OPINION OF ADVOCATE GENERAL

GEELHOED delivered on 20 June 2002 (1)

European Parliament v Ignacia Samper

((Appeal – Officials – Reconstruction of career – Consideration of comparative merits – Limits of judicial review))

I ─ Introduction

II ─ Facts and procedure

3. As the result of an internal competition placing him first on the list of suitable candidates, Mr Samper was appointed, by decision of the Parliament of 21 February 1995 and with effect from 1 April 1995, head of division in Grade A 3 at the Madrid Information Office of the European Parliament. He held that post until 18 March 1999, on which date the Court of Justice, by its judgment in Case C-304/97 P Carbajo Ferrero v Parliament, (3) annulled the Parliament's appointment decision of 21 February 1995.

4. In compliance with that judgment, by decision of 14 April 1999, the Parliament annulled Mr Samper's appointment as head of division and reassigned him, with effect from 1 April 1995, to a position at Grade A 5, step 2.

5. By decision of 9 June 1999, the appointing authority promoted Mr Samper to Grade A 4, step 1, with retroactive effect as from 1 January 1998, in accordance with the unanimous opinion of the Advisory Committee on Promotions (hereinafter the decision at issue). On 8 September 1999 Mr Samper lodged an objection to that decision, which was rejected by the President of the Parliament on 20 January 2000.

6. Subsequently, on 20 April 2000, Mr Samper brought an action before the Court of First Instance seeking the annulment of the decision at issue inasmuch as it specified 1 January 1998 and not 1 January 1997 as the date for his promotion to Grade A 4. In particular, he claimed that the Parliament had failed to take sufficient account, in its consideration of his comparative merits, of the responsibilities which he had exercised as head of division in the Madrid Information Office.

8. In its appeal, which was lodged on 13 July 2001, the Parliament claims that the Court should set aside the contested judgment of the Court of First Instance and give a final decision on the matter by dismissing as unfounded the action for annulment brought by Mr Samper. In the alternative, the appellant claims that the case should be referred back to the Court of First Instance for it to adjudicate anew on the action for annulment brought by Mr Samper. The Parliament also claims that the Court should make an appropriate order as to costs.

9. Mr Samper contends that the Court should dismiss the appeal as manifestly inadmissible or, in the alternative, as unfounded. In any event, he contends that the Court should uphold the contested judgment and order the Parliament to pay the costs of both sets of proceedings in their entirety.

10. There was no hearing.

11. I shall consider below, first, the admissibility of the appeal as a whole, then the Parliament's second plea in law, concerning the limits of judicial review. The assessment of the first plea may then be dispensed with. By that plea, the Parliament alleges that the Court of First Instance did not reproduce certain facts correctly, giving rise to errors in law sufficient to justify setting aside the contested judgment. It concerns the manner in which the Court of First Instance describes, at paragraph 40 of the contested judgment, the decisive criterion for the 1997 promotion exercise; the finding by the Court of First Instance, at paragraphs 46 and 47, that the Promotions Committee wrongly assumed that the applicant had experienced difficulties in adjusting to his duties as head of the information office; and the finding, at paragraph 48, that the Promotions Committee had based its view solely on the marks awarded in the staff reports. In my opinion, those parts of the first plea, in so far as they are admissible, are in essence connected with the grounds of challenge put forward under the second plea.

III ─ Admissibility of the appeal

12. Mr Samper argues that the Parliament has no legal interest in bringing the appeal. It has already promoted him, by decision of 31 July 2001, to Grade A 4 with effect from 1 January 1997. (4) According to Mr Samper, that decision was an autonomous measure on the part of the appointing authority and was unconnected with compliance with the contested judgment of the Court of First Instance. The judgment does not in fact require the Parliament to promote him with effect from 1 January 1997. The appeal is therefore manifestly inadmissible in its entirety.

13. The Parliament disputes that view. The contested judgment, the operative part of which must be read in conjunction with the grounds, does not allow the appointing authority any latitude as to the measures to be taken, in particular in view of the ground at paragraph 54 that the decision in question must be annulled in so far as it fails to promote the applicant to Grade A 4 with effect from 1 January 1997. The Parliament adds that its legal interest lies, on the one hand, in securing indemnity against any action for compensation which might be brought by Mr Samper and, on the other hand, in the possibility of recovering the arrears of salary paid to him in compliance with the contested judgment. Moreover, the Parliament points out that the letter which it sent to Mr Samper on 16 August 2001 explicitly mentions that his promotion to Grade A 4 with effect from 1 January 1997 took place in order to comply with the contested judgment and not for any of the appointing authority's own reasons.

IV ─ The plea alleging that the limits of judicial review were overstepped

14. The Parliament argues that the Court of First Instance substituted its own subjective assessment of the applicant's merits for that of the Promotions Committee. That is contrary to settled case-law. (7)

15. The Court of First Instance wrongly found, at paragraphs 53 and 54 of the contested judgment, on the basis of a subjective assessment in two stages, that the applicant performed his duties as head of the information office successfully, and in so doing it failed to make an objective comparison between the applicant and his colleagues.

16. In the first stage of that assessment, the Court of First Instance compares the total number of points awarded to Mr Samper and the totals received by four of his colleagues. The Court does not state why it uses that comparison, but it seems clear to the Parliament that the Court is seeking in that way to minimise the significance of the differences between the numbers of points obtained by the five heads of division concerned. However, according to the Parliament, in making that comparison the Court of First Instance commits a twofold error.

17. First, no comparison of the merits of officials can be legitimate if the total number of points obtained by them is completely disregarded. Second, the Court of First Instance wrongly found that the difference in numbers of points between the officials was based on a particular aspect of the general assessment in their reports. In fact, as is apparent from the staff reports in question, the number of points obtained by an official represents the total points awarded to him on the basis of the eight standardised criteria which make up the analytical assessments in the report.

18. The second stage of the Court of First Instance's assessment is a comparison of the general assessment made of Mr Samper ─ characterised by the Court as favourable ─ with those made of three other heads of division who had obtained a similar assessment. The Court concludes from that comparison that those general assessments are comparable (last sentence of paragraph 45 of the contested judgment). However, by limiting that comparison to the general assessments alone, without taking account of the fact that the three heads of division concerned had obtained a higher total number of points than Mr Samper, the Court committed the same error a second time, since it did not compare the merits of those heads of division.

19. The Court's subjective assessment, according to which Mr Samper performed his duties as head of division successfully, becomes still less convincing by reason of fact that the Court's second comparison is likewise selective. It is limited to the three colleagues who had obtained a comparable general assessment.

21. Finally, the Parliament argues that the Court of First Instance wrongly took the view, at paragraphs 52 and 53 of the contested judgment, that the appointing authority attached no value to the duties performed de facto successfully by the applicant during his two years as head of division. It cannot be concluded, on the basis of that subjective view, that the Promotions Committee committed a manifest error of assessment.

22. At paragraph 50 of the contested judgment, there is criticism of the appointing authority's working method, which consisted in comparing the responsibilities exercised by the individuals concerned. According to the Court of First Instance, there is no evidence to support the presumption that the appointing authority actually undertook a comparison between the responsibilities exercised by Mr Samper and those exercised by the other heads of division promoted to Grade A 4.

23. According to the Parliament, that criticism is untenable. It is settled case-law that the appointing authority has the power under the Staff Regulations to undertake a comparative consideration on the basis of whichever working method it considers most appropriate. The minutes of the meeting of the Promotions Committee of 19 May 1999 show, step by step and in a clear and transparent manner, the reasoning and method applied by the committee. It is clear from those minutes that the appointing authority's decisions concerning Mr Samper's reinstatement were taken on the basis of a comparative consideration taking into account all relevant factors, in particular marks awarded in staff reports, mobility and responsibilities exercised, seniority and equality of opportunity. Since there was very little to choose between the merits of the various officials, a complex value judgment covering all factors had to be made. Although such decisions are not easy, the appointing authority's decision not to promote Mr Samper in the 1997 promotion exercise, which was taken on the basis of the most appropriate method, clearly remained within the limits of its discretion.

28. Mr Samper argues, first, that the considerations set out by the Parliament in the context of the second plea are of a purely factual nature and cannot be put forward in support of an appeal.

29. He further submits that the Court of First Instance did not substitute its own subjective assessment of Mr Samper's merits for that of the appointing authority. The Court merely confined itself, in the context of its judicial review, to establishing the manifest errors committed by the appointing authority and to annulling the decision at issue.

30. With regard to the argument that the appointing authority was not entitled, in the absence of exceptional circumstances, to promote him in the 1997 promotion exercise, the respondent points out that by decision of 30 July 2001 the appointing authority nevertheless decided to promote him with effect from 1 January 1997. That circumstance disproves many of the arguments relied on by the Parliament under the second plea.

31. In its reply, the Parliament maintains that the Court of First Instance almost totally substituted its own assessments for those of the appointing authority. By way of example, it compares certain key points made by the appointing authority, which adopted the assessments of the Promotions Committee as set out in the minutes of its meeting of 19 May 1999, with those made by the Court of First Instance in the contested judgment. According to the Parliament, that comparison shows that, by describing Mr Samper's report first as <i>très honorable</i> then as <i>élogieuse</i> , the Court of First Instance applied its own subjective method in order to reach its own final assessment, according to which the person concerned had performed his duties <i>avec succès</i> . The manifest error of assessment committed by the appointing authority consisted, according to the contested judgment, in not following the Court's subjective method, in not reaching the same conclusion as that reached by the Court in its subjective final assessment and, finally, in not attaching (sufficient) value to that final assessment which would have enabled the appointing authority to promote Mr Samper with effect from 1 January 1997. The Parliament repeats its claim that the Court of First Instance thereby overstepped the limits of its power of judicial review, as established in the Community case-law.

B ─Assessment

32. The Parliament's complaint is directed against the Court's finding that the appointing authority wrongly took no, or at least insufficient, account of the fact that the applicant performed his duties as head of division successfully for two years. The Court thus committed a manifest error of assessment. It substituted its own subjective assessment for the appointing authority's assessment which was based on objective criteria.

33. In my view, the plea in question is admissible. It alleges misrepresentation of the facts and improper grounds. The question whether the grounds of a judgment of the Court of First Instance are insufficient or contradictory is a question of law which is amenable, as such, to judicial review on appeal.

34. Under the first paragraph of Article 45(1) of the Staff Regulations of officials of the European Communities (the Staff Regulations), promotion is to be by decision of the appointing authority and is to be effected after consideration of the comparative merits of the officials eligible for promotion and of the reports on them.

35. The question of the scope of Article 45 of the Staff Regulations has arisen frequently in the case-law of the Court of Justice, <i>inter alia</i> as regards the limiting conditions attaching to the procedure and power of assessment of the appointing authority and the limits of the review which may be undertaken by the Community judicature, that is, the Court of Justice and the Court of First Instance.

36. According to settled case-law, in assessing the interests of the service and the qualifications and merits of the candidates for the purposes of deciding on a promotion under Article 45 of the Staff Regulations, the appointing authority has <i>a wide discretion</i> . The Court has repeatedly pointed out that, with regard to promotions, the appointing authority is entitled to undertake that comparative consideration in the manner which it considers to be the most appropriate. <a href="#Footnote9" name="Footref9">(9)</a> It may therefore take account of a variety of factors and make a balanced assessment on the basis thereof, as it sees fit.

37. However, the discretion which the appointing authority is allowed is subject to the need to undertake a comparative consideration of candidatures with care and impartiality, in the interests of the service and in accordance with the principle of equal treatment. <a href="#Footnote10" name="Footref10">(10)</a> If a procedure and method of assessment have been laid down for the annual promotion exercise, the appointing authority must adhere to those rules. <a href="#Footnote11" name="Footref11">(11)</a> Every official eligible for promotion is entitled to expect the Promotions Committee to compare his merits with those of other officials eligible for promotion to the grade concerned. <a href="#Footnote12" name="Footref12">(12)</a> To that end the Promotions Committee must undertake an effective comparison with all the officials eligible for promotion, and not only with the merits of, for example, the officials placed at the top of the list concerned. <a href="#Footnote13" name="Footref13">(13)</a> 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 promotion procedure. That consideration must indeed take account, to an appropriate extent, of the periods preceding that to which the current promotion exercise relates, but it must take account of that period as well. <a href="#Footnote14" name="Footref14">(14)</a>

38. In that connection the Court's review must be confined to the question whether, having regard to the various considerations which have influenced the administration in making its assessment, the latter has remained <i>within reasonable bounds</i> and has not used its power <i>in a manifestly incorrect way</i> . The Court cannot therefore substitute its assessment of the qualifications and merits of the candidates for that of the appointing authority. <a href="#Footnote15" name="Footref15">(15)</a> It therefore follows that the Community judicature must confine itself to a marginal review of the consideration of comparative merits carried out by the appointing authority, in the course of which it may, in particular, review the latter's compliance with the general principles of proper administration. In addition, the judgment must be reasoned in such a way that, in the event of an appeal, the arguments of the Court of First Instance are clearly apparent to the parties concerned and to the Court of Justice.

39. In order to determine whether, in the contested judgment, the Court of First Instance overstepped its powers by substituting, as the Parliament claims, its own view for the appointing authority's assessment, it must first be examined on which method of assessment the decision at issue was based.

40. As is usual, the appointing authority took the decision at issue on the basis of an opinion of the Promotions Committee. The joint Promotions Committee, which gave its assessment of Mr Samper in the decision at issue, unanimously recommended that he should not be promoted in the context of the 1997 promotion exercise.

41. In the present case, the Promotions Committee was bound in its work by the criteria mentioned in <i>Note d'information no. 7 de 1995 concernant la procédure de promotion </i> (Information Note No 7 of 1995 concerning the assessment of the merits of officials eligible for promotion). Those are, first, the staff report, which is itself based on eight criteria set out in the annex to the applicable <i>Directive interne aux comités de promotion de 1992</i> (Internal Directive for the Promotions Committees, 1992), namely knowledge, comprehension and judgment, initiative, organisational ability, quality of work, consistency and speed of work, professional awareness and working relationships. In addition, in the light of the criteria mentioned in the 1995 note, importance is also attached to the previous staff report, any recommendation made by the Director-General, mobility of the candidate where appropriate, and the principle that, given equality of merit, preference is given to women for categories where they are underrepresented.

42. The working method followed by the Promotions Committee in this case is apparent from the minutes of the extraordinary meeting of 19 May 1999. The committee undertook to compare the overall merits of Mr Samper with those of other officials eligible for promotion to Grade A 4. It decided not only to take account of the staff report in that comparison, but also to take into consideration Mr Samper's responsibilities and duties. The Promotions Committee also decided to take into account the minutes of the Promotions Committee for the promotion exercise concerned. That would enable account to be taken of the specific criteria adopted in the promotion exercise concerned. Finally, the Promotions Committee agreed that account would be taken of the staff reports of the other heads of division.

43. It seems to me that, from a procedural point of view, the Promotions Committee acted entirely in accordance with the internal rules. Moreover, at no time during the proceedings before the Court of First Instance was it claimed or did it appear that any errors were committed in that regard.

44. The only complaint by the applicant which the Court of First Instance examined concerns the alleged failure of the appointing authority to take proper account, in its comparative evaluation, of the merits of his work for two years as head of the Parliament's Madrid Information Office. As I have stated, it is for the appointing authority to assign a rating to those merits in the context of a comparative assessment of the candidates eligible for promotion. In that regard, the scope of the judicial review is limited to the question whether the appointing authority indisputably failed to take those merits adequately into account in the assessment.

45. In my view, the Promotions Committee did not commit any appreciable errors and there is nothing which would give grounds for assuming that the appointing authority did not take into consideration, or did not do so adequately, the relevant merits of Mr Samper. On the contrary, even the Court of First Instance seems to acknowledge that those merits were taken into account in the appointing authority's assessment.

46. In my opinion, the Court of First Instance attaches too little weight, in paragraphs 48 to 51 of the contested judgment, to the fact that the Promotions Committee refers on several occasions, in its reasons, to Mr Samper's merits as head of division. The minutes of the meeting of the Promotions Committee of 19 May 1999 <a href="#Footnote16" name="Footref16">(16)</a> show that the committee took into consideration the level of the duties performed by the applicant and adjusted his marks accordingly (his assessment rose ─ hypothetically ─ from 56 to 59 points). It is also apparent from the passages of the minutes of the meeting of 19 May 1999 which are cited in the contested judgment that Mr Samper's merits were in fact compared with those of the officials who were promoted to Grade A 4 during the 1997 promotion exercise, as well as with the reports of five officials who were also eligible for promotion and had received favourable reports, but who were not promoted. The Court of First Instance also cites the part of the minutes which states that the majority of those (promoted) officials acted as heads of unit for a certain period, with duties comparable to those of a head of division (paragraph 50 of the contested judgment). <a href="#Footnote17" name="Footref17">(17)</a>

47. However, the Promotions Committee's conclusion was unfavourable to Mr Samper in respect of the 1997 promotion exercise. That was not because no account had been taken of the responsibilities exercised by him, but because, in the opinion of the Promotions Committee, other candidates were (even) better. The fact that Mr Samper has clear and acknowledged merits as a head of division does not preclude a finding in the context of a comparison that other officials have higher merits, whether because they have acted as head of division or for other reasons. The appointing authority was therefore reasonably entitled to consider that Mr Samper's merits did not justify the award of still more extra points for promotion. <a href="#Footnote18" name="Footref18">(18)</a> In other words, the appointing authority did not act in a manifestly incorrect manner by, on the one hand, assessing Mr Samper's merits favourably yet, on the other hand, not concluding that he was therefore entitled to promotion.

48. In my opinion, the Court of First Instance has therefore neither established nor been able to establish that, in the circumstances of the present case, the committee, and thus the appointing authority, overstepped the reasonable limits of its powers. Consequently, there can be no question of a certain lack of coherence (paragraph 47 of the contested judgment) in the Promotions Committee's assessment. The view of the Court of First Instance that Mr Samper performed his duties successfully is not a sufficient basis for concluding that the appointing authority committed a manifest error of assessment by not taking account, or by taking insufficient account, of the performance of his duties as head of division (paragraphs 52 and 53 of the contested judgment).

49. To the extent that, in accordance with the applicable rules, the appointing authority made an assessment which is reasoned, amenable to review and unquestionably covered by the authority's permitted margin of discretion, the Court of First Instance has substituted its own view for that assessment. I am therefore of the opinion that the plea put forward by the European Parliament is well founded. Moreover, my view is further reinforced by a number of additional circumstances.

50. First, I am of the opinion that the Court of First Instance starts from a false premiss by stating that the Promotions Committee based its assessment solely on the marks in the staff report (paragraph 48 of the contested judgment). As is clear from the foregoing, account was taken, in determining the level of those marks, of his performance of the duties of head of the Madrid Information Office. Moreover, there is no evidence to indicate that the Promotions Committee did not apply the specific criteria to be taken into account ─ as mentioned in point 41 of this Opinion ─ to Mr Samper.

51. Second, it is established that in the 1997 promotion exercise the differences between the officials concerned, who were eligible for promotion, were minimal. Moreover, the present proceedings concern a special case, since the Promotions Committee had to examine how Mr Samper had performed in the post of head of division in the Madrid Information Office, without taking into account the circumstances which led to the annulment of his appointment. For those reasons, the Court of First Instance is all the more required to act with restraint when reviewing the appointing authority's assessment.

52. In my view, therefore, the judgment of the Court of First Instance cannot be allowed to stand. It is vitiated by a defective statement of grounds, since the Court of First Instance has not established conclusively that the appointing authority manifestly made improper use of its powers. Since, in its judgment, the Court of First Instance based its conclusion on only one of Mr Samper's complaints, I consider it appropriate to refer the case back to it for it to adjudicate anew.

V ─Conclusion

53. In the light of the foregoing, I propose that the Court should:

(1) set aside the judgment of the Court of First Instance of the European Communities in Case T-99/00 <i>Samper </i> v <i>Parliament</i> ;

(2)refer the case back to the Court of First Instance for it to adjudicate anew on the action for annulment brought by Mr Samper;

(3)reserve its decision as to costs.

Original language: Dutch.

[2001] ECR-SC I-A-111 and II-507.

3

[1999] ECR I-1749.

4

By decision of 2 August 2001, he was appointed to a post in Grade A 3 with effect from 1 June 2001.

5

Case C-19/93 P Rendo and Others v Commission [1995] ECR I-3319, paragraph 13, and Case C-174/99 P Parliament v Richard [2000] ECR I-6189, paragraph 33.

6

Parliament v Richard , cited above, paragraph 34. That is, of course, unless the decision at issue is annulled on grounds other than the complaint examined by the Court of First Instance in the contested judgment. The fact that promoting Mr Samper more quickly would have meant that he still had the opportunity to reapply for the post of head of the European Parliament's Information Division in Madrid shows that an action for compensation cannot be ruled out. His candidature was declared inadmissible at that time because he was not eligible for promotion (see paragraph 17 of the contested judgment).

The Parliament refers in particular to Case 324/85 Bouteiller v Commission [1987] ECR 529.

8

Case C-446/00 P Pascual Juan Cubero Vermurie v Commission [2001] ECR I-10315, paragraph 20.

9

Case 62/75 De Wind v Commission [1976] ECR 1167, paragraph 17.

10

As has also been consistently held by the Court of First Instance: see, for example, Case T-182/99 Caravelis v Parliament [2001] ECR II-1313, paragraph 32.

11

See, for example, Cubero Vermurie , cited above. That case concentrated on the question whether the Promotions Committee, in applying the rules on mobility laid down in a promotions guide, had taken sufficient account of the specific circumstances of the case.

12

See Caravelis v Parliament , cited above, paragraph 33.

13

See, for example, Caravelis v Parliament , cited above, paragraph 34.

14

Cubero Vermurie , cited above, paragraph 36.

15

Bouteiller , cited above, paragraph 6 and Case 282/81 Ragusa v Commission [1983] ECR 1245, paragraphs 9 and 13. Repeatedly confirmed in the case-law of the Court of Justice and the Court of First Instance.

16

As cited, without being contradicted, in paragraphs 36, 37 and 49 of the contested judgment.

17

However, the Court of First Instance finds that observation vague and general since no indication is given as to the total period for which those duties were performed and as to the reasons for considering them comparable to those of a head of a Parliament information office.

18

See, to comparable effect, Cubero Vermurie , cited above, paragraph 21.