Court of Justice of the European Communities (including Court of First Instance Decisions)

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1 . Officials - Action directed against the decision rejecting the complaint - Admissibility
( Staff Regulations, Arts 90 and 91 )
2 . Officials - Promotion - Criteria - Merits - Seniority and age to be taken into account - As a subsidiary matter
( Staff Regulations, Art . 45(1 ) )

1 . It is clear from Articles 90 and 91 of the Staff Regulations that the action must be directed against an act adversely affecting the applicant, consisting either in a decision taken by the appointing authority or in the appointing authority' s failure to adopt a measure prescribed by the Staff Regulations, and that it is admissible only if
the official has previously submitted a complaint to the appointing authority and if the complaint has been rejected by express or implied decision .
The administrative complaint and its rejection, whether express or implied, thus constitute an integral part of a complex procedure . Under those circumstances, the action before the Court, even if formally directed against the rejection of the complaint, has the effect of bringing before the Court the act adversely affecting the applicant against which the complaint was submitted .
2 . According to Article 45(1 ) of the Staff Regulations, the assessment of the merits of officials constitutes the decisive criterion for the purposes of promotion, whereas the appointing authority may take into account the age of the candidates and their seniority in the grade or service only as a subsidiary matter .
Consequently, that provision precludes the application of a selection method based on arithmetical criteria whereby the number of marks which may be awarded for merit is less than one quarter of the total marks to be awarded to the candidates, and the remaining marks are awarded for seniority and age .

In Case 293/87
François Vainker, an official of the European Parliament, residing in Luxembourg, represented by Ronald D . Mackay, QC, of the Scots Bar, with an address for service in Luxembourg at the applicant' s residence, 30 rue Ermesinde,
applicant,
v
European Parliament, represented by Francesco Passetti-Bombardella, Jurisconsult, acting as Agent, assisted by M . Peter, Head of Division, and F . Herbert, of the Brussels Bar, with an address for service in Luxembourg at the Secretariat of the European Parliament, Kirchberg,
defendant,
APPLICATION for the annulment of three decisions of the Secretary-General of the European Parliament, each dated 30 October 1986, promoting nine officials to grade A 4,
THE COURT ( Second Chamber )
composed of T . F . O' Higgins, President of Chamber, G . F . Mancini and F . Schockweiler, Judges,
Advocate General : J . Mischo
Registrar : D . Louterman, Administrator
having regard to the Report for the Hearing and further to the hearing on 10 November 1988,
after hearing the Opinion of the Advocate General delivered at the sitting on 30 November 1988,
gives the following
Judgment

1 By an application lodged at the Court Registry on 1 October 1987 François Vainker, an official of the European Parliament, classified in grade A 5 at the time when the contested decisions were adopted, brought an action for the annulment of three decisions of 30 October 1986 adopted by the Secretary General of the European Parliament in his capacity as appointing authority promoting nine officials from grade A 5 to grade A 4 in the career bracket of Principal Administrator, and also for the annulment of the implied decision rejecting the applicant' s complaint .
2 The three contested decisions were adopted in accordance with the proposals of the Advisory Committee on Promotions, set up in 1982 pursuant to an internal directive of the President of the European Parliament; the function of that Committee is to advise the appointing authority on promotions .
3 On 9 March 1987 the applicant, taking the view that the promotion decisions were unlawful, submitted a complaint under Article 90(2 ) of the Staff Regulations of Officials of the European Communities ( hereinafter referred to as "the Staff Regulations "); he received no reply to that complaint .
4 In his complaint and in support of his action, the applicant submits that, by making the promotions in accordance with the proposals of the Advisory Committee on Promotions, the appointing authority applied selection criteria contrary to Article 45(1 ) of the Staff Regulations .
5 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the course of the procedure and the submissions and arguments of the parties, which are mentioned or referred to hereinafter only in so far as is necessary for the reasoning of the Court .
Admissibility
6 The European Parliament contends firstly that the application is inadmissible in so far as it is directed against the implied rejection of the applicant' s complaint, on the ground that such rejection did not constitute an act adversely affecting the applicant .
7 It should be noted that, by virtue of Article 91(1 ) of the Staff Regulations, the Court has jurisdiction in any dispute regarding the legality of an act adversely affecting a person to whom the Staff Regulations apply . According to Article 90(2 ) of the Staff Regulations an act adversely affecting the applicant consists either in a decision taken by the appointing authority or in the appointing authority' s failure to adopt a measure prescribed by the Staff Regulations . Article 91(2 ) of the Staff Regulations provides that an appeal to the Court shall lie only if the official has previously submitted a complaint to the appointing authority and if the complaint has been rejected by express or implied decision .
8 The administrative complaint and its rejection, whether express or implied, by the appointing authority thus constitute an integral part of a complex procedure . Consequently, the action before the Court, even if formally directed against the rejection of the official' s complaint, has the effect of bringing before the Court the act adversely affecting the applicant against which the complaint was submitted .
9 The action must therefore be considered to be directed against the three decisions of the Secretary-General of the European Parliament dated 30 October 1986 promoting nine officials from grade A 5 to grade A 4 in the career bracket of Principal Administrator .
10 Consequently, the objection of inadmissibility put forward on this point by the European Parliament against the applicant' s action must be rejected .
11 The European Parliament contends secondly that the applicant no longer has any interest in seeking the annulment of the decisions of 30 October 1986, since he was promoted to grade A 4 by a decision of 10 December 1987 .
12 That submission cannot be upheld since the applicant correctly argues that, unlike his colleagues, he was not promoted on 30 October 1986 and the failure to promote him caused him definite injury consisting not only in the delay in receiving the salary pertaining to grade A 4 but also in the fact that, with respect to the further development of his career, he is classified behind the nine officials promoted on 30 October 1986 .
Substance
13 It appears from the documents before the Court that in making its proposals the Advisory Committee on Promotions applied a method of assessment provided for in an agreement concluded in 1986 between the European Parliament' s Director-General for Personnel and the Staff Committee . That agreement, which was published in the June 1986 edition of the Bulletin of the Syndicat général du personnel des organismes européens under the title of "Schéma de l' accord sur les critères pour le comité de promotion", provides that promotions are to be made on the basis of "seniority" and "merit" according to a scheme providing for the award of marks to the candidates eligible for promotion on the basis of those criteria . Under that scheme a maximum of 39 marks may be awarded for seniority : 3 marks per year for seniority in grade after the date on which the candidate became eligible for promotion, up to a maximum of 15 marks, 2 marks per year for seniority in the category concerned, up to a maximum of 15 marks, 0.25 marks per year for seniority in the service not considered elsewhere, up to a maximum of 5 marks, and 0.1 marks per year for age in excess of 25 years, up to a maximum of 4 marks; marks for merit, on the other hand, cannot exceed 12, of which 6 are awarded to an average official .
14 At the hearing the European Parliament acknowledged that in adopting the contested promotion decision the appointing authority applied solely those criteria . The Parliament contended that that selection method was the only one which would prevent excessive weight from being attached to merit, in view of the fact that assessments of that criterion were extremely subjective .
15 Article 45(1 ) of the Staff Regulations provides that : "Promotion shall be exclusively by selection from among officials who have completed a minimum period in their grade, after consideration of the comparative merits of the officials eligible for promotion and of the reports on them ."
16 It must be emphasized that the Court has already decided, with regard to selection criteria for promotion, that the appointing authority may take into account, in conjunction with other factors, the age of candidates and their seniority in the grade or service . It has stated further that, the qualifications and merits of the candidates being equal, age and seniority may even constitute a decisive factor in the appointing authority' s decison ( judgment of 24 March 1983 in Case 298/81 Colussi v Parliament (( 1983 )) ECR 1131 ). On the other hand, the Court has held that seniority is merely one of a number of criteria of assessment and can never take precedence over the merits of candidates ( judgment of 14 July 1983 in Case 9/82 OEhrgaard and Delvaux v Commission (( 1983 )) ECR 2379 ).
17 It follows that Article 45(1 ) of the Staff Regulations allows the seniority and age of the candidates eligible for promotion to be taken into account only as a subsidiary matter, the assessment of the merits of officials constituting the decisive criterion for the purposes of promotion .
18 It follows from the foregoing that, by applying for the purpose of choosing the candidates to be promoted a selection method which allowed a maximum of 35 marks to be awarded for seniority in the service and 4 marks for age but which allowed a maximum of only 12 marks to be awarded for merit, that is to say less than one quarter of the total available marks, the appointing authority infringed Article 45 ( 1 ) of the Staff Regulations .
19 Since the aforesaid selection method is unlawful, the contested promotion decisions, which were made on the basis of that method, must be annulled .

Costs
20 Under the terms of Article 69(2 ) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs . As the European Parliament has failed in its submissions, it must be ordered to pay the costs .

On those grounds,
THE COURT ( Second Chamber )
hereby :
( 1 ) Annuls the three decisions of the Secretary-General of the European Parliament of 30 October 1986 promoting nine officials from grade A 5 to grade A 4 in the career bracket of Principal Administrator;
( 2 ) Orders the European Parliament to pay the costs .