JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber)

13 July 1999

Case T-24/99

Claudio d'Aloya

v

Council of the European Union

‛Officials — Promotion — Action for annulment — Action for damages’

Full text in Italian II-657

Application for:

first, annulment of two decisions adopted by the Council in the context of the procedure for filling a grade A 2 post in its Legal Service and, second, compensation for nonmaterial damage.

Held:

Application dismissed. The parties to bear their own costs.

Summary

Officials — Promotion — Consideration of comparative merits — Discretion of the administration — Limits — Compliance with the conditions laid down by vacancy notice — Account taken of qualities not expressly indicated — Qualities directly relevant to the post to be filled — Permissible

Officials — Actions — Prior administrative complaint — Mandatory — Action directed against refusal to make an appointment — Claim for annulment of the decision to appoint another candidate, adopted on the basis of a new vacancy notice — Decision not having been the subject of a complaint — Inadmissible

A claim for annulment of the decision to appoint another candidate to a vacant post, adopted on the basis of a new vacancy notice against which the applicant has not made a complaint, in the context of an action brought by an official seeking the annulment of the decision of the appointing authority not to appoint him to that post, is inadmissible. Claims for annulment of the first decision which are exclusively based on the defects allegedly vitiating the second decision must also be held inadmissible. The official none the less retains an interest in seeking the annulment of the decision rejecting his candidature. In the event that that decision were annulled, not only could its unlawfulness constitute a fault such as to render the defendant institution liable, but that institution would also have to give effect to the necessary consequences on the basis of Article 176 of the Treaty (now Article 233 EC). (see paras 30, 31 and 80) See: 346/87 Bossi v Commission [1989] ECR 303, para. 13

Under Articles 29(1)(a) and 45(1) of the Staff Regulations, the appointing authority is obliged to consider the comparative merits of the candidates in accordance with the legal framework which it has set itself under the terms of the vacancy notice. It cannot be concluded that the appointing authority has exceeded the framework of the vacancy notice if it has taken into account qualities which, although not explicit in the vacancy notice, are directly relevant to the duties in question. (see paras 44, 46 and 47) See: C-343/87 Culin v Commission [1990] ECR I-225, para. 19

When assessing the interest of the service and the merits to be taken into consideration for the purposes of a promotion decision pursuant to Article 45 of the Staff Regulations the appointing authority has a wide discretion. Review by the Court of First Instance must be limited to the question whether it remained within reasonable limits and did not use its powers in a manifestly incorrect manner. In particular, the Court cannot substitute its assessment of candidates' merits and qualifications for that of the appointing authority. (see para. 49) See: T-112/96 et T-115/96 Séché v Commission [1999] ECRSC I-A-115 and II-623, para. 61