The background to the complaint

1. Between 2003 and 2008, the Commission operated a promotion system in which "promotion points" were awarded annually to officials on the basis of their work during the previous calendar year. When the number of points accumulated by the official reached a promotion "threshold", the official was promoted to a higher grade. If the number of points accumulated by the official exceeded the threshold, the excess points were carried over to the following year.

2. Officials can be either Assistants (ASTs) or Administrators (ADs). In the Commission's promotion system, if an official changed from being an Assistant to Administrator, any points accumulated as an Assistant were cancelled.

3. The complainant passed an internal competition at the Commission, which made it possible for him to change category from Assistant to Administrator.

4. The complainant decided to accept a post as an Administrator with grade A*7. When doing so, he took into consideration information provided in an Administrative Notice about promotion thresholds. On the basis of this information, he calculated that, despite forfeiting all the promotion points he had accumulated as an Assistant, he could expect to be promoted to grade AD 8 in 2008 (he based this assumption on his understanding that the number of promotion points needed would be 33 in 2008).

5. However, the promotion threshold for grade AD 7 was changed in 2008 – the threshold was increased from 33 to 51. As a result, the complainant did not have enough promotion points to be promoted that year. He made a complaint under Article 90(2) of the Staff Regulations against the decision not to promote him in 2008, but the Commission rejected the complaint. He then turned to the Ombudsman.

The subject matter of the inquiry

6. The Ombudsman opened an inquiry into the following allegation and claims:

• The Commission provided false information in Administrative Notice No 40-2005 concerning how the promotion threshold for grade A*7 would be determined. It was on the basis of this information that the complainant decided to accept a post in that grade.

The complainant argued that, due to the false information provided by the Commission, his career has suffered a delay of one year.

• The complainant claimed that the Commission should:

(1) promote him to AD 8 retroactively (as of 1 March 2008);

(2) pay him the corresponding salary arrears; and

(3) add new promotion points to his "rucksack"[1].

The inquiry

7. On 28 August 2009, the complainant addressed his concerns to the Ombudsman. On 20 October 2009, the Ombudsman opened an inquiry and forwarded the complaint to the Commission, which then sent its opinion to the Ombudsman. The opinion was forwarded to the complainant, who submitted his observations on 25 February 2010.

The Ombudsman's analysis and conclusions

Preliminary remarks

8. In his observations, the complainant alleged that the Commission had failed to reply to his e-mails of 24 July 2007 and 30 August 2007, in which he asked questions about the rate of promotion. He also alleged that, during a meeting about the handling of his Article 90(2) complaint, the Commission wrongly considered that written information given by the Head of the responsible unit was not binding on the Directorate-General and so could not be invoked. These allegations were not mentioned in the original complaint and were, therefore, not part of the present inquiry. Moreover, the complainant made no prior administrative approaches in their regard. Therefore, the Ombudsman considered that they should not be dealt with in the present inquiry.

A. Allegation of false information in Administrative Notice No 40-2005 and the related claims

Arguments presented to the Ombudsman

9. The complainant pointed out that it is important to choose carefully the moment of transition from Assistant to Administrator, since all accumulated points are cancelled when changing category. If an official has been awarded enough points to be promoted as an Assistant, it might be more advantageous to await this promotion before changing category.

10. The complainant argued that, in its Administrative Notice No 40-2005 of 27 May 2005, the Commission stated that grade A*7 would have a fixed promotion threshold of 33 points from that moment on. This information was a decisive factor for the complainant when he accepted a post as Administrator with grade A*7. In sum, the complainant had analysed his career development as an A*7 Administrator and compared it to what would have happened if he had remained a B*7 Assistant until the next promotion. Given that the threshold for promotion was 33 points for A*7 Administrators, he considered that he would be promoted to grade 8 in 2008 in both categories. The cancellation of his promotion points when he changed from an Assistant to an Administrator would not affect his chances of promotion because the announced threshold for A*7 was far lower than the one expected for grade B*7.

11. The promotion threshold was raised to 42 points for the 2007 promotion exercise, after having remained at the announced 33 points in 2005 and 2006. The complainant and other staff members in the same situation raised the issue with the responsible Directorate-General for Administration (DG ADMIN). They were advised to submit their cases to the Promotion Committee. In 2008, the complainant submitted a request to the Promotion Committee to obtain additional points for the 2007 promotion exercise so that he could be promoted in 2008. His request for extra points was denied.

12. The promotion threshold was raised to 51 points for the 2008 promotion exercise, which was more than 50% higher than the 33 points announced earlier by the Commission.

13. The complainant was thus not promoted in 2008, whereas, in his view, he certainly would have been promoted that year if he had remained an Assistant.

14. In its opinion submitted to the Ombudsman, the Commission explained that Administrative Notice No 40-2005 of 27 May 2005 only referred to the indicative threshold for the 2005 promotion exercise and did not mention any future exercises. Rather than referring to future exercises, the information in question only confirmed that the indicative threshold for grade A*7 was already stable at 33 points for the 2005 promotion exercise and that no rise was expected until the communication of definite thresholds at the end of that exercise. This information was very useful for the Directors-General when allocating priority points in 2005.

15. The Commission further explained that the Staff Regulations do not confer a right to promotion or to the setting of a specific promotion threshold. They merely guarantee a specific number of vacant posts in the establishment plan of each institution. According to the Commission, a careful reading of the Administrative Notice shows that the complainant could not be certain that the threshold would remain at 33 points for his next promotion.

16. The Commission noted that promotion thresholds are determined on the basis of the available budgetary resources. Moreover, in the context of the phrase in the Administrative Notice concerning fixed thresholds, grade A*7 could only be considered as a basic grade for officials who were recruited to grade A8 before 1 May 2004. Accordingly, the "stable threshold" only applied to officials recruited before 1 May 2004.

17. Since promotions are granted on the basis of an analysis of comparative merits per grade, implying a separate treatment also of function groups, and bearing in mind the complainant's change of category, he could not expect to be treated as an official recruited in grade A8 before 1 May 2004 for promotion purposes. His situation was more comparable to that of an official promoted from A*6 to A*7 in 2006 than that of an A*7 official who was recruited before 1 May 2004. In accordance with the principles mentioned above, the threshold that applied in the 2008 promotion exercise was fixed at 51 points by multiplying the average seniority in the grade by 17, which is a sound estimate of the average number of points awarded each year. Therefore, the information contained in the Administrative Notice did not give rise to any legitimate expectations to be promoted in 2008. In the present case, the administration has not given any precise assurances as to the complainant's promotion in 2008. Any such assurance would also not have been in line with the relevant provisions of the Staff Regulations, which provide, in particular, that promotions must be based on merit. The only conclusion that the complainant may have validly drawn from the information contained in the Administrative Notice regarding the next promotion exercises was that an Administrator at his grade was, on average, promoted faster than an Assistant in that grade. In 2009, the average promotion speed for that grade was four years for Assistants and only three years for Administrators.

18. The Commission also underlined that the complainant, after having contested his non-promotion in 2008 via a complaint submitted under Article 90(2) of the Staff Regulations, now essentially challenges his initial decision to change category by arguing that he took the decision on the basis of false information. If the increased threshold for grade AD 7 is considered to be the new and material fact that led the complainant to take a different decision in 2006, this would only justify his claim for reconsideration of his decision to change category in 2006. It cannot apply to his non-promotion to grade AD 8 in 2008. It noted that the complainant could have submitted the present complaint already after the 2007 promotion exercise, during which the threshold for grade AD 7 was first increased.

19. The Commission considered the complainant's claims to be highly speculative. It was not certain that the complainant would have obtained the same number of merit points and promotion points in the 2007 and 2008 exercises had he remained an Assistant. The Commission also did not understand on which basis the complainant claimed additional promotion points.

20. Finally, the Commission pointed out that the complainant had been promoted to grade AD 8.

21. In his observations relating to the Commission's opinion, the complainant argued that Administrative Notice No 40-2005 should be read in conjunction with Article 13 of the General Implementing Provisions of Article 45 of the Staff Regulations, which states the following:

"The introduction of the new promotion system shall be accompanied by a transitional phase in which failure to rebuild an initial stock of points giving an exhaustive picture of the career of officials in the grade shall have the following consequences:

- promotion thresholds shall, for each grade, rise year by year before levelling off after a period judged to be close to the average time spent in the grade by promoted officials...

the Directorate-General for Personnel and Administration shall indicate the grades for which the transition phase has been completed."

22. According to the complainant, the following statement of Administrative Notice No 40-2005 aimed at complying with the above-mentioned obligation: "From now on, the basic grades A*7, B*5 and C*2 will have a fixed threshold." This was, he argued, supported by the fact that, in Administrative Notice 26-2006, the following is stated: "In this regard, the transition phase has been completed for the following grades: A*7, B*5, C*2 and D*2." He also noted that the statement in the Administrative Notice No 40-2005 continues as follows: "The other promotion thresholds will rise less sharply than was the case between the 2003 and 2004 promotion exercises." According to him, the first sentence cannot deal with only one promotion exercise, if the second sentence deals with several exercises.

23. The complainant considered that if the Commission's interpretation of Administrative Notice No 40-2005 is correct, it should have taken urgent measures to correct the widespread misunderstanding that this information gave rise to. He added that two staff unions, as well as the Commission's internal newspaper[2], understood the Commission's statement in the same way as he did.

24. He had, in his view, legitimate expectations to be promoted as an AD 7 as soon as his accumulated points exceeded the threshold of 33 points. Since he was not promoted as expected, although he acted in good faith on the basis of a reasonable interpretation of the information given by the Commission at the time, he believed that the Commission should compensate him for the delay he suffered. Finally, he stressed the inherent unfairness of the situation. He worked hard to pass a competition and, having accepted new and more demanding responsibilities, his career progression has been delayed.

25. The complainant disagreed with the Commission's statement that promotion thresholds are determined on the basis of the available budgetary resources. The ratios of promotions for 2007 (4%) and 2008 (5.8%) were, he argued, lower than what was provided for in the Staff Regulations (33%).

26. He made clear that he never argued that he received assurances from the administration that he would be promoted in 2008. The assurances only related to future thresholds for A*7/AD 7 officials recruited before 1 May 2004 and not yet promoted under the new Staff Regulations.

27. He also pointed out that he contacted the responsible unit of DG ADMIN as soon as he learned that the thresholds would rise unexpectedly in 2007. He obtained, he argued, reassuring information from this unit and was led to believe that an appeal to the Promotion Committee would allow him to be promoted in 2008. That is the reason why he did not complain separately about this issue.

28. His estimate that he would have been promoted in 2008 if he had not passed the internal competition was, he stated, based on the assumption that he would have obtained the same number of points if he had stayed in the same grade in his previous job. He noted, in this respect, that an AD post is more challenging than an AST post.

29. Finally, he noted that the average career speed for A*7 officials recruited before 1 May 2004 was 2.1 years during the years before the reform. Despite his good evaluation reports, he had to wait longer than this average.

The Ombudsman's assessment

30. As a preliminary remark, the Ombudsman notes that the Commission raised, in its opinion to the Ombudsman, the fact that the complainant could be understood to be challenging his initial decision to change category because it led to the loss of all the points accumulated as an AST official. The Ombudsman considers that he cannot deal with this issue in the framework of the present inquiry, which only concerns the issue of the modification of the promotion threshold after the complainant changed category from Assistant to Administrator.

31. The complainant has formulated his allegation in terms of the provision of false information. However, the complainant’s claims (retroactive promotion, payment of corresponding salary arrears, and award of new promotion points) could only be sustainable if the information contained in Administrative Notice No 40-2005 on promotion thresholds, had created a legitimate expectation that he would be promoted in 2008. The Ombudsman therefore understands the complainant's allegation to be, in substance, that the information in the Administrative Notice created legitimate expectations about his future promotion.

Legitimate expectations as regards the promotion threshold

32. According to the relevant case-law, three cumulative conditions must be satisfied for legitimate expectations to exist. First, precise, unconditional and consistent assurances originating from authorised and reliable sources must be given to the person concerned. Second, the assurances given must comply with the applicable rules[3]. Third, those assurances must be such as to give rise to a legitimate expectation on the part of the person to whom they are addressed.

Precise, unconditional and consistent assurances

33. The Ombudsman notes that, according to Administrative Notice No 40-2005,

"promotion thresholds are not set in advance but established at the end of the annual promotion exercise...by the promotion committees and the Appointing Authority...it is impossible to determine the definitive promotion threshold for a given grade at the start of the exercise. However, at the start of the exercise DG ADMIN estimates an indicative threshold based on statistical simulations." (Emphasis added).

34. Therefore, the Ombudsman understands that the thresholds mentioned in Administrative Notice No 40-2005 were indicative thresholds. As such, they were liable to be changed during the course of any promotion exercise.

35. Therefore, the Ombudsman does not consider that the complainant was given any unconditional and consistent assurances from the Administrative Notice No 40-2005 that the threshold for A*7 would remain the same until 2008.

36. Indeed, the Ombudsman doubts that there were any assurances given that the threshold for A*7 would remain the same until 2008. As regards Article 13 of the General Implementing Provisions of Article 45 of the Staff Regulations (see paragraph 21 above), the Ombudsman notes that the statements contained therein are descriptive and not prescriptive. The statements contained therein describe how quickly promotion should occur provided all factors remain equal. This description was possible because a simple analysis, using the average time spent at a particular grade and the average number of points awarded to officials, would indicate when promotion was likely for each grade. Of course, if all factors remained equal, in sum if the average time spent at a particular grade and the average number of points awarded to officials remained equal over the years, such predictions would also remain stable. However, if the factors which are used to carry out this statistical analysis were to change, that is if the average time spent at a particular grade and the average number of points awarded to officials changed, the number of points required for promotion would also change. Therefore, if for budgetary reasons the average time spent at a particular grade were increased, a fortiori the number of points required for promotion would also increase. Likewise, if the average number of points awarded to officials were to increase, the number of points required for promotion would also increase.

37. The Ombudsman notes, in this respect, that, as a result of statistical simulations, the threshold for A*7 was estimated to be 33 points for the 2005 exercise. This indicative threshold for the 2005 promotion exercise, however, only became definitive at the end of the 2005. The indicative threshold for 2005 was not binding, even for the 2005 exercise[4], and could not, a fortiori, be binding in relation to subsequent years.

38. In sum, the Ombudsman is unable to accept the complainant's view that Administrative Notice No 40-2005 was a commitment to set the number of promotion points at a particular level. Similarly, he does not consider that Administrative Notice No 40-2005 contained false information about promotion thresholds.

Assurances complying with the applicable rules

39. The Ombudsman also notes that, according to the case-law of the Union courts, the Staff Regulations do not confer a right to promotion[5]. Promotion is based on comparative merit, as provided for in Article 45 of the Staff Regulations:

"Promotion shall be exclusively by selection from among officials...after consideration of the comparative merits of the officials eligible for promotion."

40. The case-law further stated that "a practice of automatically promoting...would clearly infringe Article 45(1) of the Staff Regulations. Promotion decisions presuppose that the appointing authority has considered the comparative merits of the officials eligible for promotion and the reports on them, in the context of each promotions procedure."[6]

41. Accordingly, any argument that an official has an automatic right to promotion irrespective of the comparative merits of other officials would run counter to the applicable legal rules. Therefore, the complainant could not claim that any legitimate expectations were established.

Assurances giving rise to a legitimate expectation

42. As regards the complainant's arguments that he changed category because of the information provided in Administrative Notice No 40-2005, and that his career was therefore delayed (the complainant argues that he would have been promoted in 2008 if he had remained an assistant[7]), it may well be that the complainant took his understanding of Administrative Notice No 40-2005 into account when deciding to change category. However, as noted above, on a prior reading of Administrative Notice No 40-2005, Administrative Notice No 40-2005 could not give rise to a legitimate expectation that promotion would automatically occur once a certain number of points had been obtained.

43. The Ombudsman therefore concludes that there has been no maladministration by the Commission and that the complainant's claims cannot be sustained.

B. Conclusion

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusion:

There has been no maladministration by the Commission.

The complainant and the Commission will be informed of this decision.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 5 November 2010

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[1] The term “rucksack” is used to refer to the number of promotion points accumulated each year by an official.

[2] Commission en Direct n°365 stated the following: "[les seuils de promotion] vont cesser d'augmenter lorsque la nouvelle méthode de promotion aura été suffisamment longtemps en vigueur."

[3] See Case T-203/97 Forvass v Commission [1999] ECR-SC I-A-129 and II-705, paragraph 70; Case T-199/01 G v Commission [2002] ECR-SC I-A-217 and II-1085, paragraph 38; Case T-347/03 Branco v Commission [2005] ECR II-2555, paragraph 102.

[4] Indeed, the Ombudsman notes that the indicative threshold for 2007 was 51 points, whereas the definitive threshold for that year was much lower, namely 42 points.

[5] Case T-284/02 Dionyssopoulou v Council [2005] ECR-SC II-597, paragraphs 19-20.

[6] Case C-446/00 P Cubero Vermurie v Commission [2001] ECR I-10315, paragraph 36. See also Case T-311/04 Buendía Sierra v Commission [2006] ECR-SC I-A-2-221 and II-A-2-1135; and Case T-492/07 P Sanchez Ferriz v Commission, judgment of 24 April 2009, not yet published in the ECR.

[7] Notwithstanding the above, the Ombudsman considers that this position is necessarily speculative.