JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

13 July 1995

Case T-557/93

Lars Bo Rasmussen

v

Commission of the European Communities

‛Officials — Reports procedure — Staff report — Delay in drawing up the report — Promotion — Procedural irregularity’

Full text in French II-603

Application for:

annulment of the decision of the Commission not to promote the applicant to Grade A 4 in the 1992 promotions procedure and to promote all die officials appearing on the list published in Administrative Notices No 770.

Decision:

Annulment of the decision not to promote the applicant; for the rest, application dismissed.

Abstract of the Judgment

After having been assigned to the Translation Service from 1989 to 1991, the applicant, a Principal Administrator in Grade A 5, worked in Directorate E ‘Health and Safety’ of Directorate-General Employment, Industrial Relations and Social Affairs (DG V).

The applicant signed a ‘staff report’ covering the period 1989 to 1991 which was sent to him on 29 June 1992 and bore the signature of the applicant's immediate superior at DG V, but not the endorsement of his former superior in the Translation Service.

On 13 October 1992, the applicant signed, without expressing any reservations, his staff report for 1989 to 1991 drawn up by his reporting officer after consultation with the applicant's former immediate superior in the Translation Service. The analytical assessment was appreciably lower than that appearing in the document sent on 29 June 1992.

The applicant's name did not appear on the list subsequently published of officials promoted to Grade A 4 in the 1992 promotions procedure.

The first part of the plea alleging procedural irregularity in respect of the consideration of the comparative merits of officials eligible for promotion

The Court rejects the first part of the plea alleging that the Commission, contrary to Article 45 of the Staff Regulations, restricted its consideration of the comparative merits of the candidates exclusively to officials of DG V who were eligible for promotion to Grade A 4, instead of considering die comparative merits of all the officials eligible for promotion to Grade A 4 (paragraphs 17 and 23).

In making that comparative examination, the appointing authority has wide discretion, in regard to which the Court's review 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 19).

See: 324/85 Bouteillerv Commission [1987] ECR 529; T-18/93 Marcato v Commission [1994] ECRSC II-681, para. 45

In a promotions 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 carry out such examination according to the procedure or in the manner which it considers to be the most appropriate (paragraph 20).

See: 62/75 De Wind v Commission [1976] ECR 1167, para. 17; T-53/91 Mergen v Commission [1992] ECR II-2041, para. 30

In those circumstances, the Court finds that a preliminary examination of the applications of officials eligible for promotion, within the Directorate-General of the Commission to which each of them is attached, is not capable of preventing a properly informed consideration of the comparative merits of the applicants, as referred to in Article 45 of the Staff Regulations; on the contrary, it reflects the principle of sound administration (paragraph 21).

See: T-76/92 Tsirimokos v Parliament [1993] ECR II-1281, para. 16; T-78/92 Perakis v Parliament [1993] ECR II-1299, para. 14

The involvement of the Director-General in the promotions procedure is necessary in two respects; first, in order to take into account factors specific to his Directorate-General, with which he is acquainted by means of consultations with various hierarchical superiors and, secondly, in order to place in a single perspective the staff reports on various officials eligible for promotion drawn up by various reporting officers (paragraph 22).

See: Mergen v Commission, cited above

The second part of the plea alleging absence of the staff report at the time of the promotions procedure undertaken in 1992

On the other hand, the Court upholds the applicant's argument that the Commission could not have carried out an examination of the comparative merits of the officials eligible for promotion to Grade A 4 because the applicant's staff report for 1989 to 1991 was missing when the promotion proposals of DG V were published during June 1992 (paragraph 50).

The Court observes, first, that in the interests of the sound administration and the rationalization of the Community's services and in order to safeguard the interests of officials it is mandatory for a staff report to be drawn up. That document constitutes an indispensable criterion of assessment whenever the official's career is taken into consideration by the administration (paragraph 30).

See: 61/76 Geist v Commission [1977] ECR 1419, para. 44; 263/81 List v Commission [1983] ECR 103; C-68/91 P Moritz v Commission [1992] ECR I-6849, para. 16; T-25/92 Vela Palacios v ESC [1993] ECR II-201, para. 43

However, although a promotions procedure is irregular where the appointing authority has not been able to consider the comparative merits of the candidates because there has been a substantial delay on the part of the administration in drawing up the staff reports of one or more of them, it is not required that all the candidates be at exactly the same stage regarding the state of their staff reports at the time of the promotion decision, or that the appointing authority postpone its decision if the most recent report on one or other of the candidates has not yet been drawn up. Furthermore, the fact that the personal file of one candidate is irregular and incomplete is not a sufficient ground for annulling the promotion decisions unless it is established that this might have had a decisive impact on the promotions procedure. Moreover, the appointing authority is not obliged to postpone its decision on promotions but may seek other means of remedying the absence of a staff report. In exceptional circumstances the absence of a staff report may be compensated for by the existence of other information on the official's merits (paragraphs 31 and 32).

See: 86/77 Ditterich v Commission [1978] ECR 1855, paras 18 and 19; 7/86 Vincent v Parliament [1987] ECR 2473; Moritz v Commission and Vela Palacios v ESC, cited above

Finally where there is a sufficiently consistent body of evidence suggesting that there was no real examination of the comparative merits of the candidates, it is for the defendant institution to show, by objective evidence amenable to judicial review, that it observed the guarantees afforded by Article 45 of the Staff Regulations to officials eligible for promotion and did undertake such an examination (paragraph 33).

See: T-25/90 Schönherr v ESC [1992] ECR II-63, para. 25

In tlie present case, tlie Court finds that, by virtue of the applicable provisions, the document sent on 29 June 1992 to the applicant, in so far as it bore the signature of the head of unit V.E.5, for whom the applicant has worked only since 1991, could not in any event constitute a staff report by reason of the lack of authority ralione temporis of that head of unit to act as reporting officer (paragraph 37).

It follows, moreover, that, at the decisive stage of the promotions procedure, which ended in June 2 with the publication of the proposals for promotion by DG V, the applicant's personal file did not contain a staff report for tlie period 1989 to 1991 (paragraph 38).

The Commission has wholly failed to specify the factors on which it may have based itself for the purpose of mitigating the absence of that staff report, with a view to proceeding to a consideration of the comparative merits of the candidates eligible for promotion, in particular the applicant, in the context of the promotions procedure at issue. The Commission has, moreover, not even claimed that it based itself on factors other than the staff reports. Furthermore, it does not appear from the documents before the Court, nor does the Commission even assert, that it undertook a proper reexamination of the applicant's situation following the drawing up of the staff report in October 1992 (paragraphs 40 and 41).

It therefore appears, as the applicant has alleged, without having been plausibly contradicted by the Commission, that the Commission was able to make a decision as to the applicant's eligibility for promotion to Grade A 4 only on the basis of his preceding staff report for the reporting period 1987 to 1989, which was itself simply a repetition of the report covering the period 1985 to 1987. Since the latter report was drawn up while the applicant was an administrator in Grade A 6, it appears that the applicant's personal file did not contain, at the time when the comparative merits of those eligible for promotion to Grade A 4 were being considered, any report genuinely based on the work performed in his capacity as Principal Administrator in Grade A 5 (paragraph 44).

Since, as the applicant claims and the Commission acknowledges, the staff report for 1989 to 1991 necessarily had a decisive influence on the promotions procedure, it follows that neither the Select Joint Committee, nor the Promotions Committee nor the appointing authority was in a position to undertake, to any good purpose, a realistic examination of the applicant's merits as compared with those of the other officials eligible for promotion to Grade A 4 (paragraph 45).

The Court rejects tlie Commission's argument that, in any event, the marks accorded to the applicant, as stated in the October 1992 staff report, were clearly lower than those of the other officials who were promoted and that, therefore, even if the Promotions Committee and the appointing authority had been aware of that report during the decisive period in the promotions procedure, the applicant would in any event not have been included in the list of officials most deserving of promotion to Grade A 4 (paragraph 48).

The Court finds that it was for both the Promotions Committee and the appointing authority, after they had been put in a position to apprise themselves of the staff report of 13 October 1992, to undertake, having regard to that report, a fresh examination of the applicant's candidacy for promotion, if they were not to make the legality of the decision not to include the applicant in the list of officials in DG V most deserving promotion to Grade A 4 dependent on the content of a staff report drawn up several months later, something which is, in any event, not permissible (paragraph 49).

Accordingly, the Court annuls the decision of the Commission not to promote the applicant but dismisses the claim for annulment of the decision of the Commission to promote to Grade A 4 all the officials included in the published list. In the circumstances of the present case, to allow such a claim would constitute an excessive penalty for the irregularity which has been found to exist, the Commission having stated that there is no administrative or budgetary obstacle to a reconsideration of the applicant's merits by the Promotions Committee in the context of the 1992 promotions procedure (paragraphs 51 to 54).

See: 24/79 Oberthiirv Commission [1980] ECR 1743, para. 13

Operative part:

1. The decision of the Commission not to promote the applicant to Grade A 4 in 1992 is annulled.