JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

30 January 2008

Case T-394/04

**Guido Strack**

**v**

**Commission of the European Communities**

(Civil service – Officials – Promotion – 2003 promotion procedure – Allocation of priority points – Refusal of promotion)

**Application:**for annulment of the promotion procedure carried out in respect of the applicant for 2003, of the allocation of points made
in the context of that procedure and of the subsequent decision not to promote the applicant.

**Held:**The decision concerning the number of priority points allocated to Mr Guido Strack in the 2003 promotion procedure and the
decision not to promote him through that procedure are annulled. The Commission is ordered to pay the costs.

**Summary**

1.      *Officials – Actions – Act adversely affecting an official – Definition – Decision determining the promotion points allocated
to an official*

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

2.      *Officials – Promotion – Consideration of comparative merits*

*(Staff Regulations, Arts 43 and 45)*

1.      Only measures producing binding legal effects of such a kind as to affect the applicant’s interests by bringing about a distinct
change in his legal position constitute acts against which an action for annulment may be brought, and such measures are those
which definitively establish the position of the institution.

Under the new promotion system established by the Commission, based on taking into account accumulated merits represented
by points accumulated year after year, the award of points in a given year has effects which are not limited and confined
solely to the current promotion exercise, but which may influence several promotion exercises. Consequently, the fixing of
the number of promotion points is a self-contained act with legal effects which are binding on, and capable of affecting the
interests of, the official by bringing about a distinct change in his legal position, even though it is just one of the stages
in the promotion procedure.

However, the promotion procedure conducted in respect of an official does not constitute an act adversely affecting him within
the meaning of Articles 90 and 91 of the Staff Regulations since that procedure does not, in itself, produce any effect in
law capable of directly affecting his interests.

(see paras 26, 29-30)

See: T‐57/92 and T‐75/93 *Yorck von Wartenburg* v *Parliament* [1993] ECR II‐925, para. 36 and the case-law cited therein; T‐311/04 *Buendía Sierra* v *Commission* [2006] ECR II‐4137, para. 89

2.      The annulment of an official’s career development report for a given procedure implies annulment of the merit points allocated
for that procedure, since the mark which each official receives in the context of his career development report is automatically
converted at the end of the appraisal procedure into merit points used for promotion purposes. That annulment also has an
effect on the allocation of priority points and the decision to refuse promotion in the following appraisal procedure, particularly
where the appointing authority bases its decision on the exact number of priority points to be allocated to an official on
the number of merit points which the official obtained during the corresponding appraisal procedure.

(see paras 37-39)