JUDGMENT OF THE COURT OF FIRST INSTANCE

(Fifth Chamber)

23 January 2007

Case T-472/04

Vassilios Tsarnavas

v

Commission of the European Communities

(Officials – Article 45 of the Staff Regulations – Promotion – Judgment annulling the decision not to promote the applicant – Re-examination of merits – Reasons)

Application: for annulment of the Commission’s decision of 23 December 2003 in so far as it did not include the applicant’s name on the list of officials proposed for promotion for 1999, or on the list of officials considered the most deserving of promotion to grade A4 for 1998 and 1999, or on the list of officials promoted to grade A4 in 1998 or 1999.

Held: The decision of the Commission of 23 December 2003 is annulled in so far as it did not include the applicant’s name on the list of officials considered the most deserving of promotion to grade A4 for 1998 and 1999, on the one hand, or on the list of officials promoted to grade A4 in 1998 or 1999, on the other. The remainder of the action is dismissed. The Commission is ordered to pay the costs.

Summary

Officials – Promotion – Consideration of comparative merits

(Staff Regulations, Art. 45(1))

Where, in implementing a judgment annulling the refusal to promote the applicant on the ground that no extended examination was made of his merits compared with those of officials from other departments who were eligible for promotion, the administration re-examines those comparative merits, it must do so by comparing the situation of each official promoted to the grade in question or included on the list of officials found to be the most deserving of promotion to that grade who, during the promotion exercise in question, had received a rating comparable to or lower than that of the applicant. Such a comparative examination is the only method likely to satisfy the conditions of care and impartiality required under Article 45(1) of the Staff Regulations and the requirements flowing from the principle of equal treatment.

The administration may not confine its comparative examination solely to officials promoted in the exercise in question, excluding officials eligible for promotion who, although not promoted, were included on the list of officials found to be the most deserving of promotion. If it were decided to include the applicant’s name on that list, it could lead to his promotion in the following exercise, since the appointing authority may, in principle, take account, in the assessment of the comparative merits, of the fact that an official has already been proposed for promotion in a previous exercise.

Similarly, the administration may not confine its consideration of comparative merits solely to promoted officials whose rating was significantly closer to the average rating for their directorate-general than the applicant’s rating and the average rating for his directorate-general, excluding officials whose rating was comparable to or slightly lower than that of the applicant. The administration must consider whether the difference in treatment between the applicant and all those officials who received a comparable or lower rating was objectively justified by other aspects of their merits, such as other information relating to their administrative and personal situation, of such a kind as to qualify the assessment made solely on the basis of the staff reports. In particular, the administration must examine whether those other aspects of their merits provided grounds for considering that the merits of the officials promoted were indeed higher than those of the applicant.

(see paras 71, 73-75, 77, 82-85)

See: 91/85 Clemenand Others v Commission [1986] ECR 2853, para. 10; C‑207/99 P Commission v Hamptaux [2000] ECR I‑9485, para. 19; T‑168/96 Patronis v Council [1997] ECR-SC I‑A‑299 and II‑833, para. 35; T‑221/96 Manzo-Tafaro v Commission [1998] ECR-SC I‑A‑115 and II‑307, para. 18; T‑187/98 Cubero Vermurie v Commission [2000] ECR-SC I‑A‑195 and II‑885, para. 85; T‑163/01 Perez Escanilla v Commission [2002] ECR-SC I‑A‑131 and II‑717, paras 28 and 36; T‑188/01 to T‑190/01 Tsarnavas v Commission [2003] ECR-SC I‑A‑95 and II‑495, paras 107, 114, 121 and 122; T‑323/02 Breton v Court of Justice [2003] ECR-SC I‑A‑325 and II‑1587, para. 99; T‑132/03 Casini v Commission [2005] ECR-SC I‑A‑253 and II‑1169, paras 55, 69 and 70; T‑437/04 and T-441/04 Standertskjöld-Nordenstam andHeyraud v Commission [2006] ECR-SC I-A-2-29 and II-A-2-27, para. 60