Judgment_paragraph 6 · Commission of the European Communities v Claudine Hamptaux (C-207/99 P)

6The Court of First Instance rejected the first plea and upheld the first part of the second plea, as follows:35 It should be pointed out, first of all, that it is settled case-law that the appointing authority has power under the Staff Regulations when deciding on promotions to make a choice on the basis of a consideration of the comparative merits of candidates eligible for promotion carried out in the manner which it considers to be the most appropriate (see Case 62/75 de Wind v Commission [1976] ECR 1167, paragraph 17, Case T-53/91 Mergen v Commission [1992] ECR II-2041, paragraph 33, and Case T-262/94 Baiwir v Commission [1996] ECRSC II-739, paragraph 65).36 In order to evaluate the merits to be taken into account in connection with 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, having regard to the bases and procedures available to the administration for its assessment, it has remained within the proper bounds and has not used its authority in a manifestly incorrect manner. The Court cannot therefore substitute its assessment of candidates' qualifications and merits for that of the appointing authority (see Case T-25/90 Schönherr v ESC [1992] ECR II-63, paragraph 20, Case T-11/91 Schloh v Council [1992] ECR II-203, paragraph 51, and Baiwir v Commission, cited above, paragraph 66).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 explanations which the Commission provided at the hearing that officials who had already appeared on the list of most deserving candidates drawn up by the appointing authority for the previous year but who had not been promoted were automatically included on the list of most deserving candidates the following year unless they were now considered “no longer deserving” of promotion. The Commission further stated that in those circumstances the officials concerned are automatically promoted.38 It must be ascertained whether that procedure infringed the applicant's rights in regard to the promotions procedure....41 It follows from the first subparagraph of Article 45(1) of the Staff Regulations that any official eligible for promotion, that is to say, who has completed a minimum period in grade, is entitled to have his comparative merits and his reports considered by the appointing authority (Case T-167/97 Skrikas v Parliament [1998] ECRSC II-857, paragraph 37).42 The applicant was therefore entitled to have the appointing authority undertake a comparative examination of her merits and of the reports on her in the context of the promotions procedure in issue.43 Article 45(1) of the Staff Regulations does not distinguish between the position of officials who have already appeared on the list of officials considered most deserving of promotion drawn up by the appointing authority for the previous year and that of other officials. It does not lay down any condition in addition to that of completion of a minimum period in grade (Skrikas v Parliament, cited above, paragraph 38).44 It follows both from the written submissions lodged by the Commission and from the explanations which it provided at the hearing that officials who were on the list of most deserving officials drawn up by the appointing authority for the previous year and who were not promoted are automatically included on the list of most deserving officials the following year, unless they are now considered “no longer deserving” of promotion. Contrary to its obligation under Article 45(1) of the Staff Regulations, therefore, the appointing authority did not, in the context of the promotions procedure in issue, undertake a comparative examination 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 the previous year, and thus acted in breach of a right which the applicant was unquestionably entitled to exercise in the promotions procedure.45 At the hearing, the Commission justified that approach by claiming that the applicant's merits had been compared with those of all her colleagues the previous year. Furthermore, the proposals made the previous year give rise to a legitimate expectation on the part of the officials concerned. Last, it emphasised that an official who was on the list of candidates most deserving of promotion drawn up by the appointing authority the previous year but was not 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.46 In that respect, the Court observes that officials are entitled to have the appointing authority undertake a comparative examination of their merits and their reports in the context of each promotions procedure, more particularly because the officials who were most deserving of promotion the previous year are not necessarily those most deserving of promotion the following year. Likewise, the Commission has not shown either that the applicant's merits were compared in the course of the 1996 promotions procedure with those of the officials considered most deserving in 1996.47 Nor can the Court accept the Commission's arguments that the principle of legitimate expectations is applicable in the present case. The right to claim protection of legitimate expectations extends to any individual who is in a situation in which it appears to him that the Community administration, by giving him precise assurances, has led him to entertain legitimate expectations (Case T-43/97 Adine-Blanc v Commission [1998] ECRSC II-1683, paragraph 31, and the case-law cited there). However, promises which do not take account of the provisions of the Staff Regulations cannot give rise to a legitimate expectation on the part of the person to whom they are made (Case 162/84 Vlachou v Court of Auditors [1986] ECR 481, paragraph 6, and Case T-123/89 Chotnel v Commission [1990] ECR II-131, paragraph 30).48 Therefore, even if the Commission had given assurances to the officials on the previous year's list of candidates considered most deserving of promotion, those assurances were manifestly illegal and could not give rise to a legitimate expectation on the part of those officials. Furthermore, the Commission did not claim to have given them “precise assurances” capable of leading them to entertain a legitimate expectation. On the contrary, it is common ground that, at least when that list was published in 1997, it was accompanied by a caveat to the effect that “officials on those lists who are not promoted on that date [would] not be automatically entitled to be included on subsequent lists” (see Administrative Notices No 998, 8 August 1997, p. 4).49 As regards the argument that the officials on the previous year's list of most deserving officials drawn up by the appointing authority thereby acquired the right to be promoted the following year unless they were then considered “no longer deserving” of promotion, it should be observed that the Staff Regulations do not confer a right to promotion, even on officials who meet all the conditions for promotion (see Case T-3/92 Latham v Commission [1994] ECRSC II-83, paragraph 50, Case T-507/93 Branco v Court of Auditors [1995] ECRSC II-797, paragraph 28, and Baiwir v Commission, cited above, paragraph 67).50 It follows from all the foregoing that the promotions procedure in issue is 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 drawn up by the appointing authority fell short of the requirements of Article 45(1) of the Staff Regulations (see Case T-144/95 Michael v Commission [1996] ECRSC II-1429, paragraph 62).’