JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)
2 March 2004
Case T-197/02
Georges Caravelis
v
European Parliament
(Officials – Refusal to promote – Consideration of comparative merits – Annulling judgment – Implementing measures – Article 233 EC – Application for annulment and for compensation)
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Application: for annulment of the Parliament’s decision of 28 September 2001 not to promote the applicant retroactively to Grade A4 and for compensation in respect of the material and non-material damage which the applicant claims to have suffered.
Held: The application is dismissed. The parties are ordered to bear their own costs.
Summary
1. Officials – Promotion – Consideration of the comparative merits – Fresh consideration of merits for a promotion round organised following an annulling judgment – Rules – Merits to be considered by members of the Advisory Committee on Promotions set up for the round in question – Absence of certain members – No effect
2. Officials – Promotion – Consideration of the comparative merits – Rules – Right of appointing authority to ask Advisory Committee on Promotions for further information and documents
(Staff Regulations, Art. 45(1))
3. Officials – Actions – Annulling judgment – Effects – Obligation to adopt measures to comply with a judgment – Scope – Consideration of both the grounds and the operative part of the judgment – Judgment annulling a refusal to promote because the comparative merits were not properly considered – Obligation to consider merits properly
(Art. 233 EC)
4. Officials – Promotion – Candidates eligible for promotion – Right to promotion – None
(Staff Regulations, Art. 45(1))
5. Officials – Promotion – Discretion of the administration – Judicial review – Limits
(Staff Regulations, Art. 45)
6. Officials – Promotion – Complaint by an unsuccessful candidate – Decision rejecting complaint – Statement of reasons
(Staff Regulations, Art. 90(2))
7. Officials – Non-contractual liability of the institutions – Conditions – Fault of the administration – Damage – Causal link
1. There are no provisions of the Staff Regulations or of the Parliament’s Internal Guidelines for Promotions Advisory Committees which require that, where a fresh consideration of the comparative merits of an official eligible for promotion is necessary following an annulling judgment, it must be carried out by the same members of the Advisory Committee on Promotions as those who met to put forward proposals for promotion in the promotions round during which an irregularity occurred, provided that they are all members duly appointed by the decision establishing the composition of the Advisory Committee on Promotions for that round.
Furthermore, the appointment within the Advisory Committee on Promotions of members and alternates is designed to facilitate the continuity of the Committee’s work and the holding of its meetings even if certain members are unable to attend or unavailable. It cannot be claimed that a meeting was irregular or that the institution infringed the principle of equal representation merely because certain representatives appointed by the Staff Committee, having been duly invited to attend, did not do so.
(see paras 24-25)
2. The appointing authority has the right, or even a duty, to ask the Advisory Committee on Promotions for any additional documents and clarifications it feels appropriate or necessary in order to assess the reports on the officials eligible for promotion and their other merits objectively and as accurately as possible.
(see para. 31)
3. In order to comply with a judgment annulling a measure and to implement it fully, the institution is required to have regard not only to the operative part of the judgment but also to the grounds which led to the judgment and constitute its essential basis, in so far as they are necessary to determine the exact meaning of what is stated in the operative part. A judgment annulling a decision not to promote an official because of irregularities in the consideration of the comparative merits which affected the promotion procedure does not mean that the applicant must be promoted. In order to implement the judgment, the institution concerned is only required to take a fresh decision on the applicant in the promotions round in question and, to that end, to carry out a proper consideration of the comparative merits.
(see paras 52-54)
See: 97/86, 99/86, 193/86 and 215/86 Asteris and Others v Commission [1988] ECR 2181, para. 27; C-458/98 P Industrie des poudres sphériques v Council [2000] ECR I-8147, para. 81; T-182/99 Caravelis v Parliament [2001] ECR II-1313, paras 41 and 45
4. The Staff Regulations do not confer a right to promotion, even on officials who meet all the conditions for promotion.
(see para. 57)
See: T-3/92 Latham v Commission [1994] ECR-SC I-A-23 and II-83, para. 50; T-262/94 Baiwir v Commission [1996] ECR-SC I-A-257 and II-739, para. 67
5. When considering the comparative merits to be taken into account in deciding on promotion pursuant to Article 45 of the Staff Regulations, the appointing authority possesses a wide discretion and may undertake such consideration using the procedure or method it regards as most appropriate. In that regard review by the Community judicature must be confined to the question whether, having regard to the methods and procedures used by the administration to make its assessment, the latter has remained within reasonable bounds and has not manifestly misused its power. The Court cannot therefore substitute its assessment of the qualifications and merits of officials for that of the appointing authority.
(see paras 58-59)
See: T-22/99 Rose v Commission [2000] ECR-SC I-A-27 and II-115, para 55; Caravelis v Parliament, para. 30, and the case-law cited
6. Although the appointing authority is not under an obligation to provide unsuccessful candidates with reasons for its decision on promotion, it must, on the other hand, give reasons for its decision to reject a complaint lodged by an unsuccessful candidate pursuant to Article 90(2) of the Staff Regulations.
(see para. 68)
See: T-6/96 Contargyris v Council [1997] ECR-SC I-A-119 and II-357; T-117/01 Roman Parra v Commission [2002] ECR-SC I-A-27 and II-121, para. 25
7. Non-contractual liability on the part of the Community is subject to a number of conditions relating to the illegality of the conduct alleged against the Community institutions, actual damage and the existence of a causal link between the conduct of the institution and the damage complained of.
(see para. 76)
See: 111/86 Delauche v Commission [1987] ECR 5345, para. 30; T-165/89 Plug v Commission [1992] ECR II-367, para. 115
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