JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

18 December 1997

Case T-142/95

Jean-Louis Delvaux

v

Commission of the European Communities

‛Officials — Promotion — Comparative examination of merits — Staff report — Statement of reasons — Identical career conditions — Discrimination on grounds of nationality’

Full text in French II-1247

Application for:

first, annulment of two decisions of the Commission, published in Administrative Notices No 858 of 2 September 1994 and No 859 of 8 September 1994, on the ground that the applicant's name is not included in those notices on the list of officials considered most deserving of promotion to Grade LA 4 or on the list of the officials actually promoted to Grade LA 4 in 1994, second, annulment of the Commission's decision of 3 April 1995 rejecting the applicant's complaint and, third, an order that the Commission pay the applicant BFR 100000 by way of compensation for the nonmaterial damage suffered as a result of the irregularity of the promotions procedure.

Decision:

Application dismissed.

Abstract of the Judgment

At the time of the promotions procedure for 1994 the applicant was an official in Grade LA 5 in the Commission's Translation Service. That service is divided into seven thematic groups. Each of those thematic groups consists of nine language units, one for each official language of the Community. The applicant, who is of Danish mother tongue and nationality, was employed in thematic group E, in the Danish language unit. That group specialises in the areas of technology, energy, industry, the environment and transport.

When the promotions procedure for 1994 commenced the applicant was on the list of officials eligible for promotion to Grade LA 4.

On the basis of that list of officials eligible for promotion, the heads of the Danish language units drew up an alphabetical list of the officials whom they proposed for promotion on the basis of a numbered classification (linguistic list), which did not include the applicant's name.

In the course of a meeting between the Director-General of the Translation Service and staff representatives one of the latter suggested that the applicant's name be included on the list of proposals for promotion. Another staff representative then expressed a negative opinion of the applicant's linguistic merits.

Under the presidency of the Director-General of the Translation Service, the thematic directors then drew up a joint list of proposals in the order of the officials' merit. That list was then approved by the Director-General of the Translation Service, who forwarded it to the various Promotion Committees. Those proposals for promotion were published in Administrative Notices No 845 of 11 May 1994.

Since he was not included on that list, the applicant wrote to the President of the Promotion Committee, Mr Williamson, on 16 May 1994 asking him to reexamine his file and to enter him on the list. By a memorandum of 25 October 1994 Mr Williamson informed the applicant that the Select Working Party responsible for examining requests of that type was unable to make a favourable recommendation to the LA Promotion Committee.

In the meantime, on the basis of the proposals made by all the Directorates-General of the Commission, the various Promotion Committees drew up draft lists of officials deemed to be the most deserving of promotion. Those draft lists were then forwarded to the appointing authority, which, on the unanimous recommendation of the Promotion Committees, adopted the list of the officials deemed to be the most deserving of promotion. That list, which also did not include the applicant, was published in Administrative Notices No 858 of 2 September 1994.

From that list the appointing authority chose the officials which it wished to promote during 1994. The list of officials promoted, which did not include the applicant, was published in Administrative Notices No 859 of 8 September 1994.

On 1 December 1994 the applicant submitted a complaint within the meaning of Article 90(2) of the Staff Regulations of Officials of the European Communities (Staff Regulations) against the decisions of the Commission published in Administrative Notices Nos 858 and 859. On 3 April 1995 that complaint was the subject of an implied decision rejecting it.

Following a request by the applicant on 6 June 1995, the Select Working Party responsible for examining appeals referred the present case to the Promotion Committee. The applicant was informed by memorandum from Mr Williamson dated 20 September 1995 that his appeal had been rejected.

Substance

First plea in law, alleging breach of Article 45(1) (consideration of comparative merits) and Article 26 (information which should appear in the personal file) of the Staff Regulations

First part of the first plea, alleging breach of Article 45(1) of the Staff Regulations (consideration of comparative merits)

— First complaint in the first part of the first plea (alleging absence of a comparative consideration of all the applicant's merits)

The appointing authority has power under the Staff Regulations, when deciding on promotions, to take its decisions on the basis of a comparative consideration of the merits of the candidates eligible for promotion carried out by the method which it considers most appropriate. Since the appointing authority has a wide discretion, review by the Community judicature must be confined to the question whether, having regard to the bases on which it took its decision, the administration has remained within proper bounds and has not used its power in a manifestly incorrect manner. The Court cannot therefore substitute its own assessment of candidates' qualifications and merits for that of the appointing authority (paragraphs 37 and 38).

See 62/75 De Wind v Commission [1976] ECR 1167, para. 17; 282/81 Ragusa v Commission [1983] ECR 1245, para. 9; T-25/90 Schönherr v ESC [1992] ECR II-63, para. 20; T-11/91 Scliloh v Council [1992] ECR II-203, para. 51; T-53/91 Mérgen v Commission [1992] ECR II-2041, para. 33; T-262/94 Baiwir v Commission [1996] ECRSC II-739, paras 65 and 66

The Staff Regulations do not confer an automatic right to promotion, even on officials who meet all the conditions for promotion (paragraph 39).

See; T-3/92 Latham v Commission [1994] ECRSC II-83. para. 50; T-507/93 Branco v Court of Auditors [1995] ECRSC II-797, para. 28; Baiwir v Commission, cited above, para. 67

First, as regards the method of evaluation employed by the Commission in the present case, it consists of a twofold comparison of the comparative merits of officials eligible for promotion: within their language units and their directorate-general, on the one hand, and within the Promotion Committees and the appointing authority, on the other. A preliminary consideration of the candidates eligible for promotion within the Directorate-General of the Commission to which each of them is attached is not capable of preventing consideration of the comparative merits of candidates, as referred to in Article 45 of the Staff Regulations; on the contrary, it is an application of the principle of sound administration (paragraph 41).

See: T-557/93 Rasmussen v Commission [1995] ECRSC II-603, paras 21 and 22; T-386/94 Allo v Commission [1996] ECRSC II-1161, para. 31

Second, the Heads of Unit play an important role in the consideration of candidates' comparative merits, since they are best placed to know the abilities of the officials working in their units. Pre-selection by the Heads of Unit followed by reconsideration of the merits of candidates eligible for promotion by the Director-General (having regard, in particular, to the organisation and structure of the Translation Service) may serve effectively as a useful basis for consideration of candidates' comparative merits. Moreover, the lists drawn up by the Heads of Unit are, in principle, merely preparatory by nature (paragraphs 42 and 43).

Third, the applicant has not shown how the absence of a staff representative at the meetings of the Heads of Unit constituted a breach of Article 45(1) of the Staff Regulations, since no provision of the Staff Regulations requires the presence of a staff representative at such meetings (paragraph 44).

See: Allo v Commission, cited above, para. 35

The applicant's arguments concerning breach of the principle of equality of opportunities are subsumed under the first part of the third plea in law, alleging breach of Article 5(3) of the Staff Regulations, and will be examined in that context (paragraph 45).

The applicant has failed to establish that the procedure for comparing merits followed in the present case infringed Article 45(1) of the Staff Regulations (paragraph 46).

— The second complaint in the first part of the first plea in law (alleging an error in assessing the respective merits of the applicant and of an official who was promoted)

Examination of the documents in the administrative file shows that the applicant's merits were inferior to those of the officials promoted, apart from those of Mrs X (paragraph 49).

The Commission was entitled to regard Mrs X's merits and the applicant's as equivalent. The difference between their respective merits is marginal and does not in any way indicate that one candidate is superior to the other (paragraph 52).

Where the merits of two officials are equal, seniority is merely one of a number of criteria and the appointing authority is therefore not to be criticised for having accorded more weight to the criterion of age than to that of seniority (paragraphs 53 and 54).

See: 298/81 Colussi v Parliament [1983] ECR 1131, para. 22; 9/82 Øhrgaard and Delvaia v Commission [1983] ECR 2379, para. 19; 293/87 Vainkerv Parliament [1989] ECR 23, para. 16

The applicant has not established that the Commission used its power in a manifestly incorrect or abusive manner when considering the comparative merits (paragraph 55).

Second part of the first plea in law (alleging failure to take account of the applicant's activities outside his unit)

The applicant's staff reports for the periods 1 July 1989 to 30 June 1991 and 1 July 1991 to 30 June 1993 expressly refer to his activities outside his unit. The staff reports are drawn up by the immediate superior of each official concerned. The applicant's Head of Unit was therefore aware of the activities in which he was involved and also of the assessment pertaining thereto. There is no evidence that the activities exercised outside his unit were not taken into consideration when the officials' comparative merits were considered and, more particularly, when the list of officials proposed for promotion was drawn up (paragraphs 58 to 59).

Third part of the first plea in law, alleging breach of Article 26 of the Staff Regulations (absence of information which should be in the personal file)

The purpose of Articles 26 and 43 of the Staff Regulations is to guarantee an official's right to a fair hearing by ensuring that decisions taken by the appointing authority affecting his administrative status and his career are not based on matters concerning his conduct which are not included in his personal file. A decision based on such matters is contraiy to the guarantees contained in the Staff Regulations and must be annulled because it has been adopted on the basis of a procedure vitiated by illegality (paragraph 69).

See: 21/70 Rittweger v Commission [1971] ECR 7, paras 29 to 41; 233/85 Bonino v Commission [1987] ECR 739, para. 11; T-82/89 Marcato v Commission [1990] ECR II-735, para. 78 T-78/92 Perakis v Parliament [1993] ECR II-1299, para 27; T-109/92 Lacruz Bassols v Court of Justice [1994] ECRSC II-105, para. 68

Those provisions do not in principle cover opinions given by immediate superiors consulted in the course of a promotion procedure. Such opinions are not to be notified to the candidates concerned, since they contain only a comparative assessment of their qualifications and merits, based on factual considerations mentioned in their personal file or notified to them, so that those concerned have had an opportunity to make any comments. Those opinions therefore reflect the discretion which the administration enjoys in the matter and do not fall under the requirements of Article 26, which are intended to guarantee an official's right to a fair hearing and thus enable the administration to reach a decision in full knowledge of the facts (paragraph 70).

See: Perakis v Parliament, cited above, para. 28; Lacruz Bassols v Court of Justice, cited above, para. 69

That is not the case, however, where such opinions also contain, in addition to the assessments involved in the comparative consideration of merits, references to a candidate's ability, efficiency or conduct not previously included in his personal file. Where that is the case, Article 26 of the Staff Regulations requires the administration to include that information in the official's personal file. None the less, the failure to notify such assessments to the official concerned so that he may make any comments thereon cannot vitiate the decisions rejecting his candidature and appointing another candidate to the post in question unless they had a decisive influence on the choice made by the appointing authority (paragraphs 71 to 72).

See: Rittweger\Commission, cited above, para. 35; 88/71 Brasseurv Parliament [1972] ECR 499, para. 18; Bonino v Commission, cited above, para. 13; Perakis v Parliament, cited above, para. 29

In the present case a staff representative actually gave a negative opinion of the applicant's linguistic merits at the meeting held for die purpose of drawing up proposals for promotion between the Director-General and a number of staff representatives. Moreover, the assessments on which that opinion was based had not been included in the applicant's personal file or notified to him prior to the adoption of the contested decisions (paragraph 73).

It is not in any way established that in taking the contested decisions the Commission was influenced by the unfavourable comments made by one of the staff representatives in the course of a meeting between the staff representatives and the Director-General. Consequently, there is no adequate reason for thinking that in the present case the matters serving as the basis for those critical comments, which were not notified to the applicant prior to the adoption of the contested decisions, had any influence on their content (paragraphs 77 and 78).

Second plea in law, alleging breach of the obligation to state reasons laid down in the second paragraph of Article 25 of the Staff Regulations

Although the appointing authority is not required under Article 45 of the Staff Regulations to state the reasons on which promotion decisions are based, in particular as regards candidates who are not promoted, it is required to state the grounds for rejecting a complaint submitted under Article 90(2) of the Staff Regulations by a candidate who has not been promoted. That obligation to state, at least at the stage of rejecting the complaint, the reasons on which a contested promotion decision is based is intended, on the one hand, to provide the official concerned with sufficient information to determine whether the act adversely affecting him is well founded and whether it is appropriate to bring legal proceedings and, on the other, to enable the Court to review the legality of the promotion decision. As promotions and transfers involve choices, it suffices that the statement of reasons for the rejection of the complaint deals with the satisfaction of the legal conditions which under the Staff Regulations determine the regularity of procedure (paragraphs 83 and 84).

See: 188/73 Grassi v Council [1974] ECR 1099, para. 12; 111/86 Delauche v Commission [1987] ECR 5345, para. 13; Mergen v Commission, cited above, para. 40; T-25/92 Vela Palacios v ECS [1993] ECR II-201, para. 22; C-115/92 P Parliament v Volger [1993] ECR I-6549, para 22; T-158/94 Brunagel v Parliament [1996] ECRSC II-1131, para. 107; T-237/95 Carbajo Ferrerò v Parliament [1997] ECRSC II-429, para. 82

The letter of 5 April 1995 rejecting the applicant's complaint sets out to the requisite legal standard the reasons for which the applicant's name did not appear in the contested list of officials proposed for promotion (paragraphs 85 and 86).

Third plea, alleging breach of Article 5(3) and Article 27 of the Staff Regulations (breach of the principles of equality of opportunities and nondiscrimination)

First part of the third plea, alleging breach of Article 5(3) of the Staff Regulations and the principle of nondiscrimination

The general principle of equality and nondiscrimination is intended to ensure that comparable situations are not treated differently, unless different treatment is objectively justified. In so far as all the translators in the Commission's Translation Service, whose duties consist in translating from one or more source languages into a target language, are in comparable situations, the procedure of pre-selection in the context of the language units, followed by a reconsideration ofthat procedure which takes account of officials eligible for promotion throughout the Translation Service, does not infringe Article 5(3) of the Staff Regulations or the principle of nondiscrimination (paragraphs 94 to 96).

See: Lacruz Bassols v Court of Justice, cited above, para. 87

Second part of the third plea in law, alleging breach of the third paragraph of Article 27 of the Staff Regulations (discrimination on grounds of nationality)

The provisions of Articles 7 and 27 of the Staff Regulations taken together, provide that for the purposes of the recruitment, promotion and posting of its officials each Community institution must, first, be guided by the interest of the service without regard to nationality and, second, ensure that officials are recruited on the broadest possible geographical basis from among nationals of Member States of the Communities (paragraph 102).

See: 85/82 Schloh v Council [1983] ECR 2105, para. 26; T-178/95 and T-179/95 Picciolo and Caló v Committee of the Regions [1997] ECRSC II-155, para. 66

There is no evidence whatsoever before the Court of any discrimination on grounds of nationality or place of birth (paragraph 103).

Claim for compensation

Liability on the part of the Community presupposes that a number of conditions are satisfied as regards the illegality of the conduct for which the institutions are criticised, actual damage and the existence of a causal link between the conduct and the harm which is alleged. A claim by an official for compensation for damage allegedly caused to him by conduct of the administration which deprived him of a possibility of promotion must be dismissed if the illegality of that conduct is not established. In the present case it has been held that no unlawful conduct could be imputed to the Commission (paragraphs 109 and 110).

See: Latham v Commission, cited above, para. 66; T-82/91 Latham v Commission [1994] ECRSC II-61, para. 75; T-506/93 Moat v Commission [1995] ECRSC II-147, paras 46 to 49;T-36/93 Ojha v Commission [1995] ECRSC II-497, para. 130; T-35/95 Rasmussen v Commission [1997] ECRSC II-187. para. 82

Operative part:

The application is dismissed.