JUDGMENT OF THE COURT OF FIRST INSTANCE (Appeal Chamber)

22 May 2008

Case T-250/06 P

**Martial Ott and Others**

**v**

**Commission of the European Communities**

(Appeal – Cross-appeal – Admissibility – Civil service – Officials – Promotion – Promotion for 2004 – Allocation of promotion points – General Implementing Provisions of Article 45 of the Staff Regulations – Plea of illegality – Substitution of grounds – Appeal, in part, manifestly inadmissible and, in part, manifestly unfounded – Dispute capable of being decided – Dismissal of the action)

**Appeal:**against the order of the Civil Service Tribunal of the European Union (Second Chamber) of 30 June 2006 in Case F‐87/05 *Ott and Others* v *Commission* [2006] ECR-SC I-A-1-73 and II-A-1-263 seeking the annulment of that order. Cross-appeal brought by the Commission against
the contested order.

**Held:**The order of the Civil Service Tribunal (Second Chamber) of 30 June 2006 in Case F-87/05 *Ott and Others* v *Commission* is annulled in so far as it dismissed the action brought by Mr Francis Weiler. For the rest, the appeal is dismissed. The
cross-appeal is dismissed. The action brought before the Civil Service Tribunal as Case F‐87/05 is dismissed in so far as
it was brought by Mr Francis Weiler. Mr Martial Ott, Mr Fernando Lopez Tola and Mr Francis Weiler are to bear their own costs
in relation to the present instance and four fifths of the costs incurred by the Commission. The Commission is to bear one
fifth of its own costs in relation to the present instance. Mr Francis Weiler and the Commission are to bear their own costs
in relation to the proceedings before the Civil Service Tribunal.

**Summary**

1.      *Appeals – Subject-matter – Application to set aside a judgment of the Civil Service Tribunal inasmuch as it holds that it
is not necessary to rule on a plea of inadmissibility brought against an action which it dismissed as unfounded – Rejection*

*(Statute of the Court of Justice, Annex I, Art. 9)*

2.      *Appeals – Pleas in law – Mere repetition of pleas in law and arguments submitted to the Civil Service Tribunal – Inadmissibility
– Challenge to the interpretation or application of Community law by the Tribunal – Admissibility*

*(Statute of the Court of Justice, Annex I, Art. 11(1); Rules of Procedure of the Court of First Instance, Art. 138(1))*

3.      *Appeals – Pleas in law – New submission of an argument – Admissibility – Limits*

*(Statute of the Court of Justice, Annex I, Art. 11(1); Rules of Procedure of the Court of First Instance, Art. 138(1))*

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

*(Staff Regulations, Art. 45)*

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

*(Staff Regulations, Art. 45)*

1.      It is for the Civil Service Tribunal to assess whether the proper administration of justice justifies the dismissal of an
action on the merits without ruling on the objection of inadmissibility raised by the defendant, a course of action which
cannot be regarded as adversely affecting the latter. An appeal against that decision must therefore be dismissed.

(see paras 75-76)

See: C-6/06 P *Cofradía de pescadores ‘San Pedro’ de Bermeo and Others* v *Council* [2007] ECR I-164, para. 21

2.      An appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside, and
also the legal arguments specifically advanced in support of the appeal. That requirement is not satisfied by an appeal which,
without even including an argument specifically identifying the error of law allegedly vitiating the judgment under appeal,
merely reproduces the pleas in law and arguments previously submitted at first instance.

However, provided that the appellant challenges the interpretation or application of Community law by, in the present case,
the Civil Service Tribunal, the points of law examined at first instance may be discussed again in the course of an appeal.
Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the Civil Service
Tribunal, an appeal would be deprived of part of its purpose.

(see paras 81-82)

See: C‐41/00 P *Interporc* v *Commission* [2003] ECR I‐2125, para. 17; C‐68/05 P *Koninklijke Coöperatie Cosun* v *Commission* [2006] ECR I‐10367, para. 54 and the case-law cited therein, and para. 55

3.      On appeal before the Court of First Instance an appellant may lawfully raise an argument for the first time, even if it has
not been discussed at first instance, provided that it does not change the subject-matter of the proceedings before the Civil
Service Tribunal.

(see para. 88)

See: C‐229/05 P *PKK and KNK* v *Council* [2007] ECR I‐439, paras 66 and 67

4.      Under the system of promotion established by an internal regulation of the Commission, which is based on the quantification
of merits, characterised by the annual award to officials of different types of points, it is for the appointing authority
to adapt, on a transitional basis, the change in the rules relating to the promotion of officials by taking into account the
constraints inherent in the transition from one method of management to another, which may require it to depart temporarily,
and within certain limits, from the strict application of the permanent rules and principles that normally apply to the situations
at issue. However, such departures must be justified by an overriding requirement connected with the transition, and their
duration and scope should not exceed what is necessary to ensure an orderly move from one system to the other. In that respect,
in order to take account of the merit accumulated in their grade by the Commission officials in post at the time of the entry
into force of that system, transitional arrangements cover the award of various transitional points to those officials.

As regards transitional priority points awarded automatically, up to a certain limit, to officials per year spent in the grade,
the award of those points reveals a taking into account of seniority in grade, contrary to the rules which normally govern
promotion procedures. However, the adoption of a system characterised by quantification of merit and by the need to reach
a certain threshold corresponding to an accumulated number of merit and priority points in order to be promoted involves taking
into account the merits accumulated by the officials since their last promotion, in the form of an award of a certain number
of points and according to a method which complies with the principle of equal treatment. The measure consisting in automatically
awarding priority points based on seniority in grade meets that imperative need connected with the transition, and the provisions
restricting its scope, such as its limitation to the first promotion exercise after the entry into force of the new system,
the very limited weight of those points in comparison with the total of points capable of being awarded, and the making of
an official’s promotion subject to the condition that he must have totalled a certain number of other points in his last career
development report, support the conclusion that the appointing authority did not go beyond what was necessary to ensure an
orderly transition from one system to another.

That also applies *a fortiori* to transitional priority points which are not automatically awarded solely on the basis of seniority, but after account has
also been taken of the merits of the official concerned, since the number of points may vary depending on his periodical reports
and they are not awarded where those reports are particularly poor.

Concerning the transitional priority points which the appointing authority may award on the recommendation of the promotion
committees, these were introduced in order to resolve, on an equitable basis, specific problems arising from the transition
between the old and the new system. That particular purpose necessarily falls within the scope of the objective of all the
transitional points of which they form part, namely to take into account the merit accumulated by an official since his last
promotion, with the result that the provision providing for their award does not, in itself, infringe Article 45 of the Staff
Regulations. The fact that such an award could lead to arbitrary promotions would result from the individual application of
that provision and not from its inherent illegality.

Regarding transitional priority points capable of being awarded to officials recommended for promotion during the previous
promotion exercise but not promoted, these are not contrary to Article 45 of the Staff Regulations either. The appointing
authority is entitled in principle to take into consideration, in the assessment of candidates’ comparative merits, the fact
that an official has already been proposed for promotion in a previous exercise, on condition that he has not ceased to be
deserving of promotion and that his merits are assessed in comparison with those of other candidates for promotion, which
is the case with the transitional arrangements established by the Commission.

(see paras 109-117)

See: T‐311/04 *Buendía Sierra* v *Commission* [2006] ECR II‐4137, paras 207, 210, 211, 212, 213 and the case-law cited therein, and paras 214 to 219 and 222

5.      The promotion system established by an internal regulation of the Commission, which is based on the quantification of merits,
characterised by the annual award to officials of different types of points, some of which – ‘merit points’ – arise from the
transformation of the mark received by the official at his periodical report under Article 43 of the Staff Regulations, whilst
others – ‘priority points’ – granted in addition and not in themselves determining promotion, are designed to reward officials
who have exceeded their individual objectives or have successfully carried out additional duties in the interest of the institution,
does not infringe Article 45 of the Staff Regulations, since those two types of points are intended to reward merit and their
attribution must always be justified by merit-based considerations.

The same is true of supplementary priority points, the grant of which does not affect the quota of priority points allowed
for each directorate-general, and which may be awarded on the recommendation of the promotion committee following an informal
appeal by an official who considers that he should have been given a greater number of priority points, where that appeal
is deemed to be well-founded, provided that they are awarded according to the same criteria as the priority points awarded
within each directorate-general, that is to say, on the basis of the merits of the officials concerned.

(see paras 119-124)

See: *Buendía Sierra* v *Commission*, paras 136 to 138, 305 and 306