Case T‑311/04

José Luis Buendía Sierra

v

Commission of the European Communities

(Officials – Promotion – 2003 promotion exercise – Award of priority points)

Judgment of the Court of First Instance (Fifth Chamber, Extended Composition), 19 October 2006

Summary of the Judgment

1. Officials – Actions – Acts adversely affecting an official

(Staff Regulations, Arts 45, 90 and 91)

2. Officials – Actions – Prior administrative complaint

(Staff Regulations, Arts 45 and 90(2))

3. Officials – Promotion – Comparative examination of merits

(Staff Regulations, Arts 25, second para., 26, 43, 45 and 90(2))

4. Officials – Promotion – Comparative examination of merits

(Staff Regulations, Art. 45)

5. Officials – Promotion – Comparative examination of merits

(Staff Regulations, Art. 45)

6. Officials – Promotion – Comparative examination of merits

(Staff Regulations, Art. 45)

7. Officials – Promotion – Comparative examination of merits

(Staff Regulations, Art. 45)

8. Officials – Decision adversely affecting an official – Methods of adoption

(Staff Regulations, Arts 45, 90(2) and 91)

9. Officials – Promotion – Comparative examination of merits

(Staff Regulations, Art. 45)

10. Officials – Promotion – Comparative examination of merits

(Staff Regulations, Art. 45)

11. Officials – Actions – Judgment annulling decision – Effects

(Art. 233 EC; Staff Regulations, Art. 45)

1. Under the promotion system established by an internal regulation of the Commission based on the examination of cumulative merits represented by points accumulated year after year, and in which the promotion exercise is concluded by an act of a complex nature in that it comprises two distinct decisions by the appointing authority, the one establishing the list of officials promoted and the other determining the total number of points of officials on which the former decision is based, that decision determining the total number of points is a self-contained act which may, as such, be the subject-matter of a complaint and, where appropriate, a legal action in accordance with the remedies laid down by the Staff Regulations. The award of points in a given year has effects which are not limited and confined solely to the current promotion exercise, but which may influence several promotion exercises producing binding legal effects capable of affecting the interests of the official by distinctly altering his legal position.

Consequently, an official who is included on the list of promoted officials may, if he disputes the total number of points which he has been awarded by the appointing authority and thus the balance kept for subsequent years, submit a complaint and, where appropriate, bring an action before the Court against the only act awarding points which entails binding and definitive legal effects in regard to him.

Similarly, it is conceivable that an official who is not promoted and who does not wish to challenge his non‑promotion in the exercise in question but only the refusal to award him a certain number of points, which could not enable him to reach the promotion threshold, may bring identical proceedings.

Moreover, an official who is not promoted on account of the allegedly unjustified award of an insufficient number of points, and who is therefore below the promotion threshold, may direct his action both against the appointing authority’s decision fixing the total number of points and against that adopting the list of promoted officials. Even though those acts can in fact be differentiated legally and form the subject of separate claims for annulment, there is no doubt that they are in fact closely linked in a case of refusal of promotion, since such a refusal is necessarily and solely connected with the total number of points awarded to the official in question in relation to the promotion threshold, except where, having reached that threshold and being in the group of ex aequo, that is, the group of officials who have reached the promotion threshold, but whose number exceeds the actual promotion possibilities, the official in question was not promoted, on the basis of secondary considerations connected with seniority in grade or equal opportunities.

In the latter situation, the official concerned may properly bring an action only against the appointing authority’s final decision adopting the list of promoted officials on account of errors of assessment made by the appointing authority in ranking in order the officials included in the group of ex aequo.

(see paras 82, 88-94)

2. Under the promotion system established by an internal regulation of the Commission based on the examination of cumulative merits represented by points accumulated year after year, and in which the promotion exercise is concluded by an act of a complex nature in that it comprises two distinct decisions by the appointing authority, the one establishing the list of officials promoted and the other determining the total number of points of officials on which the former decision is based, the starting point of the three-month period for bringing an action against those two decisions must, in the interests of legal certainty, equal treatment and sound administration, be fixed at the date on which the official obtains effective access to his updated individual promotion file on the institution’s internal computer system, provided that consultation by the official of that file took place within a reasonable time from the publication of the summary note informing officials of the availability of that system of data on points awarded.

Under such a promotion system, publication of the list of promoted officials, which contains only the names and positions of the persons concerned, does not enable the officials concerned to have full knowledge of the act adversely affecting them, by nature complex, in which the promotion procedure culminates, and it is only by consulting his individual promotion file that the official will be able to have access to his total number of points and their breakdown

(see paras 105, 111-112, 115, 118, 121)

3. The system of promotion established by an internal regulation of the Commission, which is based on the quantification of merits, characterised by the annual award to officials of different types of points, some of which – ‘merit points’ – arise from the transformation of the mark received by the official at his periodical report under Article 43 of the Staff Regulations, whilst others – ‘priority points’ – granted in addition and not in themselves determining promotion, are designed to reward officials who have exceeded their individual objectives or have successfully carried out additional duties in the interest of the institution, does not infringe the principle of equal treatment or Article 45 of the Staff Regulations, since those two types of points are intended to reward merit and their attribution must always be justified by merit-based considerations.

Under that system, in which the promotion exercise is concluded by an act of a complex nature in that it comprises two distinct decisions by the appointing authority, the one establishing the list of officials promoted and the other determining the total number of points of officials on which the former decision is based, absence of reasoning for decisions concerning the award of priority points does not infringe the second paragraph of Article 25 of the Staff Regulations, which does not require reasons to be stated for proposals, recommendations or opinions which, in themselves, do not adversely affect officials and which concerns only preparatory measures, the obligation to state reasons being satisfied where the appointing authority states reasons for its decision rejecting a complaint lodged under Article 90(2) of the Staff Regulations.

Nor is the award of priority points contrary to Article 26 of the Staff Regulations, the purpose of which is to guarantee an official’s right to a fair hearing by ensuring that decisions taken by the appointing authority affecting his administrative status and his career are not based on matters concerning his conduct which are not included in his personal file, since that award is made, after examing the results of the career development reports, in the light of the merits of the officials concerned, as recorded in those reports, the drawing up of which is part of a complex process in which the officials are closely involved in accordance with Article 43 of the Staff Regulations, which provides that the periodical report is to be communicated to the official who ‘shall be entitled to make any comments thereon which he considers relevant’. Nor can an infringement of defence rights be inferred from decisions to grant those points, since those decisions merely constitute acts preparatory to the decisions fixing the total number of promotion points and adopting the list of promoted officials, whereas defence rights apply not to such measures, but to those adversely affecting officials.

(see paras 129-138, 143-147, 152, 155-157)

4. Under the system of promotion established by an internal regulation of the Commission, which is based on the quantification of merits, characterised by the annual award to officials of different types of points, some of which – ‘merit points’ – arise from the transformation of the mark received by the official at his periodical report under Article 43 of the Staff Regulations, whilst others – ‘priority points’ – are designed to distinguish, amongst officials, those which have the most merit in order to increase their promotion chances, neither the existence of a quota for awarding those latter points within each directorate-general nor the indication of a target average for the award of points of the first type are such as to limit the discretion of the directorates general to an extent which is contrary to Article 45 of the Staff Regulations, to the principle of equal treatment and to the principle of career progression. It is clear, on the contrary, that those two mechanisms are such as to favour the effective expression of an appraisal which is representative of the merits of the officials by ensuring the highest level of comparability of appraisals in all the directorates-general of the Commission and, consequently, equal treatment for those officials. In that regard, in practice, consideration of the comparative merits must be undertaken on a basis of equality, using comparable sources of information.

As regards the quota of priority points within each directorate-general, it meets the general objective of that type of points, which is to reward those among the officials who are the most deserving, so as to increase their chances of promotion. A limit on the number of points available is designed to induce the directorates‑general to make such a selection. That objective is itself compatible with Article 45 of the Staff Regulations, equal treatment and career progression.

As regards the target average of merit points, which that promotion system encourages but does not impose as an absolute obligation, the fact that the directorates‑general take account of the target average which they are given does not in any way mean that their discretion is limited to an extent contrary to Article 45 of the Staff Regulations, the principle of equal treatment and the principle of career progression. That average, which expresses mathematically the assessment of an average official’s performance, does not prevent reporting officers from using a very wide range of marking, even in combination with indicative but non-binding bands, resulting from observation of the way in which promotions have generally been granted in the past. Nor does such an average limit the possibility of reporting officers differentiating between the assessments made individually of the performance of each official according to whether that performance is below or above that average, reporting officers being able to express nuances in their assessment of officials. It allows the risk of inflation in markings to be avoided by obliging reporting officers to carry out a more rigorous comparison of the individual merits of each official, and also serves to reduce the risk of a disparity in the averages of the markings given by the various directorates general, which would not be justified by objective considerations connected with the merits of the officials reported on. Such an average takes account, finally, of the most commonly observed reality, namely a homogeneous breakdown of the officials reported on around the average level of merit, of the possibility of departing from the target average when the particular situation of a directorate-general does not coincide with the common reality, and of the possibility of officials lodging an internal appeal which may lead the appointing authority to grant them one or more priority points outside the quota, sufficing to resolve the difficulties in departments where very good officials are concentrated.

(see paras 169, 172-177, 179-183, 187)

5. It is inherent in a change of rules that new situations are created on a given date as a result of adapting the account taken of situations constituted earlier. Under the system of promotion established by an internal regulation of the Commission, which is based on the quantification of merits, characterised by the annual award to officials of different types of points, it is for the appointing authority to adapt, on a transitional basis, the change in the rules relating to the promotion of officials by taking into account the constraints inherent in the transition from one method of management to another, which may require it 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 that respect, in order to take account of the merit accumulated in their grade by the Commission officials in post at the time of the entry into force of that system, transitional arrangements cover the award of various transitional points to those officials.

Regarding transitional priority points automatically awarded, up to a certain limit, to officials per year spent in the grade, that number of years may be regarded as an objective, but only partial, indicator of the merit accumulated by an official, so that the award of those points reveals a taking into account of seniority in grade, contrary to the rules which normally govern promotion procedures. However, the adoption of a system characterised by quantification of merit and by the need to reach a certain threshold corresponding to an accumulated number of merit and priority points in order to be promoted involves taking into account the merits accumulated by the officials since their last promotion, in the form of an award of a certain number of points and according to a method which complies with the principle of equal treatment. The measure consisting in automatically awarding priority points meets that imperative need connected with the transition, and the provisions restricting its scope, such as its limitation to the first promotion exercise after the entry into force of the new system, the very limited weight of those points in comparison with the total of points capable of being awarded, and the making of an official’s promotion subject to the condition that he must have totalled a certain number of other points in his last career development report, support the conclusion that the appointing authority did not go beyond what was necessary to ensure an orderly transition from one system to another.

Concerning the maximum of two transitional priority points per official which the appointing authority may award on the recommendation of the promotion committees, these were were introduced in order to resolve, on an equitable basis, specific problems arising from the transition between the old and the new system. That particular purpose necessarily falls within the scope of the objective of all the transitional points of which they form part, namely to take into account the merit accumulated by an official since his last promotion, with the result that the provision providing for their award does not, in itself, infringe Article 45 of the Staff Regulations. The fact that such an award could lead to arbitrary promotions would result from the individual application of that provision and not from its inherent illegality.

Regarding transitional priority points capable of being awarded to officials recommended for promotion during the previous promotion exercise but not promoted, these are not contrary to Article 45 of the Staff Regulations either. Whilst it is true that a practice consisting in automatically promoting a carry over from the previous promotion exercise infringes the principle under that provision of consideration of the comparative merits of the officials eligible for promotion, the appointing authority is, however, entitled in principle to take into consideration, in the assessment of candidates’ comparative merits, the fact that an official has already been proposed for promotion in a previous exercise, on condition that he has not ceased to be deserving of promotion and that his merits are assessed in comparison with those of other candidates for promotion, which is the case with the transitional arrangements established by the Commission.

Finally, the Commission is under no obligation to adopt, as the system for converting previous markings, that known as the average analytical assessment or that applied by other institutions, allegedly less at variance with the rule of promotion according to merit. 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. The administration cannot be expected, under the new system, to take account, in exactly the same way, of all the marks awarded to officials under the old system, since that would almost inevitably negate the effectiveness of the reform of the promotion system, and staff are, in any event, not entitled to expect the existing rules to remain unchanged.

(see paras 204-211, 213-218, 220)

6. The promotion system established by an internal Commission regulation whereby officials may be awarded priority points in recognition of additional tasks carried out in the interests of the institution is not contrary to Article 45 of the Staff Regulations, since those points can reward only tasks distinct from the official’s normal activities, not covered by an annual appraisal and, therefore, not serving as a basis for the award of the other types of merit points. In any event, the legal framework established by the Commission enables the appointing authority to avoid any double counting of merits.

(see paras 236, 240)

7. Under the promotion system established by an internal regulation of the Commission based on the quantification of merits, characterised by the annual award to officials of different types of points, strict application of the rule whereby each directorate-general will have available, for distribution, a package of priority points equal to 2.5 times the number of officials in grades which are still susceptible to promotion, having regard to their grade, and which makes the award of those points subject to a distribution ratio between the best performing officials and other officials would have the effect of reducing considerably the number of priority points to be distributed among the officials working within those entities, to the detriment of those officials. Those officials are therefore in a situation which is objectively different from that of their colleagues in post in large directorates‑general or services, which explains and justifies, for the purposes of compliance with the principles of equal treatment and career progression, different treatment such as the particular provision providing that where a directorate general or service has fewer than four officials in a given grade, the total number of available priority points is 10 and their award is not subject to the distribution ratio set out in general for other officials.

(see paras 246-250)

8. The Staff Regulations and the internal Commission regulation establishing a promotion system based on the quantification of merits, characterised by the annual award to officials of different types of points do not prescribe any form for adopting decisions on the award of those points or for ruling on internal appeals lodged against that award before the appointing authority. In particular, Article 90(2) of the Staff Regulations, which provides that officials ‘may submit to the appointing authority a complaint against an act’, does not preclude such an act from being expressed other than on paper. It follows that the responsible authority may adopt such decisions by affixing an electronic signature on a digital document prepared for that purpose, in the context of a computerised system, without formalisation in writing.

(see paras 255-256)

9. Under the promotion system established by an internal regulation of the Commission based on the quantification of merits, characterised by the annual award to officials of different types of points, the award of priority points, intended to reward officials deemed most deserving and to increase their chances of promotion must be based on considerations connected with the particular merits of the officials in question, seniority in grade not in any event constituting a decisive factor for their award. It is therefore not possible to use as the principal criterion for the award of priority points the criterion of the total sum of merit points, which result from the transformation of the mark received by the official at his periodic assessment under Article 43 of the Staff Regulations, and of transitional priority points, awarded automatically up to a certain limit to officials by year spent in the grade, such a criterion being capable of having as its objective consequence of favouring officials with greater seniority in grade. In that respect, whilst it is true that the administration may depart temporarily, and within certain limits, from the strict application of the permanent rules and principles that normally apply to promotion procedures, that is only in order to satisfy an overriding requirement connected with the transition between the old and new promotion systems and in order to take into account the constraints inherent in changing from one method of management to another, whereas priority points constitute a permanent and not a provisional aspect of the new promotion system and the taking into account of merit accumulated in their grade by Commission officials in post at the time of the entry into force of that system did, moreover, justify the award of three categories of transitional points.

(see paras 286, 288, 290, 293, 297, 301)

10. In assessing the merits to be taken into consideration in the context of a promotion decision under Article 45 of the Staff Regulations and, consequently, also in the context of a decision awarding points in a promotion system under which such an assessment is quantified, the administration possesses a wide discretion and the Community judicature must restrict its review to consideration of the question whether, regard being had to the various considerations which have influenced the administration in making its assessment, the latter has kept within proper bounds and has not used its power in a manifestly incorrect way.

(see paras 291, 320)

11. Under the promotion system established by an internal regulation of the Commission based on the quantification of merits, characterised by the annual award to officials of different types of points, where the Community judicature has annulled the decision of the appointing authority to award the applicant only a given number of points, it is also necessary to annul the decision to refuse to enter him on the list of officials promoted where the measures which the administration finds it necessary to take in order to remedy the irregularities found could bring the applicant up to the promotion threshold. However, annulment of the whole list of promoted officials would constitute an excessive penalty. That assessment is not contradicted by the circumstance, which is moreover current, that the decisions taken in the context of the promotion exercise at issue do not exhaust their effects at the end of the exercise, because the applicant could in the future enter into competition with officials whose promotion was not annulled.

(see paras 340-342, 349)

JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber, Extended Composition)

19 October 2006 ( )

(Officials − Promotion − 2003 promotion exercise − Award of priority points)

In Case T‑311/04,

José Luis Buendía Sierra, official of the Commission of the European Communities, residing in Brussels (Belgium), represented by M. van der Woude and V. Landes, lawyers,

applicant,

v

Commission of the European Communities, represented by G. Berscheid and V. Joris, acting as Agents, and by D. Waelbroeck, lawyer,

defendant,

APPLICATION for annulment of:

– the decision of the Director-General of the Legal Service of the Commission to award the applicant only one directorate-general priority point in the 2003 promotion exercise, communicated on 2 July 2003, as confirmed by a decision of the appointing authority notified on 16 December 2003;

– the decision of the appointing authority not to award the applicant any special priority points for additional activities in the interest of the institution in the 2003 promotion exercise, notified via the Sysper 2 system on 16 December 2003;

– the following decisions: the decision of the appointing authority to award the applicant a total of 20 points in the 2003 promotion exercise; the merit list of Grade A5 officials in the 2003 promotion exercise, published in Administrative Notices No 69-2003 of 13 November 2003; the list of officials promoted to Grade A4 in the 2003 promotion exercise, published in Administrative Notices No 73‑2003 of 27 November 2003; and, in any event, the decision not to include the applicant’s name in those lists;

– so far as may be necessary, the decision of the appointing authority of 15 June 2004 rejecting his complaint submitted on 12 February 2004,

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fifth Chamber, Extended Composition),

composed of M. Vilaras, President, M.E. Martins Ribeiro, F. Dehousse, D. Šváby and K. Jürimäe, Judges,

Registrar: I. Natsinas, Administrator,

having regard to the written procedure and further to the hearing on 29 September 2005,

gives the following

Judgment

Legal framework

1 The Staff Regulations of Officials of the European Communities, as in force at the material time (‘the Staff Regulations’), include an Article 26, first and second paragraphs, worded as follows:

‘The personal file of an official shall contain:

(a) all documents concerning his administrative status and all reports relating to his ability, efficiency and conduct;

(b) any comments by the official on such documents.

Documents shall be registered, numbered and filed in serial order; the documents referred to in subparagraph (a) may not be used or cited by the institution against an official unless they were communicated to him before they were filed.’

2 The first paragraph of Article 43 of the Staff Regulations provides:

‘The ability, efficiency and conduct in the service of each official, with the exception of those in Grades A1 and A2, shall be the subject of a periodical report made at least once every two years as provided for by each institution in accordance with Article 110.’

3 The first subparagraph of Article 45(1) of the Staff Regulations is worded as follows:

‘Promotion shall be by decision of the appointing authority. It shall be effected by appointment of the official to the next higher grade in the category or service to which he belongs. Promotion shall be exclusively by selection from among officials who have completed a minimum period in their grade, after consideration of the comparative merits of the officials eligible for promotion and of the reports on them.’

4 On 30 October 2001, the Commission adopted communication SEC(2001) 1697 on the ‘career development report’ (staff appraisal) and promotion. In it, it outlines its guidelines on staff policy, so as to ‘link … career development with an assessment of past results and of the potential of the jobholder concerned’. It states inter alia that ‘merit … constitutes [the] core feature [of the new promotion system]’. The Commission adds that this ‘merit is a dynamic and cumulative concept (“capital”) … Merit is quantified through a system of points. After a certain time (depending on the merit accumulated) the “capital” of points entitles the official to be proposed for a promotion to a higher grade’. The Commission makes clear that ‘ratings received in the context of the staff career development report … correspond to [merit points]’ (‘MP’) to which priority points (‘PP’) are added. The Commission notes that ‘the attribution of [those PP] must always be justified, in writing, by merit‑based considerations’. They ‘are intended to reward officials deemed most deserving and to increase their chances of promotion in the future or to allow them to actually be promoted in the current exercise’. The Commission makes clear that ‘the award of [PP] must also be justified through detailed narrative assessments’. It adds that ‘[PP] will be allocated following a hierarchy of criteria aimed at differentiating between meritorious staff’. According to the Commission, ‘[t]he basic criterion should be the comparison of merits across the [directorate‑general] as a whole; this would include taking into account the person’s potential (based on objective assessment of demonstrated performance and competence)’. The Commission stresses the fact that ‘one of the aims of the system is to ensure the highest possible degree of consistency of appraisals across the various Commission departments’. Finally, it states that ‘[l]inked to this, is the aim that different promotion speeds for staff in one directorate‑general be comparable to those in other directorates‑general’.

5 On 26 April 2002, the Commission adopted a decision on general provisions for implementing Article 43 of the Staff Regulations and a decision on general provisions for implementing Article 45 of the Staff Regulations (‘GIP 43’ and ‘GIP 45’ respectively).

6 Under Article 1(1) of GIP 43, an annual report, called a career development report (‘CDR’), ‘will be drawn up on the ability, efficiency and conduct in the service of each permanent … member of staff …’.

7 Article 2(1) of GIP 43 defines the concepts of MP and PP for the purposes of GIP 43 and GIP 45. Under the second to fifth subparagraphs of Article 2(1) of GIP 43:

‘Both [MP] and [PP] are intended to reward merit and the attribution of [PP] must always be justified by merit-based considerations.

[MP] are the points generated by career development report markings.

[PP] are the points which may be awarded by:

(a) Directors-General (for A/LA staff) … to deserving members of staff, once the career development reports have been completed in the DG or service. The criteria for attribution are laid down in Article 6 of [GIP 45];

(b) the appointing authority upon recommendation by the promotion committees to deserving staff who have accepted additional duties in the interest of the institution. The criteria for attribution are laid down in Article 9 of [GIP 45];

(c) the appointing authority upon recommendation by the promotion committees in response to appeals against the award of [PP] as provided for in Article 13, paragraph 2, of [GIP 45].

Both [MP] and [PP] accumulate over the years. After a promotion, the amount of points corresponding to the promotion threshold is deducted; any remaining balance of points is kept for the subsequent exercise.’

8 According to Administrative Notices No 99‑2002 of 3 December 2002 on the (transitional) staff appraisal exercise 2001‑02, ‘during [his] appraisal, each official will be given an overall mark between 0 and 20’. That mark is then converted into MP usable for promotion purposes. It is apparent from the same Administrative Notices that, with certain exceptions, the number of MP corresponds to the overall appraisal mark.

9 Article 3 of GIP 45 provides that officials may be promoted only ‘after consideration of the comparative merits of the officials eligible for promotion’. Under that article, ‘[t]he primary consideration is therefore the number of [MP] and [PP] that each official has accumulated over the previous year(s)’. The Commission adds that ‘[o]ther secondary considerations can be taken into account to decide between officials with an equal number of [MP] and [PP], as indicated in Article 10, paragraph 1, [of GIP 45]’.

10 Article 4 of GIP 45 provides:

‘The promotion exercise consists of the following two phases:

(a) DGs and subsequently the promotion committees, defined in Article 14, award [PP] according to the modalities set out in Articles 6, 7 and 9;

(b) the actual promotion procedure which is described in Article 10.’

11 Under Article 6 of GIP 45, the directors‑general or directors distribute the PP made available to each directorate‑general (the ‘DGPP’), after consulting the joint evaluation committees.

12 According to Article 6(1) of GIP 45, for the purposes of that distribution, ‘each DG will have available … a package of [PP] equal to 2.5 times the number of officials in grades which are still susceptible to promotion and who occupy a post in that DG’. However, it is clear from that provision and from Administrative Notices No 99‑2002 that directorates‑general whose average score in terms of MP, for a given grade, exceeds the average of 14 out of 20 by more than one point will have their package of PP reduced by an amount corresponding exactly to the excess. However, directorates‑general may justify that excess and the promotion committees may, on exceptional grounds, decide to annul part or all of that reduction.

13 Article 6(2) of GIP 45 provides that, ‘at the beginning of the exercise aimed at awarding [PP], Directors-General and Directors shall meet in each DG to agree on criteria for the attribution of the package of [PP] among Directorates’.

14 Under Article 6(3) of GIP 45:

‘Having considered the results of the [CDRs], Directors-General, upon proposals by their Directors, for A staff, … award [PP] to officials deemed most deserving, inter alia, on the grounds that:

(i) they have contributed to the attainment of results which stretch beyond the individual’s objectives and which fall within the Directorate/Directorate-General work programme, including by providing assistance to other units, or

(ii) they have demonstrated special efforts and outstanding results in carrying out their tasks, as recorded in their [CDRs].’

15 Article 6(4) of GIP 45 provides that, ‘in order to differentiate between staff’:

‘(a) 50% of the [PP] forming part of the package made available to the DG will be shared out among the best performing officials who have demonstrated outstanding merits in meeting the criteria under (i) and (ii) [of paragraph 3]. These officials correspond to approximately 15% of the DG population per grade. Each official shall receive between 6 and 10 points.

(b) The remaining 50% will be shared out among other officials who are regarded as deserving in the light of the criteria under (i) and (ii) [of paragraph 3] and who will be allocated between 0 [and] 4 points per individual.

The same official cannot receive points drawn from both groups. Therefore, the maximum amount of [PP] that a single official can be awarded at each promotion exercise is 10’.

16 Article 8 of GIP 45 provides that once PP have been awarded following the procedure laid out in Article 6, the Directorate‑General (DG) for Personnel and Administration is to draw up merit lists for each grade, and in rank order of points, publish them on the intranet and communicate them to all staff. Those lists are to include those officials who are not more than five points below the promotion threshold and those who have reached or exceeded it.

17 Under Article 13(1) of GIP 45, within five working days of the publication of the merit list referred to in Article 8 of GIP 45, officials can appeal against the award decisions for [PP] to the promotion committee (‘the internal appeal’). Under Article 13(2) of GIP 45, ‘[u]pon examining each case, should the Promotion Committee deem it appropriate, it shall propose the award of a number of [PP]. In its reasoned opinion, the Promotion Committee shall issue a recommendation to the appointing authority’, which decides on any award of supplementary PP, the number of which thus allocated is to be published (‘appeal priority points or APP’).

18 Under Article 9(1) of GIP 45, the promotion committees are also responsible for making recommendations to the appointing authority regarding the award of PP in recognition of additional duties carried out in the interest of the institution (‘ADPP’). Those duties are listed in Annex I to GIP 45.

19 Article 12 of GIP 45 lays down transitional arrangements for the 2003 promotion exercise, in order ‘to take proper account of merit over time’. That provision establishes, in paragraph 3, three categories of transitional PP (‘TPP’):

‘(a) [TPP] will be awarded to officials within the limit of 1 point per number of years spent in the grade, up to a maximum of 7 points. In addition, the Promotion Committees will have available a package of [TPP] equal to 0.25 per official and will be able to award them up to a maximum of 2 points per official.

(b) DGs will be able to award [TPP] in order to take account of staff proposed in the previous exercise but not promoted ...’ (‘carry-overs’).

20 According to Administrative Notices No 18‑2003 of 17 February 2003 (Promotions 2003 – Categories A, LA, B, C and D – Operational budget ­– Carry-overs from the 2002 promotion exercise), and Administrative Notices No 34‑2003 of 2 May 2003 (2003 promotion exercise), point III, up to four special additional PP (‘SAPP’) may be awarded.

21 Article 10 of GIP 45 provides as follows:

‘1. Once the procedure described under Article 9 has been completed, the Promotion Committees referred to in Article 14 meet to deliberate on the merit list and to make proposals for promotion choosing from among the group of officials whose number exceeds the actual promotion possibilities (group of ex aequo). When choosing between officials with an equal number of points, the Committees shall, in particular, take account of elements such as seniority in grade and considerations of equal opportunities. This exercise shall begin no later than 15 May. The Committees shall justify their proposals and submit them to the appointing authority. The merit list containing these proposals will be published on the intranet; regarding those officials whose number of points matches the threshold, this list will distinguish those who have been proposed by the Promotion Committee from those who have not.

2. In order to be promoted, an official must have totalled at least 10 [MP] in his career development report of the last appraisal exercise. ...

3. In June, on the basis of the proposals of the Promotion Committees, the appointing authority decides which officials to promote to each grade. When an official is promoted, the threshold is deducted from the merit account. The balance of points is kept for subsequent years.

4. In July, DG [Personnel and Administration] publishes the list of promoted staff.’

22 Article 14(1) and (2) of GIP 45 provides:

‘1. Five Promotion Committees are set up for respectively: A staff, LA staff, B staff, C staff and D staff.

2. The composition of the Committees is as follows:

– For A staff: A Chairman, who is the Director-General of DG [Personnel and Administration]; a number of members equal to the number of Directors-General and Heads of Services; 15 members appointed by the Central Staff Committee at least at A4/LA4 level.

– ...’.

Facts and procedure

23 The applicant has been an official of the European Communities since April 1991. He has been a member of the Commission’s Legal Service since 1 July 2001.

24 On 15 March 2003, the applicant was awarded a mark of 16 out of 20 on his CDR for the period from July 2001 to December 2002. That mark was converted into 16 MP.

25 By a decision communicated to the applicant on 3 July 2003, the Director‑General of the Legal Service also awarded him one DGPP on the basis of Article 6 of GIP 45.

26 Pursuant to the first sentence of Article 12(3)(a) of GIP 45, the Legal Service also allocated three [TPP] to him, awarded at the rate of one point per year spent in the grade (‘DGTPP’), corresponding to three years’ seniority in Grade A5.

27 The merit list referred to in Article 8 of GIP 45, relating to the 2003 promotion exercise, which concerned Grade A5 officials such as the applicant, was published in Administrative Notices No 48‑2003 of 7 July 2003. It includes, for each official concerned, the accumulated number of MP and DGPP, but also of DGTPP and SAPP. The applicant’s name does not appear on it.

28 The applicant lodged an internal appeal on 14 July 2003, on the basis of Article 13 of GIP 45, against the award of only one DGPP. In that appeal he also sought the award of ADPP. The promotion committee for Category A staff met on 17 and 24 October 2003 to consider, inter alia, that appeal.

29 The abovementioned promotion committee subsequently adopted, on 13 November 2003, the merit list of Grade A5 officials provided for in Article 10 of GIP 45. That list was published in Administrative Notices No 69‑2003 of the same date. The applicant’s name does not appear on it.

30 On 20 November 2003, the appointing authority drew up the list of officials promoted in the 2003 exercise, which does not include the applicant’s name. That list was published in Administrative Notices No 73‑2003 of 27 November 2003.

31 After consulting his individual promotion file on the Sysper 2 site of the Commission’s intranet on 16 December 2003, the applicant discovered that he had been awarded a total of 20 points in the 2003 promotion exercise.

32 The Commission published a summary note of the progress of the promotion exercise in question in Administrative Notices No 82‑2003 of 19 December 2003.

33 By note of 12 February 2004, the applicant submitted a complaint under Article 90(2) of the Staff Regulations.

34 That complaint was rejected by decision of the appointing authority of 15 June 2004, and communicated to the applicant on the following day.

35 By application lodged at the Registry of the Court of First Instance on 22 July 2004, the applicant brought the present action.

36 The defence was lodged on 19 November 2004.

37 By letter received at the Court Registry on 14 January 2005, the applicant waived his right to lodge a reply.

38 In application of Article 14 of the Rules of Procedure of the Court of First Instance and on a proposal from the Fifth Chamber, the Court, after hearing the parties in accordance with Article 51 of the Rules of Procedure, decided to refer the case to a chamber of extended composition.

39 Upon hearing the report of the Judge-Rapporteur, the Court of First Instance (Fifth Chamber, Extended Composition) decided to open the oral procedure and, by way of measures of organisation of procedure, requested the applicant and the Commission in writing to answer a number of questions by 31 August 2005. The parties complied with those requests within the prescribed period.

40 By letter of 15 September 2005, the Registry of the Court of First Instance invited the parties to submit their observations on the other party’s answers to the Court’s written questions by 23 September 2005. The applicant and the Commission lodged their observations at the Court Registry on, respectively, 23 and 22 September 2005.

41 The parties presented oral argument and their answers to the oral questions put by the Court at the hearing on 29 September 2005.

Forms of order sought by the parties

42 In its application, the applicant claims that the Court should:

– order, by way of measures of organisation of procedure, the production of documents;

– annul the following acts:

– the decision of the Director‑General of the Legal Service of the Commission to award the applicant only one directorate‑general priority point in the 2003 promotion exercise, communicated on 2 July 2003 and confirmed by a decision of the appointing authority notified on 16 December 2003;

– the decision of the appointing authority not to award the applicant any ADPP in the 2003 promotion exercise, notified via the Sysper 2 system on 16 December 2003;

– the following decisions: the decision of the appointing authority to award the applicant a total of 20 points in the 2003 promotion exercise; the merit list of Grade A5 officials in the 2003 promotion exercise, published in Administrative Notices No 69‑2003 of 13 November 2003; the list of officials promoted to Grade A4 in the 2003 promotion exercise, published in Administrative Notices No 73‑2003 of 27 November 2003; and, in any event, the decision not to include his name in those lists;

– so far as may be necessary, the decision of the appointing authority of 15 June 2004 rejecting his complaint submitted on 12 February 2004;

– order the defendant to pay the costs.

43 The defendant contends in its defence that the Court should:

– declare inadmissible and unfounded the arguments put forward by the applicant seeking annulment of the decision to award him a total of 20 points;

– dismiss the remainder of the action as unfounded;

– make an appropriate order as to costs.

44 At the hearing, the Commission withdrew its arguments concerning the inadmissibility of the action in so far as it is directed against the decision to award the applicant a total of 20 promotion points. The Court took formal note of this in the minutes of the hearing.

45 In response to that declaration, the applicant declared that he was withdrawing his claims seeking annulment of the individual decisions awarding or not awarding him PP in the various categories provided for, to the extent that it remained possible to contest the validity of the criteria for awarding specific points in the action against the decision fixing the total number of promotion points. The Court took formal note of this in the minutes of the hearing.

Admissibility

46 As stated in paragraph 44 above, the Commission withdrew, at the hearing, its objection concerning the admissibility of the action in so far as it is directed against the decision awarding the applicant a total of 20 points in the 2003 promotion exercise.

47 It must be recalled, however, that, since the conditions for admissibility of an action are a matter of public policy and hence mandatory, the Court may examine them of its own motion and its review is not confined to the objections of inadmissibility raised by the parties. In particular, it is for the Court alone, irrespective of the views expressed by the parties, to ascertain and determine, in each instance, whether an act adversely affecting an official did in fact take place (see Case T‑275/02 D v EIB [2005] ECR-SC I-A-51 and II‑211, paragraph 42, and the case-law cited).

48 According to settled case-law, only measures the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position constitute acts or decisions against which an action for annulment may be brought (Case 60/81 IBM v Commission [1981] ECR 2639, paragraph 9; Joined Cases T‑32/89 and T‑39/89 Marcopoulos v Court of Justice [1990] ECR II‑281, paragraph 21; and Case T‑324/02 McAuley v Council [2003] ECR‑SC I‑A‑337 and II‑1657, paragraph 28).

49 It is also apparent from the case-law that, where a decision is adopted by a procedure involving several stages, only the measure definitively laying down the position of the author of the decision, and not the provisional measure intended to pave the way for the final decision, is open to review (Marcopoulos v Court of Justice, cited in paragraph 48 above, paragraph 21, and McAuley v Council, cited in paragraph 48 above, paragraph 28).

50 In this case, the applicant challenges the validity of various acts forming part of the 2003 promotion exercise, which constitutes the first exercise governed by the new GIP 43 and GIP 45, claiming, inter alia, that some of those acts are non-existent.

51 In those circumstances, the Court finds it necessary to describe, in turn, the rationale of the new promotion system and the conduct of the whole promotion exercise, for the purpose of determining the act which adversely affects the official and the time-limits for bringing actions against it.

1. Promotion system

52 It must be pointed out that, according to the relevant provisions, promotion is based on merit and the level of the official’s performance demonstrated from year to year and expressed in the form of points awarded in the annual appraisal and promotion exercise.

53 Accordingly, Article 3 of GIP 45, headed ‘Grounds for promotions’, states that ‘[t]he primary consideration is therefore the number of [MP] and [PP] that each official has accumulated over the previous year(s)’.

54 In addition, it is apparent from Article 5 of GIP 45 that an official can secure promotion only after accumulating a precise total number of points, which is at least equal to a reference threshold or ‘promotion threshold’ set, for each promotion exercise, by the promotion committees.

55 Article 5(3) of GIP 45 provides as follows:

‘The promotion threshold indicates the number of points (merit and priority) necessary to be liable to be promoted to a given grade; subject to budgetary possibilities, officials whose number of points exceeds the threshold will be promoted. Officials whose points match the threshold may be promoted or may have to wait for a subsequent promotion exercise, depending on the promotion rate’.

56 Article 10(3) of GIP 45 supplements the provision cited above by providing that ‘[w]hen an official is promoted, the threshold is deducted from the merit account. The balance of points is kept for subsequent years’.

57 The total number of points obtained by an official in a promotion exercise is the result of a complex process in the course of which that official is awarded MP, resulting from the marks and assessment in the CDR, then PP, which may be awarded, according to Article 2(1) of GIP 43, either by the director‑general or directors of each directorate‑general (DGPP) or by the appointing authority upon recommendation by the promotion committees (ADPP and APP).

58 In addition, for the 2003 promotion exercise, the first year of implementation of the new promotion procedure, transitional arrangements were laid down by Article 12(3) of GIP 45, ‘in order to take proper account of merit over time’. Those arrangements cover the award, firstly, of TPP, automatically awarded to officials at the rate of one point per year of seniority but up to a maximum of seven points (DGTPP, first sentence of Article 12(3)(a) of GIP 45) or upon recommendation by the promotion committees, when justified by the official’s situation and up to a maximum of two points per official (TPP, second sentence of Article 12(3)(a) of GIP 45), and, secondly, of up to four SAPP for officials proposed for promotion in the 2002 exercise but not promoted (Article 12(3)(b) of GIP 45 and Administrative Notices Nos 18‑2003 and 34‑2003).

2. Conduct of the promotion exercise

59 The promotion exercise is carried out each year after the completion of the appraisal exercise and its first stage, after the award of MP, is the award of PP at the level of each directorate‑general.

60 In this case, by a decision communicated to the applicant on 3 July 2003, the Director‑General of the Legal Service awarded him one DGPP on the basis of Article 6 of GIP 45, which was added to the 16 MP already received. Pursuant to the first sentence of Article 12(3)(a) of GIP 45, the Legal Service also awarded him three DGTPP corresponding to three years’ seniority in Grade A5. The applicant did not, on the other hand, receive any SAPP on the basis of Article 12(3)(b) of GIP 45.

61 In addition to individual and confidential information provided to each official by his directorate‑general concerning the accumulated number of MP and PP (Article 6(8) of GIP 45), the Commission’s DG for Personnel and Administration draws up and publishes, after the DGPP have been awarded, a merit list for each grade, which includes the names of officials who are not more than five points below the promotion threshold and of those who have reached or exceeded it, showing the accumulated number of MP and DGPP obtained by each of them (Article 8 of GIP 45).

62 As regards the 2003 promotion exercise, the abovementioned merit list, concerning Grade A5 officials such as the applicant, was published in Administrative Notices No 48‑2003 of 7 July 2003. It shows, for each official concerned, the accumulated number of MP and DGPP, but also of DGTPP and SAPP awarded in the course of applying the transitional arrangements.

63 The list referred to in Article 8 of GIP 45 does not determine definitively the position of the officials, whether or not they are included in that list, in the context of the promotion exercise.

64 Firstly, an official who is not satisfied with the number of DGPP awarded has the opportunity, within five working days from the publication of the abovementioned merit list, to appeal to the competent promotion committee which may, where appropriate, issue a recommendation to the appointing authority to award APP to the official concerned (Article 13 of GIP 45). The applicant did in fact properly lodge such an appeal on 14 July 2003.

65 Secondly, officials can also receive, after publication of the merit list referred to in Article 8 of GIP 45, ADPP (Article 9 of GIP 45) and, under the transitional arrangements, transitional priority points awarded by the appointing authority on the proposal of the promotion committees (‘PCTPP’) (second sentence of Article 12(3)(a) of GIP 45).

66 The second stage of the promotion exercise consists of the meeting of the promotion committees and of the transmission to the appointing authority of proposals falling within their spheres of competence.

67 It is established that the promotion committees have, essentially, a twofold competence. The first is to recommend to the appointing authority the award of certain PP (Articles 9, 12 and 13 of GIP 45), it being observed that those committees normally deliver an opinion on the award of APP before issuing the recommendation on individual awards of ADPP (Article 13 of GIP 45). The second is to propose to the appointing authority a ranking in order of the officials in the group of ‘ex aequo’, that is, the group of officials who have reached the promotion threshold, but whose number exceeds the actual promotion possibilities (Article 10 of GIP 45).

68 Nevertheless, in view of a lack of precision in the wording of GIP 45, establishing the details of the involvement ratione temporis of the promotion committees gives rise to some difficulty.

69 Thus, Article 10 of GIP 45 provides that the promotion committees meet to deliberate on the merit list and to make proposals for promotion choosing from among the group of ex aequo ‘once the procedure described under Article 9 has been completed’. This latter phrase, read in conjunction with Article 13 of GIP 45, could indicate that Article 10 of GIP 45 implies an initial involvement of the promotion committees and the appointing authority, after the publication of the merit list provided for in Article 8 of GIP 45, in regard to the proposal and then the decision on the award of PP.

70 The purpose of that involvement would be to finalise the position of the officials as regards the total number of points awarded in the promotion exercise and would necessarily be followed by a further meeting of the promotion committees to draw up proposals regarding the ranking in order of the officials in the group of ex aequo.

71 Such an approach is not, however, consistent with either the letter or the scheme of GIP 45.

72 It should be pointed out, firstly, that the use of the term ‘procedure’ does not seem appropriate, in the sense that Article 9 of GIP 45 does not, strictly speaking, contain a description of a complete procedure, with the setting of a precise timetable, but a description of the division of competence between the promotion committees and the appointing authority in regard to the award of ADPP.

73 Secondly, the interpretation mentioned in paragraphs 69 and 70 above implies the existence of an intermediate decision by the appointing authority fixing the total number of points. However, Article 9 of GIP 45 makes no reference whatsoever to the adoption by the appointing authority of such an act and merely sets out, in general terms, the latter’s competence in principle in regard to the award of PP, without specifying exactly when that competence is to be exercised.

74 The same applies to Article 13 of GIP 45, relating to the award of APP, which simply provides for the appointing authority’s decision‑making power without further specifying when that power is to be exercised in the course of the promotion exercise. In addition, while Article 13(2) of GIP 45 provides that the number of APP thus allocated by the appointing authority is to be published, it does not specify at what stage that publication takes place, it being observed that, for the 2003 exercise, the number of APP awarded was specified in the summary note of the conduct of the promotion exercise in question, published in Administrative Notices No 82‑2003.

75 In actual fact, it is established that no article of GIP 45 either mentions or specifies, ratione temporis, the adoption by the appointing authority of a separate intermediate decision fixing the total number of points.

76 Thirdly, Article 10 of GIP 45 states that the promotion committees meet to ‘deliberate on the merit list’, a term which first appears in Article 8 of GIP 45 and which refers to the list of the officials who are no more than 5 points below the promotion threshold and those who have reached or exceeded it, showing the accumulated number of MP and DGPP, as well as DGTPP and SAPP under the transitional arrangements, obtained by each of them. Taking such a list into account makes sense only if that document is still of interest at that stage, which would not be the case where a decision of the appointing authority fixing the total number of points was adopted after the publication of that list.

77 As regards the scheme of GIP 45, it should be pointed out that Article 10(3) of those GIP states that, ‘in June, on the basis of the proposals of the promotion committees, the appointing authority decides which officials to promote to each grade’.

78 It is thus apparent that, for obvious reasons of sound administration and legal certainty, provision has been made for delaying until the normal conclusion of the promotion procedure the adoption, ratione temporis, of a formal decision by the appointing authority enabling all the officials concerned to know where they stand in a certain and definitive manner as regards the outcome of the promotion exercise.

79 An interpretation of GIP 45 which had the effect of dividing up the involvements of the promotion committees and the appointing authority and of necessitating the adoption by the latter of an intermediate act concerning the total number of points would be liable to overcomplicate the situation of the officials eligible for promotion, as regards both the determination of the act adversely affecting them and as regards compliance with the time-limits for bringing actions, which would be contrary to the requirements of legal certainty.

80 In those circumstances, it must be held that, after publication of the merit list referred to in Article 8 of GIP 45, the promotion committees meet to draw up their proposals concerning both the award of the PP falling within their competence and the ranking in order of the officials in the group of ex aequo. All of those proposals are embodied in the merit list mentioned in Article 10(1) of GIP 45.

81 In this case, it should be pointed out that, following the proceedings of the promotion committee for Category A staff, which met on 17 and 24 October 2003, the merit list referred to in Article 10 of GIP 45 was published in Administrative Notices No 69‑2003 of 13 November 2003.

82 That list includes the names of the officials, together with their position, who have reached or exceeded the promotion threshold and those who are not more than 5 points below that threshold, showing:

– the total number of points proposed for each of them, which for some officials may have increased in comparison with that mentioned in the merit list published on 7 July 2003, as a result of proposals by the committee to award them ADPP, APP and PCTPP;

– the letter ‘p’ next to the name of an official for whom the committee proposes a promotion, an entry which is a legal requirement and relevant only in regard to the group of ex aequo, that is to say, the group of officials who have reached the promotion threshold but whose number exceeds the actual promotion possibilities, a situation necessitating a ranking in order of those concerned, based, inter alia, on seniority in grade and considerations of equal opportunities.

83 Nor does the list referred to in Article 10 of GIP 45 finalise the position of the officials, whether or not included in that list, in the context of the promotion exercise.

84 As has already been stated, whether as regards awards of PP or as regards differentiations within the group of ex aequo, the promotion committee merely puts forward proposals for the attention of the appointing authority, which alone has the power to decide, as is clear from Article 2 of GIP 43 and from Articles 10 and 14(4) of GIP 45. It must, in that regard, be pointed out and regretted that GIP 45 contains certain textual inaccuracies which could give rise to confusion as to the role of the promotion committee, as exemplified by the heading of Article 9, ‘Award of [PP] by Promotion Committees’, even though paragraph 3 of that article clearly states that these are individual ‘proposals’ for the award of PP submitted to the appointing authority which ‘takes the decision on the award of [PP]’. The same is true, as the Commission acknowledged at the hearing, of the wording of the second sentence of Article 12(3)(a) of GIP 45 relating to the award of PCTPP.

85 Article 10(3) of GIP 45 also makes clear that the appointing authority ‘decides’ which officials to promote to each grade on the basis of the ‘proposals’ of the promotion committees, which are not binding on the appointing authority, since the latter must take the decision, first, on the award of points, then on the ranking order of the officials in the group of ex aequo. The appointing authority can therefore either accept or reject the proposals of the promotion committees, a circumstance which, in the latter case, may result, for the official concerned, in a decrease or increase in the total number of points, with the consequence that he may then be above, at or below the promotion threshold.

86 The third and final stage of the promotion exercise is the adoption of the list of promoted officials. In the present case, the appointing authority adopted the list of officials promoted to Grade A4 on 20 November 2003 and it was published in Administrative Notices No 73‑2003 of 27 November 2003 and thus communicated to all the officials concerned, including the applicant. It is apparent from that list that the appointing authority approved all the promotion committee’s proposals both as regards the award of points and as regards the ranking order of the officials in the group of ex aequo.

3. Act adversely affecting the official

87 It follows from the foregoing that the promotion procedure culminates in the formal adoption of the list of promoted officials. That final decision identifies the officials promoted in the promotion exercise in question. Accordingly, it is on publication of that list that the officials who considered themselves eligible for promotion learn, in a manner which is final and not open to doubt, of the assessment of their respective merits and that their legal position is affected (Case T‑144/95 Michaël v Commission [1996] ECR‑SC I‑A‑529 and II‑1429, paragraph 30, and Joined Cases T‑188/01 to T‑190/01 Tsarnavas v Commission [2003] ECR‑SC I‑A‑95 and II‑495, paragraph 73).

88 It is important, however, to point out that the award of points in a given year has effects which are not limited and confined solely to the current promotion exercise. The new promotion system is based on taking into account accumulated merits, represented by points accumulated year after year. It follows that the points awarded in a given year may influence several promotion exercises.

89 In a similar context, the Court held, in Case T‑323/02 Breton v Court of Justice [2003] ECR‑SC I‑A‑325 and II‑1587, paragraphs 52 to 54, that the determination of the number of points for the purpose of a promotion is a self-contained act which produces binding legal effects capable of affecting the interests of the official by distinctly altering his legal position, even though it is not one of the stages of the promotion procedure.

90 Even though it concerns a promotion system providing for only one category of points, that case‑law is capable of being applied to the present case. It must therefore be held that the final act in which the promotion exercise culminates is of a complex nature, in that it comprises two separate decisions, namely the appointing authority’s decision adopting the list of promoted officials and the appointing authority’s decision fixing the total number of points, on which the first abovementioned decision is based. That decision of the appointing authority fixing the total number of points constitutes a self‑contained act against which, as such, in the light of the case‑law referred to in the previous paragraph, a complaint may be submitted and, where appropriate, an action may be brought before the Court under the system of remedies provided for by the Staff Regulations.

91 Consequently, an official who is included in the list of promoted officials may, if he disputes the total number of points which he has been awarded by the appointing authority and thus the balance kept for subsequent years, submit a complaint and, where appropriate, bring an action before the Court against the only act awarding points which entails binding and definitive legal effects in regard to him.

92 Similarly, it is conceivable that an official who is not promoted and who does not wish to challenge his non‑promotion in the exercise in question but only the refusal to award him a certain number of points, which could not enable him to reach the promotion threshold, may bring identical proceedings.

93 Moreover, an official who is not promoted on account of the allegedly unjustified award of an insufficient number of points, and who is therefore below the promotion threshold, may direct his action both against the appointing authority’s decision fixing the total number of points and against that adoption of the list of promoted officials. Even though those acts can in fact be differentiated legally and form the subject of separate claims for annulment, there is no doubt that they are in fact closely linked in a case of refusal of promotion, since such a refusal is necessarily and solely connected with the total number of points awarded to the official in question in relation to the promotion threshold, except where, having reached that threshold and being in the group of ex aequo, the official in question was not promoted, on the basis of secondary considerations connected with seniority in grade or equal opportunities.

94 In the latter situation, the official concerned may properly bring an action only against the appointing authority’s final decision adopting the list of promoted officials on account of errors of assessment made by the appointing authority in ranking in order the officials included in the group of ex aequo.

95 In this case, it must be borne in mind that the applicant, who was not promoted in the 2003 promotion exercise, submitted a complaint then brought an action before the Court of First Instance directed at, inter alia, the appointing authority’s decision awarding him a total of 20 points, the list of officials promoted to Grade A4 in the 2003 exercise and the appointing authority’s decision adopting that list in so far as it refuses promotion with regard to him.

96 The applicant also challenges, in the context of the present action, the validity of the individual decisions awarding him only one DGPP or refusing him the award of ADPP, and the validity of the decision not to include him in the merit list of Grade A5 officials published in Administrative Notices No 69‑2003 of 13 November 2003, and the list as such.

97 Those decisions constitute acts preparatory, prior and necessary to the final decision adopting the promotions and to the detachable and self‑contained decision which it involves, namely the fixing of the total number of points, annulment of which is sought by the applicant in the present proceedings. That is the case with the decision awarding DGPP, irrespective of whether or not an internal appeal was brought against it under Article 13 of GIP 45. Although, in the absence of such an appeal, the appointing authority cannot alter the number of DGPP by awarding APP, the decision awarding DGPP none the less remains a merely preparatory act, since the maximum amount of DGPP which could be awarded would not, in itself, enable the promotion threshold to be reached.

98 According to the case‑law, such acts may not be the subject of a separate action for annulment, although their lawfulness may always be disputed in the course of an action directed against the final decision (Case T‑134/02 Tejada Fernández v Commission [2003] ECR‑SC I‑A‑125 and II‑609, paragraph 18).

99 At the hearing, the applicant did, admittedly, declare that he was withdrawing his claims for annulment of the individual decisions awarding him only one DGPP or refusing him the award of ADPP, but on condition that he would legally have the opportunity to challenge the validity of the criteria for awarding those points in the course of the action directed against the decision fixing the total number of points.

100 The Court finds that such a withdrawal is inadmissible. Only a clear and unconditional discontinuance of heads of claim contained in the application can be accepted by the Court (order in Case T‑73/91 Gavilan v Parliament [1992] ECR II‑1555, paragraph 26).

101 Finally, it should be noted that the applicant seeks, in the present action, in so far as is necessary, annulment of the appointing authority’s decision of 15 June 2004 rejecting his complaint. In that regard, it must be recalled that, according to case‑law, the administrative complaint and its rejection, whether express or implied, by the appointing authority constitute an integral part of a complex procedure. Consequently, the action before the Court, even if formally directed against the rejection of the official’s complaint, has the effect of bringing before the Court the act adversely affecting the applicant against which the complaint was submitted (Case 293/87 Vainker v Parliament [1989] ECR 23, paragraph 8; Case C‑343/87 Culin v Commission [1990] ECR I‑225, paragraph 7; Case T‑36/94 Capitanio v Commission [1996] ECR‑SC I‑A‑449 and II‑1279, paragraph 33; and Case T‑375/02 Cavallaro v Commission [2005] ECR‑SC I‑A‑151 and II‑673, paragraph 59).

4. Time-limits for bringing actions

102 It must be recalled that the Staff Regulations make general provision in Articles 90 and 91 for the rights of action of members of the staff against administrative acts adversely affecting them. Those provisions make it clear that the system for the settlement of disputes thereby established is based in its entirety on the requirement that exercise of the right of action is permitted only subject to strict observance of the time-limits which have been laid down (Case 23/80 Grasselli v Commission [1980] ECR 3709, paragraph 25, and Case T‑87/91 Boessen v ESC [1993] ECR II‑235, paragraph 27).

103 Observance of the time-limits for bringing actions laid down in Articles 90 and 91 of the Staff Regulations implies that the official is explicitly and fully aware of the act adversely affecting him.

104 As regards the period of three months prescribed for the official to submit a complaint against an act adversely affecting him, Article 90(2) of the Staff Regulations provides that the period in question is to start to run:

‘– on the date of publication of the act if it is a measure of a general nature;

– on the date of notification of the decision to the person concerned, but in no case later than the date on which the latter received such notification, if the measure affects a specified person; if, however, an act affecting a specified person also contains a complaint against another person, the period shall start to run in respect of that other person on the date on which he receives notification thereof but in no case later than the date of publication …’.

105 Those provisions, which establish a link between the point from which the three‑month period starts to run and the legal nature of the act in question, must be interpreted, in this case, having regard to the specific nature of the promotion procedure, namely that the final act in which the promotion exercise culminates is of a complex nature, in the sense that it comprises two separate decisions, namely the appointing authority’s decision adopting the list of promoted officials and the appointing authority’s decision fixing the total number of points following that exercise, on which the first abovementioned decision is based. That decision of the appointing authority fixing the points following the promotion exercise constitutes a self‑contained act against which, as such, a complaint may be submitted and, where appropriate, an action may be brought before the Court under the system of remedies provided for by the Staff Regulations.

106 It follows from the abovementioned conclusion that three types of action for annulment may, at the very least, be contemplated following the promotion exercise:

– an action directed solely at the appointing authority’s decision fixing the total number of points, which may be brought by an official who has been promoted but disputes his balance of points or by a non‑promoted official who disagrees with the number of points awarded but does not challenge the absence of promotion;

– an action directed both against the appointing authority’s decision fixing the total number of points and against its decision adopting the list of promoted officials, which may be brought by an official not promoted because of the allegedly unjustified award of an insufficient number points and who is therefore below the promotion threshold or by an official who, while having a number of points equal to the promotion threshold, disputes both the insufficiency of that number and the choices made by the appointing authority from within the group of ex aequo on the basis of secondary considerations;

– an action directed solely at the decision by which the appointing authority adopts the list of promoted officials, which may be brought by a non‑promoted official whose number of points is equal to the promotion threshold and who criticises only the abovementioned choices.

107 While the appointing authority’s decision fixing the total number of points indisputably constitutes a measure affecting a specific individual, against which a complaint may be submitted within a period of three months starting to run on the date of notification of the decision to the addressee but in no case later than the date when the person concerned receives such notification, the appointing authority’s decision adopting the list of promoted officials constitutes a cluster of acts affecting specific individuals, which are addressed to the officials promoted to the grade concerned. However, that cluster of acts adversely affects the official whose name does not appear on the list in so far as it constitutes an implied refusal to promote him.

108 Accordingly, the appointing authority’s decision adopting the list of promoted officials must be regarded, so far as concerns the non‑promoted official, as an act affecting a specified person which is also capable of adversely affecting another person, as referred to at the end of the second indent of Article 90(2) of the Staff Regulations (see, to that effect, Joined Cases 122/79 and 123/79 Schiavo v Council [1981] ECR 473, paragraphs 21 to 23, and the order of 2 June 2005 in Case T‑326/03 Vounakis v Commission (not published in the ECR), paragraph 24). In that situation, under that same provision, the period starts to run, as regards the non‑promoted official, on the date when he receives notification of the act in question but in no case later than the date of its publication.

109 In view of the Commission’s obligation, laid down in Article 10 of GIP 45, to publish the list of promoted officials in the Administrative Notices, the submission by an official of a complaint, in the situation referred to in the second indent of paragraph 106, would be subject to two different points from which time starts to run in relation to the act in question. As regards the situation contemplated in the third indent of paragraph 106, it would normally be appropriate to take the date of publication as the point from which the period within which the complaint must be lodged starts to run.

110 Such a situation is not, however, compatible with the specific nature of the new promotion procedure, constituted by the existence of an act adversely affecting an official which is of a complex nature.

111 While the publication of the list of promoted officials, which contains only the names and positions of the persons concerned, gives all the officials concerned the opportunity to know where they stand in a certain and definitive manner as regards the outcome of the promotion exercise, it does not enable them to know the appointing authority’s decision fixing the total number of points.

112 Only by consulting his individual promotion file on the Commission’s intranet and the Sysper 2 site will a promoted or non‑promoted official be able to have access to his total number of points and their breakdown.

113 Thus, the official concerned will be able to ascertain whether he has or has not reached the promotion threshold and whether his refusal of promotion is explained by secondary considerations, such as those mentioned in Article 10 of GIP 45, and to find out, firstly, the outcome of any internal appeal against the number of DGPP granted, secondly, the number of any ADPP awarded and, finally, as regards the 2003 promotion exercise, the number of any PCTPP awarded in the course of implementing the transitional arrangements.

114 Those items of information are capable of guiding the official concerned in taking a decision as to whether to submit a complaint, since he is finally able to take the view, in the light of the number and breakdown of the points received, of the definitive promotion threshold adopted by the administration, and of the officials actually promoted in the exercise in question, that it is appropriate to initiate such a procedure or that it is appropriate to initiate it only against the appointing authority’s decision fixing the total number of points or that adopting the list of promoted officials.

115 As has been stated, even though they can indeed be differentiated legally and form the subject of separate claims for annulment as in this case, there is no doubt that the appointing authority’s decision fixing the total number of points and its decision adopting the list of promoted officials are, in actual fact, closely connected. However, publication of that list does not enable the officials concerned to have full knowledge of the act adversely affecting them, by nature complex, in which the promotion procedure culminates.

116 Moreover, the 2003 promotion exercise shows that a large number of days may elapse between the date of publication of the list of promoted officials and the date on which the official can usefully consult his promotion file on Sysper 2. That time‑lag is explained by the time taken by the competent department to update the site in question with the data on all the officials concerned by the promotion exercise, who numbered 14 000 in 2003. That length of time needed for updating is obviously not known precisely at the time of publication of the abovementioned list in the Administrative Notices, which, in 2003, do not contain any information in that regard.

117 Even if it is reasonable to assume that the official concerned, like the applicant in this case, will know his total number of points and their breakdown within the period of three months set running for the submission of a complaint, the time taken to update the individual promotion files on the Sysper 2 site will reduce accordingly that length of time made available to the official to prepare properly and submit his complaint, if the hypothesis is accepted that there are two points from which time starts to run where the person concerned contests both the appointing authority’s decision adopting the list of promoted officials and its decision fixing the total number of points.

118 In those circumstances, it must be held that, in the interests of legal certainty, equal treatment and sound administration, the point from which the three‑month period for the submission of a complaint directed both against the appointing authority’s decision adopting the list of promoted officials and against its decision fixing the total number of points starts to run must be fixed as the date when the official obtains effective access to his updated individual promotion file on the Sysper 2 site.

119 In that regard, it must be observed that, in its reply to the Court’s questions, the Commission made it clear that consultation of that site is ‘traced’ electronically for security reasons and that an ‘access protocol’ therefore enables the dates and originators of consultations to be recorded.

120 In addition, it is apparent from the file that the Commission published in Administrative Notices No 82‑2003 a summary note on the conduct of the 2003 promotion exercise which includes a point 4 worded as follows:

‘Update of files on Sysper 2

The proposals for the award of points issued by the promotion committees and approved by the appointing authority are now shown in each official’s file.

In accordance with Article 25 of the Staff Regulations, which provides that any decision relating to a specific individual must be communicated to the official concerned, each official is hereby invited to consult his file on Sysper 2.’

121 Although that process cannot be treated as actual notification within the meaning of Article 90(2) of the Staff Regulations, it must be held, in order to prevent any possibility of belated calling in question of the legal situations resulting from the promotion exercise, that consultation by the official of his individual promotion file on Sysper 2 must take place within a reasonable time from the publication of the summary note which now forms part of the Commission’s practice in relation to the promotion procedure.

122 In this case, it is common ground that the applicant learned of the fixing of his total number of points and their breakdown by consulting his updated individual promotion file on Sysper 2 on 16 December 2003, that is, before the date of publication of the summary note, and that he submitted his complaint, directed at both the appointing authority’s decision adopting the list of promoted officials and its decision fixing the total number of points, on 12 February 2004, thus observing the time‑limit laid down for that purpose.

123 That complaint was rejected by decision of the appointing authority of 15 June 2004 and communicated to the applicant on the following day. He brought the present action on 22 July 2004, that is, within the period of three months laid down in Article 91(3) of the Staff Regulations.

124 It follows from all the foregoing considerations that the present action must be declared admissible.

Substance

1. The pleas of illegality of certain provisions of GIP 43 and GIP 45

125 The applicant challenges, first, the legality of Article 2 of GIP 43 and Articles 3, 6, 7, 9, 10, 12 and 13 of GIP 45. He criticises, in essence, the non‑decisive nature of MP, the absence of any obligation to state reasons for the award of PP, the failure to have regard to the right to a fair hearing and the ineffectiveness of appeals under Article 13 of GIP 45. Secondly, the applicant raises a plea of illegality against Articles 6 and 7 of GIP 45, read in the light of Administrative Notices No 99-2002. He submits that those provisions limit the discretion of the directorates‑general in regard to the award of DGPP and that they prevent them from undertaking effective consideration of the comparative merits of officials. The applicant pleads, thirdly, illegality of Article 12 of GIP 45. Contrary to its wording, that article is not transitional in character, attaches predominant importance to seniority in grade, does not define the criteria for the award of PCTPP and entrusts the award of such points, wrongly, to the promotion committees. The applicant raises, fourthly, a plea of illegality against Article 9 of and points 1, 2, 3, 5 and 6 of Annex I to GIP 45. Those provisions result in an overvaluation of certain duties and in breach of equal treatment for officials. Fifthly, the applicant challenges the legality of Article 7(2) of GIP 45 which favours officials employed in small directorates‑general.

The first plea of illegality, directed against Article 2 of GIP 43 and Articles 3, 6, 7, 9, 10, 12 and 13 of GIP 45

126 The applicant raises a plea of illegality against Article 2 of GIP 43 and Articles 3, 6, 7, 9, 10, 12 and 13 of GIP 45 on the basis of Articles 25 and 26 of the Staff Regulations and of Article 45 of the latter, which guarantees equal treatment, promotion based on merit, reasonable career prospects and consideration of comparative merits. He also invokes the right to sound administration and to an impartial and fair procedure, as well as the right to be heard.

The allegedly non‑decisive nature of MP

– Arguments of the parties

127 The applicant asserts that the majority of officials in the Legal Service received between 13 and 16 MP. Promotions are therefore not determined by merits as evidenced by the reports referred to in Article 45 of the Staff Regulations. They result from the number of PP which may be awarded up to a maximum of 21 points. Those points are distributed irrespective of merits. It follows that there was a breach of the principle of equal treatment, of the principle of promotion based on merit, of the principle of career progression and of the principle of consideration of the comparative merits, which are guaranteed by Article 45 of the Staff Regulations.

128 The Commission replies that PP reward merits and that they improve its capacity to differentiate between officials on the basis of their abilities.

– Findings of the Court

129 The first subparagraph of Article 45(1) of the Staff Regulations provides that the appointing authority is to grant promotions after consideration of the comparative merits of the officials and of the periodic appraisal reports on them.

130 Merit is therefore the main criterion for the purposes of promotion, and other criteria, such as age, or seniority in grade or in the service, may be taken into account only as a subsidiary matter (Case 9/82 Ohrgaard and Delvaux v Commission [1983] ECR 2379, paragraph 19; Vainker v Parliament, cited in paragraph 101 above, paragraphs 16 and 17; Case T‑241/02 Callebaut v Commission [2003] ECR‑SC I‑A‑215 and II‑1061, paragraph 44; and Case T‑330/03 Liakoura v Council [2004] ECR‑SC I‑A‑191 and II‑859, paragraph 49). Moreover, the appointing authority must undertake the abovementioned comparative consideration with care and impartiality, in the interest of the service and in accordance with the principle of equal treatment for officials (Case T‑76/92 Tsirimokos v Parliament [1993] ECR II‑1281, paragraph 21; Case T‑78/92 Perakis v Parliament [1993] ECR II‑1299, paragraph 16; Case T‑240/01 Cougnon v Court of Justice [2003] ECR‑SC I‑A‑263 and II‑1283, paragraph 70; Case T‑216/03 Tenreiro v Commission [2004] ECR‑SC I‑A‑245 and II‑1087, paragraph 68; and Case T‑132/03 Casini v Commission [2005] ECR‑SC I‑A‑253 and II‑1169, paragraph 53).

131 Within the framework thus defined, the appointing authority has broad discretion. It may undertake consideration of the merits in the manner it considers most appropriate (Tsirimokos v Parliament, cited in paragraph 130 above, paragraph 16; Perakis v Parliament, cited in paragraph 130 above, paragraph 14; Cougnon v Court of Justice, cited in paragraph 130 above, paragraph 62; and Tenreiro v Commission, cited in paragraph 130 above, paragraph 68).

132 With effect from the 2003 promotion exercise, and in order to facilitate a more objective and easier comparison of the merits of the officials eligible for promotion than before, GIP 43 and GIP 45 introduced a promotion system based on quantification of merits, characterised by the annual award to officials of MP and PP.

133 It must be pointed out, first of all, that that new system strengthens the link, established by Article 45 of the Staff Regulations, between the periodic appraisal of officials and promotion. Accordingly, the effect of the third subparagraph of Article 2(1) of GIP 43 read in conjunction with Administrative Notices No 99‑2002 is that each official receives an overall mark between 0 and 20, which is then converted, in principle, into a number of MP which can be used for the purposes of promotion. In addition, Article 10(2) of GIP 45 provides that the promotion of an official is subject to the condition that he has totalled at least 10 MP in his last CDR. Moreover, under the third subparagraph of Article 6(4)(b) of GIP 45, officials who have been awarded a ‘poor’ or ‘insufficient’ marking in their CDR cannot be awarded PP.

134 It is important, next, to bear in mind that Article 3 of GIP 45, headed ‘Grounds for promotions’, states that ‘[t]he primary consideration is … the number of [MP] and [PP] that each official has accumulated over the previous year(s)’. It is the addition of MP and PP that will enable officials to reach or exceed, as the case may be, the promotion threshold. PP on their own are not decisive for the promotion of an official.

135 Finally, and above all, it must be pointed out that, as the second subparagraph of Article 2(1) of GIP 43 clearly states, ‘[b]oth [MP] and [PP] are intended to reward merit and the attribution of [PP] must always be justified by merit-based considerations’.

136 As regards PP, Article 6(4)(a) and (b) of GIP 45 provide for the award of up to a maximum of 10 DGPP. Under Article 6(3) of GIP 45, the purpose of those points is to reward officials who have exceeded their individual objectives, having demonstrated special efforts and achieved outstanding results, as recorded in their CDRs. In addition, as has already been stated (see paragraph 133 above), ‘poor’ or ‘insufficient’ markings in the CDR mean that the official concerned cannot be awarded PP.

137 Article 9 of and Annex I to GIP 45 provide for the award of one or two ADPP. Their purpose is to distinguish members of staff who have successfully carried out additional duties in the interest of the institution. Those duties consist of ‘trainer/public speaker’ activities or of various contributions to the organisation of competitions or to joint bodies. It should be noted that the CDRs include a section specifically designed to list the duties in question.

138 Consequently, in so far as DGPP and ADPP are also based on merit, their award as a supplement to MP does not infringe Article 45 of the Staff Regulations and the abovementioned principles.

139 Finally, in respect of the 2003 promotion exercise, since this was the first year in which the new promotion procedure was implemented, transitional arrangements were laid down in Article 12(3) of GIP 45 ‘in order to take proper account of merit over time’, arrangements which cover the award of TPP (see paragraph 58 above). The applicant has raised a plea of illegality aimed specifically at that provision, alleging, here again, infringement of Article 45 of the Staff Regulations. However, for the reasons set out in paragraph 191 et seq. below, this plea cannot be upheld.

140 In the light of the foregoing considerations, the present complaint must be rejected.

Failure to state reasons

– Arguments of the parties

141 The applicant maintains that, contrary to the second paragraph of Article 25 of the Staff Regulations, GIP 45 does not require reasons to be stated for the proposals and decisions concerning the award of DGPP, ADPP and TPP. He submits that that failure to state reasons is a source of arbitrariness.

142 The Commission observes that the obligation to state reasons is a general principle of Community law. It infers from this that the inclusion of a specific provision in GIP 45 would have been superfluous. Moreover, that principle requires reasons to be stated only for acts adversely affecting officials and GIP 45 comply with that obligation.

– Findings of the Court

143 The Court notes that the second paragraph of Article 25 of the Staff Regulations provides that any decision adversely affecting an official must state the grounds on which it is based. It therefore does not require reasons to be stated for proposals, recommendations or opinions which, in themselves, do not adversely affect officials.

144 Accordingly, as regards DGPP, Article 6(6) of GIP 45 does not infringe the second paragraph of Article 25 of the Staff Regulations by requiring the joint evaluation committees to justify their proposals only where they differ from those of the directorates‑general. Nor does Article 9 of GIP 45 infringe that provision by not requiring the promotion committees to state reasons for their recommendations regarding the award of ADPP. The same finding must apply to the proposals which the promotion committees make for the award of PCTPP on the basis of Article 12(3)(a) of GIP 45 and to Article 13(2) of GIP 45, under which the promotion committees are to deliver a reasoned opinion only where they propose the award of APP.

145 Moreover, decisions of the directorates‑general relating to the award of DGPP, DGTPP and SAPP, as is the case with decisions of the appointing authority relating to ADPP, PCTPP and APP, are not covered by the second paragraph of Article 25 of the Staff Regulations, since they are preparatory acts (see paragraph 90 et seq. above).

146 As has already been stated (see paragraph 90 et seq. above), the final act in which the promotion exercise culminates is of a complex nature, in that it comprises two separate decisions, namely the appointing authority’s decision adopting the list of promoted officials and its decision fixing the total number of points, on which the first abovementioned decision is based. The officials concerned are entitled, depending on their situation, to submit a complaint against either of those decisions or against them both.

147 In that context, it must be recalled that the obligation to state reasons is satisfied, in regard to promotion, when the appointing authority states reasons for its decision rejecting a complaint lodged under Article 90(2) of the Staff Regulations (see, to that effect, Case 188/73 Grassi v Council [1974] ECR 1099, paragraphs 11 to 13, and Case T‑218/02 Napoli Buzzanca v Commission [2005] ECR‑SC I‑A‑267 and II‑1221, paragraph 59).

148 It follows that this part of the plea must be rejected as unfounded.

Failure of GIP 45 to have regard to Article 26 of the Staff Regulations and to the right to be heard

– Arguments of the parties

149 The applicant claims that decisions awarding PP constitute the culmination of a procedure which may be based on material not included in an official’s file and which does not grant the person concerned the right to be heard before the administration adopts an act adversely affecting him. In particular, the appointing authority rules on internal appeals following a procedure which does not involve the participation of both parties. The award of PP therefore infringes the right to a fair hearing and Article 26(a) of the Staff Regulations.

150 The Commission denies that GIP 45 infringe the right to a fair hearing and the prohibition on taking into account material not included in the official’s personal file. GIP 45 do not permit account to be taken of such material. Moreover, officials have the opportunity to be heard during the promotion procedure. Article 13 of GIP 45 provides for an appeal against the decision awarding PP before the culmination of the promotion procedure. Moreover, a promotion procedure cannot be compared with proceedings ‘initiated against a person’. Consequently, the case‑law relating to the right to be heard before the adoption of an act adversely affecting an official is irrelevant.

– Findings of the Court

151 Article 26 of the Staff Regulations provides that the personal file of an official must contain ‘(a) all documents concerning his administrative status and all reports relating to his ability, efficiency and conduct’ and ‘(b) any comments by the official on such documents’. The same article states that ‘the documents referred to in subparagraph (a) may not be used or cited by the institution against an official unless they were communicated to him before they were filed’.

152 The purpose of Article 26 of the Staff Regulations is to guarantee an official’s right to a fair hearing by ensuring that decisions taken by the appointing authority affecting his administrative status and his career are not based on matters concerning his conduct which are not included in his personal file (Perakis v Parliament, cited in paragraph 130 above, paragraph 27; Case T‑496/93 Allo v Commission [1995] ECR‑SC I‑A‑127 and II‑405, paragraph 75; Case T‑302/02 Kenny v Court of Justice [2003] ECR‑SC I‑A‑235 and II‑