JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

12 December 2012

Case F‑77/11

Kris Van Neyghem

v

Council of the European Union

(Civil service — Officials — Promotion — 2007 promotion exercise — Refusal to promote an official — Annulment — Implementing measures — Fresh consideration of comparative merits)

Application: Action brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, whereby Mr Van Neyghem seeks, in essence, first, annulment of the decision not to promote him to grade 7 of the assistant function group (AST) for the promotion year 2007, adopted by the Council of the European Union on 1 October 2010 following a fresh consideration of comparative merits carried out in order to implement the judgment of the Tribunal of 5 May 2010 in Case F‑53/08 Bouillez and Others v Council (‘the judgment of 5 May 2010’) and, second, compensation for the non-pecuniary and pecuniary harm allegedly thereby sustained.

Held: The action is dismissed. The Council is to bear its own costs and is ordered to pay one quarter of Mr Van Neyghem’s costs. The applicant is to bear three quarters of his own costs.

Summary

Officials — Promotion — Consideration of comparative merits — Administration’s discretion — Judicial review — Limits

(Staff Regulations, Art. 45)

For the purpose of the consideration of comparative merits in the context of a promotion decision provided for in Article 45 of the Staff Regulations, the appointing authority has a wide discretion.

In particular, the administration enjoys a wide discretion as to the respective importance which it ascribes to each of the three criteria provided for in Article 45(1) of the Staff Regulations, the provisions of which do not preclude the possibility of weighting being applied between those criteria.

However, the discretion thus allowed to the appointing authority is circumscribed by the need to carry out that comparative consideration of candidatures with care and impartiality, in the interests of the service and in accordance with the principle of equal treatment. In practice, that consideration must be carried out on a basis of equality, using comparable sources of information and comparable information.

In that regard, review by the Tribunal must be limited to ascertaining whether, regard being had to the factors and reasons that led the administration to its assessment, it remained within unimpeachable limits and did not manifestly misuse its power.

(see paras 38-41)

See:

15 September 2005, T‑132/03 Casini v Commission, para. 52 and the case-law cited

24 March 2011, F‑104/09 Canga Fano v Council, para. 68, under appeal before the General Court of the European Union, Case T‑281/11 P; 28 September 2011, F‑9/10 AC v Council, para. 14