(Civil service – Officials – Restoration of career prospects – Absence of staff reports – Consideration of comparative merits – Request under Article 90(1) of the Staff Regulations – Admissibility of the action – New and substantive fact)

Application: brought under Articles 236 EC and 152 EA, in which Mr Soares seeks annulment of the Commission’s decision rejecting his claim for a favourable reconstitution of his career.

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

Summary

Officials – Actions – Prior administrative complaint – Time-limits

(Staff Regulations, Arts 90 and 91)

An official cannot, by submitting a request to the appointing authority under Article 90(1) of the Staff Regulations, revive for himself the possibility of lodging a complaint and an appeal against a decision which has become definitive upon the expiry of the time-limits laid down by the Staff Regulations, unless a new and substantive fact has occurred prior to the submission of the request.

In that respect, the fact that an official’s staff report was drawn up after the disputed promotion procedure does not constitute a new and substantive fact enabling him to contest a decision not to promote him, which has become definitive, as long as he was aware that the report had not been drawn up and that he could not therefore be taken into account in that promotion procedure. Since a decision not to promote an official can be disputed even in the absence of a staff report, there is nothing to stop the official in question from lodging a complaint against that decision on the ground that the failure to draw up his staff report placed him at a disadvantage.

(see paras 52, 57-58, 60)

See:

231/84 Valentini v Commission [1985] ECR 3027, para. 14

T-495/93 Carrer and Others v Court of Justice [1994] ECR‑SC I‑A‑201 and II‑651, para. 20; T-138/99 Verheyden v Commission [2000] ECR-SC I‑A‑219 and II‑1001, para. 43; T-70/98 Hilden v Commission [2002] ECR-SC I‑A‑57 and II‑265, para. 39