Keywords

Summary



Keywords

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1. Officials ° Actions ° Interest in bringing proceedings ° Action for the annulment of the appointment of another official ° Applicant nearing retirement ° Admissibility ° Conditions

(Staff Regulations, Arts 90 and 91)

2. Officials ° Actions ° Act adversely affecting an official ° Preparatory act ° Opinion of a consultative body ° Not admissible

(Staff Regulations, Arts 90 and 91)

3. Officials ° Actions ° Prior administrative complaint ° Time-limits ° Matter of public policy ° Action brought before the rejection of the complaint ° Inadmissible

(Staff Regulations, Arts 90 and 91)

4. Officials ° Vacanct post ° Filled by promotion ° Consideration of comparative merits candidates ° Account taken of staff reports ° Incomplete personal file ° Irregularity not remedied by the existence of other information concerning the candidate' s merits ° Promotion prospects compromised

(Staff Regulations, Art. 45(1))

5. Officials ° Actions ° Action for damages ° Annulment of the contested unlawful act ° Adequate compensation for the material and non-material harm

(Staff Regulations, Art. 91)

Summary

1. In order for an official to be able to bring an action under Articles 90 and 91 of the Staff Regulations for the annulment of a decision of the appointing authority making an appointment, he must have a personal interest in the annulment of the contested decision. An official has such an interest where, having regard to the time required for compliance with a judgment and the period that remains before his retirement, he can still reasonably aspire to the post in question.

2. Preparatory acts, such as the opinion of an Advisory Committee on Appointments which has merely advisory powers, cannot, even if they are the only acts of which the applicant claims to be aware, be the subject-matter of an action.

3. The time-limits in an action are a matter of public policy and are not at the discretion of the parties or the court, having been established with a view to ensuring legal clarity and certainty. It is imperative that an action brought against an act of the appointing authority adversely affecting an official should be preceded by a complaint prior to action which has been rejected by an express or implied decision. The purpose of such a procedure is to give the administration the possibility of reconsidering the contested measure and the official the possibility of accepting the reasons underlying the contested measure and deciding not to bring an action and, accordingly, the parties cannot circumvent it. An action brought before the complaint was rejected is therefore inadmissible, without any possibility of validation.

4. The requirement that the comparative merits of candidates for promotion and their staff reports should be considered is an expression of both the principle of equal treatment of officials and the principle that they should have reasonable career prospects.

Staff reports provide indispensable information whenever the careers of officials are considered for the purpose of adopting a decision. A promotion procedure is irregular where the appointing authority has not been able to consider the comparative merits of the candidates because, owing to the fault of the administration, the staff reports of one or more candidates were drawn up with a significant delay, save where the appointing authority had available other information concerning the candidates' merits on the basis of which it was able to consider their comparative merits.

Unless it is established that the absence of a candidate' s last staff report, which is subsequently shown to record positive changes, was offset by knowledge of information equivalent to that report in the possession of the bodies deciding on his candidature, the promotion procedure must be regarded as unlawful.

5. Annulment of the decision rejecting an official' s candidature for promotion and of the decision appointing another candidate affords adequate and sufficient compensation for the material or non-material harm suffered by the official, including that occasioned by the delay in drawing up his staff report which rendered the promotion procedure unlawful.