Judgment — ECLI:EU:T:2003:290
Date: 2003-11-05
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Concepts: Prior administrative complaint;Principles of the law of the European civil service;Vacancy notice
Procedure: Staff cases - unfounded

SUMMARY — CASE T-240/01 
Summary 
1. Officials - Actions - Action against the decision rejecting a complaint -
Admissibility 
(Staff Regulations, Arts 90 and 91) 
2. Officials - Vacant post - Post in grade A 2 with the Court of Justice -
Procedure - Registrar's competence to propose an appointment after considering 
the candidates' comparative merits - Whether intervention by the administrative 
committee is permissible prior to the Court's decision 
3. Officials - Vacant post - Consideration of the comparative merits of candidates 
- Procedure - Duty to hear candidates - None - Discretion of the administration 
- Limits - Equal treatment - Equality of external and internal candidates 
(Staff Regulations, Arts 5(3) and 29) 
4. Officials - Vacant post — Consideration of the comparative merits of candidates 
- Compliance with the conditions laid down in the vacancy notice - Post in grade 
A 2 — Discretion of the appointing authority - Judicial review 
(Staff Regulations, Art. 29) 
5. 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 
(Staff Regulations, Art. 29) 
6. Officials — Vacant post - Consideration of the comparative merits of candidates 
- Account taken of candidates' personality as a whole - Permissible 
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COUGNON v COURT OF JUSTICE 
7. Officials - Principles - Protection of legitimate expectations - Conditions 
1. An action for annulment formally directed against the rejection of a complaint has 
the effect of bringing before the Community judicature a dispute concerning the act 
having an adverse effect against which the complaint was submitted. 
(see para. 28) 
See: 293/87 Vainker v Parliament [1989] ECR 23. para. 8; C-343/87 Culin v 
Commission [1990] ECR I-225. para. 7: T-156/89 Valverde Mordt v Court of Justice 
[1991] ECR II-407. para. 26; T-22/99 Rose v Commission [2000] ECR-SC I-A-27 and 
II-115. para. 21 
2. In accordance with the first and second indents of Article 2(2) of the decision of 
the Court of Justice concerning the appointing authority, it is the Court itself which 
exercises the powers conferred upon the appointing authority under the Staff 
Regulations as regards, first, an appointment to a grade A 2 post and, second, the 
decision to fill a vacant post at that grade and the determination of the procedure for 
doing so. 
Under Article 11 of the Court's decision concerning the appointing authority, 
appointments and promotions falling within the competence of the Court are decided 
on a proposal from the Registrar. 
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SUMMARY — CASE T-240/01 
Thus, the combined provisions of Articles 2(2) and 11 of the Court's decision 
concerning the appointing authority legitimise and even require the intervention of 
the Registrar in the procedure for filling a grade A 2 post, without any need for the 
Court to delegate that duty to him ad hoc. The task entrusted to the Registrar of 
putting forward a proposal for appointment necessarily gives him the option of 
considering the comparative merits of the candidates. 
As for the administrative committee, which is composed of members appointed by 
the Court itself and chaired by the President of the Court, the fact that there is no 
general provision expressly referring to its intervention in the appointment 
procedure for a grade A 2 post does not mean that, in order to legitimise such an 
intervention, a prior decision to that effect is required from the Court as the 
appointing authority. 
Thus it is entirely permissible for the Registrar to put his proposal to the 
administrative committee for its opinion, before it is put to the Court in its turn for 
a decision in its capacity as the appointing authority. 
(see paras 40, 42-45, 47) 
See: T-6/96 Contargyris v Council [1997] ECR-SC I-A-119 and II-357, para. 71 
3. Decisions on promotion and transfer are a matter for the appointing authority 
alone, which has the power under the Staff Regulations to undertake a consideration 
of the comparative merits of the candidates according to the procedure or method 
it deems most appropriate. Both the appointing authority itself and the various 
higher-ranking officials consulted in the course of the promotion or transfer 
procedure in question must consider at each stage in the examination of the 
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COUGNON v COURT OF JUSTICE 
candidatures whether it is necessary to obtain further information or form further 
assessments through interviews with all the candidates or only with some of them, 
in order to be able to reach a decision in full knowledge of the facts. 
There is no provision in the Staff Regulations which grants to a candidate in a 
procedure for filling a vacant post the right to an interview with his potential 
immediate superior or which establishes an obligation to call the person concerned 
to such an interview as a matter of course. The appointing authority cannot therefore 
be obliged to arrange interviews with the candidates for a post unless, and in so far 
as, such an obligation arises from the legal framework which it has established for 
itself. 
Nevertheless, the discretion allowed to the administration to determine the procedure 
or method for undertaking a comparative consideration of candidatures is 
circumscribed by the need to undertake that consideration with care and impartiality, 
in the interest of the service and in accordance with the principle of equal treatment 
for officials, expressed in general terms in Article 5(3) of the Staff Regulations. In 
practice, consideration of the comparative merits of candidates must therefore be 
undertaken on a basis of equality, using comparable sources of information. 
Where the consideration of comparative merits relates to candidatures from both 
inside and outside the institution concerned, particular attention must be given to 
checking that both have been treated equally, since there may be a certain difference 
in the degree of knowledge which a particular authority consulted in the 
consideration of comparative merits may have of the internal candidates compared 
with the external candidates. The requirement that a consideration of comparative 
merits be undertaken on a basis of equality using comparable sources of information 
must be construed as meaning that the authorities consulted must have sufficient 
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SUMMARY - CASE T-240/01 
information about the external candidates to be able to consider the merits of their 
candidatures and compare them with those of the others in full knowledge of the 
facts. 
The duty which the principle of equal treatment imposes on an authority consulted 
as part of an appointment procedure to base its assessment on comparable sources 
of information does not mean, however, that it must itself collect all the relevant 
information directly at the stage of the procedure at which it intervenes. 
(see paras 62-63, 67, 70-71, 73, 80) 
See: 62/75 de Wind v Commission [1976] ECR 1167, para. 17; 282/81 Ragusa v 
Commission [1983] ECR 1245, para. 21; 26/85 Vaysse v Commission [1986] ECR 3131, 
para. 15; T-53/91 Mergen v Commission [1992] ECR II-2041, para. 33; T-78/92 Perakis 
v Parliament [1993] ECR II-1299, paras 15, 16 and 19; T-76/92 Tsirimokos v Parliament 
[1993] ECR II-1281, paras 21, 24 and 29; T-118/95 Anacoreta Correia v Commission 
[1996] ECR-SC I-A-283 and II-835, para. 36; T-386/94 Allo v Commission [1996] 
ECR-SC I-A-393 and II-1161, para. 29; T-159/96 Wenk v Commission [1998] ECR-SC 
I-A-193 and II-593, para. 58; Rose v Commission, cited earlier, para. 55; T-95/01 Coget 
and Others v Court of Auditors [2001] ECR-SC I-A-191 and II-879, paras 136 and 137; 
T-188/01 to T-190/01 Tsarnavas v Commission [2003] ECR-SC I-A-95 and II-495, 
para. 97 
4. As regards determining whether there has been any error in the selection of an 
official for a grade A 2 post, which entails considerable responsibilities, such an 
error must be manifest and must exceed the wide discretion which the appointing 
authority has, within the framework set out in the notice of vacancy, in comparing 
the merits of candidates and evaluating the interests of the service. The Court must 
confine its review to the question whether, having regard to the various 
considerations which have influenced the administration in making its assessment, 
the administration remained within reasonable bounds and has not used its power 
in a manifestly incorrect way or for purposes other than those for which it was 
conferred. The Court therefore cannot substitute its assessment of candidates' merits 
and qualifications for that of the appointing authority, where there is nothing in the 
file to indicate that it committed a manifest error when assessing the candidates' 
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COUGNON v. COURT OF JUSTICE 
merits and qualifications. Those principles apply particularly where the Court is 
required to verify that the candidate selected to fill the vacant post did in fact satisfy 
the conditions laid down in the notice of vacancy and, in particular, that he 
possesses professional experience corresponding to the level required by the vacancy 
notice. 
(sec paras 97-98) 
See: 151/80 De Hoe v Commission [1981] ECR 3161. para. 9; 111/83 Picciolo v 
Parliament [1984] ECR 2323. para. 16; Ragusa v Commission, cited earlier, para. 13; 
324/85 Bouteiller v Commission [1987] ECR 529. para. 6; T-160/89 and T-161/89 
Kalavros v Court of Justice [1990] ECR II-871. para. 29; 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. 85; Contargyris v Council, cited earlier, para. 120; Wenk v Commission. 
cited earlier, para. 64: T-152/00 E v Commission [2001) ECR-SC I-A-179 and II-813. 
paras 28 and 29 
5. The appointing authority is required to comply with the vacancy notice which it 
has drawn up, since that notice, approved under Article 29 of the Staff Regulations, 
determines the conditions for taking up the post in question. The function of the 
vacancy notice is, first, to give those interested the most accurate information 
possible as to the conditions of eligibility for the post to enable them to establish 
whether they should apply for it and, second, to set the limits of legality within 
which the institution intends to undertake a comparison of the candidates' merits. 
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SUMMARY - CASE T-240/01 
The appointing authority fails to comply with those limits of legality if it becomes 
aware of conditions specially required to fill a post declared vacant only after the 
vacancy notice has been published, regard being had to the candidates who have 
come forward, and if it takes account, when considering the applications, of 
conditions other than those set out in the vacancy notice. 
(see paras 112-113) 
See: Contargyris v Council, cited above, paras 97 and 98, and the case-law cited 
6. The factors to be considered in the assessment made by the appointing authority 
in evaluating and comparing the merits of candidates for a vacant post relate not 
only to the competence and professional merit of the persons concerned but also to 
their character, their conduct and their personality as a whole. 
That is particularly the case where the notice of vacancy requires the ability to direct 
and coordinate the work of a large administrative unit, since that ability obviously 
involves a number of qualities necessarily relating to the candidates' personality. 
(see paras 115-117) 
See: 27/63 Raponi v Commission [1964] ECR 247, 268; 104/88 Brus v Commission 
[1989] ECR 1873 
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COUGNON v COURT OF JUSTICE 
7. Although the right to rely on the principle of the protection of legitimate 
expectations extends to any individual in a situation in which it appears that the 
Community administration has led him to entertain reasonable expectations, an 
official may not, on the other hand, plead a breach of that principle unless the 
administration has given him precise assurances. An alleged practice which would 
manifestly be contrary to the rules of the Staff Regulations cannot be deemed 
equivalent to assurances of that nature. 
(see paras 122, 126) 
See: 176/73 Van Belle v Council 11974] ECR 1361. paras 5 and 6; 20/83 and 21/83 
Vlochos v Court of Justice [1984] ECR 4149. para. 19: T-112/96 and T-115 /96 Séché V 
Commission [1999] ECR-SC I-A-1 15 and II-623. para. 160. and the case-law cited 
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