JUDGMENT OF THE CIVIL SERVICE TRIBUNAL
(Third Chamber)

28 September 2011

Case F‑26/10

AZ

v

European Commission

(Civil service – Promotion – 2009 promotion exercise – Ability to work in a third language – Existence of a disciplinary procedure – Exclusion from the promotion exercise)

Application:      brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which AZ seeks annulment of the Commission’s decision to exclude him from the 2009 promotion exercise.

Held:      The action is dismissed. The applicant is ordered to pay the entirety of the costs.

Summary

1.      Officials – Actions – Prior administrative complaint – Rejection decision – Substitution of grounds for the disputed measure

(Staff Regulations, Arts 90 and 91)

2.      Officials – Principles – Right to a fair hearing

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

(Staff Regulations, Art. 45(2))

4.      Officials – Actions – Action for damages – Pleas in law – Unlawfulness of a decision of the administration not challenged in good time – Inadmissibility

(Staff Regulations, Arts 90 and 91)

1.      In the system of remedies provided for in Articles 90 and 91 of the Staff Regulations, and in view of the evolving nature of the pre‑litigation procedure introduced by those provisions, the administration may find it necessary, when it rejects a complaint, to supplement or alter the grounds on the basis of which it had adopted the contested measure.

(see para. 38)

See:

9 December 2009, T‑377/08 P Commission v Birkhoff, paras 55 to 60

2.      A plea alleging an infringement of the right to a fair hearing may not be relied on against any act adversely affecting an official, that is to say, any act producing binding legal effects capable of affecting, directly and individually, the interests of an official by bringing about a distinct change in his legal situation. In that respect, it would impose an unreasonable burden on the administration if it were required to hear the views of each member of staff before adopting any act adversely affecting him.

The fact that a decision constitutes, from a procedural point of view, an act adversely affecting an official does not automatically imply, without regard to the nature of the procedure initiated against the official concerned, that the appointing authority is under an obligation to give that official a proper hearing before adopting that decision.

It is therefore apparent that a plea alleging infringement of the right to a fair hearing can reasonably be relied on only in so far as, first, the contested decision was adopted following a procedure initiated against the official concerned and, second, the seriousness of the consequences which that decision is likely to have for that person’s situation is established.

(see paras 49-51)

See:

29 April 2004, C‑111/02 P Parliament v Reynolds, para. 57

3.      The condition that an official must demonstrate his ability to work in a third language is an objective condition which the official must necessarily fulfil in order to be promoted. Consequently, the fact that he has not been given an opportunity to sit a language test, even though he wished to, cannot in itself have the effect of exempting him from the condition of having to demonstrate his ability to work in a third language.

(see para. 68)

4.      An official who has failed to bring, within the periods laid down in Articles 90 and 91 of the Staff Regulations, an action for annulment of a measure alleged to have adversely affected him cannot repair that omission and thus obtain further time for bringing proceedings by lodging a claim for compensation for the damage caused by that measure.

(see para. 85)

See:

29 February 1996, T‑547/93 Lopes v Court of Justice, para. 174