JUDGMENT OF THE COURT OF FIRST INSTANCE (First Chamber)

30 November 1995

Case T-507/93

Paulo Bianco

v

Court of Auditors of the European Communities

‛Officials — List of officials eligible for promotion — Transfer to another institution — Act adversely affecting an official — Legal interest in bringing proceedings — Claim for damages — Inadmissible’

Full lext in Portuguese II-797

Application for:

annulment of the promotions procedure of the Court of Auditors for 1993, inasmuch as the applicant was excluded therefrom;

compensation for the nonmaterial damage which the applicant considers he has suffered as a result of breaches of duty allegedly committed by the administration of the defendant institution while carrying out the promotion procedures for 1992 and 1993.

Decision:

Application dismissed.

Abstract of the Judgment

After his complaint against the promotions procedure initiated in the Court of Auditors for the year 1992 was rejected, the applicant brought an action for annulment of ‘the procedural act concerning the promotions given in 1992 by the Court of Auditors’ which the Court of First Instance dismissed by order of 20 July 1994 as manifestly inadmissible (T-45/93 Branco v Court of Auditors [1994] ECR-SC II-641). The appeal against that order was dismissed by order of the Court of Justice of 28 June 1995 as manifestly unfounded (C-258/94 P Branco v Court of Auditors [1995] ECR I-1609).

The context of this case is the 1993 promotion procedure. On 25 March 1993, a list of officials eligible for promotion was published, with the reference ‘Settled as at 1 April 1993’, since which date the applicant has been an official of the Commission and is therefore no longer a member of the Court of Auditors' staff. Because his name did not appear on the list, the applicant lodged a complaint in which he claimed to have suffered damage and requested to be included in the list of officials eligible for promotion in order to be promoted with effect from a date prior to 1 April.

When his complaint was expressly rejected, the applicant brought this action.

Claim for annulment

Admissibility

The Court points out that an act adversely affecting an official is one which produces binding legal consequences such as to affect, directly and immediately, the applicant's interests by significantly changing his legal situation. The Staff Regulations of Officials of the European Communities (‘the Staff Regulations’) do not confer an automatic right to promotion, even on officials who meet all the conditions for promotion (paragraph 28).

See: T-3/92 Latham v Commission [1994] ECRSC II-83. para. 50; T-558/93 Diichs v Commission Į1994] ECRSC II-837. para. 36

It is not disputed that the applicant was no longer a member of the staff of the Court of Auditors either at the date when the list of officials eligible for promotion was drawn up or at the time when the promotion decisions generally take effect (paragraphs 29, 30 and 32).

The Court concludes that in the circumstances there is no act affecting the applicant's legal situation and adversely affecting him. That conclusion is not challenged by the judgment in Marcato v Commission, quoted by the applicant in order to demonstrate his legal interest in bringing proceedings against the list of 25 March 1993. The decision given in that judgment, which assumes that the official could be promoted if he were on the disputed list, cannot be transposed into this case, since the applicant, having left the Court of Auditors, was no longer a member of that institution's staff and could not, therefore, have been promoted during the year in question by the appointing authority of the Court of Auditors, even if his name had been on the first list of officials eligible for promotion. The judgment in Valverde Mordí v Court of Justice, which the applicant has also relied on in order to demonstrate that he still had a legal interest in bringing proceedings despite being transferred in the meantime, is likewise irrelevant because in that case, unlike this one, the applicant's transfer did not take place until after the action had been brought before the Court (paragraphs 32 and 33).

See: T-82/89 Marcato v Commission [1990] ECR II-735; T-156/89 Valverde Mordt v Court of Justice {1991] ECK. II-407

The claim for annulment must therefore be dismissed as inadmissible without there being any need to give a decision on its merits (paragraph 34).

Claim for compensation

Admissibility

It is settled case-law that where an action seeks both annulment of an act and damages for the loss caused by that act, such a close link exists between the claim for annulment and the claim for damages that the inadmissibility of the claim for annulment entails the inadmissibility of the claim for damages (paragraph 42).

See: T-ll/90 H.S. v Council [1992] ECR II-1869, para. 25; T-505/93 Osório v Commission [1994] ECRSC II-581, para. 37; T-l 12/94 Moat v Commission [1995] ECRSC II-135, para. 30

In the present case, the inadmissibility of the claim for annulment, as found above, entails that of the claim for damages, in so far as the latter relates to acts occurring during the 1993 promotions procedure (paragraph 43).

Furthermore, since the conduct in question contains nothing in the nature of a decision, the Court points out that the administrative procedure must consist of two stages, a request and a complaint. It is only the express or implied rejection of a request for compensation which constitutes a decision adversely affecting the person concerned against which a complaint may be directed and it is only after there has been a decision expressly or impliedly rejecting that complaint that an action for damages may be brought before the Court (paragraph 44).

See: T-64/91 Marcato v Commission [1992] ECR II-243, paras 30 to 35

In the present case, the Court finds that the two letters sent by the applicant to the administration of the defendant institution contained no reference to ‘persistent conduct’ or of the damage arising therefrom. The pre-litigation procedure did not, consequently, follow the two stages provided for by Article 90 of the Staff Regulations. Accordingly, this claim is inadmissible also (paragraph 45).

The Court notes that the Mr Branco's application for the annulment of the 1992 promotions procedure has been dismissed as inadmissible. It follows that the application for damages, in so far as the alleged loss is linked to the conduct of the 1992 promotions procedure, must also be considered inadmissible (paragraph 46).

The Court finds that before bringing this case before the Court, the applicant never lodged a complaint alleging other damage suffered in 1992, and that the complaint which he did lodge concerning the 1992 promotions procedure cannot be construed as referring to any such damage. Consequently, the pre-litigation procedure did not take place as provided for in Articles 90 and 91 of the Staff Regulations (paragraph 47).

The applicant's claim for compensation is thus inadmissible in its entirety (paragraph 48).

The claim for an order that the 1993 promotions procedure should be carried out again

It is settled case-law that the Community judicature is not entitled to issue directions to a Community institution, if it is to avoid encroaching on the prerogatives of the appointing authority. The Court cannot therefore direct the Court of Auditors to cany out the 1993 promotions procedure afresh. That application must accordingly be dismissed as inadmissible (paragraph 49).

See: v-496/93 Allo v Commission [1995] ECRSC II-405, paras 31 and 32

Operative part:

The application is dismissed as inadmissible.