JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

19 September 1996

Case T-386/94

Alain-Pierre Alio

v

Commission of the European Communities

‛Officials — ‘Second stream’ promotion procedure to Grade A 3 — Action for annulment — Personal file — Absence of staff reports — Action for damages’

Full text in French II-1161

Application for:

annulment of the Commission's decision of 30 May 1994 adopting a list of officials who may be promoted to Grade A 3 by way of the ‘second stream’ procedure and for compensation for the material and nonmaterial damage suffered by the applicant.

Decision:

Commission ordered to pay BFR 10000 to the applicant by way of damages for nonmaterial damage.

Abstract of the Judgment

The Commission's decision of 19 July 1988 concerning the filling of middle-management posts created a special procedure for promotion to Grade A 3, known as ‘second stream’.

Point 4 of that decision is worded as follows:

‘Each year the Member of the Commission responsible for staff matters shall fix, in accordance with the six-day procedure, the number of A 3 posts from among those which have not been filled pursuant to paragraph 3 above, which shall be reserved for promotions to Grade A 3.

In order to utilize this reserve, the Advisory Committee on Appointments, in consultation with the Directors General and heads of service, shall issue, at least once a year, an opinion on the eligible officials who should most particularly be taken into account for promotion to Grade A 3. The list thus drawn up shall exceed by 50% the possibilities for promotion created by the reserve.

Following examination by the heads of cabinets, the promotion decisions in those cases shall be adopted by the Member of the Commission responsible for personnel and administration, in agreement with the Members of the Commission concerned and in accordance with the six-day procedure. ’

On 16 December 1993 the Advisory Committee on Appointments (‘ACA’) drew up a list of 16 officials who should more particularly be taken into account with regard to the ‘second stream’ procedure in the 1993 promotion procedure. To that end, it took into account only the names included on an ‘A 3 priority promotions’ list drawn up by the Directors General and heads of service and containing the names of 69 officials.

On 30 May 1994 the Member of the Commission responsible for personnel and administration took a decision adopting a list of 12 officials who could be taken into account for promotion under the ‘second stream’ procedure (the contested decision). That decision was made known to staff in Informations Administratives No 847 of 3 June 1994.

The applicant was an official in Grade A 4 at the Commission. He was likely to be promoted to Grade A 3 at the material time. His name was not on the list drawn up by the Directors General and the heads of service, or in the ACA's opinion or the contested decision.

On 28 July 1994 he lodged a complaint seeking annulment of the contested decision and compensation for the harm suffered. That complaint was implicitly rejected since the defendant did not reply within the four-month time-limit laid down in Article 90(2) of the Staff Regulations of Officials and other Servants of the European Communities (Staff Regulations).

On 19 December 1994, after the present action was brought, the defendant notified to the applicant an express rejection, adopted on 16 December 1994.

The claim for annulment

The first and third pleas, alleging infringements of Articles 26 and 45 of the Staff Regulations and breach of the principles of equal treatment, protection of legitimate expectations and rights of the defence

The Court considers first of all the arguments put forward by the applicant to challenge the legality of the procedure at issue in general and subsequently those put forward calling in question the legality of the examination of his particular situation (paragraph 28).

Legality of the contested procedure in general

So far as concerns the AC A's decision to restrict its examination of candidatures to the 69 officials included on the list drawn up by the Directors General and the heads of service, the institutions have the power under the Staff Regulations to carry out the consideration of the comparative merits of the candidates required by Article 45(1) of the Staff Regulations according to the procedure or in the manner which they consider to be the most appropriate (paragraph 29).

See: 62/75 De Wind v Commission [1976] ECR 1167, para. 17; T-557/93 Rasmussen v Commission [1995] ECRSC II-603, para. 20

In the present case, it is clear that, by carrying out the consideration of the comparative merits of the officials eligible for promotion according to the ‘second stream’ procedure, the Commission should have taken into account not only the large number of officials but also of the fact that they are distributed among some 40 directorates-general and other services (paragraph 30).

However, a preliminary examination of the candidatures of officials eligible for promotion, within the Directorate-General of the Commission to which each of them is attached, is not capable of preventing properly informed consideration of the comparative merits of the candidates, as referred to in Article 45 of die Staff Regulations; on the contrary, it is an application of the principle of sound administration. The involvement of the Director General in the promotions procedure allows account to be taken of factors specific to his Directorate-General, of which he has become aware through consultations with hierarchical superiors, and a single view to be obtained of staff reports on various officials eligible for promotion drawn up by different reporting officers (paragraph 31).

See: Rasmussen v Commission, cited above, paras 21 and 22

The legality of the ‘second stream’ procedure is not called in question by the fact that the list drawn up by the Directors General and the heads of service is not published and that the officials concerned are not, therefore, able to submit their observations before the ACA issues its opinion and the appointing authority takes its decision. The views of superiors consulted in a promotion procedure must not be made known to the candidates concerned where they form only a comparative assessment of the qualifications and merits of the candidates based on information in their personal file or communicated to the officials concerned (paragraph 33).

See: T-496/93 Allo v Commission [1995] ECRSC II-405. para. 76

Legality of the examination of the applicant's particular situation

In view of the decisive role played by the ‘priority’ list drawn up by the Directors General and the heads of service, the circumstances in which the applicant's Director General carried out the examination of his comparative merits should be examined closely (paragraph 37).

An official's staff report constitutes an indispensable criterion of assessment each time his or her career is taken into consideration by the administration. A promotions procedure will be irregular where the comparative merits of candidates cannot be considered because of substantial delay on the part of the administration in drawing up the staff reports of one or more of them. However, in exceptional circumstances the administration may seek other means of remedying the absence of a staff report (paragraph 38).

See: Rasmussen v Commission, cited above, paras 30 to 32

Where there is a sufficiently consistent body of evidence suggesting that no real examination of the comparative merits of the candidates took place, it is for the defendant institution to show, by objective evidence amenable to judicial review, that it observed the guarantees which officials eligible for promotion have under Article 45 of the Staff Regulations and did undertake such an examination (paragraph 39).

See: T-25/90 Schönherr v ESC [1992] ECR II-63, para. 25; Rasmussen v Commission, cited above, para. 33

In the present case, at the time of the contested procedure, the last staff report in the applicant's personal file related to the 1987/1989 period. The absence of a staff report on the applicant for the 1989/1991 period when the merits of the candidates were being considered by the Director General of the Directorate-General for External Relations (DGIA) is largely attributable to the Commission's conduct. At the very least, the Commission has not put forward any evidence or argument which would allow the Court to conclude that the Director General of DG IA sought to obtain other information to remedy the absence of a staff report for the 1989/1991 period (paragraphs 41 to 44).

The second plea: infringement of Article 25 of the Staff Regulations

Since the Community judicature is under a duty to inquire of its own motion whether an institution has satisfied the obligation to state reasons, an applicant may not be time-barred from relying on that plea merely because he did not raise it during the pre-litigation procedure (paragraph 53).

See: T-534/93 Grynberg and Hall v Commission [1994] ECRSC II-595. para. 59; T-562/93 Obst v Commission [1995] ECRSC II-737. para. 89

Although the appointing authority is not under a duty to state reasons for its decisions on promotions with regard to those candidates who were not promoted, it is nevertheless under a duty to state reasons for its decision to reject a complaint lodged pursuant to Article 90(2) of the Staff Regulations by a candidate who was not promoted, the statement of reasons for that decision being deemed to be the same as the statement of reasons for the decision which was the subject of the complaint (paragraph 56).

See: C-115/92 P Parliament v Volger [1993] ECR I-6549, para. 22

In the present case, no account may be taken of the terms of the decision of 16 December 1994 rejecting the applicant's complaint inasmuch as that decision was adopted after the present action was brought and cannot, therefore, fulfil its function with regard either to the applicant or the court (paragraph 57).

See: T-52/90 Volger v Parliament [1992] ECR II-121, paras 40 and 41

Informations Administratives No 847 cannot be considered to contain an adequate statement of reasons for the contested decision. First, a general and purely procedural statement of reasons cannot be considered to be adequate where the particular relevant ground on which a candidate was excluded has not been communicated to him. Secondly and in any event, that document, which omits all reference to the drawing up of the list by the Directors General and the heads of service, cannot be considered to summarize correctly the procedure followed (paragraph 58).

See: T-16/94 Benecos v Commission [1995] ECRSC II-335, para. 35

The conclusions to be drawn from the irregularities found

Where annulment of the promotions awarded would constitute an excessive penalty for the irregularity committed, the Court may dismiss the action for annulment and order the defendant institution to pay compensation for the nonmaterial damage suffered by the official as a result of the fault committed by the administration. The principle of proportionality requires the interests of applicants who have been the victims of an unlawful act to be reconciled with the interests of third parties and, for that reason, account to be taken not only of the need to restore the rights of applicants but also of the legitimate expectations of third parties (paragraph 60).

See: 24/79 Oberthiir v Commission [1980] ECR 1743, paras 13 and 14; C-242/90 P Commission v Albani [1993] ECR I-3839, para. 14; T-68/91 Barbi v Commission [1992] ECR II-2127, paras 36, 43 and 44; T-18/92 and T-68/92 Coussios v Commission [1994] ECRSC II-171, para. 105, confirmed on appeal by Case C-119/94 P Coussios v Commission [1995] ECR I-1439

Moreover, it is not a sufficient ground for annulling a promotion decision that, at the time when the comparative merits of the candidates were examined, the personal file of one candidate was irregular or incomplete in particular for lack of a staff report, unless it is established that this might have had a decisive impact on the promotions procedure (paragraph 61).

See: Alio v Commission, cited above, para. 71; Rasmussen v Commission, cited above, para. 31

Annulment of the contested decision would constitute an excessive penalty for the irregularities found inasmuch as it would entail annulment of individual promotion decisions taken under the 1993 ‘second stream’ procedure (paragraph 63).

Since the applicant has not established that the contested procedure is vitiated by an inherent defect affecting its legality in general, the only defects found concern examination of his particular situation (paragraph 64).

In the present case, it would be unrealistic to assume that the reopening of the contested procedure could result in the applicant's promotion, bearing in mind, first, how few posts are available (12 at most) by comparison with the number of officials in Grade A 4 eligible for promotion and, secondly, the fact that a thorough examination of his personal file reveals certain shortcomings at the level of human relations (paragraph 65).

In those circumstances, the award of token damages in the sum of BFR 10000 for the nonmaterial damage caused to the applicant by the procedural defect and the failure to state reasons is the form of compensation which best corresponds both to the interests of the applicant and the requirements of the service (paragraph 66).

The claim for compensation

The applicant has not established the material damage he alleges to have suffered (paragraph 73).

However, the Commission should be ordered to make good the nonmaterial damage suffered by the applicant as a result, in particular, of the failure to consult his staff report in the course of the contested promotion procedure (paragraph 74).

The absence of a staff report from the personal file of an official is capable of giving rise to nonmaterial damage not only if the official's career could have been affected thereby but also if this put the official in an uncertain or anxious state of mind with regard to his future (paragraph 76).

See: Allo v Commission, cited above, para. 89

In the present case, the applicant could hardly maintain that the absence of his 1989/1991 staff report put him in an uncertain or anxious state of mind with regard to his future since he had himself requested an extension of the preceding report without changes to the reporting officer's assessments (paragraph 77).

The four-month delay in drawing up the 1991/1993 staff report was not so excessive as to give rise on the part of the official to an uncertain or anxious state of mind with regard to his future (paragraph 78).

Accordingly, the application for compensation should be dismissed inasmuch as it relates to material damage and to nonmaterial damage not covered by the compensation already awarded in the present case (paragraph 79).

Operative part:

1. The Commission is ordered to pay to the applicant the sum of BFR 10000 by way of damages for nonmaterial damage.