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

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Officials ° Actions ° Act adversely affecting an official ° Preparatory act ° Decision of Joint Committee not to examine the merits of an official at the time of drawing up list of officials most deserving of promotion ° Inadmissibility
(Staff Regulations of Officials, Arts 90 and 91)

A decision by the Joint Committee, at the time when the list of candidates most deserving of promotion is drawn up, not to examine the merits of a candidate is merely an act which is preparatory to promotion decisions, and cannot therefore be the subject-matter of an action.

In Case C-258/94 P,
Paulo Branco, an official of the Court of Auditors of the European Communities, and subsequently of the Commission of the European Communities, resident in Brussels, represented by Raoul Wagener and David M. Travessa Mendes, both of the Luxembourg Bar, 6-12 Place d' Armes, Luxembourg,
appellant,
APPEAL against the order of the Court of First Instance of the European Communities of 20 July 1994 in Case T-45/93 between Paulo Branco and the Court of Auditors of the European Communities ([1994] ECR-SC II-641), seeking to have that order set aside,
the other party to the proceedings being:
Court of Auditors of the European Communities, represented by Jean-Marie Stenier and Jan Inghelram, of the Legal Service, acting as Agents, with an address for service in Luxembourg at the offices of the Court of Auditors, 12 Rue Alcide de Gasperi, Kirchberg,
THE COURT (First Chamber),
composed of: P. Jann, President of the Chamber (Rapporteur), D.A.O. Edward and L. Sevón, Judges,
Advocate General: A.M. La Pergola,
Registrar: R. Grass,
after hearing the Advocate General,
makes the following
Order

1 By application lodged at the Court Registry on 20 September 1994, Mr Branco brought an appeal pursuant to Article 49 of the EC Statute and the corresponding provisions of the EAEC and ECSC Statutes of the Court of Justice against the order of the Court of First Instance of 20 July 1994 in Case T-45/93 Branco v Court of Auditors [1994] ECR-SC II-641, whereby the latter dismissed his action for, first, the annulment of the 1992 promotions procedure of the Court of Auditors, secondly, the recommencement of the whole procedure in conformity with the Staff Regulations, to include consideration of the applicant as a person eligible for promotion, and, thirdly, an order that the Court of Auditors should pay the costs.
2 As to the underlying facts of the dispute between Mr Branco and the Court of Auditors, the Court of First Instance found:
"1 The applicant took leave on personal grounds from 11 March 1992 until 14 August 1992, while he was an official of the Court of Auditors.
2 During his leave on personal grounds, the 1992 promotions procedure started. It took place in accordance with the rules laid down by Decision No 90-38 of 12 October 1990 on the procedural stages for promotions decided upon by the Secretary-General (now replaced by Decision No 93-41 of 14 June 1993). Decision No 90-38 provided for seven such stages:
1. publication of the list of officials eligible for promotion;
2. preparatory meeting between the Secretary-General and the Directors with a view to drawing up the Directors' lists;
3. drawing up of the Directors' lists;
4. communication of the Directors' lists to the appointing authority;
5. reference to the Joint Promotions Committee;
6. publication in alphabetical order of the list drawn up by the Joint Promotions Committee;
7. adoption of the promotion decisions by the appointing authority."
3 The order also states that Mr Branco' s name, together with the words "subject to reinstatement on 14 August 1992 after leave on personal grounds" appeared on the first list of officials eligible for promotion (the first stage of the procedure) and on the final list of eligible officials, or Directors' list (the third stage). Those lists were published, respectively, on 20 April and 20 May 1992 and were sent to the appointing authority, which in turn sent them to the Joint Promotions Committee (the fourth stage). However, Mr Branco did not appear on the list of officials recommended for promotion, which was drawn up by the Joint Promotions Committee (the fifth stage) and then published by the appointing authority on 17 July 1992 (the sixth stage).
4 The Court of First Instance also found:
"6 ... The Joint Committee had not made a comparative examination of the merits of the applicant because he was on leave on personal grounds and his name did not appear on that list.
7 The promotion decisions were taken shortly afterwards and published by notices from 23 to 30 July 1992, which were published respectively between 24 July and 24 August 1992 and between 3 August 1992 and 3 September 1992.
8 By a note of 3 September 1992, the appointing authority asked the Chairman of the Joint Committee to supply an opinion on the applicant, who had been reinstated on 15 August 1992. The Joint Committee added the applicant' s name to the list drawn up in the procedure which ended with the promotion decisions of the end of July. That list was published between 17 December 1992 and 17 January 1993.
9 The appointing authority did not promote the applicant.
10 On 6 January 1993 the applicant lodged a complaint under Article 90(2) of the Staff Regulations of Officials of the European Communities, seeking the annulment or amendment of the decision on promotions for 1992 so as to enable him to be entered on the promotions list.
...
12 By a note of 6 May 1993, the appointing authority dismissed the two complaints as inadmissible and, in the alternative, unfounded."
5 It is against that decision rejecting the complaints that Mr Branco brought an action before the Court of First Instance. The Court of Auditors raised an objection of inadmissibility against the action.
6 On 20 July 1994 the Court of First Instance made an order dismissing Mr Branco' s action as manifestly inadmissible.
7 In support of its decision, the Court of First Instance states:
"22 It is settled case-law that the admissibility of an action before the Court of First Instance under Article 179 of the EC Treaty and Article 91 of the Staff Regulations depends upon the pre-litigation procedure being conducted in the proper manner, and upon the prescribed time-limits for that procedure being complied with (see the order of the Court of First Instance in Case T-34/91 Whitehead v Commission [1992] ECR II-1723).
23 In the Court' s view, that condition for admissibility has not been complied with in this case.
24 The first point is to identify the act adversely affecting the applicant, and in that regard the promotions procedure as a whole cannot be regarded as constituting such an act. In the first place, contrary to what the applicant maintains, what is at issue here is not a single act but a series of acts which led to promotion decisions capable of adversely affecting the applicant. Secondly, the publication of the amended list by the Joint Committee does not form part of that procedure because it was subsequent to those decisions.
25 It must be concluded, therefore, that the applicant did not lodge a complaint against the promotion decisions for 1992, which were all published before 4 September 1992, within the three-month period prescribed by the first subparagraph of Article 90(2) of the Staff Regulations. His first complaint is dated 6 January 1993."
8 In support of his appeal against that order, the applicant puts forward two pleas in law, which are closely connected.
9 First, he alleges that the Court of First Instance did not state sufficient reasons for the order. It made no ruling on the "third ground of admissibility" pleaded by Mr Branco, to the effect that the act adversely affecting him was the individual decision taken by the appointing authority to exclude him from the comparative examination of merits and staff reports, required by Articles 45(1) and 5(3) of the Staff Regulations, and which led to the publication of the list by the Joint Promotions Committee on 17 July 1992. Since the applicant had not been notified of that decision, he could not have become aware of it, by negative implication, until 17 December 1992, the date on which the amended list was published. Since his complaint was lodged well within the three months following such publication, it was admissible.
10 Secondly, the Court of First Instance committed a manifest error of law by applying the first indent of the first subparagraph of Article 90(2) instead of the second indent. Since the exclusion measure being challenged in the first plea was of an individual nature, the period for lodging a complaint started to run not on the day the promotion decisions were published but "on the date of notification of the decision to the person concerned" by the exclusion measure, namely 17 December 1992.
11 The Court of Auditors contends in its observations on the appeal that it should be dismissed.
12 Under Article 119 of the Rules of Procedure, the Court of Justice may dismiss an appeal at any time if it is clearly inadmissible or clearly unfounded, without opening the oral procedure.
The first plea
13 It is apparent that, in his first plea, Mr Branco is not challenging either the promotion decisions for 1992 or even the refusal of the appointing authority to enter him on the list of candidates recommended for promotion, which was published on 17 July 1992, but is challenging a measure prior to those decisions, namely the decision, taken by the Joint Committee and not by the appointing authority, not to proceed with the examination of his merits at the time when the list in question was drawn up.
14 In matters concerning promotion procedures, it is settled case-law that decisions of that kind are merely measures which pave the way for promotion decisions and, as such, are not open to challenge (see the judgment in Case 346/87 Bossi v Commission [1989] ECR 303, paragraph 23).
15 In paragraph 24 of its order, the Court of First Instance expressly stated:
"The first point is to identify the act adversely affecting the applicant ... Contrary to what the applicant maintains, what is at issue here is not a single act but a series of acts which led to promotion decisions capable of adversely affecting the applicant ..."
16 In paragraphs 25 and 26, the Court of First Instance went on to find that the first complaint, dated 6 January 1993, was out of time in relation to the promotion decisions for 1992, which were all published before 4 September 1992, and that the action was therefore manifestly inadmissible.
17 By thus identifying the measures within the promotions procedure which were capable of being challenged (namely the promotion decisions) and by subsequently holding that the first complaint was out of time in relation to those measures, the Court of First Instance clearly answered Mr Branco' s argument concerning the "third ground of admissibility".
18 The first plea must therefore be rejected.
The second plea
19 Nor can Mr Branco' s second plea be upheld, since it presupposes, for the purpose of causing the period for lodging a complaint to start to run from the day on which he became aware of the measure he challenges in his first plea (namely the decision to exclude him from the comparative examination of merits), that that measure constitutes an act adversely affecting an official, which is not the case.
20 Mr Branco' s appeal must therefore, pursuant to Article 119 of the Rules of Procedure, be dismissed as being clearly unfounded.

Costs
21 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Article 70 of those Rules provides that in proceedings between the Communities and their servants the institutions are to bear their own costs. However, by virtue of Article 122 of those Rules, Article 70 is not to apply to appeals brought by officials or other servants of the institutions. Since Mr Branco' s appeal has been unsuccessful, he must be ordered to pay the costs.

On those grounds,
THE COURT (First Chamber)
hereby orders:
1. The appeal by the applicant is dismissed;
2. The applicant is ordered to pay the costs.
Luxembourg, 28 June 1995.