T-313/24

ORDER OF THE GENERAL COURT (Tenth Chamber) 12 January 2026 (*) ( Civil service – Officials – Promotion – 2023 promotion exercise – Decision not to promote the applicant to grade AD 8 – Article 45(1) of the Staff Regulations – No act open to challenge – Liability – Action in part manifestly inadmissible and in part lacking any foundation in law ) In Case T‑313/24, XH, represented by K. Górny, lawyer, applicant, v European Commission, represented by G. Niddam and A. Sauka, acting as Agents, defendant, THE GENERAL COURT (Tenth Chamber), composed of S.L. Kalėda, President, M. Jaeger (Rapporteur) and S. Verschuur, Judges, Registrar: V. Di Bucci, makes the following Order 1        By her action under Article 270 TFEU, the applicant, XH, seeks, first, the annulment of the decision of the European Commission published in Administrative Notices No 38-2023 of 10 November 2023 not to include her name on the list of officials promoted to grade AD 8 in the 2023 promotion exercise and, second, compensation for the damage sustained as a result of that decision.  Background to the dispute 2        The applicant is an official in the European Anti-Fraud Office (OLAF). She was recruited on 1 July 2014 at grade AD 5. 3        On 13 November 2017, the Commission published in Administrative Notices No 25-2017 the list of officials promoted to grade AD 6 in the 2017 promotion exercise. The applicant’s name was not on that list (‘the 2017 decision not to promote the applicant’). Her complaint against the 2017 decision not to promote her was rejected by the competent appointing authority and the applicant brought an action before the General Court, registered as Case T‑511/18, seeking the annulment of that decision. 4        On 13 November 2018, the applicant was promoted to grade AD 6 in the 2018 promotion exercise, with effect from 1 January 2018. 5        By the judgment of 25 June 2020, XH v Commission (T‑511/18, EU:T:2020:291), the General Court upheld in part the action against the 2017 decision not to promote the applicant and annulled that decision on the ground that the competent appointing authority had improperly taken the applicant’s interim probation report and end-of-probation report into account when considering comparative merits in the 2017 promotion exercise. 6        In the course of complying with the judgment of 25 June 2020, XH v Commission (T‑511/18, EU:T:2020:291), the Director-General of OLAF decided on 31 May 2022 not to include the applicant’s name on the list of officials promoted to grade AD 6 in the 2017 promotion exercise. The applicant’s complaint against that decision not to promote her was rejected by the competent appointing authority and the applicant brought an action before the General Court, registered as Case T‑11/23, seeking the annulment of that decision. That action was dismissed by the judgment of 2 October 2024, XH v Commission (T‑11/23, not published, under appeal, EU:T:2024:665). In that judgment, in particular, the General Court held that, although the applicant’s appraisal reports taken into account in the 2017 promotion exercise did indeed demonstrate that she was a deserving official, nevertheless, in the light of the finding that she was still learning, the applications for promotion by other officials had been able, without any manifest error of assessment, to be preferred by the competent appointing authority, on the basis of a comparison of the merits of all the candidates within OLAF which had revealed that some of them had greater merits. 7        On 13 November 2022, the applicant was promoted to grade AD 7, with effect from 1 January 2022, in the 2022 promotion exercise. 8        On 10 November 2023, the Commission published in Administrative Notices No 38-2023 the list of officials promoted to grade AD 8 in the 2023 promotion exercise. The applicant’s name was not on that list. 9        On 12 February 2024, the applicant filed a complaint under Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) against the decision not to include her on the list of officials promoted to grade AD 8 in the 2023 promotion exercise. 10      On 27 May 2024, the competent appointing authority rejected the applicant’s complaint, on the ground that she did not satisfy the eligibility condition requiring completion of two years in her grade laid down in Article 45(1) of the Staff Regulations (‘the decision rejecting the 2024 complaint’).  Forms of order sought 11      The applicant claims that the Court should: –        annul the decision rejecting the 2024 complaint; –        order the Commission to compensate her for the material and non-material damage sustained; –        order the Commission to pay the costs. 12      The Commission contends that the Court should: –        dismiss the action as manifestly inadmissible; –        order the applicant to pay the costs.  Law 13      Under Article 126 of its Rules of Procedure, where the action is manifestly inadmissible or manifestly lacking any foundation in law, the General Court may, on a proposal from the Judge-Rapporteur, decide at any time to give a decision by reasoned order without taking further steps in the proceedings. 14      In the present case, the Court considers that it has sufficient information from the documents in the file and decides to give a decision without taking further steps in the proceedings.  The object of the action 15      By her first head of claim, the applicant seeks the annulment of the decision rejecting the 2024 complaint. 16      In that regard, it is settled case-law that claims directed against the rejection of a complaint have the effect of bringing before the Court the act against which the complaint was submitted and as such lack any independent content. It must therefore be concluded that the sole object of the claim for annulment directed against the decision rejecting the complaint against the decision not to promote the applicant is to obtain the annulment of that decision (see, to that effect, judgment of 25 June 2020, XH v Commission, T‑511/18, EU:T:2020:291, paragraph 37 and the case-law cited). 17      Even though the decision rejecting the complaint is confirmatory of the decision not to promote the applicant and it is therefore not appropriate to rule specifically on the claim seeking annulment of that decision rejecting the complaint, the statement of reasons given in the latter decision discloses the grounds for the decision not to promote her. Accordingly, in view of the evolving nature of the pre-litigation procedure, that statement of reasons must also be taken into account in the review of the legality of the decision not to promote the applicant, since that statement of reasons is deemed to coincide with the latter decision (see judgment of 25 June 2020, XH v Commission, T‑511/18, EU:T:2020:291, paragraph 38 and the case-law cited). 18      Thus, in the present case, it must be considered that the act constituting the object of the action is the Commission’s decision published in Administrative Notices No 38-2023 of 10 November 2023 not to include the applicant’s name on the list of officials promoted to grade AD 8 in the 2023 promotion exercise (‘the contested decision’), and the examination of its legality must also take into consideration the reasoning set out in the decision rejecting the 2024 complaint.  The claim for annulment 19      In the defence, the Commission, while not formally raising a plea of inadmissibility under Article 130 of the Rules of Procedure, puts forward two grounds of inadmissibility with respect to the applicant’s claim seeking annulment. In the first place, the Commission maintains that that claim is inadmissible on the ground that the application is not sufficiently clear and precise and, accordingly, does not satisfy the requirements laid down in Article 76(d) of the Rules of Procedure. In the second place, the Commission maintains that the contested decision is not an act adversely affecting the applicant. 20      It is appropriate to examine first of all the second ground of inadmissibility, alleging the absence of an act adversely affecting the applicant. 21      In that regard, the Commission claims, in essence, that the applicant did not satisfy the condition, laid down in Article 45(1) of the Staff Regulations, of having completed two years in her grade and, accordingly, was not eligible to be promoted in the 2023 promotion exercise. Thus, the Commission contends that the contested decision is not an act adversely affecting the applicant. 22      The applicant acknowledges that she had not completed the requisite minimum of two years in her grade, but maintains, without adducing evidence in that regard, that the Commission’s administrative practice allows for some flexibility in promotion criteria and that merit-based considerations have prevailed over rigid adherence to seniority thresholds in previous promotion exercises. 23      In the applicant’s submission, the rigid application of the requirement of having completed two years in her grade, without consideration of individual merit, constitutes a breach of the principles of equal treatment and proportionality. She maintains that, in the judgment of 9 June 2015, EF v EEAS (F‑65/14, EU:F:2015:53), the Civil Service Tribunal had considered that selection for promotion had to be based on a comparison of merits and not merely on length of service. 24      In addition, the applicant maintains that, if the 2017 promotion exercise had been carried out correctly, she would already have attained the seniority required for promotion. That, in the applicant’s submission, demonstrates the direct causal link between the earlier irregularities and the fact that she was not promoted in 2023. 25      As a preliminary point, it should be borne in mind that, according to settled case-law, the existence of an act affecting a person adversely within the meaning of Article 90(2) and Article 91(1) of the Staff Regulations is an essential condition of the admissibility of any action brought by officials against the institution by which they are employed (see order of 14 December 2018, GM and Others v Commission, T‑539/16, not published, EU:T:2018:991, paragraph 32 and the case-law cited). Furthermore, according to the case-law, only acts directly and immediately affecting the legal position of those concerned may be regarded as adversely affecting them (see order of 8 March 2007, Strack v Commission, C‑237/06 P, EU:C:2007:156, paragraph 62 and the case-law cited). 26      According to the wording of Article 45(1) of the Staff Regulations, ‘promotion shall be effected by appointment of the official to the next higher grade in the function group to which he belongs’ and ‘shall be exclusively by selection from among officials who have completed a minimum of two years in their grade after consideration of the comparative merits of the officials eligible for promotion’. 27      It follows from that provision that promotion as such is to be by selection from among officials who have completed a minimum of two years in their grade, so that a decision not to promote him or her cannot adversely affect an official who, on the date of the promotion decision, has not completed the requisite minimum period (see, to that effect, order of 7 October 1987, Brüggemann v ESC, 248/86, EU:C:1987:429, paragraph 8). 28      Nonetheless, Article 45(1) of the Staff Regulations does not specify the rules for calculating the period completed in a grade. Thus, it is permissible for the EU institutions to adopt the rules for implementing that provision. 29      In that regard, according to the case-law, the institutions have a broad discretion to implement, in accordance with their own needs in the organisation and management of their staff, the objectives of Article 45 of the Staff Regulations. While the General Court may review whether the competent institution, in the exercise of that broad discretion, complies in full with the limits of that discretion, the fact remains that the scope of that review is modest and is limited to the question whether the measures taken are manifestly inappropriate and whether the assessment of the institution in that respect is manifestly incorrect (see, to that effect, judgment of 14 February 2007, Simões Dos Santos v OHIM, T‑435/04, EU:T:2007:50, paragraphs 132 and 133 and the case-law cited). 30      In addition, it follows from the case-law that the internal directives adopted by the institutions and bodies of the European Union, even on the assumption that the latter exercise a broad discretion, cannot lawfully, in any event, reduce the scope of the Staff Regulations, or lay down rules that derogate from hierarchically superior provisions, such as the provisions of the Staff Regulations or the general principles of law (see, to that effect, judgments of 25 October 2005, Fardoom and Reinard v Commission, T‑43/04, EU:T:2005:374, paragraph 36 and the case-law cited, and of 20 March 2018, Argyraki v Commission, T‑734/16, not published, EU:T:2018:160, paragraph 66). 31      It follows that the adoption by an institution of internal rules relating to the condition of having completed a minimum of two years in their grade laid down in Article 45(1) of the Staff Regulations cannot result in officials who have completed two years in their grade at the time of the promotion being regarded as ineligible for promotion. 32      In the present case, it should be noted that the Commission implemented Article 45 of the Staff Regulations by adopting Decision C(2013) 8968 final of 16 December 2013 laying down general provisions for implementing Article 45 of the Staff Regulations, as is apparent from the decision rejecting the 2024 complaint. 33      In application of the first indent of Article 3 of Commission Decision C(2013) 8968 final of 16 December 2013 laying down general provisions for implementing Article 45 of the Staff Regulations, Commission officials may be promoted if, by 31 December of the year of the promotion exercise, at the latest, they have achieved the minimum seniority in a grade required by Article 45(1) of the Staff Regulations. 34      It is apparent from the documents in the file that the applicant was last promoted in the 2022 promotion exercise, with effect from 1 January 2022. Accordingly, she was eligible for a new promotion only from 1 January 2024, the date on which she satisfied the condition of having completed two years in her grade. 35      It must therefore be held that, irrespective of her merits, her knowledge of languages and her responsibilities, the applicant was not eligible for promotion in the 2023 promotion exercise, as she had not completed the minimum period of two years in her grade specified in Article 45(1) of the Staff Regulations. 36      Consequently, as the Commission correctly maintains, the contested decision is not an act affecting the applicant adversely within the meaning of Articles 90 and 91 of the Staff Regulations. 37      That conclusion is not called into question by the applicant’s arguments concerning the alleged irregularities relating to the 2017 promotion exercise and the Commission’s conduct in complying with the judgment of 25 June 2020, XH v Commission (T‑511/18, EU:T:2020:291). Indeed, as stated in paragraph 6 above, the applicant had already brought an action against the decision of the Director-General of OLAF, adopted in the course of complying with that judgment, not to promote her in the 2017 promotion exercise, and the General Court dismissed that action by the judgment of 2 October 2024, XH v Commission (T‑11/23, not published, under appeal, EU:T:2024:665). 38      As for the argument which the applicant derives from the judgment of 9 June 2015, EF v EEAS (F‑65/14, EU:F:2015:53), it should be observed that that argument is based on a manifestly incorrect reading of that judgment. It follows from paragraphs 26 and 27 of that judgment that only officials who have completed a minimum of two years in their grade are eligible for promotion, the date of the promotion decision constituting the relevant date for the purpose of assessing whether the official has completed that minimum period in his or her grade. 39      Nor is that conclusion called into question by the argument whereby the applicant alleges that the rigid application of the requirement of two years in a grade constitutes a breach of the principles of equal treatment and proportionality. 40      Unequal treatment exists when two categories of persons, whose factual and legal situations present no essential differences, are treated differently or when different situations are treated in the same way. In the application of that principle, examination of the situations to be compared must take account of all the elements which characterise them (see judgment of 5 October 2020, CU v Committee of the Regions, T‑487/19, not published, EU:T:2020:462, paragraph 71 and the case-law cited). 41      Likewise, it follows from consistent case-law that the principle of proportionality requires that the acts of the EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures, recourse should be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see judgment of 22 November 2023, QN v eu-LISA, T‑484/22, EU:T:2023:741, paragraph 115 (not published) and the case-law cited). 42      The condition requiring completion of two years in a grade laid down in the Staff Regulations applies in the same way to all officials and constitutes an appropriate measure to restrict the frequency of reclassification of officials without compromising the objective of ensuring the reclassification of the most deserving candidates (see, by analogy, judgment of 22 November 2023, QN v eu-LISA, T‑484/22, EU:T:2023:741, paragraph 116 (not published)). 43      In the light of all of the foregoing, the claim seeking the annulment of the contested decision must be rejected as manifestly inadmissible, without there being any need to examine the first ground of inadmissibility put forward by the Commission, alleging that the application is not sufficiently clear and precise and therefore does not satisfy the requirements laid down in Article 76(d) of the Rules of Procedure.  The claim for compensation 44      The applicant seeks compensation for the material and non-material damage which she claims to have sustained as a result, in particular, of the adoption of the contested decision and an additional career delay resulting from the 2017 promotion exercise. 45      The Commission disputes the applicant’s arguments. 46      It should be borne in mind that it follows from settled case-law regarding claims for compensation in staff cases that the European Union may incur non-contractual liability only if a number of conditions are fulfilled, namely: (i) the institution’s conduct must be unlawful; (ii) actual damage must have been suffered; and (iii) there must be a causal link between the conduct and the damage alleged. Those three conditions are cumulative, which means that if one of them is not satisfied, the European Union cannot be held liable (see judgment of 25 June 2020, XH v Commission, T‑511/18, EU:T:2020:291, paragraph 161 and the case-law cited; see also, to that effect, judgment of 1 June 1994, Commission v Brazzelli Lualdi and Others, C‑136/92 P, EU:C:1994:211, paragraph 42). 47      Furthermore, it is settled case-law that a claim for compensation for material or non-material damage must be rejected in so far as it is closely associated with the claims seeking annulment which have themselves been rejected either as inadmissible or as unfounded (judgments of 5 February 1997, Ibarra Gil v Commission, T‑207/95, EU:T:1997:12, paragraph 88, and of 22 March 2018, Popotas v Ombudsman, T‑581/16, EU:T:2018:169, paragraph 171). 48      In the present case, since the claim for annulment has been rejected as manifestly inadmissible, the condition that the Commission’s conduct must be unlawful is not satisfied. 49      Consequently, the claim for compensation for material and non-material damage must be rejected as manifestly lacking any foundation in law.  The evidence produced by the applicant after the close of the written part of the procedure 50      On 30 July 2025, the applicant lodged at the Court Registry a letter including as an annex an email of 13 July 2025 whereby her physiotherapist informed her that he had been contact ‘in an informal or undocumented manner’ by persons working for OLAF who wished to verify certain aspects of a medical nature concerning her. 51      In the applicant’s submission, that letter and the email annexed thereto are admissible as new evidence, since that email, dated 13 July 2025, postdates the lodgement of the reply. She maintains, in essence, that the email confirms her arguments relating to the existence of a conflict of interests and procedural irregularities. 52      In its observations submitted on 21 August 2025, the Commission claims, in essence, that the email of 13 July 2025 relates to an OLAF investigation which is unrelated to the contested decision. It contends that the new evidence submitted by the applicant is inadmissible. 53      It should be borne in mind that Article 85(3) of the Rules of Procedure provides that the main parties may, exceptionally, produce or offer further evidence before the oral part of the procedure is closed or before the decision of the General Court to rule without an oral part of the procedure, provided that the delay in the submission of such evidence is justified. 54      In this instance, the email of 13 July 2025 refers to facts subsequent to the contested decision. They cannot therefore be taken into account for the purposes of the assessment of the lawfulness of that decision. Furthermore, those facts, on the assumption that they are made out, are not capable of demonstrating that, in the 2023 promotion exercise, the applicant satisfied the condition relating to a minimum of two years in her grade and that she was therefore eligible for promotion. 55      Thus, without there being any need to adjudicate on the admissibility of the new evidence submitted by the applicant, it must be held that, since the email of 13 July 2025 has no impact on the examination of the lawfulness of the contested decision, that new evidence is not relevant in the context of the present proceedings.  The measures sought by the applicant 56      In the application, the applicant asks the Court to order the Commission to produce numerous documents relating, in particular, to the 2017 and 2023 promotion exercises. In addition, she asks the Court to order that a number of persons be heard because of their participation in the appraisal and promotion procedures in question and their knowledge of those procedures. 57      In that regard, it should be borne in mind that Article 90 of the Rules of Procedure provides that measures of organisation of procedure are to be prescribed by the General Court. Furthermore, it follows from Article 92(1) of the Rules of Procedure that the General Court alone has jurisdiction to determine whether measures of inquiry are appropriate for the outcome of the proceedings. 58      In this instance, in so far as the present proceedings may be settled on the basis of the documents in the file, the measures sought by the applicant are unnecessary for the purposes of the outcome of the proceedings. Accordingly, all of the applicant’s requests must be rejected. 59      The action must therefore be dismissed in its entirety, without there being any need to grant the measures sought by the applicant.  Costs 60      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 61      As the applicant has been unsuccessful, she must be ordered to pay the costs, in accordance with the form of order sought by the Commission. On those grounds, THE GENERAL COURT (Tenth Chamber) hereby orders: 1.      The action is dismissed. 2.      XH shall pay the costs. Luxembourg, 12 January 2026. V. Di Bucci   S.L. Kalėda Registrar   President *      Language of the case: English.