JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

6 June 1996

Case T-391/94

Jean Baiwir

v

Commission of the European Communities

‛Officials — Act adversely affecting an official — Time-limits laid down by the Staff Regulations — Inadmissibility — Action for damages’

Full text in French II-787

Application for:

annulment of the memorandum of 12 February 1993 from the head of Unit IX. A.6 of the Commission classifying the applicant as a cross-category official for the 1993 promotion procedure, for an order that the Commission reconstruct his career as an official in Step 2 of Grade B 4 with retroactive effect from 1 January 1993 and for compensation for nonmaterial damage suffered.

Decision:

Application dismissed.

Abstract of the Judgment

The applicant was appointed on 1 May 1988 as a Commission official in Grade C 5 and, after taking part in an open competition, was appointed on 27 February 1992 as an official in Step 1 of Grade II 5 with effect from 1 March 1992.

On 9 July 1992, the Commission adopted a ‘New Method of Calculating Career Profiles - Categories B, C and D - Administrative Budget’. Under paragraph 1(b) ofthat decision, a set of points is awarded for age, on the one hand, to single-category officials in the same grade eligible for promotion, who have spent their entire career in the same category, B, C or D, and, on the other hand, to cross-category officials in the same grade eligible for promotion, who have spent part of their career in a lower category. That distinction was introduced to allow for the different age profiles of the two groups.

On 12 February 1993, the head of Unit 6 (B, C and D Staff) of Directorate A (Personnel) of Directorate-General IX (Personnel and Administration) (Unit IX. A. 6) of the Commission sent a memorandum to the applicant, informing him that a new method of calculating career profiles was coming into force for the 1993 promotion procedure and that it would be applied to him. The memorandum stated that the applicant was classified as a cross-category official for calculating the points for age.

On 22 November 1993, the applicant lodged with the Commission a request under Article 90(1) of the Staff Regulations seeking retroactive amendment of his career profile and, if on reexamination he remained a cross-category official for career profile purposes, a detailed reply to that effect. That request was headed ‘request for annulment of the career profile of 12 February 1993’.

On 18 May 1994, the applicant lodged a complaint under Article 90(2) of the Staff Regulations against the implied rejection of his request pursuant to Article 90(1) thereof. The Commission rejected that complaint by a decision of 12 September 1994.

The claim for annulment

Admissibility

Although the applicant's request was lodged under Article 90(1) of the Staff Regulations, it in fact seeks annulment or amendment of his career profile as set out in the memorandum of 12 February 1993. Article 90(1) of the Staff Regulations, like Article 175 of the EC Treaty, concerns circumstances where there is no decision or measure and ‘not the adoption of a measure different from that desired or considered necessary by the persons concerned’. The applicant's request must therefore be treated as a complaint lodged under Article 90(2) of the Staff Regulations for annulment of the memorandum of 12 February 1993 (paragraph 33).

See: T-126/95 Dumez v Commission [1995] ECR II-2863. para. 43

The existence of an act adversely affecting the official concerned within the meaning of Articles 90(2) and 91(1) of the Staff Regulations is an essential condition for the admissibility of any action brought by officials against the institution by which they are employed (paragraph 34).

See: T-20/92 Moat v Commission [1993] ECR II-799, para. 39

The memorandum of 12 February 1993 does not affect the applicant's interests immediately and directly by bringing about a distinct change in his legal position, since applying the new method set out therein to calculate his career profile does not result in the loss of his prospects of promotion. The final decision on promotion is based on an assessment of officials' merits in accordance with Article 45 of the Staff Regulations. Career profiles are one of the factors that the appointing authority takes into account but can never take precedence over the merits of candidates. The memorandum of 12 February 1993 thus amounts to a preparatory measure which, as such, cannot affect the applicant's position under the Staff Regulations or, therefore, adversely affect him (paragraph 35).

See: 293/87 Vainker v Parliament [1989] ECR 23, para. 16; T-89/91, T-21/92 and T-89/92 Xv Commission [1993] ECR II-1235, para. 34

Furthermore, failure to respond to a request lodged under Article 90(1) of the Staff Regulations against a preparatory measure cannot form the basis of a complaint under Article 90(2) (paragraph 38).

If the measure to which an official objects is a preparatory measure and, as such, cannot form the subject-matter of a complaint, rejection of a request under Article 90(1) of the Staff Regulations cannot transform that measure into one adversely affecting the official concerned. Equally, to treat rejection of the request as an act adversely affecting the official, against which a complaint could be lodged under Article 90(2) of the Staff Regulations, would amount to sanctioning an abuse of process. It would be possible, where the contested measure is preparatory, to lodge a request under Article 90(1) and then to lodge a complaint under Article 90(2) against the express or implied rejection ofthat request (paragraph 39).

The claim for compensation

When there is no close link between the claim for annulment and the claim for compensation, the admissibility of the latter must be determined independently from that of the former. In those circumstances, the admissibility of the claim for compensation is conditional upon the prior administrative procedure following the proper course, as laid down in Articles 90 and 91 of the Staff Regulations. Where, as in this case, the claim for compensation is for reparation of damage allegedly caused by conduct which, having no legal effect, cannot be termed an act having an adverse effect on the official concerned, the administrative procedure must commence, pursuant to Article 90(1) of the Staff Regulations, with the submission of a request by the person concerned to the appointing authority for such damage to be made good. It is only against the decision rejecting such a request that the person concerned may submit a complaint to the administration, pursuant to Article 90(2) (paragraph 46).

See: T-5/90 Marcato v Commission [ 1991] ECR II-731, paras 49 and 50

In this case, the applicant did not submit to the appointing authority a request for the damage he claims to have suffered to be made good (paragraph 47).

Operative part:

The application is dismissed as inadmissible.