JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Third Chamber)

11 December 2008

Case F-66/07

Charles Dubus and Jean Leveque

v

Commission of the European Communities

(Civil service – Officials – Promotion – 2006 promotion procedure – Ability to work in a third language)

Application: brought under Articles 236 EC and 152 EA, in which Mr Dubus and Mr Leveque seek annulment of the decision not to include Mr Dubus in the list of officials to be promoted to grade C*3 for the 2006 promotion procedure and the decision not to include Mr Leveque in the list of officials to be promoted to grade B*8 for the 2006 promotion procedure, as published in Administrative Notices No 55‑2006 of 17 November 2006, and an order for the Commission to compensate them for the damage caused by those decisions.

Held: The decision of the Commission not to include Mr Dubus’s name in the list of officials to be promoted to grade C*3 for the 2006 promotion procedure and the decision of the Commission not to include Mr Leveque’s name in the list of officials to be promoted to B*8 for the same procedure are annulled. The remainder of the forms of order sought are dismissed. The Commission is ordered to bear its own costs and to pay the costs of the applicants. The Council of the European Union, which intervened in support of the Commission, is to bear its own costs.

Summary

1.      Officials – Promotion – Conditions – Demonstration of ability to work in a third language

(Staff Regulations, Art. 45(2); Annexes III, Art. 7, and XIII, Art. 11)

2.      Officials – Actions – Unlimited jurisdiction

(Art. 233 EC; Staff Regulations, Arts 45(2) and 91(1))

1.      Article 45(2) of the Staff Regulations, in the version resulting from Regulation No 723/2004 amending the Staff Regulations of Officials and the Conditions of employment of other servants, which requires officials to demonstrate, before their first promotion, their ability to work in a third language, applies only from the entry into force of the joint implementing provisions adopted by the institutions by mutual agreement.

Since the legislature has, in any event, under Article 11 of Annex XIII to the Staff Regulations, precluded its application to promotions that take effect prior to 1 May 2006, Article 45(2) cannot be applied prior to the entry into force of those joint implementing provisions under the terms required by the legislature, that is to say, with a guarantee that it will be uniformly applied in the different institutions, and with a connection between this new requirement under the Staff Regulations and the opportunity for officials to have training in a third language. Thus an institution cannot apply that article of the Staff Regulations according to rules which it alone has laid down.

(see paras 29-33)

2.      It is true that the Civil Service Tribunal may, in certain circumstances, pursuant to Article 91(1) of the Staff Regulations, have unlimited jurisdiction to provide a complete solution to disputes of a financial nature brought before it, by ruling on the official’s rights and obligations. However, an applicant who has had a decision refusing to promote him annulled on the ground that the additional condition in order to be promoted, relating to ability to speak a third language, could not lawfully be required of him, cannot obtain damages before the court for the alleged resulting delay in his career, even if he has the requisite seniority and a greater number of points than that required to be promoted. It is possible that other considerations may prevent the applicant’s promotion retroactively, such as the fact that the number of officials eligible for promotion and having attained the promotion threshold exceeded the number of promotions possible under the budget. It is therefore the implementing measures which the administration is obliged to adopt pursuant to Article 233 EC in order to comply with the principle of res judicata that must restore the applicant’s rights, where appropriate by reinstating his career retroactively.

(see paras 46-49)

See:

C-135/06 P Weißenfels v Parliament [2007] ECR I‑12041, paras 64 to 68 

T-402/03 Katalagarianakis v Commission [2007] ECR-SC I-A-0000 and II‑A‑0000, paras 105 and 106