JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(First Chamber)

24 March 2011 ([\*](#Footnote*))

(Civil service — Officials — Promotion — 2009 promotion exercise — Decision not to promote — Consideration of comparative merits — Manifest error of assessment — Action for annulment — Action for damages)

In Case F-104/09,

ACTION brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof,

**Diego Canga Fano,** an official of the Council of the European Union, residing in Brussels (Belgium), represented by S. Rodrigues and C. Bernard-Glanz,
lawyers,

applicant,

v

**Council of the European Union,** represented by M. Bauer and K. Zieleśkiewicz, acting as Agents,

defendant,

THE CIVIL SERVICE TRIBUNAL (First Chamber),

composed of S. Gervasoni, President, H. Kreppel and M.I. Rofes I Pujol (Rapporteur), Judges,

Registrar: R. Schiano, Administrator,

having regard to the written procedure and further to the hearing on 14 September 2010,

gives the following

**Judgment**

1        By application lodged at the Registry of the Tribunal on 21 December 2009 by fax (the original having been received on 23
December 2009), Mr Canga Fano brought the present action for annulment of the decision not to promote him to grade AD 13 under
the 2009 promotion exercise and for an order that the Council of the European Union pay him the sum of EUR 200 000 by way
of compensation for the non-material and professional damage which he claims to have sustained.

**Legal context**

2        Article 45(1) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) provides:

‘Promotion shall be by decision of the appointing authority in the light of Article 6(2) [of the Staff Regulations]. It shall
be effected by appointment of the official to the next higher grade in the function group to which he belongs. Promotion shall
be exclusively by selection from among officials who have completed a minimum of two years in their grade after consideration
of the comparative merits of the officials eligible for promotion. When considering comparative merits, the appointing authority
shall in particular take account of the reports on the officials, the use of languages in the execution of their duties other
than the language for which they have produced evidence of thorough knowledge in accordance with Article 28(f) [of the Staff
Regulations] and, where appropriate, the level of responsibilities exercised by them.’

**Facts giving rise to the dispute**

3        It is apparent from the case-file that the applicant entered the service of the General Secretariat of the Council (‘the GSC’)
on 1 September 1991 as an official in grade A 7. He was promoted most recently to grade A 4 (now grade AD 12) on 1 June 2001.
Since 1 April 1994 he has been assigned to the Council’s Legal Service. However, during the period from 1 October 1999 to
30 September 2003, he was seconded in the interest of the service to the cabinet of Ms de Palacio, a member of the Commission
of the European Communities. Following that period of secondment, the applicant rejoined the Legal Service in the ‘External
Relations’ team, then from 1 October 2007 in team 1B ‘Coreper I’. Since 1 June 2008 the applicant has been on secondment in
the interest of the service to the cabinet of Mr Tajani, a member of the Commission, where he holds the post of Deputy Head
of Cabinet.

4        By Notice to Staff No 50/09 of 5 March 2009 the GSC informed the officials of the material made available to the advisory
committees on promotion for the 2009 promotion exercise and also of the measures adopted in order to implement Article 45
of the Staff Regulations. Annex 2 to that notice stated, for each grade, the number of promotions possible in 2009 and Annex
3 contained the list of officials eligible for promotion. Thus, according to Annex 2, there were 19 posts to be filled in
grade AD 13 for administrators assigned to general duties, while there were 91 officials in grade AD 12 assigned to general
duties on the list in Annex 3, where the applicant was placed 20th in order of seniority in grade.

5        According to Notice to Staff No 50/09, the advisory committees on promotion had at their disposal, inter alia, the staff reports
on each official eligible for promotion from the time of his appointment to grade AD 12 to the most recent report available,
namely the staff report for the period from 1 July 2006 to 31 December 2007 (‘the 2006-07 staff report’).

6        The GSC attached to Notice to Staff No 54/09 of 10 March 2009 statistics relating to the 2006-07 appraisal period in particular,
Table 2.1, containing statistics drawn up according to the grades of the officials (‘Table 2.1’), and Table 3.1, corresponding
to statistics by directorate-general/directorate/large department (‘Table 3.1’). According to Notice to Staff No 54/09, those
statistics had also been communicated to the advisory committees on promotion.

7        On completion of its work, the advisory committee on promotion for function group AD (officials assigned to posts as administrator)
submitted to the appointing authority a list — relating to administrators assigned to general duties — containing the names
of the 19 officials proposed for promotion to grade AD 13 (‘the list of officials promoted to grade AD 13’), 10 of whom had
less seniority in grade than the applicant. The applicant was not on that list.

8        By Notice to Staff No 94/09 of 27 April 2009 the appointing authority informed officials that it had decided to follow the
opinion expressed by the advisory committee on promotion and to promote to grade AD 13 the 19 officials proposed.

9        By letter of 27 May 2009 the applicant, referring to Article 90(1) of the Staff Regulations, challenged the decision not to
promote him apparent from Notice to Staff No 94/09.

10      By decision of 24 September 2009, notified to the applicant the following day, the appointing authority classified the letter
of 27 May 2009 as a complaint within the meaning of Article 90(2) of the Staff Regulations and rejected it.

**Forms of order sought by parties**

11      The applicant claims that the Tribunal should:

–        declare the present application admissible;

–        annul the appointing authority’s decision not to include him in the list of officials promoted to grade AD 13, apparent from
Notice to Staff No 94/09;

–        annul, in so far as necessary, the appointing authority’s decision rejecting his complaint;

–        order the Council to pay the applicant:

–        a sum fixed on equitable grounds at EUR 150 000 by way of compensation for non-material damage, together with default interest
at the statutory rate from the date on which such sum becomes payable;

–        a sum fixed on equitable grounds at EUR 50 000 by way of compensation for damage to his professional career, together with
default interest at the statutory rate from the date on which such sum becomes payable;

–        order the Council to pay the costs.

12      The Council contends that the Tribunal should:

–        dismiss the action as unfounded;

–        order the applicant to pay all the costs.

**Procedure**

13      The applicant requested the Tribunal to ask the Council, by way of measures of organisation of procedure provided for in Articles 55
and 56 of the Rules of Procedure, to produce the staff reports of the 19 officials promoted to grade AD 13. The Tribunal decided
to grant that request in part.

14      Thus, the Council was initially asked, by letter of the Registry of the Tribunal of 15 June 2010, to answer a number of written
questions and to produce the anonymised staff reports on the 10 officials with less seniority in grade than the applicant
whose names were on the list of officials promoted to grade AD 13 (‘the 10 officials concerned’).

15      By letter received at the Registry of the Tribunal on 6 July 2010 by fax (the original having been received on 12 July 2010),
the Council answered those questions and supplied the anonymised staff reports on the 10 officials concerned for the period
from the time of their appointment to grade AD 12 to their staff report for the exercise 1 July 2006 to 31 December 2007.
The Council also sent the Tribunal a synoptic table setting out the information extracted from the last two staff reports
on the applicant and on each of the 10 officials concerned, identified by letters A to J. That table contains, for each of
those staff reports, a description of the functions and/or level of responsibilities exercised, an extract from the general
assessments and the average of the analytical assessments. The table also indicates the languages used in the execution of
their duties (‘the synoptic table’).

16      Next, the parties were invited, in the preparatory Report for the Hearing, which was sent to them by letter from the Registry
of the Tribunal of 23 July 2010, to provide the Tribunal, before the hearing, with their observations in support of their
arguments in the light of the documents produced by the Council in answer to the measures of organisation of procedure. The
applicant complied with that request by letter received at the Registry of the Tribunal on 31 August 2010 by fax (the original
having been lodged on 2 September 2010), while the Council’s observations were received at the Registry of the Tribunal on
1 September 2010 by fax (the original having been lodged on 6 September 2010).

17      In his reply, the applicant complained that the reproductions of the various staff reports supplied did not make it possible
in all cases to distinguish clearly the mark attributed to the criteria ‘Productivity’ and ‘Speed in performing tasks’.

18      Before the hearing, the President of the First Chamber asked the applicant’s representative whether he accepted the averages
of the analytical assessments in the synoptic table, which included the marks — relating to the two criteria mentioned in
the preceding paragraph — assigned to each of the 10 officials concerned or whether, on the contrary, he requested that those
reproductions be communicated in a more legible form.

19      The applicant’s representative stated that he agreed that those averages should be considered correct and waived the right
to have the pages of the staff reports containing a figure that was not readily legible communicated again.

**Subject-matter of the action**

20      In addition to the annulment of the appointing authority’s decision not to include him in the list of officials promoted to
grade AD 13, the applicant seeks annulment of the appointing authority’s decision of 24 September 2009 rejecting the claims
in the applicant’s letter of 27 May 2009, which was classified by the appointing authority as a complaint within the meaning
of Article 90(2) of the Staff Regulations (‘the decision of 24 September 2009’).

21      In that regard, it should be borne in mind that a claim for annulment formally directed against the rejection of a complaint
has the effect of bringing before the Tribunal the act against which the complaint was submitted, where that claim, as such,
lacks any independent content (judgment of 29 September 2009 in Case F-102/07 *Kerstens* v *Commission*, paragraph 31 and the case-law cited).

22      In the present case, as the claim for annulment of the decision of 24 September 2009, as such, lacks any independent content,
the action must be deemed to be directed against the appointing authority’s decision not to include the applicant in the list
of officials promoted to grade AD 13, apparent from Notice to Staff No 94/09 (‘the contested decision’).

**The claim for annulment**

23      The applicant relies on two pleas in law in support of his claim for annulment. The first plea alleges breach of Article 45(1)
of the Staff Regulations in that the appointing authority made a number of manifest errors of assessment. The second plea
alleges misuse of power and of procedure.

*First plea, alleging breach of Article 45(1) of the Staff Regulations*

 Arguments of the parties

24      The applicant maintains that the appointing authority made a manifest error of assessment when carrying out a comparative
examination of the staff reports. In so far as 10 of the 19 officials promoted had less seniority in grade than the applicant
and it is only in the alternative that the appointing authority can take the age and seniority in grade or service into account
those 10 officials must, in order to be promoted, necessarily have been more deserving than the applicant. However, there
is a real body of evidence such that it would be unlikely that 10 persons having less seniority in grade than the applicant
would have greater merits.

25      In the applicant’s submission, his staff reports from the time of his appointment to grade AD 12 until his report for the
period 1 July 2006 to 31 December 2007 are particularly complimentary, the last report stating expressly that ‘he deserves
to be promoted to a higher grade’. The fact that he has not been promoted since 2001 is therefore ‘clearly a departure from
the norm’. In the 2006-07 staff report the applicant obtained, in his analytical assessments, an average of 2, which is significantly
better than the average score of AD 12 officials in the GSC and that of officials in the Legal Service. Last, the fact that
he carried out perfectly his task as chair of the selection board for competitions EPSO/AD/46/06 and EPSO/AD/47/06 for the
recruitment of lawyers in grade AD 5 from Romania and Bulgaria and that he speaks five languages ought to demonstrate the
extent of his merits.

26      The applicant also takes issue with the appointing authority for having made a manifest error of assessment in that it failed
to take his linguistic abilities into account. The applicant asserts that, apart from the minimum required, that is to say,
English and French, he speaks three other languages. Those additional qualities ought to have been taken into account in the
examination of his merits.

27      Last, in the applicant’s submission, the appointing authority also made a manifest error of assessment in so far as it failed
to take into consideration, among the applicant’s responsibilities, the fact that he chaired the selection board for competitions
EPSO/AD/46/06 and EPSO/AD/47/06, referred to above, notice of which was published in June 2006 and the list of successful
candidates in December 2007. The applicant claims that the chairmanship of the selection boards for those competitions, which
had a large number of candidates and which had entailed an increased workload for the applicant, in addition to his duties
within the Legal Service, was an important, difficult and delicate task, which he was able to bring to a successful conclusion.
There was no negative effect on the quality of his work in the Legal Service. The fact that he accomplished that task, which
is not an insignificant matter, constitutes a significant achievement that ought to have had a substantial impact on the evaluation
of his merits.

28      The Council contends that this plea should be rejected as unfounded.

 Findings of the Tribunal

29      It should be borne in mind at the outset that, pursuant to Article 45(1) of the Staff Regulations, when considering comparative
merits of officials eligible for promotion, the appointing authority is in particular to take account of the reports on the
officials, the use of languages in the execution of their duties other than the language for which they have produced evidence
of thorough knowledge and, where appropriate, the level of responsibilities exercised by them.

30      The Tribunal has held that, in a sphere in which the administration has a wide discretion, the express reference to those
criteria in Article 45 of the Staff Regulations shows the particular importance which the legislature attached to their being
taken into account (judgment of 31 January 2008 in Case F-97/05 *Buendía Sierra* v *Commission*, paragraph 62). The particular reference in Article 45(1) of the Staff Regulations to the level of responsibilities exercised
by the official seems to acquire even greater significance because the General Court, in its judgment of 12 July 2001 in Case
T-131/00 *Schochaert* v *Council*, paragraph 43, had held that the fact of taking as a decisive criterion the level of responsibilities exercised by the officials
eligible for promotion was contrary to Article 45(1) in the version in force before 1 May 2004 (judgment of 5 May 2010 in
Case F-53/08 *Bouillez and Others* v *Council*, paragraph 49).

31      Furthermore, the Tribunal has held, first, that the provisions of Article 45(1) of the Staff Regulations applicable from 1
May 2004 are clearer, with respect to the elements to be taken into consideration for the purposes of promotion, than the
provisions of that article in the version in force before that date, since, in addition to referring to the staff reports,
they refer to the use of languages other than the language for which the officials concerned have produced evidence of thorough
knowledge and, where appropriate, the level of responsibilities exercised. The Tribunal has held, second, that in principle
it is in the light of those three elements that the appointing authority must now consider the comparative merits of the officials
eligible for promotion, the word ‘merits’ in Article 45(1) of the Staff Regulations thus having a different and substantively
wider scope than the same word used in the version of that article applicable before 1 May 2004 (judgment of 7 November 2007
in Case F-57/06 *Hinderyckx* v *Council*, paragraph 45). The Tribunal has also held that the expression ‘where appropriate’ simply means that while, in principle,
officials in the same grade are supposed to hold posts involving equivalent duties and responsibilities, where that is not
in fact the case that circumstance must be taken into consideration in the promotion procedure (see, to that effect, *Bouillez and Others* v *Council*, paragraph 56).

32      The appointing authority may, as a subsidiary matter, where the merits of the officials eligible for promotion are equal,
on the basis of the three elements expressly referred to in Article 45(1) of the Staff Regulations, take into account other
elements, such as candidates’ age and their seniority in grade or in the service (*Bouillez and Others* v *Council*, paragraph 50).

33      Last, it must be borne in mind that, according to consistent case-law, the appointing authority has, for the purposes of considering
the comparative merits of officials who are candidates for promotion, a wide discretion and that review by the Courts of the
European Union must be limited to ascertaining whether, regard being had to the ways and means that led the administration
to its assessment, it remained within unimpeachable limits and did not manifestly misuse its power. The Courts cannot therefore
substitute their own assessment of the candidates’ qualifications and merits for that of the appointing authority (judgment
of 15 September 2005 in Case T-132/03 *Casini* v *Commission*, paragraph 52).

34      However, the wide discretion thus conferred on the administration is limited by the need to consider candidates’ comparative
merits carefully and impartially, in the interest of the service and in accordance with the principle of equal treatment.
In practice, that examination must be carried out on a basis of equality, using comparable sources of information (*Casini* v *Commission*, paragraph 53).

35      It is therefore in the light of those principles that the Tribunal must examine whether the contested decision is vitiated
by a manifest error of assessment. In that regard, the Tribunal observes that, without prejudice to the practical effect that
the appointing authority’s discretion must be acknowledged to have, an error is manifest where it is easily recognisable and
can be readily detected, in the light of the criteria to which the legislature intended decisions on promotion to be subject.

36      It is apparent from the documents in the file that under the system of promotion applied at the Council the appointing authority
has a wide discretion when considering the comparative merits of officials who are candidates for promotion.

37      In the present case, in order to deliver its opinion, on which the appointing authority relied, the advisory committee on
promotion for function group AD had before it, in particular, the staff reports drawn up on each official eligible for promotion
from the time of his appointment to grade AD 12 until his staff report for the period 1 July 2006 to 31 December 2007, career
histories, summaries of leave taken on the ground of sickness or accident during the last three years and also Tables 2.1
and 3.1.

38      Furthermore, while it is true that the applicant, in the arguments which he develops in support of the first plea, refers
to the 19 officials promoted to grade AD 13, and that he asked the Tribunal to request communication of the staff reports
on those 19 officials, it is apparent from the file that he disputes, in fact, the appointing authority’s consideration of
the comparative merits of the applicant and the 10 officials concerned.

39      Indeed, at paragraphs 25, 32 and 33 of the application, the applicant asserts that the assessment of merits is the decisive
criterion of any promotion and that it is only as a subsidiary matter, where the merits are equal, that the appointing authority
may take candidates’ age and seniority in grade or service into account. Since 10 of the 19 officials promoted had less seniority
in grade AD 12 than the applicant, the likelihood that they had greater merits is in his view very small.

40      Likewise, at no time in the procedure, or in the written observations submitted before the hearing in the light of the Council’s
response to the measures of organisation of procedure, or during the hearing, did the applicant take issue with the fact that
the Tribunal had limited those measures to the staff reports on the 10 officials concerned, nor did he refer to the 9 officials
whose seniority in grade AD 12 was greater than the applicant’s, whose staff reports the Tribunal had not requested the Council
to produce.

41      The first plea of breach of Article 45(1) of the Staff Regulations must therefore be understood as alleging that the appointing
authority made errors of assessment when considering the comparative merits of the applicant and the 10 officials concerned.

42      For the purpose of undertaking a comprehensive examination of the relevance of this plea, it is appropriate to analyse not
only the staff reports but also the other evidence in the file relating to the use of languages and the level of responsibilities
exercised.

–       The staff reports

43      The applicant has produced, inter alia, the staff reports relating to him from his appointment to grade AD 12 to the staff
report for 2006-07, with the exception of the staff report for the period 1 October 2003 to 31 December 2004. When questioned
on that point at the hearing, the applicant expressed doubt as to the existence of a staff report covering that period and
indicated that the explanation might be that, on 1 October 2003, when he rejoined the Legal Service following his secondment
to the Commission, the appraisal procedure at the Council was already in progress.

44      In the first place, as regards the analytical assessments, it is apparent from the Council’s observations of 1 September 2010
that the advisory committee on promotion essentially took into account the analytical assessments corresponding to the 2006-07
reports on the applicant and the 10 officials concerned. Those analytical assessments are divided into 13 headings, which
must be graded with the comment ‘excellent’, ‘very good’, ‘good’, ‘fair’ or ‘unsatisfactory’.

45      In Staff Notice No 54/09 it is stated that the grades ‘excellent’, ‘very good’, ‘good’, ‘fair’ and ‘unsatisfactory’ correspond
to the numbers ‘1’, ‘2’, ‘3’, ‘4’ and ‘5’ respectively. The numbered grades were used in preparing statistics, in particular
Tables 2.1 and 3.1, which show the average marks established respectively according to grade and by directorate-general. It
follows from Table 2.1 that the average mark obtained by officials in grade AD 12 was 2.28.

46      Indeed, the average of the applicant’s analytical assessments for the period from 1 July 2006 to 31 December 2007, namely
2, was significantly better than the average mark mentioned in the preceding paragraph. That element is indicative of the
quality of the applicant’s merits as regards the last appraisal period taken into account for the purpose of the 2009 promotion
exercise.

47      It is apparent from the documents in the file that in their 2006-07 staff reports 4 of the 10 officials concerned, namely
A, E, I and J, obtained an average in their analytical assessments which is lower than the applicant’s and therefore better
(1.77 for the first of those officials and 1.92 for the other three). Three of the 10 officials concerned, namely B, C and
H, had an average of 2, like the applicant, while the average obtained by officials D, F and G was higher than the applicant’s
and therefore not as good (2.15 for the first and 2.08 for the other two).

48      It must be observed, however, that the discrepancy between the average of the applicant’s analytical assessments and the —
worse — average of the latter three officials is in a very narrow margin, so that that discrepancy may be regarded, in the
present case, as negligible.

49      The applicant maintains that the fact that 4 of the 10 officials concerned obtained a lower average in their analytical assessments
than the applicant’s average must be placed in perspective, in so far as those officials work in directorates-general in which,
according to Table 3.1, the appraisal was lower than the average mark in the GSC.

50      In that regard, it must be held that, as is apparent from that table, the average mark obtained by officials of the Legal
Service, namely 2.35, is very close to the general average mark of the GSC, which is 2.36. It also follows from the documents
in the file that the four officials promoted with analytical assessments the average of which is lower than the applicant’s
belong to directorates-general in which the average mark is between 2.21 and 2.30, and therefore at a lower level than that
in the Legal Service. According to that table, the average marks of the various directorates-general vary between 2.05 (the
best) and 2.63 (the least good).

51      It is therefore true that the four officials referred to above belong to directorates-general in which the assessors were
more ‘generous’ with all their staff than the assessors in the Legal Service. The fact none the less remains that the lowest
average mark in those directorates-general is 2.21, or 0.15 below the general average mark in the GSC and 0.14 of a point
below the average mark in the Legal Service, while the average marks in the various directorates-general differ by 0.58 of
a point.

52      Against that background, it should be observed that the difference pointed out in the preceding paragraph between the average
mark of the appraisal in the Legal Service and that in the directorates-general to which the four officials promoted whose
analytical assessments are, on average, better than the applicant’s belong cannot be decisive for the grant of promotion.

53      First, the average marks established by directorates-general are calculated by reference to the number of officials in each
one, without any distinction between officials according to their grade, the function group to which they belong or whether
or not they are eligible for promotion during the exercise in question. Second, the average of the analytical assessments
constitutes only part of the data which the advisory committee on promotion takes into account when considering the comparative
merits.

54      The applicant claims, moreover, that in the evaluation of his merits the fact that he had acted as chair of the selection
board in competitions EPSO/AD/46/06 and EPSO/AD/47/06 was not taken into account. The applicant emphasised at the hearing
that that task entailed a considerable increase in his workload, which he carried out without any adverse effect on his normal
activities within the Legal Service of the Council.

55      It must be observed, in that regard, first, that the applicant’s 2006-07 staff report expressly mentions, in the description
of the tasks performed by the applicant, that ‘[d]uring a large part of the reference period, [the applicant] chaired the
selection board for competitions [EPSO/AD/46/06 and EPSO/AD/47/06] (lawyers)’. Second, as regards the analytical assessment
of the quality of the applicant’s work in the same staff report, the applicant was awarded an ‘excellent’, whereas in his
staff report for the period 1 January 2005 to 30 June 2006 he was given only a ‘very good’.

56      It follows that both the first two assessors who acted as ‘first assessor’ and drew up the applicant’s staff report and the
second assessor were aware of the additional effort made by the applicant during the reference period. The improvement in
the analytical assessment of the quality of the applicant’s work referred to above, moreover, appears to indicate that his
acting as chair of the selection board in those competitions was indeed taken into account when his 2006-07 staff report was
drawn up.

57      In the second place, as regards the general assessments, it is true that the general assessments in the applicant’s staff
reports since his appointment to grade AD 12 are expressed in particularly glowing terms. Thus, in his 2006-07 staff report,
the first assessor who appraised the applicant for the period 1 July 2006 to 30 September 2007 states that the applicant is
‘an outstanding colleague’ and ‘an excellent lawyer’. In addition, the first assessor who appraised the applicant for the
period 1 October to 31 December 2007 states that he has an ‘exceptional knowledge of Community law’, that ‘his particularly
well-developed capacity for comprehension and judgement enable him to provide legal opinions, both orally and in writing,
of a very high level’ and adds that ‘[h]e deserves to be promoted to the next higher grade’.

58      However, it is apparent from the file that the general assessments expressed in the staff reports on the 10 officials concerned
since their appointment to grade AD 12 are equivalent to the applicant’s. The Tribunal has seen no remark that would indicate
that their merits were less.

59      It should likewise be noted that phrases such as ‘the official concerned deserves to be promoted or to be given increased
responsibilities’ appear, for several of the 10 officials concerned, in their staff reports before their 2006-07 staff reports.
However, such appraisals on the part of the first assessors cannot bind the appointing authority as regards the grant of promotion
to the official concerned, which is confirmed by the fact that, in spite of receiving such appraisals, none of those officials
was promoted before the 2009 exercise.

60      Indeed, the rules applicable to the assessment procedure do not provide that the assessors are to comment on whether the official
being appraised deserves to be promoted. Where the assessors take the initiative to recommend promotion for one or other of
the members of their team, they are expressing a view that cannot bind the appointing authority, in so far as promotion can
be awarded only after consideration of the comparative merits of all the officials of an institution who are eligible for
promotion to the same grade. Consequently, such appraisals cannot have the same weight as those resulting from elements which
the assessor is required to appraise, and the appointing authority is entitled to promote an official when it considers that
such promotion is justified, even in the absence of comments in favour of promotion expressed in the official’s staff report.

61      For the sake of completeness, the observation that the applicant deserves promotion must be placed in perspective in so far
as it was made by a first assessor whose appraisal covered only 3 of the 18 months of the period being assessed.

62      In his observations received at the Registry of the Tribunal on 31 August 2010, the applicant also claims that in one of the
staff reports placed on the file by the Council, according to which the official being appraised deserves to be promoted,
the second assessor stated that he agreed with the written observations of the first assessor, but that he considered that
the analytical assessments awarded were inconsistent with the instructions given. However, in so far as the second assessor
did not alter the analytical assessments, the Tribunal must consider that they were endorsed by the latter.

63      In the light of the foregoing, it must be held that a comparative examination of the staff reports does not clearly demonstrate
that the other officials were not more deserving than the applicant.

–       Use of languages

64      As regards the use of languages, the applicant claims that he speaks five languages and takes issue with the appointing authority
for not having attributed sufficient importance to his linguistic abilities.

65      With respect to those linguistic abilities, the Council states in its defence that the criterion of the use of languages ‘constitutes
rather a subsidiary criterion which makes it possible to distinguish between candidates whose staff reports are equivalent’.

66      However, in the light of Article 45(1) of the Staff Regulations, it is clear that the criterion relating to the use by officials
in the exercise of their duties of languages other than the language for which they have produced evidence of thorough knowledge
is not a subsidiary criterion, in the sense that it is only where the officials eligible for promotion have equal merits that
that criterion might constitute a decisive factor in the appointing authority’s choice.

67      In its response of 6 July 2010 to the measures of organisation of procedure, the Council stated that ‘the relative weight
of each of the elements taken into account is not precisely determined’ and that the appointing authority’s choice was based
on an overall assessment of the merits of officials in which the staff reports taken as a whole and the level of responsibilities
carried the greatest weight, while the use of languages was taken into account in the consideration of comparative merits
at a weight ‘well below’ the two elements referred to above. At the hearing the Council confirmed that the use of languages
is one of the first criteria to be taken into account in the examination of merits, but that that criterion carries less weight
than the other two. Likewise, the defendant emphasised that the appointing authority did not compare each of the criteria
in isolation, but that, for each candidate, it made an overall and weighted assessment of those criteria.

68      In that regard, the Tribunal observes that it is true that the administration has a certain discretion as to the respective
importance that it ascribes to each of the three criteria provided for in Article 45(1) of the Staff Regulations, as that
provision does not preclude the possibility of weighting.

69      As regards the languages employed in the execution of duties, the Tribunal observes that the applicant does not specify whether
he used the five languages referred to above in the execution of his duties during the period examined, namely between 1 June
2001 and 31 December 2007.

70      In that regard, it should be observed that the applicant’s 2006-07 staff report states, in the first part, Section III, entitled
‘Languages’:

‘[The applicant], a native Spanish speaker, regularly works in French and English, both orally and in writing. He sometimes
also works in German (orally).’

71      At the hearing the applicant stated that, during the period examined for the purposes of the 2009 promotion exercise, he used
German, Italian and Portuguese only orally, in or in connection with meetings.

72      As regards the concept of languages used, the Tribunal observes that, according to the sheet providing information on knowledge
of languages, which has the headings ‘understanding’, ‘spoken [language]’ and ‘written [language]’, attached to the 2006-07
staff report and completed by the applicant on 29 January 2007, the applicant stated that he had very good knowledge of French
and English, but, as regards German, only a good ability to understand the language, a good level of the spoken language and
a fair level in written language and, as regards Italian, only a good ability to understand the language and a fair level
of spoken and written language. Last, still according to that information sheet, the applicant’s knowledge of Portuguese is
limited to a fair level of understanding.

73      In his letter of 27 May 2009 the applicant states that he now has good knowledge of Italian, which is one of the working languages
which he uses most owing to his role as Deputy Head of Cabinet of Mr Tajani, a member of the Commission, a post which he has
held since 1 June 2008.

74      However, as the Council quite rightly observes in its decision of 24 September 2009, the advisory committee on promotion could
not take into consideration elements relating to a period after the last staff report of the officials eligible for promotion,
namely the staff report covering the period from 1 July 2006 to 31 December 2007. In addition, the only elements relating
to languages which the advisory committee on promotion had available were the staff reports on each official eligible for
promotion from the time of his appointment to grade AD 12 until to the 2006-07 staff report. In accordance with the principle
of equal treatment, neither that committee nor the appointing authority could therefore allow officials who were not promoted
to rely on elements on which the other officials eligible for promotion had been unable to rely.

75      It must therefore be held that the applicant’s claims at the hearing concerning his knowledge of spoken Italian and Portuguese
do not coincide with the information relating to his knowledge of languages in the sheet attached to the 2006-07 staff report.
According to that sheet, the applicant states that he has a fair knowledge of spoken Italian, while the boxes corresponding
to his concepts of Portuguese, as a spoken language, are not even completed.

76      While it is true that that sheet was completed on 29 January 2007 and could not therefore apply to the applicant’s knowledge
of languages on 31 December 2007, the Tribunal observes that the applicant himself insists that his abilities in Italian are
now at the same level as his abilities in French and English. The applicant therefore implicitly admits that on 31 December
2007 his abilities in Italian were less good than they are now. In any event, the applicant adduces no evidence to demonstrate
that on 31 December 2007 his knowledge of spoken Italian and Portuguese had improved since January 2007. The Tribunal can
therefore reasonably consider that on that date the applicant’s abilities in spoken Italian and Portuguese were not sufficiently
high to be taken into account for the purposes of the comparison of linguistic merits.

77      It must therefore be concluded that at the end of the period examined by the advisory committee on promotion, namely on 31
December 2007, in addition to Spanish, as his mother tongue, the applicant had a command of French and English. He also had
a good knowledge of German, although his knowledge of written German was limited, and he had a good understanding of Italian.
As for the use of those languages, while it is true that the applicant occasionally spoke German, the fact remains that he
used only two languages regularly in his work, namely English and French.

78      In that regard, it is apparent from the documents in the file that, among the 10 officials concerned, all used English and
French in the execution of their duties. Contrary to the Council’s contention, however, not all those officials had a perfect
command of those two languages and among those having English or French as their mother tongue not all had a command of at
least one third language. It is none the less clear from the file that all those without a command, or a perfect command,
of the languages concerned had at least a good knowledge of them.

79      Consequently, the applicant’s knowledge of languages appears to be essentially equivalent to that of the 10 officials concerned
in the execution of their duties.

–       The level of responsibilities exercised

80      As regards the level of responsibilities exercised, it is apparent from the file that all the 10 officials concerned, with
the exception of official B, carried out management functions during the period from 1 July 2006 to 31 December 2007. Those
nine officials exercised the functions of head of unit or coordinated de facto the work of a team in sensitive areas. The
applicant and official B worked during that period as lawyers in the Council’s Legal Service.

81      It must be held, consequently, that 9 of the 10 officials concerned executed duties involving, in terms of management, a higher
level of responsibilities than the applicant’s, while the duties of the 10th official, official B, were at the same level.

82      In that context, the applicant maintains that any additional tasks entrusted to officials eligible for promotion must be examined
as the responsibilities assumed in the performance of their duties. Thus, he emphasises that, during the period between June
2006 and December 2007, namely for most of the period examined in the 2006-07 staff report, he acted as chair of the selection
board for competitions EPSO/AD/46/06 and EPSO/AD/47/06, which entailed an increased workload in addition to his duties within
the Legal Service. Practically none of the 10 officials concerned assumed equivalent additional tasks. Accordingly, the applicant
maintains that the appointing authority made a manifest error of assessment in so far as it did not sufficiently take into
account, in the assessment of the applicant’s merits, the fact that the applicant, in addition to performing his normal tasks,
had chaired the selection board for those competitions.

83      The Tribunal must therefore ascertain whether, in the light of the management duties and the high level of responsibilities
executed by 9 of the 10 officials concerned, the merits of those officials seem to be greater than the applicant’s, taking
account of the fact that the applicant assumed the additional task referred to above.

84      In that regard, it is common ground that the task of chairing the selection board for competitions EPSO/AD/46/06 and EPSO/AD/47/06
is evidence not only of an increased workload, over and above the duties which the applicant was required to execute within
the Legal Service, but also of a high level of responsibilities, as, moreover, the Council acknowledges. However, as the Council
submits, the fact of chairing a selection board is a temporary task. While it is true that that task extended over a considerable
time, in fact one and a half years, the fact remains that, according to the documents in the file, the nine officials who
were promoted performed management functions on a permanent basis and had done so for longer. Thus, six of them had carried
out management functions since at least 1 July 2003, while two had done so since at least 1 January 2005. Last, one official
had been seconded to the Special Representative of the European Union for the Great Lakes Region since 1 February 2004 and,
in the context of his duties, the Council states that he assumed a very high level of responsibilities.

85      In the light of the foregoing, the Tribunal considers that the additional task carried out by the applicant, which indeed
is praiseworthy, does not prevail, in the global assessment of merits, over management functions exercised permanently and
over a long period.

86      The Tribunal must also ascertain whether the Council made a manifest error of assessment when undertaking an overall comparison
of the applicant’s merits, and in particular of the level of responsibilities exercised, with those of official B.

87      It is apparent from the file that official B had occupied grade AD 12 from 1 January 2004 and that, during the period between
that date and 31 December 2007, he was a member of the Council’s Legal Service. It follows that, during the period 1 October
2003, the date on which the applicant rejoined the Legal Service following his secondment, to 31 December 2007, the applicant
and official B were attached to the same service and executed duties with a similar level of responsibility.

88      It is clear from the file, and the point was emphasised by the Council at the hearing, that, during the period referred to
above, official B, like the applicant, had to carry out additional tasks. During the appraisal procedure for the period 1 July
2003 to 31 December 2004, official B was a marker for certain tests in an EPSO competition and he participated in the secretariat
of the intergovernmental conference, notably in the updating of the draft Treaty establishing a Constitution for the European
Union. In the Council’s submission, the latter task constituted work the scale and volume of which were comparable to chairing
a selection board for an EPSO competition. At the hearing the Commission also emphasised that official B was an extremely
sound lawyer, who was extraordinarily reliable and had remarkably deep powers of analysis.

89      In that regard, it must be borne in mind that, as indicated at paragraph 33 of the present judgment, the appointing authority
has a wide discretion and review by the Courts of the European Union must be limited to ascertaining whether the appointing
authority remained within unimpeachable limits and did not manifestly misuse its power.

90      In the light of all the foregoing considerations, it must be held that it is not readily apparent that, on the basis of the
overall assessment of the criteria laid down in Article 45(1) of the Staff Regulations, the merits of official B were not
greater than the applicant’s. It cannot therefore be considered that the balance ought clearly to have come down in favour
of the applicant.

91      It follows from all the foregoing that the first plea must be rejected as unfounded.

*Second plea, alleging misuse of power and of procedure*

 Arguments of the parties

92      The applicant maintains that he is able to supply sufficient precise, objective and consistent indicia from which it appears
that the contested decision was taken for the purposes of covertly penalising him, contrary to Articles 37 and 38 of the Staff
Regulations, for having been on secondment in the interest of the service to the Commission since 1 June 2008. The applicant
emphasises that the fact of applying his abilities in the service of a cabinet of a member of the Commission is a merit and
an asset, which ought to have been taken into consideration at the time of the consideration of the comparative merits of
the officials eligible for promotion. In refusing to take account of that merit, and also of the precarious nature of his
secondment, the Council penalised him twice, thus misusing its power, the misuse of procedure being only one form of such
misuse of power.

93      The Council contends that the applicant produces no evidence to support his argument and that it is therefore unable to respond
to this plea.

 Findings of the Tribunal

94      First of all, it must be observed that the applicant was seconded to the Commission in June 2008, on a date after the period
covered by the last staff report taken into account for the 2009 promotion exercise, namely the 2006-07 staff report. Since
the advisory committees on promotion could examine only the merits which officials eligible for promotion had shown up to
31 December 2007, that secondment could not be assessed under the 2009 promotion exercise.

95      Furthermore, it has been held on numerous occasions that a measure is vitiated by misuse of powers only if it appears, on
the basis of objective, relevant and consistent evidence, to have been taken with the exclusive or main purpose of achieving
an end other than that stated or evading a procedure specifically prescribed by the Treaty (judgment of 11 July 2007 in Case
F-105/05 *Wils* v *Parliament*, paragraph 119 and the case-law cited).

96      In the present case, as the Council correctly observes, the applicant has not established, or even alleged, the existence
of such evidence. Indeed, he merely claims that he is more deserving than the 10 officials concerned. However, that argument
is not such as to demonstrate that the contested decision was drawn up for the sole purpose of harming him.

97      For the sake of completeness, it is apparent from the file that the applicant was promoted to grade A 4 (now AD 12) in 2001,
when he was on secondment in the interest of the service to the Commission, and to grade AD 13 in 2010, while he was on secondment
in the interest of the service to the cabinet of Mr Tajani. The latter promotion may be taken into account here, even though
it came after the date of the adoption of the contested decision, since it provides evidence of the conditions in which that
decision was taken. In the light of that promotion, it must be held that the applicant cannot validly contend that his secondments
in the interest of the service resulted in covert penalties in that they prevented his being promoted.

98      Consequently, it is not established that the contested decision was adopted for purposes unconnected with the promotion procedure
and that it is vitiated by misuse of power.

99      It follows from the foregoing that the second plea must also be rejected as unfounded.

100    It follows that the claim for annulment must be rejected.

**The claim for compensation**

*Arguments of the parties*

101    The applicant claims that the fact that he was not promoted in the 2009 promotion exercise caused him to sustain serious harm,
both professional harm and non-material damage. Not only did he lose one year (to be capitalised for the progress of his career
and future promotions), but he was also denied the opportunity to accede to posts requiring grade AD 13. The applicant estimates
that this professional harm amounts to EUR 50 000. In addition, that failure to be awarded promotion caused significant stress
that contributed to undermining his health, which was already delicate owing to serious illness. That non-material damage
comes to EUR 150 000.

102    The Council contends that this claim for compensation for professional and non-pecuniary harm should be rejected.

*Findings of the Tribunal*

103    According to consistent case-law relating to the civil service, a claim for compensation for damage must be dismissed where
there is a close connection between it and a claim for annulment which has been rejected as unfounded (judgment of 12 March
2009 in Case F-104/06 *Arpaillange and Others* v *Commission*, paragraph 137 and the case-law cited).

104    In the present case, the claim for annulment has been rejected as unfounded. It follows that the claim for compensation must
be dismissed.

105    It follows that the action must be dismissed in its entirety.

**Costs**

106    Under Article 87(1) of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title II of those
rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
Under Article 87(2), if equity so requires, the Tribunal may decide that an unsuccessful party is to pay only part of the
costs or even that he is not to be ordered to pay any.

107    It follows from the reasons set out above that the applicant is the unsuccessful party. Furthermore, in its pleadings the
Council has expressly requested that the applicant be ordered to pay the costs. Since the circumstances of this case do not
warrant application of the provisions of Article 87(2) of the Rules of Procedure, the applicant must be ordered to pay the
costs.

On those grounds,

THE CIVIL SERVICE TRIBUNAL (First Chamber)

hereby:

1.      **Dismisses the action;**

2.      **Orders Mr Canga Fano to pay all the costs.**

| | | |
| --- | --- | --- |
| Gervasoni | Kreppel | Rofes i Pujol |

Delivered in open court in Luxembourg on 24 March 2011.

| | | |
| --- | --- | --- |
| W. Hakenberg | | S. Gervasoni |

| | | |
| --- | --- | --- |
| Registrar | | President |

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[\*](#Footref*) Language of the case: French.