JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (Third Chamber)

31 January 2008

Case F-97/05

José Luis Buendía Sierra

v

Commission of the European Communities

(Civil service – Officials – Promotion – 2004 promotion procedure – Award of priority points – Temporal application of provisions of the new Staff Regulations)

Application: brought under Articles 236 EC and 152 EA, in which Mr Buendía Sierra seeks in particular annulment of the Commission’s decision fixing the total number of points awarded to him in the 2004 promotion procedure, and of the decision not to include his name in the list of officials promoted to Grade A 4 in that procedure.

Held: The decision fixing the applicant’s total number of points at the end of the 2004 promotion procedure and the decision not to promote him in that procedure are annulled. The remainder of the claims in the action are dismissed. The Commission is ordered to pay all the costs.

Summary

1. Officials – Promotion – Applicable rules – 2004 promotion procedure

(Staff Regulations, Annex XIII, Art. 6, second para.)

2. Officials – Promotion – Applicable rules – 2004 promotion procedure

(Staff Regulations, Art. 45; Council Regulation No 723/2004, Art. 2)

3. Officials – Promotion – Consideration of comparative merits

(Staff Regulations, Art. 45)

4. Officials – Actions – Interest in bringing proceedings

(Staff Regulations, Art. 45)

1. The second paragraph of Article 6 of Annex XIII to the Staff Regulations is intended to determine not the version of the Staff Regulations applicable to the 2004 promotion procedure, but the version determining the effects of the promotion decisions taken at the end of that procedure. The purpose of that provision is to ensure that officials whose promotion was decided at the end of 2004 but took effect on a date prior to 1 May 2004 would derive the same career benefits from their promotion, particularly in advancement in grade, as would have resulted from a promotion decision taken before the version of the Staff Regulations amended by Regulation No 723/2004 came into force.

(see para. 53)

2. In the absence of provisions derogating from the principle that the new rules contained in Regulation No 723/2004, amending with effect from 1 May 2004 the Staff Regulations of Officials and the Conditions of Employment of Other Servants, should be directly applicable, Article 45 of the Staff Regulations, as amended by that regulation, was directly applicable as soon as the regulation came into force. Consequently, the Commission could not lawfully apply, in November 2004, provisions of Article 45 of the earlier Staff Regulations which had been abolished by the regulation, in order to take the decision fixing an official’s total number of merit points at the end of the 2004 promotion procedure and the decision not to promote him in that procedure.

(see paras 58-59)

3. A decision by the Commission fixing an official’s total number of merit points in the 2004 promotion procedure is unlawful if the two additional criteria laid down in the version of Article 45 of the Staff Regulations in force on 1 May 2004 were not taken into consideration, namely the official’s use of languages in the execution of his duties other than the language for which he produced evidence of thorough knowledge when he was appointed and, where appropriate, the level of responsibilities he exercises.

The unlawfulness of that decision also renders unlawful the decision not to promote the official, if a fresh comparative consideration of the candidatures, taking account of those two criteria, could result in a substantially different assessment of the officials’ merits by the hierarchy and might possibly enable the official in question to reach the promotion threshold set for that procedure.

(see paras 61, 63, 65-67)

4. An action is admissible only if the applicant has a personal interest in having the contested measure annulled. An official may only lawfully regard himself as injured by a list of promoted officials and thus have a personal interest in seeking its annulment if his name is not included in it, where those promotions do not prevent him from himself being promoted in the procedure in question following a fresh consideration of the candidates’ comparative merits in accordance with the provisions of Article 45 of the Staff Regulations. Claims seeking the annulment of the list in its entirety are thus inadmissible.

(see paras 71-73)

See:

T-144/95 Michaël v Commission [1996] ECR-SC I‑A‑529 and II‑1429, para. 31; T-310/00 MCI v Commission [2004] ECR II‑3253, para. 44