YG v Commission (Appeal - Civil service - Official - Promotion - Judgment) [2023] EUECJ C-818/21P (22 June 2023)

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(Appeal – Civil service – Official – Promotion – 2019 promotion exercise – Decision not to promote the appellant to grade AST 9 – Article 45(1) of the Staff Regulations of Officials of the European Union – Comparison of merits – Distortion of the evidence – Disregard for and distortion of the pleas in the application at first instance – Infringement of the rights of the defence – Failure to fulfil the duty to state reasons)

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 22 December 2021,

European Commission, represented by L. Radu Bouyon and L. Vernier, acting as Agents,

composed of M. Safjan, President of the Chamber, N. Piçarra and M. Gavalec (Rapporteur), Judges,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

1 By his appeal, YG seeks to have set aside the judgment of the General Court of the European Union of 20 October 2021, YG v Commission (T‑599/20, EU:T:2021:709; ‘the judgment under appeal’), by which the General Court dismissed his action for annulment of the European Commission’s decision of 14 November 2019 not to promote him to grade AST 9 in the 2019 promotion exercise (‘the decision at issue’).

2 Article 45(1) of the Staff Regulations of Officials of the European Union, in the version applicable to the dispute (‘the Staff Regulations’), is worded as follows:

‘Promotion shall be by decision of the appointing authority in the light of Article 6(2). Unless the procedure laid down in Articles 4 and 29(1) is applied, officials may only be promoted if they occupy a post which corresponds to one of the types of posts set out in Annex I, Section A, for the next higher grade. Promotion shall be effected by appointment of the official to the next higher grade in the function group to which he belongs. Promotion shall be exclusively by selection from among officials who have completed a minimum of two years in their grade after consideration of the comparative merits of the officials eligible for promotion. When considering comparative merits, the appointing authority shall in particular take account of the reports on the officials, the use of languages in the execution of their duties other than the language for which they have produced evidence of thorough knowledge in accordance with point (f) of Article 28 and the level of responsibilities exercised by them.’

The general provisions for implementing Article 45 of the Staff Regulations

3 Article 4 of Commission Decision C(2013) 8968 final of 16 December 2013 laying down general provisions for implementing Article 45 of the Staff Regulations, entitled ‘Basis of the promotion procedure’, is worded as follows:

‘1. The promotion procedure shall be based on the consideration of the comparative merits of the officials eligible for promotion. The secure electronic system used to administer the exercise shall contain the information required for this comparative examination. For the purposes of that examination, the appointing authority shall take into account, in particular:

(a) reports on the officials drawn up since their last promotion or, failing that, since their recruitment, and in particular staff reports drawn up in accordance with the general provisions for implementing Article 43 of the Staff Regulations;

(b) the use by the officials in the execution of their duties of languages other than the language for which they produced evidence of thorough knowledge in accordance with Article 28(f) of the Staff Regulations, and

2. If officials eligible for promotion have equal merit based on the three factors referred to in paragraph 1, the appointing authority may give subsidiary consideration to other factors.’

4 The background to the dispute is set out in paragraphs 1 to 9 of the judgment under appeal in the following terms:

‘1 [YG] is an official at the European Commission in grade AST 8 who has been working in the Directorate-General (DG) for Informatics (“DIGIT”) since 16 April 2014. Prior to that time, he worked at the Commission for DG “Eurostat” from 1 April 2000 to 28 February 2009 and at the European Parliament from 1 March 2009 to 15 April 2014.

3 By publication in Administrative Notices No 14-2019 of 2 April 2019 addressed to all Commission officials, the Commission launched the 2019 promotion exercise, covering the period from 1 January to 31 December 2018.

4 On 18 June 2019, the list of officials proposed for promotion was published in the Commission’s human resources management IT system, Sysper2. [YG’s] name was not on [the] list.

5 On 20 June 2019, [YG] brought an internal appeal against the failure to include his name on [that] list.

6 [That appeal] was first considered by the Joint Working Group, which issued an opinion to the effect that it did not recommend [YG] for promotion. The Joint Promotion Committee, after considering the file and the comparative merits in the grade, subsequently issued an opinion which concurred with that of the Joint Working Group.

7 On 14 November 2019, [by the decision at issue,] the Commission’s appointing authority published in Administrative Notices No 32-2019 the list of officials promoted in the 2019 promotion exercise … [YG’s] name was not on that list.

8 On 13 February 2020, [YG] submitted a complaint pursuant to Article 90(2) of [the Staff Regulations] against [the decision at issue].

9 By decision of 11 June 2020, the Commission rejected [that complaint] (“the decision rejecting the complaint”).’

5 By application lodged at the Registry of the General Court on 22 September 2020, YG brought an action under Article 270 TFEU seeking annulment of the decision at issue and the decision rejecting the complaint.

6 In support of his action, YG relied on two pleas in law, alleging, first, infringement of Article 45 of the Staff Regulations and, secondly, a breach of the duty to state reasons.

7 First of all, in paragraph 27 of the judgment under appeal, the General Court stated that the action had the effect of bringing before the Court the decision at issue, the grounds for which had been clarified by the decision rejecting the complaint.

8 Next, by that judgment, having considered separately the four complaints in the first plea, alleging that the Commission had not produced sufficient extracts from the appraisal reports of the promoted officials (first complaint), that there had been a failure to consider the comparative merits of the officials eligible for promotion (second complaint), that there had been a manifest error of assessment in relation to the appellant’s merits (third complaint) and that the appellant would have been promoted if the promotion system applicable at the Parliament had been applied to him (fourth complaint), the General Court rejected that plea as unfounded.

– declare the forms of order submitted by him at first instance admissible and well founded, and, consequently, annul the decision at issue as well as the decision rejecting the complaint;

13 In support of his appeal, YG raises three grounds, alleging (i) instances of distortion of the evidence, as well as disregard for and distortion of the pleas in his action for annulment, (ii) a misinterpretation of those pleas, errors of reasoning and an infringement of the rights of the defence, as well as (iii) errors in law.

The first ground of appeal, the fifth and seventh complaints in the second ground of appeal, and the second complaint in the third ground of appeal, alleging instances of distortion of the evidence, as well as disregard for and distortion of the pleas in the action for annulment

14 By the first complaint in his first ground of appeal, YG alleges that the General Court distorted the evidence inasmuch as it disregarded the manifest contradiction between how he was portrayed as a result of the relevant annual appraisal reports and how he was portrayed during the meeting of 26 November 2019, held via videoconference, whose content is included in the minutes of that meeting, annexed to the application at first instance under the number A.7.

15 The Commission considers that that complaint is inadmissible, on the ground that YG does not indicate which part of the judgment under appeal he seeks to have set aside. In any event, it argues that that complaint is unfounded.

16 Without it being necessary to rule on the admissibility of the first complaint in the first ground of appeal, it is sufficient to point out that that complaint is unfounded, as there is no contradiction between the assessment made by YG’s hierarchical superiors, set out in the minutes referred to in paragraph 14 of the present judgment, which indicate that ‘the hierarchy feels that [YG] is not contributing to the extent that could be expected for an official [of] his grade and that it requires a great deal of micro-management to keep him focused even on minor responsibilities’, on the one hand, and the assessments, referred to by the Commission, containing criticisms that are included in YG’s appraisal reports relating to 2014, 2015 and 2016, annexed to the application at first instance under the numbers A.10, A.11 and A.12, on the other.

17 Those assessments state, in particular, that ‘[YG] has yet to assume his full role as a project manager in accordance [with] the expectations of his hierarchy’, that ‘taking the responsibility for the development team, establishing working relationships with the project’s stakeholders and following sound project management methods should be a cornerstone in his daily work’ and that ‘[YG] should further orient his attention towards the relations with the project’s stakeholders and the management of the project’s development team’.

18 By the second complaint in his first ground of appeal, YG criticises paragraph 34 of the judgment under appeal inasmuch as it includes an incorrect finding regarding the scope of the application, by which, in the case giving rise to the judgment of 28 May 2020, YG v Commission (T‑518/18, EU:T:2020:221), the General Court invited the Commission to provide the appraisal reports of other officials.

20 It should be borne in mind that, in accordance with the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal lies on points of law only. The General Court, thus, has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The appraisal of those facts and the assessment of that evidence therefore does not, save where they distort the evidence, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (judgment of 20 December 2017, Comunidad Autónoma de Galicia and Retegal v Commission, C‑70/16 P, EU:C:2017:1002, paragraph 47 and the case-law cited), since the Court of Justice has no jurisdiction, in an appeal, to carry out a new examination of the facts.

21 Since, by the second complaint in his first ground of appeal, YG seeks in reality to obtain a new examination of the facts by the Court, that complaint must be rejected as inadmissible.

22 By the first part of the third complaint in his first ground of appeal, YG alleges that the General Court distorted, in paragraph 51 of the judgment under appeal, the content of the minutes referred to in paragraph 14 of the present judgment. He submits that in no way does it follow from those minutes that the appointing authority had indeed carried out a comparison of the merits of the officials eligible for promotion in the 2019 promotion exercise.

24 It is clear that YG has no basis for claiming that the minutes referred to in paragraph 14 of the present judgment were distorted by the General Court in so far as they relate to the comparison of the merits of the officials eligible for promotion in the 2019 promotion exercise, since those minutes contain the following finding by YG’s hierarchical superiors: ‘every year management has a limited quota per grade and compared to other colleagues of the same grade, [YG] did not fill his role as … expected’.

25 The first part of the third complaint in the first ground of appeal must therefore be rejected as unfounded.

26 In so far as, by that complaint, YG submits that, notwithstanding that finding, the appointing authority had not actually carried out that comparison and that, ultimately, that comparison had not been performed in accordance with Article 45(1) of the Staff Regulations, that complaint must be examined together with the fourth complaint in the first ground of appeal, the fifth complaint in the second ground of appeal and the second complaint in the third ground of appeal.

The second part of the third complaint in the first ground of appeal, the fourth complaint in the first ground of appeal, the fifth complaint in the second ground of appeal and the second complaint in the third ground of appeal

27 First of all, by the fourth complaint in his first ground of appeal, YG criticises the General Court for finding, in paragraphs 52 and 61 of the judgment under appeal, that the appointing authority had fulfilled its obligations under the Staff Regulations, since, as was apparent from the decision rejecting the complaint, it had considered the comparative merits of all the officials eligible for promotion, on the basis of all the information available, in particular the appraisal reports. According to YG, the fact that a statement was made to that effect in that decision does not mean that this was in fact the case.

28 Next, by the fifth complaint in his second ground of appeal, YG further criticises paragraph 61 of that judgment, expressing doubts that, given the high number of AST 8 officials eligible for promotion, a comparison of his merits and those of the other officials concerned could have been carried out by the Joint Promotion Committee, on the ground that it is impossible to perform a task of that magnitude.

29 Lastly, by the second complaint in his third ground of appeal, YG criticises paragraphs 62 to 65 of the judgment under appeal, submitting that there is no evidence that his merits were compared with those of the other officials eligible for promotion, since the decision rejecting the complaint only compared his merits with those of six other officials.

31 It is apparent from Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that an appeal is to be limited to points of law and that the General Court therefore has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The assessment of the facts and evidence does not, save where the facts or evidence are distorted, constitute a point of law, which is subject, as such, to review by the Court of Justice on appeal. Such distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence. Where an appellant alleges distortion of the evidence by the General Court, he or she must, under the provisions referred to above and Article 168(1)(d) of the Rules of Procedure of the Court of Justice, indicate precisely the evidence alleged to have been distorted by the General Court and show the errors of appraisal which, in his or her view, led to such distortion (judgment of 10 July 2019, VG v Commission, C‑19/18 P, EU:C:2019:578, paragraphs 47 and 48 and the case-law cited).

32 Inasmuch as, by his arguments, YG challenges, while alleging distortion, the probative value of the evidence used by the General Court and its findings of fact relating to the actual carrying out of a comparison of the merits of the officials eligible for promotion, it should be noted that YG does not point to any substantive inaccuracy in the findings made by the General Court that would be obvious from the documents included in the file. Those arguments are therefore inadmissible.

33 Furthermore, inasmuch as, by those arguments, YG criticises the General Court for not finding that a comparison of the merits, provided for in Article 45(1) of the Staff Regulations, meant that his merits should have been compared directly with those of each other official eligible for promotion, taken in isolation, and for not finding that, in the case before it, such separate examinations had not taken place, it is sufficient to note that YG did not put forward such arguments before the General Court and that, in that respect, those arguments are therefore also inadmissible.

34 Under the second sentence of Article 170(1) of the Rules of Procedure, the subject matter of the proceedings before the General Court may not be changed in the appeal. In addition, to allow a party to put forward for the first time before the Court of Justice a ground for complaint which it did not raise before the General Court would be to authorise it to bring before the Court of Justice, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the General Court. In an appeal, the jurisdiction of the Court of Justice is thus confined to examining the assessment by the General Court of the pleas and arguments discussed before it (judgment of 17 December 2020, De Masi and Varoufakis v ECB, C‑342/19 P, EU:C:2020:1035, paragraph 34 and the case-law cited).

35 Consequently, the second part of the third complaint in the first ground of appeal, the fourth complaint in the first ground of appeal, the fifth complaint in the second ground of appeal and the second complaint in the third ground of appeal must be rejected as inadmissible.

36 By the fifth complaint in his first ground of appeal, YG alleges that the General Court disregarded and distorted, in paragraph 56 of the judgment under appeal, the arguments set out in his application at first instance, in particular inasmuch as the General Court referred to 2018 instead of 2019.

38 The fifth complaint in the first ground of appeal must be rejected, since the reference to 2018 instead of 2019 amounts to a manifest typographical error which had no bearing on the reasoning adopted by the General Court in paragraph 56 of the judgment under appeal.

39 By the sixth complaint in his first ground of appeal, YG alleges that the General Court disregarded and distorted his arguments, inasmuch as it found, first, in paragraph 71 of the judgment under appeal, that he had not disputed the excellent merits and outstanding performance of the promoted officials, and, second, in paragraph 83 of that judgment, that he had not challenged the decision to promote Officials B through F.

41 First of all, although it is true that YG emphasises in his appeal that his views, expressed in paragraph 4 and paragraphs 8 to 10 of his observations submitted at first instance, were distorted in the judgment under appeal and that, according to the part of those views concerning Officials A and X, the characterisations ‘excellent merits’ and ‘outstanding performance’ are manifestly exaggerated, it is clear that those paragraphs contain no element likely to establish that YG had disputed the excellent merits and outstanding performance of the promoted officials, so that the finding of the General Court is not vitiated by any distortion in that regard.

42 Next, since YG recalls having noted, in those observations, that the promotion of Official F appeared to be based on the assurance that, following the efforts which he had agreed to make in order to learn his new field of competence, Official F would be of use to the unit in the future, it should be borne in mind that such a remark must not be interpreted as disputing the promotion of the official concerned.

43 Lastly, regarding the promotion of Officials D and E, YG does not specify which passage of the observations was disregarded or distorted by the General Court.

44 Therefore, the sixth complaint in the first ground of appeal must be rejected.

45 By the seventh complaint in his first ground of appeal, YG criticises the General Court, first, for grouping together his appraisal reports for 2012 to 2016, in paragraphs 72 to 76 of the judgment under appeal, without drawing a distinction between the reports concerning the years during which he worked at the Parliament (2012 and 2013), which do not refer to any weakness, and the reports concerning the years during which he worked at the Commission (2014 to 2016), so that the General Court thus improperly extended the reference to ‘certain weaknesses’, found in those later reports, to the reports concerning 2012 and 2013.

46 Secondly, YG notes that the reports concerning his years in the Commission’s service contain only one single negative consideration, which paragraphs 28 and 36 of the application at first instance put back into context so as to provide an explanation therefor. The significance of that explanation was, wrongly, downplayed by the General Court.

47 Thirdly, according to YG, it is not accurate to state that he did not take account of the ‘criticisms’ addressed to him in those reports, since it is apparent from the report relating to 2016 that he obtained a PM2 certification, the official project management methodology used by the Commission.

48 The Commission contends that the seventh complaint in the first ground of appeal should be rejected.

49 First of all, the first argument of the seventh complaint in the first ground of appeal must be rejected, since YG’s appraisal reports relating to 2012 and 2013, contained in Annex B.2 to the defence at first instance, even if they are positive as a whole, also refer to ‘certain weaknesses’, for example the statement that, regarding productivity, YG ‘works slowly’, and areas in which improvements are desirable, for example the statement that, regarding communication ability, YG ‘should continue to actively try to take part in what colleagues are doing’.

50 Next, contrary to YG’s assertions, paragraph 36 of the application at first instance does not establish that it would be incorrect to find that YG was subject to fairly strong criticism in his appraisal reports relating to 2014 to 2016. Moreover, that is also apparent from paragraph 28 of the judgment of 13 January 2022, YG v Commission (C‑361/20 P, EU:C:2022:17).

51 Lastly, concerning the argument that it would not be accurate to state that YG did not take into account the criticisms expressed in those reports, it is sufficient to note that at no point does YG indicate which part of the judgment under appeal he is criticising.

52 Therefore, the seventh complaint in the first ground of appeal must be rejected.

53 By the eighth complaint in his first ground of appeal, YG criticises paragraph 78 of the judgment under appeal, in which the General Court found that ‘the appraisal reports for 2017 and 2018 show a limited number of tasks, responsibilities and interactions’ and that ‘it is not apparent therefrom that [YG] accumulated as many merits to justify a promotion as the officials in the same grade who were promoted’. In that regard, YG alleges that the General Court did not take into account his explanations contained in paragraphs 25 and 26 of his observations submitted at first instance, from which it is apparent that the limited number of tasks, responsibilities and interactions were justified by the nature of his duties. YG also alleges that the General Court failed to recognise that his responsibilities were more complex than those of Official A, even though this is shown as much by the work performed by YG and his appraisal reports relating to 2017 and 2018 as by Official A’s appraisal report.

55 In order to prove, before the Court of Justice, that the evidence has been distorted, on the ground that the findings set out in paragraph 78 of the judgment under appeal could not be inferred by the General Court from YG’s appraisal reports relating to 2017 and 2018 or from other evidence relied on by YG, it is necessary, in accordance with the case-law recalled in paragraph 31 of the present judgment, to indicate precisely the evidence alleged to have been distorted by the General Court and to show the errors of appraisal which, in YG’s view, led to such distortion.

56 The eighth complaint in the first ground of appeal, which merely calls into question the assessments of the facts and the evidence made by the General Court and only seeks, in reality, to obtain a new assessment of those facts and that evidence by the Court of Justice, does not meet such requirements and must, therefore, be declared inadmissible.

57 By the ninth complaint in his first ground of appeal, YG submits that, contrary to what was held in paragraph 80 of the judgment under appeal, his appraisal report relating to 2019, to which he referred in his complaint and his application at first instance, is relevant for the purpose of showing that that report had been drafted exclusively for the purpose of justifying, after the event, the way in which he was portrayed during the meeting referred to in paragraph 14 of the present judgment – a portrayal not confirmed by any aspect of his previous appraisal reports.

59 The ninth complaint in the first ground of appeal must be rejected as ineffective since, by that complaint, YG does not challenge paragraph 80 of the judgment under appeal, but explains the reason why he referred to his appraisal report relating to 2019 in his application at first instance.

60 By the tenth complaint in his first ground of appeal, YG submits that, on the assumption that the seventh and eighth complaints in that ground of appeal, relating to paragraphs 72 to 79 of the judgment under appeal, are upheld and the Court of Justice finds that, in those paragraphs, the General Court distorted the evidence, it is necessary in addition to find that such distortion has taken place concerning paragraphs 88, 90 and 91 of the judgment under appeal as those paragraphs are based on paragraphs 72 to 79 of that judgment.

61 The Commission contends that the tenth complaint in the first ground of appeal should be rejected.

62 Given that the tenth complaint in the first ground of appeal has been put forward only on the assumption that the seventh and eighth complaints in that ground of appeal are upheld and that those complaints have been rejected, that tenth complaint must be rejected.

63 By the eleventh complaint in his first ground of appeal, YG alleges, in essence, that the General Court distorted his arguments as put forward at first instance, inasmuch as it was found, in paragraph 93 of the judgment under appeal, that ‘[the appellant] argues that his appraisal reports for the period from 1 May 2017 to 31 December 2018, during which he was made available to Unit D1, were not completed and signed by the head of that unit, but by the Head of Unit B3 to which he had initially been posted’. YG claims he neither raised such an argument nor criticised the relevant appraisal reports.

65 It is apparent from paragraphs 49 to 52 of the application at first instance that, as YG maintains, he did not argue before the General Court that his appraisal reports for the period from 1 May 2017 to 31 December 2018 were not completed and signed by the Head of Unit D1.

66 However, such a claim, which was rejected in paragraph 94 of the judgment under appeal, did not affect the reasoning on which the decision of the General Court is based.

67 In those circumstances, since the eleventh complaint in the first ground of appeal cannot lead to the setting aside of the judgment under appeal, it must be rejected as ineffective.

68 By the twelfth complaint in his first ground of appeal, YG alleges that the General Court, in essence, distorted, in paragraph 95 of the judgment under appeal, a part of the arguments put forward by him at first instance.

70 The twelfth complaint in the first ground of appeal must be rejected, since the General Court correctly summarised, in paragraph 95 of the judgment under appeal, the arguments put forward by YG in paragraphs 39 and 43 of his application at first instance.

The thirteenth complaint in the first ground of appeal and the seventh complaint in the second ground of appeal

71 By the thirteenth complaint in his first ground of appeal, YG criticises the General Court for finding, in paragraph 100 of the judgment under appeal, that ‘[the appellant] submits that, if he had retained his post at the Parliament instead of being transferred to the Commission, he would have been assessed according to a points system, which, in his view, would necessarily have led to his promotion within that institution’ and, in paragraph 101 of that judgment, that that assertion ‘is purely speculative’. By the seventh complaint in his second ground of appeal, YG criticises paragraph 103 of the judgment under appeal, stating that he did not maintain that the Commission had to have different appraisal rules for officials who had been transferred.

73 It is apparent from reading paragraph 40 of the application at first instance, in particular the passage therein which states that ‘[the appellant] was realistically expecting, concerning his current promotion period, a promotion in the average time for his grade at the … Parliament, as it can be assessed from his evaluation points (the “points system” is still in force at the … Parliament) (see Promotion points at the … Parliament from 2009 to 2013 in Annex A.13)’, that that application was not distorted or disregarded by the General Court when it made the finding set out in paragraph 100 of the judgment under appeal, as challenged by YG.

74 Inasmuch as YG disputes the General Court’s assertion in paragraph 101 of the judgment under appeal that his line of argument was ‘purely speculative’, it is sufficient to note that, having regard to the case-law of the Court of Justice recalled in paragraph 20 of the present judgment, such an argument, which criticises the assessment of the facts by the General Court without claiming any distortion, must be rejected as inadmissible.

75 In addition, it should be noted that, after considering, in paragraph 102 of the judgment under appeal, that the Commission had a broad discretion, the General Court did not distort YG’s arguments by holding, in paragraph 103 of that judgment, that the Commission was not obliged to adopt rules specifically governing the situation of officials who had been transferred, before concluding that the appointing authority could not be criticised for having considered YG’s comparative merits in accordance with the procedure and general methods adopted by the Commission, in the exercise of its discretion, for all its officials eligible for promotion.

76 Therefore, the thirteenth complaint in the first ground of appeal and the seventh complaint in the second ground of appeal must be rejected.

77 In those circumstances, the first ground of appeal must be rejected in its entirety, as must the fifth and seventh complaints in the second ground of appeal and the second complaint in the third ground of appeal.

The first, second, third, fourth and sixth complaints in the second ground of appeal, alleging a misinterpretation of the pleas in the action for annulment, errors of reasoning and infringement of the rights of the defence

78 By the first complaint in his second ground of appeal, YG criticises the General Court for finding, in paragraph 30 of the judgment under appeal, that ‘[the appellant] alleges that the Commission failed to provide him with sufficient extracts from the appraisal reports of all the promoted officials working in the same [DG] as him or from those of all the officials who appealed to the Joint Promotion Committee’. Similarly, YG challenges the finding, in paragraph 33 of that judgment, that ‘the Commission cannot be required, contrary to what [the appellant] claims, to produce all of the extracts from the appraisal reports of, first, all the officials promoted within DIGIT, to which [the appellant] is attached, and, second, all the officials who appealed to the Joint Promotion Committee’.

79 In support of that complaint, YG emphasises that, in paragraphs 68 to 82 of his application at first instance, he set out an analysis of the relevance of the extracts produced in the decision rejecting the complaint and not of whether there was an ‘adequate amount’ of those extracts, as suggested in paragraph 30 of the judgment under appeal. In addition, he did not rely on the requirement referred to in paragraph 33 of that judgment.

81 First of all, it should be observed that YG himself recalled in paragraph 45 of his application at first instance that, in the decision rejecting the complaint, the appointing authority stated that it had compared YG’s merits with those of his grade AST 8 colleagues in the same DG who had been promoted and that it had also taken into account examples of grade AST 8 colleagues promoted at Commission level.

82 Next, in paragraph 72 of that application, YG emphasised that, if the anonymised officials, who were chosen in that decision to provide evidence that the comparison of the merits was not vitiated by any manifest error of assessment, did not work in the same DG as him or had not brought an appeal before the Joint Promotion Committee, then the extracts from their appraisal reports did not in any way confirm such a statement on the part of the appointing authority.

83 Lastly, YG submitted, in paragraph 74 of the application at first instance, that the extracts from the appraisal reports in which the promoted officials obtained an ‘excellent’ assessment in respect of certain comparison criteria, taken into account for the purposes of the promotion exercise at issue, did not make it possible to ascertain that a fair comparison of the merits had taken place, as it was still entirely possible that the promoted officials working in the same DG as him or the officials who had appealed to the Joint Promotion Committee had shown less merit than him.

84 It follows, first, that the General Court did not distort YG’s arguments by finding, in paragraphs 30 and 33 of the judgment under appeal, in essence, that YG had complained, in his application at first instance, that the Commission had failed to provide him with ‘sufficient extracts’ from the appraisal reports of all the promoted officials working in the same DG as him or of those who had appealed to the Joint Promotion Committee. The General Court was entitled to consider that a part of YG’s line of argument sought to obtain recognition of the fact that only an examination of all of those appraisal reports made it possible to determine whether an official showing less merit than him had been promoted.

85 Second, in relation to the relevance of the extracts from the appraisal reports of the promoted officials, by the line of argument set out in paragraphs 68 to 82 of his application at first instance, YG criticised, in particular in paragraph 69 of that application, the fact that the decision rejecting the complaint did not provide any information regarding the DGs in which Officials A to F worked.

86 It should be noted that, in paragraph 50 of the judgment under appeal, which is not challenged by YG, it was held that, since YG had lodged, in the second stage of the procedure, an internal appeal against the failure to include his name on the list of officials proposed for promotion, it had to be found, in the absence of any evidence to the contrary, that his merits had been compared with those of the officials promoted at institution level. Under Article 45(1) of the Staff Regulations, read in conjunction with Article 5(8) of the general provisions for implementing Article 45 of the Staff Regulations, the appointing authority may, in the context of considering the comparative merits, legitimately compare the merits of the person concerned with those of officials from directorates-general other than that to which that person belongs (see, to that effect, judgment of 13 January 2022, YG v Commission, C‑361/20 P, EU:C:2022:17, paragraphs 23 and 24).

87 Accordingly, the first complaint in the second ground of appeal must be rejected as unfounded.

88 By the second complaint in his second ground of appeal, YG alleges that the General Court denied him relevant evidence and therefore his rights of defence, inasmuch as, as is apparent from paragraphs 38 to 40 of the judgment under appeal, it did not order a controlled disclosure of the self-appraisals set out in the vast majority of the appraisal reports of the promoted officials, annexed to the defence submitted before that court. He submits that that disclosure would not have been incompatible in any way with maintaining confidentiality and anonymity.

90 Regarding the complete nature of the appraisal reports produced by the Commission, the General Court was correct to point out, in paragraph 38 of the judgment under appeal, that requiring the institutions to produce complete versions of the appraisal reports of other, promoted, officials, including in an anonymised form, must be weighed against the need to preserve the confidentiality of the information concerning those officials, as it might prove possible to deduce the identity of promoted officials from the content of the appraisal reports, despite their being anonymised.

91 Given that the General Court considered that it had sufficient information from the documents before it and that YG did not submit a request for a more complete non-confidential version of the appraisal reports at issue to be produced, YG has no basis for claiming, at the appeal stage, that the General Court was required to order a controlled disclosure of the self-appraisals set out in those reports.

92 The second complaint in the second ground of appeal must therefore be rejected as unfounded.

93 By the third complaint in his second ground of appeal, YG criticises paragraph 54 of the judgment under appeal, submitting that it is unfounded. According to YG, given that, in the context of the procedure for promotion within the Commission, the Joint Promotion Committee has a limited quota for promotions compared to the quota available to the DGs, an infringement of Article 45 of the Staff Regulations, when it occurs during the first stage of the promotion procedure, greatly disadvantages the official who suffers that infringement and who must bring an internal appeal.

95 It is clear that, by the third complaint in his second ground of appeal, YG is claiming to have suffered unequal treatment because his opportunities to be promoted by the Joint Promotion Committee, during the second stage of the procedure for promotion within the Commission, were reduced compared to those of the officials promoted during the first stage of that procedure.

97 Therefore, in accordance with the case-law recalled in paragraph 34 of the present judgment, the third complaint in the second ground of appeal must be rejected as inadmissible.

98 By the fourth complaint in his second ground of appeal, YG, while maintaining that he criticises the manifest contradiction referred to in the first complaint in his first ground of appeal, criticises the General Court for not finding, in paragraph 60 of the judgment under appeal, that there was no link between the content of the relevant reports, on the one hand, and the reasons given for his non-promotion, provided by the appointing authority in the decision rejecting the complaint and in the pleadings produced by the Commission, on the other.

99 The Commission contends that the fourth complaint in the second ground of appeal should be rejected.

100 The fourth complaint in the second ground of appeal must be rejected for the same reasons as those set out in paragraphs 16 and 17 of the present judgment.

101 By the sixth complaint in his second ground of appeal, YG refers to paragraph 86 of the judgment under appeal, which recalls case-law of the European Union Civil Service Tribunal, from which it follows that, according to the principle established by Article 5 of the Staff Regulations that duties must be equivalent to the grade, officials and other staff in the same grade are supposed to hold posts involving equivalent responsibilities and that, consequently, the administration must, when considering the comparative merits of officials eligible for promotion, take account of the level of responsibilities exercised by such an official only where they exceed those normally conferred on an official in his or her grade.

102 YG asserts that his AST 8 grade includes, inter alia, secretaries, whereas his duties, responsibilities and powers are not of an equivalent level to those of secretaries.

103 The Commission contends that the sixth complaint in the second ground of appeal should be rejected.

104 It should be recalled that it follows from the second subparagraph of Article 256(1) TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) and Article 169(2) of the Rules of Procedure that an appeal must indicate precisely the contested paragraphs of the judgment which the person bringing the appeal seeks to have set aside and the legal arguments specifically advanced in support of the appeal, failing which the appeal or the ground of appeal concerned may be inadmissible (judgment of 15 December 2022, Picard v Commission, C‑366/21 P, EU:C:2022:984, paragraph 52 and the case-law cited).

105 Thus, elements of an appeal that contain no argument specifically identifying the error of law allegedly vitiating the judgment in respect of which the appeal is brought do not fulfil that requirement and must be rejected as inadmissible (judgment of 23 January 2019, Deza v ECHA, C‑419/17 P, EU:C:2019:52, paragraph 94 and the case-law cited, and order of 26 March 2020, Magnan v Commission, C‑860/19 P, EU:C:2020:227, paragraph 27 and the case-law cited).

106 Similarly, arguments which are vague or difficult to understand must be rejected as inadmissible, as they do not enable the Court to carry out its function of reviewing lawfulness (judgment of 10 September 2020, Hamas v Council, C‑386/19 P, EU:C:2020:691, paragraph 32 and the case-law cited).

107 In the present case, it is clear that YG’s line of argument does not make it possible to understand the reasons which have led him to criticise paragraph 86 of the judgment under appeal. By a vague line of argument, YG confines himself to making general assertions without indicating precisely which aspects of that judgment he is criticising.

108 In those circumstances, the sixth complaint in the second ground of appeal must be rejected as inadmissible.

109 Consequently, since the fifth and seventh complaints in that ground of appeal have already been rejected, that ground of appeal must be rejected in its entirety.

The first complaint in the third ground of appeal, alleging errors of law

110 By the first complaint in his third ground of appeal, YG alleges that the General Court misinterpreted, in paragraph 57 et seq. of the judgment under appeal, Article 45(1) of the Staff Regulations. He claims that the expression ‘in particular’ is used in that provision to indicate the factors upon which the appraisal of the merits of the official concerned and their comparison with those of the officials eligible for promotion must be based. In addition, he argues that it is not apparent from that provision that the content of reports issued since the last promotion may be disregarded.

112 First, contrary to YG’s assertions, the General Court did not misinterpret Article 45(1) of the Staff Regulations by finding, in paragraph 57 of the judgment under appeal, having recalled that, according to that provision, when considering comparative merits, the appointing authority is to take account in particular of the reports on the officials, their use of languages in the execution of their duties other than the language for which they have produced evidence of thorough knowledge upon their appointment and the level of responsibilities exercised by them, that the use of the expression ‘in particular’ implies the possibility of taking into account other considerations that may also give an indication of the merits of officials eligible for promotion. Similarly, the General Court did not misinterpret that provision in noting that it allows the institutions a certain amount of freedom as to which factual matters to take into account in their consideration of the comparative merits of officials eligible for promotion, since it does not provide an exhaustive list in that regard.

113 Second, contrary to YG’s assertions, by the judgment under appeal, the General Court did not hold that appraisal reports could be ‘ignored’ in a promotion procedure, but referred to the possibility of taking into account ‘other considerations’, in addition to the appraisal reports, the use of languages and the level of responsibilities exercised.

114 Accordingly, the first complaint in the third ground of appeal must be rejected.

115 Since the second complaint in that ground of appeal has already been rejected, that ground of appeal must be rejected in its entirety.

116 As none of the grounds in the present appeal has been upheld, the appeal must be dismissed in its entirety.

117 Under Article 184(2) of the Rules of Procedure, where the appeal is unfounded, the Court is to make a decision as to the costs. Under Article 138(1) of those rules, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

118 Since the Commission has applied for costs and YG has been unsuccessful, he must be ordered to bear his own costs and to pay those incurred by the Commission.

2. Orders YG to bear his own costs and to pay those incurred by the European Commission.

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> YG v Commission (Appeal - Civil service - Official - Promotion - Judgment) [2023] EUECJ C-818/21P (22 June 2023) URL: http://www.bailii.org/eu/cases/EUECJ/2023/C81821P.html Cite as: EU:C:2023:511, [2023] EUECJ C-818/21P, ECLI:EU:C:2023:511

Court of Justice of the European Communities (including Court of First Instance Decisions)