Judgment — ECLI:EU:T:2001:131
Date: 2001-05-08
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Concepts: Promotion
Procedure: Action for damages - unfounded;Staff cases - successful

Summary of the list prepared by the Directorate-General for Personnel on 1.1.1998 showing officials eligible for promotion Category: A Grade: 5 Promotable: 54 N° Name DG Marks before adjustment Adjustment coefficient Total points General total 1 CC II 59 0 59 73 2 KC II 60 0 60 72 3 CCH III 59 0 59 71.75 4 PF IV 58 -0.25 57.75 71.75 5 BK LS 58 0.75 58.75 71.25 6 HHG II 58 0 58 71.25 7 FN II 60 0 60 71 8 Caravelis II 59 0 59 71 9 AD II 59 0 59 71 11 FP I 59 0.75 59.75 70.75 12 WP IV 59 -0.25 58.75 70.75 15 DSDI V 57 1 58 70.75 25 RQJL LS 59 0.75 59.75 69.75 27 AG I 58 0.75 58.75 69.75 33 VHJ VI 60 -1 59 69 Total points = unadjusted marks x adjustment coefficient calculated by DG. General total = total points + age + seniority. 37. In addition, each Directorate-General made recommendations as to which officials should be promoted. Directorate-General I (Presidency) made two recommendations relating first to FP and secondly to AG. Directorate-General II (Committees and Delegations) recommended seven officials, namely, in descending order, KC, FN, CC, VARJ, HHG, AD and, lastly, the applicant. Directorate-General III (Information and Public Relations) recommended three officials: CCH was first, LJ second and SPJ third. Directorate-General IV (Research) recommended four officials, namely, in descending order, PF, WP, LA and PF. Directorate-General V (Personnel, Budget and Finance) recommended three officials: DSDI was first, PP second and PR third. Directorates-General VI (Administration) and VII (Translation and General Services) and the Legal Service recommended VHJ, BM and RQJL respectively. 38. It is clear, however, from the minutes of the Promotions Committee that the recommendations of the Directorates-General could only be accepted in respect of 20% of the [officials eligible for promotion]. It should be observed in this regard that only fourteen recommendations, namely the two made by DG I, four of the seven put forward by DG II, two of the three made by DG III, two of the four put forward by DG IV, one of the three made by DG V and the recommendations made by DG VI, DG VII and the Legal Service, were regarded as acceptable and taken into consideration by the Promotions Committee during the contested promotion procedure. Thus, from the outset of the procedure the Promotions Committee regarded the recommendations relating to other officials eligible for promotion, including the applicant, as unacceptable. Furthermore, despite the brief comment at the end of the minutes that [t]he Committee also considered the other [officials eligible for promotion] in the appropriate order, the minutes do not contain any reference to the names of the officials outside the 20% quota. In such circumstances, it appears prima facie from the minutes that the applicant's merits were not taken into consideration by the Promotions Committee during the contested promotion procedure. 39. Furthermore, it is clear from the minutes of the Promotions Committee that it went on to draw up on the basis of the fourteen recommendations regarded as acceptable an initial list of the officials who had been recommended in first place by their Directorate-General or service. Following a comparison of the merits of those officials, four candidates were selected and put forward for promotion, namely KC, CCH, FP and RQJL. It should be mentioned that those officials appeared on the list prepared by the Directorate-General for Personnel in second, third, eleventh and twenty-fifth place. It is clear that, according to the method of comparison used by the Promotions Committee, the merits of RQJL were compared with those of KC, although he was listed 23 places below him on the list prepared by the Directorate-General for Personnel. It would appear that RQJL was included in the Promotions Committee's first list of officials eligible for promotion because he was the only official recommended by the Legal Service. Subsequently the Promotions Committee drew up a second list of officials eligible for promotion, comprising four names, after comparing the merits of the officials who had been recommended in second or third place by their Directorate-General or service with the merits of the two officials who appeared on its initial list but whose situation had remained in abeyance pending further comparative consideration. 40. Following the procedure before the Promotions Committee, the Committee put forward eight officials for promotion, namely those appearing in first, second, third, seventh, eleventh, twelfth, fifteenth and twenty-fifth place on the list prepared by the Directorate-General for Personnel. It should be noted once again that the names of the other officials eligible for promotion, even those placed before the official in twenty-fifth place on the abovementioned list, including the applicant, do not appear in the minutes of the Promotions Committee. Although it contains very detailed information on the officials who were the subject of recommendations within the 20% quota established by the note of 5 June 1998, the minutes mention the other officials eligible for promotion only very briefly and in a general manner. With regard to the applicant, it appears he was in seventh place on the list prepared by his Directorate-General in the context of the recommendations submitted to the Promotions Committee, in breach of the abovementioned quota. Consequently, despite the fact that with an overall total of 71 points he was in equal seventh place with two other candidates on the list prepared by the Directorate-General for Personnel, his merits were not compared, for example, with those of RQJL who, with an overall total of 69.75 points, was in twenty-fifth place on that list. 41. In reality therefore only the merits of the officials who were the subject of recommendations within the 20% quota of officials eligible for promotion in each Directorate-General were given comparative consideration by the Promotions Committee. Indeed, the recommendations of the Directorates-General, and more particularly the order in which the candidates were recommended, instead of providing additional information to be taken into consideration when comparing the merits of the officials eligible for promotion, became the basis upon which a comparison limited to fourteen of those officials was made. Only the decisive role played by the recommendations in the promotion procedure can explain how, even at the very first stage of comparison of the merits of the officials eligible for promotion, the officials in second, third, eleventh and twenty-fifth place on the list of officials eligible for promotion prepared by the Directorate-General for Personnel were given comparative consideration, rather than the officials in the top eight places on that list. It therefore appears that the Promotions Committee did not compare the merits of all the officials eligible for promotion and that not all the staff reports of those officials were taken into consideration by the Committee although those reports represent a vital element of the assessment. 42. The Parliament contended, both in its written pleadings and at the hearing, that the list prepared by the Directorate-General for Personnel, and the deliberations and proposals of the Promotions Committee, are only intermediate and preparatory stages to the final promotion decision and that the appointing authority took the latter decision after consideration of all the information in its possession, namely, the abovementioned list, the Promotions Committee's assessments and proposals, the recommendations and proposals of the Directorates-General and any other relevant information. 43. In this regard it should be noted that, according to settled case-law, the appointing authority is required to take into account the list of candidates for promotion drawn up by the Promotions Committee even if it considers itself obliged not to follow it (Case T-25/90 Schönherr v ESC [1992] ECR-SC II-63, paragraph 28). In this case, the appointing authority decided to promote the same officials as those whose names were put forward by the Promotions Committee. Moreover, at the hearing the Parliament confirmed that the appointing authority, in this case the Secretary-General of the Parliament, had at his disposal the staff reports of the officials eligible for promotion, the list of those officials prepared by the Directorate-General for Personnel, the recommendations of the Directorates-General and the minutes and proposals of the Promotions Committee. Consequently, the appointing authority had knowledge not only of the last two items of information but also of the manner in which the Promotions Committee had taken into consideration the merits of the officials eligible for promotion. In the absence of evidence to the contrary, there is every reason to believe that the appointing authority selected for promotion to Grade A 4 the same officials as the Promotions Committee, having followed the same procedure or method of comparison. In those circumstances, it was incumbent on the Parliament to prove that the procedural irregularities within the Promotions Committee did not distort the final result of the contested promotion procedure and that the appointing authority adopted a different method of comparison from the Committee and did indeed compare the merits of all the officials eligible for promotion. 44. The fact remains, however, that the Parliament has not adduced any evidence whatsoever that the appointing authority did indeed make a comparison of the merits of all the officials eligible for promotion. Moreover, the Parliament has failed to explain how it was that the appointing authority managed to promote exactly the same officials as those proposed by the Promotions Committee using a method for the comparison of merits which was allegedly different from that used by the Committee. 45. It is clear from these considerations that both the procedure in the Promotions Committee and the procedure before the appointing authority must be regarded as flawed since they did not include comparative consideration of the merits of all the officials eligible for promotion. 46. The decision of the Parliament not to promote the applicant to Grade A 4 during the 1998 promotion procedure must therefore be annulled; there is no cause to consider the validity of the other limbs of the plea relied on by the applicant or the new complaint raised by the applicant at the hearing. The claim for compensation Arguments of the parties 47. In the alternative, the applicant requests the Court to order the Parliament to pay the sum of BEF 100 000 in compensation for the non-material damage sustained by him as a result of the Parliament failing to ask the Bank of England in time for details of his professional merits whilst he was seconded to it, namely between 1 October 1997 and 30 September 1998, although the professional merits of the other candidates during that period were subject to a comparative assessment when recommendations were being prepared. In his reply the applicant argues that this request for compensation is admissible. 48. The Parliament considers that the request for compensation for non-material damage is inadmissible. Moreover, it asserts that the applicant has not demonstrated the existence of unlawful conduct, actual damage or a causal link between the comparative assessment of his professional performance during his secondment and the establishment of the order of priority in the recommendations of his Directorate-General (Case T-165/89 Plug v Commission [1992] ECR II-367). Findings of the Court 49. Even if the applicant did suffer damage, annulment of the decision refusing promotion constitutes, in any event, sufficient and adequate compensation for that damage (Case T-10/99 Nuñez v Commission [2000] ECR-SC I-47 and II-203, paragraph 48); there is therefore no need to rule on the admissibility of the claim for compensation. 50. The request that the Parliament should be ordered to pay the sum of BEF 100 000 in compensation for the non-material damage allegedly suffered must therefore be dismissed. Costs 51. Under Article 87(2) of the Rules of Procedure of the Court of First Instance, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Parliament has been unsuccessful, it must be ordered to pay the costs as applied for by the applicant. On those grounds, THE COURT OF FIRST INSTANCE (Fifth Chamber) hereby: 1. Annuls the decision of the Parliament not to promote the applicant to Grade A 4 during the 1998 promotion procedure; 2. Dismisses the application for compensation; 3. Orders the Parliament to pay the costs. Lindh García-Valdecasas Cooke Delivered in open court in Luxembourg on 8 May 2001. H. Jung P. Lindh Registrar President 1: Language of the case: Greek.