Language of document : ECLI:EU:F:2013:215


(Second Chamber)

12 December 2013

Case F‑47/13



Council of the European Union

(Civil service — Officials — Promotion — 2012 promotion procedure — Decision not to promote the applicant — Interinstitutional transfer in the course of the promotion procedure preceding that during which a promotion decision would have taken effect — Institution which is competent to take a decision on promotion of the transferred official)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which JJ seeks annulment of the decision of the Council of the European Union not to promote him to grade AD 11 in the context of the 2012 promotion procedure and an order that the Council should compensate for the damage allegedly suffered as a result of that decision.

Held:      The action is dismissed as being manifestly devoid of any basis in law. JJ is to bear his own costs and is ordered to pay the costs incurred by the Council of the European Union.


1.      Officials — Promotion — Consideration of comparative merits — Interinstitutional transfer in the year preceding the promotion procedure — Receiving institution competent to decide on promotion

(Staff Regulations, Art. 45)

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

(Staff Regulations, Art. 45)

1.      According to the requirements of Article 45 of the Staff Regulations, where an official is eligible for promotion in the course of the year during which he is transferred from one institution to another, the appointing authority competent to decide on his promotion is that of the institution of origin. In order to decide whether an official should be promoted with retroactive effect to 1 January of the year N (or even, more generally, during year N), that authority must, in practice, compare the past merits of officials, in particular during the year N–1 and in the light of the appraisal reports on the performance of those officials during the years N–1 and earlier. To that end, it is necessary to compare the merits of the officials transferred with those of the officials who were still their colleagues during the year prior to their transfer, and that assessment can only legitimately be conducted by the institution of origin.

It is a different matter, however, if the official’s transfer took place during the year preceding the year in which he was eligible for promotion with effect from 1 January. In that situation, the official’s merits for the year N–1 cannot be compared solely with those of his former colleagues at his institution of origin, since the merits of his colleagues at his new institution must also be taken into consideration. In such circumstances, it is for the appointing authority of the receiving institution to decide on his promotion. A comparison of the merits and reports of an official who has recently been the subject of an interinstitutional transfer is less straightforward than a comparison between officials within the receiving institution alone, but it is not, per se, either impossible or discriminatory. Such a comparison requires additional effort in order to be able to make comparable assessments which were not necessarily comparable initially, but such a procedure cannot be likened to a breach of the principle of equal treatment.

(see paras 22-25)


11 June 1998, T‑167/97 Skrikas v Parliament, para. 45

28 June 2011, F‑128/10 Mora Carrasco and Others v Parliament, paras 35 and 39; 5 July 2011, F‑38/11 Alari v Parliament, para. 31

2.      The appointing authority has a wide discretion in assessing the merits to be taken into consideration in a decision on promotion under Article 45 of the Staff Regulations, and review by the European Union judicature must be confined to determining whether, having regard to the various considerations which might have influenced the administration in making its assessment it has remained within reasonable bounds and has not used its power in a manifestly incorrect way. An error 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. Consequently, the evidence which it is for the applicant to adduce in order to establish that the administration committed a manifest error in assessing the facts such as to justify the annulment of a decision must be sufficient to make the findings of the administration implausible. In other words, a plea alleging a manifest error must be rejected if, despite the evidence adduced by the applicant, the contested assessment may still be accepted as true or valid.

(see paras 31, 33)


29 February 1996, T‑547/93 Lopes v Court of Justice, para. 133 and the case-law cited

16 May 2013, T‑281/11 P Canga Fano v Council, para. 41

24 March 2011, F‑104/09 Canga Fano v Council, para. 35; 18 April 2012, F‑50/11 Buxton v Parliament, para. 21 and the case-law cited