JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (Third Chamber)

8 October 2008

Case F-81/07

Florence Barbin

v

European Parliament

(Civil service – Officials – Promotion – 2006 promotion procedure – Consideration of comparative merits)

Application: brought under Articles 236 EC and 152 EA, in which Ms Barbin seeks annulment of the decision of the European Parliament not to promote her to grade AD 12 pursuant to the 2006 promotion procedure.

Held: The decision of the European Parliament of 20 November 2006 not to promote the applicant pursuant to the 2006 promotion procedure is annulled. The Parliament is ordered to pay the costs.

Summary

Officials – Promotion – Complaint by an unsuccessful promotion candidate – Decision to reject – Total absence of statement of reasons

(Staff Regulations, Arts 25, second para., 45 and 90(2))

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 official who has not been promoted, the statement of grounds for such a decision being deemed to be the same as the statement of reasons for the decision against which the complaint was directed, so that consideration of the grounds of the one overlaps with that of the other.

The total absence of a statement of reasons before an action is brought cannot be remedied by explanations provided by the appointing authority after the action has been initiated. At that stage, such explanations no longer fulfil their function, which is to enable the party concerned to determine whether it is appropriate to bring an action and to enable the court to check the correctness of the reasons stated. Moreover, the possibility of remedying the total absence of a statement of reasons after an action has been initiated would prejudice the rights of the defence, since the applicant would be deprived of the opportunity to present his pleas against the statement of reasons, of which he would have no knowledge until after the action was brought. The principle that parties should be equal before the Community judicature would be undermined.

(see paras 27-28)

See:

188/73 Grassi v Council [1974] ECR 1099, para. 13; 121/76 Moli v Commission [1977] ECR 1971, para. 12; 75/77 Mollet v Commission [1978] ECR 897, para. 12; 195/80 Michel v Parliament [1981] ECR 2861, para. 22; C-343/87 Culin v Commission [1990] ECR I‑225, paras 13 and 15; C-150/03 P Hectors v Parliament [2004] ECR I‑8691, para. 50

T-52/90 Volger v Parliament [1992] ECR II‑121, paras 40 and 41; T-117/01 Roman Parra v Commission [2002] ECR-SC I-A-27 and II‑121, para. 32; T-66/05 Sack v Commission [2007] ECR-SC I-A-0000, para. 66, currently the subject of an appeal before the Court of Justice, C‑38/08 P