JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (Second Chamber)
11 December 2008
Case F-113/06
Didier Bouis and Others
v
Commission of the European Communities
(Civil service – Officials – ‘Second round’ promotion – 2005 promotion procedure – Award of priority points – Transitional provisions – General implementing provisions for Article 45 of the Staff Regulations – Equal treatment – Admissibility)
Application: brought under Articles 236 EC and 152 EA, in which Mr Bouis and three other Commission officials essentially seek annulment
of the decisions not to award them, for the years 2003 and 2004, priority points available to each directorate-general, or
priority points in recognition of work undertaken in the interest of the institution, together with annulment of the decisions
not to include their names in the merit list and the list of officials promoted to grade A*13 in the 2005 promotion procedure.
Held: The action is dismissed. Each party is to bear its own costs.
Summary
1.      Officials – Actions – Act adversely affecting an official – Refusal to place an official on the list of most deserving officials
– Preparatory act – Inadmissibility
(Staff Regulations, Arts 45, 90 and 91)
2.      Officials – Actions – Interest in bringing proceedings
(Staff Regulations, Arts 90 and 91)
3.      Officials – Actions – Act adversely affecting an official – Promotion system established by the Commission – Decision awarding
certain categories of promotion points – Preparatory act – Decision determining the total number of points awarded to officials
– Decision against which an appeal may be brought
(Staff Regulations, Arts 45, 90 and 91)
4.      Officials – Promotion – Change from one system to another
(Staff Regulations, Art. 45(1), first para.)
1.      The merit list and the decision not to include an official’s name on that list constitute preparatory acts prior and necessary
to the final decision on promotions . It follows that the decision not to include an official’s name on the merit list cannot
be the subject of an independent action for annulment, but its legality can always be challenged in an action against the
appointing authority’s final decision on promotions.
(see paras 32-33)
See:
T-134/02 Tejada Fernández v Commission [2003] ECR-SC I‑A‑125 and II‑609, para. 18; T-311/04 Buendía Sierra v Commission [2006] ECR II‑4137, paras 96 to 98
2.      An official is not entitled to act in the interests of the law or of the institutions and may put forward, in support of an
action for the annulment of a measure, only such claims as relate to him personally. An action brought by an official seeking
annulment of the list of officials promoted to the higher grade in a promotion procedure because that list does not contain
his name is therefore manifestly inadmissible where the applicant has not shown why he has a personal interest in bringing
the action. That applies where the official merely relies on the number of priority points he was awarded for the promotion
procedure in question, but without providing in his written submissions any specific information establishing that he was
eligible for promotion in that promotion procedure and that the annulment he is seeking would give him the prospect of promotion,
taking account of his personal situation and, in particular, the number of promotion points that he obtained in total and
in each category, and the promotion threshold for the grade concerned applicable in the promotion procedure in question.
(see paras 34-39)
See:
85/82 Schloh v Council [1983] ECR 2105, para. 14
T-134/96 Smets v Commission [1997] ECR II‑2333, para. 47; T‑434/04 Milbert and Others v Commission [2006] ECR-SC I‑A‑2‑273 and II‑A‑2‑1423, paras 31 to 33
F-34/05 Lebedef and Others v Commission [2006] ECR-SC I‑A‑1‑33 and II‑A‑1‑105, para. 21
3.      Under the promotion system established by the Commission, individual decisions awarding certain categories of promotion points,
adopted before the appointing authority definitively establishes the total number of points obtained by each official, constitute
preparatory acts prior and necessary to the final decision fixing the total number of points. That applies in particular to
the award by the directors-general, under the Commission’s internal rules, of priority points available to each directorate-general,
or the award by the appointing authority, on the recommendation of the promotion committees, of priority points in recognition
of work performed in the interest of the institution, pursuant to those rules. Those decisions do not definitively establish
the appointing authority’s position with respect to the officials in question.
That being so, the appointing authority’s definitive decision fixing the total number of points obtained by each official,
which may be consulted in his personal promotion file, is made up of a series of individual and definitive decisions awarding
particular categories of promotion points, which appear as such in the personal promotion file itself. If the latter decisions
are also to be regarded as preparatory decisions prior to the decision fixing the total number of points and cannot therefore
start the time-limit running for lodging a complaint, they are nevertheless decisions definitively establishing the situation
of the official concerned in relation to the category of points in question.
In those circumstances, it must be considered that, in seeking, at the final stage of the promotion procedure, annulment of
the individual decisions not to award him either priority points available to each directorate-general or priority points
in recognition of work performed in the interest of the institution in the two years prior to the promotion procedure in question,
the official necessarily intended to dispute the total number of points he obtained, and his action cannot be dismissed as
inadmissible solely because it was not formally directed against the decision fixing the total number of points.
(see paras 64-68)
See:
Buendía Sierra v Commission, paras 96 and 97
4.      The constraints inherent in changing from one method of management to another, in respect of officials’ careers, may require
the administration 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 the first promotion procedure under a new system of promotion based on the quantification of merits, established by an
internal regulation of the Commission which lays down provisional measures for the transition from the previous system, where
provision is made to award officials in grade A 12 different types of priority points for the year prior to that promotion
procedure, but the Commission decides to limit the award of priority points on a transitional basis, that limitation cannot
be regarded as exceeding the power which the administration has to introduce, on a transitional basis, changes to the rules
governing the promotion of officials. It merely establishes a limit for the account to be taken of merits recognised previously.
While it is true that it is theoretically possible to envisage a different system, the administration is under no obligation
to do so. The purpose of changing the existing method of promoting officials is, by definition, to rectify certain problems
resulting from the application of the earlier rules. It is therefore inherent in such a reform process, the need for which
the administration has wide discretion to assess, that the merits of officials should begin to be evaluated on a new basis
from a given date.
(see paras 79-81, 85)
See:
62/75 de Wind v Commission [1976] ECR 1167, para. 17
T-557/93 Rasmussen v Commission [1995] ECR-SC I‑A‑195 and II‑603, para. 20; T-30/02 Leonhardt v Parliament [2003] ECR-SC I‑A‑41 and II‑265, paras 51, 55 and 56; T-393/04 Klaas v Parliament [2006] ECR-SC I‑A‑2‑103 and II‑A‑2‑465, para. 56; Buendía Sierra v Commission, paras 213 and 220