JUDGMENT OF THE COURT OF FIRST INSTANCE (Single Judge)

28 September 2004

Case T-216/03

Mario Paulo Tenreiro

v

Commission of the European Communities

(Officials – Mobility – Refusal of promotion – Consideration of comparative merits)

Full text in French II - 0000

Application:         in substance, for annulment of the Commission’s decision, published on 14 August 2002, establishing the list of officials promoted to Grade A 4 in the 2002 procedure, in so far as it does not contain the applicant’s name.

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

Summary

1.     Officials – Actions – Prior administrative complaint – Requirement that subject-matter and grounds be the same – Pleas in law and arguments not appearing in the complaint, but closely linked to it – Admissible

(Staff Regulations, Arts 90 and 91)

2.     Officials – Actions – Act adversely affecting an official – Concept – Refusal to place an official on the list of officials eligible for promotion – Preparatory measure not precluding the promotion of officials not listed

(Staff Regulations, Arts 90 and 91)

3.     Officials – Promotion – Discretion of the administration – Judicial review – Limits

(Staff Regulations, Art. 45)

4.     Officials – Promotion – Consideration of comparative merits – Burden of proof

(Staff Regulations, Art. 45)

5.     Officials – Promotion – Consideration of comparative merits – Arrangements – Discretion of the administration – Limits

(Staff Regulations, Art. 45)

6.     Officials – Promotion – Criteria – Merits – Taking into consideration of seniority and age – Subsidiary nature

(Staff Regulations, Art. 45)

7.     Officials – Promotion – Consideration of comparative merits – Automatic promotion of officials who featured on the list of most deserving candidates for the preceding year’s promotion procedure – Illegality – Taking account of presence on that list – Whether permissible – Condition

(Staff Regulations, Art. 45)

8.     Officials – Promotion – Principle of non-discrimination – Officials who have been transferred within the institution

(Staff Regulations, Art. 45)

9.     Officials – Promotion – Consideration of comparative merits – Arrangements – Recourse to methods of counteracting the subjectivity of the assessments made by different assessors – Legality

(Staff Regulations, Art. 45)

1.     The rule that there should be harmony between a complaint, within the meaning of Article 90(2) of the Staff Regulations, and the action which follows requires that, for a plea before the Community judicature to be admissible, it must have already been raised in the pre-litigation procedure, enabling the appointing authority to know in sufficient detail the criticisms made by the person concerned of the contested decision. That rule is justified by the purpose of the procedure prior to bringing an action, which is to facilitate the amicable settlement of disputes arising between officials or other servants and the administration.

Whilst claims for relief before the Community judicature may contain only heads of claim based on the same matters as those raised in the complaint, those heads of claim may nevertheless be developed before the Community judicature by the presentation of pleas in law and arguments which, whilst not necessarily appearing in the complaint, are closely linked to it.

(see paras 38-40)

See: 242/85 Geist v Commission [1987] ECR 2181, para. 9; 224/87 Koutchoumoff v Commission [1989] ECR 99, para. 10; 133/88 Del Amo Martinez v Parliament [1989] ECR 689, paras 9 and 10; T-57/89 Alexandrakis v Commission [1990] ECR II-143, para. 8; T-175/03 Schmitt v EAR [2004] ECR-SC I-A-211 and II‑939, para. 42, and the case-law cited therein

2.     The inclusion of an official’s name on a list of officials found to be most worthy of promotion within a career bracket is merely a preparatory measure and does not therefore constitute an act adversely affecting another official. In so far as the appointing authority is not obliged to promote an official included on that list, such inclusion does not in itself directly affect that official’s legal position, since no decision concerning his possible promotion has yet been taken. Nor can the fact that another official is included affect the legal position of officials who are excluded, since it can only be affected by the actual promotion of that other official. The regularity of the list may be called into question in an action brought against the decision concluding the promotion procedure.

Only if that appointing authority considered itself bound by the list drawn up on the completion of the proceedings of the promotion committee, in so far as it excludes from promotion officials not included on that list, would the decision to exclude an official from the list directly affect his legal position and constitute an act adversely affecting him.

(see paras 47-48)

See: T-82/89 Marcato v Commission [1990] ECR II-735, paras 40 and 52; T‑187/98 Cubero Vermurie v Commission [2000] ECR-SC I-A-195 and II-885, para. 3

3.     When considering the comparative merits of candidates for promotion, the appointing authority possesses a wide discretion, and in that connection review by the Community Court must be confined to the question whether, having regard to the bases and procedures which may have influenced the administration in 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 qualifications and merits of candidates for that of the appointing authority.

(see para. 50)

See: 140/87 Bevan v Commission [1989] ECR 701, para. 34; T­-262/94 Baiwir v Commission [1996] ECR-SC I-A-257 and II-739, paras 66 and 138; T-221/96 Manzo-Tafaro v Commission [1998] ECR-SC I-A-115 and II-307, para. 16; T‑157/99 Griesel v Council [2000] ECR-SC I-A-­151 and II-699, para. 41

4.     As regards the burden of proving that the comparative merits of the officials eligible for promotion were actually considered before a decision to promote was taken, an applicant who questions whether such a comparison was undertaken must furnish a body of sufficiently consistent evidence that supports his complaint of the lack of any such comparison, such that it is then for the institution concerned to provide evidence that it considered the comparative merits.

(see para. 59)

See: T-25/90 Schönherr v ESC [1992] ECR II­-63, para. 25; T-188/01 to T-190/01 Tsarnavas v Commission [2003] ECR-SC I-­A-­95 and II­-495, para. 115

5.     The appointing authority has the power to undertake a comparative consideration of the periodical reports and merits of the candidates for promotion according to the procedure or method it deems most appropriate, provided that the method chosen ensures that consideration of the comparative merits of candidates is undertaken on a basis of equality, using comparable sources of information.

(see para. 68)

See: T-­78/92 Perakis v Parliament [1993] ECR II­-1299, para. 14; T-­557/93 Rasmussen v Commission [1995] ECR-SC I-A-­195 and II-603, para. 20

6.     Whilst assessment of the merits of the officials eligible for promotion is the decisive factor for all promotions, the appointing authority may, where those merits are equal, take other factors such as the candidates’ age and seniority in grade or service into consideration.

(see para. 79)

See: T-­134/02 Tejada Fernández v Commission [2003] ECR-SC I­-A-­125 and II‑609, para. 42, and the case-law cited therein

7.     A practice of automatically promoting officials who the previous year appeared on the list of most deserving officials but were not promoted would infringe the principle of considering the comparative merits of officials eligible for promotion laid down by Article 45 of the Staff Regulations.

However, the requirement of consideration of comparative merits does not preclude the appointing authority from taking account of the fact that a candidate has already appeared on the list of most deserving officials in a previous year, provided that the merits of each candidate are assessed in relation to those of other candidates for promotion. It follows that taking account of the unexpended balance of the previous promotions procedure cannot be criticised as such as long as the appointing authority does not attach too much weight to it.

(see paras 82, 84)

See: T-­76/98 Hamptaux v Commission [1999] ECR-SC I­-A­-59 and II­-303, para. 44

8.     The Community institutions must ensure that mobility does not impair the career progress of those officials subject thereto. It is thus for those institutions to ensure that an official who has been transferred within the institution is not penalised in a promotions procedure because of that transfer.

However, in order to establish a breach of the principle of non-discrimination, an official may not validly compare his current position with that which he merely claims he would be in had he not been transferred. In the case of a purely hypothetical position of an official, it cannot be determined with any certainty what chances he would have had of advancement as those chances are too uncertain.

(see paras 92, 95)

See: 126/75, 34/76 and 92/76 Giry v Commission [1977] ECR 1937, paras 27 and 28; 785/79 Pizziolo v Commission [1983] ECR 1343, para. 16; Cubero Vermurie v Commission, cited above, paras 68 and 69

9.     A method used by an appointing authority to award promotions consisting in a comparison of the average analytical assessments of officials belonging to two different directorates-general with the average analytical assessments of their respective directorates-general must be considered lawful in so far as it tends to counteract the subjectivity of the assessments made by different assessors.

(see para. 97)

See: Cubero Vermurie v Commission, cited above, para. 85