EN
ReportsofCases
ECLI:EU:T:2011 :702 1JUDGMENT O F THE GENERAL COURT (Appeal Ch amber)
30 November 2011
Case T-51/08 P
European Comm ission
v
Daniel Dittert
(Appeals — Civil service — Officials — Promotion — 2005 p romotion p rocedure — Priority points — 
Points no t allocated owing to a t echnical problem — A* P romotion C ommittee — Allocation o f a 
lower number of points than had b een proposed by the applicant’s superior — Failure to include the 
applicant in the list of officials eligible for promotion)
Application:Appeal brought against the judgment of the Civil Service Tribunal of the European Union 
(Second Ch amber) of 22 November 2007 i n Case F-109/06 D ittert v C omm ission ECR-SC 
I-A-1-383 a nd II-A-1-2131 , seeking to have th at judgment set aside.
Held: The appeal is dismissed. The Commission i s to bear its own costs and pay th e costs 
incurred by Mr Daniel Dittert.
Summ ary
1. Officials — Actions — Acts adversely affecting an official — Promotion system es tablished b y the 
Comm ission — Failure to allocate priority points — Act subject to appeal — Condition
(Staff Regulations of Officials, Arts 45, 90 a nd 91)
2. Officials — Promotion — Consideration of comparative merits
(Staff Regulations of Officials, Arts 38(f) and 45)
3. Officials — Promotion — Consideration of comparative merits
(Staff Regulations, Art. 45)
4. Officials — Promotion — Consideration of comparative merits
(Staff Regulations, Art. 45)
5. Officials — Promotion — Consideration of comparative merits
(Staff Regulations, Art. 45)
1. In the promotion s ystem i mplemented by the Commission, a d ecision no t to allocate priority points 
which is the result of an oversight, a nd no t of a d eliberate choice founded on a n assessment of the 
merits of th e official concerned, constitutes a b reach of procedure if, without th at procedural 
irregularity, the decision no t to allocate priority points could have h ad a di fferent content.
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COMM ISSIONvDITTERT
(see paras 59, 60)
2. It is apparent from A rticle 38(f) of the Staff Regulations that an official on s econdment retains his 
post, his right to ad vancement to a h igher step a nd his eligibility for promotion. It follows that those 
officials who pursue their career in th eir original dir ectorate-general must no t be treated di fferently 
from th e others in th e m atter of promotion a nd m ust benefit from th e same p ossibilities as their 
colleagues assigned to the same dir ectorate-general.
In th is connection, an institution c annot reasonably rely on th e alleged di fficulty of comparing th e 
respective me rits of seconded officials and non -seconded officials, since th e career developme nt 
reports of seconded officials ar e dra wn up by th eir original dir ectorate-general and no t by th eir 
superiors in th eir host institution. The comparison o f the me rits of seconded officials with th ose of 
non-seconded officials therefore remains possible, and indeed essential in order to ensure the equal 
treatment of all officials.
(see paras 62, 66, 67)
3. There is no thing to prevent a b reach of procedure which occurred during th e procedure for 
allocation o f priority points within a C ommission dir ectorate-general from b eing corrected by th e 
appointing authority at a l ater stage of the promotion p rocedure. However, it is necessary that that 
corrective intervention is conceived of and takes place in accordance with th e general characteristics 
of the promotion s ystem i mplemented by the Commission’s internal rules.
In th is respect, under th at system, eve ry official, whether seconded or no t, has th e right to two 
consecutive examinations of his me rits, each of which may in itself increase his chances of promotion: 
a comparative examination w ithin his dir ectorate-general, carried out by the Director General, which 
may result in th e award o f priority points, and th en a c omparative e xamination e xtended to all th e 
directorates-general, carried out by th e Promotion C ommittee a nd th e appointing authority, which 
may result in th e award o f addi tional priority points. The primary function o f that examination 
extended to all the dir ectorates-general is no t therefore to replace the examination c arried out by the 
various dir ectorates-general but to supplement it by the award, if appropriate, of addi tional priority 
points.
Furthermore, in a p romotion s ystem b ased on th e quantification o f me rits, characterised by the annual 
award t o officials of me rit points and addi tional priority points, the possibility the appointing authority 
has of making a c orrective intervention m ay on ly remedy a b reach of procedure committed, for 
example, in respect of an official, in th e consideration o f his comparative me rits at the level of his 
directorate-general, where it guarantees for the official concerned treatment which is as favourable as 
that which would have b een applied to him in th e absence of that breach. T hat principle is no t 
complied with in th e case where the appointing authority does no t consider itself in any way bound 
by th e formal assurances given by th e Director General concerned, as regards what his intentions 
would have b een with respect to th at official in th e absence of the breach of procedure committed, 
even th ough th e sole purpose of the Director General’s action w as to correct a b reach of procedure 
such as to compromise the validity of a d ecision fixing the total number of points, in accordance with 
the principle of sound ad ministration a nd the duty of the administration to have regard f or the welfare 
of officials.
(see paras 70-73,75)
See:
T-432/04 P arlante v C omm ission [2007 ] ECR-SC I-A-2-133 a nd II-A-2-921, paras 59, 64 a nd 68
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4. The rules for promotion i mplemented by th e Commission p rovide for th e participation o f the 
Directors General in th e promotion p rocedure by me ans of the award o f the priority points for their 
directorate-general. It is therefore proper for a D irector General who has been prevented, following a 
technical problem b eyond his control, from m aking a d ecision on th e file of one of his subordinates, 
to forward t o th e compe tent Promotion C ommittee a nd th e appointing authority th e relevant 
information r elating to the consideration o f the comparative me rits of the official concerned within his 
directorate-general. Far from p utting th at official in a m ore favourable position th an th at of other 
officials in th e same dir ectorate-general, such conduct is on th e contrary in accordance no t only with 
the principle of sound ad ministration a nd the duty to have regard f or the welfare of officials, but also 
with th e principle of equal treatment.
(see para. 81)
5. The promotion s ystem e stablished by th e Commission i s based on th e quantification o f me rits, 
characterised by the annual allocation t o officials of me rit points and addi tional priority points, so as 
to enable the comparison o f me rits to be made more easily and m ore objectively. In such a s ystem, 
the number of points accumulated by the officials eligible for promotion is decisive for the purposes 
of their promotion, in th e sense that those of them w ho exceed th e promotion th reshold will be, in 
principle, ipso facto promoted.
(see para. 93)
See:
Parlante v C omm ission, para. 59