Judgment — ECLI:EU:T:2017:907
Date: 2017-12-14
Language of the case: French
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Staff cases - unfounded;Action for damages - unfounded

Summary — Judgment of the General Court (Ninth Chamber), 14 December 2017 1. Actions brought by officials — Action against a decision rejecting a complaint — Admissibility (Staff Regulations, Arts 90 and 91) 2. Officials — Promotion — Consideration of comparative merits — Inter-institutional transfer during the promotion exercise — Competence of the institution of origin to decide on promotion (Staff Regulations, Art. 45) 3. Officials — Promotion — Consideration of comparative merits — Inter-institutional transfer during the promotion exercise — Award of promotion points — Procedures — ‘Pro rata temporis’ promotion system of the European Court of Justice (Staff Regulations, Arts 6 and 45) 4. Officials — Promotion — Consideration of comparative merits — Equal treatment (Staff Regulations, Art. 45) 5. Officials — Promotion — Consideration of comparative merits — Administration’s discretion — Scope — Autonomy of the institutions — Official having moved between institutions — Lack of promotion despite meeting the promotion conditions in his institutions of origin — Official not penalised due to his move between institutions (Staff Regulations, Art. 45) 6. Officials — Non-contractual liability of the institutions — Conditions — Unlawfulness — Harm — Causal link — Cumulative conditions (Art. 340 TFEU) 7. Officials — Non-contractual liability of the institutions — Conditions — Harm — Material harm allegedly caused by a refusal to promote — Harm uncertain by reason of the absence of a right to promotion (Staff Regulations, Art. 45) 1. See the text of the decision. (see para. 26) 2. In accordance with the requirements of Article 45 of the Staff Regulations, where an official is eligible for promotion in the year during which he is transferred from one institution to another, the appointing authority which is competent to decide on his promotion is that of his institution of origin. It must be considered that it necessarily follows from the competence of the appointing authority of the institution of origin to decide on an official’s promotion in the year during which he is transferred, and from the fact that that competence is based on the need to compare the merits of officials who are colleagues in the same institution at the time when that comparison is made that the institution of origin in question must apply its own promotion system. (see paras 33, 35) 3. As regards promotion in cases of interinstitutional transfer, the merits of the officials transferred must be compared with those of the officials who were still their colleagues during the year preceding their transfer. In order to decide whether an official should be promoted retroactively on 1 January of year N, the appointing authority can, in practice, only consider the comparative past merits of officials, in particular during year N-1, in the light of the reports appraising the performance of those officials in year N-1 and previously. Promotion is decided retroactively, as taking effect on a date when the official concerned was attached to the institution which is competent to decide on his promotion. Since the award of promotion presupposes that an established post vacancy corresponding to the grade in question is available, and since each institution fixes its own number of posts independently, pursuant to Article 6 of the Staff Regulations, and, in parallel, its list of vacant posts, the institution which is competent to decide on promotion may only promote the official concerned on a date on which it is in a position to appoint him to one of its vacant posts, in other words, in the period during which the official is attached to that institution. It must accordingly be considered that points awarded in year N, under the pro rata temporis system, whether they relate to a consideration of comparative merits for year N, or simply result from a notional extrapolation of the comparison of merits conducted for year N-1, can only be granted as long as the official concerned is attached to the institution competent to assess the comparative merits and, therefore, to decide on promotion. In so far as the award of those points, like the subsequent actions of the Joint Committee on Promotions and the appointing authority, forms part of the promotion exercise for year N, for the purpose of determining the promotion date of the official concerned, those points can only be granted up to the date on which the institution remains competent to compare the applicant’s merits with those of his colleagues in that institution and is capable of promoting him, in other words, in the present case, the date of the applicant’s transfer to. (see paras 37, 38, 40) 4. See the text of the decision. (see paras 47, 48) 5. It is for the institutions to ensure, first, that mobility does not affect the career progress of the officials involved and, second, that transferred officials are not penalised in the promotion exercise. However, first, it follows from the importance of the autonomy of each institution as an employer that an official transferred to an institution cannot claim that the same promotion rules as the more favourable rules applied by his institution of origin are applicable in order to argue that he was penalised in his promotion as a result of his mobility. Secondly, the Staff Regulations do not confer any right to promotion, even on officials who satisfy all the conditions for promotion, including the attainment of a promotion threshold. The award of promotion points does not definitively lay down the institution’s position at the conclusion of a promotion exercise, since the appointing authority still has its discretion and is not bound by the promotion points awarded by the directors or heads of department, or by the reference threshold, or by the Joint Committee on Promotions. (see paras 53-55) 6. See the text of the decision. (see para. 59) 7. See the text of the decision. (see para. 60)