JUDGMENT OF THE COURT OF FIRST INSTANCE (Single Judge),

20 July 2001

Case T-351/99

Christian Brumter

v

Commission of the European Communities

‛Officials — Notice of vacancy — Appointment — Obligation to state grounds — Consideration of the comparative merits of the candidates — Discretion of the appointing authority — Staff report — Request for transfer’

Full text in French   II-757

Application for:

annulment of the Commission's decision of 29 January 1999 to reject the applicant's candidature for the post mentioned in the notice of vacancy COM/173/98 and the decision of 27 January 1999 to appoint Gerard Zahlen to that post.

Held:

The Commission's decision to appoint Mr Zahlen to the post mentioned in the notice of vacancy COM/173/98 and the decision to reject Mr Brumter's candidature for that post is annulled. The defendant is ordered to pay the costs.

Summary

1. Officials — Decision adversely affecting an official — Rejection of a candidature — Obligation to state grounds — Purpose — Scope

   (Staff Regulations, Art. 25, second para.)

2. Officials — Decision adversely affecting an official — Obligation to state grounds — Not fulfilled — Régularisation after the commencement of proceedings — Not permissible

   (Staff Regulations, Arts 25, second para., and 90(2))

3. Officials — Vacancy notice — Filling of post by promotion — Consideration of the comparative merits of candidates — Discretion of the administration — Limits — Observance of the conditions laid down in the vacancy notice

   (Staff Regulations, Arts 29(1) and 45)

4. Officials — Vacancy notice — Filling of post by promotion — Consideration of the comparative merits of candidates — Discretion of the administration — Limits — Observance of the conditions laid down in the vacancy notice — Judicial review — Scope

5. Officials — Promotion — Consideration of the comparative merits of candidates — Taking into consideration of staff reports — Substantial delay in the drawing up of candidates' personal files

   (Staff Regulations, Art. 45)

1.  The requirement laid down in the second subparagraph of Article 25 of the Staff Regulations that any decision adversely affecting an official should state the grounds on which it is based constitutes an essential principle of Community law which can be derogated from only on the basis of overriding considerations. It is intended, on the one hand, to provide the person concerned with sufficient information to determine whether the act adversely affecting him was well founded and whether it is appropriate to bring proceedings before the Court and, on the other, to enable the latter to carry out its review.

   Although the appointing authority is not obliged to state grounds for promotion decisions in so far as they affect candidates who have not been promoted, it is obliged to state grounds for its decision rejecting a complaint lodged under Article 90(2) of the Staff Regulations by a candidate who was not promoted, the reasons for that adverse decision being deemed to be the same as those which formed the basis of the decision which was the subject of the complaint. Since promotion is by selection, it is sufficient that the statement of grounds for the rejection of the complaint deal with the satisfaction of the legal conditions which under the Staff Regulations govern the regularity of promotion.

   (see paras 28-29)

   See: C-343/87 Culin v Commission [1990] ECR I-225, para. 13; T-52/90 Volger v Parliament [1992] ECR II-121, confirmed on appeal in C-115/92 P Parliament v Volger [1993] ECR I-6549, paras 22 and 23; T-178/95 and T-179/95 Picciolo and Caló v Committee of the Regions [1997] ECRSC I-A-51 and II-155, paras 33 and 34; T-6/96 Contargyrisv Council [1997] ECRSC I-A-119 and II-357, para. 148; T-142/95 Delvaux v Commission [1997] ECRSC I-A-477 and II-1247, para. 84; T-56/96 Maccaferri v Commission [1998] ECRSC I-A-57 and II-133, para. 36; T-157/98 Oliveira v Parliament [1999] ECRSC I-A-163 and II-851, para. 50

2.  The total absence of a statement of grounds for a decision cannot be remedied by explanations provided by the appointing authority after proceedings have been commenced. At that stage, such explanations no longer fulfil their function. The obligation to state grounds, 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 carry out its review. The commencement of proceedings accordingly puts an end to the possibility of the appointing authority's regularising its decision by a reasoned reply rejecting the complaint.

   (see para. 33)

   See: Volger v Parliament, cited above, para. 40

3.  The consideration of candidatures for transfer or promotion pursuant to Article 29(1)(a) of the Staff Regulations must comply with Article 45 of the Staff Regulations, which provides expressly for consideration of the comparative merits of the officials eligible for promotion. The requirement for such consideration reflects both the principle of equal treatment of officials and the principle that officials should have reasonable career prospects.

   For the purposes of that consideration of comparative merits, the appointing authority is vested with a wide discretion. However, the exercise of that discretion presupposes a careful examination of candidates' files and meticulous observance of the requirements laid down in the vacancy notice for the post in question, so that the appointing authority is required to reject any candidate who does not meet those requirements. The vacancy notice constitutes a legal framework which the appointing authority imposes on itself and to which it must have meticulous regard.

   (see paras 69-71)

   See: Volger v Parliament, cited above, para. 24; C-35/92 P Parliament v Frederiksen [1993] ECR I-991, paras 15 and 16; T-22/92 Weissenfels v Parliament [1993] ECR II-1095, para. 66; T-21/96 Giannini v Commission [1997] ECRSC I-A-69 and II-211, para. 19; T-159/96 Wenk v Commission [1998] ECRSC I-A-193 and II-593, para. 63; T-283/97 Thinus v Commission [1999] ECRSC I-A-69 and II-353, para. 42

4.  In the context of a promotion procedure, with a view to establishing whether or not the appointing authority exceeded the bounds of the legal framework constituted by the vacancy notice for the post to be filled, it is incumbent on the Court, first, to examine what conditions were, in that instance, laid down in that notice and then to verify whether the candidate selected by the appointing authority to occupy the vacant post actually satisfied those conditions. Such a review must be limited to the question whether, having regard to the considerations which have influenced the administration in making its assessment, the latter 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 candidates' qualifications for that of the appointing authority.

   (see para. 72)

   See: 282/81 Ragusa v Commission [1983] ECR 1245, para. 9; 233/85 Bonino v Commission [1987] ECR 739, para. 5; T-169/89 Frederiksen v Parliament [1991] ECR II-1403, para. 69; T-25/90 Schönherr v ES C [1992] ECR II-63, para. 20; T-11/91 Schloh v Council [1992] ECR II-203, para. 51; Parliament v Frederiksen, cited above, para. 17; T-82/91 Latham v Commission [1994] ECRSC I-A-15 and II-61, para. 62; T-262/94 Baiwir v Commission [1996] ECRSC I-A-257 and II-739, para. 66; Giannini v Commission, cited above, para. 20; Delvaux v Commission, cited above, para. 38

5.  The periodic report constitutes an indispensable criterion of assessment whenever an official's career is taken into consideration by the administration. A promotion procedure is therefore 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.

   (see para. 83)

   See: 24/79 Oberthür v Commission [1980] ECR 1743, para. 8; 7/86 Vincent v Parliament [1987] ECR 2473, para. 16; T-386/94 Allo v Commission [1996] ECRSC I-A-393 and II-1161, para. 38