JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(Single Judge)

21 September 2015

Case F‑72/11

Anastasios Anagnostu and Others

v

European Commission

(Civil service — Officials — Promotion — 2010 and 2011 promotion years — Guiding multiplication rates — Article 6(2) of the Staff Regulations — Transitional measures for the period from 1 May 2004 to 30 April 2011 — Article 9 of Annex XIII to the Staff Regulations — General provisions implementing Article 45 of the Staff Regulations — Setting of promotion thresholds — Non-inclusion on the list of promoted officials — Interest in bringing proceedings)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, by which Mr Anagnostu and the 24 other applicants primarily seek, first, annulment of the decisions of the appointing authority of the European Commission setting the thresholds for promotion to grades AD 13 and AD 14 for the 2010 and 2011 promotion years and, secondly, annulment of the list of officials promoted to grades AD 13 and AD 14 in the 2010 promotion year, and of the implicit decision of the appointing authority of the Commission to refuse to promote a greater number of officials to grades AD 13 or AD 14.

Held:      The decisions of the European Commission of 26 November 2010 not to promote Mr Antoulas, Ms Bruni, Ms Nicolaidou-Kallergis or Mr Xanthopoulos are annulled. The action is dismissed as to the remainder. The European Commission is to pay four twenty-fifths of its own costs and is ordered to pay four twenty-fifths of the costs incurred by the applicants. The applicants other than Mr Antoulas, Ms Bruni, Ms Nicolaidou-Kallergis and Mr Xanthopoulos are to bear 21 twenty-fifths of their own costs and are ordered to pay 21 twenty-fifths of the costs incurred by the European Commission.

Summary

1.      Actions brought by officials — Act adversely affecting an official — Meaning — Decision setting promotion thresholds — Preparatory act — Not included — Act capable of being challenged incidentally in the course of an action for annulment of the decision establishing the list of promoted officials

(Staff Regulations, Arts 45 and 90(2))

2.      Actions brought by officials — Interest in bringing proceedings — Guiding multiplication rates — Decision setting promotion thresholds — Action brought against a refusal of promotion — Need to demonstrate the possibility of attaining the promotion threshold — No claims relating to the applicant personally

(Staff Regulations, Arts 90 and 91)

1.      The acts or decisions in respect of which an action for annulment may be brought are limited to those measures which produce binding legal effects such as to affect the interests of the applicant by bringing about a distinct change in his legal position. Where the acts or decisions in question are formulated in several stages, for example in the course of an internal procedure such as that relating to the promotion procedure laid down by general implementing provisions for Article 45 of the Staff Regulations, the only acts which can be challenged are the measures definitively determining the position of the institution at the conclusion of that procedure. By contrast, the intermediary measures whose purpose is to prepare the final decision are not acts adversely affecting an official within the meaning of Article 90(2) of the Staff Regulations and can only be challenged incidentally in an action against the acts capable of being annulled.

The setting of promotion thresholds, whether they are indicative or definitive thresholds, constitutes only one of the successive stages of the promotion procedure, which culminates in the publication of the list of officials promoted in the promotion year. It is only at the time of publication of that list that the legal position of the officials eligible for promotion can be affected. It follows that decisions setting promotion thresholds are acts preparatory to the appointing authority’s decision establishing the list of promoted officials.

Nonetheless, while such preparatory acts cannot be subject to a separate action for annulment, their lawfulness may always be disputed in the course of an action directed against the final decision.

Accordingly, the head of claim seeking the annulment of decisions setting promotion thresholds is inadmissible.

(see paras 38-42)

See:

Judgments of 9 March 2000 in Vicente Nuñez v Commission, T‑10/99, EU:T:2000:60, para. 28; 5 March 2003 in Staelen v Parliament, T‑24/01, EU:T:2003:52, para. 32 and 33 and the case-law cited therein; 19 March 2003 in Tsarnavas v Commission, T‑188/01 to T‑190/01, EU:T:2003:77, para. 73 and the case-law cited therein, and 3 May 2007 in Crespinet v Commission, T‑261/04, EU:T:2007:122, para. 42 and the case-law cited therein

Order of 13 December 2006 in Aimi and Others v Commission, F‑47/06, EU:F:2006:134, para. 64

2.      An official is not entitled to act in the interests of the law or of the institutions and may put forward, in support of an action for the annulment of a measure, only such claims as relate to him personally. In order to establish an interest in obtaining the annulment of a decision not to promote him, on the ground that the promotion rate said to be applicable to the grade in question was not observed, it is for an official to demonstrate that, taking account of his personal situation and, in particular, the total number of promotion points he had accumulated, it was not inconceivable that he might have reached the promotion threshold, if the abovementioned promotion rate had been applied.

Nonetheless, each promotion year is necessarily independent of the promotion years which precede or follow it, since the officials whose merits are to be compared, and the criteria defined for the purposes of that comparison, are specific to each promotion year. Accordingly, the fact that the failure to promote a greater number of officials in the promotion year concerned is liable to have an effect on the position of the applicants on the merit lists for the grades concerned in subsequent promotion years and, thus, to delay their promotion, does not in itself affect the legal position of the applicants directly and immediately.

(see paras 56, 57, 63)

See:

Judgments 24 April 2009 in Sanchez Ferrizand Others v Commission, T‑492/07 P, EU:T:2009:116, paras 26 and 39, and the case-law cited therein, and 16 October 2014 in Schönberger v Court of Auditors, T‑26/14 P, EU:T:2014:887, para. 39