JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (Third Chamber)

7 November 2007

Case F-57/06

**Jacques Hinderyckx**

**v**

**Council of the European Union**

(Civil service – Officials – Promotion – 2005 promotion exercise – Non‐inclusion in list of promoted officials – Infringement of Article 45 of the Staff Regulations – Consideration of comparative merits – Staff reports from different institutions)

**Application:**brought under Articles 236 EC and 152 EA, in which Mr Hinderyckx seeks, first, annulment of the Council appointing authority’s
decision not to promote him to Grade B\*8 in the 2005 promotion exercise, and promotion to that grade, and, second, compensation
for the harm suffered.

**Held:**The action is dismissed. The Council is ordered, in addition to its own costs, to bear one third of the applicant’s costs.
The applicant is to bear two thirds of his own costs.

**Summary**

1.      *Officials – Promotion – Complaint by an unsuccessful candidate*

*(Staff Regulations, Arts 25, second para., 45 and 90(2))*

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

*(Staff Regulations, Art. 45)*

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

*(Staff Regulations, Art. 45; Council Regulation No 723/2004)*

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

*(Staff Regulations, Art. 45)*

1.      Although the appointing authority is not obliged to give reasons for its promotion decisions to officials who have not been
promoted, it is obliged to state the reasons for its decision rejecting a complaint lodged by an official who has not been
promoted, the statement of reasons for that rejection 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.

A decision rejecting a complaint against a decision not to promote an official satisfies the requirement that it should contain
a statement of reasons if it enables the official concerned to determine whether the decision not to promote him was well
founded and whether it is appropriate to bring legal proceedings before the Community judicature, and if it enables the latter
to review the legality of the promotion decision.

As regards, more particularly, the situation of an official who has moved between institutions, even if the outstanding quality
of the official’s final staff report in his institution of origin might suggest that a fuller and more detailed statement
of reasons would be desirable, the appointing authority satisfies the requirement to state reasons if it makes it clear that
all the official’s staff reports have been taken into account in the consideration of comparative merits, if it states that
the analytical and general appraisals have been weighted in order to make allowance for the different assessors’ approaches,
and if it explains how seniority has been taken into consideration.

In any event, provided that an initial statement of reasons has been provided by the appointing authority, further explanations
may be provided in the course of the proceedings before the Tribunal.

(see paras 25-27, 31-32)

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 *Council* [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-283/97 *Thinus* v *Commission* [1999] ECR‐SC I‐A‐69 and II‐353, paras 74 to 76; T-157/98 *Oliveira* v *Parliament* [1999] ECR-SC I‐A‐163 and II‐851, para. 50; T-330/03 *Liakoura* v *Council* [2004] ECR-SC I‐A‐191 and II‐859, para. 42; T‐172/03 *Heurtaux* v *Commission* [2005] ECR-SC I‐A‐15 and II‐63, para. 44; T-171/05 *Nijs* v *Court of Auditors* [2006] ECR‐SC I-A-2-195 and II‐A‐2‐999, para. 42

2.      The appointing authority enjoys a wide discretion when considering the comparative merits of officials eligible for promotion,
and that comparative consideration, which is based particularly on staff reports, must be carried out with care and impartiality,
in the interests of the service and in accordance with the principle of equal treatment, using comparable sources of information.
To that end it has the power under the Staff Regulations to consider the merits of the candidates for promotion according
to the procedure or method it deems most appropriate.

Review by the Community Court must therefore be confined to the question whether, having regard to the bases and procedures
which may have influenced the administration in its assessment, the latter has remained within reasonable bounds and has not
used its power in a manifestly incorrect way. The Court cannot therefore substitute its assessment of the qualifications and
merits of candidates for that of the appointing authority.

(see paras 43-44)

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-187/98 *Cubero Vermurie* v *Commission* [2000] ECR-SC I‐A‐195 and II‐885, para. 59; T-132/03 *Casini* v *Commission* [2005] ECR‐SC I‐A‐253 and II‐1169, para. 52 and the case-law cited therein, and paras 53 and 54

3.      Staff reports constitute for the appointing authority, both in the version of Article 45 of the Staff Regulations prior to
the entry into force on 1 May 2004 of Regulation No 723/2004 amending the Staff Regulations of officials and the Conditions
of Employment of other servants and in the version in force from that date, an especially important basis of assessment for
the promotion of an official. The version of Article 45 of the Staff Regulations in force prior to 1 May 2004 provided that,
in addition to staff reports, a second factor to be considered comparatively for the purposes of promotion should be ‘merits’,
though it did not specify exactly what that term meant. The question was settled in the case-law, which held that the term
referred to other information on the administrative and personal situation of officials, capable of qualifying an assessment
made solely on the basis of the staff reports.

Article 45 of the Staff Regulations is now clearer about the factors to be taken into consideration for the purposes of promotion,
referring, in addition to staff reports, to the use of languages other than the language for which the officials in question
have produced evidence of thorough knowledge, and, where appropriate, the level of responsibilities exercised by them; as
a general rule, it is in the light of those three factors that the appointing authority now conducts its consideration of
the comparative merits of officials eligible for promotion, the term ‘merits’ in Article 45 of the Staff Regulations thus
having a different and, essentially, broader scope than the same term used in the version of that article applicable prior
to 1 May 2004.

Moreover, since the case-law decided prior to the entry into force of Regulation No 723/2004 has acknowledged that in assessing
the merits of officials the appointing authority may take other factors into consideration on a secondary level, such as the
candidates’ age and seniority in the grade or service, those secondary factors could still prove relevant today if officials
eligible for promotion have equal merits after the three factors expressly mentioned in Article 45 of the Staff Regulations
have been taken into consideration, and could rightly constitute a decisive factor in the appointing authority’s selection.

(see paras 45-46)

See:

T‐89/91, T‐21/92 and T‐89/92 *X* v *Commission* [1993] ECR II‐1235, paras 9 and 50; T-280/94 *Lopes* v *Court of Justice* [1996] ECR‐SC I‐A‐77 and II‐239, para. 138; 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, paras 17 and 18; T‐82/98 *Jacobs* v *Commission* [2000] ECR-SC I‐A‐39 and II‐169, paras 36 to 39; T-163/01 *Perez Escanilla* v *Commission* [2002] ECR-SC I‐A‐131 and II‐717, para. 29; T-134/02 *Tejada Fernández* v *Commission* [2003] ECR-SC I‐A‐125 and II‐609, para. 42

4.      Although the Community institutions must, first, ensure that mobility does not impair the career progress of those officials
subject thereto, and, second, examine the situation of officials who have been subject to mobility in order to ensure that
officials who have been transferred are not penalised in a promotion procedure, there is no obligation under Article 45 of
the Staff Regulations for the institution to introduce specific rules governing the situation of officials who have been subject
to mobility.

The appointing authority has the power under the Staff Regulations to promote officials according to the procedure and method
it deems appropriate. Consequently, and in view of the legal basis provided by Article 45 of the Staff Regulations and the
resulting obligation for the institutions to consider the comparative merits of candidates in all cases in the light of staff
reports in particular, an official cannot demand that an institution adopt specific rules organising the procedure and method
for comparing officials reported on within that institution with officials who have joined the institution after being reported
on by another institution. Nor, in that context, may an official complain that the institution in question used its power
in a manifestly incorrect way in failing to adopt such a regulatory framework, without providing evidence that there was,
in the absence of such measures, a genuine risk of arbitrary treatment in the consideration of the officials’ comparative
merits. Moreover, contrary to Article 43 of the Staff Regulations concerning staff reports in particular, there is no obligation
under Article 45 of the Staff Regulations to adopt a regulatory framework on the implementation of the promotion procedures,
even if certain institutions have regulated those procedures by means of internal decisions.

(see paras 55, 59-60)

See:

*Cubero Vermurie* v *Commission*, paras 68 and 69; T‐216/03 *Tenreiro* v *Commission* [2004] ECR-SC I‐A‐245 and II‐1087, paras 92 and 95