Ville Kivikoski and Others v Council of the European Union (T-202/23)

Contents

Judgment of the General Court (Ninth Chamber, Extended Composition)30 April 2025^note(Civil service — Officials — Promotion — 2022 promotion exercise — Decision not to promote the applicant to grade AST 8 — Action for annulment — Interest in bringing proceedings — Demonstration of the prospect of promotion — Admissibility — Article 6(2) of the Staff Regulations — Guiding multiplication rates — Article 45(1) of the Staff Regulations — Comparison of merits)In Case T‑202/23,Ville Kivikoski, residing in Wezembeek-Oppem (Belgium),Ottavia Maffia, residing in Brussels (Belgium),Peter Pristovnik, residing in Brussels,represented by N. de Montigny, lawyer,vCouncil of the European Union, represented by M. Bauer and I. Demoulin, acting as Agents,THE GENERAL COURT (Ninth Chamber, Extended Composition),composed of S. Papasavvas, President, L. Truchot, H. Kanninen, M. Sampol Pucurull and T. Perišin (Rapporteur), Judges,Registrar: L. Ramette, Administrator,having regard to the written part of the procedure,further to the hearing on 18 September 2024,gives the following

Judgment

1By their action under Article 270 TFEU, the applicants, Ville Kivikoski, Ottavia Maffia and Peter Pristovnik, seek annulment of the decision of the Council of the European Union of 13 July 2022 not to promote them to grade AST 8 under the 2022 promotion exercise (‘the decision not to promote’).

Background to the dispute

2The applicants are grade AST 7 officials of the Council.

3On 20 June 2022, by Staff Note No 30/22, the General Secretariat of the Council published the list of officials eligible for promotion having completed, inter alia, at least two years’ service in their grade as of 1 January 2022, as well as the number of promotions available for each function group and each grade, under the 2022 promotion exercise. The list mentioned the names of the applicants among the 81 officials eligible for promotion to grade AST 8 and stated that 18 possibilities of promotion to that grade were available.

4On 13 July 2022, by Staff Note No 38/22, the appointing authority of the Council adopted the decision not to promote by publishing and approving the list of staff members of the AST function group recommended for promotion by the promotion consultative committee. The applicants’ names did not appear on that list.

5On 12 October 2022, the applicants lodged a complaint against the decision not to promote, under Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’).

6In their complaint, the applicants alleged that, first, the decision not to promote contravened Article 6(2) of the Staff Regulations, read in conjunction with Section B of Annex I to the Staff Regulations (‘the rules of the Staff Regulations’), since there should have been 37 possibilities of promotion to grade AST 8 available for the 2022 promotion exercise, instead of 18, and second, that it infringed the principles of equal treatment, foreseeability and legal certainty.

7On 2 February 2023, the Secretary-General of the Council rejected the applicants’ complaint (‘the decision rejecting the complaint’).

8In the decision rejecting the complaint, the Secretary-General of the Council considered the applicants’ complaint inadmissible on the ground that they had failed to demonstrate that, had the number of positions they deemed correct been open for promotion, they would have had the prospect of being promoted. In the alternative, the Secretary-General of the Council argued that there was no need to apply the rates provided for in Section B of Annex I to the Staff Regulations (‘the multiplication rates’), noting that their application would have led to an automatic promotion of grade AST 7 officials after two years in that grade, contrary to the principle of promotion based on merit provided for in Article 45 of the Staff Regulations. Lastly, the Secretary-General of the Council found that the applicants had not been subject to unequal treatment, since they were not in a situation comparable to that of officials of different grades.

Forms of order sought

9The applicants claim that the Court should:– annul the decision not to promote;– annul, in so far as necessary, the decision rejecting the complaint;– order the Council to pay the costs.

10The Council contends that the Court should:– dismiss the action as inadmissible or, in the alternative, as unfounded;– order the applicants to pay the costs.

Law

Subject matter of the action

11By their first and second heads of claim, the applicants seek annulment of the decision not to promote and, in so far as is necessary, of the decision rejecting the complaint.

12Since the explicit decision to reject the complaint does not have any independent content, in that it merely confirms the decision not to promote, the present claim for annulment must be regarded as being directed solely at the decision not to promote, the legality of which will be assessed taking into account the statement of reasons contained in the decision rejecting the complaint (see, to that effect, judgments of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 8, and of 6 July 2022, MZ v Commission, T‑631/20, EU:T:2022:426, paragraph 21).

The admissibility of the action

13The Council, while not raising a formal plea of inadmissibility under Article 130(1) of the Rules of Procedure of the General Court, argues, in essence, that the action is inadmissible. In that regard, while it does not dispute that the decision not to promote adversely affects the applicants, it nevertheless finds, on the basis, inter alia, of the judgment of 14 February 2017, Schönberger v Court of Auditors (T‑688/15 P, not published, EU:T:2017:76), that the applicants have failed to show that they have an interest in bringing proceedings against that decision. According to the Council, it was for the applicants to demonstrate that, given their personal situation and in the absence of the alleged infringement of Article 6(2) of the Staff Regulations, the annulment of that decision could open up the prospect of their promotion to grade AST 8.

14The applicants dispute the Council’s argument and maintain that the action is admissible.

15It must be recalled that an action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in having the contested act annulled. Such an interest requires that the annulment of that act must be capable, in itself, of having legal consequences and that the action may therefore, through its outcome, procure an advantage to the party which brought it (see judgment of 6 July 2023, Julien v Council, C‑285/22 P, not published, EU:C:2023:551, paragraph 47 and the case-law cited, and order of 22 December 2023, TB v ENISA, T‑322/21, not published, EU:T:2023:877, paragraph 22 and the case-law cited).

16Furthermore, it is settled case-law that an official is not entitled to act in the interests of the law or of the institutions and may put forward, in support of an action for annulment, only such claims as relate to him or her personally (see order of 8 March 2007, Strack v Commission, C‑237/06 P, EU:C:2007:156, paragraph 64 and the case-law cited). In particular, only acts which directly and immediately affect the interested parties’ legal situation can be regarded as adversely affecting them; that assessment should not be of an abstract nature but be made in the light of the applicant’s personal situation (see judgment of 24 April 2009, Sanchez Ferriz and Others v Commission, T‑492/07 P, EU:T:2009:116, paragraph 26 and the case-law cited).

17On the one hand, the list of promoted officials constitutes a cluster of acts affecting specific individuals, which are addressed to the officials promoted to the grade concerned. However, that cluster of acts adversely affects the officials whose names do not appear on the list in so far as it constitutes an implied refusal to promote them (see judgment of 24 April 2009, Sanchez Ferriz and Others v Commission, T‑492/07 P, EU:T:2009:116, paragraph 32 and the case-law cited).

18On the other hand, when an official relies on a plea alleging that the multiplication rates applied in the context of a promotion exercise are incompatible with Article 6(2) of the Staff Regulations, he or she must show his interest in invoking it by demonstrating that, given his or her personal situation, had the number of positions been correct, he or she would have had the prospect of being promoted (see, to that effect, judgments of 24 April 2009, Sanchez Ferriz and Others v Commission, T‑492/07 P, EU:T:2009:116, paragraph 34, and of 14 February 2017, Schönberger v Court of Auditors, T‑688/15 P, not published, EU:T:2017:76, paragraphs 64 to 66).

19In the present case, it should be noted, in the first place, that the decision not to promote adversely affects the applicants, since their names do not appear on the list referred to in paragraph 4 above, and that it thus constitutes an implied refusal to promote them.

20In the second place, as regards the demonstration of the applicants’ interest in alleging that the multiplication rates applied are incompatible with Article 6(2) of the Staff Regulations, it must be recalled that, under that provision, without prejudice to the principle of promotion based on merit as laid down in Article 45 of the Staff Regulations, the number of vacant positions at every grade on 1 January of each year corresponds to the number of officials in the lower grade in active employment on 1 January of the preceding year, multiplied by the rates laid down in Section B of Annex I to the Staff Regulations for that grade – that is to say, 25% for grades AST 5 to AST 8. Those rates are applied on a five-year average basis as from 1 January 2014.

21Accordingly, the expression ‘officials in active employment’ refers to any of the positions covered by Article 35 of the Staff Regulations. It follows from a combined reading of that provision with Article 6(2) of the Staff Regulations that, during the annual calculation of the number of vacant positions at every grade, only the administrative position of officials in active employment in the lower grade on 1 January of the preceding year must be taken into account, regardless of their eligibility for promotion.

22Thus, according to the applicants, had the multiplication rates been applied, there should have been 37 possibilities of promotion to grade AST 8 available for the 2022 promotion exercise, instead of the 18 announced in Staff Note No 30/22.

23In that respect, the applicants submit, on the basis of the evidence presented by the Secretary-General of the Council in the decision rejecting the complaint, that, inter alia, they had completed a minimum of two years’ service in grade AST 7 and presented satisfactory assessment reports with grades comparable to those of other officials eligible for promotion.

24It is common ground that all the officials eligible for promotion to grade AST 8, including the applicants, had completed at least two years’ service in grade AST 7 on 1 January 2022, in accordance with Article 45(1) of the Staff Regulations.

25Admittedly, the Secretary-General of the Council noted, in the decision rejecting the complaint and without this being disputed by the applicants, that all the officials eligible for promotion had a period of service equal to, or greater than, that of Mr Pristovnik and that 49 of them had a period of service equal to, or greater than, that of Mr Kivikoski and Ms Maffia.

26However, it should be noted that that circumstance did not exclude the applicants’ prospects of being promoted to grade AST 8 during the 2022 promotion exercise. In effect, although such a period of service is not sufficient, on its own, to determine the prospect of promotion (see, to that effect, order of 30 September 2015, Schönberger v Court of Auditors, F‑14/12 RENV, EU:F:2015:112, paragraph 47), neither does it rule it out. That observation also takes into account the fact that the doubling of the number of possibilities of promotion to grade AST 8 in application of the multiplication rates would have increased, at the same time, the applicants’ chances and thus their prospects of being promoted during the 2022 promotion exercise.

27The same applies for the fact, alleged by the Secretary-General of the Council in the decision rejecting the complaint, that the applicants were not singled out from other officials eligible for promotion to grade AST 8 on the basis of their reports or responsibilities exercised in respect of their duties. On the contrary, those circumstances tend to show that, had the multiplication rates been applied, the applicants would have had the prospect, in the same way as the other officials eligible for promotion and subject to the comparative examination of merits provided for in Article 45(1) of the Staff Regulations, of being promoted in the 2022 promotion exercise. This is true not least because, as the Council confirmed at the hearing, no specific criteria were envisaged, during the 2022 promotion exercise, for the promotion to grade AST 8.

28In those circumstances, it must be concluded that the applicants have shown that, given their respective personal circumstances, had the correct number of possibilities of promotion to grade AST 8 been applied in the 2022 promotion exercise, they had the prospect of being promoted. As a consequence, they have demonstrated an interest in invoking the incompatibility of the multiplication rates applied with Article 6(2) of the Staff Regulations and, therefore, their interest in bringing proceedings.

29It follows that the action is admissible.

Substance

30In support of their action, the applicants put forward two pleas in law, the first alleging misapplication of the rules of the Staff Regulations, and the second, infringement of the principles of equal treatment, foreseeability and legal certainty.

31By their first plea, the applicants submit that, under the rules of the Staff Regulations, the number of possibilities of promotion to grade AST 8 for the 2022 promotion exercise should have been equal to the number of officials in active employment on 1 January 2021 in grade AST 7, multiplied by 0.25 (25%). On that basis, the applicants state that, on 1 January 2021, 145 officials were in grade AST 7. Therefore, there should have been 37 possibilities of promotion to grade AST 8 available for the 2022 promotion exercise.

32The applicants further submit that the rules of the Staff Regulations, during the promotion exercises preceding the 2022 exercise, were not applied systematically.

33The Council contends that Article 6(2) of the Staff Regulations must be read in conjunction with Section B of Annex I to the Staff Regulations. It states that the institutions must ensure that the number of positions open in each promotion exercise approximates on a five-year basis the multiplication rates laid down in that annex, which reflect the average career of officials within their function group. Those provisions would thus leave the institutions some discretion as to how they achieve that objective. According to the Council, if an institution found significant imbalances between the number of officials eligible for promotion in certain grades and the average waiting time in those grades, it would have to take corrective measures to bring the actual career progression of officials closer to the average waiting time provided for in Section B of Annex I to the Staff Regulations for the grades in question.

34In that respect, the Council maintains that, in the absence of corrective measures taken between 2017 and 2022, the implementation of Article 45 of the Staff Regulations was compromised in so far as the promotion consultative committees and the appointing authority cannot, once the promotion possibilities for a specific grade have been fixed, adjust, when considering the comparative merits, the number of officials promoted so that it is consistent with the multiplication rates.

35In those circumstances, the Council notes that the five-year average mechanism provided for in Article 6(2) of the Staff Regulations serves its purpose where there are variations in the number of officials advancing to a particular grade from one year to the next. However, that mechanism alone does not ensure the effectiveness of Article 6(2) of the Staff Regulations, read in conjunction with Article 45 of the Staff Regulations and Section B of Annex I to the Staff Regulations, as regards grade AST 7, in which there has been a steady accumulation in recent years of officials not eligible for promotion to higher grades. The accumulation of officials in grade AST 7 originates from the reforms of the Staff Regulations that took place in 2004 and 2013. In that regard, during the last attestation procedure held in 2014, 238 officials chose to remain in the AST 1 to AST 7 career stream and forgo a future promotion to grade AST 8. The Council thus concludes that the corrective measures applied to grade AST 7 were necessary to ensure the effectiveness of the abovementioned provisions.

36According to Article 6(1) of the Staff Regulations, the establishment plan appended to the section of the budget related to each institution indicates the number of posts in each grade and function group. In accordance with Article 6(2) of the Staff Regulations, without prejudice to the principle of promotion based on merit as laid down in Article 45 of the Staff Regulations, the plan ensures that for each institution, the number of vacant positions at every grade on 1 January of each year corresponds to the number of officials in the lower grade in active employment on 1 January of the preceding year, multiplied by the rates laid down in Section B of Annex I to the Staff Regulations for that grade. The rates apply on a five-year average basis as from 1 January 2014.

37In that regard, the words ‘without prejudice to the principle of promotion based on merit as laid down in Article 45 of the Staff Regulations’, must be interpreted as referring to the settled case-law of the General Court, according to which the Staff Regulations do not confer an entitlement to promotion, even for officials satisfying all the conditions for being promoted. Officials only have the possibility of being promoted, under Article 45 of the Staff Regulations. In effect, a promotion decision depends not only on the qualifications and abilities of candidates, but also on their assessment in comparison with other candidates eligible for promotion, and this during each promotion exercise (see judgment of 22 November 2023, QN v eu-LISA, T‑484/22, EU:T:2023:741, paragraph 71 and the case-law cited). Nevertheless, it cannot be inferred from those terms, which refer to a later stage of the promotion process, that the principle of promotion based on merit may be implemented, in order to derogate from the application of the multiplication rates to the number of officials who were in active employment at the grade below on 1 January of the preceding year, when determining the annual number of vacant positions for each grade and, therefore, the possibilities of promotion.

38Section B of Annex I to the Staff Regulations, entitled ‘Multiplication rates for guiding average career equivalence’, sets out, in a table in its first paragraph, the multiplication rates for guiding average career equivalence in function groups AST and AD. For grade AST 8, that rate is 25%.

39In that regard, it should be recalled that those multiplication rates must be applied to the number of officials who have been ‘in active employment’, within the meaning of Article 35 of the Staff Regulations, at the lower grade on 1 January of the preceding year (see paragraph 21 above).

40Furthermore, it must be pointed out that the multiplication rates pursue two different objectives. First, under Article 6(2) of the Staff Regulations, the rates allow the number of positions available for promotions to be calculated for each grade and, to that end, they are applied on a five-year average basis (see, to that effect, judgment of 22 November 2023, QN v eu-LISA, T‑484/22, EU:T:2023:741, paragraphs 59 and 61 and the case-law cited).

41Second, they can also be used, independently of Article 6(2) of the Staff Regulations, to determine the average duration of a career in a grade. For that question, account should be taken of the multiplication rates applicable during the years in which the official was in the grade in question. Therefore, the limitation of the five-year basis provided for in Article 6(2) of the Staff Regulations does not apply (see, to that effect, judgment of 22 November 2023, QN v eu-LISA, T‑484/22, EU:T:2023:741, paragraphs 60 and 62 and the case-law cited).

42It follows that the question of determining the average career duration in a grade must be separate from that of determining the number of positions that must be open to a particular grade for a promotion exercise. That question depends, inter alia, on the interpretation of the second sentence of Article 6(2) of the Staff Regulations, according to which the rates indicated in Section B of Annex I to the Staff Regulations are applied on a five-year average basis as from 1 January 2014 (see, to that effect, judgments of 14 February 2017, Schönberger v Court of Auditors, T‑688/15 P, not published, EU:T:2017:76, paragraph 121, and of 22 November 2023, QN v eu-LISA, T‑484/22, EU:T:2023:741, paragraph 61).

43In that context, it is settled case-law that an interpretation of a provision of EU law in the light of its context and purpose cannot have the result of depriving the clear and precise wording of that provision of all effectiveness, otherwise it would be contra legem and, as a result, incompatible with the requirements of the principle of legal certainty. Thus, where the meaning of a provision of EU law is absolutely plain from its very wording, the EU courts cannot depart from that interpretation (see, to that effect, judgments of 13 July 2023, Mensing, C‑180/22, EU:C:2023:565, paragraph 34 and the case-law cited, and of 16 June 2021, Lucaccioni v Commission, T‑316/19, EU:T:2021:367, paragraph 118 and the case-law cited).

44In the light of the foregoing, it is appropriate to examine whether, as the applicants claim, the Council misapplied the rules of the Staff Regulations.

45In the present case, it is apparent from the case file and the oral arguments during the hearing that the Council had 145 grade AST 7 officials in active employment on 1 January 2021 and that 2022 was the end of a five-year period during which corrective measures were regularly applied to grade AST 7. On that basis, the Council has not demonstrated that it could, at the end of that five-year period and taking into account the corrective measures implemented during that period, first, apply a different multiplication rate to the one provided for in Section B of Annex I to the Staff Regulations and, second, deviate from the number of grade AST 7 officials in active employment on 1 January 2021, within the meaning of Article 35 of the Staff Regulations, read in conjunction with Article 6(2) of those Staff Regulations (see paragraph 21 above). As a consequence, the Council had to apply that rate and that number in order to determine the possibilities of promotion to grade AST 8. It follows that, by announcing that 18 possibilities of promotion to that grade were available, the Council misapplied the rules of the Staff Regulations, as summarised in paragraphs 36 to 39 above, during the 2022 promotion exercise.

46That finding is not called into question by the following two arguments submitted by the Council.

47In the first place, the particular circumstances, if established, characterising the situation of grade AST 7 officials, described by the Council in its written submissions and recalled in paragraph 35 above, cannot justify derogating, by means of corrective measures, from the clear and precise wording of the rules of the Staff Regulations without compromising the implementation of hierarchically superior provisions, such as the provisions of the Staff Regulations and the Conditions of Employment of Other Servants of the European Union or the general principles of law (see, to that effect, judgment of 22 November 2023, QN v eu-LISA, T‑484/22, EU:T:2023:741, paragraph 42 and the case-law cited).

48In that regard, the Council’s argument that the actual career progression of officials should approximate the average time spent in each grade provided for in Section B of Annex I to the Staff Regulations in the event of imbalances between the number of officials eligible for promotion in certain grades and the average waiting time in those grades is not relevant. Indeed, as is apparent from paragraph 42 above, the question of determining the number of possibilities of promotion to grade AST 8 for the 2022 promotion exercise cannot be confused with that aimed at establishing the average career duration in grade AST 7, which is not, unlike the first question, subject to the limitation arising from the five-year average basis provided for in Article 6(2) of the Staff Regulations.

49In the second place, given that it is apparent from the information in the file that the Council had 145 grade AST 7 officials in active employment on 1 January 2021, in theory there should have been 36.25 possibilities of promotion to grade AST 8 available for the 81 officials eligible for promotion under the 2022 promotion exercise, according to the rules of the Staff Regulations. In those circumstances, it has not been demonstrated, contrary to the Council’s submissions, that the application of those rules in the present case, particularly in view of the difference between the number of officials eligible for promotion and the number of possibilities of promotion, was such as to prevent the consideration of the comparative merits of the officials provided for in Article 45(1) of the Staff Regulations.

50In the light of the foregoing, the first plea, alleging misapplication of the rules of the Staff Regulations, is well founded and must therefore be upheld. Accordingly, the decision not to promote must be annulled, without the need to examine the second plea relied on by the applicants, nor to rule on the application for measures of inquiry made by the applicants for the production of the list of grade AST 7 officials promoted to grade AST 8 under the 2022 promotion exercise, specifying the period of service of each official, his or her merits and the level of responsibilities exercised.

Costs

51Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Council has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicants.

Operative part

On those grounds,THE GENERAL COURT (Ninth Chamber, Extended Composition)hereby:

1.Annuls the decision of the Council of the European Union of 13 July 2022 not to promote Ville Kivikoski, Ottavia Maffia and Peter Pristovnik to grade AST 8 under the 2022 promotion exercise.

2.Orders the Council to pay the costs.

Delivered in open court in Luxembourg on 30 April 2025.