ORDER OF THE COURT OF FIRST INSTANCE (First Chamber)

8 October 2008

Case T-23/05

Éric Gippini Fournier

v

Commission of the European Communities

(Action for annulment – Action for damages – Civil service – Promotion – Award of priority points – Act not capable of being appealed – Preparatory acts – Inadmissibility)

Application: first, for annulment of the Commission decisions not to award the applicant any priority points under the 2003 promotion procedure, to reject his appeal to the Promotions Committee seeking the award of priority points of any description, and to refuse to award priority points for work in the interest of the institution, and, second, a claim for damages.

Held: The action is dismissed as inadmissible. Each party is ordered to bear its own costs.

Summary

1.      Officials – Actions – Act adversely affecting an official – Promotion system introduced by the Commission – Conclusion of the promotion procedure by an act comprising a decision establishing the list of officials promoted and a decision determining the points awarded to officials – Self-contained decisions against which separate appeals or a single appeal may be brought

(Staff Regulations, Arts 45, 90 and 91)

2.      Officials – Actions – Subject-matter – Determined by the application initiating proceedings within the limits laid down by the complaint

(Staff Regulations, Arts 90 and 91)

3.      Procedure – Application initiating proceedings – Subject-matter of the dispute – Delimitation – Alteration once proceedings have been started – Not allowed – Decision replacing the contested decision during the proceedings – New factor

(Rules of Procedure of the Court of First Instance, Art. 48(2); Staff Regulations, Arts 90 and 91)

1.      Under the promotion system established by an internal regulation of the Commission based on the examination of cumulative merits represented by points accumulated year after year, and in which the promotion exercise is concluded by an act of a complex nature in that it comprises two distinct decisions by the appointing authority, the one establishing the list of officials promoted and the other determining the total number of points of officials on which the former decision is based, that decision determining the total number of points is a self-contained act which may, as such, be the subject-matter of a complaint and, where appropriate, a legal action in accordance with the remedies laid down by the Staff Regulations.

An official who is not promoted and who does not wish to challenge his non‑promotion in the exercise in question but only the refusal to award him a certain number of points, which could not enable him to reach the promotion threshold, may submit a complaint and, where appropriate, bring an action before the Court against the only act awarding points which entails binding and definitive legal effects in regard to him.

By contrast, acts preparatory, prior and necessary to the final decision may not be the subject of a separate action for annulment, although their lawfulness may always be disputed in the course of an action directed against the final decision.

Decisions on the award or the refusal to award a certain number of promotion points to the official in question constitute such preparatory acts which may be contested only in an action directed against the final decision of the appointing authority.

(see paras 60-62, 64, 65, 67)

See: T‑311/04 Buendía Sierra v Commission [2006] ECR II‑4137, paras 90-92, 97 and 98

2.      Although the administrative complaint provided for in Article 90(2) of the Staff Regulations is an essential prerequisite for bringing an action against an act adversely affecting a person covered by the Staff Regulations, it is nonetheless a separate step from the action provided for in Article 91(2) of the Staff Regulations and determines the purpose and subject-matter of that action to a negative extent only, in the sense that it precludes an extension, but not a curtailment, of the purpose or subject-matter of the complaint in the action. The subject-matter of an action, therefore, is defined solely by the application, provided that it remains within the limits laid down by the complaint. It follows that the substance of the complaint cannot be subsumed into the application other than by unambiguous reference.

(see para. 70)

See: T‑134/89 Hettrich and Others v Commission [1990] ECR II‑565, para. 16

3.      Although Article 48(2) of the Rules of Procedure of the Court of First Instance authorises, in certain circumstances, new pleas in law to be introduced in the course of proceedings, the provision cannot in any circumstances be interpreted as authorising the applicant to bring new claims before the Court and thereby to modify the subject-matter of the proceedings.

In that respect, by virtue of the requirements of procedural economy, when a contested act is replaced, in the course of proceedings, by an act having the same subject-matter, the latter constitutes a new factor enabling the applicants to amend their pleadings.

However, in the context of a promotion procedure, where the act in question merely replaces a preparatory act, such as a decision on the award of promotion points, and does not alter the decision determining the total number of points awarded to the applicant under the promotion procedure concerned, the only act that may be challenged in the circumstances but that has not been challenged by the applicant in his initial pleadings, the applicant may not extend the subject-matter of the proceedings to an act against which his action was not directed, thereby rendering an inadmissible action admissible.

(see paras 72-76)

See: T‑3/99 Banatrading v Council [2001] ECR II‑2123, para. 28 and the case-law cited therein