JUDGMENT OF THE COURT OF FIRST INSTANCE (Single Judge)

10 June 2004

Case T-330/03

Xanthippi Liakoura

v

Council of the European Union

(Officials – Refusal of promotion – Action for annulment and compensation)

Full text in French II - 0000

Application:         for annulment of the decision of the Council not to promote the applicant to Grade C 1 in the 2002 round of promotions and for damages.

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

Summary

1.     Officials – Promotion – Complaint by an unsuccessful candidate – Decision rejecting complaint – Obligation to state reasons – Scope

(Staff Regulations, Art. 45)

2.     Officials – Promotion – Consideration of comparative merits – Discretion of the administration – Judicial review – Limits

(Staff Regulations, Art. 45)

3.     Officials – Promotion – Consideration of comparative merits – Criteria – Personal merits of candidates – Taking into consideration of all officials eligible for promotion in the same category and grade

(Staff Regulations, Arts 5, 7 and 45)

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

(Staff Regulations, Art. 45(1))

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

(Staff Regulations, Art. 90)

6.     Officials – Actions – Claim for compensation related to a claim for annulment – Dismissal of claim for annulment resulting in dismissal of claim for compensation

(Staff Regulations, Art. 91)

1.     Although the appointing authority is not under an obligation to provide unsuccessful candidates with reasons for its decision on promotion, it is required, on the other hand, to provide a statement of grounds for its decision rejecting a complaint lodged by an applicant who was not promoted, the statement of grounds for such a decision being deemed to be the same as the statement of reasons for the decision against which the complaint was directed. As, under Article 45 of the Staff Regulations, promotion involves choices, it suffices that the statement of reasons for the rejection of the complaint deals with the satisfaction of the legal conditions which under the Staff Regulations determine the regularity of the promotion.

(see paras 35-36)

See: C-343/87 Culin v Commission [1990] ECR I‑225, para. 13; C‑115/92 P Parliament v Volger [1993] ECR I‑6549, paras 22 and 23; T-6/96 Contargyris v Parliament [1997] ECR-SC I‑A‑119 and II‑357, para. 147; T-142/95 Delvaux v Commission [1997] ECR-SC I‑A‑477 and II‑1247, para. 84; T-157/98 Oliveira v Parliament [1999] ECR-SC I‑A‑163 and II‑851, para. 50

2.     For the purpose of the comparative examination of merits to be taken into consideration in making a promotion decision pursuant to Article 45 of the Staff Regulations, the appointing authority possesses a wide discretion, since under that article promotion involves choices. In that connection review by the Community judicature must be confined to the question whether, having regard to the methods and processes by which the administration may have arrived at its assessment, it kept within proper bounds and did not use its power in a manifestly incorrect way. The Court cannot therefore substitute its assessment of the qualifications and merits of officials for that of the appointing authority.

(see para. 45)

See: 282/81 Ragusa v Commission [1983] ECR 1245, paras 9 and 13; T-283/97 Thinus v Commission [1999] ECR-SC I‑A‑69 and II‑353, para. 42

3.     The requirement laid down in Article 45 of the Staff Regulations that the appointing authority consider the comparative merits of officials eligible for promotion is an embodiment of both the principle of equal treatment of officials and the principle that they are entitled to reasonable career prospects. The assessment of their merits is therefore the decisive factor here. It is clear from the letter and the spirit of Articles 5 and 7 of the Staff Regulations and from the principle of equal treatment of officials and their career progression that, when the appointing authority undertakes a comparative examination of the merits of the officials eligible for promotion, it must take into consideration all the officials eligible for promotion in the same category and grade, since that means that they are deemed to hold equivalent posts and responsibilities. Appointment in the context of a promotion procedure therefore takes into consideration, for the purpose of considering the comparative merits of the officials eligible for promotion, ‘the difference between the level of the analytical assessment of a given official and the average level of the analytical assessments of officials in the same grade and in the same department, as well as of all officials in his grade, regardless of department’, and is consistent with the principles described.

(see paras 46-48)

See: T-52/90 Volger v Parliament [1992] ECR II‑121, para. 24; T-221/96 Manzo-Tafaro v Commission [1998] ECR-SC I‑A‑115 and II‑307, para. 17

4.     Article 45(1) of the Staff Regulations provides that: ‘Promotion shall be exclusively by selection from among officials who have completed a minimum period in their grade, after consideration of the comparative merits of the officials eligible for promotion and of the reports on them.’ However, with regard to selection criteria for promotion, the appointing authority may also take into consideration candidates’ age and seniority in grade or service as a secondary factor. It follows that taking into consideration the career background of officials eligible for promotion forms part of the consideration of their comparative merits.

(see paras 49-50)

See: 298/81 Colussi v Parliament [1983] ECR 1131; 293/87 Vainker v Parliament [1989] ECR 23; Manzo-Tafaro v Commission, cited above, para. 17

5.     In actions brought by officials, the claims put before the Court may only have the same subject-matter as those made in the complaint and may not contain heads of claim based on matters other than those relied on in the complaint, even if the submissions and arguments made to the Court in support of those heads of claim do not necessarily appear in the complaint, but are closely linked to it. The purpose of the procedure prior to bringing an action provided for in Article 90 of the Staff Regulations is to facilitate the amicable settlement of disputes arising between officials and the administration. To enable such a procedure to attain its objective, the appointing authority must be in a position to know sufficiently precisely the criticisms made by those concerned against the contested decision.

(see paras 56-57)

See: 58/75 Sergy v Commission [1976] ECR 1139; 48/76 Reinarz v Commission and Council [1977] ECR 291; 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, para. 9; T-57/89 Alexandrakis v Commission [1990] ECR II‑143, paras 8 to 10

6.     In actions brought by officials, a claim for compensation for damage must be rejected where it is closely related to a claim for annulment which has itself been rejected either as inadmissible or as unfounded.

(see para. 69)

See: T-1/91 Della Pietra v Commission [1992] ECR II‑2145, para. 34; T-273/94 N v Commission [1997] ECR-SC I‑A-97 and II‑289, para. 159