JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

11 July 2007

Case T-93/03

Spyros Konidaris

v

Commission of the European Communities

(Officials – Recruitment – Post of director at Grade A 2 – Rejection of application – Actions for annulment – Obligation to state reasons – Lawfulness of the comparative examination of applicants – Assessment of the qualifications of the candidate appointed)

Application: for annulment of the Commission’s decision to reject the applicant’s application for the post of director in the Directorate General ‘Information Society’.

Held: The action is dismissed. The Commission is to bear its own costs and to pay those incurred by the applicant.

Summary

1.      Officials – Decision adversely affecting an official – Rejection of candidature – Obligation to state reasons at the latest at the stage of rejection of the complaint

(Staff Regulations, Arts 25, second para., and 90(2))

2.      Officials – Vacancy notice – Determination of minimum qualifications required for a post of director

(Staff Regulations, Art. 29)

3.      Officials – Vacant post – Filling by promotion – Consideration of comparative merits of candidates

(Staff Regulations, Arts 29(1) and 45)

4.      Officials – Vacant post – Consideration of comparative merits of candidates

(Staff Regulations, Arts 5(3) and 29)

5.      Officials – Vacant post – Consideration of comparative merits of candidates

(Staff Regulations, Arts 4 and 29)

1.      Although the appointing authority is not obliged to give reasons for its promotion decisions to officials who have not been promoted, it is obliged to state the reasons for its decision rejecting a complaint lodged pursuant to Article 90(2) of the Staff Regulations by an official who has not been promoted, the statement of reasons for that decision being deemed to be the same as the statement of reasons against which the complaint was directed. It is sufficient for the statement of reasons for a decision rejecting the candidature of an official applying for a post by way of promotion to relate to the satisfaction of the legal conditions which under the Staff Regulations govern the regularity of the procedure.

Although the total absence of a statement of reasons for the rejection of the candidature of an official applying for a post by way of promotion cannot be remedied by explanations provided by the appointing authority after an action has been brought before the Court, a merely inadequate statement of reasons provided in the course of the pre-litigation procedure is not such as to justify annulment of the contested decision where additional information is provided by the administration during the proceedings. Thus, an initially inadequate statement of reasons may be remedied by additional information provided even during the proceedings if, before his action was brought, the official concerned already had at his disposal information constituting the beginnings of a statement of grounds.

(see paras 51, 53-54, 58)

See: 188/73 Grassi v Council [1974] ECR 1099, para. 14; C‑115/92 P Parliament v Volger [1993] ECR I‑6549, para. 22; C‑316/97 P Parliament v Gaspari [1998] ECR I‑7597, para. 29; T-52/90 Volger v Parliament [1992] ECR II‑121, para. 40, upheld by Parliament v Volger, paras 22 to 24; T‑178/95 and T‑179/95 Picciolo and Caló v Committee of the Regions [1997] ECR-SC I‑A‑51 and II‑155, para. 34; T‑86/98 Gouloussis v Commission [2000] ECR-SC I‑A‑5 and II‑23, paras 73 to 77; T-117/01 Roman Parra v Commission [2002] ECR-SC I‑A‑27 and II‑121, paras 26 and 30; T‑135/00 Morello v Commission [2002] ECR-SC I‑A‑265 and II‑1313, paras 34 and 37; T‑132/03 Casini v Commission [2005] ECR-SC I‑A‑253 and II‑1169, para. 36

2.      The appointing authority enjoys a wide discretion in deciding upon the abilities required for posts to be filled, and only a manifest error of assessment in the definition of the minimum conditions required to fill the post in question can render the notice of vacancy unlawful.

In the case of a post of director, the institution may, without committing a manifest error of assessment, consider that the possession of experience or specialised knowledge in the field covered by the directorate in question may matter less than the possession of outstanding general management, analysis and judgment skills, since experience and technical knowledge can always be gained within the directorate itself.

(see paras 72, 74)

See: T-132/89 Gallone v Council [1990] ECR II‑549, para. 27; T‑58/91 Booss and Fischer v Commission [1993] ECR II‑147, para. 69; T-6/96 Contargyris v Council [1997] ECR-SC I‑A‑119 and II‑357, para. 100; Morello v Commission, para. 69

3.      The periodical report constitutes an indispensable criterion of assessment each time the official’s career is taken into consideration by the administration. A promotion procedure is tainted with irregularity where the appointing authority has not been able to consider the comparative merits of the candidates because there has been a substantial delay, caused by the administration, in the drawing up of the periodical reports on one or more of them. However, such an irregularity is such as to result in annulment of a decision to appoint only in so far as the absence of the periodical report may have had a decisive effect on the procedure.

There are differences, in that respect, between the procedure for filling a vacancy by transfer or promotion under Article 29(1)(a) of the Staff Regulations, and the promotion procedure provided for in Article 45 of the Staff Regulations. While the latter procedure is intended to adjust the career progress of officials according to the effort they have made and the merits they have demonstrated in the performance of their duties, that is to say, to reward officials who have, as a whole, displayed superior merits in the past, the purpose of the procedure for filling a vacancy is to find, solely in the interests of the service, the official who is best able to perform the duties involved in the post to be filled. In considering candidates’ comparative merits, therefore, the appointing authority is not obliged to base its assessment on the periodical reports, but may take account of other factors relating to the candidates’ merits, such as information on their administrative or personal situation. Such information may be such as to qualify an assessment made on the basis of the periodical reports.

(see paras 88, 90-92)

See: 263/81 List v Commission [1983] ECR 103, paras 25 and 26; 233/85 Bonino v Commission [1987] ECR 739, para. 5; T-25/92 Vela Palacios v ESC [1993] ECR II‑201, paras 40 and 43; T‑89/91, T‑21/92 and T‑89/92 X v Commission [1993] ECR II‑1235, paras 49 and 50; T-221/96 Manzo-Tafaro v Commission [1998] ECR‑SC I‑A‑115 and II‑307, para. 18; T‑82/98 Jacobs v Commission [2000] ECR-SC I‑A‑39 and II‑169, para. 36; T‑202/99 Rappe v Commission [2000] ECR-SC I‑A‑201 and II‑911, para. 40; Morello v Commission, para. 89

4.      Within the scope of the discretion which the appointing authority enjoys in defining the rules for the comparative consideration of candidates, the appointing authority itself and the various higher-ranking officials consulted in the course of the promotion or transfer procedure in question must consider at each stage in the examination of the candidatures whether it is necessary to obtain further information or form further assessments through 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 . No provision of the Staff Regulations gives a candidate in a recruitment procedure the right to have a meeting with his potential future superior. The appointing authority cannot therefore be obliged to arrange interviews with the candidates for a post unless, and in so far as, such an obligation arises from the legal framework which it has established for itself.

However, the discretion allowed to the administration to determine the procedure or method for undertaking a comparative consideration of candidatures is circumscribed by the need to undertake that consideration with care and impartiality, in the interest of the service and in accordance with the principle of equal treatment for officials, expressed in general terms in Article 5(3) of the Staff Regulations. In practice, consideration of the comparative merits of candidates must therefore be undertaken on a basis of equality, using comparable sources of information.

(see paras 107-108, 110)

See: 282/81 Ragusa v Commission [1983] ECR 1245, para. 21; T‑78/92 Perakis v Parliament [1993] ECR II‑1299, para. 15; T‑76/92 Tsirimokos v Parliament [1993] ECR I‑1281, para. 20; T‑240/01 Cougnon v Court of Justice [2003] ECR-SC I‑A‑263 and II‑1283, paras 67 and 70

5.      As regards the assessment of whether an application meets the requirements laid down in a notice of vacancy, the appointing authority has a broad discretion, in particular where the post to be filled is in Grade A 1 or A 2, when comparing the merits of the candidates for such a post. However, the exercise of that broad discretion presupposes a meticulous examination of the candidates’ files and scrupulous observance of the requirements set out in the vacancy notice, so that the appointing authority is required to reject any candidate who does not meet those requirements. The vacancy notice constitutes a legal framework which the appointing authority imposes on itself and to which it must adhere strictly.

(see paras 120-121)

See: T‑158/01 Tilgenkamp v Commission [2002] ECR-SC I‑A‑111 and II‑595, paras 50 and 51; T‑248/02 Faita v ESC [2003] ECR-SC I‑A‑281 and II‑1365, para. 70