Judgment — ECLI:EU:T:2000:225
Date: 2000-10-03
Language of the case: French
Court formation: Fifth Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Concepts: Assessment of the administration;Specific cases of acts having adverse effect;Correspondence between the action and the complaint;General
Procedure: Staff cases - unfounded;Staff cases - inadmissible

SUMMARY — CASE T-187/98 
Summary 
1. Officials - Actions - Act adversely affecting an official - Definition - Official 
not included on list drawn up by Promotion Committee — Promotion outside career 
bracket - Preparatory act - Exclusion - Act open to challenge in an action for 
annulment of the promotion decision 
(Staff Regulations, Art. 90(2)) 
2. Officials - Actions - Prior administrative complaint - Requirement that 
subject-matter and grounds be the same - Pleas not appearing in the complaint, 
but closely linked to it - Admissible - Plea not raised, even implicitly, in the 
pre-litigation procedure — Inadmissible 
(Staff Regulations, Arts 90 and 91) 
3. Officials - Promotion - Consideration of the comparative merits - Discretion 
of the administration - Limits 
(Staff Regulations, Art. 45) 
4. Officials - Promotion - Consideration of the comparative merits - Application 
of rules on mobility contained in the Commission's promotions guide - Conditions 
(Staff Regulations, Art. 45) 
1. Although the fact that an official's name does not appear on the list drawn up by 
the Promotion Committee may have some influence on the promotion decision, that 
is not a final decision of the administration. Furthermore, as regards promotions 
outside the career bracket, the list of officials most deserving of promotion is also 
in the nature of a preparatory act which does not produce any definitive effect and 
is therefore not an act adversely affecting an official within the meaning of 
Article 90(2) of the Staff Regulations. 
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CUBERO VERMURIE v COMMISSION 
It follows that the regularity of the list drawn up by the appointing authority of the 
officials most deserving of promotion, like other preparatory acts in the course of 
the administrative procedure, may only be called into question indirectly in an action 
for annulment of the final decision concluding the promotion procedure. 
(see paras 30-31) 
See: T-82/89 Marcato v Commission [1990] ECR II-735, para. 43; Case T-506/93 Moat 
v Commission [1995] ECR-SC I-A-43 and II-147, para. 24 
2. The rule that there should be harmony between a complaint, within the meaning 
of Article 90(2) of the Staff Regulations, and the action which follows requires that, 
for a plea before the Community judicature to be admissible, it must have already 
been raised in the pre-litigation procedure, enabling the appointing authority to 
know in sufficient detail the criticisms made by the person concerned of the 
contested decision. Whilst claims for relief before the Community judicature may 
contain only the same heads of claim, based on similar matters, as those raised in 
the complaint, those heads of claim may nevertheless be further developed before 
the Community judicature by the presentation of pleas in law and arguments which, 
whilst not necessarily appearing in the complaint, are closely linked to it. 
Moreover, since the pre-litigation procedure is informal in character and since those 
concerned may act without the assistance of a lawyer at that stage, the 
administration must not interpret the complaints restrictively but should, on the 
contrary, consider them with an open mind. 
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SUMMARY — CASE T-187/98 
That is not the case where a complaint not only does not mention the plea in law 
raised before the Community judicature but does not contain any information from 
which the defendant institution could have inferred, even by endeavouring to 
interpret the complaint with an open mind, that the applicant intended to rely on that 
plea. 
(see paras 35-37) 
See: T-4/96 S v Court of Justice [1997] ECR II-1125, paras 98 and 99 
3. The discretion allowed to the administration to evaluate the merits to be taken 
into consideration in connection with a promotion procedure pursuant to Article 45 
of the Staff Regulations is circumscribed by the need to undertake a comparative 
consideration of candidatures with care and impartiality, in the interests of the 
service and in accordance with the principle of equal treatment. In practice, 
consideration of the comparative merits of candidatures must be undertaken on a 
basis of equality, using comparable sources of information. 
(see para. 58) 
See: T-76/92 Tsirimokos v Parliament [1993] ECR II-1281, paras 20 and 21; T-157/98 
Oliveira v Parliament [1999] ECR-SC I-A-163 and II-851, para. 35 
4. The objective pursued by the rules on mobility, contained in the Commission's 
promotions guide, is to ensure that mobility does not impair the career progress of 
those officials subject thereto. The awarding of priority points based on the number 
of officials eligible for promotion in the directorate general concerned could penalise 
an official who has been reassigned to a directorate general containing a different 
number of eligible officials. Accordingly, in order not to render purposeless the 
consideration of the comparative merits of all the eligible officials put forward by 
the Promotion Committee to the appointing authority, the latter cannot restrict itself 
to a strict application of the abovementioned rules on mobility. It is thus for the 
Community institution to examine the circumstances of the official subject to such 
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CUBERO VERMURIE v COMMISSION 
mobility in order to ensure that he or she has not been penalised. Such examination 
proves even more necessary where the official concerned has not received any 
priority points whilst in his home directorate general and that, pursuant to Rule (a) 
on mobility which provides that, where an official is put forward for mobility 
without having any priority points, such proposal for mobility is binding only on the 
home directorate general, where there are no acquired rights, the appointing 
authority is not required to award him any. 
(see paras 67-69) 
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