C-258/94

ORDER OF 28. 6. 1995 — CASE C-258/94 P

O R D E R O F THE C O U R T (First Chamber) 28 June 1995 *

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,

A P P E A L against the order of the Court of First Instance of the European Com- munities of 20 July 1994 in Case T-45/93 between Paulo Branco and the Court of Auditors of the European Communities ([1994] ECR-SC 11-641), seeking to have that order set aside,

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 11-641, whereby the latter dismissed his action for, first, the annulment of the 1992 promotions procedure of the Court of Audi- tors, 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. 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.'

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 rein- stated 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.

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ORDER OF 28. 6. 1995 — CASE C-258/94 P

10. O n 6 January 1993 the applicant lodged a complaint under Article 90(2) of the Staff Regulations of Officials of the European Communities, seeking the annul- ment or amendment of the decision o n 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 com- plaints as inadmissible and, in the alternative, unfounded.'

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 constitut- ing 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 Sep- tember 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.'

s 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 Promo- tions Committee on 17 July 1992. Since the applicant had not been notified of that

The first plea

u It is apparent that, in his first plea, M r Branco is not challenging either the pro- motion 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.

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BRANCO v COURT OF AUDITORS

i4 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 Commis- sion [1989] ECR 303, paragraph 23).

is In paragraph 24 of its order, the Court of First Instance expressly stated:

The second plea

i9 N o r 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 Pro- cedure, 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 Bran- co's appeal has been unsuccessful, he must be ordered to pay the costs.

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Luxembourg, 28 June 1995.

R. Grass P. Jann

Registrar President of the First Chamber

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