Judgment — ECLI:EU:T:2001:192
Date: 2001-07-20
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Concepts: Promotion;Individual decisions
Procedure: Staff cases - successful

SUMMARY - CASE T-351/99 
Summary 
1. Officials - Decision adversely affecting an official - Rejection of a candidature 
- Obligation to state grounds - Purpose - Scope 
(Staff Regulations, Art. 25, second para.) 
2. Officials - Decision adversely affecting an official - Obligation to state grounds 
- Not fulfilled - Régularisation after the commencement of proceedings - Not 
permissible 
(Staff Regulations, Arts 25, second para., and 90(2)) 
3. Officials - Vacancy notice - Filling of post by promotion - Consideration of 
the comparative merits of candidates - Discretion of the administration - Limits 
- Observance of the conditions laid down in the vacancy notice 
(Staff Regulations, Arts 29(1) and 45) 
4. Officials - Vacancy notice - Filling of post by promotion - Consideration of 
the comparative merits of candidates - Discretion of the administration - Limits 
- Observance of the conditions laid down in the vacancy notice - Judicial review 
- Scope 
5. Officials - Promotion - Consideration of the comparative merits of candidates 
- Taking into consideration of staff reports - Substantial delay in the drawing up 
of candidates ' personal files 
(Staff Regulations, Art. 45) 
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BRUMTER v COMMISSION 
1. The requirement laid down in the second subparagraph of Article 25 of the Staff 
Regulations that any decision adversely affecting an official should state the grounds 
on which it is based constitutes an essential principle of Community law which can 
be derogated from only on the basis of overriding considerations. It is intended, on 
the one hand, to provide the person concerned with sufficient information to 
determine whether the act adversely affecting him was well founded and whether it 
is appropriate to bring proceedings before the Court and, on the other, to enable the 
latter to carry out its review. 
Although the appointing authority is not obliged to state grounds for promotion 
decisions in so far as they affect candidates who have not been promoted, it is 
obliged to state grounds for its decision rejecting a complaint lodged under 
Article 90(2) of the Staff Regulations by a candidate who was not promoted, the 
reasons for that adverse decision being deemed to be the same as those which 
formed the basis of the decision which was the subject of the complaint. Since 
promotion is by selection, it is sufficient that the statement of grounds for the 
rejection of the complaint deal with the satisfaction of the legal conditions which 
under the Staff Regulations govern the regularity of promotion. 
(see paras 28-29) 
See: C-343/87 Culin v Commission [1990] ECR I-225, para. 13; T-52/90 Volger v 
Parliament [1992] ECR II-121, confirmed on appeal in C-115/92 P Parliament v Volger 
[1993] ECR I-6549, paras 22 and 23; T-178/95 and T-179/95 Picciolo and Caló v 
Committee of the Regions [1997] ECR-SC I-A-51 and II-155, paras 33 and 34; T-6/96 
Contargyrisv Council [1997] ECR-SC I-A-119 and II-357,para. 148; T-142/95 Delvaux 
v Commission [1997] ECR-SC I-A-477 and II-1247, para. 84; T-56/96 Maccaferri v 
Commission [1998] ECR-SC I-A-57 and II-133, para. 36; T-157/98 Oliveira v Parliament 
[1999] ECR-SC I-A-163 and II-851, para. 50 
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SUMMARY - CASE T-351/99 
2. The total absence of a statement of grounds for a decision cannot be remedied by 
explanations provided by the appointing authority after proceedings have been 
commenced. At that stage, such explanations no longer fulfil their function. The 
obligation to state grounds, laid down by the second paragraph of Article 25 in 
conjunction with Article 90(2) of the Staff Regulations, is intended, on the one 
hand, to provide the person concerned with sufficient information to determine 
whether the rejection of his candidature was well founded and whether it is 
appropriate to bring proceedings before the Court, and, on the other, to enable the 
Court to carry out its review. The commencement of proceedings accordingly puts 
an end to the possibility of the appointing authority's regularising its decision by a 
reasoned reply rejecting the complaint. 
(see para. 33) 
See: Volger v Parliament, cited above, para. 40 
3. The consideration of candidatures for transfer or promotion pursuant to 
Article 29(1)(a) of the Staff Regulations must comply with Article 45 of the Staff 
Regulations, which provides expressly for consideration of the comparative merits 
of the officials eligible for promotion. The requirement for such consideration 
reflects both the principle of equal treatment of officials and the principle that 
officials should have reasonable career prospects. 
For the purposes of that consideration of comparative merits, the appointing 
authority is vested with a wide discretion. However, the exercise of that discretion 
presupposes a careful examination of candidates' files and meticulous observance 
of the requirements laid down in the vacancy notice for the post in question, 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. 
(see paras 69-71) 
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BRUMTER v COMMISSION 
See: Volger v Parliament, cited above, para. 24; C-35/92 P Parliament v Frederiksen 
[1993] ECR I-991, paras 15 and 16; T-22/92 Weissenfels v Parliament [1993] ECR 
II-1095, para. 66; T-21/96 Giannini v Commission [1997] ECR-SC I-A-69 and 11-211, 
para. 19; T-159/96 Wenk v Commission [1998] ECR-SC I-A-193 and II-593, para. 63; 
T-283/97 Thinus v Commission [1999] ECR-SC I-A-69 and II-353, para. 42 
4. In the context of a promotion procedure, with a view to establishing whether or 
not the appointing authority exceeded the bounds of the legal framework constituted 
by the vacancy notice for the post to be filled, it is incumbent on the Court, first, 
to examine what conditions were, in that instance, laid down in that notice and then 
to verify whether the candidate selected by the appointing authority to occupy the 
vacant post actually satisfied those conditions. Such a review must be limited to the 
question whether, having regard to the considerations which have influenced the 
administration in making its assessment, the latter has remained within reasonable 
bounds and has not used 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 para. 72) 
See: 282/81 Ragusa v Commission [1983] ECR 1245, para. 9; 233/85 Bonino v 
Commission [1987] ECR 739, para. 5; T-169/89 Frederiksen v Parliament [1991] ECR 
II-1403, para. 69; T-25/90 Schönherr v ESC [1992] ECR II-63, para. 20; T-11/91 Schloh 
v Council [1992] ECR II-203, para. 51; Parliament v Frederiksen, cited above, para. 17; 
T-82/91 Latham v Commission [1994] ECR-SC I-A-15 and II-61, para. 62; T-262/94 
Baiwir v Commission [1996] ECR-SC I-A-257 and II-739, para. 66; Giannini v 
Commission, cited above, para. 20; Delvaux v Commission, cited above, para. 38 
I-A - 169 
SUMMARY - CASE T-351/99 
5. The periodic report constitutes an indispensable criterion of assessment whenever 
an official's career is taken into consideration by the administration. A promotion 
procedure is therefore tainted with irregularity where the appointing authority has 
not been able to consider the comparative merits of the candidates because there has 
been a substantial delay on the part of the administration in drawing up the periodic 
reports of one or more of them. 
(see para. 83) 
See: 24/79 Oberthür v Commission [1980] ECR 1743, para. 8; 7/86 Vincent v Parliament 
[1987] ECR 2473, para. 16; T-386/94 Allo v Commission [1996] ECR-SC I-A-393 and 
II-1161, para. 38 
I-A - 170