JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (Second Chamber)

5 July 2007

Case F-26/06

**Marli Bertolete and Others**

**v**

**Commission of the European Communities**

(Civil service – Member of the contract staff – Classification and remuneration – Office for Infrastructure and Logistics Brussels (OIB) – Nursery school teachers – Former paid employees under Belgian law – Change of applicable regime – Equal treatment)

**Application:**brought under Articles 236 EC and 152 EA, in which Mrs Bertolete and eight other members of the Commission’s contract staff
seek annulment of the decisions of the authority empowered to conclude contracts of employment fixing their classification
and payment under contracts for members of the contract staff signed in April 2005 which took effect on 1 May 2005, and annulment
of the same authority’s decisions of 21 November 2005 dismissing their complaints against those earlier decisions.

**Held:**The decisions by which the Commission fixed the applicants’ remuneration on the basis of contract staff contracts signed in
April 2005 are annulled. The remainder of the action is dismissed. The Commission is ordered to bear its own costs and to
pay half of the applicants’ costs. The applicants are to bear half of their own costs.

**Summary**

1.      *Officials – Contract staff – Classification*

*(Conditions of Employment of Other Servants, Arts 80(2) and 82(2))*

2.      *Officials – Contract staff – Remuneration*

*(Conditions of Employment of Other Servants, Annex, Art. 2(2))*

3.      *Officials – Contract staff – Remuneration*

*(Conditions of Employment of Other Servants, Annex, Art. 2(2))*

1.      According to Article 82(2) of the Conditions of Employment of Other Servants, the minimum education and professional experience
required for recruitment as a member of the contract staff in function groups II and III are the same: the person concerned
must have a level of post-secondary education attested by a diploma, or a level of secondary education attested by a diploma
giving access to post-secondary education, together with, in the latter case, appropriate professional experience of at least
three years, or, where justified in the interest of the service, professional training or professional experience of an equivalent
level.

The details provided in Article 2(1)(b) and (c) of the general implementing provisions on the engagement and the use of contract
staff at the Commission are not such as to call that statement into question, particularly as regards the requirement for
a level of secondary education attested by a diploma, giving access to post-secondary education. The latter diploma gives
access to jobs in both function groups II and III, provided that the holder can claim appropriate professional experience
of three years.

That being so, the fact that the staff concerned can claim a diploma giving access to post-secondary education cannot in itself
justify their recruitment to function group III rather than function group II.

Moreover, the Commission has adopted general implementing provisions for the transitional measures applicable to staff employed
by the Office for Infrastructure in Brussels in the day nurseries and kindergartens in Brussels in order to circumscribe its
discretion in applying Article 80(2) of the Conditions of Employment of Other Servants, which defines the duties of the different
function groups. It is clear from Article 1(2)(b) and (c) of those general implementing provisions that persons employed as
nursery attendants belong to function group II, unless they have the status of ‘staff administrative coordinator under Belgian
law’, in which case they belong to function group III.

(see paras 38-41)

2.      It is clear from the wording of Article 2(2) of the Annex to the Conditions of Employment of Other Servants that where a worker
previously linked to the institution under an employment contract governed by national law has been engaged as a member of
the contract staff, resulting in a reduction in his remuneration compared with what he received under the previous contract,
the payment of an additional amount of remuneration is merely an option for the institution. Moreover, Article 2(2) allows
the institution a very broad discretion to fix the additional amount in so far as it is obliged to take into account differences
between the national fiscal, social security and pension legislation that applied under the previous contract and the rules
applicable to the contract staff member.

The Commission has applied Article 2(2) of the Annex to the Conditions of Employment of Other Servants by adopting Articles
7 and 8 of the general implementing provisions for the transitional measures applicable to staff employed by the Office for
Infrastructure in Brussels in the day nurseries and kindergartens in Brussels, together with Annexes I to III of those general
implementing provisions. Under the latter provisions, it has in fact undertaken to pay an additional amount to certain categories
of contract staff in accordance with the rules laid down in those provisions. Those rules for the application of Article 2(2)
of the Annex to the Conditions of Employment of Other Servants must not, however, infringe higher rules of civil service law.

(see paras 80-81, 83)

3.      In order to ascertain whether the inclusion of family allowances in the definition of net remuneration as a contract staff
member on the one hand, and as a salaried employee under national law on the other, is likely to penalise contract staff who,
on the dates referred to in Articles 7 and 8 of the general implementing provisions for the transitional measures applicable
to staff employed by the Office for Infrastructure in Brussels in the day nurseries and kindergartens in Brussels, had dependent
children as compared with those who, on the same dates, did not, it is important to note, first, that those two categories
of contract staff are placed in comparable situations for the purpose of Article 2(2) of the Annex to the Conditions of Employment
of Other Servants, which aims to compensate for any reduction in remuneration resulting from the fact that the workers concerned
have gained the status of contract staff.

Secondly, the inclusion of family allowances in the definition of net remuneration as a contract staff member on the one hand,
and as a salaried employee under national law on the other, directly affects the additional amount fixed as a result of comparing
those net remunerations in accordance with the rules laid down in Annex I to the general implementing provisions. Where the
amount of Community family allowances included in the first of the cases compared is higher than the allowances received under
the legislation of the Member State of employment and included in the second of the cases compared, the additional amount
paid to those who already have one or more dependent children on the day when they gain the status of contract staff member
would be correspondingly reduced.

It follows that the inclusion of family allowances in the definition of remuneration is likely to create differences of treatment
in terms of salary depending on whether or not the contract staff member concerned had dependent children on the dates provided
for in Articles 7 and 8 of the general implementing provisions, to the detriment of staff members who did have one or more
dependent children on those same dates. The fact that family allowances constitute a component of the remuneration which the
Communities are obliged to pay to their officials or other staff cannot, however, justify differences in treatment between
contract staff where it is simply a question of paying them additional salary to compensate for a reduction in remuneration
resulting from a move from a national law regime to a Community law regime.

Consequently, in the absence of any objective justification, paragraphs A and B of Annex I to the general implementing provisions
for the transitional measures applicable to staff employed by the Office for Infrastructure in Brussels in the day nurseries
and kindergartens in Brussels, to which Article 7 of those same general implementing provisions refers, infringes the general
principle of equal treatment.

(see paras 84-89)