JUDGMENT OF THE COURT OF FIRST INSTANCE (Single Judge)

15 November 2001

Case T-194/99

Cristiano Sebastiani

v

Commission of the European Communities

‛Officials — Promotion — Staff report — Absence — Consideration of comparative merits’

Full text in French II-991

Application for:

annulment of the Commission's decision not to promote the applicant to Grade A 6 in the 1998 promotion procedure.

Held:

The Commission's decision not to promote the applicant to Grade A 6 in the 1998 promotion procedure is annulled. The Commission is ordered to pay the costs.

Summary

Officials — Promotion — Consideration of comparative merits — Taking into consideration of periodic reports — Incomplete personal file — Consequences

(Staff Regulations, Arts 43 and 45)

The periodic report constitutes an indispensable criterion of assessment each time the official's career is taken into consideration by the administration and a promotion procedure is tainted with irregularity where the appointing authority has not been able to consider the comparative merits of the candidates because there has been a delay in drawing up one or more periodic reports.

However, that does not mean that when the promotion decision is made all the candidates must be at exactly the same stage regarding the state of their periodic reports or that the appointing authority must postpone its decision if the most recent report on one or other of the candidates is not yet definitive as a result of referral to the appeal assessor or to the Joint Committee on Staff Reports.

It follows that it is, in principle, permissible for the appointing authority to examine the comparative merits of the officials eligible for promotion even though it does not have available to it the most recent periodic report of one of the candidates and that that circumstance alone does not in itself constitute an irregularity in the promotion procedure.

However, that course of action does give rise to an irregularity where the definitive periodic report is missing not as a result of the normal course of the reporting procedure but because of a substantial delay in that procedure which is attributable solely to the administration.

In that regard, the irregularity arising from the absence of the periodic report of one of the candidates at the time of the consideration of comparative merits does not incur a sanction in two situations.

Firstly, in exceptional circumstances, the absence of a periodic report may be compensated for by the existence of other information on an official's merits. In that regard, information can compensate for the absence of a periodic report only where it meets certain conditions, and it is for the defendant institution to show that all those conditions were satisfied. First, the information must be sufficiently objective to allow judicial review; second, it must contain an assessment of the official's merits by the persons responsible for drawing up his periodic report; third, it must have been communicated to the official in such a way as to ensure his rights of defence, and fourth, it must be available to the Promotion Committee when it examines the comparative merits of all the candidates.

Secondly, the fact that the personal file of one candidate is irregular and incomplete is not a sufficient ground for the annulment of the promotions; it must also be established that this was capable of having a decisive effect on the promotion procedure.

(see paras 43-46, 54, 60)

See: 156/79 and 51/80 Gratreau v Commission [1980] ECR 3943, paras 22 and 24; 263/81 List v Commission [1983] ECR 103, paras 25 to 27; 7/86 Vincent v Parliament [1987] ECR 2473, paras 16 and 17; C-68/91 P Moritz v Commission [1992] ECR I-6849, paras 16 to 18; T-386/94 Allo v Commission [1996] ECRSC I-A-393 and II-1161, para. 38; T-82/98 Jacobs v Commission [2000] ECRSC I-A-39 and II-169, para. 41 ; T-202/99 Rappe v Commission [2000] ECRSC I-A-201 and II-911, paras 39, 40, 44, 45 and 56