Judgment — ECLI:EU:T:2003:255
Date: 2003-09-30
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Concepts: Promotion;Personal file;General
Procedure: Staff cases - unfounded

SUMMARY — CASE T-302/02 
Summary 
1. Officials - Procedure for filling vacant posts - Transfer or promotion -
Comparative consideration of candidatures - Administration's discretion -
Authority to determine the subject-matter of and arrangements for an interview with 
a potential immediate superior - Judicial review - Limits 
(Staff Regulations, Art. 29) 
2. Officials - Decision affecting the administrative status of an official -
Consideration of documents not contained in personal file - Not permissible -
Limits - Consideration, for transfer or promotion, of comparative assessment of the 
abilities of candidates carried out by immediate superiors on the basis of facts 
known to those concerned and which they could have disputed 
(Staff Regulations, Arts 26 and 43) 
3. Officials - Notice of vacant post - Purpose - Consideration of comparative 
merits - Discretion of the appointing authority - Limits - Compliance with the 
conditions laid down in the notice of vacancy - Consideration of the personality of 
candidates - Permissible - Judicial review - Limits 
(Staff Regulations, Art. 45) 
1. In a promotion procedure, and similarly in a transfer procedure, the appointing 
authority is required to make its choice on the basis of a consideration of the 
comparative merits of the candidates and of the reports on them. To that end, it has 
power under the Staff Regulations to undertake such consideration according to the 
procedure or method which it considers to be the most appropriate, which may 
include an interview between the candidate and his potential immediate superior, 
when the candidate may be asked questions deemed to be relevant; the review by 
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KENNY v COURT OF JUSTICE 
the Court must be confined to whether it has exercised its power in a manifestly 
erroneous manner. 
(see para. 24) 
See: 62/75 De Wind v Commission (1976) ECR 1167. para. 17: T-53/91 Mergen v 
Commission [1992] ECR II-2041. para. 30 
2. The purpose of Articles 26 and 43 of the Staff Regulations is to guarantee an 
official's right to a fair hearing by ensuring that decisions taken by the appointing 
authority affecting his administrative status and his career are not based on matters 
concerning his conduct which are not included in his personal file. 
Read thus in the light of their objective, those provisions do not generally cover 
opinions of hierarchical superiors consulted in the course of a promotion or transfer 
procedure. Such opinions are not to be notified to the candidates concerned, since 
they contain only a comparative assessment of their qualifications and merits, based 
on factual considerations mentioned in their personal file or notified to them, so that 
those concerned have thus already had an opportunity to make any comments. Those 
opinions, whose scope is confined to the appointment procedure in question, do not 
fall under the rules laid down in Article 6 of the Staff Regulations. That is not the 
case, however, where such opinions also contain, in addition to the assessments 
involved in the comparative consideration of candidatures, references to a 
candidate's ability, efficiency and conduct not previously included in his personal 
file. 
(see paras 32, 39) 
See: T-76/92 Tsirimokos v Parliament [1993] ECR II-1281. para. 33 and the case-law 
cited, and paras 34 and 35 
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SUMMARY — CASE T-302/02 
3. The consideration of candidatures for transfer or promotion pursuant to 
Article 29(1)(a) of the Staff Regulations must comply with Article 45 of the Staff 
Regulations, which provides expressly for consideration of the comparative merits 
of the officials eligible for promotion. 
The requirement for such consideration reflects both the principle of equal treatment 
of officials and the principle that officials should have reasonable career prospects. 
For the purposes of the consideration of the comparative merits of candidates for 
promotion provided for in Article 45 of the Staff Regulations, the appointing 
authority is vested with a wide discretion. However, the exercise of that wide 
discretion presupposes a careful examination of candidates' files and meticulous 
observance of the requirements laid down in the vacancy notice for the post in 
question, so that any candidate who does not meet those requirements must be 
rejected. The vacancy notice constitutes a legal framework which the appointing 
authority imposes on itself and to which it must have meticulous regard. 
For the purpose of verifying whether, in not accepting a candidate, the appointing 
authority has not acted outside the bounds of that legal framework, the Court must 
first establish what were the required conditions under the vacancy notice and then 
verify whether the rejected candidate did not satisfy those conditions. Such a review 
must, however, be limited to consideration of the question whether, having regard 
to the considerations which have influenced the administration in making its 
assessment, the latter has remained within reasonable bounds and has not used its 
power in a manifestly incorrect way, since it is clear that the assessment of 
candidates depends not just on the ability and professional merit of the persons 
concerned, but also on their character, conduct and personality as a whole. The 
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KENNY v COURT OF JUSTICE 
Court cannot therefore substitute its assessment of the candidates' suitability for that 
of the appointing authority. 
(see paras 56-58, 64) 
See: 282/81 Ragusa v Commission [1983] ECR 1245. para. 9; 111/83 Picciolo v 
Parliament [1984] ECR 2323. para. 16; 233/85 Bonino v Commission [1987] ECR 739. 
para. 5: 104/88 Brus v Commission [1989] ECR 1873. para. 12; T-169/89 Frederiksen 
v Parliament [1991] ECR II-1403. para. 69; T-25/90 Schönherr v ESC [1992] ECR II-63. 
para. 20; T-52/90 Volger v Parliament [19921 ECR II-121, para. 24. upheld on appeal 
in C-115/92 P Parliament v Volger [ 19931 ECR I-6549; T-22/92 Weissenfels v Parliament 
[1993] ECR 11-1095. para. 66; T-82/91 Latham v Commission [1994] ECR-SC I-A-15 and 
II-61, para. 62; T-262/94 Baiwir v Commission [ 1996) ECR-SC I-A-257 and II-739. para. 
66; T-21/96 Giannini v Commission [1997] ECR-SC I-A-69 and II-211, paras 19 and 20; 
T-283/97 Thinus v Commission [19991 ECR-SC I-A-69 and II-353. para. 42 
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