JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

9 February 1994

Case T-3/92

Edward Patrick Latham

v

Commission of the European Communities

‛Officials — Transfer decision — Refusal to promote an official’

Full text in English II-83

Application for:

— annulment of the Commission's decision of 25 April 1991 to transfer the applicant to the post of Adviser in the Consumer Policy Service inasmuch as the applicant was not promoted to Grade A 3;

— an award of damages.

Decision:

Application dismissed.

Abstract of the Judgment

Following the publication of a vacancy notice, the applicant, an official in Grade A 4 since 1974, submitted his candidature for the post of Adviser to the Director-General of the Consumer Policy Service (‘CPS’). In the standard form used for this purpose, headed ‘Candidature pour une mutation/promotion’, the applicant crossed out the word ‘mutation’.

By decision of the appointing authority of 25 April 1991 the applicant was transferred to the post of Adviser to the Director-General of the CPS, maintaining his classification in Grade A 4.

By a complaint lodged on 20 June 1991 pursuant to Article 90 of the Staff Regulations the applicant claimed that he ought to have been appointed at Grade A 3. By decision of 3 December 1991 the Commission rejected that complaint.

Admissibility

The claim for the annulment of the decision setting the level of the post of Adviser at Grade A 51 A 4 and of the decision not to promote the applicant to Grade A 3

(a) The existence of an act adversely affecting the applicant

The Court points out first of all that the opinions given by the Advisory Committee on Appointments, which has merely advisory powers regarding both the appraisal of candidates' abilities and the level of the post to be filled, cannot, as preparatory decisions, be the subject of an action (paragraph 20).

See: 27/90 Latham v Commission [1991] ECR II-35, paras 26 and 27

The Court finds that the only act capable of affecting the applicant's position under the Staff Regulations is the decision to transfer the applicant to the post in question. The two claims for annulment must be understood as seeking the annulment of that decision in so far as it set the grade of the post to be filled at Grade A 5/A 4 and at the same time rejected the applicant's request to be promoted to Grade A 3. The decision of which the applicant seeks the annulment therefore constitutes an act adversely affecting him (paragraphs 21 and 22).

(b) The applicant's interest in bringing proceedings

According to the Court, although the applicant has been in retirement since November 1991, he maintains his interest in bringing proceedings in so far as he is seeking not only the annulment of an allegedly unlawful decision but also compensation for the moral and material damage which he considers he has suffered as a result of that decision (paragraph 23).

See: T-82/89 Marcato v Commission [1990] ECR II-735, para. 54

Consequently, the Court considers that the claim for the annulment of the decision of 25 April 1991 is admissible.

The claim for the applicant's promotion to Grade A 3 to be made retroactive from 16 April 1991

The Community judicature has no jurisdiction to issue injunctions to the administration when carrying out the review of legality entrusted to it by Article 91 of the Staff Regulations and obligations incumbent on the administration can derive only from the annulment, under Article 176 of the EC Treaty, of a measure adopted by it (paragraph 27).

See: 100/88 Oyowe and Traore v Commission [1989] ECR 4285, para. 19; C-137/88 Schneemaim and Others v Commission[1990] ECR 369, para. 16; T-20/92 Moat v Conwiission [1993] ECR II-799, para. 36

The Court therefore finds that the claim must be dismissed as inadmissible.

The claim for an order requiring the Commission to respond to the applicant's complaint

The Court finds that, since the Commission dismissed his complaint by decision of 3 December 1991, the applicant's claim has become devoid of purpose (paragraphs 31 and 32).

The claim for damages

(a) The claim for compensation of the damage allegedly suffered by the applicant as a result of his not having been promoted to Grade A 3

It is only where a direct link exists between an action for annulment and an action for damages that the latter action is admissible as being ancillary to the action for annulment without it having to be preceded by a request made to the appointing authority for compensation for the damage allegedly suffered and by a complaint challenging the correctness of the implied or express rejection of the applicant's request (paragraph 37).

See: T-27/90 Latham v Commission [1991] ECR II-35, para. 38; T-5/90 Marcato v Commission [1991] ECR II-731, para. 49; T-53/92 Piette de Stachelski v Commission [1993] ECR II-35, para. 17

Where a close link exists between a claim for annulment and an action for damages, the inadmissibility of the claim for annulment entails the inadmissibility of the claim for damages (paragraph 37).

See: 4/67 Collignon v Commission [1967] ECR 469; 346/87 Bossi v Commission [1989] ECR 303, para. 31: T-20/92 Moat v Commission [1993] ECR II-799, para. 46

The Court considers that since the claim for damages is closely linked to the claim for the annulment of the decision of 25 April 1991, that claim being admissible, the claim for damages must also be admissible (paragraph 38).

(b) The claims for compensation for the damage allegedly caused to the applicant as a result of the breach of the procedure relating to his application for promotion and as a result of the non-rectification of his staff report

The Court considers that since these claims are not closely linked to the claim for the annulment of the decision of 25 April 1991 and since no procedure prior to the commencement of legal proceedings took place in accordance with Article 90 of the Staff Regulations, the claims are inadmissible (paragraph 39).

Substance

The claim for the annulment of the decision of 25 April 1991

It follows from Article 5(1) and (4) of the Staff Regulations and from the general principles governing the public service that, although the Commission has a wide discretion in organizing its departments and assessing posts, it is the importance of the duties and responsibilities assigned to a particular post which must be the principal criterion by virtue of which it is appropriate to determine the level of a post which is to be filled (paragraph 45).

See: 2/80 Dautzenberg v Court of Justice [1900] ECR 3107, para. 9

The Court's review must be limited in the present case to examination of the question whether, having regard to the considerations which may have Influenced the administration in making its assessment, the administration remained within reasonable bounds and did not use its power in a manifestly incorrect way (paragraph 46).

See: 324/85 Bouteiller v Commission [1987] BCR 529. para. 6; 233/85 Bonino v Commission [1987] BCR 739. para. 5

See: 324/85 Bouteiller v Commission [1987] ECR 529, para. 6; 233/85 Bonino v Commission [1987] ECR 739, para. 5

(a) The first plea alleging a misuse of power

The Court considers that the applicant has not produced any specific evidence to show that the appointing authority's decision setting the grade of the post was taken for purposes other than those envisaged by the relevant rules (paragraph 50).

(b) The second plea alleging procedural irregularities

(i) Failure to distribute the vacancy notice in a proper manner

The Court considers that, even if the vacancy notice was not distributed in a proper manner, as the applicant contends, that irregularity could only have been favourable to him. The omission of which the applicant complains was not therefore capable of harming his interests. Since the applicant is not entitled to act in the interests of the law, that argument must be dismissed as inadmissible (paragraph 53).

See: 85/82 Schloh v Council [1983] ECR 2105, para. 14

(ii) Non-rectification of the applicant's staff report for the period 1981 to 1983

The Court considers that the non-rectification of the staff report in question was not a factor capable of influencing the decision taken by the appointing authority in 1991 independently of the staff reports of the candidates for the post concerned (paragraph 55).

(c) The third plea alleging the infringement of the principle of the protection of legitimate expectations

The right to claim protection of legitimate expectations extends to any individual who is in a situation in which it appears that the Community administration has led him to entertain reasonable expectations. However, an official may not plead a breach of the principle of the protection of legitimate expectations unless the administration has given him precise assurances (paragraph 58).

See: 289/81 Mavridis v Parliament [ 1983] ECR 1731, para. 21 ; T-123/89 Chomel v Commission [1990] ECR II-131, paras 25 and 26

In the papers before it the Court finds no evidence of precise assurances given by the appointing authority about the applicant's possible promotion to Grade A 3 so that there can be no question of the breach of the principle of legitimate expectations (paragraph 59).

The claim for damages

The Community can only be held liable to pay damages if a number of conditions are satisfied as regards the illegality of the allegedly wrongful act committed by the institutions, the actual harm suffered and the existence of a causal link between the act and the damage alleged to have been suffered (paragraph 63).

See: 111/86 Delauche v Commission [1987] ECR 5345, para. 30; T-165/89 Plug v Commission [1992] ECR II-367, para. 115

The Court finds that the applicant has not adduced any evidence of irregularities or unlawful acts committed by the Commission when it set the grade of the post of Adviser to the Director-General and that the fact that he was not promoted to Grade A 3 was directly due to die setting of the grade for the post concerned. Since the lawful conduct alleged by the applicant has not been established, the claim for damages for the loss which he claims to have suffered through not being promoted to Grade A 3 must be dismissed (paragraph 65 and 66).

Operative part:

The application is dismissed.

Official — Transfer decision — Refusal to promote an official (JUDGMENT OF 9. 2. 1994 — CASE T-3/92 - LATHAM v COMMISSION) II-83