Judgment — ECLI:EU:F:2011:120
Date: 2011-07-14
Language of the case: French
Court formation: Second Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Staff cases - unfounded;Staff cases - inadmissible;Action for damages - unfounded

Summary 1. Officials – Promotion – Conditions – Officials who have reached the reference threshold – Right to automatic promotion – None (Staff Regulations, Art. 45) 2. Officials – Promotion – Consideration of comparative merits – Administration’s discretion – Judicial review – Limits (Staff Regulations, Art. 45) 3. Officials – Promotion – Statement of reasons – Obligation in respect of Advisory Promotion Committee where decision departs from its recommendation (Staff Regulations, Art. 45) 4. Officials – Promotion – Complaint by a candidate who has not been promoted – Decision rejecting the complaint – Obligation to state the reasons on which the decision is based (Staff Regulations, Arts 25, second para., 45 and 90(2)) 1. It cannot be inferred from points I.3.2 and I.3.3 of the decision of the European Parliament relating to the ‘Policy on promotion and career planning’, as most recently amended by the decision of the Bureau of 21 April 2008, that outside the situations referred to in those provisions officials who have reached the reference threshold are automatically promoted in the current promotion exercise. Such an interpretation would infringe Article 45 of the Staff Regulations, which requires the appointing authority to consider the comparative merits of officials eligible for promotion in the light of the criteria listed. An implementing measure of general application must be interpreted, where possible, in accordance with the provisions of the act on which it is based. Point I.3.3 of the decision should therefore be interpreted as meaning only that officials in one of the situations it describes cannot on any view be promoted, even if they have reached the reference threshold. Lastly, the principle of protection of legitimate expectations cannot be relied on in order to justify a practice that is contrary to a provision of the Staff Regulations. (see paras 51, 67) See: 24 June 1993, C-90/92 Dr Tretter, para. 11 13 April 2011, T-576/08 Germany v Commission, para. 103 2. When considering the comparative merits to be taken into consideration with a view to possible promotion under Article 45 of the Staff Regulations, the appointing authority possesses a wide discretion and the court’s review, in that context, must be confined to the question whether, regard being had to the various considerations which have influenced the administration in making its assessment, the latter has remained within reasonable limits and has not used its power in a manifestly incorrect way, so that the General Court cannot substitute its assessment of the qualifications and merits of the officials for that of the appointing authority. The latter also has the power to consider the comparative merits of officials according to the procedure or method which it considers the most appropriate. It is not bound to rely solely on the staff reports of the officials concerned, but may also base its assessment on other aspects of their merits. (see para. 53) See: 1 July 1976, 62/75 Wind v Commission, para. 17 13 July 1995, T-557/93 Rasmussen v Commission, para. 20 15 September 2005, T-132/03 Casini v Commission, paras 55 and 152 3. Under the terms of the first paragraph of Article 5(2) of the internal directives adopted by the Secretary-General of the Parliament on 19 October 2005, members of the Advisory Promotion Committee are informed of the decisions taken by the appointing authority, which is required to provide a written statement of reasons whenever it departs from the Committee’s opinion. If a note was sent by the appointing authority to the chairman of the Promotion Committee making it clear that the merits of the officials not promoted had not improved enough to justify promotion, that statement of reasons is sufficient to satisfy the requirements of the first paragraph of Article 5(2) of the internal directives. In any event, even supposing that a procedural irregularity was established under the first paragraph of Article 5(2) of the internal directives, which deals with relations between the appointing authority and the Advisory Promotion Committees, it would not be capable of calling into question the legality of the contested decision not to promote, since failure to comply with the first paragraph of Article 5(2) of the internal directives could not have influenced the content of that decision. (see paras 60-62) 4. The appointing authority is not obliged to give reasons for a promotion decision, either to the person promoted or to the candidates who have not been promoted. Moreover, the reasons for a decision to reject a complaint are deemed to be the same as those for the decision against which the complaint was directed. Consequently, where the dispute concerns a challenge to a decision refusing to promote an official, the grounds for that decision, which are not, as a rule, stated, are revealed by the decision rejecting the complaint, enabling the official to be aware of the appointing authority’s arguments. (see paras 75, 77) See: 20 February 2002, T-117/01 Roman Parra v Commission, para. 25 9 December 2009, T-377/08 P Commission v Birkhoff, para. 55