C-446/00

CUBERO VERMURIE v COMMISSION

OPINION OF ADVOCATE GENERAL STIX-HACKL delivered on 20 September 2001 1

I — Introduction II — The facts, proceedings before the Court of First Instance and the contested decision

1. The appellant in the present case, Pasc- 4. The facts giving rise to the contested ual Juan Cubero Vermurie, is appealing decision are described as follows in the against the judgment of the Court of First judgment appealed against: Instance delivered on 3 October 2000 in Case T-187/98, which dismissed his appli- cation.

'1 The annual promotions exercise with respect to Commission officials takes place according to a procedure set out in the Guide pratique de la procédure de promotions des fonctionnaires à la Commission européenne de la catég- 2. At first instance the appellant had orie A et du cadre linguistique, as sought, inter alia, the annulment of the produced by the parties in this case Commission's decision of 6 April 1998 not ("the promotions guide"). That proce- to promote him to Grade A 5 in the 1998 dure is divided into five stages. promotion year.

2 The first stage is the publication by the administration of the list of officials eligible for promotion, including all 3. This case raises the question of the those officials who meet the require- extent to which an official's mobility may ment of a minimum period in their adversely affect his career in so far as the grade as prescribed by Article 45 of the prospects of promotion are reduced in his Regulations and Rules applicable to new post. Officials and other Servants of the European Communities ("the Staff Regulations"). That publication 1 — Original language: German. enables the officials concerned to point

4 In the third stage, the committee draws up a list of the most deserving officials 7 There are two types of promotion: by comparing the merits of the officials promotion within a career bracket eligible for promotion according to a and promotion from one career bracket method of assessment adapted to the to the next. The present case concerns a grade in question. In the applicant's promotion falling within the latter case, the Promotions Committee used situation, namely from Grade A 6 to the method of assessment applicable to Grade A 5, that is to say, from admin- A 6 officials for promotion to Grade istrator to principal administrator. A 5. That method is based on the award of a certain number of points to the candidates according to the order of priority, drawn up by each Director-General, the staff reports, seniority in grade and service and age. In particular, the order of priority 8 The applicant, Mr Cubero Vermurie, drawn up by each Director-General was assigned to the Directorate-Gen- enables the candidates for promotion eral of Financial Control (DG XX) to be awarded a certain number of during the period from 16 September points (70, 45, 20 or 0), according to 1986 to 31 August 1996. From 1 Jan- their ranking, which are allocated to uary 1989 to 31 December 1990 he each directorate-general on the basis of was on secondment, in the interests of the number of candidates eligible for the service, to the Court of Justice of promotion in that directorate-general. the European Communities. [With

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Having considered your file, the select have been the case if I had not been joint working party is not in a position transferred in the interests of the ser- to recommend a favourable assessment vice from DG XX to DG XXIV." to the Promotions Committee.

15 By letter of 12 May 1998, the Director- General of DG x (the directorate to At its plenary meeting on 5 March which the applicant is currently 1998 the Promotions Committee assigned) intervened in support of the adopted the position taken by the select applicant's complaint. In that letter, joint working party with regard to your addressed to the Director-General of application". the Personnel and Administration Directorate (DG IX), he explained, inter alia, that the applicant was moved in the interests of the service, that he fulfilled his duties as assistant to the Director-General very efficiently, and 13 The applicant's name did not appear in that he would have been promoted to the list of the most deserving officials Grade A 5 if he had remained in DG or in the list of promoted officials XX, pursuant to the rules governing published in the Administrative the award of promotions within the Notices No 1033 of 16 March 1998 Commission. In conclusion, he was of and No 1036 of 6 April 1998 respec- the view that the applicant had suffered tively. injury not only to his career, but also of a non-material nature.

14 The applicant then lodged a complaint 16 The applicant's former Director-Gen- on 21 April 1998 in which he stated, eral in DG XX also intervened in inter alia: support of the complaint in a letter of 15 May 1998 to the Director-General of DG IX, which states, inter alia:

6. The Court of First Instance first declared inadmissible a plea alleging infringement of the third and fourth paragraphs of Arti- cle 24 of the Staff Regulations on the "In the light of the foregoing, [the ground that it had not been put forward appointing authority] considers that it in the complaint of 21 April 1998. The cannot be criticised as having used its Court also rejected as inadmissible pleas power of assessment in a manifestly alleging breach of the principles of legality, erroneous way or for an improper proportionality and the protection of legit- purpose. The Promotions Committee imate expectations on the ground that the considered the comparative merits of reasoning was insufficient. the officials in strict application of the rules published in the Administrative Notices No 309 of 26 February 1981, that is by having regard to the propo- sals of the Directorates-General and the career profile of the candidates for promotion. Furthermore, the specific 7. With regard to the merits, the Court of case of Mr Cubero Vermurie was taken First Instance rejected as unfounded the into consideration by the Promotions plea alleging infringement of Article 45 of Committee, which nevertheless consid- the Staff Regulations on the ground that ered that, on [the] basis of the informa- both the select joint working party and the tion available to it, notwithstanding Promotions Committee had in fact specifi- Mr Cubero Vermurie's obvious merits, cally considered the appellant's case and which moreover enabled him to be had not confined themselves to a strict proposed by DG XXIV and which are application of the mobility rules in ' the acknowledged in [a] note [drawn up promotions guide.

— order the Commission of the European Communities to pay the appellant compensation for material and non-material 1. declare the appeal admissible and well damage, fixed on an equitable founded; basis in the sum of BEF 250 000;

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— in any event, order the Com- as inadmissible. Those provisions concern mission of the European Com- the 'further training and instruction' of munities to pay the costs in- officials and provide, in particular, that this curred in respect of the pro- must be taken into account for purposes of ceedings at first instance and in promotion in their careers. In that respect, connection with the present the appellant cites various passages from appeal. his complaint and from his letter of 13 January 1998. In doing so, he claims, inter alia, that mobility is an important element in an official's career development since it increases his or her knowledge and skills. According to the appellant, this shows that he raised this issue in his IV — Arguments in support of the appeal complaint. As the Court of First Instance and assessment wrongly denied that he did so, the judg- ment is mistaken in law on that point.

11. The appellant puts forward a single plea in law, alleging errors of law and contradictions in the grounds of the con- tested judgment. That plea is divided into 13. The Commission contends that this four parts which it is appropriate to part of the plea is inadmissible in so far as examine separately. it contests an assessment of the facts. Alternatively, it contends that the com- plaint and the letter of 13 January 1998 related to the appellant's mobility, whereas the third and fourth paragraphs of Arti- cle 24 of the Staff Regulations concerned further training measures such as language First part of the plea: admissibility of the courses and shorthand tests. Consequently, plea alleging infringement of the third and the mobility of officials is not the subject of fourth paragraphs of Article 24 of the Staff the provisions he had cited and the first Regulations part of the plea is therefore unfounded.

15. The distinction between questions of fact and of law is particularly problemati- cal where the facts in question consist of the contents of a document. This difficulty may well arise in the present case: whether the plea in question is admissible depends mainly on whether it was raised in the pre- litigation procedure in accordance with Article 90(2) of the Staff Regulations. 4 The question of admissibility therefore 17. The Court of Justice has already had depends on whether the plea was actually occasion to give a ruling on similar distinc- stated in the complaint under Article 90(2) tions in relation to the admissibility of a of the Staff Regulations. ground of appeal. In the SFEI judgment 5 the Court, when considering the admissi- bility of an appeal, found, contrary to the view of the Advocate General, that the legal nature of a letter rejecting a complaint was a question of law, not of fact. Likewise, in the Vidrányi judgment 6the Court accepted that assessment of the facts — which was open to review by the Court of Justice — 16. On this point the Court of First included the question whether a particular Instance found that the appellant had not document was of a medical or other nature. relied on the third and fourth paragraphs of In that case, of course, whether the official concerned had a right to examine the 2 — See order in Case C-55/97 P AIUFFASS and AKT v document depended on its nature. Commission [1997] ECR I-5383, paragraph 13. 3 — See order in Case C-252/97 P N v Commission [1998] ECR I-4871, paragraph 15 and the judgments cited therein. 4 — The so-called rule of harmony between complaint and 5 — Case C-39/93 P SFEI and Others v Commission [1994] ECR application: see, for example, judgment in Case T-4/96 S v I-2681. Court of Justice [1997] ECR II-1125, ECR-SC I-A-179 and 6 — Case C-283/90 P Vidrányi v Commission [1991] ECR II-533, paragraph 98. I-4339.

21. In this particular case, the close con- nection between questions of fact and of law argues against such a conclusion. As it is manifest that the complaint did not expressly refer to an infringement of the 19. The case-law thus provides no clear third and fourth paragraphs of Article 24 distinguishing criterion where the contents of the Staff Regulations, the Court of First of a document are involved. Accordingly it Instance had to consider ('with an open is conceivable that it would be necessary to mind') whether the complaint referred, decide whether the Court of First Instance inter alia, to those provisions. However, submitted the contents of the document (as as Article 24 in turn does not mention established by interpretation, if necessary) mobility, but only 'further training and directly to a particular legal assessment or instruction', consideration of that point whether the Court merely made a finding also required interpretation of the third as to its contents. However, in certain cases and fourth paragraphs of Article 24 of the such a distinction is of little assistance. In Staff Regulations. the case of F. v Commission, cited above, 8 the inadmissibility of the plea regarding the legal nature of the letter was debatable in so far as the letter could also have been interpreted as meaning that the Court had misconstrued the legal concept of the complaint. However, the decision of the 22. It is true that, at that stage, the Court of Court of Justice on this point must have First Instance did not have to decide been based on the fact that the appellant's conclusively whether Article 24 was to be arguments evidently ultimately sought to construed as meaning that the 'further circumvent the mandatory time-limit for training and instruction of officials' to bringing an action. In that context, the last- which it refers encompasses the develop- mentioned judgment may have been a ment of knowledge which goes with mobi- special case. lity, which the appellant undoubtedly put forward. On the contrary, the Court of First Instance should have determined 7 — Case C-346/90 P [1992] ECR I-2691. whether the connection between Article 24 8 — Cited in footnote 7. and the arguments put forward in the

28. On this point nothing can be gleaned 25. It is therefore now necessary to deter- from the text or the legislative history of mine whether the reasoning of the Court of the provision in question. 11 This is shown First Instance in paragraph 37 of the by the reference to 'its own interests' and to contested judgment is erroneous in law and contradictory. The particular question arising is whether the connection between 10 — 'Il est tenu compte également de ce perfectionnement pour the submissions in the complaint and the le déroulement de la carrière\ 11 —See the Commission's proposal of 28 March 1969 (JO third and fourth paragraphs of Article 24 1969 C 83, p. 4) and the opinion of the European of the Staff Regulation was sufficiently Parliament on the Commission's proposal (JO 1969 C 97, p. 10). The then version of the text goes back to clear. Regulation (Euratom, ECSC, EEC) No 1473/72 of the Council of 30 June 1972 amending Regulation (EEC, Euratom, ECSC) No 259/68 laying down the Staff Reg- ulations of officials and the Conditions of Employment of other servants of the European Communities (OJ, English 9 — Cited in footnote 7. Special Edition 1972 (III), p. 703).

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30. However, the French version does not permit of this conclusion, 12 while the English version at least does not rule it out. 13 33. Consequently the first part of the plea must be rejected as unfounded. 12 — 'Il est tenu compte également de ce perfectionnement pour le déroulement de la carrière.' 13 — 'Such training and instruction shall be taken into account 14 — See the judgment in Case T-4/96, cited in footnote 4, for purposes of promotion in their careers.' It should be paragraph 99, with reference to the judgment in Case noted here that 'training and instruction' by definition 133/88 Del Amo Martinez v Parliament [1989] ECR 689, exclude mobility. paragraphs 9 and 10.

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37. This part of the plea also appears to be consequently 'concerned with infringement admissible but unfounded. of a rule of law relating to the application of the Treaty within the meaning of Arti- cle 173 itself'.

38. Taking account of the distinction between questions of fact and of law, which was discussed above, 15 the appel- 41. It follows that the question of a man- lant's criticism is aimed not so much at the ifest error of assessment can be examined result of the appraisal of his merits as at by the Court of Justice. 18 the — legal — conclusions drawn from it.

39. The Commission is, admittedly, correct 42. With regard to the substantive issue, in observing that the assessment of the reference must be made first of all to the evidence used by the Court of First Instance principles of case-law concerning the to corroborate the facts is not in principle a appraisal of the merits of officials. question of law. 16 However, contrary to the Commission's opinion, the appeal does not make an issue of the failure to produce evidence, but of the failure to find a manifest error of assessment.

46. The Court of First Instance has also decided that preliminary examination of the candidatures of the officials eligible for promotion within each directorate does not 44. The Court's case-law also states that preclude a proper appraisal of their merits, although, in the context of a promotion but conforms with the principle of sound procedure, the appointing authority must administration. 23 Furthermore, 'an official make its selection after comparing the staff who is eligible for promotion is entitled to reports and merits of eligible officials in have the Promotions Committee compare accordance with the first subparagraph of his merits with those of the other eligible Article 45(1) of the Staff Regulations, it officials in the grade in question'. 24 'In nevertheless has power 'to undertake such particular, if the appraisal by the Promo- consideration using the procedure or tions Committee of the merits of all the method it regards as most appropriate'. 21 officials eligible for promotion to the grade concerned is to have any meaning, the appointing authority must not confine itself to considering the merits of those who are best placed on the lists drawn up by the different directorates-general.' 25

45. However, the discretion of the admin- istration is not unlimited: it is 'subject to the need to undertake a comparative con- sideration of candidatures with care and impartiality, in the interests of the service 47. In the relevant part of the contested and in accordance with the principle of judgment the Court of First Instance equal treatment. In practice, such consid- applied that case-law, which was originally eration must be undertaken on a basis of laid down by the Court of Justice and equality, using comparable sources of infor- developed by the Court of First Instance. mation... . Moreover, the appointing

48. In that connection, the Court of First 51. The Court of First Instance took the Instance had to determine whether the position that strict application of the rules evaluation of the merits of all the officials could have an adverse effect in so far as the eligible for promotion, as required by the total number of priority points depended case-law relating to Article 45 of the Staff on the number of officials eligible for Regulations, could be carried out in view of promotion in the directorate-general in the strict rules concerning the award of point, so that if the official concerned was priority points in the promotions guide. assigned to a directorate with a different number of eligible officials, there might be no possibility of awarding priority points. 29 According to the promotions guide, an official has no acquired rights if, before transfer to another post, he is proposed for promotion without priority points. 30 49. The Court of First Instance began by observing that the issue was the appraisal of the appellant's merits by comparison with those of other officials of other directorates-general, not by comparison with those of officials of the same directo- rate-general. 26 Accordingly the Court went 52. As a logical consequence, in addition to on to consider whether 'the Commission strict application of the promotions guide carried out an appraisal of the [appellant's] to cases of mobility, the Court of First merits by comparison with all the officials Instance requires that potential negative eligible for promotion' 27 and whether there consequences be taken into account. 31 This were any manifest errors of assessment in seems appropriate as the appellant has that appraisal. shown prima facie that strict application may lead to unfair results. In addition, the distinction between officials with 'acquired rights' 32 to priority points and other offi- cials seems unfortunate in the light of Article 45(1) of the Staff Regulations.

57. Accordingly, the first point of the second part of the plea must be rejected.

55. The response to this is that the sup- posed contradictions do not exist. Merits can be assessed in this connection only relatively. Accordingly individual merits 58. With regard to the second point of the may be Obvious', but may still be less than criticism of paragraph 77 of the contested those of other officials and therefore not judgment, it must be observed that con- sufficient for inclusion on the list of the sideration of the appellant's special situa- most deserving officials. In addition to the tion discloses a connection with his merits appellant's merits, the Commission could only in so far as the award of priority only be required to take account of his points depends on the merits of the official special situation in relation to the award of concerned. However, as there is no mani- priority points, as he had been proposed for fest error of assessment in the appraisal of promotion in his previous directorate-gen- his merits, it was open to the Court of First eral without priority points and had been Instance to find that due account was taken assigned to another directorate-general of his special situation. Consequently this with a different number of points. The second point must also be rejected. appellant had no entitlement to an award of points and no entitlement to promotion. The Court of First Instance rightly refrained from substituting its own assess- ment concerning the award of priority points for that of the Commission. 59. In addition, it must be observed that a 33 — See the conclusion in paragraph 77 of the contested decision in the terms sought by the appel- judgment. lant would in the final analysis mean that

63. Regarding the first argument, the Com- mission contends that paragraph 85 of the judgment, which finds that the appellant 61. The appellant considers the reasoning had not proved a manifest error of assess- of the judgment contradictory and mista- ment in the Commission's rejoinder, is a ken in law also because the Court of First factual finding or, at least, a factual assess- Instance found that he had not proved a ment which cannot be appealed against. manifest error of assessment in the com- The second argument is also inadmissible parison of his merits with those of other because the first sentence of paragraph 84, officials, in this case Mr G. which finds that the appellant did not allege that his merits were superior to those of Mr G., is a factual finding. According to the Commission, the second sentence, which observes that the appellant had merely alleged that in the previous promo- 62. His first submission is that the finding tion year he was ranked ahead of Mr G. in paragraph 85 of the judgment that he and that his merits had increased since his had been unable to point to any manifest transfer to the new directorate-general, is error in the comparison of his merits with also a factual finding or factual assessment. those of Mr G. is wrong. Secondly, he Alternatively, the Commission regards this argues that paragraph 84 of the judgment is third part of the plea as unfounded.

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65. However, it does not follow that this part of the plea is inadmissible. It would be inadmissible only if it had confined itself to repeating the arguments previously submit- ted to the Court of First Instance. 35 68. It is, however, certainly unfounded. First, it must be observed that the ranking of an official in a particular promotion year is not a protected legal position in so far as it does not render it unnecessary to appraise the merits of the official in question in the 66. However, this possibility does not arise following year. 37 In those circumstances, for the following reasons. In this case the the respective ranking of the appellant and Court of First Instance drew a legal con- Mr G. in a past promotion year is not clusion from the two parts the appellant's decisive. The appellant's claim that his argument. According to his own submis- merits increased since his transfer to Direc- sions, the appellant himself claimed that in torate-General XXIV is likewise irrelevant the previous promotion year he was ranked ahead of another official and that his merits 36 — Paragraph 85 of the contested judgment. 37 — See the particularly clear statement in the judgment in Case T-22/99, cited in footnote 21, paragraph 36, to the effect 34 — Point 41. that the practice of automatically promoting officials (unless they show themselves to be unsuitable) who were 35 — See, inter alia, the order of 26 September 1994 in Case included on the list of most deserving officials in the C-26/94 P X v Commission [1994] ECR I-4379, para- previous promotion year, but not promoted, is manifestly graph 13. contrary to Article 45(1) of the Staff Regulations.

Fourth part of the plea: the principles of equal treatment and fairness

72. The Commission considers that this Arguments part of the plea is likewise inadmissible. The consideration of the appellant's merits by the competent bodies was a factual finding. Furthermore, the appellant is chal- lenging an implicit finding, in paragraph 82 of the judgment, that he would not have been automatically promoted even if he 71. Under the fourth part of the plea, the had not shown mobility by obtaining an appellant contends that the contested judg- assignment to a different post.

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Assessment found that the merits of other officials who had also shown mobility outweighed those of the appellant. At no time did he have a right to be promoted, even allowing for his previous placing on the list of eligible officials. 73. This final part of the plea appears to be partly inadmissible and partly manifestly unfounded.

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other official is less deserving in the current V — Costs promotion year because he was ranked lower than the appellant in the previous year. On the contrary, the merits of both officials must be appraised in the year in 80. Under Article 69(2) of the Rules of point. Procedure, which, pursuant to Article 118, applies to the procedure on appeal, the unsuccessful party is to be ordered to pay the costs. If the appeal is dismissed in its entirety, as I propose, on the ground that all 79. Accordingly the fourth part of the plea the parts thereof are unfounded or inad- is manifestly unfounded in so far as it is missible, the appellant must be ordered to admissible. pay the costs.

VI — Conclusion

8 1 . For the reasons set out above, I propose that the Court should:

(1) dismiss the appeal;