Judgment — ECLI:EU:T:2002:314
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;Concept;Plea alleging misuse of powers;General
Procedure: Staff cases - unfounded;Staff cases - inadmissible;Action for damages - successful

SUMMARY — JOINED CASES T-338/00 AND T-376/00 
Held: Cases T-338/00 and T-376/00 are joined. The application 
in Case T-376/00 is dismissed as inadmissible. In Case 
T-338/00, the Commission is ordered to pay the applicant 
the sum of EUR 2 500. The remainder of the application 
in Case T-338/00 is dismissed. In Case T-376/00, the 
parties are ordered to bear their own costs. In Case 
T-338/00, the Commission is ordered to pay the costs. 
Summary 
1. Officials - Actions - Act adversely affecting an official - Express decision 
rejecting a complaint after the expiry of the time-limit - Act purely confirmatory in 
relation to the implied decision rejecting the complaint - Inadmissible - Exception 
(Staff Regulations, Arts 90 and 91) 
2. 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)) 
3. 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) 
4. 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) 
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MORELLO v COMMISSION 
5. Officials - Promotion - Consideration of comparative merits - Consideration 
of staff reports - Incomplete personal file - Irregularity remediable by the 
existence of other information relating to the candidate 's merits 
(Staff Regulations, Art. 45) 
6. 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) 
7. Officials - Actions - Pleas in law - Misuse of powers - Concept 
8. 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) 
9. Officials - Reports procedure - Staff report - Drawing up - Delay - Breach 
of administrative duty giving rise to non-material damage - Conditions 
(Staff Regulations, Art. 43) 
1. The express rejection of a complaint, after the prescribed period for bringing an 
appeal against the implied decision rejecting the complaint has elapsed, and which 
does not contain any new elements in relation to the legal or factual situation 
existing at the time of the implied rejection, is purely confirmatory and not capable 
of having an adverse effect on the official concerned. The fact that the express 
decision rejecting the complaint contains a statement of grounds which was lacking 
both in the original decision rejecting the applicant's candidature itself and, by 
definition, in the implied decision rejecting the complaint does not thereby make it 
an act adversely affecting the official. 
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SUMMARY - JOINED CASES T-338/00 AND T-376/00 
It could only be otherwise, and the express decision rejecting the complaint could 
only constitute an actionable measure adversely affecting the official, if the express 
decision rejecting the complaint contained a re-examination of the applicant's 
situation in the light of new elements of law or of fact. 
(see paras 34-35) 
See: T-14/91 Weyrich v Commission [1991] ECR II-235, para. 42 
2. 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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MORELLO v COMMISSION 
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 49, 52. 55) 
See: 188/73 Crassi v Council [19741 ECR 1099, para. 14; C-316/97 P 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 Vinzek v 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 
3. 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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SUMMARY — JOINED CASES T-338/00 AND T-376/00 
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 85, 87, 90) 
See: C-81/88 Müllers v ESC [1990] ECR I-249, para. 20; T-169/89 Frederiksen v 
Parliament [1991] ECR 11-1403, para. 67; T-16/94 Benecos v Commission, cited above, 
para. 18; T-159/96 Wenk v Commission [1998] ECR-SC I-A-193 and II-593, para. 25 
4. 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. 101) 
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MORELLO v COMMISSION 
5. 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. 
Neither the promotion committee nor the appointing authority can be required to 
delay a promotion decision merely on the ground that the last periodic report of one 
of the candidates is lacking. In such a case, the appointing authority is not bound 
to rely solely on the candidate's staff reports but may also base its assessment on 
other evidence, such as information about his administrative and personal situation. 
(see paras 106. 111) 
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; T-58/92 Monf v Commission [19931 ECR 
II-1443. para. 59; T-82/98Jacobs v Commission [2000] ECR-SCI-A-39 and II-169, para. 
34 
6. 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. 
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SUMMARY — JOINED CASES T-338/00 AND T-376/00 
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 119, 122) 
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-115 and II-623, para. 62; T-152/00E v Commission [2001] ECR-SC 
I-A-179 and II-813, para. 29 
7. 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. 
(see para. 134) 
See: Séché v Commission, cited above, para. 139; T-111/99 Samper v Parliament [2000] 
ECR-SC I-A-135 and II-611, para. 64 
8. Where there is a direct link between the 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 
I-A - 308 
MORELLO v COMMISSION 
allegedly suffered and by a complaint challenging the validity of the rejection of that 
request. 
(see para. 148) 
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 
9. The absence, as a result of a delay in its compilation, of a periodic report from 
an official's personal file is liable to cause the person concerned to be in a state of 
uncertainty and anxiety with regard to his professional future, resulting in 
non-material damage which may give rise to compensation. 
(see para. 152) 
See: 61/76 Geist v Commission [1977] ECR 1419; 140/87 Bevan v Commission [1989] 
ECR 701; T-73/89 Barbi v Commission [1990] ECR II-619 
I-A - 309