Judgment — ECLI:EU:F:2009:10
Date: 2009-02-11
Language of the case: German
Court formation: Third Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Concepts: Assessment of the administration;Equal treatment and non-discrimination;Judicial review
Procedure: Staff cases - successful

Summary 1. Officials – Promotion – Consideration of comparative merits – Administration's discretion – Limits (Staff Regulations, Art. 45) 2. Officials – Equal treatment – Definition 1. 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 must be confined to determining whether, having regard to the various considerations which might 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 Civil Service Tribunal cannot therefore substitute its assessment of the qualifications and merits of the candidates for that of the appointing authority. However, the discretion thereby conferred on the administration is circumscribed by the need to undertake a comparative consideration of the officials’ merits with care and impartiality, in the interest of the service and in accordance with the principle of equal treatment. In practice, that consideration must be undertaken on a basis of equality, using comparable sources of information. The need to undertake such a consideration on a basis of equality and the limited number of merit points available mean that the points must be allocated to the most deserving officials in descending order of merit, until the quota of points has been exhausted. Where it is found, in the consideration of comparative merits undertaken, that certain officials have equivalent merits, those officials must be allocated an identical number of merit points. Should there be an insufficient number of points, the choice between those officials must be made on the basis of secondary considerations such as seniority. (see paras 42-44) See: C-277/01 P Parliament v Samper [2003] ECR I‑3019, para. 35 T-76/92 Tsirimokos v Parliament [1993] ECR II‑1281, para. 21; T‑262/94 Baiwir v Commission [1996] ECR-SC I‑A‑257 and II‑739, para. 66; T-134/02 Tejada Fernández v Commission [2003] ECR-SC I‑A‑125 and II‑609, para. 41; T-353/03 Nielsen v Council [2005] ECR-SC I‑A‑95 and II‑443, para. 58; T-311/04 Buendía Sierra v Commission [2006] ECR II‑4137, para. 93 2. There is a breach of the principle of equal treatment where two categories of persons whose factual and legal situations are not essentially different receive different treatment or where different situations are treated in the same way. The requirement that, in order to obtain the same number of merit points as the officials with whom he has been compared, an official must demonstrate that his merits are greater than the merits of those officials, thus constitutes a breach of the principle of equal treatment. (see paras 45, 49-59) See: 817/79 Buyl and Others v Commission [1982] ECR 245, para. 29; 119/83 Appelbaum v Commission [1985] ECR 2423, para. 25 T-18/89 and T-24/89 Tagaras v Court of Justice [1991] ECR II‑53, para. 68