JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

11 July 2002

Case T-163/01

Juan Pedro Perez Escanilla

v

Commission of the European Communities

‛Officials — Promotion — Consideration of comparative merits — Action for annulment’

Full text in French   II-717

Application for:

annulment of the Commission's decision not to promote the applicant to Grade A 4 in the 1999 promotion procedure.

Held:

The Commission's decision not to promote the applicant to Grade A 4 in the 1999 promotion procedure is annulled. The Commission is ordered to pay the costs.

Summary

1. Officials — Promotion — Administration's discretion — Limits — Comparative consideration of candidatures in accordance with the principle of equal treatment — Judicial review — Limits

   (Staff Regulations, Art. 45)

2. Officials — Promotion — Criteria — Priority to be accorded to merits — Taking into consideration of seniority and age — Conditions

   (Staff Regulations, Art. 45)

3. Officials — Promotion — Consideration of comparative merits — Procedure — Mandatory taking into consideration of individual staff reports

   (Staff Regulations, Art. 45)

1.  The appointing authority has a wide discretion in assessing the merits to be taken into consideration in a decision on promotion under Article 45 of the Staff Regulations and the review by the Community judicature is confined to determining whether, having regard to the various considerations which may have influenced the administration in making its assessment, it 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 the candidates for that of the appointing authority. However, the discretion which the administration is thus recognised as enjoying is circumscribed by the need to undertake a comparative consideration of the candidatures with care and impartiality, in the interest of the service and in accordance with the principle of equal treatment. In practice, that consideration must be undertaken on a basis of equality, using comparable sources of information.

   (see para. 28)

   See: T-76/92 Tsirimokos v Parliament [1993] ECR II-1281, paras 20 and 21; T-262/94 Baiwir v Commission [1996] ECRSC I-A-257 and II-739, para. 66; T-221/96 Manzo-Tafaro v Commission [1998] ECRSC I-A-115 and II-307, para. 16; T-157/98 Oliveira v Parliament [1999] ECRSC I-A-163 and II-851, para. 35

2.  In a promotion procedure, the appointing authority is required to make its choice on the basis of a consideration of the comparative merits of the candidates eligible for promotion and of the reports on them. To that end, it has power under the Staff Regulations to undertake such consideration according to the procedure or method which it considers to be the most appropriate. The assessment of the merits of the officials eligible for promotion is therefore the decisive factor for all promotions, while the appointing authority may take candidates' age and seniority in grade or service into consideration only as a secondary factor. Where the merits of the officials eligible for promotion are equal, those additional criteria may even constitute a decisive factor in that authority's choice.

   (see para. 29)

   See: 62/75 De Wind v Commission [1976] ECR 1167, para. 17; T-557/93 Rasmussen v Commission [1995] ECRSC I-A-195 and II-603, para. 20; T-280/94 Lopes v Court of Justice [1996] ECRSC I-A-77 and II-239, para. 138; Manzo-Tafarov Commission, cited above, para. 18

3.  Although the appointing authority is entitled, for the purpose of undertaking the consideration of comparative merits which must precede any decision on promotion, to use a method consisting in comparing the analytic assessments of the officials eligible for promotion and the average of the analytic assessments of their respective directorates-general in order to eliminate the subjectivity resulting from assessments made by different reporting officers, that does not relieve it of its obligation to undertake a comparative consideration of the individual reports on the officials in question.

   However, the mere fact that the reports on the officials concerned are below the averages of the reports of their respective directorates-general does not in itself mean that those reports are ‘comparable reports’.

   (see paras 36, 37)

   See: T-187/98 Cubero Vermurìe v Commission [2000] ECR-SCI-A-195 and II-885, para. 85