JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

14 February 2007

Case T-435/04

**Manuel Simões Dos Santos**

**v**

**Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)**

(Staff cases – OHIM officials and temporary staff – Reports and promotion – Merit points reset at zero and their total recalculated – Transitional arrangements – Action for annulment – Plea of illegality – Non‐retroactivity – Principles of legality and legal certainty – Legal basis – Legitimate expectations – Equal treatment)

**Application:**for annulment, first, of OHIM’s decision of 7 July 2004 rejecting the applicant’s complaint of 11 March 2004 and, secondly,
of OHIM’s decision of 15 December 2003 establishing the cumulative total of the applicant’s merit points under the 2003 promotion
exercise and of the Joint Evaluation Board’s opinion of 12 December 2003.

**Held:**OHIM’s decision of 15 December 2003 definitively allocating merit points under the 2003 promotion exercise to the applicant
and OHIM’s decision of 7 July 2004 rejecting the applicant’s complaint of 11 March 2004 are annulled, in so far as they imply
that the balance of the applicant’s merit points has disappeared, as acknowledged by decision PERS‐PROM‐39‐03rev1 on promotion,
of 30 March 2004. The action is dismissed as to the remainder. OHIM is ordered to pay the costs.

**Summary**

1.      *Officials – Promotion – Adoption of a new promotion system*

*(Staff Regulations, Art. 45)*

2.      *Officials – Promotion – Adoption of a new promotion system*

*(Staff Regulations, Art. 45)*

3.      *Officials – Principles – Principles of legality and legal certainty*

*(Staff Regulations, Arts 90 and 91)*

4.      *Officials – Promotion – Adoption of a new promotion system*

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

1.      There is no retroactivity where changes to rules apply to the future effects of situations arising from the previous rules,
since the principle of the protection of legitimate expectations cannot be extended to the point of preventing such application
in general. There is therefore no retroactive application of internal rules adopted by an institution on the implementation
of a new appraisal and promotion system where, as a consequence of the new way of calculating promotion points, they have
had the effect, from the promotion period following their introduction, that the previous balance of an official’s merit points,
awarded on the basis of the old rules, is not taken into account. Following the entry into force of the new system, the administration
is obliged to attach the legal consequences provided for by the new provisions to the earlier facts which led to the award
of the balance of merit points in previous promotion procedures under the earlier systems, now rescinded.

Moreover, the fact that certain promotion points are calculated with reference to the official’s seniority in grade acquired
on a date or from a date prior to the entry into force of the new rules also does not constitute a retroactive application
of those rules, since such a date is simply a reference point for the purposes of applying the new rules to the future situation
of the official in question. The rules merely govern the subsequent career development of the person concerned, taking account,
lawfully, of periods of service that have been completed and facts that have occurred previously.

(see paras 95, 100-101, 103-104)

See: C-60/98 *Butterfly Music* [1999] ECR I‐3939, paras 24 and 25 and the case-law cited therein

2.      There is no obligation for the institutions to adopt a particular appraisal and promotion system, given the wide margin of
discretion which they have to implement the objectives of Article 45 of the Staff Regulations in accordance with their own
needs for the organisation and management of their staff. The purpose of any change to the existing method of appraising and
promoting officials is, by definition, to rectify certain problems resulting from the application of the earlier rules. It
is therefore inherent in such a reform process, the need for which the administration has wide discretion to assess, that
the merits of officials should begin to be evaluated on a new basis from a given date. The administration cannot be expected,
under the new system, to take account, in exactly the same way, of all the merit points awarded under the old system, since
that would almost inevitably negate the effectiveness of the reform of the promotion system, and staff are, in any event,
not entitled to expect the existing rules to remain unchanged.

Consequently, Article 45 of the Staff Regulations confers on the institutions, in their staff management policy, a wide discretion
to implement and amend their appraisal and promotion system through the adoption of measures of general application. An official
cannot therefore, as a rule, rely on a legitimate expectation that certain measures would be adopted guaranteeing him the
maintenance of advantages arising from the earlier rescinded rules, which would have the effect of reducing the scope of that
discretion inappropriately. It is therefore only in extremely exceptional cases and very special circumstances that reliance
on the principle of the protection of legitimate expectations against such a measure of general application is likely to be
successful. Although the Community judicature may review whether the competent institution, in exercising that wide discretion,
has entirely kept within its limits, it is nevertheless true that such a review is of only limited scope, being confined to
the question whether the measures taken are manifestly inappropriate and whether the institution’s assessment is, on that
basis, manifestly incorrect.

(see paras 132-133)

See: C‐280/93 *Germany* v *Council* [1994] ECR I‐4973, para. 90; T‐30/02 *Leonhardt* v *Parliament* [2003] ECR-SC I‐A‐41 and II‐265, para. 55 and the case-law cited therein; T‐158/03 *Industrias Químicas del Vallés* v *Commission* [2005] ECR II‐2425, para. 95

3.      Any individual measure adversely affecting an official must have an express, precise and unambiguous legal basis, in accordance
with the requirements arising from the principles of legality and legal certainty. Officials and other members of staff are
subject to the administration’s exercise of a wide discretion in staff matters, which is balanced in only a limited way by
the administration’s duty to have regard for their interests. It therefore appears all the more important that any individual
measure taken in the exercise of that wide discretion which adversely affects an official and concerns his personal legal
situation must, at the very least, have an express legal basis which is sufficiently precise and clear. Moreover, it is only
if there is unconditional respect for the principle of the need for an express legal basis, which flows from the principles
of legality and legal certainty to which any Community institution is subject in the management of its staff, that a minimum
level of predictability and transparency can be guaranteed regarding the scope of individual measures that might be taken
against an official in the exercise of that wide discretion.

(see para. 143)

See: C‐298/93 P *Klinke* v *Court of Justice* [1994] ECR I‐3009, para. 38; T‐214/00 *X* v *Commission* [2001] ECR-SC I‐A‐143 and II‐663, paras 28 to 34

4.      Internal rules adopted by an institution for the implementation of a new appraisal and promotion system, the general and transitional
provisions of which do not make reference to the merit points resulting from the previous rescinded system, do not constitute
an adequate legal basis for withdrawing an official’s balance of merit points acquired under the previous rules. The loss,
even if only implied, of that balance constitutes a measure of individual application adversely affecting the person concerned,
and requires an express, precise and unambiguous legal basis, in accordance with the requirements arising from the principles
of legality and legal certainty. A provision of the new rules generally ordering the rescinding and replacement of the previous
promotion and appraisal system by the new system also does not constitute an express and precise legal basis for that purpose.

(see para. 144)