EN
ReportsofCases
ECLI:EU:F:2010 :13 1JUDGMENT O F THE CIVIL SERVICE TRIBUNAL
(Second Ch amber)
25 February 2010
Case F-91/08
Johanna Gerdina Pleijte
v
European Comm ission
(Civil service — Officials — Promotion — Attestation p rocedure — Procedure for 2007 — Applicant’s 
exclusion from th e list of officials preselected — Taking account of a pe riod of leave on pe rsonal 
grounds as professional experience — Article 45a of the Staff Regulations — GIPs for Article 45a)
Application:brought u nder Articles 236 E C and 152 E A, in w hich M s Pleijte seeks, principally, 
annulment of the decision o f the appointing authority of 7 August 2008 r ejecting her 
complaint against the decision no t to include her on th e list of preselected officials in the 
context of an attestation p rocedure, as provided for in Article 45a of the Staff Regulations 
of Officials of the European Union.
Held: The action is dismissed. The applicant is to bear her own costs and to pay those incurred 
by the Commission.
Summ ary
1. Officials — Actions — Act adversely affecting an official — Definition — Decision excluding an 
official from t he p rovisional list of preselected c andidates i n a n a ttestation p rocedure — 
Preparatory measure not adversely affecting the official
(Staff Regulations, Arts 90 a nd 91)
2. Officials — Actions — Purpose — Direction to the administration — Inadmissibility
(Art. 266 TFEU; Staff Regulations, Art. 91)
3. Officials — Equal treatment — Difference in treatment between officials wh o took l eave on personal 
grounds for parental reasons and officials granted p arental leave once it was introduced
(Staff Regulations, Arts 40(3) and 42a)
4. Officials — Attestation procedure — Preselection of candidates — Criteria — Discretion of the 
institutions
(Staff Regulations, Art. 45a)
1. A decision b y the appointing authority to exclude the name o f an official from th e provisional list of 
preselected officials in an attestation p rocedure is a p reparatory me asure which does no t ad versely 
affect that official and can th erefore on ly be contested incidentally in an appeal against a me asure
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PLEIJTEvCOMM ISSION
 capable of being annulled. However, a d ecision e xcluding an official from th e final list of preselected 
officials for an attestation p rocedure is an act adversely affecting th at official and no t a p reparatory 
measure.
(see paras 27-28)
See:
C-471/02 P(R) Gómez-Reino v C omm ission [2003 ] ECR I-3207 , para. 62
2. It is no t for the Community judicature to give dir ections to an institution, apart from th e general 
obligation, set out in Article 266 T FEU, for the institution w hose act has been declared void to take 
the necessary me asures to comply with th e judgment annulling it. Heads of claim requesting the Civil 
Service Tribunal to add a n official’s name t o a l ist of candida tes able to participate in a t raining 
programme , or to alter me thods set out in ad ministrative no tices, are therefore inadmissible.
(see para. 29)
See:
T-156/89 V alverde M ordt v C ourt of Justice [1991 ] ECR II-407, para. 150
F-51/07 B ui V an v C omm ission [2008 ] ECR-SC I-A-1-289 a nd II-A-1-1533 , para. 17, on a ppeal before the General 
Court of the European Union, Case T-491/08 P
3. The difference in treatment between officials who applied for leave on pe rson g rounds under the 
version o f the Staff Regulations in force before 1 May 2004 a nd th ose who applied for parental leave 
after 1 May 2004 s pecifically results from th e introduction, in th e Staff Regulations, of Article 42a 
relating to parental leave a nd cannot constitute di scrimination s ince th e objective r eason f or th e 
difference in treatment is the lack of retroactive effect conferred on th at article by the legislature.
Moreover, it is for th e legislature to decide on th e extent of the social entitlements enjoyed by 
European officials. The creation o f new entitlements which ar e more favourable for officials in th e 
future cannot me an th at those entitlements must be granted retroactively to officials who, in th e past, 
would have b een likely to satisfy th e conditions no w required in order to benefit from th ose 
entitlements. Wh en th e Council introduced parental leave, it did no t envisage that leave on pe rsonal 
grounds taken for parental reasons should retroactively be treated as parental leave. The absence of 
provisions in th e Staff Regulations providing for leave on pe rsonal grounds granted for parental 
reasons prior to 1 May 2004 t o be treated as parental leave d oes no t, th erefore, involve a b reach of 
the principle of equal treatment.
Lastly, since the interpretation o f a rule must be strictly confined to its content, particularly where that 
content is completely unambiguous, Article 40(3) of the Staff Regulations should no t be interpreted as 
requiring officials who took leave on pe rsonal grounds for parental reasons to be treated in th e same 
way as those granted parental leave.
(see paras 37, 40, 42)
4. Differences in treatment which ar e justified on th e basis of objective a nd reasonable criteria a nd 
which are proportionate to the aim pursued by the differential treatment in question d o no t constitute 
a breach of the principle of equal treatment. Objective and reasonable criteria c apable of justifying a 
difference in treatment between officials include the interests of the service. The ad ministration e njoys 
a wide di scretion t o decide on th e me asures to take in th e interests of the service, so th at the
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 Community courts, when reviewing compliance with th e principle of non -discrimination, must confine 
themselves to checking that the differentiation m ade by the institution c oncerned was no t arbitrary or 
manifestly contrary to the interests of the service.
In th at respect, it is no t disproportionate for the ad ministration t o take a ccount on ly of professional 
experience acquired during th e 10 y ears prior to an attestation p rocedure in order to assess, in th e 
light o f the requirements of the service, the relevance of the professional experience acquired by the 
candida tes, since that relevance depreciates as technologies and skills develop. In th e absence of any 
evidence th at such a t ime l imitation i s, in actual fact, th e result of arbitrary di fferentiation o r 
differentiation w hich is manifestly contrary to the interests of the service, that differentiation d oes no t 
constitute discrimination.
Furthermore, the ad ministration h as a w ide discretion t o decide on th e arra ngements for selecting 
candida tes. Deciding to limit the professional experience taken into account to th e last 10 y ears does 
not prevent the ad ministration from selecting the best candida tes, since that period may constitute a 
relevant element of comparison.
(see paras 57-59, 61)
See:
T-11/03 A fari v E CB [2004 ] ECR-SC I-A-65 a nd II-267, para. 65
F-59/05 D e Smedt v C omm ission [2006 ] ECR-SC I-A-1-109 a nd II-A-1-409, para. 76; F-43/05 C hassagne v 
Comm ission [2007 ] ECR-SC I-A-1-27 a nd II-A-1-139, para. 91; F-54/06 D avis and Others v C ouncil [2007 ] ECR-SC 
I-A-1-165 a nd II-A-1-911, para. 65 a nd th e c ase-law c ited th erein; F-6/07 S uvikas v C ouncil [2008 ] 
ECR-SC I-A-1-151 a nd II-A-1-819, para. 87