Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE COURT (Fifth Chamber)

3 April 2003 (1)

(Appeals - Officials - Reconstruction of career - Consideration of comparative merits)

In Case C-277/01 P,

European Parliament, represented by H. von Hertzen and D. Moore, acting as Agents, with an address for service in Luxembourg,

appellant,

APPEAL against the judgment of the Court of First Instance of the European Communities (Fourth Chamber) of 3 May 2001 in Case T-99/00 Samper v Parliament [2001] ECR-SC I-A-111 and II-507, seeking to have that judgment set aside,

the other party to the proceedings being:

Ignacio Samper, official of the European Parliament, residing in Madrid (Spain), represented by E. Boigelot, avocat, with an address for service in Luxembourg,

applicant at first instance,

THE COURT (Fifth Chamber),

composed of: M. Wathelet, President of the Chamber, C.W.A. Timmermans, A. La Pergola, P. Jann and S. von Bahr (Rapporteur), Judges,

Advocate General: L.A. Geelhoed,

Registrar: R. Grass,

after hearing the Opinion of the Advocate General at the sitting on 20 June 2002,

gives the following

Judgment

1. By application lodged at the Registry of the Court of Justice on 13 July 2001 the European Parliament brought an appeal under Article 49 of the EC Statute of the Court of Justice against the judgment of the Court of First Instance of 3 May 2001 in Case T-99/00 Samper v Parliament [2001] ECR-SC I-A-111 and II-507 ('the judgment under appeal') annulling the decision of 9 June 1999 reconstructing Mr Samper's career in so far as it set the date on which his promotion to Grade A 4 took effect at 1 January 1998 ('the contested decision').

   Background to the dispute

2. The facts of the case, as set out in the judgment under appeal and the court file, may be summarised as follows.

3. Mr Samper entered the service of the Parliament in 1986. He was recruited at Grade A 7 and assigned to the Directorate-General for Economic and Financial Affairs (DG II). He was promoted to Grade A 6 in 1989 and then to Grade A 5 in 1994.

4. By decision of 21 February 1995, Mr Samper, who was in first place, followed by Mr Carbajo Ferrero, on the list of suitable candidates drawn up following internalcompetition A/88 to fill the post of head of division in Grade A 3 at the Madrid Information Office (Spain), in the Directorate-General for Information and Public Relations (DG III) of the Parliament, was appointed to that post with effect from 1 April 1995. That competition was organised following the procedure for promotion or transfer within the institution opened by Vacancy Notice No 7424, which did not result in an appointment.

5. By judgment of 12 June 1997 in Case T-237/95 Carbajo Ferrero v Parliament [1997] ECR-SC I-A-141 and II-429, the Court of First Instance dismissed Mr Carbajo Ferrero's claim for annulment of the decision of 21 February 1995 and the decision not to appoint him to that post.

6. By its judgment on appeal in Case C-304/97 P Carbajo Ferrero v Parliament [1999] ECR I-1749, the Court of Justice set aside that judgment of the Court of First Instance and the decision of 21 February 1995 appointing Mr Samper, on the ground that the necessary correspondence between the conditions set out in Vacancy Notice No 7424 and those in Competition Notice A/88 was not observed.

7. By decision of 14 April 1999 implementing the judgment of the Court in Carbajo Ferrero v Parliament, the Parliament annulled Mr Samper's appointment as head of division and reassigned him, with effect from 1 April 1995, to a position at Grade A 5, step 2, with seniority in step from 1 February 1994. It assigned him to the Madrid Information Office and gave notice that, pursuant to Article 85 of the Staff Regulations of Officials of the European Communities ('the Staff Regulations'), he would retain the Grade A 3 salary payments received before that judgment was served.

8. By the contested decision the appointing authority promoted Mr Samper to Grade A 4, step 1, with retroactive effect as from 1 January 1998, in accordance with the unanimous opinion of the Advisory Committee on Promotions ('the Promotions Committee') at its extraordinary meeting of 19 May 1999, as is clear from the minutes of that meeting.

9. On 8 September 1999 Mr Samper lodged a complaint against the contested decision. That complaint was rejected by letter of the President of the Parliament of 20 January 2000.

   The judgment under appeal

10. Against that background, on 20 April 2000, Mr Samper brought an action before the Court of First Instance seeking the annulment of the contested decision only in so far as it specified 1 January 1998 and not 1 January 1997 as the date for his promotion to Grade A 4.

11. Mr Samper pleaded, first, that the Parliament had failed to take sufficient account, in its consideration of his comparative merits, of the duties which he had performed as head of division in the Madrid Information Office from 1 April 1995. He pleaded, second, that it had failed to take account of the rules for awarding promotion points, third, that it had made an error of fact as regards his professional experience and, fourth, that it had not taken account of criteria relating to seniority and age. The Court of First Instance took the view that it was sufficient to consider the first of the four pleas thus relied on by Mr Samper.

12. It pointed out, in paragraph 39 of the judgment under appeal, that it was the duty of the appointing authority, for the purpose of reinstating Mr Samper in his career, to consider his merits as assessed in the 1997 promotion exercise, as compared with those of the group of officials who were eligible for promotion to Grade A 4 at the time of that exercise and, in particular, as compared with those of the officials who were actually promoted to that grade in that year.

13. In paragraph 40 of the judgment under appeal, the Court of First Instance made clear that, in the course of that consideration of merits, the appointing authority was required to apply the criteria used in the 1997 promotion exercise and, to that end, in particular, to take account of the fact that Mr Samper had been performing the duties of head of the Madrid Information Office for two years at the time of that exercise. The Court of First Instance held that it was expressly stated in a decision of 27 November 1997 concerning promotions in that year that the appointing authority, while taking account of staff reports and recommendations by directors-general, had taken the view that the 'decisive' criterion should be, 'the level of responsibility deployed, personal investment made and the consistency of effort vis-à-vis his responsibilities'.

14. The Court of First Instance held, in paragraph 41 of the judgment under appeal, that, when assessing Mr Samper's merits compared with those of officials in Grade A 5 who were promoted to Grade A 4 in the 1997 promotion exercise, the appointing authority was required under the principle of equal treatment not only to take account of the level of responsibility assumed by Mr Samper, but also to adjust, in the light of the duties normally corresponding to a post in Grade A 5, the marks given and the observations made in his staff report for the period between 1 January 1995 and 1 January 1997, when he held the post of head of the Madrid Information Office.

15. In paragraph 45 of the judgment under appeal, the Court of First Instance held, first, that, contrary to the allegations of the Parliament, comparison of Mr Samper's staff report with those of the 14 heads of Parliament's information offices for the period from 1 January 1995 to 1 January 1997, drawn up by the Director-General of DG III, showed that the applicant had been given very favourable assessments compared with his colleagues. The Court of First Instance added that it was clear from the general assessments that Mr Samper had experienced no difficulties in adjusting. According to the Court of First Instance, the favourable assessmentmade of him was, rather, comparable to that made of certain, more senior, heads of information offices who had been given a significantly higher number of points (59 in one case and 58 in two other cases), which also referred to a 'challenge' to be met or objectives to be attained.

16. In paragraph 46 of the judgment under appeal, the Court of First Instance pointed out that, according to the minutes of its meeting, the Promotions Committee had essentially taken the view, after reading all Mr Samper's staff reports, that, although he was a 'high level official in DG II', he was not one in DG III. The Court of First Instance stated that the Promotions Committee based its view essentially on the fact that, in the staff report for the period from 1 January 1995 to 1 January 1997, the assessor stated that Mr Samper had to meet several 'challenges'. Moreover, the Court of First Instance pointed out that the chairman of that committee had observed beforehand that this staff report suggested that the person concerned had difficulty adjusting to his duties as head of an information office but that the Promotions Committee none the less accepted that DG III recognised that he was a very good official.

17. The Court of First Instance held, in paragraph 47 of the judgment under appeal, that the assessment made by the Promotions Committee of Mr Samper's merits in the course of performing his duties as head of an information office, was not only marred by inconsistency, but also manifestly erroneous in so far as it was based on the view that he experienced difficulties in adjusting to his duties, as that assessment was clearly contradicted by comparison of the staff reports of all the heads of information office. According to the Court of First Instance, that comparison showed that Mr Samper's merits were fully recognised in DG III, given the total number of points awarded to him and the glowing assessments concerning his competence, his keen sense of responsibility, his initiative and his professional commitment, particularly as his appointment as head of an information office was relatively recent.

18. Second, the Court of First Instance pointed out, in paragraph 48 of the judgment under appeal, that, in assessing the comparative merits of Mr Samper for 1997, the Promotions Committee based itself solely on the marks awarded in the staff reports.

19. The Court of First Instance added, in paragraph 50 of the judgment under appeal, that, in the absence of any other explanation, there was no evidence to support the presumption that the appointing authority had actually undertaken a comparison between the responsibilities assumed by Mr Samper as head of an information office and those assumed by the other officials promoted to Grade A 4 in the 1997 promotions exercise.

20. The Court of First Instance observed, in paragraph 52 of the judgment under appeal, that analysis of the grounds which led the Promotions Committee not topropose Mr Samper's promotion in the 1997 promotions exercise and, accordingly, the appointing authority not to promote him to Grade A 4 from 1 January 1997, showed that in the course of its consideration of his comparative merits in that exercise, the appointing authority did not attach sufficient value to the duties he performed successfully during his two years as head of the Madrid Information Office.

21. In paragraph 53 of the judgment under appeal, the Court of First Instance held that, in failing to attach sufficient value, in its examination of comparative merits in the 1997 promotions exercise, to the duties performed successfully by Mr Samper as head of an information office, the appointing authority committed a manifest error of assessment.

22. Against that background, the Court of First Instance held, in paragraph 54 of the judgment under appeal, that the contested decision should be annulled in so far as it did not promote Mr Samper to Grade A 4 with effect from 1 January 1997, without there being any need to consider the other pleas relied on by Mr Samper.

    The appeal

23. In its appeal, the Parliament claims, as its main claim, that the Court should set aside the contested judgment of the Court of First Instance and give a final decision on the matter by dismissing as unfounded the action for annulment brought by Mr Samper, and in the alternative, that the case should be referred back to the Court of First Instance for it to adjudicate anew on the action for annulment. It also asks the Court to make an order as to costs.

24. Mr Samper contends that the Court should dismiss the appeal as manifestly inadmissible or, in the alternative, as unfounded. In any event, he contends that the Court should uphold the judgment under appeal and order the Parliament to pay the costs of both sets of proceedings in their entirety.

    Admissibility

25. Mr Samper contends that the Parliament has no interest in bringing proceedings and that its appeal should be dismissed as manifestly inadmissible. He contends that, since he was promoted to Grade A 4 from 1 January 1997 by a decision of the appointing authority of 31 July 2001, the Parliament has no interest in bringing the appeal. Mr Samper adds that the Parliament took that decision on the basis of separate considerations and not in implementation of the judgment under appeal, which in no way required him to be promoted with effect from 1 January 1997.

26. The Parliament submits that Mr Samper's claims as to the inadmissibility of the appeal are wholly without foundation in fact and in law. The judgment underappeal does not allow the appointing authority any latitude as to the measures to be taken to implement it. The Parliament points out, in that connection, that the operative part of the judgment under appeal must be read in the light of the grounds which constitute its necessary support and, in particular, paragraph 54 according to which the contested decision must be annulled in so far as it fails to promote Mr Samper to Grade A 4 with effect from 1 January 1997.

27. The Parliament adds that a judgment by the Court in the present appeal would procure it a definite advantage in that, should the appeal be upheld, that judgment would secure indemnity against any action for compensation which might be brought by Mr Samper and also allow it to recover the arrears of salary paid to him in compliance with the judgment under appeal.

28. It should be recalled that for the Parliament to have an interest in bringing appeal proceedings the appeal must be likely, if successful, to procure an advantage for it (Case C-174/99 P Parliament v Richard [2000] ECR I-6189, paragraph 33).

29. Next, it is clear from paragraph 54 of the judgment under appeal that the contested decision was to be annulled in so far as it failed to promote Mr Samper to Grade A 4 with effect from 1 January 1997. Moreover, the decision of 31 July 2001 states in terms that it was taken in implementation of the judgment under appeal.

30. In those circumstances, it must be accepted that the decision of 31 July 2001 was taken in implementation of the judgment under appeal. Accordingly, if it is upheld, the appeal would be likely to procure an advantage for the Parliament in that it would allow it to recover the arrears of salary paid to Mr Samper in compliance with the judgment under appeal.

31. Finally, annulment of the judgment under appeal would in any event procure an advantage for the Parliament since it would secure indemnity against any action for compensation which might be brought by Mr Samper for the loss he claims to have suffered as a result of the contested decision.

32. In those circumstances, the appeal must be declared admissible.

    Substance of the appeal

33. The Parliament submits essentially that the Court of First Instance has infringed the applicable Community legislation in holding that the appointing authority made a manifest error of assessment in not promoting Mr Samper to Grade A 4 with effect from 1 January 1997 and that, in reaching that conclusion, it based its view on mistaken premisses, inter alia on a distortion of the clear sense of certain documents and substituted its own assessment for that of the appointing authority.

34. As a preliminary point, it must be recalled that, under the first subparagraph of Article 45(1) of the Staff Regulations: 'Promotion shall be by decision of the appointing authority. It shall be effected by appointment of the official to the next higher grade in the category or service to which he belongs. Promotion shall be exclusively by selection from among officials who have completed a minimum period in their grade, after consideration of the comparative merits of the officials eligible for promotion and of the reports on them.'

35. It must be pointed out that, in assessing the interests of the service and the qualifications and merits of the candidates to be taken into consideration in making a promotion decision pursuant to Article 45 of the Staff Regulations, the appointing authority possesses a wide discretion, and in that connection the Community Court's review must be confined to the question whether, having regard to the various considerations which have influenced the administration in making its assessment, the latter has remained within reasonable bounds and has not used its power in a manifestly incorrect way. The Community Court cannot therefore substitute its assessment of the qualifications and merits of the candidates for that of the appointing authority (see Case 324/85 Bouteiller v Commission [1987] ECR 529, paragraph 6).

36. It must be borne in mind that only one of the four pleas relied on by Mr Samper was examined by the Court of First Instance and that it concerns the alleged failure of the appointing authority to take sufficient account, in its comparison of merits in respect of the 1997 promotion exercise, of his activities as head of the Madrid Information Office for two years.

37. In that connection, it must first be pointed out that, in the course of examining that plea, the Court of First Instance, in paragraph 40 of the judgment under appeal, held that the appointing authority was required to apply the criteria used in the 1997 promotion exercise and, to that end, in particular, to take account of the fact that Mr Samper had been performing the duties of head of the Madrid Information Office for two years at the time of that exercise. The Court of First Instance added that it was expressly stated in the note of 27 November 1997 concerning promotions in that year that the appointing authority, while taking account of staff reports and recommendations by directors-general, had taken the view that the 'decisive' criterion should be, 'the level of responsibility deployed, personal investment made and the consistency of effort vis-à-vis his responsibilities'.

38. However, it must be pointed out that, at the beginning of that note of 27 November 1997, the appointing authority declared that its decisions on promotion had been taken on the basis of a consideration of all the comparative merits of the officials.

39. Indeed, as the Parliament stated, it was only after having found that there was very little difference between the staff reports which were considered by the PromotionsCommittee that the appointing authority made reference to the level of responsibility deployed to justify the contested decision.

40. In the light of that fact, it appears that the finding, in paragraph 40 of the judgment under appeal, that, in its note of 27 November 1997, the appointing authority took the view that the decisive criterion for promotion was the level of responsibility deployed, was made without reference to the context and distorts the content of that note.

41. It must then be observed that it is clear from paragraph 44 of the judgment under appeal that the Court of First Instance held that the assessments made by the appointing authority had to be examined in the light of the minutes of the meeting of the Promotions Committee of 19 May 1999, on which that authority had based its refusal to promote Mr Samper to Grade A 4 with effect from 1 January 1997.

42. However, in paragraph 45 of the judgment under appeal, the Court of First Instance does not consider the work done by that committee but makes an assessment of Mr Samper's merits in the light of the staff reports of the 14 other heads of the Parliament's information offices. In paragraphs 46 and 47 of the judgment, the Court of First Instance examines critically the assessment by the Promotions Committee of the merits of Mr Samper in the performance of his duties as head of an information office.

43. Thus, in paragraph 47 of the judgment under appeal, the Court of First Instance observes that comparison of the staff reports of all the heads of information offices shows that Mr Samper's merits were fully acknowledged in DG III, given the total number of points awarded to him and the glowing assessments of his competence, his sense of responsibility, his initiative and his professional commitment. That assessment enabled the Court of First Instance to conclude, in paragraphs 52 and 53 of the judgment under appeal, that Mr Samper had performed his duties as head of an information office successfully.

44. It must be held that, in acting as it did, that is to say, in substituting its assessment of Mr Samper's qualifications and merits for that of the appointing authority, the Court of First Instance exceeded the limits, outlined in paragraph 35 of this judgment, of the judicial review which it is empowered to carry out in the matter of the appointment and promotion of officials of the Communities.

45. Finally, having thus established Mr Samper's professional qualities, the Court of First Instance held, in paragraph 48 of the judgment under appeal, that, in assessing the comparative merits of Mr Samper in respect of the 1997 promotion exercise, the Promotions Committee based its view solely on the marks awarded in the staff reports.

46. In that connection, it must be pointed out that it is expressly stated in the minutes of the meeting of the Promotions Committee that the committee took into consideration the level of the duties performed by Mr Samper and adjusted the marks awarded in the staff reports to reflect those duties.

47. Moreover, it is also clear from those minutes that the Promotions Committee compared Mr Samper's merits and the level of responsibility assumed by him with those of the officials promoted to Grade A 4 in the 1997 promotion exercise and with the staff reports of certain other officials who were not promoted.

48. Accordingly, the Promotions Committee took account of the level of responsibility assumed by Mr Samper in the performance of his duties as head of an information office and did not base its view solely on the marks awarded in the staff reports.

49. Under the circumstances, the finding made by the Court of First Instance, in paragraph 48 of the judgment under appeal, distorts the clear sense of the minutes of the meeting of the Promotions Committee of 19 May 1999.

50. It is clear from all the foregoing considerations that, in holding, in paragraphs 52 and 53 of the judgment under appeal, that the appointing authority made a manifest error of assessment in failing to attach value, in its examination of comparative merits of Mr Samper in the 1997 promotions exercise, to the duties performed successfully by him as head of the Madrid Information Office, the Court of First Instance based its decision on a distortion of the clear sense of the evidence put before it and substituted its own assessment of the merits of Mr Samper for that of the appointing authority.

51. In the circumstances, the judgment under appeal must be set aside.

    Referral of the case back to the Court of First Instance

52. Pursuant to the first paragraph of Article 61 of the Statute of the Court of Justice, where the Court of Justice quashes the decision of the Court of First Instance, it may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the Court of First Instance for judgment.

53. As the Court of First Instance considered only the first of the four pleas relied on by Mr Samper, the Court considers that it is not able to decide the case and that it should be referred back to the Court of First Instance for judgment on Mr Samper's claims for annulment of the contested decision.

On those grounds,

THE COURT (Fifth Chamber),

hereby:

1. Annuls the judgment of the Court of First Instance of 3 May 2001 in Case T-99/00 Samper v Parliament;

2. Refers the case back to the Court of First Instance for it to give judgment on the claims by Mr Samper for annulment of the decision of the European Parliament of 9 June 1999 reconstructing his career, in so far as it sets at 1 January 1998 the date for his promotion to Grade A 4 to take effect;

3. Reserves the costs.

WatheletTimmermans La Pergola Jannvon Bahr

Delivered in open court in Luxembourg on 3 April 2003.

R. Grass M. Wathelet

Registrar President of the Fifth Chamber

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1: Language of the case: French.