Judgment — ECLI:EU:T:2000:190
Date: 2000-07-13
Language of the case: Italian
Court formation: Second Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Concepts: Assessment of the administration;Mandatory nature;Judicial review;General
Procedure: Staff cases - unfounded;Staff cases - inadmissible

Summary 
1. Officials — Actions — Prior administrative complaint — Mandatory — Action 
directed against refusal to make an appointment - Claim for annulment of the 
decision to appoint another candidate, adopted on the basis of a new vacancy notice 
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SUMMARY — CASE T-24/99 
— Decision not having been the subject of a complaint - Inadmissible 
(Staff Regulations, Arts 90 and 91) 
2. Officials - Promotion - Consideration of comparative merits - Discretion of 
the administration - Limits - Compliance with the conditions laid down by 
vacancy notice - Account taken of qualities not expressly indicated - Qualities 
directly relevant to the post to be filled - Permissible 
(Staff Regulations, Arts 29(1) and 45) 
3. Officials - Promotion - Consideration of comparative merits - Discretion of 
the administration - Judicial review - Limits 
(Staff Regulations, Art. 45) 
4. Officials - Promotion - Candidates suitable for promotion - Right to 
promotion - Absence - Candidate having long experience in the grade below -
No effect 
(Staff Regulations, Art. 45) 
1. A claim for annulment of the decision to appoint another candidate to a vacant 
post, adopted on the basis of a new vacancy notice against which the applicant has 
not made a complaint, in the context of an action brought by an official seeking the 
annulment of the decision of the appointing authority not to appoint him to that post, 
is inadmissible. Claims for annulment of the first decision which are exclusively 
based on the defects allegedly vitiating the second decision must also be held 
inadmissible. 
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D'ALOYA v COUNCIL 
The official none the less retains an interest in seeking the annulment of the decision 
rejecting his candidature. In the event that that decision were annulled, not only 
could its unlawfulness constitute a fault such as to render the defendant institution 
liable, but that institution would also have to give effect to the necessary 
consequences on the basis of Article 176 of the Treaty (now Article 233 EC). 
(see paras 30, 31 and 80) 
See: 346/87 Bossi v Commission [1989] ECR 303, para. 13 
2. Under Articles 29(1)(a) and 45(1) of the Staff Regulations, the appointing 
authority is obliged to consider the comparative merits of the candidates in 
accordance with the legal framework which it has set itself under the terms of the 
vacancy notice. 
It cannot be concluded that the appointing authority has exceeded the framework of 
the vacancy notice if it has taken into account qualities which, although not explicit 
in the vacancy notice, are directly relevant to the duties in question. 
(see paras 44, 46 and 47) 
See: C-343/87 Culin v Commission [1990] ECR I-225, para. 19 
3.When assessing the interest of the service and the merits to be taken into 
consideration for the purposes of a promotion decision pursuant to Article 45 of the 
Staff Regulations the appointing authority has a wide discretion. Review by the 
Court of First Instance must be limited to the question whether it remained within 
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SUMMARY — CASE T-24/99 
reasonable limits and did not use its powers in a manifestly incorrect manner. In 
particular, the Court cannot substitute its assessment of candidates' merits and 
qualifications for that of the appointing authority. 
(see para. 49) 
See: T-112/96 et T-115/96 Séché v Commission [1999] ECR-SC I-A-115 and II-623, 
para. 61 
4. The Staff Regulations do not confer an enforceable right to promotion. A long 
period of service in the grade below does not constitute a decisive ground in the 
selection of candidates for promotion. 
(see para. 50) 
See: Séché v Commission, cited above, para. 62 
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