JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

11 June 1998

Case T-167/97

Kyriakos Skrikas

v

European Parliament

‛Officials — Decision not to promote an official — Action for annulment — Admissibility — Act adversely affecting an official — Consideration of the comparative merits — Inter-institutional transfer — Article 45(1) of the Staff Regulations’

Full text in French II-857

Application for:

annulment of the European Parliament's decision not to promote the applicant to Grade C 3 in the course of the 1996 promotions procedure.

Decision:

Annulment.

Abstract of the Judgment

The applicant, a Grade C 4 official, was transferred from the Commission to the European Parliament on 1 January 1996.

The Advisory Committee on Promotions in Grade C included the applicant on the list of officials eligible for promotion to Grade C 3 in the course of the 1996 promotions procedure and, on the basis of his staff report, age, period of service in grade and period of service in category, awarded him 66.50 points.

Subsequently, although it decided to propose that Grade C 4 officials who had obtained 66.25 points or over be promoted, the committee did not propose that the applicant be promoted in the course of the 1996 promotions procedure.

On 12 July 1996 the Secretary-General of the Parliament, the appointing authority competent for promotions to Grade C 3, did not promote the applicant.

The applicant followed the pre-litigation procedure and then brought the present action.

Admissibility

An action brought by an official for the annulment of a decision not to include him on the list of officials promoted in the course of a particular promotions procedure is admissible. Thus in paragraph 29 of its judgment of 21 November 1996 in Case T-144/95 Michael v Commission concerning an action brought against a decision of the appointing authority drawing up a list of Commission officials promoted to Grade A 4, the Court initially pointed out, when considering the admissibility of the action, that the action sought the annulment of the list of officials who had been promoted only in so far as the applicant was not one of those listed and, consequently, was not promoted. The Court then observed that the pleas put forward by the applicant only called in question the alleged irregularities in the promotions procedure associated with the examination of his merits and did not call in question the assessment of the merits of the officials who had been promoted. The Court inferred that the applicant's application for annulment was not directed against the entire list but only against the decision not to include him on it (paragraph 22).

See: T-144/95 Michael v Commission [1996] ECRSC II-1429, para. 29

Where, as here, the applicant does not call in question the assessment of the merits of the officials who were promoted in the course of a specific promotions procedure, the decision to promote some officials on the list of those eligible for promotion and the decision not to promote the other officials on that list, including the applicant, constitute two aspects of the same act, which, as such, adversely affects the applicant, since its effects directly and immediately affect his legal position in a definitive manner. For that reason, neither the fact that the applicant did not challenge the decision to promote some of the officials on the list of those eligible for promotion nor the fact that he did not challenge both the decision to promote some officials on the list of those eligible for promotion and the decision not to promote the other officials on that list can render the present action inadmissible (paragraph 23).

In seeking the annulment of the decision not to promote him the applicant correctly calls in question the aspect of the act having adverse effect which directly concerns him. There is nothing in the present action to indicate that in doing so he is in reality seeking a decision to the effect that he must be promoted. On the contrary, it is apparent from the very words employed in the applicant's written submissions that the objective sought is not a decision to the effect that he must be promoted but merely the annulment of a decision of the appointing authority. The objection of inadmissibility must therefore be rejected (paragraphs 24 to 26).

Substance

The applicant complains, in particular, of a breach of Article 45 of the Staff Regulations of Officials of the European Communities (Staff Regulations) (paragraph 34).

It follows from Article 45(1) of the Staff Regulations that any official suitable for promotion is entitled to have his comparative merits and his reports considered by the appointing authority. Article 45(1) does not distinguish between the position of an official who has been transferred from one institution to another and that of other officials and does not lay down any condition in addition to completion of a minimum period in grade that an official who has been transferred from another institution must meet in order to be considered suitable for promotion within the meaning of that provision (paragraphs 37 and 38).

In the present case the applicant, who met the condition relating to minimum period in grade, was entitled to have his merits and his staff reports considered by the appointing authority in the context of the promotions procedure in issue (paragraphs 39 and 40).

It is apparent from the express decision rejecting his complaint, however, that the appointing authority, which took into consideration the fact that the date of the applicant's transfer coincided with the date of the effect of the promotion decisions for 1996, considered that ‘in the interests of the service and in conformity with the principle of equal treatment of officials, [his] merits should be assessed in the course of the next promotions procedure’ (paragraph 41).

The appointing authority therefore refused to cany out a comparative examination of the applicant's merits or the reports concerning him - even though the applicant was eligible for promotion to grade C 3 on 1 January 1996 - thus infringing one of his unchallengable rights under the promotion procedure (paragraph 42).

In that regard, the Parliament cannot rely either on the fact that the applicant had been transferred from another institution or on the particular features of that inter-institutional transfer to justify its decision. Any characteristics which may distinguish the promotions procedures within the various institutions of the Communities cannot have the consequence of imposing a further condition in addition to the single requirement of completion of a minimum period in grade laid down in Article 45(1) of the Staff Regulations, namely the requirement that the official concerned has carried out his duties during the reference period. Although it cannot be denied that a comparison of the merits and reports of an official who has just been transferred from another institution is less easy than a comparison confined to officials of the institution to which he has been transferred, such a comparison is not as such either impossible or discriminatory (paragraph 43).

It follows from all the foregoing that the promotions procedure in issue is tainted by an irregularity which amounts to a substantive defect and that the contested decision must therefore be annulled. Pursuant to Article 176 of the EC Treaty, it is for the Parliament to ensure that the Advisory Committee on Promotions in Grade C and the appointing authority reconsider the applicant's merits in relation to those of the officials promoted in the course of the 1996 promotions procedure and take the necessary measures (paragraphs 47 to 49).

See: Michael v Commission, cited above, para. 62

Operative part:

The Parliament's decision not to promote the applicant to Grade C 3 in the course of the 1996 promotions procedure is annulled.