(Officials – Mobility – Refusal of promotion – Consideration of comparative merits)

Full text in French II - 0000

Application: in substance, for annulment of the Commission’s decision, published on 14 August 2002, establishing the list of officials promoted to Grade A 4 in the 2002 procedure, in so far as it does not contain the applicant’s name.

Held: The application is dismissed. The parties are ordered to bear their own costs.

Summary

(Staff Regulations, Arts 90 and 91)

(Staff Regulations, Arts 90 and 91)

(Staff Regulations, Art. 45)

(Staff Regulations, Art. 45)

5. Officials – Promotion – Criteria – Merits – Taking into consideration of seniority and age – Subsidiary nature

(Staff Regulations, Art. 45)

(Staff Regulations, Art. 45)

7. Officials – Promotion – Principle of non-discrimination – Officials who have been transferred within the institution

(Staff Regulations, Art. 45)

(Staff Regulations, Art. 45)

Whilst claims for relief before the Community judicature may contain only heads of claim based on the same matters as those raised in the complaint, those heads of claim may nevertheless be developed before the Community judicature by the presentation of pleas in law and arguments which, whilst not necessarily appearing in the complaint, are closely linked to it.

(see paras 38-40)

See: 242/85 Geist v Commission [1987] ECR 2181, para. 9; 224/87 Koutchoumoff v Commission [1989] ECR 99, para. 10; 133/88 Del Amo Martinez v Parliament [1989] ECR 689, paras 9 and 10; T-57/89 Alexandrakis v Commission [1990] ECR II-143, para. 8; T-175/03 Schmitt v EAR [2004] ECR-SC I-A-211 and II‑939, para. 42, and the case-law cited therein

Only if that appointing authority considered itself bound by the list drawn up on the completion of the proceedings of the promotion committee, in so far as it excludes from promotion officials not included on that list, would the decision to exclude an official from the list directly affect his legal position and constitute an act adversely affecting him.

(see paras 47-48)

See: T-82/89 Marcato v Commission [1990] ECR II-735, paras 40 and 52; T-187/98 Cubero Vermurie v Commission [2000] ECR-SC I-A-195 and II-885, para. 3

(see para. 50)

See: 140/87 Bevan v Commission [1989] ECR 701, para. 34; T­-262/94 Baiwir v Commission [1996] ECR-SC I-A-257 and II-739, paras 66 and 138; T-221/96 Manzo-Tafaro v Commission [1998] ECR-SC I-A-115 and II-307, para. 16; T‑157/99 Griesel v Council [2000] ECR-SC I-A­151 and II-699, para. 41

(see para. 59)

See: T-25/90 Schönherr v ESC [1992] ECR II­-63, para. 25; T-188/01 to T-190/01 Tsarnavas v Commission [2003] ECR-SC I-­A-­95 and II­-495, para. 115

5. The appointing authority has the power to undertake a comparative consideration of the periodical reports and merits of the candidates for promotion according to the procedure or method it deems most appropriate, provided that the method chosen ensures that consideration of the comparative merits of candidates is undertaken on a basis of equality, using comparable sources of information.

(see para. 68)

See: T-­78/92 Perakis v Parliament [1993] ECR II­-1299, para. 14; T-­557/93 Rasmussen v Commission [1995] ECR-SC I-A­-195 and II­-603, para. 20

(see para. 79)

See: T-­134/02 Tejada Fernández v Commission [2003] ECR-SC I­-A-­125 and II‑609, para. 42, and the case-law cited therein

7. A practice of automatically promoting officials who the previous year appeared on the list of most deserving officials but were not promoted would infringe the principle of considering the comparative merits of officials eligible for promotion laid down by Article 45 of the Staff Regulations.

However, the requirement of consideration of comparative merits does not preclude the appointing authority from taking account of the fact that a candidate has already appeared on the list of most deserving officials in a previous year, provided that the merits of each candidate are assessed in relation to those of other candidates for promotion. It follows that taking account of the unexpended balance of the previous promotions procedure cannot be criticised as such as long as the appointing authority does not attach too much weight to it.

(see paras 82, 84)

See: T-­76/98 Hamptaux v Commission [1999] ECR-SC I­-A­-59 and II­-303, para. 44

However, in order to establish a breach of the principle of non-discrimination, an official may not validly compare his current position with that which he merely claims he would be in had he not been transferred. In the case of a purely hypothetical position of an official, it cannot be determined with any certainty what chances he would have had of advancement as those chances are too uncertain.

(see paras 92, 95)

See: 126/75, 34/76 and 92/76 Giry v Commission [1977] ECR 1937, paras 27 and 28; 785/79 Pizziolo v Commission [1983] ECR 1343, para. 16; Cubero Vermurie v Commission, cited above, paras 68 and 69

9. A method used by an appointing authority to award promotions consisting in a comparison of the average analytical assessments of officials belonging to two different directorates-general with the average analytical assessments of their respective directorates-general must be considered lawful in so far as it tends to counteract the subjectivity of the assessments made by different assessors.

(see para. 97)

See: Cubero Vermurie v Commission, cited above, para. 85