Judgment — ECLI:EU:T:2003:108
Date: 2003-04-09
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Concepts: Promotion;Act adversely affecting the official
Procedure: Staff cases - successful

SUMMARY - CASE I-134/02 
Summary 
1. Officials - Actions -Act adversely affecting the applicant - Decision rejecting 
a complaint — Pure and simple rejection — Confirmation of act adversely affecting 
the applicant - Action inadmissible 
(Staff Regulations, Art. 91(1)) 
2. Officials — Actions -Act adversely affecting an official - Refusal to propose 
an official for promotion — Preparatory measure - Inadmissible 
(Staff Regulations, Arts 90(2) and 91) 
3. Officials - Promotion - Candidates suitable for promotion - Right to 
promotion - None 
(Staff Regulations, Art. 45(1)) 
4. Officials - Promotion - Discretion of the administration - Judicial review -
Limits 
(Staff Regulations, Art. 45) 
5. Officials — Promotion — Consideration of comparative merits - Discretion of 
the administration - Limits 
(Staff Regulations, Art. 45) 
6. Officials — Promotion — Criteria — Merits - Taking into consideration of 
seniority and age — Subsidiary nature 
(Staff Regulations, Art. 45) 
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TEJADA FERNÁNDEZ v COMMISSION 
1. Every decision purely and simply rejecting a complaint, whether it be express or 
implied, only confirms the act or failure to act to which the complainant takes 
exception and is not, by itself, a decision which may be challenged. It is only when 
this decision upholds all or part of the complaint of the person concerned that it 
will, in appropriate circumstances, constitute by itself a decision against which an 
action can be brought. 
(see para 16) 
See: 371/87 Progoulis v Commission [1988] ECR 3081, para 17; T-196/95 H v 
Commisuon [1997] ECR-SC I-A-133 and II-403, para 40 
2. A refusal to propose an official for promotion is, as a rule, merely a preparatory 
measure and as such may not be the subject of an action for annulment. However, 
such a refusal may nevertheless be disputed in the course of an appeal against the 
final decision taken at the end of the promotions procedure. 
(see para. 18) 
See: 3/66 Alfieri v Parliament [1966] ECR 437, 446; 78/87 and 220/87 Santarelli v 
Commission [1988] ECR 2699 
3. The Staff Regulations do not confer a right to promotion even for officials who 
meet all the conditions for promotion. 
(see para 40) 
See: T-3/92 Latham v Commission [1994] ECR-SC I-A-23 and II-83. para 50; T-262/94 
Baiwir v Commission [1996] ECR-SC I-A-257 and 11-739, para 67 
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SUMMARY - CASE T-134/02 
4. The appointing authority has a wide discretion in assessing the merits to be taken 
into consideration in a decision on promotion under' Article 45 of the Staff 
Regulations, and review by the Community judicature is confined to determining 
whether, having regard to the various considerations which have influenced the 
administration in making its assessment, it 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 qualifications and merits of the candidates 
for that of the appointing authority. 
(see paras 41, 58) 
See: Baiwir v Commission, cited above, para. 66; T-221 /96 Manzo-Tafaro v Commission 
[1998] ECR-SCI-A-115 and II-307, para. 16; T-187/98 Cabero Vermurie v Commission 
[2000] ECR-SC I-A-195 and II-885, para 58 
5. The discretion allowed to the administration to evaluate the merits to be taken 
into consideration in connection with a promotion procedure pursuant to Article 45 
of the Staff Regulations is circumscribed by the need to undertake a comparative 
consideration of candidatures with care and impartiality, in the interests of the 
service and in accordance with the principle of equal treatment. In practice, 
consideration of the comparative merits of candidatures must be undertaken on a 
basis of equality, using comparable sources of information. 
(see para. 41) 
See: T-76/92 Tsirimokos v Parliament [199.3] ECR II-1281, paras 20 and 21; T-157/98 
Oliveira v Parliament [1999] ECR-SC I-A-163 and II-851, para. 35 
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TEJADA FERNÁNDEZ v COMMISSION 
6. In a promotion procedure, the appointing authority is required to make its choice 
on the basis of a consideration of the comparative merits of the candidates eligible 
for promotion and of the reports on them. To that end, it has power under the Staff 
Regulations to undertake such consideration according to the procedure or method 
which it considers to be the most appropriate. The assessment of the merits of the 
officials eligible for promotion is therefore the decisive factor for all promotions, 
while the appointing authority may take candidates' age and seniority in grade or 
service into consideration only as a secondary factor. Only where the merits of the 
officials eligible for promotion are equal may those additional criteria come into 
play and even constitute a decisive factor in that authority's choice. 
(see para 42) 
See: 62/75 ere Wind v Commission [1976] ECR 1167, para 17; T-557/93Rasmussen v 
Commission [19951 ECR-SC I-A-195 and II-603, para 20; T-280/94 Lopes v Court oj 
Justice [1996] ECR-SC I-A-77 and II-239, para 138; Manzo-Tafaro v Commission, cited 
above, para 18; Cubero Vermurw v Commission, cited above, para 59; T-163/01 Pérez 
Escanilla v Commission [2002] ECR-SC I-A-131 and II-717, para 29 
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