# C_2004314EN.01002201.xml

| 18.12.2004 | EN | Official Journal of the European Union | C 314/22 |
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18.12.2004

EN

Official Journal of the European Union

C 314/22

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Action brought on 28 September 2004 by Bernard Nonat against Commission of the European Communities

(Case T-391/04)

(2004/C 314/54)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 28 September 2004 by Bernard Nonat, residing in Brussels, represented by Sébastien Orlandi, Albert Coolen, Jean-Noël Louis and Etienne Marchal, lawyers, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | annul the Commission's decisions not to enter the applicant's name in a avourable position on either the list of merit or the list of officials promoted to grade A4 in the 2003 promotion exercise; |
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annul the Commission's decisions not to enter the applicant's name in a avourable position on either the list of merit or the list of officials promoted to grade A4 in the 2003 promotion exercise;

| — | declare unlawful Article 12 of the general provisions for the implementation DGE) of Article 45 of the Staff Regulations in so far as it provides for the award of transitional priority points at the rate of one point per year of seniority in grade with a maximum of seven points and additional special priority points within a limit of 150 % of the possibilities for promotion in the previous exercise without taking account of the actual merits which officials have displayed during the reference years; |
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declare unlawful Article 12 of the general provisions for the implementation DGE) of Article 45 of the Staff Regulations in so far as it provides for the award of transitional priority points at the rate of one point per year of seniority in grade with a maximum of seven points and additional special priority points within a limit of 150 % of the possibilities for promotion in the previous exercise without taking account of the actual merits which officials have displayed during the reference years;

| — | order the defendant to pay the costs. |
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order the defendant to pay the costs.

Pleas in law and main arguments

The applicant in these proceedings objects to the appointing authority's refusal to promote him to A4 in the 2003 promotion exercise.

In support of his claims, he alleges that there has been a breach of Articles 43 and 45 of the Staff Regulations and also of the principle of non-discrimination and the principle that an official is entitled to reasonable career prospects.

He states in that regard that the new procedures adopted by the Commission for the assessment and promotion of officials deprive officials of an assessment of their own merits. In his specific case, and in application of Article 12(3b) of the DGE of Article 45 of the Staff Regulations, he is deemed to have the same merits, in terms of additional special priority points, as officials in the same grade who were not proposed in the previous exercise.

It is thus apparent that two different categories of officials in terms of merit are treated in the same way, in breach of the principle of non-discrimination and of Article 45 of the Staff Regulations: first, officials who, beyond the limit of 150 % of the possibilities of promotion for the 2002 promotion exercise, were proposed for promotion in that exercise and, second, officials eligible for promotion in 2002 who were not proposed.

Likewise, the award of one transitional priority point per year of seniority in grade has the effect, in breach of Article 45 of the Staff Regulations, of enhancing the seniority in grade of officials eligible for promotion without taking account of the respective merits which they have displayed during the reference period.

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