Judgment — ECLI:EU:F:2010:167
Date: 2010-12-15
Language of the case: French
Court formation: Third Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Staff cases - inadmissible;Staff cases - successful

Summary 1. Officials — Actions — Prior administrative complaint — Same subject-matter and legal basis (Staff Regulations, Arts 90 and 91) 2. Officials — Promotion — Consideration of comparative merits — Procedures — Administration’s discretion — Limits — Respect for the principle of equal treatment (Staff Regulations, Art. 45(1); Council Regulation No 723/2004) 1. The rule of correspondence between the administrative complaint and the originating application is not complied with only where the judicial action alters the relief sought in the complaint or its cause of action, and the concept of ‘cause of action’ must be given a broad interpretation. According to such an interpretation, as regards claims for annulment, the ‘cause of action of the dispute’ must be understood as the applicant’s challenge to the substantive legality of the contested decision or, in the alternative, the challenge to its procedural legality. Since the applicants challenged, in their complaints, the substantive legality of the decisions contested in their action, a plea contesting the substantive legality of those decisions is also admissible. (see para. 28) See: judgment of 1 July 2010 in F‑45/07 Mandt v Parliament, paras 119 and 120 2. Article 45(1) of the Staff Regulations expressly provides that, in a promotion procedure, the appointing authority is required to make its choice on the basis of a consideration of the comparative merits of the candidates eligible for promotion. Although the appointing authority has the power under the Staff Regulations to use the procedure or method it considers most appropriate in order to conduct such a consideration of the comparative merits of candidatures, that power is circumscribed by the need to do so carefully and impartially, in the interests of the service and in accordance with the principle of equal treatment. In practice, that examination must be undertaken on a basis of equality, using comparable sources of information. Moreover, Article 45(1) of the Staff Regulations, which requires the appointing authority to consider the comparative merits of officials eligible for promotion, presupposes that that consideration will be extended to all officials eligible for promotion, regardless of the duties they perform. Such a requirement is an expression both of the principle of equal treatment for officials and of the principle that they are entitled to reasonable career prospects. In a promotion procedure involving two successive stages, a first phase consisting of a preliminary consideration, by two separate Advisory Committees on Promotion, of the merits of administrators assigned to language duties and those assigned to other duties, and a second phase based on a comparative consideration, by the appointing authority, of the merits of administrators belonging to each group respectively, the first phase of the promotion procedure – the preliminary consideration by two separate Advisory Committees on Promotion of the merits of both groups of administrators, in the light of the specific nature of the tasks assigned to the first group compared to those assigned to the second – is designed only to provide the appointing authority with information on the names of the officials to be promoted and is not likely to hinder proper consideration of the comparative merits of the candidates, but, on the contrary, is in accordance with the principle of good administration. Regarding the second phase of the promotion procedure, however, involving the consideration by the appointing authority of the merits of the officials eligible for promotion, Regulation No 723/2004 amending the Staff Regulations of Officials and the Conditions of Employment of Other Servants ended the distinction previously drawn between non-language posts held by officials belonging to categories A-D and language posts held by officials in the LA category, and introduced a new career structure comprising two function groups, the assistants’ function group (AST), designed to replace the former categories C and B, and the administrators’ function group (AD), designed to replace the former category A and the linguists’ category LA. Therefore, since the legislature’s intention was to combine all administrators, whether performing linguistic duties or other duties, into one single function group, the appointing authority, which is responsible for deciding on promotions, was required to conduct a single consideration of the comparative merits of all administrators eligible for promotion to grade AD 12. (see paras 29-31, 33-35) See: 62/75 de Wind v Commission [1976] ECR 1167, para. 17 T-76/92 Tsirimokos v Parliament [1993] ECR II‑1281, para. 21; T-134/02 Tejada Fernández v Commission [2003] ECR-SC I‑A‑125 and II‑609, para. 41; T-557/93 Rasmussen v Commission [1995] ECR-SC I‑A‑195 and II‑603, paras 20 and 21; T-188/01 to T-190/01 Tsarnavas v Commission [2003] ECR-SC I‑A‑95 and II‑495, paras 98 and 121