CELEX: 62007FJ0066
Public service
Officials
Promotion

1.
Officials – Promotion – Conditions – Demonstration of ability to work in a third language
(Staff Regulations, Art. 45(2); Annexes III, Art. 7, and XIII, Art. 11)
2.
Officials – Actions – Unlimited jurisdiction
(Art. 233 EC; Staff Regulations, Arts 45(2) and 91(1))
1.
Article 45(2) of the Staff Regulations, in the version resulting from Regulation No 723/2004 amending the Staff Regulations
of Officials and the Conditions of employment of other servants, which requires officials to demonstrate, before their first
promotion, their ability to work in a third language, applies only from the entry into force of the joint implementing provisions
adopted by the institutions by mutual agreement.
Since the legislature has, in any event, under Article 11 of Annex XIII to the Staff Regulations, precluded its application
to promotions that take effect prior to 1 May 2006, Article 45(2) cannot be applied prior to the entry into force of those
joint implementing provisions under the terms required by the legislature, that is to say, with a guarantee that it will be
uniformly applied in the different institutions, and with a connection between this new requirement under the Staff Regulations
and the opportunity for officials to have training in a third language. Thus an institution cannot apply that article of the
Staff Regulations according to rules which it alone has laid down.
(see paras 29-33)
2.
It is true that the Civil Service Tribunal may, in certain circumstances, pursuant to Article 91(1) of the Staff Regulations,
have unlimited jurisdiction to provide a complete solution to disputes of a financial nature brought before it, by ruling
on the official’s rights and obligations. However, an applicant who has had a decision refusing to promote him annulled on
the ground that the additional condition in order to be promoted, relating to ability to speak a third language, could not
lawfully be required of him, cannot obtain damages before the court for the alleged resulting delay in his career, even if
he has the requisite seniority and a greater number of points than that required to be promoted. It is possible that other
considerations may prevent the applicant’s promotion retroactively, such as the fact that the number of officials eligible
for promotion and having attained the promotion threshold exceeded the number of promotions possible under the budget. It
is therefore the implementing measures which the administration is obliged to adopt pursuant to Article 233 EC in order to
comply with the principle of
res judicata
that must restore the applicant’s rights, where appropriate by reinstating his career retroactively.
(see paras 46-49)
See:
C-135/06 P
Weißenfels
v
Parliament
[2007] ECR I‑12041, paras 64 to 68
T-402/03
Katalagarianakis
v
Commission
[2007] ECR-SC I-A-0000 and II‑A‑0000, paras 105 and 106