Judgment — ECLI:EU:T:2002:315
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;General
Procedure: Action for damages - successful;Staff cases - successful

SUMMARY — CASE T-378/00 
Held: The Commission's decisions of 4 March 2000 appointing 
Ms Evans to the post of Head of Unit 3 'Distributive 
trades and other services' within Directorate D 'Services' 
of the Directorate-General for Competition and rejecting 
the applicant's candidature for that post are annulled. The 
Commission is ordered to pay the applicant EUR 2 500. 
The remainder of the application is dismissed. The 
Commission is ordered to pay the costs. 
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, Arts 25, second para., 45 and 90(2)) 
2. Officials - Promotion - Consideration of comparative merits - Procedure -
Consideration of staff reports - Incomplete personal file - Consequences 
(Staff Regulations, Arts 43 and 45) 
3. 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) 
4. Officials - Reports procedure - Staff report - Drawing up - Delay - Breach 
of administrative duty giving rise to non-material damage - Conditions 
(Staff Regulations, Art. 43) 
I-A - 312 
MORELLO v COMMISSION 
1. 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. 
(see paras 36. 37) 
See: 188/73 Crassi v Council [1974] ECR 1099, para. 14; T-118/95 Ancoreta Correia 
v Commission [1996] ECR-SC I-A-283 and II-835, para. 82; 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-230/99 McAuley v Council [2001] ECR-SC I-A-127 and II-583. para. 52 
2. 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. 
I-A- 313 
SUMMARY - CASE T-378/00 
However, that does not mean that when the appointment decision is made all 
applicants must be at exactly the same stage regarding the state of their periodic 
reports or that the appointing authority must postpone its decision if the most recent 
report on one or other of the candidates is not yet final because it has been referred 
to the appeal assessor or to the Joint Committee on Staff Reports. 
It is, in principle, permissible for the appointing authority to consider the 
comparative merits of the candidates eligible for promotion when it does not have 
at its disposal the most recent periodic report of one of the candidates and that 
circumstance alone does not in itself constitute an irregularity in the promotion 
procedure. 
By contrast, that course of action does give rise to an irregularity where the absence 
of a definitive periodic report is not due to the normal course of the reporting 
procedure but to a substantial delay in the latter which is attributable to the 
administration. However, such an irregularity is such as to result in annulment of 
the decision adopted following the promotion procedure only in so far as the 
absence of the periodic report may have had a decisive effect on that procedure. 
(see paras 79-82, 86) 
See: 263/81 List v Commission [1983] ECR 103, paras 25 to 27; C-68/91 P Moritz v 
Commission [1992] ECR I-6849, paras 16 to 18; T-58/92 Moat v Commission [1993] 
ECR II-1443, para. 59; T-82/98/Jacobs v Commission [2000] ECR-SCI-A-39 and II-169, 
paras 34 and 36; T-202/99 Rappe v Commission [2000] ECR-SC I-A-201 and II-911, 
paras 39, 40, 44 and 45 
I-A - 314 
MORELLO v COMMISSION 
3. 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 
allegedly suffered and by a complaint challenging the validity of the rejection of that 
request. 
(see para. 102) 
See: T-17/90, T-28/91 and T-17/92 Camara 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 
4. The absence, as a result of a delay in its compilation, of a periodic report from 
an official's personal file may give rise, on his part, to non-material damage not 
only if his career may have been affected thereby but also if that circumstance 
caused him to be in a state of uncertainty and anxiety with regard to his professional 
future. 
(see para. 105) 
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: T-386/94/ Allo v Commission 
[1996] ECR-SC I-A-393 and II-1161. para. 76 
I - A - 315