JUDGMENT OF THE COURT OF FIRST INSTANCE (First Chamber)

1 April 2009

Case T-385/04

Gregorio Valero Jordana

v

Commission of the European Communities

(Civil service – Officials – Action for annulment – Action for damages – Promotion – Award of priority points)

Application: seeking annulment of, first, the decision of the Director General of the Legal Service of the Commission awarding the applicant only one DG priority point under the 2003 promotion exercise, communicated on 7 July 2003 and confirmed by decision of the appointing authority notified on 16 December 2003; second, the decision of the appointing authority to award the applicant a total of 20 points under the 2003 promotion exercise, notified on 16 December 2003; the merit list of officials in grade A5 under the 2003 promotion exercise, published in Administrative Notices No 69‑2003 of 13 November 2003; the list of officials promoted to grade A4 under the 2003 exercise, published in Administrative Notices No 73‑2003 of 27 November 2003; and the decision not to enter the applicant’s name on those lists; third, the decision of the appointing authority not to grant the applicant one additional priority point under the 2003 promotion exercise, as follows from the letter of 22 February 2007 and the decision of 17 April 2007, and damages amounting to EUR 5 000.

Held: The Commission decisions fixing the total promotion points for Mr Gregorio Valero Jordana at 20 points and refusing to enter his name on the list of officials promoted to grade A4 under the 2003 promotion exercise are annulled. The remainder of the action is dismissed. The Commission is ordered to pay the costs.

Summary

1.      Officials – Actions – Act adversely affecting an official – Promotion system established by the Commission – Promotion exercise concluded by an act involving a decision fixing the list of officials promoted and a decision determining the points allocated to officials – Self-contained decisions against which separate actions or a single action may be brought

(Staff Regulations, Arts 45(1), 90 and 91)

2.      Procedure – Application initiating proceedings – Subject-matter of the dispute – Alteration once proceedings have been started

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

3.      Officials – Promotion – Consideration of comparative merits – Procedures – Quantification of merits for allocation of points

(Staff Regulations, Art. 45(1))

1.      Under the promotion system established by an internal regulation of the Commission, 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 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.

Consequently, an official who is not promoted on account of the allegedly unjustified award of an insufficient number of points preventing him from reaching the promotion threshold may direct his action both against the appointing authority’s decision fixing the total number of points and against that adopting the list of promoted officials.

On the other hand, the decision awarding the applicant priority points and the decision not to include him on the merit list, as well as the list as such, constitute preparatory acts which may not be the subject of a separate action for annulment. However, their lawfulness may always be disputed in the course of an action directed against the final decision.

(see paras 69-72)

See: T‑134/02 Tejada Fernández v Commission [2003] ECR-SC I‑A‑125 and II‑609, para. 18; T‑311/04 Buendía Sierra v Commission [2006] ECR II‑4137, paras 90, 93 and 96 to 98

2.      Article 48(2) of the Rules of Procedure of the Court of First Instance, under which new pleas in law may be introduced in the course of proceedings if they are based on matters of law or of fact which come to light in the course of the procedure, may be applied, in certain cases, to the amendment of pleadings. By virtue of the requirements of procedural economy, when the 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, it is clear from Articles 90 and 91 of the Staff Regulations that the action directed against an act adversely affecting the applicant, consisting in a decision taken by the appointing authority, is admissible only if the official has previously submitted a complaint to the appointing authority and if the complaint has been rejected by express or implied decision.

(see paras 76-78)

See: T‑161/00 Tsarnavas v Commission [2001] ECR-SC I‑A‑155 and II‑721, paras 26 to 28; T‑55/03 Brendel v Commission [2004] ECR-SC I‑A‑311 and II‑1437, para. 50 and the case-law cited therein

3.      In assessing the merits to be taken into consideration in the context of a promotion decision under Article 45 of the Staff Regulations and, consequently, also in the context of a decision awarding points in a promotion system under which such an assessment is quantified, the administration possesses a wide discretion and the Community judicature must restrict its review to consideration of the question whether, regard being had to the various considerations which have influenced the administration in making its assessment, the latter has kept within proper bounds and has not used its power in a manifestly incorrect way.

(see para. 131)

See: T-261/04 Crespinet v Commission [2007] ECR-SC I-A-0000 and II-A-0000, para. 58 and the case-law cited therein