JUDGMENT OF THE COURT OF FIRST INSTANCE (Single Judge)

21 January 2004

Case T-97/02

Prodromos Mavridis

v

Commission of the European Communities

(Officials – Promotion – Omission from the list of officials promoted to Grade A 5 – Availability of staff reports)

Full text in French ………………………………………………… II – 0000

Application:         for annulment of the Commission’s decision of 6 April not to enter the applicant on the list of officials promoted to Grade A 5 in the 2001 promotions round.

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

Summary

1.     Officials – Promotion – Consideration of comparative merits – Taking into consideration of periodic reports – Incomplete personal file – Consequences

(Staff Regulations, Art. 45(1))

2.     Officials – Promotion – Consideration of comparative merits – Taking into consideration of periodic reports – Appointing authority’s obligation to postpone its decision if the last or penultimate periodic report of one of the officials eligible for promotion is not available – None

(Staff Regulations, Art. 45(1))

3.     Officials – Promotion – Consideration of comparative merits – Rules – Discretion of the administration – Prior consideration of candidatures within each directorate-general – Permissible

(Staff Regulations, Art. 45)

1.     The periodic report constitutes an indispensable criterion of assessment each time an official’s career is taken into consideration for the purpose of adopting a decision concerning his promotion.

Furthermore, a promotion procedure is tainted with irregularity where the appointing authority has not been able to consider the comparative merits of the candidates because there has been a substantial delay on the part of the administration in drawing up the periodic reports of one or more of them.

On the other hand, that irregularity does not incur a sanction in two situations. First, in exceptional circumstances, the absence of a periodic report may be compensated for by the existence of other information on an official’s merits. Secondly, the fact that the personal file of one candidate is irregular and incomplete is not a sufficient ground for the annulment of the promotions. It must also be established that this was capable of having a decisive effect on the promotion procedure.

(see paras 49-51)

See: 156/79 and 51/80 Gratreau v Commission [1980] ECR 3943, paras 22 and 24; 7/86 Vincent v Parliament [1987] ECR 2473, paras 16 and 17; C-68/91 P Moritz v Commission [1992] ECR I-6849, para. 16; T-58/92 Moat v Commission [1993] ECR II-1443, para. 59; T-386/94 Allo v Commission [1996] ECR-SC I-A-393 and II-1161, para. 28; T-82/98 Jacobs v Commission [2000] ECR-SC I-A-39 and II-169, para. 34; T-202/99 Rappe v Commission [2000] ECR-SC I-A-201 and II-911, paras 38 and 40; T-351/99 Brumter v Commission [2001] ECR-SC I-A-165 and II-757, para. 83; T-135/00 Morello v Commission [2002] ECR-SC I-A-265 and II-1313, para. 84

2.     While the appointing authority, when taking a decision on promotion, may conceivably take account of all the periodic reports on each of the officials eligible for promotion for the purpose of considering their comparative merits, Article 45(1) of the Staff Regulations does not, however, require it to postpone its decision if the last final periodic report on one or other of the applicants is not available. The same would apply if the penultimate periodic report on an official was not available, where the parties agree that the most recent final report was available, for the purpose of considering the comparative merits of the candidates, when the contested decision was taken.

(see para. 60)

See: 263/81 List v Commission [1983] ECR 103, paras 25 to 27; Moritz v Commission, paras 16 to 18; Rappe v Commission, para. 39; T-194/99 Sebastiani v Commission [2001] ECR II-991, para. 44

3.     The Staff Regulations empower the appointing authority to consider the comparative merits of officials eligible for promotion in accordance with the procedure or method which it considers to be the most appropriate.

When undertaking that consideration, the appointing authority must have at its disposal all the information necessary to assess the merits of each candidate. It is assisted by the administrative services at the various hierarchical levels.

A preliminary examination of the applications of officials eligible for promotion, within the directorate-general of the Commission to which each of them is attached, is not capable of preventing a properly formed consideration of their comparative merits, as referred to in Article 45 of the Staff Regulations; on the contrary, it reflects the principle of sound administration. Furthermore, the involvement of the Director-General in the promotion procedure is necessary for two reasons: first, to ensure that account is taken of factors specific to his directorate-general, of which he is aware through consultation of the various senior officials in it, and secondly to ensure that the staff reports of the various officials eligible for promotion, which have been drawn up by different assessors, are viewed in a uniform manner.

(see paras 75-77)

See: T-53/91 Mergen v Commission [1992] ECR II-2041, para. 36; T-76/92 Tsirimokos v Parliament [1993] ECR II-1281, para. 16; T-557/93 Rasmussen v Commission [1995] ECR-SC I-A-195 and II-603, para. 20; T-547/93 Lopes v Courtof Justice [1996] ECR-SC I-A-63 and II-185, para. 71; Allo v Commission, para. 29; T-234/97 Rasmussen v Commission [1998] ECR-SC I-A-507 and II-1533, para. 21; T-187/98 Cubero Vermurie v Commission [2000] ECR-SC I-A-195 and II-885, para. 60