JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

29 September 2009

Case F-125/07

Armin Hau

v

European Parliament

(Civil service – Officials – Promotion – 2006 promotion exercise – Non‑inclusion on the list of promoted officials – Consideration of comparative merits – Relevant threshold – Failure to take into account the fact that the official concerned was included in the reserve)

Application: brought under Articles 236 EC and 152 EA, in which Mr Hau seeks annulment of the Parliament’s decision, published on 21 November 2006, not to include his name on the list of officials promoted to grade B*7 for the 2006 promotion exercise.

Held: The Parliament’s decision, published on 21 November 2006, not to include the applicant on the list of officials promoted to grade B*7 for the 2006 promotion exercise is annulled. The Parliament is ordered to pay the costs.

Summary

1. Officials – Decision adversely affecting an official – Obligation to state the reasons on which the decision is based – Possibility of providing a statement of reasons for a decision not to promote an official at the pre-litigation stage – Consequences

(Staff Regulations, Arts 25, second para., and 90(2))

2. Officials – Promotion – Consideration of comparative merits – Taking into account of the fact that an official has already been proposed for promotion in the previous exercise

(Staff Regulations, Art. 45)

1. The administration has the right to provide a statement of reasons for a decision not to promote an official at the pre-litigation stage. However, where the administration exercises that right, it clearly denies the officials concerned of the possibility of lodging a complaint with knowledge of the grounds for the contested decision and, therefore, of developing their arguments accordingly. Consequently, in a situation where an official has been apprised of the reasons for a decision only at the point when his complaint was rejected, the administration cannot object that the principle of consistency between the complaint and the application must be observed in respect of pleas in law or complaints relating to those reasons.

(see para. 24)

See:

T-52/90 Volger v Parliament [1992] ECR II‑121, para. 36

2. 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. Review by the Community judicature must therefore 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.

However, the fact that it has a wide discretion does not exempt the administration from its obligation to examine carefully and impartially all the relevant factors in a particular case. The fact that an official was proposed for promotion in the previous promotion exercise to the exercise in question constitutes a relevant merit factor, provided that the official has not lost merit since the promotion exercise in which he was proposed for promotion.

Furthermore, the systematic failure to take account of the fact that the official concerned was included in the reserve could create discrimination between officials who are candidates for promotion, since it would lead to objectively different situations being treated in the same way. Since the fact that an official had already attained the promotion threshold in the previous promotion exercise is intrinsically linked to the merits he demonstrated previously, that places him in a different situation, with regard to that aspect of his merit, from that of persons who did not attain the promotion threshold in the previous exercise.

(see paras 26-28)

See:

26/85 Vaysse v Commission [1986] ECR 3131, para. 26; C-269/90 Technische Universität München [1991] ECR I‑5469, para. 14

T-169/89 Frederiksen v Parliament [1991] ECR II‑1403, para. 69; T-30/04 Sena v EASA [2005] ECR-SC I‑A‑113 and II‑519, para. 80 ; T-132/03 Casini v Commission [2005] ECR-SC I‑A‑253 and II‑1169, para. 69

F‑107/06 Berrisford v Commission [2007] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, para. 76