JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Third Chamber)

14 May 2008

Case F-95/06

Adrien Taruffi

v

Commission of the European Communities

(Civil service – Officials – Promotion – 2004 and 2005 promotion exercises – Staff representatives – Priority points)

Application: brought under Articles 236 EC and 152 EA, in which Mr Taruffi essentially seeks, first, annulment of the Commission decisions fixing the total number of his points and refusing to include his name on the list of officials promoted to Grade B*10 in the 2004 promotion exercise, and, second, annulment of the decision fixing the total number of his points in the 2005 promotion exercise.

Held: The action is dismissed. Each party is to bear its own 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, 90 and 91)

2.      Officials – Promotion – Consideration of comparative merits

(Staff Regulations, Arts 25, second para., 45 and 90(2))

3.      Officials – Promotion – Discretion of the appointing authority

(Staff Regulations, Art. 45)

1.      Under the promotion system established by an internal regulation of the Commission based on taking into account accumulated merits represented by points accumulated year after year, and in which the promotion exercise culminates in an act of a complex nature in that it comprises two separate decisions by the appointing authority, the one adopting the list of promoted officials and the other fixing the total number of points of officials, on which the former decision is based, that decision fixing the total number of points constitutes a self-contained act against which, as such, a complaint may be submitted and, where appropriate, an action may be brought before the Court under the system of remedies provided for by the Staff Regulations.

Consequently, an official who is included in the list of promoted officials may, if he disputes the total number of points which he has been awarded by the appointing authority and thus the balance kept for subsequent years, 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.

Similarly, it is conceivable that 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 bring identical proceedings.

Moreover, an official who is not promoted on account of the allegedly unjustified award of an insufficient number of points to reach the promotion threshold may direct his action both against the appointing authority’s decision fixing the total number of points and against that adoption of the list of promoted officials.

Individual decisions granting or refusing priority points constitute preparatory acts prior and necessary to the final decision on promotions and to the self-contained, separable decision which it entails fixing the total number of points. They cannot be the subject of an independent action for annulment, but their legality can always be challenged in an action against the final decision.

However, an official cannot challenge the legality of the decision fixing his merit points in an action against the final decision fixing his total promotion points if he has not initiated judicial proceedings against his career development report, since the merit points are calculated on the basis of the mark awarded in that report.

(see paras 59-64)

See:

T-311/04 Buendía Sierra v Commission [2006] ECR II‑4137, paras 90 to 93, 96 to 98 and 106

2.      Under the promotion system established in the Commission, which provides for the Promotion Committee to issue a reasoned opinion when it recommends to the appointing authority the award of appeal priority points, the absence of a statement of reasons for its recommendation to refuse to award those points does not infringe the second paragraph of Article 25 of the Staff Regulations since such a recommendation does not constitute an act having adverse effects.

(see paras 91-93)

See:

Buendía Sierra v Commission, paras 143 and 144

3.      In the case of the 2004 promotion exercise, the appointing authority, which enjoys a wide discretion on promotion, was under no obligation to grant officials close to the promotion threshold the points they needed to be promoted before the entry into force of the new career structure introduced by Regulation No 723/2004 amending the Staff Regulations of Officials and the Conditions of Employment of Other Servants.

(see para. 114)