Judgment — ECLI:EU:T:2002:311
Date: 2002-12-12
Language of the case: French
Court formation: Third Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Concepts: Assessment of the administration;Procedure for drawing up the staff report/appraisal;Effect of the outcome of the action for annulment;Specific cases;Purpose;Ex post regularisation of an inadequate statement of reasons;Consideration of applications;Judicial review;Plea alleging misuse of powers;General
Procedure: Staff cases - unfounded;Action for damages - successful

SUMMARY - CASET-136/00 
Summary 
1. Officials - Decision adversely affecting an official - Rejection of an application 
for a post - Obligation to provide a statement of reasons at the latest by the stage 
of rejection of the complaint - Scope - Failure to comply - Rectification during 
legal proceedings - Condition 
(Staff Regulations, Arts 25, second para., 45 and 90(2)) 
2. Officials — Notice of vacancy — Purpose - Consideration of the comparative 
merits of candidates - Administration 's discretion — Limits - Compliance with the 
requirements laid down in the vacancy notice 
(Staff Regulations, Art. 29) 
3. Officials - Promotion - Simplified procedure introduced within the Commission 
- Directors-general acting as the appointing authority - Hearing of the 
director-general concerned by the Advisory Committee on Appointments -
Lawfulness 
(Staff Regulations, Arts 7 and 45) 
4. Officials - Promotion - Consideration of comparative merits - Procedure -
Consideration of staff reports - Incomplete personal file - Consequences 
(Staff Regulations, Arts 43 and 45) 
5. Officials - Promotion - Consideration of comparative merits - Criteria -
Interests of the service - Personal merits of candidates - Appointing authority's 
discretion — Review by the Court - Limits 
(Staff Regulations, Art. 45) 
6. Officials - Actions - Pleas in law - Misuse of powers - Concept 
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MORELLO v COMMISSION 
7. Officials - Actions - Claim for compensation directly connected with an 
application for annulment - Admissible notwithstanding failure to follow a 
pre-litigation procedure consistent with the Staff Regulations 
(Staff Regulations, Arts 90 and 91) 
8. Officials - Reports procedure - Staff report - Drawing up - Delay - Breach 
of administrative duty giving rise to non-material damage - Conditions 
(Staff Regulations, Art. 43) 
1. Although the appointing authority is not under an obligation to provide 
unsuccessful candidates with reasons for its decisions on promotion, it is required 
to provide reasons for its decision to reject a complaint made under Article 90(2) 
of the Staff Regulations by a candidate who was not promoted, the reasons for that 
decision being deemed to be identical to those of the decision against which the 
complaint was directed. 
Since, under Article 45 of the Staff Regulations, promotion is 'by selection', the 
appointing authority is neither required to disclose to the unsuccessful candidate 
details of the comparison of his merits and those of the candidate who is promoted 
nor to set out in detail in what way it considered that the appointed candidate 
fulfilled the conditions in the vacancy notice, but it is enough that the reasons given 
relate to the existence of the legal conditions which the Staff Regulations lay down 
as a prerequisite for a lawful promotion. In a promotion procedure, the statement 
of reasons must therefore relate, not to the respective qualities of the candidates, but 
solely to the validity of the promotion. 
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SUMMARY - CASE T-136/00 
Although the total absence of a statement of reasons for the rejection of the 
candidature of an official applying for a post by way of promotion cannot be 
remedied by explanations provided by the appointing authority after an action has 
been brought before the Court, a merely inadequate statement of reasons provided 
in the course of the pre-litigation procedure is not such as to justify annulment of 
the contested decision where additional information is provided by the administration 
during the proceedings. 
(see paras 30, 33, 36) 
See: 188/73 Grassi v Council [1974] ECR 1099, para. 14; C-316/97P Parliament v 
Gaspari [1998] ECR I-7597, para. 29; T-52/90 Volger v Parliament [1992] ECR II-121, 
para. 40; confirmed on appeal in C-115/92 P Parliament v Volger [1993] ECR I-6549, 
paras 22 to 24; T-25/92 Vela Palacios v ESC [1993] ECR II-201, para. 26; T-16/94 
Benecos v Commission [1995] ECR-SC I-A-103 and II-335, para. 36; T-118/95 Anacoreta 
Correia v Commission [1996] ECR-SC I-A-283 and II-835, para. 82; T-37/94 Benecos 
v Commission [1996] ECR-SC I-A-461 and II-1301, paras 39 to 46; T-178/95 and 
T-179/95 Picciolo and Caló v Committee of the Regions [1997] ECR-SC I-A-51 and 
II-155, para. 34; T-71/96 Berlinguieri Vinzekv Commission [1997] ECR-SC I-A-339 and 
II-921, paras 79 to 84; T-86/98 Gouloussis v Commission [2000] ECR-SC I-A-5 and 
II-23, paras 73 to 77; T-230/99 McAuley v Council [2001] ECR-SC I-A-127 and II-583, 
para. 52 
2. The essential function of the vacancy notice is to give those interested the most 
accurate information possible about the conditions of eligibility for the post to enable 
them to judge whether they should apply for it. The vacancy notice is also intended 
to establish the legal framework within which the appointing authority will 
undertake consideration of the comparative merits of the candidates, provided for 
in Article 45(1) of the Staff Regulations. 
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MORELLO v COMMISSION 
The appointing authority fails to respect that framework if it decides on the 
particular conditions required to fill the vacant post only after the vacancy notice has 
been published, regard being had to the candidates who have come forward, and if 
it takes into consideration, when examining the candidatures, requirements other 
than those set out in the vacancy notice, since such a course of action would deprive 
the vacancy notice of the essential function which it must fulfil in the recruitment 
procedure. 
(see paras 61, 63, 66) 
See: C-81/88 Müllers v ESC [19901 ECR I-249, para. 20; T-169/89 Frederiksen v 
Parliament [1991] ECR II-1403, para. 67; T-16/94 Benecos v Commission, cited above, 
para. 18; T-159/96 Wenk v Commission [19981 ECR-SC I-A-193 and II-593, para. 25 
3. The fact that, since the reform decentralising promotion and appointment 
measures was introduced within the Commission, directors-general have acted as the 
appointing authority does not remove the requirement and still less the opportunity, 
for the Advisory Committee on Appointments to hear the director-general 
concerned. The purpose of hearing the director-general concerned is to inform the 
Advisory Committee on Appointments about the qualifications required for the post 
to be filled and about the assessment of the candidates' merits, which does not 
detract either from the independence of the Advisory Committee on Appointments 
when adopting its opinion or from that of the director-general in question, in his 
capacity as the appointing authority, when adopting the final decision at a later 
stage. The fact that, following the reform, the director-general concerned is now 
empowered to take appointment decisions, after consulting the President and two 
other Members of the Commission, does not alter the nature of, and fundamental 
reason for, the hearing of the director-general by the Advisory Committee on 
Appointments. 
(see para. 77) 
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SUMMARY — CASE T-136/00 
4. The periodic report constitutes an indispensable criterion of assessment each time 
an official's career is taken into consideration for the purpose of adopting a decision 
concerning his promotion. 
The promotion procedure is tainted with irregularity if the absence of a periodic 
report is not due to the normal course of the reporting procedure but to a substantial 
delay in the latter which is attributable to the administration. However, such an 
irregularity is such as to result in annulment of the decision adopted following the 
promotion procedure only in so far as the absence of the periodic report may have 
had a decisive effect on that procedure, in particular where that absence could not 
be compensated for by means of other information relating to the merits of the 
official who was unsuccessful. 
The absence of a candidate's periodic report alone does not give rise to an 
obligation on the appointing authority to delay the appointment or promotion 
decision, since that authority may seek to obtain other material and base its 
assessment on other aspects of the candidates' merits, such as information about 
their administrative and personal situation. 
(see paras 82, 84, 87, 88) 
See: 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, para. 49; T-58/92 Moat v Commission 
[1993] ECR II-1443, para. 59; T-18/93 Marcato v Commission [1994] ECR-SC I-A-215 
and II-681, para. 73; T-82/98 Jacobs v Commission [2000] ECR-SC I-A-39 and II-169, 
paras 34 and 36; T-202/99 Rappe v Commission [2000] ECR-SC I-A-201 and II-911, 
paras 40 and 45 
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MORELLO v COMMISSION 
5. In assessing the interests of the service and the qualities to be taken into 
consideration in the context of the decision referred to in Article 45 of the Staff 
Regulations, the appointing authority possesses a wide discretion and, in that 
connection, the Community judicature must restrict itself to consideration of 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. 
The Court may not substitute its assessment of the qualifications of the candidate 
appointed for that of the appointing authority. 
In that regard, the fact that an official has obvious and acknowledged merits does 
not exclude the possibility that, in the context of consideration of the candidates' 
comparative merits, other officials may have higher merits. Neither the fact of 
having occupied the post concerned in an acting capacity nor length of service in the 
lower grade constitute decisive factors overriding the interests of the service, which 
is the decisive criterion determining the choice of candidates to be promoted. 
(see paras 98, 101) 
See: 282/81 Ragusa v Commission [1983] ECR 1254, para. 9; C-446/00 P Cubero 
Vermurie v Commission [2001] ECR I-10315, para. 21 ; C-309/01 P Council v McAuley 
[2001], not published in the ECR, para. 18; T-112/96 and T-115/96 Séché v Commission 
[1999] ECR-SC I-A-1 15 and II-623, para. 62; T-152/00 E v Commission [2001] ECR-SC 
I-A-179 and II-813, para. 29 
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SUMMARY — CASE T-136/00 
6. The concept of misuse of powers refers to cases where an administrative 
authority has used its powers for a purpose other than that for which they were 
conferred on it. A decision may amount to a misuse of powers only if it appears, 
on the basis of objective, relevant and consistent evidence, to have been taken for 
purposes other than those stated. 
The fact that the official appointed following the publication of a vacancy notice did 
not take up his post does not support the conclusion that the institution concerned 
exercised its powers for purposes other than those stated. 
(see paras 113, 120) 
See: T-176/97 Hick v ESC [1998] ECR-SC I-A-281 and II-845, paras 27 to 34; Séché v 
Commission, cited above, para. 139; T-111/99 Samper v Parliament [2000] ECR-SC 
I-A-135 and II-611, para. 64 
7. Where there is a direct link between an action for annulment and a claim for 
compensation, the latter may be declared admissible as incidental to the action for 
annulment, without necessarily having to be preceded both by a request from the 
person concerned to the appointing authority for compensation for the damage 
allegedly suffered and by a complaint challenging the validity of the rejection of that 
request. 
(see para. 128) 
See: T-17/90, T-28/91 and T-17/92 Cámara Alloisio and Others v Commission [1993] 
ECR II-841, para. 46; T-36/93 Ojha v Commission [1995] ECR-SC I-A-161 and II-497, 
para. 115 
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MORELLO v COMMISSION 
8. The absence, as a result of a delay in its compilation, of a periodic report from 
an official's personal file may give rise, on his part, to non-material damage not 
only if his career may have been affected thereby but also if that circumstance put 
him in an uncertain and anxious state of mind with regard to his professional future. 
(see para. 132) 
See: 61/76 Geist v Commission [19771 ECR 1419: 140/87 Bevan v Commission [19891 
ECR 701; T-73/89 Barbi v Commission [1990) ECR II-619; T-386/94/Allo v Commission 
[19961 ECR-SC I-A-393 and II-1161. para. 76 
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