Keywords

Summary



Keywords

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1. Officials ° Vacant post ° Vacancy filled by promotion or transfer ° Consideration of comparative merits of candidates ° Procedure ° Discretion of the administration ° Not all candidates heard at each stage of the procedure ° Permissible ° Limits ° Equal treatment

(Staff Regulations, Art. 45(1))

2. Officials ° Decision affecting an official' s administrative status ° Consideration of matters not included in his personal file ° Not permissible ° Limits ° Consideration, for promotion purposes, of, among other factors, a comparative assessment of candidates' abilities by their hierarchical superior

(Staff Regulations, Arts 26 and 43)

3. Officials ° Vacant post ° Vacancy filled by promotion or transfer ° Consideration of comparative merits of candidates ° Discretion of the administration ° Review by the Court ° Limits

(Staff Regulations, Art. 45(1))

4. Officials ° Promotion ° Complaint by a candidate not promoted ° Decision rejecting the complaint ° Obligation to state reasons ° Scope

(Staff Regulations, Arts 45(1) and 90(2))

5. Officials ° Actions ° Action comprising a claim for annulment and a claim for compensation ° Claims based on separate causes ° Conditions for the admissibility of the claim for compensation

(Staff Regulations, Arts 90 and 91)

Summary

1. In a promotion ° or, by analogy, transfer ° procedure, the appointing authority must, under Article 45(1) of the Staff Regulations, base its choice on a comparative consideration of the periodical reports and respective merits of the candidates eligible for promotion. For that purpose it has the power under the Staff Regulations to undertake that comparative consideration in the manner it considers most appropriate.

In that regard, both the appointing authority and the various hierarchical superiors consulted must consider at each stage in the examination of the candidatures whether it is necessary to obtain further information or form further assessments on the basis of interviews with all the candidates or only with some of them, in order to be able to reach a decision in full knowledge of the facts. That discretion is particularly justified where the candidates are already in the service of, and known to, the institution. In principle, candidates cannot therefore claim an automatic right to an interview. It is only where the appointing authority has specifically decided to make its choice following, inter alia, interviews of all the candidates by a senior official in the service where the post is vacant that it must ensure that each candidate has such an interview during the course of the procedure.

However, the discretion which the administration is thus recognized as enjoying is circumscribed by the need to undertake a comparative consideration of candidatures with care and impartiality, in the interest of the service and in accordance with the principle of equal treatment. In practice, that consideration must be undertaken on a basis of equality, using comparable sources of information.

2. 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 contrary to the guarantees contained in the Staff Regulations and must be annulled because it was adopted on the basis of a procedure vitiated by illegality.

Read thus in the light of their objective, those provisions do not in principle cover opinions of hierarchical superiors consulted in the course of a promotion or transfer 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 thus already had an opportunity to make any comments. Those opinions, whose scope is confined to the appointment procedure in question, do not fall under the rules laid down in Article 26 of the Staff Regulations, which seek 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.

That is not the case, however, where such opinions also contain, in addition to the assessments involved in the comparative consideration of candidatures, references to a candidate' s ability, efficiency and conduct not previously included in his personal file. However, even if it constitutes an infringement of Article 26 of the Staff Regulations, a failure to notify such assessments to the official so that he may make any comments thereon cannot vitiate decisions rejecting his candidature and appointing another candidate unless they had a decisive influence on the appointing authority' s choice.

3. The appointing authority enjoys a wide discretion in considering the comparative merits of candidates for transfer or promotion and the Court' s review must be restricted to considering whether it has not used that discretion in a manifestly incorrect way or for a purpose other than that for which it was intended.

4. Although in a decision rejecting the candidature for a vacant post of an official eligible for promotion, or at least in its rejection of a complaint against that decision, the appointing authority is obliged to state its reasons, it may confine itself to giving succinct reasons relating to the existence of the legal conditions which the Staff Regulations lay down as a prerequisite for a lawful promotion.

5. When an official lodges in an action for annulment a claim for compensation which has no link with that action, the admissibility of the claim for compensation must be examined separately from that of the claim for annulment. It is admissible only if it has been preceded by a prelitigation procedure as provided for in Articles 90 and 91 of the Staff Regulations.