JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (First Chamber)

17 February 2009

Case F-51/08

**Willem Stols**

**v**

**Council of the European Union**

(Civil service – Officials – Promotion – 2007 promotion procedure – Consideration of comparative merits – Manifest error of assessment)

**Application:**brought under Articles 236 EC and 152 EA, in which Mr Stols seeks annulment of the Council’s decision of 16 July 2007 refusing
to include him on the list of officials promoted to grade AST 11 for the 2007 promotion procedure, together with the decision
of the Deputy Secretary General of the Council of 5 February 2008 rejecting his complaint lodged on the basis of the provisions
of Article 90(2) of the version of the Staff Regulations in force since 1 May 2004.

**Held:**The decisions of 16 July 2007 and 5 February 2008 by which the Council refused to promote the applicant to grade AST 11 under
the 2007 promotion procedure are annulled. The Council is ordered to pay the costs.

**Summary**

1.      *Officials – Promotion – Consideration of comparative merits*

*(Staff Regulations, Art. 45)*

2.      *Officials – Promotion – Consideration of comparative merits*

*(Staff Regulations, Art. 45)*

1.      The wide discretion allowed to the administration to evaluate the merits to be taken into consideration in connection with
a decision on promotion pursuant to Article 45 of the Staff Regulations is circumscribed by the need to undertake a comparative
consideration of candidatures with care and impartiality, in the interests of the service and in accordance with the principle
of equal treatment. In practice, such consideration of the comparative merits of candidatures must be undertaken on a basis
of equality, using comparable sources of information; it should also be made clear that the periodic report constitutes an
indispensable criterion of assessment each time the official’s career is taken into consideration for the purpose of adopting
a decision concerning his promotion. To that end, the appointing authority has power under the Staff Regulations to undertake
that comparative consideration according to the procedure or method which it considers most appropriate. In undertaking the
consideration of comparative merits provided for in Article 45 of the Staff Regulations, the appointing authority is not bound
to rely solely on the staff reports of the candidates but may also base its assessment on other aspects of the merits of the
candidates such as other information relating to their administrative and personal situation, of such a kind as to qualify
the assessment made solely on the basis of the staff reports.

In addition, the method of assessment which consists in comparing the average analytical assessments of the officials eligible
for promotion with the average analytical assessments of their respective directorates-general is also lawful, in so far as
it tends to eliminate the subjectivity resulting from assessments made by different reporting officers.

Since merit is the decisive factor for all promotions, age and seniority may be taken into consideration only as a secondary
factor, except where the merits are equal, in which case those additional criteria may constitute a decisive factor.

(see paras 28-32)

See:

62/75 *de Wind* v *Commission* [1976] ECR 1167, para. 17; C-68/91 P *Moritz* v *Commission* [1992] ECR I‐6849, para. 16

T‐89/91, T‐21/92 and T‐89/92 *X* v *Commission* [1993] ECR II‐1235, paras 49 and 50; T-76/92 *Tsirimokos* v *Parliament* [1993] ECR II‐1281, para. 21; T-557/93 *Rasmussen* v *Commission* [1995] ECR‐SC I‐A‐195 and II‐603, paras 20 and 30; T-280/94 *Lopes* v *Court of Justice* [1996] ECR-SC I‐A‐77 and II‐239, para. 138; T‐130/95 *X* v *Commission* [1996] ECR-SC I‐A‐603 and II‐1609, para. 45; T-168/96 *Patronis* v *Council* [1997] ECR-SC I‐A‐299 and II‐833, para. 35; T-221/96 *Manzo-Tafaro* v *Commission* [1998] ECR-SC I‐A‐115 and II‐307, para. 18; T-157/98 *Oliveira* v *Parliament* [1999] ECR-SC I‐A‐163 and II‐851, para. 35; T-82/98 *Jacobs* v *Commission* [2000] ECR-SC I‐A‐39 and II‐169, paras. 36 to 39; T-187/98 *Cubero Vermurie* v *Commission* [2000] ECR-SC I‐A‐195 and II‐885, paras 59 and 85; T-163/01 *Perez Escanilla* v *Commission* [2002] ECR-SC I‐A‐131 and II‐717, para. 36; T-188/01 to T-190/01 *Tsarnavas* v *Commission* [2003] ECR-SC I‐A‐95 and II‐495, para. 97; T-134/02 *Tejada Fernández* v *Commission* [2003] ECR-SC I‐A‐125 and II‐609, para. 42; T-241/02 *Callebaut* v *Commission* [2003] ECR-SC I‐A‐215 and II‐1061, paras 22 and 23; T-132/03 *Casini* v *Commission* [2005] ECR-SC I‐A‐253 and II‐1169, paras 53 to 57

2.      A decision refusing to promote an official on the ground that his merits are less than those of the officials promoted, whereas
the factors constituting the official’s merit taken into consideration by the administration under the new provisions of Article
45 of the Staff Regulations, namely periodic reports, knowledge of languages and level of responsibilities exercised, manifestly
invalidate that ground, is vitiated by a manifest error of assessment.

(see paras 36-41)