JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

11 December 2008

Case F-116/06

Anne Buckingham and Others

v

Commission of the European Communities

(Civil service – Officials – ‘Second round’ promotion – 2005 promotion procedure – Award of priority points – Transitional provisions – General implementing provisions for Article 45 of the Staff Regulations – Equal treatment – Admissibility)

Application: brought under Articles 236 EC and 152 EA, in which Ms Buckingham and 13 other Commission officials essentially seek annulment of the decision, published in Administrative Notices No 85‑2005 of 23 November 2005, not to allocate to them, for 2004, any priority points in recognition of the work carried out in the interests of the institution during 2003.

Held: The action is dismissed. Each party is to bear its own costs.

Summary

1.      Officials – Actions – Act adversely affecting an official – Promotion system established by the Commission – Decision awarding certain categories of promotion points – Preparatory act – Decision determining the total number of points awarded to officials – Decision against which an appeal may be brought

(Staff Regulations, Arts 45, 90 and 91)

2.      Officials – Promotion – Change from one system to another

(Staff Regulations, Art. 45(1), first subpara.)

1.      Under the promotion system established by the Commission, individual decisions awarding certain categories of promotion points, adopted before the appointing authority definitively establishes the total number of points obtained by each official, constitute preparatory acts prior and necessary to the final decision fixing the total number of points. That applies in particular to the award by the directors-general, under the Commission’s internal rules, of priority points available to each directorate-general, or the award by the appointing authority, on the recommendation of the promotion committees, of priority points in recognition of work performed in the interest of the institution, pursuant to those rules. Those decisions do not definitively establish the appointing authority’s position with respect to the officials in question.

That being so, the appointing authority’s definitive decision fixing the total number of points obtained by each official, which may be consulted in his personal promotion file, is made up of a series of individual and definitive decisions awarding particular categories of promotion points. Usually, those decisions are clear from the breakdown of the total number of points obtained by each official, as shown in his personal promotion file. If the decisions awarding certain categories of promotion points are also to be regarded as preparatory decisions prior to the decision fixing the total number of points and cannot therefore start the time-limit running for lodging a complaint, they are nevertheless decisions definitively establishing the situation of the official concerned in relation to the category of points in question.

In those circumstances, it must be considered that, in seeking, at the final stage of the promotion procedure, annulment of the list of officials awarded priority points in recognition of work performed in the interest of the institution, the official necessarily intended to dispute the total number of points he obtained, and his action cannot be dismissed as inadmissible solely because it was not formally directed against the decision fixing the total number of points.

(see paras 50-54)

See:

T-311/04 Buendía Sierra v Commission [2006] ECR II‑4137, paras 96 and 97

2.      The constraints inherent in changing from one method of management to another, in respect of officials’ careers, may require the administration to depart temporarily, and within certain limits, from the strict application of the permanent rules and principles that normally apply to the situations at issue. However, such departures must be justified by an overriding requirement connected with the transition, and their duration and scope should not exceed what is necessary to ensure an orderly move from one system to the other.

In the first promotion procedure under a new system of promotion based on the quantification of merits, established by an internal regulation of the Commission which lays down provisional measures for the transition from the previous system, where provision is made to award officials in grade A 12 different types of priority points for the year prior to that promotion procedure, but the Commission decides to limit the award of priority points on a transitional basis, that limitation cannot be regarded as exceeding the power which the administration has to introduce, on a transitional basis, changes to the rules governing the promotion of officials. It merely establishes a limit for the account to be taken of merits recognised previously.

While it is true that it is theoretically possible to envisage a different system, the administration is under no obligation to do so. The purpose of changing the existing method of promoting officials is, by definition, to rectify certain problems resulting from the application of the earlier rules. It is therefore inherent in such a reform process, the need for which the administration has wide discretion to assess, that the merits of officials should begin to be evaluated on a new basis from a given date.

(see paras 81-83)

See:

62/75 de Wind v Commission [1976] ECR 1167, para. 17

T-557/93 Rasmussen v Commission [1995] ECR-SC I‑A‑195 and II‑603, para. 20; T-30/02 Leonhardt v Parliament [2003] ECR-SC I‑A‑41 and II‑265, paras 51 and 55; T-393/04 Klaas v Parliament [2006] ECR-SC I‑A‑2‑103 and II‑A‑2‑465, para. 56; Buendía Sierra v Commission, paras 213 and 220