Report for the Hearing delivered in Case 293/87

I — Summary of the facts

1. The applicant, François Vainker, is an official of the European Parliament and since 1 August 1983 has been in Grade A 5 in career bracket A 5/A 4.

2. According to Article 45(1) of the Staff Regulations of Officials of the European Communities (hereinafter referred to as the Staff Regulations), promotion is to be exclusively by selection, after consideration of the comparative merits of the officials eligible for promotion and of the report on them.

3. In 1982, by an internal directive on the composition and functioning of the Advisory Committee on Promotions, the President of the European Parliament set up an Advisory Committee on Promotions (hereinafter referred to as the Promotions Committee) to make recommendations on promotions to the appointing authority.

4. In 1986 an agreement was concluded between the Director-General for Personnel, Budget and Finance and the Staff Committee on the criteria for promotion. It was published in June 1986 in the Bulletin of the Syndicat général du personnel des organismes européens under the title Schéma de l'accord sur les critères pour le comité de promotion (Summary of the agreement on the criteria to be applied by the Promotions Committee). Under that agreement, promotions are to be made on the basis of two criteria, namely seniority and merit:

5. On 2 July 1986, the Promotions Committee adopted without amendment a list drawn up by the preparatory committee and recommended to the appointing authority the following promotions to Grade A 4:

6. According to its report of 2 July 1986, the Promotions Committee, having regard to seniority and periodic reports, awarded the following points to the officials concerned by the application:

7. On 30 October 1986 the Secretary-General of the European Parliament adopted three decisions, the first promoting to Grade A 4 Mr Timmann and Mr Reghellin, the second promoting to Grade A 4 Miss Langen, Mr Glass, Mr Wittenberg, Mr Schoo and Mr Comfort and the third promoting to Grade A 4 Mr Pennera and Mr Klotzbuecher.

8. These decisions were posted on the notice boards within the premises of the Parliament in February 1987, and by letter of 9 March 1987 the applicant submitted a complaint to the appointing authority under Article 90 of the Staff Regulations.

9. On 9 July 1987 the President of the European Parliament informed Mr Vainker that for the purpose of adopting a decision on the complaint the Secretary-General of the European Parliament had requested the Promotions Committee for additional information.

10. No reply to the complaint was received within the prescribed period.

II — Written procedure and conclusions of the parties

1. François Vainker's application was lodged at the Court Registry on 1 October 1987.

2. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry.

3. François Vainker, applicant, claims that the Court should:

4. The European Parliament, defendant, contends that the Court should:

III — Submissions and arguments of the parties

1. François Vainker claims that the method whereby the promotion decisions were reached is unlawful by reason of its being in breach of Article 45(1) of the Staff Regulations, and that accordingly the promotion decisions themselves are in breach of that article and in any event involve an unreasonable and improper exercise of the discretion given to the appointing authority under that provision.

2. The European Parliament submits that the action for annulment of the implied decision rejecting Mr Vainker's complaint is not in itself admissible. The rejection of a complaint submitted pursuant to Article 90(2) of the Staff Regulations is not in itself a new act adversely affecting the official, but a necessary procedural step within the general framework of the appeals procedure of Articles 90 and 91 of the Staff Regulations. The European Parliament therefore considers the application for annulment of the implied decision rejecting the complaint as part of the action for the annulment of the contested promotion decisions.

1 Language of the case: English.