CELEX: 62005TJ0113
Public service
Officials
Rejection of application
Action for annulment
Action for damages

1.
Officials – Vacancy – Filled by promotion or transfer – Consideration of candidates’ comparative merits
(Staff Regulations, Arts 29(1) and 45(1))
2.
Actions for annulment – Pleas in law – Breach of essential procedural requirements – To be considered of the Court’s own motion
(Art. 230, second para., EC)
1.
The appointing authority has a broad discretion when comparing the merits of candidates for transfer or promotion, in particular
where the post to be filled is at a very high level, corresponding to Grade A 1 or A 2. However, that broad discretion brings
with it, for the Community authority which enjoys it, the obligation to observe the guarantees conferred by the Community
legal order in administrative procedures, including the obligation of examining carefully and impartially all the matters
relevant to the particular case.
That discretion must therefore be exercised with scrupulous observance of the relevant regulations, in other words not just
of the vacancy notice, but also of any procedural rules which the authority has adopted for the exercise of its discretion
and which constitute part of the legal framework which the appointing authority must rigorously observe in exercising its
broad discretion. Only in that way is the Community judicature able to ascertain whether the elements of fact and of law on
which the exercise of the discretion depends were present.
(see paras 60-61)
See: C-269/90
Technische Universität München
[1991] ECR I‑5469, para. 14; T‑203/97
Forvass
v
Commission
[1999] ECR-SC I‑A‑129 and II‑705, para. 45; T‑95/01
Coget and Others
v
Court of Auditors
[2001] ECR-SC I‑A‑191 and II‑879, para. 113; T‑158/01
Tilgenkamp
v
Commission
[2002] ECR-SC I‑A‑111 and II‑595, para. 50; T‑73/01
Pappas
v
Committee of the Regions
[2003] ECR-SC I‑A‑207 and II‑1011, para. 53; T-88/04
Tzirani
v
Commission
[2006] ECR-SC I‑A-2-149 and II-A-2-703, paras 77 and 78
2.
Failure to observe procedural rules relating to the adoption of a measure, laid down by the competent institution itself,
constitutes a breach of essential procedural requirements within the meaning of the second paragraph of Article 230 EC, which
may be considered by the Community judicature, even of its own motion. Where essential procedural requirements, which are
fundamental to legal certainty, are breached, annulment of the vitiated act follows. It is of little account in that respect
that the content of the vitiated act would have been the same without that defect.
A decision of the Bureau of the European Parliament appointing an official to a grade A 2 post, adopted without observing
the institution’s internal rules laying down the various stages of the procedure for appointing senior officials, must therefore
be annulled. That finding is not invalidated by the argument that since it laid down the procedural rules itself, Parliament’s
Bureau could, if it deemed it necessary, depart from them. An institution may not depart from internal rules which it has
laid down for itself without formally amending those rules.
(see paras 62, 74-76)
See: 68/86
United Kingdom
v
Council
[1988] ECR 855, paras 48 and 49; C‑286/95 P
Commission
v
ICI
[2000] ECR I‑2341, para. 52; T‑465/93
Consorzio gruppo di azione locale Murgia Messapica
v
Commission
[1994] ECR II‑361, para. 56; T‑228/99 and T‑233/99
Westdeutsche Landesbank Girozentrale and Land Nordrhein-Westfalen
v
Commission
[2003] ECR II‑435, para. 143 and the case-law cited therein