C-207/99
ECLI:EU:C:2000:331
- Súd
- Súdny dvor Európskej únie
- IČS
- 61999CC0207
- Zdroj
- eur-lex.europa.eu ↗
COMMISSION V HAMPTAUX
OPINION OF ADVOCATE GENERAL LÉGER delivered on 15 June 2000 *
1. By the present appeal, the Court is by appointment of the official to the next requested to examine the lawfulness of the higher grade in the category or service to procedure established by the Commission which he belongs. Promotion shall be of the European Communities for the exclusively by selection from among offi- promotion in grade of its officials. cials 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. The Commission requests the Court to set aside the judgment of the Court of First Instance of 25 March 1999 1 in so far as it held that the procedure in issue did not ensure a 'consideration of the comparative merits' of candidates as required under Article 45 of the Staff Regulations of Officials of the European Communities (hereinafter 'the Staff Regulations'). For officials appointed to the starting grade in their service or category, this period shall be six months from the date of their establishment; for other officials it shall be two years.'
I — Legal framework
2. Article 45(1) of the Staff Regulations provides: 3. In November 1988 the Commission published a Practical Guide to the Proce- dure for the Promotion of Officials of the Commission of the EC (hereinafter 'the Practical Guide'). 2 Under the Practical 'Promotion shall be by decision of the Guide, the annual promotion of officials appointing authority. It shall be effected of the Commission is to take place in accordance with a procedure consisting of * Original language: French. 1 — Case T-76/98 Hamptaux v Commission [1999] ECR-SC I- A-59 and II-303 (hereinafter 'the contested judgment'). 2 — Annex 1 to the reply filed by the Commission.
I - 9487
OPINION OF MR LÉGER — CASE C-207/99 P
five stages, which may be described as assessment appropriate to the grade con- follows. 3 cerned. The Promotion Committee thus draws up a 'list of officials considered most deserving of promotion' which it forwards to the appointing authority. The number of officials on that draft list is generally higher than the number of promotions for which In the first stage of the procedure, the budgetary funds are available. administration publishes in Administrative Notices the list of officials eligible for promotion during the promotions proce- dure in question. That publication is inten- ded to enable the officials concerned to inform the administration of any errors or In the fourth stage, the appointing author- omissions. ity confirms the list of officials considered most deserving of promotion and publishes it, in alphabetical order, in Administrative Notices.
During the second stage, each Director- General of the Commission undertakes, in accordance with procedures established in each Directorate-General, a comparative Last, in the final stage, the appointing examination of the merits of the officials authority determines the promotions to be under him who are eligible for promotion made on the basis of that list and signs the and adopts his proposal for promotion, individual decisions. The administration establishing an order of priority which he then publishes the list of officials who have communicates to the Promotion Commit- been promoted in Administrative Notices. tee.
In the third stage, the Promotion Commit- tee selects the officials considered most I I — Facts and procedure deserving of promotion by comparing can- didates' merits according to a method of
4. It is apparent from the case-file 4that 3 — The contested judgment contains no description of the Mrs Hamptaux 5— the applicant at first procedure in issue. However, the Court of First Instance has described the procedure in a number of judgments delivered instance — was appointed an official of in other cases and, in particular, in Case T-53/91 Mergen v Commission [1992] ECR 11-2041, paragraph 27; Case the Commission on 1 June 1973. She is T-262/94 Baiwir v Commission [1996] ECR-SC I-A-257 and II-739, paragraph 61; Case T-144/95 Michael v Commission [1996] ECR-SC I-A-529 and II-1429, para- graph 1; Case T-22/99 Rose v Commission [2000] ECR-SC I-A-27 and II-115, paragraphs 2 to 4; and Case T-82/98 4 — See, in particular, paragraphs 1 to 13 and paragraph 32 of ¡acobs v Commission [2000] ECR-SC I-A-39 and II-169, the contested judgment. paragraph 2. 5 — Otherwise referred to as the 'applicant'.
I - 9488
COMMISSION V HAMPTAUX
employed in the Directorate-General for procedure, but had not been promoted. The 'Personnel and Administration' (DG IX) other eight candidates had all been pro- and has been in Grade B 3 since 1 April posed by DG IX the previous year but had 1992. not been on the list of officials considered most deserving of promotion.
7. On 8 October 1997 the applicant lodged 5. In the course of the 1997 promotions a complaint under Article 90(2) of the Staff procedure the applicant was proposed by Regulations, which the Commission her Directorate-General for promotion to rejected by decision of 30 January 1998. Grade B 2. In the order of priority drawn up by DG IX she was in 13th position out of a total of 14 candidates. 6
8. Mrs Hamptaux brought her action before the Court of First Instance on 13 May 1998. She sought annulment of two measures, namely the decision of the appointing authority refusing to place her 6. However, the applicant did not gain the on the list of officials considered most desired promotion. She was not included deserving of promotion to Grade B 2 in the on either the list of officials considered 1997 promotions procedure and the deci- most deserving of promotion 7 or the list of sion of the appointing authority refusing to officials promoted in 1997. 8 promote her to Grade B 2 in the course of that procedure (hereinafter 'the contested decisions'). 9
In the course of that procedure, the appointing authority promoted 10 officials from DG IX. Of these, two candidates — III — The contested judgment Mrs B. and Mrs D. — had already been on the list of officials considered the most deserving of promotion during the previous 9. Before the Court of First Instance, the applicant claimed that in adopting the 6 — The list of officials proposed by the Directorates-General for promotion in the 1997 promotion procedure was published in Administrative Notices No 992 of 16 May 1997 (annex 7 to the defence filed by the Commission in Case T-76/98). 7 — The list published in Administrative Notices No 998 of 9 — The applicant also requested the Court of First Instance to 8 August 1997 (annex 11 to the defence filed by the order the Commission to pay her the sum of BEF 833 000 Commission in Case T-76/98). by way of damages in respect of the discrimination which she claimed to have suffered in her capacity as an official 8 — The list published in Administrative Notices No 999 of who had been promoted from another category. The Court 12 August 1997 (annex 12 to the defence filed by the of First Instance rejected that head of claim in paragraphs Commission in Case T-76/98). 54 and 55 of the contested judgment.
I - 9489
OPINION OF MR LÉGER — CASE C-207/99 P
contested decisions the Commission had 'priority' over the applicant. According to infringed the provisions of Article 45(1) of the Practical Guide, the Staff Regulations. 10 She contended that the appointing authority had not really undertaken a comparative examination of the merits of candidates for promotion. 11 — candidates on the list of officials con- sidered most deserving of promotion in one promotions procedure but not promoted during that procedure 13 are automatically entered on the list of 10. In its defence, the Commission conten- officials considered most deserving of ded that the 1997 promotions procedure promotion during the following proce- had been conducted in accordance with the dure and are automatically promoted, procedure set out in the Practical Guide. 12 unless they are 'no longer deserving' of promotion, and
It observed that of the 10 officials pro- moted to Grade B 2, two candidates had — candidates who were proposed by their already been on the list of officials con- Directorate-General during one pro- sidered most deserving of promotion in motions procedure but were not placed 1996, but promotion had not been possible on the list of officials considered most in their case. Furthermore, the other eight deserving of promotion are, in the candidates had already been proposed by absence of 'reasoned justification to DG IX during the previous procedure but the contrary', automatically included had not been included on either the list of the following year on the list of offi- officials considered most deserving of pro- cials proposed by their Directorate- motion or the list of officials promoted. General.
The Commission further stated that these 11. The applicant maintained that such 10 officials were entitled to some kind of justification was inconsistent with the pro- visions of Article 45(1) of the Staff Regula- tions. 14 She contended that a comparative 10 — The applicant also relied on a second plea, alleging an ultra examination of candidates in a specific vires act. She contended that the Member of the Commis- sion responsible for personnel was not competent under the applicable provisions to adopt and sign the decision rejecting her complaint of 8 October 1997 (paragraphs 15 to 17 of the contested judgment). However, the Court of 13 — In Community civil service jargon candidates who were First Instance rejected mat plea as unfounded (paragraphs entered on the list of officials considered most deserving of 19 to 25 of the contested judgment). promotion during one promotion procedure but were not 11 — Paragraphs 27 to 29 of the contested judgment. iromoted during that procedure are said to be 'left over' 12 — See paragraphs 30 to 34 of the contested judgment and f from that list (see paragraph 29 of the contested judg- ment). points 32 and 33 of the defence lodged by the Commission in Case T-76/98. 14 — Paragraph 29 of the contested judgment.
I - 9490
COMMISSION V HAMPTAUX
promotions procedure could not depend on substitute its assessment of candidates' whether the officials had already been qualifications and merits for that of the proposed for promotion in a previous appointing authority... procedure.
37 It is clear from the [Practical Guide to the Procedure for the Promotion of Officials of the Commission of the European Communities] and the expla- 12. In the contested judgment the Court of nations which the Commission provi- First Instance held as follows: ded at the hearing that officials who had already appeared on the list of most deserving candidates drawn up by the appointing authority for the pre- vious year but who had not been promoted were automatically included on the list of most deserving candidates '35 It should be pointed out, first of all, the following year unless they were that it is settled case-law that the now considered "no longer deserving" appointing authority has power under of promotion. The Commission further the Staff Regulations when deciding on stated that in those circumstances the promotions to make a choice on the officials concerned are automatically basis of a consideration of the com- promoted. parative merits of candidates eligible for promotion carried out in the man- ner which it considers to be the most appropriate... 38 It must be ascertained whether that procedure infringed the applicant's rights in regard to the promotions procedure.
36 In order to evaluate the merits to be 39 The first subparagraph of Article 45(1) taken into account in connection with of the Staff Regulations provides: the decision on promotion provided for in Article 45 of the Staff Regulations, the appointing authority has a wide discretion, and in that respect review by the Community judicature must be confined to the question whether, hav- ing regard to the bases and procedures available to the administration for its 40 It is in that context that it is necessary assessment, it has remained within the to consider the first complaint, proper bounds and has not used its whereby the applicant alleges that no authority in a manifestly incorrect consideration of the comparative mer- manner. The Court cannot therefore its was undertaken.
I - 9491
OPINION OF MR LÉGER — CASE C-207/99 P
41 It follows from the first subparagraph they are now considered "no longer of Article 45(1) of the Staff Regula- deserving" of promotion. Contrary to tions that any official eligible for its obligation under Article 45(1) of the promotion, that is to say, who has Staff Regulations, therefore, the completed a minimum period in grade, appointing authority did not, in the is entitled to have his comparative context of the promotions procedure in merits and his reports considered by issue, undertake a comparative exam- the appointing authority... ination of the applicant's merits and her reports and those of the two officials who had already appeared on the list of most deserving officials drawn up by the appointing authority 42 The applicant was therefore entitled to the previous year, and thus acted in have the appointing authority under- breach of a right which the applicant take a comparative examination of her was unquestionably entitled to exercise merits and of the reports on her in the in the promotions procedure. context of the promotions procedure in issue.
45 At the hearing, the Commission justi- fied that approach by claiming that the 43 Article 45(1) of the Staff Regulations applicant's merits had been compared does not distinguish between the posi- with those of all her colleagues the tion of officials who have already previous year. Furthermore, the propo- appeared on the list of officials con- sals made the previous year give rise to sidered most deserving of promotion a legitimate expectation on the part of drawn up by the appointing authority the officials concerned. Last, it empha- for the previous year and that of other sised that an official who was on the officials. In fact it does not lay down list of candidates most deserving of any condition in addition to that of promotion drawn up by the appointing completion of a minimum period in authority the previous year but was not grade... promoted, and who is not considered "no longer deserving" of promotion, is regarded by the Commission as having thereby acquired the right to be placed on the list for the current year. 44 It follows both from the written sub- missions lodged by the Commission and from the explanations which it provided at the hearing that officials who were on the list of most deserving 46 In that respect, the Court observes that officials drawn up by the appointing officials are entitled to have the authority for the previous year and appointing authority undertake a com- who were not promoted are automati- parative examination of their merits cally included on the list of most and their reports in the context of each deserving officials the following year promotions procedure, more particu- and are automatically promoted, unless larly because the officials who were
I - 9492
COMMISSION V HAMPTAUX
most deserving of promotion the pre- published in 1997, it was accompanied vious year are not necessarily those by a caveat to the effect that "officials most deserving of promotion the fol- on those lists who are not promoted on lowing year. Likewise, the Commission that date [would] not be automatically has not shown either that the appli- entitled to be included on subsequent cant's merits were compared in the lists" (see Administrative Notices course of the 1996 promotions proce- No 998, 8 August 1997, p. 4). dure with those of the officials consid- ered most deserving in 1996.
47 Nor can the Court accept the Commis- sion's arguments that the principle of legitimate expectations is applicable in 49 As regards the argument that the the present case. The right to claim officials on the previous year's list of protection of legitimate expectations most deserving officials drawn up by extends to any individual who is in a the appointing authority thereby situation in which it appears to him acquired the right to be promoted the that the Community administration, by following year unless they were then giving him precise assurances, has led considered "no longer deserving" of him to entertain legitimate expecta- promotion, it should be observed that tions... However, promises which do the Staff Regulations do not confer a not take account of the provisions of right to promotion, even on officials the Staff Regulations cannot give rise who meet all the conditions for pro- to a legitimate expectation on the part motion... of the person to whom they are made...
48 Therefore, even if the Commission had given assurances to the officials on the previous year's list of candidates con- 50 It follows from all the foregoing that sidered most deserving of promotion, the promotions procedure in issue is those assurances were manifestly illegal vitiated by an irregularity constituting and could not give rise to a legitimate a substantive defect in that the con- expectation on the part of those offi- sideration of the comparative merits of cials. Furthermore, the Commission the applicant and the two officials on did not claim to have given them the previous year's list of most deser- "precise assurances" capable of leading ving officials drawn up by the appoint- them to entertain a legitimate expecta- ing authority fell short of the require- tion. On the contrary, it is common ments of Article 45 of the Staff Reg- ground that, at least when that list was ulations...'
I - 9493
OPINION OF MR LÉGER — CASE C-207/99 P
13. Accordingly, the Court of First 16. The Commission relies on a single Instance, without examining the other ground of appeal, alleging defects in the complaints formulated by the applicant, 15 reasoning set out in the contested judgment annulled the Commission decision refusing and an error of law. to promote the applicant to Grade B 2 in the 1997 promotions procedure.
The single ground of appeal, alleging defects in the reasoning and an error of law
IV — The appeal Arguments of the Commission
17. The Commission maintains that the 14. By the present appeal, the Commission contested judgment is vitiated by contra- is requesting the Court to set aside the dictory reasoning and an error of law. contested judgment and, determining the There is, it alleges, a contradiction matter itself, dismiss Mrs Hamptaux's between: application. In the alternative, it requests the Court to refer the case back before the Court of First Instance and to reserve the decision as to costs. (a) the finding of the Court of First Instance 16 that the procedure set out in the Practical Guide does not ensure a 'consideration of the comparative mer- its' of candidates on the ground that candidates 'left over' from the previous list automatically appear on the list of 15. Mrs Hamptaux contends that the officials considered most deserving of Court should dismiss the appeal and order promotion, and the Commission to pay the costs of the present proceedings.
15 — In the context of her plea alleging inftingement of Article 45(1) of the Staff Regulations, Mrs Hamptaux (b) its finding 17that, under the procedure had also claimed that the Commission had: — wrongfully given priority to criteria other than those in question, candidates 'left over' from relating exclusively to the merits of candidates eligible for promotion to Grade B 2 during the 1997 procedure, and — discriminated between officials who have spent part of their career in a category below their present category and 16 — In paragraphs 37 and 44 of the contested judgment. other officials (see paragraph 26 of the contested judg- ment). 17 — In paragraphs 37 and 44 of the contested judgment.
I - 9494
COMMISSION V HAMPTAUX
the previous list are entered on the list In the majority of cases, officials have a only on condition that they are not 'no relatively consistent level of performance longer deserving' of promotion. from one year to another. It therefore rarely happens that an official considered 'most deserving' in a specific procedure will be considered 'no longer deserving' of promo- tion the following year. Furthermore, a The Commission states that the expression candidate's merits cannot be assessed on 'no longer deserving' means that there is no the basis of a single year, but must neces- longer justification for including the candi- sarily be evaluated over a longer period, date in the order of priority of officials since otherwise officials who made special considered most deserving of promotion. efforts in the years in which they can hope Furthermore, it fails to see how it could to be promoted would be unduly favoured. determine whether an official is 'no longer deserving' of promotion without compar- ing his merits with those of other candi- dates for promotion. In that sense, exam- ination of whether an official is 'no longer deserving' is equivalent to 'consideration of comparative merits' within the meaning of Article 45 of the Staff Regulations. The Commission therefore contends that it is proper, and indeed necessary, that the appointing authority should take into con- sideration, when 'consider[ing]... the com- parative merits' of candidates for promo- In those circumstances, the Commission tion within the meaning of Article 45(1) of contends that the Court of First Instance the Staff Regulations, the fact that a could not conclude that officials 'left over' candidate has already appeared on the from the previous list are automatically previous year's list of officials considered included on the list of officials considered most deserving of promotion. most deserving of promotion. On the contrary, it is apparent from the facts accepted by the Court of First Instance itself that the appointing authority ascer- tains in each case whether officials 'left over' from the previous year's list have come to be considered 'no longer deserving' of promotion between one procedure and Discussion the next.
18. The Commission also submits that there is a 'rebuttable presumption', as it were, that those 'left over' from the pre- 19. First of all, it should be observed that vious year's list will be entered on the list of the two complaints formulated by the officials considered most deserving of pro- Commission against the contested judg- motion. ment — contradictory reasoning and an
I - 9495
OPINION OF MR LÉGER — CASE C-207/99 P
error of law — are based on the same the merits of candidates for promotion in arguments. order to identify the similarities, resem- blances or differences between them. It thus supposes that, as well as assessing the specific qualities of each candidate, the administration will 'compare' their respec- Essentially, the Commission criticises the tive merits and reports in order to identify Court of First Instance for having held that the official or officials who can properly be the procedure set out in the Practical Guide promoted. Under Article 45 of the Staff fails to comply with the requirements of Regulations, the appointing authority is Article 45 of the Staff Regulations because therefore required, in each promotions officials 'left over' are automatically inclu- procedure, to place the merits of each ded on the list of officials considered most candidate in order as they relate to those deserving of promotion and are automati- of the other candidates for promotion. cally promoted, unless they are now con- sidered 'no longer deserving' of promotion. The Commission contends that that finding is incorrect and contradictory since, in accordance with the Practical Guide, the appointing authority ascertains in each case whether the officials 'left over' from the 21. The requirement of a consideration of previous list must be considered 'no longer candidates' 'comparative' merits does not deserving' of promotion. The Commission mean that the appointing authority cannot maintains that consideration of whether take into consideration the fact that a those officials are 'no longer deserving' is candidate has already been on the list of the same as a 'consideration of the com- officials considered most deserving of pro- parative merits' of candidates. 18 motion in a previous procedure.
20. Article 45(1) of the Staff Regulations places the appointing authority under a It is settled case-law that '... in considering fundamental obligation in each promotions candidates' merits, as provided for in procedure. It requires that the administra- Article 45 [of the Staff Regulations], the tion undertake a consideration of the appointing authority is not required to base 'comparative' merits of officials eligible itself exclusively on their staff reports but for promotion and of the reports on them. may also base its assessment on other aspects of their merits, such as other information relating to their administrative and personal position...'. 19
The use of the word 'comparative' in Article 45 supposes that the administration 19 — Case T-221/96 Manzo-Tafaro v Commission [1998] ECR- SC I-A-115 and II-307, paragraph 18, emphasis added. See is to undertake a comprehensive analysis of also Joined Cases T-89/91, T-21/92 and T-89/92 X v Commission [1993] ECR II-1235, paragraphs 49 and 50; Case T-168/96 Patronis v Council [1997] ECR-SC I-A-299 and II-833, paragraph 35, and Case T-283/97 Thinus v Commission [1999] ECR-SC I-A-69 and II-353, paragraph 18 — See point 8 of the reply filed by the Commission. 48.
I - 9496
COMMISSION V HAMPTAUX
In that regard, the fact that a candidate was 23. Nor is the Commission's argument that placed on the list of officials considered the procedure in issue ensures a 'compara- most deserving of promotion in a previous tive' examination of the merits of candi- procedure is clearly one of the various dates supported by either the wording of 'aspects' of his professional merits. Further- the Practical Guide or the facts of the more, as the Commission has pointed out, a present case. candidate's merits cannot be assessed with reference to a single year, but must reason- ably be evaluated over a longer period.
24. There is nothing in the Practical Guide 22. Contrary to the Commission's argu- to show that the appointing authority, ment, however, I am of the view that when considering whether a candidate consideration of whether a candidate is passed over for promotion is 'no longer 'no longer deserving' of promotion in the deserving' of promotion, also undertakes a procedure set out in the Practical Guide is comparison of that candidate's merits with not the same as a consideration of candi- those of other candidates for promotion. dates' 'comparative' merits for the purposes of Article 45.
As Mrs Hamptaux has submitted, 20 the Thus, as regards proposals for promotion expression 'no longer deserving' merely made by Directors-General (second stage of supposes an individual assessment of the the procedure), the Practical Guide merely candidate's qualities. It means comparing states: that person's professional performance with his own previous performance, for the purpose of ascertaining whether he can be recognised as having qualities of a level at least equal to those displayed during previous procedures. Consideration of whether an official is 'no longer deserving' is therefore limited to an examination of the conduct of the official concerned, taken 'It should be noted in this connection that in isolation. There is no need for the the Promotion Committees have always appointing authority to compare the merits insisted that, unless there is an extremely of an official 'left over' from the previous good reason, officials who appear on the list with the merits of other candidates for Directorate-General's list but are not pro- promotion. moted in that year, must be listed in the same order the following year.' 21
20 — In point 11 of the applicant's defence and point 5 of her rejoinder 21 — Practical Guide, p. 2 (emphasis added).
I - 9497
OPINION OF MR LÉGER — CASE C-207/99 P
Similarly, as regards the drawing up of the candidates — Mrs B. and Mrs D. — had draft list of officials considered most deser- already been on the list of officials con- ving of promotion (third stage of the sidered most deserving of promotion dur- procedure), the Practical Guide states that ing the previous procedure, although they '[n]ortnally officials who appeared on the had not been promoted. The other eight previous year's "most deserving" list but candidates had all been proposed by their were not promoted are automatically Directorate-General the previous year but entered on the draft list'. 22 had not been placed on the list of officials considered most deserving of promotion.
Admittedly, the reservations which the Practical Guide thus expresses — by means of the expressions 'unless there is It is common ground that the appointing an extremely good reason' or 'normally' — authority adopted its promotion decisions may give the impression that the Commis- without undertaking a comparison of the sion ascertains in each case whether the applicant's merits with those of Mrs B. and merits of officials left over from the pre- Mrs D. vious list have become 'less deserving' between one year and another. On the other hand, they do not ensure that the appointing authority will, in accordance with Article 45 of the Staff Regulations, undertake a comparison of those officials' merits with those of other candidates. Before the Court of First Instance, the Commission did not dispute that it had failed to carry out a comparative examina- tion of the applicant's merits and reports with those of the two abovementioned candidates. 23 On the contrary, it confined 25. The facts of the present case also itself to observing that, in accordance with confirm the absence of a 'consideration the Practical Guide, Mrs B. and Mrs D. had of... comparative merits' in the procedure been automatically placed on the list of organised by the Practical Guide. officials considered most deserving of pro- motion in the course of the 1997 proce- dure. 2 4
23 — See points 32 and 33 of the defence lodged by the Commission in Case T-76/98. It will be recalled that in the procedure in 24 — On the other hand, before the Court of First Instance the issue the appointing authority promoted 10 Commission clearly explained the reasons why the appointing authority had considered that the other eight officials from DG IX. Of these, two candidates proposed by DG IX displayed merits higher than the applicant's. In this way it confirmed that the appointing authority had actually undertaken a compar- ison of tne applicant's merits with those of the eight candidates concerned (see points 34 and 35 of the defence 22 — Ibid, (emphasis added). lodged by the Commission in Case T-76/98).
I - 9498
COMMISSION V HAMPTAUX
The Court of First Instance also made that merits' of candidates within the meaning of finding of fact in paragraph 44 of the Article 45 of the Staff Regulations. In contested judgment, where it held that: particular, the Commission has not estab- lished that the appointing authority, when ascertaining whether an official 'left over' from the previous year's list is 'no longer deserving' of promotion, undertakes a 'It follows [from the papers before the comparison of the merits and reports of Court] that [officials "left over" from the all officials eligible for promotion. previous year's list] are automatically inclu- ded on the list of most deserving officials the following year unless they are "no longer deserving" of promotion. Contrary to its obligation under Article 45(1) of the Staff Regulations, therefore, the appointing 27. In those circumstances, the finding of authority did not, in the context of the the Court of First Instance that the proce- promotions procedure in issue, undertake a dure in issue does not ensure compliance comparative examination of the applicant's with the requirements laid down in Arti- merits... and those of the two who had cle 45 of the Staff Regulations is not already appeared on the previous year's list vitiated either by contradictory reasoning of most deserving officials...'. 25 or by an error of law.
In paragraph 50 of the contested judgment, the Court of First Instance concluded '... 28. I therefore propose that the Court that the promotions procedure in issue is should dismiss the appeal as unfounded. vitiated by an irregularity constituting a substantive defect in that the consideration of the comparative merits of the applicant and the two officials on the previous year's list of most deserving officials... fell short of the requirements...'. 26
Costs
26. On the basis of the foregoing consid- erations, I therefore conclude that consid- eration of whether an official is 'no longer 29. Under Articles 69(2) and 118 of the deserving' of promotion in the procedure Rules of Procedure of the Court, the organised by the Practical Guide is not the unsuccessful party is to be ordered to pay same as a 'consideration of the comparative the costs if they have been applied for in the successful party's pleadings. Since the Com- mission has been unsuccessful, it must be 25 — Emphasis added. ordered to pay the costs, in accordance 26 — Emphasis added. with Mrs Hamptaux's application for costs.
I - 9499
OPINION OF MR LÉGER — CASE C-207/99 P
Conclusion
30. In the light of the foregoing considerations, I propose that the Court should:
(1) dismiss the appeal;
(2) order the Commission to pay the costs of these proceedings.
I - 9500