Judgment_paragraph 2. · Daniele Grassi v Council of the European Union (188/73)

2.The defendant emphasizes, in the first place, that the wording of Article 45 of the Staff Regulations clearly indicates that the decision relating to the promotion of an official is among those decisions which, by their very nature, are inherent in the discretionary powers of the appointing authority.On this point, the Council draws attention to the consultative character of the tasks of the ‘Advisory Committee on Promotion’ set up by the Secretariat of the Council in order to advise the appointing authority in its consideration, pursuant to Article 45 (1) of the Staff Regulations, of the comparative merits of officials eligible for promotion. Suggestions from this committee are merely guidelines for the appointing authority, which retains in their entirety the discretionary powers conferred on it by the Staff Regulations.As for the submissions made by the applicant, the Council accepts that the wording of Article 90 (2) of the Staff Regulations requires the express rejection of a complaint to be a reasoned one. Nevertheless, although the appointing authority is obliged to communicate ‘its reasoned decision’ to the person concerned within the prescribed time limit, the authority has a large measure of discretion in deciding the substance and scope of the reasons which it is under an obligation to give. This applies particularly in fields where the appointing authority has wide discretionary powers, such as those provided for under Article 45 of the Staff Regulations. Against this background the reason given for rejection of the applicant's complaint, though brief, is entirely in order. This contention is supported by precedents established by the Court: the appointing authority is not obliged to justify its promotion decisions in respect of candidates not promoted. On this point the Council cites a number of judgments of the Court, including those of 13 July 1972 in Case 90/71 (Bernardi v Parliament, Rec. p. 609) and of 6 May 1969 in Case 21/68 (Huybrechts v Commission, Rec. p. 97). Although this case law refers only to justification of decisions to promote, it is obvious that the principles which it enshrines apply with equal force to justification of an express decision rejecting a complaint.The applicant is wrong to base his argument on Article 25 of the Staff Regulations. The Council scrupulously observed the procedure provided for in that Article. Nor, moreover, has the applicant alleged that the rules of that procedure were not complied with. On the requirement to justify decisions covered by Article 25, the defendant refers to decisions of the Court according to which the assessment factors of which the appointing authority can avail itself in taking individual decisions ‘are ill-suited for inclusion in a statement of reasons’: judgments of 9 March 1964 in Case 27/63 (Raponi v Commission, Rec. p. 268) and of 9 June 1964 in Joined Cases 94 and 96/63 (Bernusset v Commission, Rec. p. 612).The Council maintains that it meticulously observed the provisions of the Regulations in promoting Mr X. It is obvious that, in making an appointment or a promotion, the appointing authority is under an obligation to abide by the conditions which it has itself laid down. In this connexion the defendant emphasizes that it followed the procedure provided for in its Decision No 344/73 concerning the Committee on Promotion. But the report of the Committee, who knew the contents of Notice of Vacancy No 31/73, clearly stated that it was ‘after having given careful consideration to the merits of the various candidates fulfilling the seniority qualifications for promotion’ that it reached unanimous agreement on the list of officials worthy of promotion into Grade LA 3.According to the defendant, the Court is not competent to review the decision in dispute because, in this case, the question in issue is an assessment made by the administrative authorities not only of ability and performance but also of the overall personality of each candidate for the vacancy. The Court can go into the facts on which the decision was based only if it considers itself to be capable of substituting its own assessment for that of the administration. The Court would therefore be right to refrain from sitting in judgment on the way in which the power of appointment provided for under Article 45 has been exercised, in the absence of anything manifestly questionable revealed by examination of the file and its contents. As there is nothing of this kind in the present case, there is no justification for adopting the measures of inquiry requested by the applicant.The Council goes on to give a brief summary of the professional careers of Messrs X and Grassi, from which it is clear (according to the Council) that the decision was justified. In particular there is said to be no question of Mr X's competence to manage a Division in the Language Department of the Council in view of the fact that he has been head of the Italian Section of the Department since 1 January 1962.