JUDGMENT OF THE COURT OF FIRST INSTANCE (Single Judge)

17 March 2004

Case T-175/02

Giorgio Lebedef

v

Commission of the European Communities

(Officials – Promotion – Irregularity in a promotion procedure – Consideration of comparative merits – Application for annulment)

Full text in French II - 0000

Application:         for annulment of the Commission’s decision not to promote the applicant to Grade B 1 in the promotion round for 2000.

Held:         The decision refusing to promote the applicant is annulled. The Commission is ordered to pay the costs.

Summary

1.     Officials – Actions – Act adversely affecting the applicant – Decision rejecting a complaint – Pure and simple rejection – Confirmation of act adversely affecting the applicant – Action inadmissible

(Staff Regulations, Art. 91(1))

2.     Officials – Promotion – Candidates eligible for promotion – Right to promotion – None

(Staff Regulations, Art. 45(1))

3.     Officials – Promotion – Consideration of comparative merits – Rules – Discretion of the administration – Limits – Respect for principle of equal treatment – Judicial review – Limits

(Staff Regulations, Art. 45(1))

4.     Officials – Promotion – Consideration of comparative merits – Taking into account of staff reports – Taking into account of a non-final staff report included irregularly and challenged by the official – Not permissible – Taking into account of a final staff report, despite a subsequent legal challenge to it – Permissible

(Staff Regulations, Art. 45(1))

1.     Every decision purely and simply rejecting a complaint, whether it be express or implied, only confirms the act or failure to act to which the complainant takes exception and is not, by itself, a decision which may be challenged. It is only when this decision upholds all or part of the complaint of the person concerned that it will, in appropriate circumstances, constitute by itself a decision against which an action can be brought.

A purely confirmatory measure, such as an act which contains no new factors as compared with a previous measure adversely affecting the applicant and which has not therefore replaced it, cannot be described as an act adversely affecting the applicant.

(see paras 19-20)

See: 23/80 Grasselli v Commission [1980] ECR 3709, para. 18; 371/87 Progoulis v Commission [1988] ECR 3081, para. 17; T-608/97 Plug v Commission [2000] ECR-SC I-A-125 and II-569, para. 23; T-134/02 Tejada Fernández v Commission [2003] ECR-SC I-A-125 and II-609, para. 16

2.     The Staff Regulations do not confer a right to promotion even for officials who meet all the conditions for promotion.

(see para. 24)

See: T-3/92 Latham v Commission [1994] ECR-SC I-A-23 and II-83, para. 50; T-262/94 Baiwir v Commission [1996] ECR-SC I-A-257 and II-739, para. 67; Tejada Fernández v Commission, para. 40

3.     The appointing authority has a wide discretion in assessing the merits to be taken into consideration in a decision on promotion under Article 45 of the Staff Regulations, and review by the Community judicature is confined to determining whether, having regard to the various considerations which have influenced the administration in making its assessment, it has remained within reasonable bounds and has not used its power in a manifestly incorrect way. The Court cannot therefore substitute its assessment of the qualifications and merits of the candidates for that of the appointing authority.

However, the discretion allowed to the administration is circumscribed by 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. In practice, consideration of the comparative merits of candidatures must be undertaken on a basis of equality, using comparable sources of information.

Furthermore, it is clear from the wording of the first paragraph of Article 45(1) of the Staff Regulations that, in the context of a promotions procedure, the appointing authority is required to make its choice on the basis of a comparative examination of the staff reports and merits of the candidates eligible for promotion. To that end, it has a power under the Staff Regulations to undertake that examination in accordance with the procedure or method which it considers most appropriate.

(see paras 25-26)

See: T-76/92 Tsirimokos v Parliament [1993] ECR II-1281, paras 20 and 21; Baiwir v Commission, para. 66; T-221/96 Manzo-Tafaro v Commission [1998] ECR-SC I-A-115 and II-307, para. 16; T-157/98 Oliveira v Parliament [1999] ECR-SC I-A-163 and II-851, para. 35; Tejada Fernández v Commission, para. 41

4.     The periodic report constitutes an indispensable criterion of assessment each time an official’s career is taken into consideration with a view to a decision concerning his promotion. A report irregularly included in a personal file after it has been challenged by the official is among the information on the merits of candidates for promotion which may not legitimately be taken into account by the promotions committee in lieu of the staff report.

The situation is different where the staff report, although the subject of a subsequent appeal, was to be regarded as final under the general rules for the implementation of Article 43 of the Staff Regulations in the institution concerned.

(see paras 34-35)

See: 156/79 and 51/80 Gratreau v Commission [1980] ECR 3943, para. 22; T‑144/95 Michaël v Commission [1996] ECR-SC I-A-529 and II-1429, para. 52; T-82/98 Jacobs v Commission [2000] ECR-SC I-A-39 and II-169, paras 34 and 39