Guillaume Vincenti v European Union Intellectual Property Office (T-586/16)

Contents

Judgment of the General Court (Third Chamber)14 November 2017^note(Civil service — Officials — Promotion — 2015 promotion exercise — Lack of staff reports as a result of sick leave — General provisions for implementing Article 45 of the Staff Regulations)In Case T‑586/16,Guillaume Vincenti, residing in Alicante (Spain), represented by H. Tettenborn, lawyer,vEuropean Union Intellectual Property Office (EUIPO), represented by K. Tóth and A. Lukošiūtė, acting as Agents,THE GENERAL COURT (Third Chamber),composed of S. Frimodt Nielsen, President, V. Kreuschitz and N. Półtorak (Rapporteur), Judges,Registrar: P. Cullen, Administrator,having regard to the written part of the procedure and further to the hearing on 5 May 2017,gives the following

Judgment

Background to the dispute

1The applicant, Mr Guillaume Vincenti, is an AST 7 official of the European Union Intellectual Property Office (EUIPO). He has been in that grade since 1 April 2009. He has been on sick leave since 10 June 2013.

2The assessment he received in all his staff reports for the 2009, 2010, 2011 and 2012 appraisal exercises showed that, ‘overall, the efficiency, the abilities and the aspects of conduct appraised correspond[ed] to the level required for the post occupied’. By contrast, due to his justified absence, his staff reports for the 2013 and 2014 appraisal exercises, covering the periods from 1 January to 31 December 2013 and from 1 January to 31 December 2014 respectively, were not finalised.

3The promotion threshold in the applicant’s grade is 9 points. By letter of 21 July 2014, the appointing authority of EUIPO (‘the appointing authority’) informed the applicant that the number of 2014 promotion points available to him had been definitively set at 9.25 points.

4By a staff communication of 27 April 2015, EUIPO launched the 2015 promotion exercise and informed its staff that — in accordance with Article 110 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) — it was applying Commission Decision C(2013) 8968 final of 16 December 2013 laying down general provisions for implementing Article 45 of the Staff Regulations (‘the GIPs for Article 45’) to officials by analogy. By that communication, it also informed its staff that work instructions had been drawn up in order to define the detailed rules regarding promotion within EUIPO (‘the work instructions’).

5EUIPO’s Management and Advisory Committee did not include the applicant’s name on the list of officials put forward for promotion in the context of the 2015 promotion exercise. That list was published on EUIPO’s intranet site on 25 June 2015.

6On 2 July 2015, the applicant contested that decision of the Management and Advisory Committee before the Joint Promotion Committee (‘the JPC’) and requested that his name be included on the list of officials put forward for promotion.

7Having examined the applicant’s case, on 24 July 2015 the JPC adopted its recommendation to the appointing authority. In that recommendation, the JPC advised that the applicant’s request should not be granted. It considered, with reference to the work instructions, that when the official returned to work, a staff report should be drawn up and promotion points as well as a comparison of merits should be implemented retroactively. That recommendation was not adopted unanimously. The two members of the JPC appointed by the Staff Committee indicated that there was no legal basis allowing for a departure from the clear wording of the GIPs for Article 45 and that the interpretation of the work instructions on which that recommendation was based was a departure, in their view, from the clear meaning of Article 3 of those GIPs.

8On 24 July 2015, the appointing authority published the list of officials promoted in the 2015 promotion exercise. The applicant’s name did not appear on that list.

9By complaint lodged on 18 August 2015 under Article 90(2) of the Staff Regulations, the applicant contested EUIPO’s decision of 24 July 2015 establishing the list of officials promoted in the 2015 promotion exercise (‘the contested decision’).

10By decision of 8 December 2015, the appointing authority rejected the complaint (‘the decision rejecting the complaint’).

Procedure and forms of order sought

11By application lodged at the Registry of the Civil Service Tribunal on 18 March 2016, the applicant brought the present action. The case was registered as Case F‑16/16.

12Pursuant to Article 3 of Regulation (EU, Euratom) 2016/1192 of the European Parliament and of the Council of 6 July 2016 on the transfer to the General Court of jurisdiction at first instance in disputes between the European Union and its servants (OJ 2016 L 200, p. 137), the present case was transferred to the General Court in the state in which it was found as at 31 August 2016. It was registered as Case T‑586/16 and was assigned to the Third Chamber.

13On 8 March 2017, the Court, by way of a measure of organisation of procedure, requested EUIPO to answer several questions. On 28 March 2017, EUIPO complied with that measure.

14The applicant claims that the Court should:– annul the decision of EUIPO of 24 July 2015 not to promote him to the next grade (AST 8) in the 2015 promotion procedure by not including his name on the list of officials promoted in the 2015 promotion exercise;– order EUIPO to pay the costs.

15EUIPO contends that the Court should:– dismiss the action in its entirety;– order the applicant to pay the costs.

Law

16In support of his action, the applicant raises three pleas in law, considered together in the application, alleging (i) infringement of Article 45 of the Staff Regulations, Article 3 of the GIPs for Article 45, and Article 13 of EUIPO Decision ADM‑05‑09; (ii) infringement of the principle of the protection of legitimate expectations, the principle of sound administration and his rights of the defence, as well as a distortion of the facts on which the contested decision is based; and (iii) a manifest error of assessment in the appointing authority’s refusal to exercise its discretion concerning his promotion and, in the alternative, a manifest error of assessment in the appointing authority’s refusal to promote him, in so far as such a refusal exceeds the appointing authority’s discretion.

17As a preliminary point, as noted in paragraph 4 above, the provisions applicable, which were moreover applied by EUIPO, to officials during the 2015 promotion exercise were, by analogy, the GIPs for Article 45. When questioned at the hearing with regard to the relevance of EUIPO Decision ADM-05-09 to the present case, the applicant, acknowledging that the contested decision was not based on that EUIPO decision, withdrew his arguments alleging infringement of that decision, a note of which was made in the minutes of the hearing.

First plea in law: infringement of Article 45 of the Staff Regulations and Article 3 of the GIPs for Article 45

18The applicant submits that the appointing authority infringed the second sentence of the fifth indent of Article 3 of the GIPs for Article 45. In his view, his staff reports were not finalised due to an event for which he cannot be held responsible, namely his sick leave. The wording of that provision does not permit his case to be excluded from the 2015 promotion procedure. The appointing authority was wrong to consider that postponing the appraisal and promotion procedures concerning him until he had resumed his duties would not deprive him of his rights under Articles 43 and 45 of the Staff Regulations. That approach has a number of disadvantages, notably in the event of the death or permanent invalidity of the official concerned. Similarly, the appointing authority cannot justify the fact that the applicant was unable to take part in the promotion procedure in question by pointing to the lack of assessment of his comparative merits, since he cannot be held responsible for that situation. Indeed, according to the applicant, the appointing authority could have used other information at its disposal to that end. Thus, in disregarding Article 3 of the GIPs for Article 45, the appointing authority infringed Article 45 of the Staff Regulations.

19EUIPO contends, in essence, that the second sentence of the fifth indent of Article 3 of the GIPs for Article 45 does not apply to the applicant’s situation but applies, for example, to a situation where the reporting officer is absent while the official concerned is present during the promotion exercise, pursuant to its work instructions. That interpretation is borne out by the fact that staff reports are necessary to ensure a proper comparison of the merits of officials eligible for promotion, which is also apparent from Article 3 of the GIPs for Article 45, which requires, as a general rule, that those reports have become final. According to EUIPO, given that a person on sick leave is generally not considered to be in a position to contest his staff report and comply with procedural time limits, it was obliged to suspend the applicant’s appraisal procedures and, consequently, to suspend his promotion procedure in order to guarantee his procedural rights. Furthermore, EUIPO considers that a comparison of the merits on the basis of information other than that contained in the staff reports should be carried out only as a last resort and may be justified only when it is clear that no properly established report will be available, as the official concerned will not be returning to work. EUIPO was obliged, by its duty of care, to ensure that the decision relating to the promotion of the applicant had been taken after he had been given the opportunity to express his views on his merits. Moreover, EUIPO contends, in response to the measure of organisation of procedure adopted by the Court, that it is in the applicant’s interest to be able to participate in an appraisal meeting and to follow the appraisal procedure in its entirety, rather than a procedure in which EUIPO relies on other valid pieces of information, as he is the subject of an investigation by the European Anti-fraud Office (OLAF) which, while it was opened after the contested decision was adopted, concerns the relevant appraisal exercise period. It adds that the staff reports ensure the protection of the rights of members of staff through dialogue and an appeal procedure, which may not be the case if the comparison of the merits is based on other available information.

20In the present case, it should first of all be noted that the relevant reasoning for assessing the legality of the contested decision is that set out in the decision rejecting the complaint. In essence, it is apparent from that decision that the appointing authority considered that the second sentence of the fifth indent of Article 3 of the GIPs for Article 45 applied to situations in which the official’s staff report, in itself, had not been finalised because, for example, the reporting officer or appeal assessor was absent at the time they were called on to intervene in the appraisal procedure. It therefore considered that that provision did not apply to the applicant’s situation. Next, the appointing authority indicated that, as a result of his sick leave, the applicant did not have staff reports for the years 2013 and 2014, and that the appraisal and promotion procedures concerning him were suspended until such time as he might resume his duties. It explained that, given that the applicant’s promotion procedure had been suspended as a result of his justified absence, his comparative merits had — rightly — not been taken into consideration for the 2015 promotion exercise. Lastly, the appointing authority concluded from the foregoing that the applicant’s name had rightly not been included on the list of officials promoted in 2015.

21In that regard, pursuant to Article 110 of the Staff Regulations, in the absence of a derogation, Commission Decision C(2013) 8985 final of 16 December 2013 laying down general provisions for implementing Article 43 of the Staff Regulations (‘the GIPs for Article 43’) and the GIPs for Article 45 are to apply to EUIPO by analogy.

22It should be borne in mind that, under Article 2 of the GIPs for Article 45, a promotion exercise is to be organised each year.

23During that exercise, organised each year, an official may be eligible for promotion if he satisfies five cumulative conditions, pursuant to Article 3 of the GIPs for Article 45. The fifth of those conditions is that, as EUIPO contends, the official’s staff reports have become final under the GIPs for Article 43. However, Article 3 of the GIPs for Article 45 expressly states that, ‘in cases where an appraisal report has not been finalised as a result of a delay for which the jobholder cannot be held responsible, the jobholder shall nevertheless take part in the promotion procedure on the basis of other valid information replacing the staff report and may therefore be promoted’.

24It follows from that provision that an official who satisfies the first four conditions of Article 3 of the GIPs for Article 45 but whose staff report has not become final, is nonetheless to be regarded as eligible for promotion where that report could not be finalised owing to a delay for which he could not be held responsible. In that situation, the official concerned is to take part in the promotion procedure on the basis of other valid information replacing the staff report.

25In the present case, it is apparent from the case file that it is not disputed that the applicant’s lack of staff reports for the years 2013 and 2014 was a result of his sick leave; nor is it disputed that his sick leave was a justified absence.

26It must therefore be found that, since the applicant’s sick leave was a justified absence, he could not be held responsible for the fact that it was impossible to finalise his staff reports for the years 2013 and 2014 or for the fact that he therefore lacks those reports. Furthermore, EUIPO acknowledged at the hearing that the applicant’s sick leave was not an event for which he could be held responsible.

27In such a situation, the second sentence of the fifth indent of Article 3 of the GIPs for Article 45 states that an official is to be eligible for promotion and is to have the right to take part in the annual promotion procedure on the basis of other valid information. Accordingly, by refusing to acknowledge the applicant’s right to take part in the 2015 promotion procedure, on the ground that his justified absence on sick leave had not allowed some of his staff reports to be completed, the appointing authority infringed that provision and erred in law.

28The interpretation by EUIPO of the second sentence of the fifth indent of Article 3 of the GIPs for Article 45 according to which that provision does not apply to the applicant’s situation is, consequently, incorrect.

29In that regard, EUIPO’s argument that, as illustrated by Section III(a) of the work instructions, it was required to suspend the applicant’s appraisal procedure and, consequently, his promotion procedure during his sick leave in order to guarantee the procedural rights granted to him during that appraisal procedure cannot be accepted. Indeed, in the applicant’s situation, that is to say, in a situation where the drawing up of staff reports in the context of the procedure laid down for that purpose could not be completed in time to be taken into account under the relevant promotion procedure, the applicant was entitled, under the GIPs for Article 45, to be regarded as eligible for promotion, to take part in that promotion procedure and, consequently, to take part in the comparison of the merits of officials eligible for promotion in the 2015 promotion exercise, having regard to other valid information replacing his staff reports.

30Moreover, it should be observed that, as an agency decision communicated to all staff and intended to guarantee identical treatment for the officials concerned with regard to promotions, the work instructions constitute an internal directive. There is nothing in principle to prevent the appointing authority from drawing up rules, by means of an internal decision of general effect, to govern the exercise of the broad discretion conferred on it by the Staff Regulations. However, the right to resort to such internal directives is subject to certain restrictions and, in particular, to the obligation to observe the principle of the hierarchy of norms. An internal directive, such as the work instructions, is a norm of a lower order than the Staff Regulations and the provisions adopted for their implementation (see, to that effect and by analogy, judgment of 30 January 2008, Strack v Commission, T‑85/04, EU:T:2008:18, paragraphs 37 to 41 and the case-law cited). Accordingly, EUIPO’s work instructions cannot legally lay down rules which derogate from the Staff Regulations or from the GIPs for Article 45.

31Similarly, EUIPO’s argument that an official should take part in the promotion procedure on the basis of information other than that contained in the staff reports only as a last resort is not convincing. First, it must be pointed out that EUIPO does not explain why the applicant’s situation was not one of ‘last resort’ justifying the use of other information replacing his staff reports for the years 2013 and 2014. In addition, when questioned at the hearing, EUIPO conceded that its interpretation of the second sentence of the fifth indent of Article 3 of the GIPs for Article 45, as illustrated inter alia by the work instructions, was not deemed to apply to a case such as the applicant’s, namely a justified absence of more than one year. Indeed, that interpretation, whereby EUIPO refuses to allow the official concerned to take part in the relevant promotion procedure on the basis of information replacing his staff reports and makes such participation conditional upon his resuming his duties, does not take account of situations where that official might not resume his duties in time, or even might never resume his duties.

32Second, the appointing authority is required to organise a promotion exercise each year (see, to that effect, judgment of 12 December 2002, Morello v Commission, T‑338/00 and T‑376/00, EU:T:2002:314, paragraph 111), and may not delay, by several years in the present case, an official’s participation in the promotion procedure for that promotion exercise when that official is eligible for promotion under the GIPs for Article 45.

33As regards EUIPO’s obligation, by its duty of care, to ensure that the person concerned has been given the opportunity to express his views on his merits, it must be found in the present case that at no time did EUIPO seek to place the applicant in a situation where he would have had the opportunity to express his views on his merits. Indeed, EUIPO confined itself to delaying, wrongly, owing to his sick leave, the applicant’s participation in the promotion procedure for the 2015 promotion exercise, pending his resuming his duties. However, EUIPO cannot presume in all situations that an official on sick leave is incapable of expressing his views on his merits. Moreover, although the drawing up of staff reports ensures, as EUIPO contends, the protection of the rights of members of staff through dialogue and an appeal procedure, which might not be the case for a comparison of merits based on other information, it should be borne in mind that a decision such as the contested decision may be the subject of a complaint, and subsequently, where appropriate, an action.

34In the present case, although he was on sick leave, the applicant, first, duly contested, by email, the fact that his name did not appear on the list of officials put forward for promotion to the JPC, pursuant to Article 5(7) of the GIPs for Article 45, and, next, duly lodged a complaint against the contested decision under Article 90(2) of the Staff Regulations, followed by the present action before the General Court, which also excludes EUIPO’s argument that it was obliged to suspend the applicant’s promotion procedure because an official on sick leave is generally regarded as not being in a position to ‘properly reflect and indicate his arguments or contest the decisions related to his career advancement’.

35Lastly, EUIPO’s argument based on the fact that the applicant is the subject of an investigation by OLAF is not relevant in the present case. Indeed, it should be observed that, first, as EUIPO itself acknowledges, that investigation was opened after the contested decision was adopted. Second, there is nothing in the decision rejecting the complaint to indicate that the applicant’s conduct was the reason for the contested decision, as EUIPO confined itself to delaying the applicant’s participation in the promotion procedure for the 2015 promotion exercise pending his resuming his duties.

36It follows that disregarding Article 3 of the GIPs for Article 45 in the 2015 promotion procedure concerning the applicant could not help but have a decisive impact on both the conduct of that procedure and the decision not to promote him, inasmuch as he was not admitted to take part in that promotion procedure.

37Accordingly, the contested decision must be annulled in so far as the applicant was not taken into consideration for the 2015 promotion exercise.

38For the sake of completeness, the Court considers that, in order for the applicant’s rights to be restored, the possibility of his taking part in the 2015 promotion procedure must be reviewed. Only after having conducted such a review will the appointing authority validly be able to take a decision concerning him and assess whether or not he should be included, retroactively and additionally, on the list of officials promoted in the 2015 promotion exercise. In that regard, EUIPO stated, in response to a measure of organisation of procedure adopted by the Court and at the hearing, that there was, so far as the budget was concerned, no opposition to the applicant being promoted retroactively and in addition to the officials promoted in the 2015 promotion exercise, where appropriate.

Other pleas in law and arguments raised by the applicant

39Having regard to the annulment of the contested decision, which is necessary with regard to the first plea in law, there is no need to examine the second plea in law alleging infringement of the principle of the protection of legitimate expectations, the principle of sound administration and the rights of the defence as well as a distortion of the facts, or the third plea in law alleging that EUIPO made a manifest error of assessment by refusing to exercise its discretion. Nor is there any need to examine the argument put forward by the applicant in the alternative, asserting that he should necessarily have been promoted in the 2015 promotion exercise and therefore included on the list of officials promoted in the 2015 promotion exercise.

Costs

40Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since EUIPO has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.

Operative part

On those grounds,THE GENERAL COURT (Third Chamber),hereby:

1.Annuls the decision of the European Union Intellectual Property Office (EUIPO) of 24 July 2015 establishing the list of officials promoted in the 2015 promotion exercise in so far as Mr Guillaume Vincenti was not taken into consideration for the 2015 promotion exercise;

2.Orders EUIPO to pay the costs.

Delivered in open court in Luxembourg on 14 November 2017.