JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Third Chamber)

11 December 2008

Case F-93/07

Beatriz Acosta Iborra and Others

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 Ms Acosta Iborra and nine other Commission officials seek, in particular, annulment of the decisions not to promote them for the 2006 promotion procedure.

Held: The decisions not to promote the applicant and nine other Commission officials for the 2006 promotion procedure is annulled. 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.      Procedure – Application initiating proceedings – Formal requirements – Contested act not produced

(Statute of the Court of Justice, Art. 21; Rules of Procedure of the Court of First Instance, Art. 44(3) to (6))

2.      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)

1.      Where an applicant has failed to attach the contested decision to his application and the Registrar, contrary to Article 44(6) of the Rules of Procedure of the Court of First Instance, has not invited him to rectify that omission, the Community judicature cannot deny him the opportunity to do so by declaring his action inadmissible for failure to comply with the conditions of Article 44(4) of those Rules of Procedure.

(see para. 18)

See:

F-48/06 Avanzata and Others v Commission [2008] ECR-SC I‑A‑0000 and II‑A‑0000, paras 49 and 50

2.      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 33-36)