Keywords
Summary

Keywords

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1. Officials - Recruitment - Procedures - Choice - Priority to be given to promotion, internal transfer and internal competition - Simultaneous publication of internal and inter-institutional vacancy notices - Permissible

(Staff Regulations, Art. 29(1) )

2. Officials - Recruitment - Vacancy - Filling by promotion or internal transfer - Consideration of the comparative merits of the candidates - Administration' s discretion - Conditions for exercise - Review by the Court

(Staff Regulations, Art. 29(1)(a) )

3. Officials - Decision adversely affecting an official - Rejection of a candidature - Requirement for statement of reasons at the latest at the stage of rejection of the complaint - Non-compliance - Regularization in the course of the proceedings - Not permissible

(Staff Regulations, Art. 25, second paragraph, and Art. 90(2) )

4. Officials - Actions - Action for damages - Annulment of the contested unlawful measure - Adequate compensation for non-material damage

(Staff Regulations, Art. 91)

Summary

1. In order to fill a vacant post, the appointing authority is required by Article 29(1) of the Staff Regulations to consider as a priority the possibilities of promotion and transfer within the institution before proceeding to one of the subsequent stages laid down by that provision, respecting the order of priority there set out. Accordingly, the appointing authority may only consider requests for transfer by officials of other institutions if it is of the opinion, following a proper review of candidatures for promotion or internal transfer, that none of them fits the requirements of the post to be filled and it has considered the possibility of organizing an internal competition.

However, Article 29(1) of the Staff Regulations does not preclude the simultaneous publication, for the same post to be filled, of an internal vacancy notice and an inter-institutional vacancy notice.

2. The requirement that the appointing authority consider the comparative merits of the candidates for promotion and internal transfer to fill a vacant post is the embodiment of both the principle of equal treatment of officials and the principle that they are entitled to reasonable career prospects.

The Court must ascertain whether the institution exercised its power of assessment in this field in compliance with the safeguards laid down by the Community legal order. Those safeguards include in particular the right of the persons concerned to be heard by the administration when its procedure for considering the comparative merits of the candidatures is based on a discussion with each candidate, and the requirement that the administration consider, carefully and impartially, everything relevant to each candidature.

3. Where a candidature for a vacant post is rejected, the appointing authority is bound to give reasons at least for the decision rejecting the candidate' s complaint.

In the case of a procedure to fill a post by promotion or internal transfer, it suffices that the statement of reasons for the rejection of the complaint deals with the existence of the legal conditions laid down by the Staff Regulations for the procedure to be lawful.

The total absence of a statement of reasons for the rejection of the complaint cannot be remedied by explanations provided by the administration after a legal action has been started. At that stage, such explanations no longer fulfil their function. The obligation to give reasons, laid down by the second paragraph of Article 25 in conjunction with Article 90(2) of the Staff Regulations, is intended on the one hand to provide the person concerned with sufficient information to determine whether the rejection of his candidature was well-founded and whether it is appropriate to bring proceedings before the Court, and on the other to enable the Court to review the legality of the rejection. The commencement of proceedings accordingly puts an end to the possibility of the appointing authority' s regularizing its decision by a reasoned reply rejecting the complaint.

4. The annulment of an act of the administration which is contested by an official itself constitutes adequate and, in principle, sufficient compensation for any non-material damage which he may have suffered.