Judgment — ECLI:EU:T:2000:15
Date: 2000-01-26
Language of the case: Greek
Court formation: Second Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Concepts: Assessment of the administration;Specific cases;General;Ex post regularisation of an inadequate statement of reasons;Appointing authority
Procedure: Staff cases - unfounded

SUMMARY - CASE T-86/98 
Summary 
1. Officials - Promotion - Procedure - Compliance - Grade A 2 post at the 
Commission - Powers conferred on the appointing authority - Exercise 
(Staff Regulations, Art. 45) 
2. Officials - Promotion - Consideration of comparative merits - Predictions 
concerning the promotion of a candidate 
3. Officials — Promotion — Criteria — Geographical equilibrium - Posts in Grade 
A 1 and A 2 — Filling thereof in consideration of candidates' nationality -
Prohibition - Appointment of a candidate on the basis that his merits are greater 
than those of other candidates — Admissibility 
(Staff Regulations, Art. 27, third para.) 
4. Officials — Actions — Prior administrative complaint — Pre-litigation procedure 
- Administrative nature 
(Staff Regulations, Arts 90 and 91) 
5. Officials - Decision adversely affecting an official - Rejection of a candidature 
- Obligation to state reasons no later than at the stage of rejecting the complaint 
- Non-compliance — Regularisation in the course of the litigation proceedings 
(Staff Regulations, Art. 25, second para, and Art. 90(2)) 
1. Where the powers conferred on the appointing authority by the Staff Regulations 
are exercised by the college of Commissioners, the fact that the decision to appoint 
an official in Grade A 2 was prepared by the Advisory Committee on Appointments 
and the members' cabinets and then approved by the college of Commissioners 
without any detailed discussion at that level of the merits of the various candidates 
cannot be regarded as an irregularity vitiating the appointment procedure. If the 
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GOULOUSSIS v COMMISSION 
members of the Commission were required to make systematic use of their power 
to consider all candidates in all procedures for the appointment of officials in Grade 
A 2, they would be prevented from taking advantage of the reduced workload 
resulting from the way in which the preparations for their meetings are currently 
organised in the cabinets. This arrangement corresponds with a long-established 
procedure based on an obvious interest in arriving at a preliminary provisional 
agreement among the cabinets, which does not compromise the legitimacy of any 
final decisions taken by the Commission or interfere with the college's freedom to 
take decisions. 
(see paras 25 and 26) 
See: T-112/96 Séché v Commission [1999] ECR-SC 11-623, para. 56 
2. In a promotion procedure, the fact that mere predictions are made concerning the 
appointment or promotion of an official, even if they subsequently prove correct, 
does not in any way establish that that official was chosen in advance and appointed 
to the vacant post without the appointing authority having first considered the 
candidates' comparative merits. 
(see paras 42 and 43) 
See: T-496/93 Allo v Commission [1995] ECR II-405, para. 46 
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SUMMARY - CASE T-86/98 
3. The rule in the third paragraph of Article 27 of the Staff Regulations that no post 
is to be reserved for nationals of any specific Member State must also be observed 
in regard to Grade A 1 and A 2 posts. 
However, any infringement of that article is precluded if the official concerned was 
appointed to the vacant post on the basis that his merits were greater than those of 
other candidates. 
(see paras 45 to 47) 
See: T-58/91 Booss and Fischer v Commission [1993] ECR II-147, para. 85, and the 
case-law cited there 
4. The purpose of the pre-litigation procedure provided for in Articles 90 and 91 of 
the Staff Regulations is to give the parties the opportunity to find an amicable 
solution to the dispute. In that procedure the Community institution exercises an 
administrative function and not a judicial function. The latter function is reserved 
for the Court of First Instance (and then, where appropriate, the Court of Justice), 
before which an action may be brought when the parties do not succeed in finding 
an amicable solution to the dispute. 
(see para. 61) 
See: T-124/94 Maurissen v Court of Auditors [1996] ECR-SC II-1229, para. 60 
5. Although the appointing authority is not under an obligation to provide 
unsuccessful candidates with reasons for its decision on promotion, it is required to 
provide reasons for its decision to reject a complaint lodged by an applicant who 
was not promoted. 
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GOULOUSSIS v COMMISSION 
In certain circumstances, the failure to state the reasons for a decision rejecting a 
candidature for a post is not of such a kind as to justify annulment. That is so 
where the person concerned challenges only the belated communication of the 
reasons on which the decision was based and where, shortly after bringing his 
action, he obtained a reasoned reply to his complaint and does not contend that it 
was inadequate. The belated communication of the reasons cannot in itself affect 
the intrinsic lawfulness of the decision rejecting the candidature of the person 
concerned for the vacant post. 
Furthermore, where the Court annuls the decision rejecting the candidature of an 
applicant for a vacant post on the ground that it did not state the reasons on which 
it was based, the institution must adopt a fresh and properly reasoned decision. 
Since the person concerned has already received such a reasoned decision in the 
form of the reply to his complaint, albeit belatedly, he can derive no advantage from 
annulment. 
(see paras 73 to 77) 
See: T-159/96 Wenk v Commission [1998] ECR-SC II-593, para. 114 
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