Judgment — ECLI:EU:T:2003:298
Date: 2003-11-11
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Concepts: Promotion;Pleas in law;Individual decisions;Choice of procedure;Vacancy notice
Procedure: Staff cases - unfounded

SUMMARY - CASE T-248/02 
Summary 
1. 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 
(Staff Regulations, Art. 90(2)) 
2. Officials - Recruitment - Procedures - Choice - Discretion of the 
administration 
(Staff Regulations, Art. 29(1)) 
3. Officials - Vacant post - Filling by promotion or transfer - Consideration of 
the comparative merits of candidates - Discretion of the administration -
Obligation of the administration to adduce proof of the reality of the consideration 
of comparative merits 
(Staff Regulations, Arts 29(1) and 45) 
4. Officials - Actions - Pleas in law - Misuse of power - Concept 
5. Officials - Vacant post - Filling by promotion or transfer - Consideration of 
comparative merits - Discretion of the appointing authority - Limits -
Compliance with conditions laid down in the notice of vacancy - Judicial review 
(Staff Regulations, Arts 7 and 29) 
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FAITA v ESC 
1. Where a decision rejects a candidature for a post declared vacant, the appointing 
authority is required to provide a statement of the grounds, at least at the stage of 
rejection of the complaint against such a decision. As promotions and transfers are 
by selection, however, the reasons for the rejection of a complaint need concern 
only the fulfilment of the legal conditions on which, under the Staff Regulations, the 
lawfulness of the procedure depends. 
(see para. 28) 
See: T-52/90 Volger y Parliament [1992] ECR II-121, para. 36; T-25/92 Vela Palacios 
v ESC [1993] ECR II-201, para. 22; T-16/94 Benecos v Commission [1995] ECR-SC 
I-A-103 and II-335, para. 31; T-13/95 Kyrpitsis v ESC [1996] ECR-SC I-A-167 and 
II-503, para. 68; T-330/00 and T-114/01 Cocchi and Hainz v Commission [2002] 
ECR-SC I-A-193 and II-987, para. 55 
2. The appointing authority enjoys a wide discretion for the purpose of finding 
candidates with the highest standard of ability, efficiency and integrity. The use of 
the formulation 'whether ... can' in Article 29(1) of the Staff Regulations clearly 
indicates that the appointing authority is not bound absolutely, where a vacant post 
is to be filled, to fill that post by way of promotion or transfer, but merely to 
consider in each case whether those measures are capable of resulting in the 
appointment of a person of the highest standard of ability, efficiency and integrity. 
(see para. 45) 
See: C-174/99 P Parliament v Richard [2000] ECR I-6189, para. 38; T-372/00 
Campolargo v Commission [2002] ECR-SC I-A-49 and II-223, para. 93 
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SUMMARY - CASE T-248/02 
3. Where there is a sufficiently consistent body of evidence substantiating the 
argument of a candidate for a vacant post that no real examination of the 
comparative merits of the candidates took place, it is for the appointing authority 
to show, by objective evidence amenable to judicial review, that it observed the 
guarantees which officials have under Article 45 of the Staff Regulations and did 
undertake a comparative examination of the files. 
(see para. 46) 
See: T-159/96 Wenk v Commission [1998] ECR-SC I-A-193 and II-593, para. 55; 
T-143198 Cendrowiczv Commission [1999] ECR-SC I-A-273 and II-1341, para. 59 
4. There is misuse of powers, of which abuse of procedure is merely one form, only 
if it is proved that the administrative authority, in adopting the contested act, was 
pursuing an objective other than that pursued by the rules in question or if it is 
apparent, on the basis of objective, relevant and consistent evidence, that the act in 
question was adopted for purposes other than those stated. 
(see para. 59) 
See: T-86/97 Apostolidis v Court of Justice [1998] ECR-SC I-A-167 and II-521, 
para. 84; T-173/99 Elkaïm and Mazuel v Commission [2000] ECR-SC I-A-101 and 
II-433, para. 120 
5. The latitude available to the appointing authority regarding appointment 
presupposes a 'careful examination' of candidates' files and 'meticulous regard' to 
the requirements laid down in the vacancy notice, so that the appointing authority 
is required to reject any candidate who does not meet those requirements. The 
vacancy notice constitutes a legal framework which the appointing authority imposes 
on itself and to which it must have 'meticulous regard'. With a view to establishing 
whether the appointing authority exceeded the bounds of that legal framework and 
that it acted solely in the interests of the service, within the meaning of Article 7 of 
the Staff Regulations, the Court must examine what conditions were laid down in 
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FAITA v ESC 
the vacancy notice and then verify whether the candidate chosen by the appointing 
authority to occupy the vacant post actually satisfied those conditions. Such an 
examination must be limited to consideration of the question whether, having regard 
to the considerations which may have influenced it in making its assessment, the 
administration remained within reasonable bounds and did not use its power in a 
manifestly incorrect way. The Court cannot therefore substitute its assessment of the 
candidates' qualifications for that of the appointing authority. 
(see paras 70-71) 
See: 233/85 Bonino v Commission [1987] ECR 739, para. 5; C-35/92 P Parliament v 
Frederiksen [1993] ECR I-991, paras 15, 16 and 17; T-169/89Frederiksen v Parliament 
[1991] ECR II-1403, para. 69; T-82/91 Latham v Commission [1994] ECR-SCI-A-15 and 
II-61, para. 62; T-21/96 Giannini v Commission [1997] ECR-SC I-A-69 and II-211, paras 
19 and 20 
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