CELEX: 62002TJ0197
Officials
Refusal to promote
Consideration of comparative merits
Annulling judgment
Implementing measures
Article 233 EC
Application for annulment and for compensation

1.
Officials – Promotion – Consideration of the comparative merits – Fresh consideration of merits for a promotion round organised
following an annulling judgment – Rules – Merits to be considered by members of the Advisory Committee on Promotions set up
for the round in question – Absence of certain members – No effect
2.
Officials – Promotion – Consideration of the comparative merits – Rules – Right of appointing authority to ask Advisory Committee
on Promotions for further information and documents
(Staff Regulations, Art. 45(1))
3.
Officials – Actions – Annulling judgment – Effects – Obligation to adopt measures to comply with a judgment – Scope – Consideration
of both the grounds and the operative part of the judgment – Judgment annulling a refusal to promote because the comparative
merits were not properly considered – Obligation to consider merits properly
(Art. 233 EC)
4.
Officials – Promotion – Candidates eligible for promotion – Right to promotion – None
(Staff Regulations, Art. 45(1))
5.
Officials – Promotion – Discretion of the administration – Judicial review – Limits
(Staff Regulations, Art. 45)
6.
Officials – Promotion – Complaint by an unsuccessful candidate – Decision rejecting complaint – Statement of reasons
(Staff Regulations, Art. 90(2))
7.
Officials – Non-contractual liability of the institutions – Conditions – Fault of the administration – Damage – Causal link
1.     There are no provisions of the Staff Regulations or of the Parliament’s Internal Guidelines for Promotions Advisory Committees
which require that, where a fresh consideration of the comparative merits of an official eligible for promotion is necessary
following an annulling judgment, it must be carried out by the same members of the Advisory Committee on Promotions as those
who met to put forward proposals for promotion in the promotions round during which an irregularity occurred, provided that
they are all members duly appointed by the decision establishing the composition of the Advisory Committee on Promotions for
that round.
Furthermore, the appointment within the Advisory Committee on Promotions of members and alternates is designed to facilitate
the continuity of the Committee’s work and the holding of its meetings even if certain members are unable to attend or unavailable.
It cannot be claimed that a meeting was irregular or that the institution infringed the principle of equal representation
merely because certain representatives appointed by the Staff Committee, having been duly invited to attend, did not do so.
(see paras 24-25)
2.     The appointing authority has the right, or even a duty, to ask the Advisory Committee on Promotions for any additional documents
and clarifications it feels appropriate or necessary in order to assess the reports on the officials eligible for promotion
and their other merits objectively and as accurately as possible.
(see para. 31)
3.     In order to comply with a judgment annulling a measure and to implement it fully, the institution is required to have regard
not only to the operative part of the judgment but also to the grounds which led to the judgment and constitute its essential
basis, in so far as they are necessary to determine the exact meaning of what is stated in the operative part. A judgment
annulling a decision not to promote an official because of irregularities in the consideration of the comparative merits which
affected the promotion procedure does not mean that the applicant must be promoted. In order to implement the judgment, the
institution concerned is only required to take a fresh decision on the applicant in the promotions round in question and,
to that end, to carry out a proper consideration of the comparative merits.
(see paras 52-54)
See: 97/86, 99/86, 193/86 and 215/86
Asteris and Others
v
Commission
[1988] ECR 2181, para. 27; C-458/98 P
Industrie des poudres sphériques
v
Council
[2000] ECR I-8147, para. 81; T-182/99
Caravelis
v
Parliament
[2001] ECR II-1313, paras 41 and 45
4.     The Staff Regulations do not confer a right to promotion, even on officials who meet all the conditions for promotion.
(see para. 57)
See: T-3/92
Latham
v
Commission
[1994] ECR-SC I-A-23 and II-83, para. 50; T-262/94
Baiwir
v
Commission
[1996] ECR-SC I-A-257 and II-739, para. 67
5.     When considering the comparative merits to be taken into account in deciding on promotion pursuant to Article 45 of the Staff
Regulations, the appointing authority possesses a wide discretion and may undertake such consideration using the procedure
or method it regards as most appropriate. In that regard review by the Community judicature must be confined to the question
whether, having regard to the methods and procedures used by the administration to make its assessment, the latter has remained
within reasonable bounds and has not manifestly misused its power. The Court cannot therefore substitute its assessment of
the qualifications and merits of officials for that of the appointing authority.
(see paras 58-59)
See: T-22/99
Rose
v
Commission
[2000] ECR-SC I-A-27 and II-115, para 55;
Caravelis
v
Parliament
, para. 30, and the case-law cited
6.     Although the appointing authority is not under an obligation to provide unsuccessful candidates with reasons for its decision
on promotion, it must, on the other hand, give reasons for its decision to reject a complaint lodged by an unsuccessful candidate
pursuant to Article 90(2) of the Staff Regulations.
(see para. 68)
See: T-6/96
Contargyris
v
Council
[1997] ECR-SC I-A-119 and II-357; T-117/01
Roman Parra
v
Commission
[2002] ECR-SC I-A-27 and II-121, para. 25
7.     Non-contractual liability on the part of the Community is subject to a number of conditions relating to the illegality of
the conduct alleged against the Community institutions, actual damage and the existence of a causal link between the conduct
of the institution and the damage complained of.
(see para. 76)
See: 111/86
Delauche
v
Commission
[1987] ECR 5345, para. 30; T-165/89
Plug
v
Commission
[1992] ECR II-367, para. 115