JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (Second Chamber)

22 November 2007

Case F-109/06

Daniel Dittert

v

Commission of the European Communities

(Civil service – Officials – Promotion – Priority points – Incomplete personal file – Omission of priority points from the computer promotion file known as ‘Sysper 2’ – Technical problem – A* Promotion Committee – Allocation of a lower number of points than had been proposed by the applicant’s superiors)

Application: brought under Articles 236 EC and 152 EA, in which Mr Dittert seeks annulment of the Commission’s decision to allocate to him insufficient priority points to allow his promotion in the 2005 exercise and of the decision not to promote him in that exercise, as well as of the appointing authority’s decision of 6 June 2006 rejecting his complaint.

Held: The decision of the Commission allocating to the applicant an insufficient number of points to allow his promotion in the 2005 exercise is annulled. The decision of the Commission fixing the list of officials promoted in the 2005 exercise, published in Administrative Notices No 85-2005 of 23 November 2005, is annulled in so far as it does not contain the applicant’s name. The Commission is to bear its own costs and to pay those of the applicant.

Summary

1. Officials – Actions – Act adversely affecting an official – Promotion system established by the Commission – Promotion exercise concluded by an act involving a decision fixing the list of officials promoted and a decision determining the points allocated to officials – Self-contained decisions against which separate actions or a single action may be brought

(Staff Regulations, Arts 45, 90 and 91)

2. Officials – Promotion – Consideration of comparative merits

(Staff Regulations, Art. 45)

1. Under the promotion system established by an internal regulation of the Commission, in which the promotion exercise is concluded by an act of a complex nature in that it comprises two distinct decisions by the appointing authority, the one establishing the list of officials promoted and the other determining the total number of points of officials on which the former decision is based, that decision determining the total number of points is a self-contained act which may, as such, be the subject-matter of a complaint and, where appropriate, a legal action in accordance with the remedies laid down by the Staff Regulations .

However, an official who is not promoted on account of the allegedly unjustified award of an insufficient number of points, and who is therefore below the promotion threshold, may direct his action both against the appointing authority’s decision fixing the total number of points and against that adopting the list of promoted officials. Even though those acts can in fact be differentiated legally and form the subject of separate claims for annulment, there is no doubt that they are in fact closely linked in a case of refusal of promotion, since such a refusal is necessarily and solely connected with the total number of points awarded to the official in question in relation to the promotion threshold.

(see paras 32, 33)

2. Under the promotion system established by the Commission, the omission, as a result of a technical problem, of an official’s name from the promotion list for his directorate-general, which is generated electronically and used by the director-general for allocating priority points to the directorate-general’s officials, constitutes a procedural defect impairing the proper conduct of a promotion exercise. However, if that procedural defect is to be capable of leading to the annulment of the decision, taken subsequently with the aim of rectifying the defect, to allocate the official concerned priority points, but not enough to ensure him promotion, and of the decision adopting the list of officials promoted, it must be proved that those decisions might have been materially different if that irregularity in the conduct of the procedure had not occurred.

That is true where no consideration was given to the case of the official in question when the director-general set out his formal intentions concerning the allocation of priority points for his directorate-general, which is a crucial stage in the promotion procedure, without that irregularity being properly corrected, even though it could have been, by the subsequent allocation of a sufficient number of priority points by the Promotion Committee. Such an irregularity is liable to harm the interests of the official concerned and render the promotion procedure flawed.

(see paras 91-95, 102)

See:

150/84 Bernardi v Parliament [1986] ECR 1375, para. 28

T-64/94 Benecos v Commission [1995] ECR-SC I‑A‑257 and II‑769, para. 80; T-212/97 Hubert v Commission [1999] ECR-SC I‑A‑41 and II‑185, para. 53; T-87/99 Hendrickx v Cedefop [2000] ECR‑SC I‑A‑147 and II‑679, para. 64