JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

3 May 2007

Case T-261/04

Alain Crespinet

Commission of the European Communities

(Officials – Promotion – 2003 promotion procedure – Award of promotion points)

Application: for annulment of the decision of the Commission by which promotion points were awarded to the applicant for the 2003 promotion procedure and the decision not to enter the applicant’s name on the list of officials promoted to grade A5 for that year’s procedure.

Held: The action is dismissed. Each party is ordered to bear its own costs.

Summary

1. Officials – Actions – Act adversely affecting an official

(Staff Regulations, Arts 90 and 91)

2. Officials – Promotion – Consideration of comparative merits

(Staff Regulations, Art. 45(1))

3. Officials – Promotion – Consideration of comparative merits

(Staff Regulations, Arts 5, 7 and 45(1))

4. Officials – Decision affecting the administrative situation of an official

(Staff Regulations, Arts 26 and 45)

5. Officials – Promotion – Consideration of comparative merits

(Staff Regulations, Art. 45(1))

1. In the case of an action for annulment both of the decision awarding the applicant promotion points and of the decision not to enter his name on the list of officials promoted, the first claim is inadmissible, since the decision awarding promotion points constitutes, in the promotion system established by the Commission, an act preparatory, prior and necessary to the final decision not to enter the applicant’s name on the list of officials promoted and to the detachable and self-contained decision which it involves, namely the fixing of the total number of points. However, since the lawfulness of a preparatory act may be disputed in the course of an action directed against the final decision, the examination of the merits of the claim for annulment of the decision not to enter the applicant’s name on the list of officials promoted must also cover any argument in the application seeking to establish the unlawfulness of the decision awarding the promotion points.

(see paras 39, 41-44)

See: T‑134/02 Tejada Fernández v Commission [2003] ECR-SC I‑A‑125 and II‑609, para. 18; T-311/04 Buendía Sierra v Commission [2006] ECR II-4137, paras 97 and 98

2. In assessing the merits to be taken into consideration in the context of a promotion decision under Article 45 of the Staff Regulations and, consequently, also in the context of a decision awarding points in a promotion system under which such an assessment is quantified, the administration possesses a wide discretion and the Community judicature must restrict its review to consideration of the question whether, regard being had to the various considerations which have influenced the administration in making its assessment, the latter has kept within proper bounds and has not used its power in a manifestly incorrect way.

(see paras 58, 93)

See: 282/81 Ragusa v Commission [1983] ECR 1245, para. 9; 324/85 Bouteiller v Commission [1987] ECR 529, para. 6; T‑323/02 Breton v Court of Justice [2003] ECR-SC I‑A‑325 and II‑1587, para. 98; Buendía Sierra v Commission, paras 291 and 320

3. Under the promotion system established by an internal regulation of the Commission based on the quantification of merits, characterised by the annual award to officials of different types of points, the fact that, under Articles 5 and 7 of the Staff Regulations, officials at the same grade are deemed to perform duties with an equivalent level of responsibility does not mean that their merits must be considered as equal for the purpose of awarding the promotion points available to each directorate-general, since those are reserved for officials who have demonstrated exceptional merits.

(see para. 65)

See: T‑131/00 Schochaert v Council [2001] ECR-SC I‑A‑141 and II‑743, para. 38; Buendía Sierra v Commission, para. 290

4. The purpose of Articles 26 and 45 of the Staff Regulations is to guarantee respect for an official’s rights of defence by ensuring that decisions taken by the appointing authority which affect his administrative status and his career are not based on matters concerning his conduct which are not included in his personal file. It follows that a decision based on such matters is contrary to the guarantees contained in the Staff Regulations and must be annulled because it was adopted on the basis of a procedure vitiated by illegality.

That does not apply to a decision to award promotion points based on the strategic importance of the duties performed by the official, since that fact may, in principle, be deduced from the information contained in his personal file and in particular from his career development report.

(see paras 77-78)

See: T‑109/92 Lacruz Bassols v Court of Justice [1994] ECR-SC I‑A‑31 and II‑105, para. 68; T-156/05 Lantzoni v Court of Justice [2006] ECR-SC I-A-2-189 and II-A-2-969, para. 67

5. The fact that each official eligible for promotion is entitled to expect the appointing authority to compare his merits with those of all the other officials eligible for promotion to the grade in question, including those in other departments, does not mean, in the promotion system established by the Commission, that that extended examination of merits must precede the award of promotion points by the directorates-general. On the contrary, the prior consideration of candidates’ merits within each directorate-general, which leads to the award of those points, is allied to the principle of sound administration in that it enables the appointing authority to examine on an objective basis the comparative merits of all officials eligible for promotion to a particular grade.

(see paras 82, 85)

See: T‑557/93 Rasmussen v Commission [1995] ECR-SC I‑A‑195 and II‑603, para. 21; T-234/97 Rasmussen v Commission [1998] ECR-SC I‑A‑507 and II‑1533, para. 24; T‑187/98 Cubero Vermurie v Commission [2000] ECR-SC I‑A‑195 and II‑885, para. 61; T‑188/01 to T‑190/01 Tsarnavas v Commission [2003] ECR-SC I‑A‑95 and II‑495, para. 121; T‑97/02 Mavridis v Commission [2004] ECR-SC I‑A‑9 and II‑45, para. 77