Background to the complaint

1. The complainant is a member of staff of the European Parliament who was dissatisfied with the annual ‘staff promotion exercise’[1] in 2015. In June 2016, she learnt that the European Parliament had decided to give her two ‘merit points’[2] as part of her evaluation under the promotion exercise.

2. Dissatisfied with this decision, the complainant submitted an administrative complaint[3] to Parliament in September 2016. In her complaint, she pointed out that her performance had been evaluated as excellent in her previous reports, and provided evidence of praise for her work to support her claim that she deserved a third merit point.  

3. Parliament replied to the complainant´s administrative complaint in January 2017. It explained that the number of merit points allocated to each section or unit is limited. As a result, not all staff members whose performance is highly regarded can receive a third point. The complainant and one of her colleagues on the same salary grade had both received similar evaluations of their performance, but there had been only one additional merit point available in their unit/section. As a result, Parliament had decided to award the third point to the complainant’s colleague because she was older. 

4. Dissatisfied with Parliament´s reply, the complainant turned to the Ombudsman in April 2017.

The inquiry

5. In June 2017, the Ombudsman opened an inquiry into the complainant’s claim that the European Parliament’s decision to give a third merit point to an older colleague instead of her in the 2015 promotion exercise constituted age discrimination.

6. In the course of the inquiry, the Ombudsman received Parliament’s reply to the complaint, and, subsequently, the comments of the complainant in response to Parliament’s reply.

Arguments presented to the Ombudsman

7. The complainant argued that Parliament had violated the applicable rules[4], which prohibit discrimination on the basis of age with regard to career advancement. The complainant therefore wished Parliament to reconsider its decision, and to grant her a third merit point for the 2015 staff promotion exercise.

8.  Parliament argued that, as the number of available merit points is limited, in cases where two staff members are deemed to have equal merits, Parliament may use secondary criteria, such as age or seniority in grade, to attribute a third merit point. This, it said, is in accordance with EU case-law[5].

9.  Parliament emphasised that such secondary criteria are used only when the merits of two members of staff are “effectively equal”. When the merits and salary grade are equal, age may be used as a secondary criterion. It explained that using age as a criterion can be justified to take into account the more limited time remaining to the older staff member for career progression[6].

The Ombudsman's assessment

10. Parliament enjoys wide discretion[7] in appraising the merits of staff in the context of promotion exercises and, consequently, in deciding on the number of merit points to award. The Ombudsman’s role in this case is therefore limited to making sure that Parliament has not committed a manifest error, and that it has given a reasonable explanation for its decision not to grant a third merit point to the complainant. The complainant’s view, that there was age discrimination, is understandable if reading the applicable rules[8] in isolation. However, the Ombudsman is satisfied that Parliament’s interpretation of the relevant case-law is correct. For example in its judgment in Case 298/81 the Court said: “...it cannot be suggested that it was a misuse of the power of discretion to take into account, in conjunction with other factors, the age of candidates and their seniority in the grade or service. Indeed, the qualifications and merits of the candidates being equal, those matters may even constitute a decisive factor in the appointing authority's decision.” Consequently, age is an acceptable secondary criterion in a promotion exercise for distinguishing between two staff members with equal merits and salary grades. 

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following finding:

There was no maladministration by the European Parliament.

The complainant and the European Parliament will be informed of this decision.

 

Emily O'Reilly

European Ombudsman

Strasbourg, 24/10/2018

 

[1] According to the European Parliament’s internal policy on promotions and career progression, the performance of staff members is evaluated on an annual basis. A limited number of posts are available each year for promoting staff members to the next salary grade. Staff members who are eligible for promotion are considered for promotion based on the annual evaluation.

[2] As part of this exercise, the merits of its staff members are assessed annually. If their performance is deemed satisfactory, staff members are awarded between 1 and 3 ’merit points’. There is a limited number of points allocated to each unit or section, and the head of each unit or section decides on how to award these points, based on a comparative assessment of merit. Staff members whose performance is evaluated as satisfactory receive one or two merit points. A third merit point can be awarded for exceptional performance.

[3] On the basis of Article 90(2) of Regulation 31 (EEC), 11 (EAEC) laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Economic Community and the European Atomic Energy Community, OJ 1962 L 45, page 1385.

[4] Notably Articles 1d(1) and 5(5) of the Staff Regulations. and Article 45(1) of the Staff Regulations

[5] Judgment of the Court (Second Chamber) of 17 January 1989, Vainker v European Parliament, 293/87, ECLI:EU:C:1989:8, paragraph 18; and Judgment of the Court (Third Chamber) of 24 March 1983, Colussi v European Parliament, 298/81, ECLI:EU:C:1983:94, paragraph 22.

[6] Judgment of the Court of First Instance of 29 February 1996, Lopes v Court of Justice, T-280/94, ECLI:EU:T:1996:28, paragraph 138.

[7] Judgment of the Civil Service Tribunal of 18 April 2012, Buxton v Parliament, F-50/11, ECLI:EU:F:2012:51, paragraph 37.

[8] Article 1d (1) of the Staff Regulations.