JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Third Chamber)

11 December 2008

Case F-58/07

Pascal Collotte

v

Commission of the European Communities

(Civil service – Officials – Promotion – 2006 promotion procedure – Ability to work in a third language)

Application: brought under Articles 236 EC and 152 EA, in which Mr Collotte seeks annulment of the decision not to include his name on the list of officials promoted to grade A*12 for the 2006 promotion procedure, as published in Administrative Notices No 55‑2006 of 17 November 2006, and an order for the Commission to pay him, as damages for pecuniary and non-pecuniary loss and in respect of the adverse effect on his career, the sum of EUR 25 000, subject to any increase or decrease in the course of the proceedings.

Held: The decision of the Commission not to include the applicant’s name on the list of officials promoted to grade A*12 for the 2006 promotion procedure is annulled. The remainder of the forms of order sought are dismissed. The Commission is ordered to bear its own costs and to pay the costs of the applicant. The Council of the European Union, which intervened in support of the Commission, is to bear its own costs.

Summary

1. Officials – Actions – Time-limits – Successive complaints

(Staff Regulations, Arts 90(2) and 91(3))

2. Officials – Promotion – Conditions – Demonstration of ability to work in a third language

(Staff Regulations, Art. 45(2); Annexes III, Art. 7, and XIII, Art. 11)

3. Officials – Actions – Unlimited jurisdiction

(Art. 233 EC; Staff Regulations, Arts 45(2) and 91(1))

1. In a situation where successive complaints have been lodged within the prescribed time-limit, the time-limit for replying to the complaint cannot start to run from the point at which the administration receives the first complaint without depriving the appointing authority of the period of four months which the Staff Regulations usually allow for issuing an explicit decision on any fresh arguments submitted by the official more recently, in some circumstances shortly before the time-limit for lodging a complaint expires. Similarly, where the appointing authority has replied by successive decisions to successive complaints, the official would not have the full period of three months which the Staff Regulations allows, from receipt of the reply to the complaint, to decide, in the light of that reply, whether or not to appeal, if the time-limit for appeal were to run from notification of the reply to the first complaint, whereas the applicant would not yet have the authority’s replies to all of his claims, particularly those raised for the first time in the final complaint.

Consequently, where successive complaints have been lodged, the date to be used for calculating the time-limit for appeal is the date of receipt of the decision by which the administration has adopted its position on all of the arguments presented by the applicant within the time-limit for lodging a complaint. If the applicant has lodged, within the prescribed time-limit, a second complaint with the same scope as the first, in particular in that it does not contain any new request, new claim or new evidence, the decision rejecting that second complaint must be regarded as a purely confirmatory measure confirming the rejection of the first complaint, so that it is from the latter rejection that the time-limit for appeal starts to run. However, where the second complaint contains new factors compared with the first complaint, the decision rejecting the second complaint must be regarded as a new decision adopted, following reconsideration of the decision rejecting the first complaint, in the light of the second complaint.

(see paras 31, 32)

See:

T-44/97 Ghignone and Others v Council [2000] ECR-SC I‑A‑223 and II‑1023, para. 41; T-66/05 Sack v Commission [2007] ECR-SC I-A-0000 and II-A-0000, para. 41, on appeal before the Court of Justice in Case C‑380/08 P

2. Article 45(2) of the Staff Regulations, in the version resulting from Regulation No 723/2004 amending the Staff Regulations of Officials and the Conditions of employment of other servants, which requires officials to demonstrate, before their first promotion, their ability to work in a third language, applies only from the entry into force of the joint implementing provisions adopted by the institutions by mutual agreement.

Since the legislature has, in any event, under Article 11 of Annex XIII to the Staff Regulations, precluded its application to promotions that take effect prior to 1 May 2006, Article 45(2) cannot be applied prior to the entry into force of those joint implementing provisions under the terms required by the legislature, that is to say, with a guarantee that it will be uniformly applied in the different institutions, and with a connection between this new requirement under the Staff Regulations and the opportunity for officials to have training in a third language. Thus an institution cannot apply that article of the Staff Regulations according to rules which it alone has laid down.

(see paras 50-54)

3. It is true that the Civil Service Tribunal may, in certain circumstances, pursuant to Article 91(1) of the Staff Regulations, have unlimited jurisdiction to provide a complete solution to disputes of a financial nature brought before it, by ruling on the official’s rights and obligations. However, an applicant who has had a decision refusing to promote him annulled on the ground that the additional condition in order to be promoted, relating to ability to speak a third language, could not lawfully be required of him, cannot obtain damages before the court for the alleged resulting delay in his career, even if he has the requisite seniority and a greater number of points than that required to be promoted. It is possible that other considerations may prevent the applicant’s promotion retroactively, such as the fact that the number of officials eligible for promotion and having attained the promotion threshold exceeded the number of promotions possible under the budget. It is therefore the implementing measures which the administration is obliged to adopt pursuant to Article 233 EC in order to comply with the principle of res judicata that must restore the applicant’s rights, where appropriate by reinstating his career retroactively.

(see paras 67-70)

See:

C-135/06 P Weißenfels v Parliament [2007] ECR I‑12041, paras 64 to 68

T-402/03 Katalagarianakis v Commission [2007] ECR-SC I-A-0000 and II‑A‑0000, paras 105 and 106