JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

21 November 1996

Case T-144/95

Christos Michael

v

Commission of the European Communities

‛Promotion — Guide to the promotion procedure — Officials in Category A — List of officials considered most deserving of promotion — List of officials promoted — Act adversely affecting an official’

Full text in French II-1429

Application for:

annulment of the implied decision rejecting the complaint submitted by the applicant on 7 December 1994 under Article 90(2) of the Staff Regulations in respect of a Commission decision listing the officials promoted to Grade A 4 in the 1994 promotions exercise.

Decision:

Annulment.

Abstract of the Judgment

The annual promotion of Commission officials follows the procedure laid down in the Guide to Promotion at the Commission of the European Communities (Promotions Guide), which comprises five stages. The first stage is publication by the administration of the list of officials eligible for promotion, namely those who fulfil the conditions laid down in Article 45 of the Staf f Regulations regarding length of service. This enables the officials concerned to point out any errors or omissions to the administration. In the second stage the Director General considers the comparative merits of officials in his service who are eligible for promotion and sends the Promotion Committee a list of those whom he recommends for promotion, indicating an order of priority. The third stage is conducted by the Promotion Committee, which draws up a draft list of the officials most deserving of promotion upon appraisal of the comparative merits of the officials eligible for promotion in accordance with a method appropriate to the grade in question. In the applicant's case the Promotion Committee's decision was based on the appraisal method appropriate to officials in Grade A 5 who are eligible for promotion to Grade A 4 (the Noël system). This consists in allocating a certain number of points to each such official by reference to various criteria. A maximum of 28 points may be awarded in respect of the staff report, which is one of those criteria. The fourth stage is endorsement of the resulting list by the appointing authority and its publication by the administration. The fifth and final stage is conducted by the Member of the Commission with responsibility for personnel, who adopts a promotion decision on the basis of the list of officials most deserving of promotion and subsequently signs the individual decisions.

The applicant is currently a Commission official in Directorate-General XX -Financial Control (DG XX). He was recruited in 1980 into the translation service of Directorate-General IX - Personnel and Administration (DG IX) as a translator in Grade LA 7, Step 3, and was later promoted to Grade LA 6 in 1983 and Grade LA 5 in 1985. In 1987 the applicant was seconded to DG XX. Since June 1988 his duties have been those attaching to a Category A post. On 1 August 1989, following his success in Interaal Competition COM/A/2/87, he was appointed to Grade A 5 in DG XX.

The applicant's staff report for the period 1991-1993 was notified to him on 1 July 1994.

On 6 July 1994, following publication of the list of promotions recommended in order of priority by the Director General — the second stage of the promotions procedure - the applicant sent a memorandum to Mr W., Secretary-General of the Commission and Chairman of the Promotion Committee, expressing his surprise at not being placed first on that list. He also told Mr W. that on 5 July 1994 he had submitted ‘a request under Article 90 of the Staff Regulations, in connection with a general review of the development of [his] career with the Commission, for an adjustment of [his] position’, and drew the Promotion Committee's attention to the ‘potentially damaging quasi-irregularity’ of the staff report notified to him on 1 July 1994.

On 12 July 1994 the Promotion Committee considered the comparative merits of the officials eligible for promotion, on the basis of a file containing the staff report for 1991-1993.

On 2 September 1994 the list of officials considered most deserving of promotion, drawn up by the Promotion Committee after considering the comparative merits of the officials eligible for promotion and endorsed by die appointing authority, was published in Administrative Notice No 858. The applicant's name was not on that list.

On 8 September 1994 the list of officials promoted to Grade A 4 was published in Administrative Notice No 859.

On 22 September 1994 the applicant wrote another memorandum to Mr W. concerning the ‘procedure for promotions from Grade A 5 to Grade A 4 for 1994’. The opening paragraph states: ‘[Fallowing publication of the list of officials in Grade A 5 considered most deserving of promotion to Grade A 4 in 1994 and the list of those promoted to Grade A 4 (Administrative Notices Nos 858 and 859), both of which omit my name, I am obliged hereby to draw your attention to my case which, because of its particular features, merits more detailed consideration’.

On 5 October 1994 the applicant appealed to the appeal assessor against the staff report notified to him on 1 July 1994.

By memorandum of 25 October 1994 in reply to the applicant's memorandum of 22 September 1994, Mr W. informed the applicant of the steps taken by the Promotion Committee in his regard.

On 7 December 1994 the applicant submitted a complaint under Article 90(2) of the Staff Regulations in respect of the list of officials promoted, published on 8 September 1994.

On 12 December 1994 the appeals assessor notified to the applicant an amended version of his staff report. The applicant accepted this, albeit subject to a number of reservations.

On 7 April 1995 the applicant's complaint was implicitly rejected. During April 1995, however, he received a draft reply to that complaint.

Admissibility

The subject-matter of the dispute

An action contesting the implied rejection of a complaint submitted under Article 90(2) of the Staff Regulations has the effect of bringing before the Court Üte decision adversely affecting the applicant against which die complaint was submitted (paragraph 27).

See: 33/91 Williams v Court of Auditors [1992] ECR II-2499, para. 23

Consequently, the present action is really directed against the decision listing the officials promoted to Grade A 4, which was published on 8 September 1994, since that is the act in respect of which the complaint was submitted. Nevertheless, the present action does not seek annulment of that list except in so far as the applicant was not one of those listed and, consequently, was not promoted (paragraphs 28 and 29).

Admissibility of the action

The promotions procedure culminates in the formal adoption of the list of officials promoted. That final decision names the officials promoted as a result of the promotions 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 are able to tell whether their legal position is affected (paragraph 30).

In principle, that decision constitutes an act adversely affecting the interests of an official, which may be challenged before the Court by those who consider their interests damaged thereby, in that they have not been promoted (paragraph 31).

See: 24/79 Oberthürv Commission [1980] ECR1743; T-557/93 Rasmussen v Commission [1995] ECRSC II-603

The fact that the final decision concerning promotions to Grade A 4 in 1994 is an act capable of adversely affecting an official is not nullified in the applicant's case merely because his name had previously been omitted from the list of officials considered most deserving of promotion (paragraph 32).

The Court's judgment in Marcato v Commission, which the Commission relies on in support of its objection as to admissibility, only concerned the question whether the list of officials considered most deserving of promotion constitutes in itself an act adversely affecting an official against which an action for annulment may be brought by an official whose name is omitted, even though the decision in question may in principle be regarded as a preparatory act too early to affect the legal position of officials eligible for promotion. In that judgment the Court did not therefore rule on the question whether it is true in all circumstances that the list of officials considered most deserving of promotion constitutes the act adversely affecting the officials whose names are omitted, against which they should immediately bring an action for annulment without awaiting the final decision not to promote them, which will not be made known until publication of the list of officials promoted (paragraph 33).

See: 346/87 Bossi v Commission [1989] ECR 303, paras 22 to 24; T-82/89 Marcato v Commission [1990] ECR II-735

In order to determine whether, in the particular circumstances of Marcato v Commission, the decision was an act adversely affecting the applicant, whose name was omitted, the Court primarily relied on the Commission's statement that, for officials in Categories B, C and D, it followed without exception the rule laid down in paragraph 8 of the Promotions Guide to the effect that only officials listed among those considered most deserving of promotion may be promoted during that promotions exercise. However, the judgment gives no indication whether the Commission followed that rule in the case of officials in Category A. In its reply to a written question from the Court, the Commission did not state clearly and unequivocally that it considered itself wholly bound by the list of officials in Grade A 5 found most deserving of promotion to Grade A 4 when considering promotions within that career bracket (paragraph 34).

See: Marcato v Commission, cited above, para. 49

In any event, even supposing that the appointing authority assumed such an obligation — both by virtue of the provisions of the Promotions Guide and of its decision-making policy based on those guidelines — it does not appear from the file that officials in Grade A 5 eligible for promotion were necessarily aware of that obligation or of the fact that the appointing authority's freedom of choice when taking the final decision listing the officials promoted to Grade A 4 was correspondingly fettered. Furthermore, the Commission itself acknowledged at the hearing, in response to a question from the Court, that the officials in Category A who were omitted from the list of officials considered most deserving of promotion to Grade A 4 could not be certain that they had lost the right to be promoted to Grade A 4 in that year. Consequently, they had no way of knowing that the list of officials considered most deserving of promotion really constituted an act adversely affecting their interests, which they had to challenge if they wished to bring proceedings before the Court to contest the final decision disclosing that they had not been promoted. For the rest, in its draft reply to the complaint, addressed to the applicant on 18 April 1995, the Commission did not maintain that the complaint was directed against an act which did not adversely affect the interests of an official for the purposes of Article 90(2) of the Staff Regulations (paragraph 35).

It follows from all the foregoing that, in the present case, the act adversely affecting the interests of the applicant is the decision listing the officials promoted to Grade A 4, in so far as the applicant's name was omitted (paragraph 36).

Substance

A staff report which is not final cannot be placed in an official's personal file. Consequently, in the present case, the Promotion Committee did not have the applicant's most recent staff report before it when considering the comparative merits of the officials eligible for promotion (paragraph 50).

See: 156/79 and 51/80 Gratreau v Commission [1980] ECR 3943, para. 18

Since the staff report constitutes an indispensable criterion of assessment each time an official's career is taken into consideration by the hierarchical authority, a promotions procedure is vitiated where the appointing authority was unable to consider the comparative merits of the candidates because the staff report of one of the officials concerned was missing (paragraph 51).

See: C-68/91 P Moritz v Commission [1992] ECR 1-6849, para. 16

However, the appointing authority is not under a duty to postpone its decision because the most recent report of one or other of the candidates is not yet final. In exceptional circumstances, the absence of the staff report may be compensated for by the existence of other information on an official's merits. It is for the defendant institution to prove by admissible evidence that it complied with the provisions of Article 45 of the Staff Regulations for the protection of officials eligible for promotion and that it considered the comparative merits. In that regard, the staff report at issue is not an acceptable source of other information (paragraph 52).

See: 263/81 List v Commission [1983] ECR 103, para. 27; Gratreau v Commission, cited above, para. 22; Moritz v Commission, cited above, paras 17 and 18; Rasmussen v Commission, cited above, para. 33

Since the Commission has not mentioned any source of information other than the staff report at issue, the promotions procedure followed in the 1994 promotions exercise is tainted by an irregularity in relation to the applicant (paragraph 53).

As a result of the Commission's seven-month delay - which has not been justified - in giving die applicant his staff report, the Director General concerned had to proceed without the applicant's most recent staff report when proposing promotions for 1994 (the second stage of the promotions procedure), a fact of which die applicant complained to Mr W. in his letter of 6 July 1994 and again in paragraph 10 of his application (paragraph 54).

In the light of the Commission's contention that, according to settled case-law, the fact that the personal file of one candidate is irregular or incomplete is not sufficient to render the promotions granted void, unless it is shown to have been capable of having a decisive effect on the promotions procedure, it is necessary to determine whether there is any other way in which the absence of the applicant's staff report could have influenced the outcome of the promotions procedure (paragraphs 55 and 56).

See: Gratreau v Commission, cited above

When assessing the comparative merits of officials eligible for promotion prior to listing those recommended for promotion in order of priority, the Director General must base his findings on the staff reports. In the present case the applicant's most recent staff report was missing when the Director General drew up his list. This may have influenced his assessment since, as a result, he was unable to compare the staff reports of the various officials in his Directorate-General who were eligible for promotion. However, it is the Director General's duty to undertake such a comparison when drawing up the list of officials recommended in order of priority, which the Promotion Committee subsequently takes as the starting-point for its own assessment. Neither the appointing authority, at the time of rejecting the complaint or in its capacity as defendant before the Court, nor the Court may speculate as to the probable outcome of such a comparison if the Director General had been in a position to undertake it (paragraph 57).

Furthermore, in its reply to a question from the Court, the Commission stated that officials eligible for promotion are awarded points under the Noël system by reference to the order of priority reflected in the Director General's recommendations (paragraph 58).

It is clear from the repon submitted by the Commission that the applicant received no points for being placed fifth on the Director General's list, whereas the four officals whose names preceded his were on that basis allocated, respectively, 70, 45, 45 and 20 points (paragraph 59).

However, if those points are deducted from the total number of points awarded under the Noël system, three of those four officials would have obtained a lower total score than the applicant (paragraph 60).

Consequently, the fact that the staff report was missing may have influenced the promotions procedure to the detriment of the applicant (paragraph 61).

The procedure for promotion to Grade A 4 which the Commission followed for the 1994 promotions exercise is tainted by an irregularity which amounts to a substantive defect in that the consideration of the comparative merits of the applicant and the other officials eligible for promotion fell short of the requirements of Article 45 of the Staff Regulations (paragraph 62).

The claim that the list of officials promoted should be annulled must be understood as seeking annulment of that list solely in so far as the applicant's name was omitted. In any event, annulment of the entire list would constitute an excessive penalty for the irregularity committed (paragraph 64).

See: Oberthiirv Commission, cited above, para. 13; Rasmussenv Commission, cited above, para. 52

It is solely the Commission's decision not to promote the applicant to Grade A 4 in the 1994 promotions exercise which must be annulled (paragraph 66).

Under Article 176 of the EC Treaty, it will be for the Commission to ensure that the Promotion Committee and the appointing authority reappraise the applicant's merits in relation to those of the officials promoted in the 1994 promotions exercise, on the basis of the applicant's staff report drawn up on 12 December 1994 (paragraph 67).

Operative part:

The Commission's decision is annulled.