JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

16 September 1998

Case T-234/97

Lars Bo Rasmussen

v

Commission of the European Communities

‛Officials — Promotion — Equal treatment — Comparative examination of the merits’

Full text in French II-1533

Application for:

annulment of the Commission decision not to promote the applicant to Grade A 4 during the 1996 promotions procedure and for compensation for the damage sustained as a result.

Decision:

Application dismissed.

Abstract of the Judgment

The applicant was recruited by the Commission in 1975 as an administrator in Grade A 6. In 1989 he was promoted to principal administrator in Grade A 5 and on 1 March 1991 he was appointed to the secretariat of the Advisory Committee on Safety, Hygiene and Health Protection at Work in DG V (Employment, Industrial Relations and Social Affairs). On 1 October 1994, he was reassigned to a newly created unit (Promotion of health and monitoring of diseases).

On 2 March 1996 the applicant informed the Director of Directorate F (Public health and safety at work) of DG V (Directorate V.F) that he satisfied all the requirements for promotion to Grade A 4.

When his name was not placed on the list of officials from Directorate V.F put forward for promotion to Grade A 4, the applicant again informed the Director of Directorate V.F that he satisfied all the requirements for promotion. During an interview with the applicant, the Director of Directorate V.F informed him that one of his colleagues was better placed to be included on that list — a consequence of the ‘Noël’ method, which accords weight to the fact that during the last promotions procedure a candidate was placed on the list of those put forward for promotion.

On 4 March 1997, following publication on 4 December 1996 of the list of officials most deserving of promotion to Grade A 4 for 1996, the applicant submitted a complaint seeking annulment of the Commission decision not to promote him to Grade A 4 during the 1996 promotions procedure and/or, in the alternative, seeking payment of at least BEF 500000 by way of compensation for nonmaterial damage sustained. In that complaint, the applicant relied on breach of the principle of equal treatment of officials and infringement of Article 45 of the Staff Regulations. The complaint was rejected by decision of 11 June 1997.

The application for annulment

The first plea in law: breach of the principle of non-discrimination

A preliminary examination of the applications of officials eligible for promotion, within their respective Directorates-General, does not necessarily preclude a properly informed consideration of the comparative merits of the applicants (paragraph 23).

See: T-557/93 Rasmussen v Commission [1995] ECRSC II-603, paras 21 and 22

Although the preliminary examination of applications, within the various Directorates-General, during the promotions procedure reflects the principle of sound administration, it cannot replace the comparative examination which must be undertaken by the Promotions Committee. The applicant is therefore entitled to expect the Promotions Committee to compare his merits with those of the other candidates (paragraph 24).

In the course of the comparative examination of the merits of candidates for a promotion, the appointing authority may take into account age and seniority in grade or service, those criteria being decisive in cases where candidates are evenly balanced in terms of qualifications and merits. The professional experience acquired by an official before his entry into service with the Commission may also be taken into account by the appointing authority when it is examining the merits of candidates for promotion (paragraph 27).

See: 298/81 Colussi v Parliament [1983] ECR 1131; T-262/94 Baiwir v Commission [1996] ECRSC II-739, para. 109

On that point it should be noted that experience acquired within the European civil service as a member of the temporary staff in the same grade as an official -having regard to the similar, even identical, nature of the tasks performed - must be considered separately from experience acquired in any other professional context (paragraph 28).

See: T-56/89 Bataille and Others v Parliament [1990] ECR II-597; T-40/96 and T-55/96 De Kerros and Kohn-Bergé v Commission [1997] ECRSC II-135

Consequently, the fact that account was taken, for the purposes of calculating seniority, of experience acquired as a member of the temporary staff does not mean that the applicant was discriminated against when the comparative examination was undertaken in the present case (paragraph 29).

That finding is not inconsistent with the judgment of the Court of Justice in Case 117/81 Geist v Commission [1983] ECR 2191. Although it is clear from that judgment that in the case of an application in response to a vacancy notice it may be justifiable to treat officials differently where their duties within an institution vary, it does not follow that experience as a member of the temporary staff may not be taken into consideration when comparing the merits of the officials eligible for promotion (paragraph 30).

Vie second plea in law: infringement of Article 45 of the Staff Regulations

(i) Failure to place the applicant's personal file at the disposal of the promotion body

Appraisal of the respective merits of officials is a crucial element in promotion procedures and for that purpose the staff report is a vital point of reference every time an official's career is taken into consideration by the official body concerned (paragraph 36).

See: 293/87 Vainkerv Parliament [1989] ECR 23; T-58/89 Williams v Court of Auditors [1991] ECR II-77; T-59/96 Burbau v Parliament [1997] ECRSC II-331, para. 73

In the present case, the applicant has failed to demonstrate that no comparative examination of his merits was undertaken.

(ii) A comparative examination of merits was undertaken solely in the case of officials in DG V who were eligible for promotion to Grade A 4

In assessing the merits of candidates for promotion, the appointing authority possesses a wide discretion and in that connection review by the Community judicature must be confined to the question whether the administration has remained within reasonable bounds and has not used its power in a manifestly incorrect way (paragraph 49).

See; 324/85 Bouteiller v Commission [1987] ECR 529, para. 6

It is expressly stated in the first subparagraph of Article 45(1) of the Staff Regulations that in promotion procedures the appointing authority is required to make its choice on the basis of a comparative examination of the staff reports and merits of the candidates eligible for promotion. To that end, it has a power under the Staff Regulations to undertake that examination in accordance with the procedure or method which it considers most appropriate (paragraph 50).

See: 62/75 De Wind v Commission [1976] ECR 1167, para. 17; T-53/91 Mergen v Commission [1992] ECR II-2041

Specifically, the Commission did not infringe Article 45 of the Staff Regulations by using the method which it considered most appropriate, that is to say, by undertaking a preliminary examination of candidatures within each Directorate-General.

(iii) Use of the ‘Noël’ method for assessing officials eligible for promotion

An official may not submit conclusions with a subject-matter other than that covered in the complaint or put forward heads of claim based on matters other than those relied upon in the complaint (paragraph 62).

See: T-57/89 Alexandrakis v Commission [1990] ECR II-143, para. 9; T-58/91 Booss and Fischer v Commission [1993] ECR II-147, para. 83; T-118/95 Anacoreta Correia v Commission [1996] ECRSC II-835; T-159/95 Dricot and Others v Commission [1997] ECRSC II-1035, para. 22

Since this head of claim is based on a matter other than that raised in the complaint, it must be rejected as inadmissible.

The claim for damages

The Commission can only be held liable for damages if a number of conditions are satisfied as regards the illegality of the allegedly wrongful act committed by the Community body, the actual harm suffered and the existence of a causal link between the act and the damage purportedly suffered (paragraph 71).

See: T-589/93 Ryan-Sheridan v EFILWC [1996] ECRSC II-77, para. 141

Since the applicant has failed to provide proof of unlawful acts committed by the Commission, the claim for damages must be dismissed.

Operative part:

The application is dismissed.