ORDER OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

21 June 1995

Case T-370/94

Jacques Vigel

v

Commission of the European Communities

‛Officials — Admissibility — Act adversely affecting an official — Promotion procedure’

Full text in French II-487

Application for:

annulment of Notice to Staff No PE/A/637 of 20 April 1994, published by the Joint Research Centre at Petten (Netherlands), excluding the applicant from the list of officials suitable for consideration either for promotion or for an increase in step as part of the 1994 promotions exercise, and payment of BF 75000 by way of damages and BF 250000 by way of compensation for the material and nonmaterial damage suffered by the applicant.

Decision:

Application dismissed.

Abstract of the Order

On 20 April 1994, the administration of the Joint Research Centre (JRC) at Petten published, by way of a preliminary step in the 1994 promotions exercise, Notice to Staff No PE/A/637 drawing to the notice of officials assigned to Petten the list of members of staff who might be considered either for promotion or for an increase in step.

The notice stated:

‘On 13 April 1994, the Joint Committee of O-Instance of the Institute for Advanced Materials drew up the list of members of staff who, in the opinion of that Committee, may be considered for promotion or for an increase in step in the course of the 1994 procedure ...

In accordance with the general provisions to give effect to the procedure for promoting staff, the number of names entered on this provisional list exceeds the number of posts likely to be available by approximately 50%.’ (A list of officials follows.)

Since his name did not appear on that list, the applicant lodged a complaint against it on 23 June 1994. By decision of 17 November 1994, the Commission rejected his complaint. By application lodged at the Registry of the Court of First Instance on 17 November 1994, the applicant brought the present proceedings.

By separate document lodged at the Registry of the Court of First Instance on 23 December 1994, the Commission raised an objection of inadmissibility.

Admissibility

The Court points out in limine that according to settled case-law a preparatory measure preceding the appointing authority's decision does not constitute an act adversely affecting the position of a member of staff and cannot be the subject of an action, even where promotions procedures are concerned, in which only acts adopted by the appointing authority may be subject to review by the Court in proceedings brought by officials and other servants of the Community institutions.

See: T-53/91 Mergen v Commission [1992] ECR II-2041, para. 22

In the present case, it is clear from the general provisions to give effect to the procedure for promoting staff paid from research appropriations that that procedure comprises a number of steps in which various bodies are involved. The communication which is the subject of the present proceedings constitutes only the very first step in the promotions procedure at issue, since it represents the outcome of the preliminary examination, referred to in Article 4 of the general provisions, which is carried out equally in each of the establishments of the JRC.

Consequently, the list in question is not the provisional list of officials considered by the Joint Promotion Committee of first instance to be most deserving of promotion, which must subsequently be forwarded to the Joint Promotion Committee of second instance, in accordance with Article 6(2) of the general provisions; it is the outcome of a step taken even before that provisional list was drawn up.

Nevertheless, it remains to be considered whether the fact that the applicant's name did not appear on the list prevented the Joint Promotion Committee at first instance from proposing him for promotion, since, according to settled case-law of the Court of First Instance, if a decision not to place the name of an official on a list of officials eligible for promotion in practice causes that person to lose any chance of being promoted because the appointing authority is bound by that list, the action challenging the relevant decision is admissible.

See: T-82/89 Marcato v Conunission [1990] ECR II-735, paras 48 to 52

In that connection, it must be observed that the first paragraph of Article 5 of the general provisions states that ‘each (promotion) Committee shall have before it a list of the officials having the seniority required for promotion, their personal files and reasoned proposals from their superiors, and the conclusions of the preliminary examination referred to in (Article 4 of the general provisions)’. Consequently, the fact that an official has not been placed on the list drawn up after the preliminary examination, referred to in Article 4, is not binding on the Joint Promotion Committee of first instance or, a fortiori, on the appointing authority.

It must therefore be concluded that, since the act at issue is a preparatory measure which does not constitute an act adversely affecting the applicant for the purposes of Articles 90 and 91 of the Staff Regulations, the action for annulment must be declared inadmissible.

As regards the claim for compensation, the Court considers that, in so far as that claim relates to compensation for damage allegedly suffered by the applicant by reason of the unlawful acts of which he claims to have been the victim, it is closely linked to the application for annulment and that, consequently, the inadmissibility of the latter entails the inadmissibility of the claim for compensation.

See: T-27/90 Latham v Commission [1991] ECR II-35, para. 38; T-5/90 Marcato v Commission [1991] ECR II-731, para. 49

Operative pail:

The application is dismissed as inadmissible.