On March 18, 2015, the European Union Civil Service Tribunal (ECST) ruled in favor of a European External Action Service (EEAS) official who challenged his non-promotion.
This ruling invalidates the promotion procedure in force at the EEAS for lack of objectivity and transparency. Throughout the procedure, Union Syndicale provided technical and financial support to the colleague unjustly excluded from promotion.
According to the court, any promotion decision must be based on an effective comparative examination of the respective merits of all those eligible for promotion at the same grade within an institution. The procedure implemented by the EEAS was based on reports that did not include any quantitative assessment, and on the recommendations of line managers. The court found that the equal, impartial and objective treatment of those eligible for promotion could not be guaranteed in the absence of a codified evaluation method. In addition, the system of “recommendations” constitutes a filtering of those eligible for promotion within each department, and does not allow comparison between civil servants from different departments.
After pointing out that article 45 of the Staff Regulations leaves the Appointing Authority wide discretion as to the choice of methods and criteria for comparing the merits of all officials eligible for promotion in the grade, the CST found that the EEAS had exceeded its margin of appreciation in this case.
Some extracts from the judgment:
39. In this context, even if the appointing authority has a wide discretionary power to determine the procedure or method it considers most appropriate for carrying out the comparative examination of merits […], the power thus granted to the administration is nevertheless limited by the need to carry out the comparative examination of merits with care and impartiality, in the interests of the service and in accordance with the principle of equal treatment. Accordingly, this examination must be based on comparable sources of information and intelligence […]. Accordingly, in order to make the promotion system as fair as possible, the Appointing Authority must, in accordance with Article 45 of the Staff Regulations, ensure that the comparative examination of merits is objective, on the one hand, by guaranteeing the comparability of the assessments of all officials through the establishment of a common assessment scale and, on the other hand, by standardizing the assessment criteria for assessors.
40. From this point of view, it is clear, as does the applicant, that purely literal assessments do not make it possible to methodically detect disparities in the way civil servants are officials as practised by the various assessors on the basis of their own subjectivity, and that these exclusively literal assessments thus affect the Appointing Authority’s ability to carry out an objective comparison of merits.
41. While it cannot be argued that Article 43 of the Staff Regulations requires the use of a numerical and analytical rating, the obligation to conduct a comparison of merits on an equal basis and from comparable sources of information and intelligence, inherent in Article 45 of the Staff Regulations, requires a procedure or method capable of neutralizing the subjectivity resulting from the assessments made by different assessors.
In paragraph 44 of the judgment, the Tribunal gives some indications of the procedures and methods that would be acceptable, citing:
- statistical averages,
- allocation of points with weightings to neutralize differences in grading from one directorate-general or autonomous department to another,
- the allocation of merit points, or
- guidelines setting common objective criteria for the career profile of categories of civil servant.
What conclusions can we draw from this for our promotion procedure?
The Council’s promotion procedure is different from the one put in place at the EEAS (and the Commission) for the last promotion exercises. The Court of First Instance has already accepted and applied the system devised here for transforming mentions (“Excellent”, “Very good”, etc.) into a numerical mark (see judgment in Case F-81/12), taking into account the average marks awarded by the assessor. Our system would therefore fall under the second method mentioned by the Court in paragraph 44.
However, this ruling remains of interest to Council staff. Indeed, in our system, these marks and averages are only a working basis for the promotion committees, and they do not take into account several factors: responsibilities exercised, use of languages, and above all merit over time.
By reiterating the importance of comparing merits as objectively as possible, the Court also guides the work of our promotion committees. But above all, this ruling may be important for the future: a consultation process is due to begin shortly with a view to introducing a new evaluation and promotion system. Our demand for a fair, transparent and predictable system is reinforced by this ruling, which castigates the arbitrariness of certain institutions.
Union Syndicale will continue its action to ensure that the institutions respect their staff, their rights and their legitimate expectations, and will keep you informed of any further developments on this issue.