JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

29 September 2009

Case F-102/07

**Petrus Kerstens**

**v**

**Commission of the European Communities**

(Civil service – Officials – Promotion – 2004, 2005 and 2006 promotion exercises – Award of priority points – Priority points awarded by directors-general – Priority points in recognition of work carried out in the interests of the institution – Principle of non-discrimination – Duty to state reasons)

**Application:**brought under Articles 236 EC and 152 EA, in which Mr Kerstens seeks annulment of the decision of the appointing authority
of 23 November 2005 awarding him 3 directorate-general priority points (PPDG), in the present case for the Office for Administration
and Payment of Individual Entitlements, under the 2004 promotion procedure (*Administrative Notices* No 85‐2005 of 23 November 2005); of the decision of the appointing authority of 23 November 2005 awarding him 0 PPDG under
the 2005 promotion procedure (*Administrative Notices* No 85‐2005); of the decision of the appointing authority of 17 November 2006 awarding him 0 PPDG under the 2006 promotion
procedure (*Administrative Notices* No 55‐2006 of 17 November 2006); of the decision of the appointing authority of 17 November 2006 awarding him 0 priority
points in recognition of work carried out in the interests of the institution under the 2006 promotion procedure (*Administrative Notices* No 55‐2006); and of the decision of the appointing authority of 15 June 2007 rejecting the complaints of 16 and 22 February
2007.

**Held:**The action is dismissed. Each party is ordered to bear its own costs.

**Summary**

1.      *Officials – Promotion – Consideration of comparative merits – Procedures – System introduced by the Commission – Distribution
of priority points within directorates-general*

*(Staff Regulations, Art. 45)*

2.      *Officials – Promotion – Consideration of comparative merits – Procedures – System introduced by the Commission – Distribution
of priority points – Criteria*

*(Staff Regulations, Art. 45)*

1.      The general implementing provisions adopted by the Commission for Article 45 of the Staff Regulations are intended, as is
clear from Article 5(1) of those provisions, to reward officials who are considered to be the most deserving and, in particular,
those who have contributed towards achieving results which go beyond their individual objectives or who have made special
efforts and achieved outstanding results in the performance of their duties, as borne out by their career development reviews.
The ‘higher’ priority points made available to each directorate-general (6 to 10 priority points) are reserved, under Article
5(2) of the general implementing provisions, for the best-performing officials who have demonstrated their exceptional merit,
while the ‘lower’ priority points (0 to 4 priority points) are distributed, under the same provision, among other the officials
who are regarded as being deserving in the light of the criteria of the general implementing provisions.

The award of priority points must therefore be based on considerations relating to the individual merits of the officials
concerned, with ‘higher’ priority points reserved for officials who have demonstrated exceptional merits.

It follows that when a director-general awards the ‘higher’ priority points, he is under no obligation to use up the quota
available to him for that purpose.

Article 5(3) of the general implementing provisions, which provides that, in principle, each directorate-general should use
up the quota of priority points available to it, specifies in a footnote, however, that that provision does not call into
question the principle of evaluating merit over time, particularly in categories with a small complement of staff, in which
unused priority points may be justified.

(see paras 65-68)

See:

T-311/04 *Buendía Sierra* v *Commission* [2006] ECR II‐4137, para. 290; T-261/04 *Crespinet* v *Commission* [2007] ECR-SC I‐A‐2‐0000 and II‐A‐2‐0000, para. 57; T-385/04 *Valero Jordana* v *Commission* [2009] ECR-SC I‐A‐2‐0000 and II‐A‐2‐0000, para. 130

2.      Even though seniority in grade may, on a secondary level, play a role in the award of priority points by directorates-general
to officials with equivalent merits where the number of points is not sufficient, merit remains the overriding criterion.
Allowing seniority a decisive role in the decision awarding priority points would be contrary to Article 45 of the Staff Regulations
and Article 5 of the general implementing provisions adopted by the Commission for Article 45, which, moreover, makes no reference
to seniority in grade as a criterion for awarding priority points.

(see para. 140)

See:

T-502/04 *Lopparelli* v *Commission* [2007] ECR-SC I-A-2-0000 and II-A-2-0000, para. 89; *Valero Jordana* v *Commission*, para. 145