JUDGMENT OF THE CIVIL SERVICE TRIBUNAL
(First Chamber)

24 March 2011

Case F‑104/09

Diego Canga Fano

v

Council of the European Union

(Civil service — Officials — Promotion — 2009 promotion exercise — Decision not to promote — Consideration of comparative merits — Manifest error of assessment — Action for annulment — Action for damages)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Canga Fano seeks annulment of the decision not to promote him to grade AD 13 under the 2009 promotion exercise and an order that the Council pay him the sum of EUR 200 000 by way of compensation for the non-pecuniary and professional damage which he claims to have sustained.

Held: The action is dismissed. The applicant is ordered to pay all the costs.

Summary

1.      Officials — Promotion — Consideration of comparative merits — Administration's discretion

(Staff Regulations, Art. 45)

2.      Officials — Promotion — Procedure

1.      The discretion conferred on the administration for the purposes of considering the comparative merits of officials who are candidates for promotion pursuant to Article 45 of the Staff Regulations is limited by the need to consider candidates’ comparative merits carefully and impartially, in the interest of the service and in accordance with the principle of equal treatment. In practice, that examination must be carried out on a basis of equality, using comparable sources of information.

In that regard, without prejudice to the practical effect that the appointing authority’s discretion must be acknowledged to have, an error of assessment of the merits of an official who is not promoted is manifest where it is easily recognisable and can be readily detected, in the light of the criteria to which the legislature intended decisions on promotion to be subject.

(see paras 34, 35)

See:

15 September 2005, T‑132/03 Casini v Commission, para. 53

2.      The rules applicable to the assessment procedure for officials do not provide that the assessors are to comment on whether the official being appraised deserves to be promoted. Where the assessors take the initiative to recommend promotion for one or other of the members of their team, they are expressing a view that cannot bind the appointing authority, in so far as promotion can be awarded only after consideration of the comparative merits of all the officials of an institution who are eligible for promotion to the same grade. Consequently, such appraisals cannot have the same weight as those resulting from elements which the marker is required to appraise. Secondly, the appointing authority is entitled to promote an official when it considers that such promotion is justified, even in the absence of comments in favour of promotion expressed in the official’s staff report.

(see para. 60)