de l'accord sur les critères pour le comité de promotion’ (Summary of the agreement on the criteria to be applied by the Promotions Committee). Under that agreement, promotions are to be made on the basis of two criteria, namely seniority and merit: for seniority, a maximum of 39 points may be awarded, except that a maximum of 6 additional points may be awarded for the first promotion in the category in question; for merit, 12 points may be awarded for promotions within Category A; 50% of the points for merit are awarded to all officials of average ability; the assessment of merit is carried out at a preliminary meeting between each Director-General, two members of the Promotions Committee and of the Staff Committee and a representative of the administration. In setting out the advantages of the agreement, the aforesaid publication states that merit has in practice been introduced only to a fairly limited extent.

5. On 2 July 1986, the Promotions Committee adopted without amendment a list drawn up by the preparatory committee and recommended to the appointing authority the following promotions to Grade A 4: on 1 October 1985: Hans-Jörg Timmann Pierluigi Reghellin on 1 January 1986: Ilse Langen Roger Glass John Wittenberg Johannes Schoo Anthony Comfort on 1 April 1986: Christian Pennera Rainer Klotzbuecher

6. According to its report of 2 July 1986, the Promotions Committee, having regard to seniority and periodic reports, awarded the following points to the officials concerned by the application: Seniority Merit Total Timmann 22.30 11 33.30 Reghellin 21.55 11 32.55 Langen 21.85 10 31.85 Glass 19.65 11 30.65 Wittenberg 20.05 10 30.05 Schoo 17.65 11 28.65 Comfort 19.85 8 27.85 Pennera 17.15 11 28.15 Klotzbuecher 17.95 10 27.95 The committee awarded to François Vainker the following points: Seniority: 16.15 Merit: 11 Total 27.15

7. On 30 October 1986 the Secretary-General of the European Parliament adopted three decisions, the first promoting to Grade A 4 Mr Timmann and Mr Reghellin, the second promoting to Grade A 4 Miss Langen, Mr Glass, Mr Wittenberg, Mr Schoo and Mr Comfort and the third promoting to Grade A 4 Mr Pennera and Mr Klotzbuecher.

8. These decisions were posted on the notice boards within the premises of the Parliament in February 1987, and by letter of 9 March 1987 the applicant submitted a complaint to the appointing authority under Article 90 of the Staff Regulations.

9. On 9 July 1987 the President of the European Parliament informed Mr Vainker that for the purpose of adopting a decision on the complaint the Secretary-General of the European Parliament had requested the Promotions Committee for additional information.

10. No reply to the complaint was received within the prescribed period.

II — Written procedure and conclusions of the parties

1. François Vainker's application was lodged at the Court Registry on 1 October 1987.

2. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry.

3. François Vainker, applicant, claims that the Court should: (1) Annul the three decisions of 30 October 1986 whereby the Secretary-General of the European Parliament, acting in his capacity as appointing authority for the officials of the European Parliament, promoted respectively: (a) Hans-Jörg Timmann and Pierluigi Reghellin to Grade A 4 with effect from 1 October 1985; (b) Ilse Langen, Roger Glass, John Wittenberg, Johannes Schoo and Anthony Comfort to Grade A 4 with effect from 1 January 1986; (c) Christian Pennera and Rainer Klotzbuecher to Grade A 4 with effect from 1 April 1986; (2) Annul the implied decision of the appointing authority rejecting the complaint made to it by the applicant on 9 March 1987 regarding the said three decisions of 30 October 1986; (3) Order the defendant to pay the costs of the action.

4. The European Parliament, defendant, contends that the Court should: (1) Dismiss the application; (2) Order the applicant to pay the costs.

III — Submissions and arguments of the parties

1. François Vainker claims that the method whereby the promotion decisions were reached is unlawful by reason of its being in breach of Article 45(1) of the Staff Regulations, and that accordingly the promotion decisions themselves are in breach of that article and in any event involve an unreasonable and improper exercise of the discretion given to the appointing authority under that provision. (a) In the applicant's submission, the provisions of Article 45(1) require that promotion be decided upon by the appointing authority primarily on the basis of an assessment of the comparative merits of the officials eligible for promotion, regard having also been paid to the respective periodical reports. Only where the respective merits and qualifications of the officials eligible for promotion are equal may decisive weight be given to age or seniority. The applicant submits that that interpretation is supported by a constant line of decisions of the Court. It refers to the judgments of 27 January 1983 in Case 263/81 (List v Commission [1983] ECR 103, at paragraph 26), of 24 March 1983 in Case 298/81 (Colussi v European Parliament [1983] ECR 1131, at paragraph 22), of 21 April 1983 in Case 282/81 (Ragusa v Commission [1983] ECR 1245, at paragraph 14), and the judgment of 14 July 1983 in Case 9/82 (Øhrgaard and Delvaux v Commission [1983] ECR 2379, at paragraph 19). (b) According to the applicant, the method of assessment adopted by the ACP in this case involves the accordance of priority to seniority and age and relegates the merits of the officials eligible for promotion to a subsidiary and potentially nonexistent role. It is not contested that the recommendations of the Promotions Committee applied the 1986 agreement or that the appointing authority adopted the promotion decisions solely on the basis of those recommendations; by adopting the recommendations of the Promotions Committee, the appointing authority thus adopted in turn a method of selection which was in breach of the requirements of Article 45(1) of the Staff Regulations. The European Parliament's defence, to the effect that Articie 4 of the internal directive operated to provide a preliminary selection by the Directors-General based on merit, cannot be accepted. Firstly, Article 4 does not provide for Directors-General having the power to decide which officials are eligible for promotion. Secondly, in the present instance all of the officials who were eligible for promotion were assessed by the Promotions Committee, without any preliminary sift. Thirdly, the scheme of the 1986 agreement makes no provision for taking into account proposals from Directors-General. Finally, even if there were such a preliminary sift of officials eligible for promotion, that would not relieve the appointing authority of its duty, under Article 45 of the Staff Regulations, to base its promotion decisions on the primary criterion of the comparative merits of the various candidates for promotion. The applicant stresses that he is not claiming that the method of assessment provided for by the 1986 agreement does not mention merit, but that the role given to merit when the lists are drawn up by the Promotions Committee is so minor that the determining criteria are generally seniority and age. Furthermore, that method has had the practical consequence of giving priority to seniority and age; thus, the candidate with the highest number of points for merit (Mr Hinckxt—12 points) was not promoted. Mr Young, who received 11 points for merit, was placed last on the list, and Mr Comfort, who received 8 points for merit, was promoted. The applicant submits that the requirement in Article 45 of the Staff Regulations is not satisfied by the employment of a system of assessment which, while taking some minor account of merit, enables promotion to be effectively determined by seniority. (c) The applicant claims that in any event, the promotion decisions constitute an unreasonable and improper exercise of the appointing authority's discretion, having regard to the fact that the method of assessment whereby the promotion decisions were reached involved criteria giving to seniority and age greater importance than was given to the comparative merits of the officials eligible for promotion. The applicant does not deny that the points system of the 1986 agreement was applied to him impartially, but he submits that the promotion decisions are vitiated by the use of an improper method of assessment, and it is sufficient to warrant the annulment of the contested decisions that the appointing authority has clearly misdirected itself as to the relative importance of merit and seniority respectively. The applicant considers that the Parliament's argument that it has not exceeded the limits of its discretion is unsound. He draws attention to the restricted band of points available under the 1986 agreement for merit; in view of the understanding that officials of ‘average’ ability should receive 6 points, such a scheme hinders a proper and genuine selection on the basis of merit. However, if the scheme were to be accepted, it necessarily follows that any difference between marks must be regarded as important. In the present case, the applicant was awarded 11 points for merit. Yet the appointing authority was recommended to, and did, promote three candidates who received only 10 points for merit and one candidate who received 8 points. By doing so, the appointing authority allowed seniority to override merit and accordingly acted in breach of Article 45 of the Staff Regulations and manifestly acted outside the proper scope of its powers. In the applicant's view, the appointing authority simply adopted the order of candidates as listed by the Promotions Committee, that order having resulted from a scheme which was intended to have, and did have, the result that promotion would be effectively determined by seniority, with the consequence that the assessment of merit could be regarded as of limited importance. Furthermore, that was the view expressed when the scheme was set out in the Bulletin of the Syndicat Général du Personnel des Organismes Européens.

2. The European Parliament submits that the action for annulment of the implied decision rejecting Mr Vainker's complaint is not in itself admissible. The rejection of a complaint submitted pursuant to Article 90(2) of the Staff Regulations is not in itself a new act adversely affecting the official, but a necessary procedural step within the general framework of the appeals procedure of Articles 90 and 91 of the Staff Regulations. The European Parliament therefore considers the application for annulment of the implied decision rejecting the complaint as part of the action for the annulment of the contested promotion decisions. With regard to the action for the annulment of the promotion decisions of 30 October 1986, the European Parliament considers that the applicant must establish that he has an interest in the annulment of those decisions; such interest no longer exists since Mr Vainker was promoted to Grade A 4 by decision of 10 December 1987; moreover, he has such interest only if he can establish that the contested decisions were taken on the basis of the aforementioned assessment criteria in blatant disregard of his merits in comparison with the merits of the other candidates. According to the European Parliament, the Court of Justice has (in its judgments of 21 April 1983 in Ragusa, cited above, and of 4 December 1980 in Case 782/79 Geeraerd v Commission [1980] ECR 3651) formulated the following principles governing promotion decisions: (i) in assessing the interests of the service and the qualities to be considered in a promotion decision, the appointing authority possesses wide discretion and the Court must restrict itself to determining whether the latter has remained within reasonable limits and has not used its power in a manifestly incorrect way; (ii) a promotion decision must be taken in the light of all relevant factors and after consideration of the comparative merits of the various candidates, as provided for by Article 45 of the Staff Regulations; (iii) the provisions of the Staff Regulations are observed as long as each candidate's case receives attentive and impartial treatment and he suffers no special disadvantage. In the light of these principles, the European Parliament submits that in taking the promotion decisions: (a) the appointing authority has duly considered the comparative merits of the various candidates; (b) the appointing authority has given the applicant's case attentive and impartial treatment, specifically with regard to his merits; and (c) the appointing authority has not used its power in a manifestly incorrect way. (a) The European Parliament states that the appointing authority took its decisions after consideration of the comparative merits of the officials eligible for promotion and of the reports concerning them, as required by Article 45 of the Staff Regulations. The contested decisions were prepared on recommendation of the Promotions Committee, set up in 1982 pursuant to aninternal directive of the President of the European Parliament. Under Article 4 of the directive, the merits of the candidates are taken into account at a very early stage of the promotion procedure; a first selection, based on merit, is made by the Directors-General, who decide which officials are to be put on the list of officials eligible for promotion. In the present case, merits were then taken into account and compared by the Promotions Committee, which drafted two lists of candidates eligible for promotion: (i) the first list contained all relevant information, such as seniority in category, seniority in the service, age, and a summary of the two most recent staff reports; (ii) the second list applied the criteria agreed in 1986 by the Director-General for Personnel, Budget and Finance and the Staff Committee. The names of the candidates were then listed according to the result of this second list, and the nine candidates with the highest marks were proposed for promotion. On the basis of this list of nine names, the decisions of 30 October 1986 were taken. The European Parliament refers to the judgment of 21 April 1983 in Ragusa, cited above, and stresses that the appointing authority was bound to abide by the consultative procedure and that procedure could not be regarded as lacking any legal validity. The fact that the appointing authority based itself on the proposals made by the Promotions Committee does not mean that it did not itself check the assessment of the merits of the candidates proposed; it only proves that the appointing authority considered that the assessment of the candidates' merits was not unreasonable. The choice of the method of assessing candidates is precisely a constituent part of the discretion available to the appointing authority and it cannot be blamed for following the recommendations of the Promotions Committee as long as the candidates have been given attentive and impartial treatment. (b) Secondly, the European Parliament submits that the applicant has been given attentive and impartial treatment, specifically with regard to his merits. The second list shows that the applicant was given a mark of 11 (out of a possible 12) for his merit; that was the highest mark awarded to any candidate and was shared by the candidates Timmann, Reghellin, Glass, Schoo and Pennera. In order to determine whether the appointing authority treated the applicant in a manifestly incorrect way, it must be examined whether he was treated manifestly less favourably than the other candidates. The European Parliament contends that the appointing authority was entitled to give priority to the candidates Timmann, Reghellin, Glass, Schoo and Pennera, who had received the same mark for merit but had more seniority. The defendant contends that the situation is not significantly different with regard to the candidates Langen, Wittenberg, Klotzbuecher and Comfort. According to the defendant, the merits of Miss Langen are to a large extent comparable with those of the applicant, as is shown by their respective staff reports. For that reason, it considers that the appointing authority was justified in giving priority to her, as she has been employed by the European Parliament since 1955 whereas the applicant did not enter the Parliament until 1979. The staff reports on Mr Klotzbuecher and Mr Wittenberg are also in large measure comparable with the staff report on the applicant, but they both have two more years' seniority in the category. Here again, the appointing authority did not act unreasonably in giving priority to their promotion. In the case of Mr Comfort, the European Parliament submits that the applicant must prove that the appointing authority acted in a manifestly incorrect way in giving priority to a candidate who is two years older, has fifteen months' additional seniority, was eligible for promotion for eight more months and has, in one item of the staff report, a better record than the applicant. The defendant submits that in this case also the appointing authority did not act clearly beyond the scope of its discretion. In cases where the results of the evaluation of merit, which is a subjective evaluation, are not significantly different, it is in the interest of the service to give more weight to objective criteria, such as seniority and age. (c) The European Parliament is therefore of the opinion that, by taking its decisions of 30 October 1986, the appointing authority has not exceeded its discretionary power as referred to in Article 45 of the Staff Regulations and in the judgments of the Court of Justice.

F. A. Schockweiler

Judge-Rapporteur

1 Language of the case: English.