Judgment — ECLI:EU:T:2002:181
Date: 2002-07-09
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Concepts: Promotion
Procedure: Staff cases - successful

SUMMARY — CASE T-233/01 
Summary 
1. Officials - Promotion - Consideration of comparative merits - Consideration 
of staff reports - Incomplete personal file - Irregularity entailing annulment of a 
decision not to promote the official - Conditions - Decisive effect on the 
promotion procedure - Administration's obligation to adduce proof of the 
genuineness of the consideration of comparative merits 
(Staff Regulations, Arts 43 and 45) 
2. Officials - Promotion - Consideration of comparative merits - Absence of 
definitive staff report - Irregularity constituting a substantive defect 
(Staff Regulations, Art. 45) 
1. The staff report constitutes an indispensable criterion of assessment each time an 
official's career is taken into consideration with a view to adopting a decision 
concerning his promotion. However, the fact that, throughout the promotion 
procedure, an official's staff report was not included in his personal file does not 
necessarily mean that the promotion procedure was marred by an irregularity. When 
the promotion decision is made, all candidates do not necessarily have to be at 
exactly the same stage regarding the state of their staff reports and the appointing 
authority is not obliged to postpone its decision if the most recent report on one or 
other of the candidates is not yet final as a result of referral to the appeal assessor 
or to the Joint Committee on Staff Reports. 
However, there is a procedural irregularity where the staff report is missing not as 
a result of the normal course of the reporting procedure but of a substantial delay 
in that procedure, which is attributable to the administration. That irregularity is not 
such as to entail annulment of a decision not to promote an official unless and in so 
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far as the absence of the staff report was capable of having a decisive effect on the 
promotion procedure, in particular where that absence could not be offset by means 
of other information relating to the merits of the person concerned. In that context, 
it is for the administration to prove by objective evidence amenable to judicial 
review that it complied with the safeguards provided for by Article 45 of the Staff 
Regulations for the protection of officials eligible for promotion and that it 
considered the comparative merits of the candidates for promotion. 
(see paras 29-32, 35, 36) 
See: 263/81 List v Commission [1983] ECR 103, para. 27; C-68/91 P Moritz v 
Commission [1992] ECR 1-6849, para. 16; T-58/92 Moat v Commission [1993] ECR 
II-1443, para. 59; T-557/93 Rasmussen v Commission [1995] ECR-SC I-A-195 and 
II-603, para. 33; T-144/95 Michael v Commission [1996] ECR-SC I-A-529 and II-1429, 
para. 52; T-82/98 Jacobs v Commission [2000] ECR-SC I-A-39 and II-169, paras 34, 36 
and 40; T-202/99 Rappe v Commission [2000] ECR-SC I-A-201 and II-911, paras 39,40, 
43 and 45 
2. The consideration undertaken within the Directorates-General cannot take the 
place of the comparative consideration which must be undertaken subsequently by 
the Promotion Committee. Every official eligible for promotion is entitled to expect 
the Promotion Committee to compare his merits with those of other officials eligible 
for promotion to the grade concerned. It follows that a promotion procedure is 
marred by an irregularity constituting a substantive defect in so far as, in the 
absence of an official's definitive staff report, the Promotion Committee did not 
undertake a consideration of the comparative merits of all the candidates for 
promotion, as required by Article 45 of the Staff Regulations. 
(see paras 46, 48) 
See; T-234/97 Rasmussen v Commission [1998] ECR-SC I-A-507 and II-1533, para. 24; 
T-22/99 Rose v Commission [2000] ECR-SC I-A-27 and II-115, para. 57 
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