JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber, Extended Composition)

11 July 2007 ([\*](#Footnote*))

(Staff cases – Officials – Appointment – Entry into force of the new Staff Regulations – Transitional rules for classification in grade on recruitment – Article 12 of Annex XIII to the new Staff Regulations)

In Case T‐58/05,

**Isabel Clara Centeno Mediavilla,** residing in Seville (Spain),

**Delphine Fumey,** residing in Evere (Belgium),

**Eva Gerhards,** residing in Brussels (Belgium),

**Iona M. S. Hamilton,** residing in Brussels,

**Raymond Hill,** residing in Brussels,

**Jean Huby,** residing in Brussels,

**Patrick Klein,** residing in Brussels,

**Domenico Lombardi,** residing in Brussels,

**Thomas Millar,** residing in London (United Kingdom),

**Miltiadis Moraitis,** residing in Woluwe-Saint-Lambert (Belgium),

**Ansa Norman Palmer,** residing in Brussels,

**Nicola Robinson,** residing in Brussels,

**François-Xavier Rouxel,** residing in Brussels,

**Marta Silva Mendes,** residing in Brussels,

**Peter van den Hul,** residing in Tervuren (Belgium),

**Fritz Von Nordheim Nielsen,** residing in Hoeilaart (Belgium),

**Michaël Zouridakis,** residing in Brussels,

represented initially by G. Vandersanden, L. Levi and A. Finchelstein, and subsequently by Vandersanden and Levi, lawyers,

applicants,

v

**Commission of the European Communities,** represented by J. Currall and H. Kraemer, acting as Agents,

defendant,

supported by

**Council of the European Union,** represented initially by M. Arpio Santacruz, M. Sims and I. Sulce, and subsequently by Arpio Santacruz and Sulce, acting
as Agents,

intervener,

APPLICATION for annulment of the decisions appointing the applicants probationary officials, in so far as they fix their classification
in grade in accordance with the transitional provisions of Article 12(3) of Annex XIII to the Staff Regulations of Officials
of the European Communities, as amended by Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 (OJ 2004 L 124, p.
1),

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fourth Chamber, Extended Composition),

composed of H. Legal, President, I. Wiszniewska-Białecka, V. Vadapalas, E. Moavero Milanesi and N. Wahl, Judges,

Registrar: K. Pocheć, Administrator,

having regard to the written procedure and further to the hearing on 6 December 2006,

gives the following

**Judgment**

**Legal context**

1        In the version applicable until 30 April 2004, Article 31 of the Staff Regulations of officials of the European Communities
(‘the old Staff Regulations’) provided that the successful candidates in open competitions, who were selected by the appointing
authority from lists of suitable candidates drawn up by the selection boards following selection tests, were to be appointed,
in the case of officials in Category A, to the starting grade, and in the case of officials in other categories, to the starting
grade for the post for which they had been recruited.

2        Pursuant to Article 2 of Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending the old Staff Regulations
and the Conditions of Employment of other servants of the European Communities (OJ 2004 L 124, p. 1), that regulation entered
into force on 1 May 2004.

3        It introduced a new careers system in the Community civil service by substituting new function groups of administrators (AD)
and assistants (AST) for the old categories of officials of the European Communities, A, B, C and D.

4        As a result of that amendment, Article 5 of the Staff Regulations, in its wording in force as from 1 May 2004 (‘the Staff
Regulations’), now provides as follows:

‘1. The posts covered by the Staff Regulations shall be classified, according to the nature and importance of the duties to
which they relate, in an administrators’ function group (“AD”) and an assistants’ function group (“AST”).

2. Function group AD shall comprise twelve grades, corresponding to administrative, advisory, linguistic and scientific duties.
Function group AST shall comprise eleven grades, corresponding to executive, technical and clerical duties.

...

4. A table showing types of posts is given in Annex I, point A. By reference to this table, each institution shall define
the duties and powers attaching to each type of post after consulting the Staff Regulations Committee.

5. Identical conditions of recruitment and service career shall apply to all officials belonging to the same function group.’

5        Article 31 of the Staff Regulations provides:

‘1. Candidates selected shall be appointed to the grade of the function group set out in the notice of the competition they
have passed.

2. Without prejudice to Article 29(2), officials shall be recruited only at grades AST 1 to AST 4 or AD 5 to AD 8. The grade
of the competition notice shall be determined by the institution in accordance with the following criteria:

(a)       the objective of recruiting officials of the highest standard as defined in Article 27;

(b)       the quality of the professional experience required.

To address specific needs of the institutions, labour market conditions prevailing in the Community may also be taken into
account when recruiting officials.

...’

6        In the version in force since 1 May 2004, the Staff Regulations include a new annex, Annex XIII, entitled ‘Transitional measures
applicable to officials of the Communities’, the relevant provisions of which are worded as follows:

‘Article 1

1. For the period from 1 May 2004 to 30 April 2006 Article 5(1) and (2) of the Staff Regulations are replaced by the following:

“1. The posts covered by the Staff Regulations shall be classified, according to the nature and importance of the duties to
which they relate, in four categories A\*, B\*, C\* and D\*, in descending order of rank.

2. Category A\* shall comprise twelve grades, category B\* shall comprise nine grades, category C\* shall comprise seven grades
and category D\* shall contain five grades.”

2. Any reference to the date of recruitment shall be taken to refer to the date of entry into service.

Article 2

1.      On 1 May 2004, and subject to Article 8 of this Annex, the grades of officials having one of the administrative statuses set
out in Article 35 of the Staff Regulations shall be renamed as follows:

| | | | | | | | |
| --- | --- | --- | --- | --- | --- | --- | --- |
| Former grade | New (intermediate) grade | Former grade | New (intermediate) grade | Former grade | New (intermediate) grade | Former grade | New (intermediate) grade |
| A1 | A\*16 | | | | | | |
| A2 | A\*15 | | | | | | |
| A3/LA3 | A\*14 | | | | | | |
| A4/LA4 | A\*12 | | | | | | |
| A5/LA5 | A\*11 | | | | | | |
| A6/LA6 | A\*10 | B1 | B\*10 | | | | |
| | | | | | | | |
| A7/LA7 | A\*8 | B2 | B\*8 | | | | |
| A8/LA8 | A\*7 | B3 | B\*7 | C1 | C\*6 | | |
| | | B4 | B\*6 | C2 | C\*5 | | |
| | | B5 | B\*5 | C3 | C\*4 | D1 | D\*4 |
| | | | | C4 | C\*3 | D2 | D\*3 |
| | | | | C5 | C\*2 | D3 | D\*2 |
| | | | | | | D4 | D\*1 |

...’

7        Article 4 of Annex XIII to the Staff Regulations provides inter alia as follows:

‘For the purposes of these provisions and for the period specified in the introductory sentence of Article 1 of this Annex,

(a)       the words “function group” shall be replaced by “category”:

(i) in the Staff Regulations in:

–        Article 5(5),

–        ...

–        Article 31(1),

...

(b)       the word “function group AD” shall be replaced by “category A\*”:

(i) in the Staff Regulations in:

–        Article 5(3), point (c);

...

(e)      in Article 5(3)(a) of the Staff Regulations the words “function group AST” are replaced by “categories B\* and C\*”;

...

(n)      in Article 5(4) of the Staff Regulations, the reference to “Annex I, point A” [is] replaced by a reference to “Annex XIII.1”;

...’

8        Article 12 of Annexe XIII to the Staff Regulations provides:

‘1. Between 1 May 2004 and 30 April 2006, reference to grades in function groups AST and AD in paragraph 2 and 3 of Article
31 of the Staff Regulations shall be made as follows:

–        AST 1 to AST 4: C\*1 to C\*2 and B\*3 to B\*4

–        AD 5 to AD 8: A\*5 to A\*8

–        AD 9, AD 10, AD 11, AD 12: A\*9, A\*10, A\*11, A\*12.

2. In the case of officials recruited from lists of suitable candidates resulting from competitions published before 1 May
2004 Article 5(3) of the Staff Regulations shall not apply.

3. Officials who have been included in a list of suitable candidates before 1 May 2006 and are recruited between 1 May 2004
and 30 April 2006 shall:

–         if the list was drawn up for category A\*, B\* or C\*, be graded in the grade published in the competition,

–        if the list was drawn up for category A, LA, B or C, be graded in accordance with the following table:

–        

| | |
| --- | --- |
| Grade of the competition | Grade of recruitment |
| A8/LA8 | A\*5 |
| A7/LA7 and A6/LA6 | A\*6 |
| A5/LA5 and A4/LA4 | A\*9 |
| A3/LA3 | A\*12 |
| A2 | A\*14 |
| A1 | A\*15 |
| B5 and B4 | B\*3 |
| B3 and B2 | B\*4 |
| C5 and C4 | C\*1 |
| C3 and C2 | C\*2’ |

**Facts**

9        The Commission published in the *Official Journal of the European Communities*, during the period between 11 April 2001 and 18 June 2002, a number of notices of open competitions to constitute reserves
of Administrators in career bracket A7/A6 (COM/A/6/01, COM/A/9/01, COM/A/10/01, COM/A/1/02, COM/A/3/02 and CC/A/12/02), Assistant
Administrators in career bracket A8 (competition COM/A/2/02) and Administrative Assistants in career bracket B5/B4 (competition
COM B/1/02).

10      The 17 applicants were included before 1 May 2004 on the various lists of suitable candidates drawn up following the selection
tests.

11      Under the section headed ‘Recruitment’, the competition notices stated that if successful candidates were placed on a reserve
list they would be eligible for appointment, as required.

12      At the end of point D (‘General Information’) of the notices of open competitions COM/A/l/02 and COM/A/2/02, the following
note appeared:

‘The Commission has formally transmitted to the Council a proposal to amend the Staff Regulations. This proposal contains,
inter alia, a new career system. The successful candidates in this competition could, therefore, be offered a post on the
basis of new Staff Regulations, if they have been adopted by the Council.’

13      The notice of competition COM/A/3/02 contained an almost identical note which referred to ‘the provisions of the new Staff
Regulations’.

14      The lists of suitable candidates drawn up following competitions COM/A/6/01, COM/A/9/01 and COM/A/10/01 (‘the 2001 competitions’)
were published in the *Official Journal of the European Communities* on, respectively, 19 November 2002 (competition COM/A/6/01), 8 March (competition COM/A/10/01) and 2 July 2003 (competition
COM/A/9/01).

15      The letters informing the successful candidates in the 2001 competitions of their inclusion on the list of suitable candidates
stated inter alia that the validity of that list was due to expire on 31 December 2003.

16      In December 2003, the Commission’s Directorate-General for Personnel and Administration sent a letter to each of the successful
candidates in the 2001 competitions, informing them that the validity of the various lists of suitable candidates was being
extended until 31 December 2004.

17      The lists of suitable candidates drawn up following competitions COM/A/l/02, COM/A/2/02, COM/A/3/02, COM/B/1/02 and CC/A/12/02
(‘the 2002 competitions’) were published in the *Official Journal of the European Communities* on, respectively, 19 December 2003 (competition CC/A/12/02), 23 March (competitions COM/A/1/02 and COM/A/2/02) and 18 May
2004 (competitions COM/A/3/02 and COM/B/1/02).

18      The applicants were appointed probationary officials by decisions adopted after 1 May 2004 (‘the contested decisions’) and
taking effect by a date between that date and 1 December 2004.

19      By the contested decisions, the applicants were graded in accordance with Article 12(3) of Annex XIII to the Staff Regulations,
that is to say, in grade B\*3 (competition COM/B/1/02), grade A\*5 (competition COM/A/2/02) or grade A\*6 (all other competitions).

20      All the applicants lodged, between 6 August 2004 and 21 October 2004, complaints under Article 90(2) of the Staff Regulations
against the decisions appointing them probationary officials in so far as those decisions fixed their classification, in accordance
with Article 12(3) of Annex XIII to the Staff Regulations, at grades less favourable than those set out in the various competition
notices.

21      By decisions taken between 21 October 2004 and 22 December 2004, the appointing authority rejected the complaints lodged by
the applicants.

**Procedure and forms of order sought by the parties**

22      By application lodged at the Registry of the Court of First Instance on 3 February 2005, the applicants brought the present
action.

23      By order of 6 June 2005 of the President of the Fourth Chamber of the Court of First Instance, the Council was granted leave
to intervene in support of the forms of order sought by the Commission.

24      By decision of 6 October 2006, the Court decided to refer the case to the Fourth Chamber, Extended Composition.

25      The applicants claim that the Court should:

–        annul the contested decisions in so far as they fix their classification in grade in accordance with Article 12(3) of Annex
XIII to the Staff Regulations;

–        reconstitute their careers (including recognition of their experience in the grade thus amended, their rights to promotion
and their pension entitlement), starting from the grade at which they should have been appointed as stated in the notice of
the competition following which they were placed on the list of suitable candidates, either at the grade mentioned in that
competition notice or at that corresponding to its equivalent according to the classification established by the rules laid
down in the new Staff Regulations (and at the appropriate step in accordance with the rules applicable before 1 May 2004),
as from the appointment decision;

–        award them default interest, calculated on the basis of the rate fixed by the European Central Bank, payable in respect of
all sums corresponding to the difference between the salary corresponding to their classification shown in the appointment
decision and the classification to which they should have been entitled, up to the date of the decision properly classifying
them in grade;

–        order the Commission to pay the entire costs.

26      The Commission, supported by the Council, contends that the Court should:

–        dismiss the action as unfounded;

–        make an appropriate order as to costs.

**Law**

27      In support of their claims for annulment, the applicants put forward, firstly, a plea of illegality of Article 12(3) of Annex
XIII to the Staff Regulations, on the basis of which the Commission determined their classification in grade in the contested
decisions.

28      Secondly, the applicants claim that the contested decisions themselves infringe the principle of good administration, the
principle that an institution is to have regard for the welfare of its officials, the principles of the protection of transparency,
of the protection of legitimate expectations, of good faith, of equal treatment and non-discrimination, and the rule of equivalence
of post and grade.

*Illegality of Article 12(3) of Annex XIII to the Staff Regulations*

29      The applicants maintain that Article 12(3) of Annex XIII to the Staff Regulations is contrary to Article 10 of the old Staff
Regulations, infringes their acquired rights, breaches the principles of legal certainty and non-retroactivity and the principles
of equal treatment and non-discrimination, infringes their legitimate expectations and contravenes both Article 31 of the
Staff Regulations and Articles 5 and 7 thereof.

 Infringement of Article 10 of the old Staff Regulations

–       Arguments of the parties

30      The applicants complain that the Commission failed to consult the Staff Regulations Committee on an amendment made to the
Proposal for a regulation amending the old Staff Regulations and aimed at appointing successful candidates in competitions
of which the notice specified the grade of recruitment A7 or A6, not at grade A\*7, as provided for in the text previously
submitted to the Staff Regulations Committee, but at the lower grade A\*6.

31      That amendment, inserted in the provision which became Article 12(3) of Annex XIII to the Staff Regulations, is not, contrary
to what the Commission maintains, marginal, non-substantial or gradual and non-structural, since it entails a considerable
reduction in the applicants’ pecuniary rights and career prospects.

32      By failing to consult the Staff Regulations Committee on that fundamental amendment to the Staff Regulations, the Commission
thus infringed the second paragraph of Article 10 of the old Staff Regulations.

33      The Commission objects that a further consultation of the Staff Regulations Committee is required only when the proposal on
which that body has expressed an opinion has been amended to the extent that its very substance has been affected.

34      However, the amendment consisting in substituting the grade A\*6 for the grade A\*7 is not substantial in character since its
scope is very limited and it must be borne in mind that the new career structure is based on a more sustained promotion rate
than the old structure.

–       Findings of the Court

35      Under the second sentence of the second paragraph of Article 10 of the old Staff Regulations, the Staff Regulations Committee
is to be consulted by the Commission on any proposal for revision of the Staff Regulations. That provision imposes on the
Commission a consultation obligation which extends not only to formal proposals but also to the introduction by it of substantial
amendments to proposals which have already been considered, unless, in the latter case, the amendments correspond, in essence,
to those proposed by the Staff Regulations Committee.

36      That interpretation is dictated both by the wording of the provision in question and by the role assumed by the Staff Regulations
Committee. First, by providing for consultation without reservation or exception on any proposal for revision of the Staff
Regulations, that provision attaches a wide scope to the obligation laid down by it. Its terms are therefore manifestly irreconcilable
with a narrow interpretation of its scope. Second, the Staff Regulations Committee, as a joint body composed both of representatives
of the administrative authorities and of democratically elected representatives of the staff of all the institutions, is called
upon to take into consideration and express the interests of the Community civil service as a whole (Case T‐164/97 *Busacca and Others* v *Court of Auditors* [1998] ECR‐SC I‐A‐565 and II‐1699, paragraphs 91 to 95).

37      It follows that, when amendments to a proposal for revision of the Staff Regulations are introduced during the negotiation
of the text before the Council, there is an obligation to re-consult the Staff Regulations Committee before the legislative
provisions concerned are adopted by the Council, if those amendments substantially affect the tenor of the proposal. Specific
amendments of limited effect do not entail such an obligation which would, on the contrary interpretation, have the effect
of excessively restricting the right of amendment in the context of the Community legislative process.

38      The character, be it substantial or specific and limited, of the amendments in question must therefore be assessed from the
point of view of their subject-matter and the position of the amended provisions within the whole body of enacting terms proposed
for adoption, and not of that of the individual consequences which they may have for the situation of persons likely to be
affected by their implementation.

39      In this instance, the restructuring of the grades of classification and pay scale of officials of the European Communities
arising from the reform of career brackets introduced by the Community legislature had the immediate consequential effect
of lowering the grades of recruitment for new officials, accompanied in due course by an expansion of their career prospects.

40      It follows that the substitution of the grade A\*6 for the grade A\*7 initially envisaged constitutes an additional element
of the reform, which fits into the broad logic and overall perspective of a progressive restructuring of career structures.

41      That substitution amounts to a specific adaptation of the transitional provisions leading towards the new career structure,
neither the general tenor nor the substance itself of which thus appear to be affected by that adaptation, to the extent that
it would justify re-consultation of the Staff Regulations Committee (see, to that effect, C‐280/93 *Germany* v *Council* [1994] ECR I‐4973, paragraph 41).

42      It is therefore not apparent that, by not re-consulting the Staff Regulations Committee on a simple addition brought about
by the general scheme of the proposal for amendment of the Staff Regulations, as it had previously been submitted to the Staff
Regulations Committee, the Commission infringed the second sentence of the second paragraph of Article 10 of the old Staff
Regulations, even though the substitution of grade A\*6 for grade A\*7, inserted after the Staff Regulations Committee had been
consulted, did immediately have a significant financial effect on the level of the initial classification of the officials
concerned and on the salary paid to them at the start of their careers.

43      The plea must therefore be rejected as unfounded.

 Infringement of the applicants’ acquired rights and breach of the principles of legal certainty and non-retroactivity

–       Arguments of the parties

44      The applicants submit that their right to be classified at the grade referred to in the notices of the competitions in question,
which are binding on the appointing authority and place it under obligation to them, stems from their inclusion on a list
of suitable candidates. By fixing their classification at a different grade of recruitment, Article 12(3) of Annex XIII to
the Staff Regulations therefore infringes their acquired rights

45      That provision is also contrary to the principle of non-retroactivity in so far as it alters, by the insertion of new criteria
for classification, the situation which the applicants were entitled to expect in the light of the statements contained in
the competition notices.

46      Finally, the contested provision infringes the principle of legal certainty, pursuant to which citizens must be able to rely
on the conditions laid down by competition notices. Those conditions remain valid so long as the persons concerned have not
received, in due time, clear, complete and precise information on new provisions applicable to their classification in grade
on recruitment.

47      The Commission, supported by the Council, submits that the contested provision is not contrary to the principles invoked by
the applicants. It argues in essence that inclusion on a list of suitable candidates confers mere eligibility, and no right,
to be appointed a probationary official and, *a fortiori*, does not confer any right to be classified in a particular grade in the event of appointment. There can therefore be no
question of any acquired rights being affected, since the emergence of a legal situation prior to a legislative amendment
is a necessary, but not sufficient, condition for the establishment of an acquired right.

–       Findings of the Court

48      It is established that Regulation No 723/2004, which inserts Article 12(3) of Annex XIII to the Staff Regulations into the
text of the Staff Regulations, entered into force on 1 May 2004, that is, on a date subsequent to that of its publication,
27 April 2004.

49      Since the date on which it took effect does not precede the date of its publication, Regulation No 723/2004 cannot be held
to be retroactive (see, to that effect, Case T‐177/95 *Barraux and Others* v *Commission* [1996] ECR‐SC I‐A-541 and II‐1451, paragraphs 45 and 46).

50      In so far as it lays down new criteria for classification in grade which are applicable upon the recruitment of successful
candidates in competitions who are included on lists of suitable candidates before 1 May 2004 but appointed probationary officials
after that date, Article 12(3) of Annex XIII to the Staff Regulations is therefore not contrary to the principle of non-retroactivity.

51      According to settled case-law, it is well established that, in the event of amendment of provisions of general application
and, in particular, of the provisions of the Staff Regulations, a new rule applies immediately to the future effects of legal
situations which arose, but were not fully constituted, under the previous rule (Case 68/69 *Brock* [1970] ECR 171, paragraph 7; Case 143/73 *SOPAD* [1973] ECR 1433, paragraph 8; and Case 270/84 *Licata* v *ESC* [1986] ECR 2305, paragraph 31).

52      In this case, Article 12(3) of Annex XIII to the Staff Regulations was not capable of infringing any right which may have
been held by the applicants to the application of the criteria for classification under the old Staff Regulations. The inclusion
of successful candidates in open competitions on the lists of suitable candidates drawn up as a result of selection processes
merely renders those concerned eligible to be appointed probationary officials, as was pointed out, moreover, by the notices
of the open competitions in question (see, to that effect, Case T‐173/99 *Elkaïm and Mazuel* v *Commission* [2000] ECR‐SC I‐A‐101 and II‐433, paragraph 21).

53      That eligibility is necessarily to the exclusion of any acquired right, since the classification in grade of a successful
candidate included on the list of suitable candidates in an open competition cannot be regarded as acquired so long as he
has not been the subject of an appointment decision in good and due form.

54      As is clear from Article 3 of the Staff Regulations, the appointment of an official necessarily has its origin in a unilateral
instrument of the appointing authority stating the date on which the appointment takes effect and the post to which the official
is appointed (Case T‐40/91 *Ventura* v *Parliament* [1992] ECR II‐1697, paragraph 41).

55      Consequently, it is only after being the subject of such a decision that a successful candidate in an open competition can
claim the status of official and therefore demand the application to him of provisions of the Staff Regulations (Case T‐74/98
*Mammarella* v *Commission* [1999] ECR‐SC I‐A‐151 and II‐797, paragraph 27).

56      However, on 1 May 2004, the date of the entry into force of Article 12(3) of Annex XIII to the Staff Regulations, the applicants
had not yet been declared eligible, by an instrument of appointment of the appointing authority, for the application to them
of provisions of the Staff Regulations.

57      The applicants are therefore not justified in alleging that Article 12(3) of Annex XIII to the Staff Regulations infringed
rights to classification in the grades of the former career brackets set out in the competition notices in question, which
they acquired, before 1 May 2004, by virtue of their inclusion on the lists of suitable candidates drawn up following the
selection processes.

58      An official cannot claim an acquired right unless the facts giving rise to that right arose by virtue of a particular status
prior to the amendment of the provisions of the Staff Regulations (Case 28/74 *Gillet* v *Commission* [1975] ECR 463, paragraph 5).

59      It follows that no acquired right of the applicants to a particular classification in grade has been infringed in this case.

60      Finally, the principle of legal certainty invoked by the parties concerned applies to situations of the type at issue here
only where a Community legislative measure takes effect from a point in time before its publication (Case C‐337/88 *SAFA* [1990] ECR I‐1, paragraph 13), and where Community rules apply to situations existing before their entry into force (Case
21/81 *Bout* [1982] ECR 381, paragraph 13), assumptions which are not relevant to this case, as has been established above.

61      It follows that the principle of legal certainty cannot have been infringed by the Community legislature.

62      The applicants are therefore not justified in maintaining that the provision contested by means of a plea of illegality infringes
their acquired rights or the principles of legal certainty and non-retroactivity.

63      The claim must therefore be rejected as unfounded.

 Breach of the principle of equal treatment and non-discrimination

–       Arguments of the parties

64      Without disputing the right of the legislature to amend the provisions of the Staff Regulations, the applicants maintain that
Article 12(3) of Annex XIII to the Staff Regulations treats differently an identical category of persons, consisting of successful
candidates in the same competition, with regard to their classification in grade and, consequently, their monthly salary,
depending on whether they were recruited before 1 May 2004 or from that date onwards.

65      That date cannot be regarded, for the purposes of classification in grade on recruitment, as an objective distinguishing criterion,
since the date of appointment of an official depends on factors which are not objective and over which the applicants have
no control.

66      The only objective criterion to be taken into account in that regard is the date, earlier than 1 May 2004, of the letter informing
all the successful candidates in the competitions of their inclusion on the list of suitable candidates. Even though they
had no right to be appointed, they had from then on, in the event of appointment, the right to be recruited at the grade mentioned
in the vacancy notice and the competition notice, and in accordance with Article 31 of the old Staff Regulations.

67      In Case T‐92/96 *Monaco* v *Parliament* [1997] ECR‐SC I‐A‐195 and II‐573, the Court held, firstly, that it is not necessary to take into account the date of a candidate’s
recruitment in order to determine the provisions applicable to him and, secondly, that observance of the principle of non-discrimination
and equal treatment requires that all the successful candidates in a competition be treated identically, irrespective of any
new rules which may be adopted before some of those candidates are appointed.

68      Another discriminating factor arises from the fact that the downgrading of their classification has the effect of assigning
to all the applicants ‘senior’ posts with ‘junior’ grades. In so far as they had already acquired considerable professional
experience and were in possession of significant qualifications and diplomas, they were subject, in breach of Article 1d of
the Staff Regulations, to discrimination based on their age, since they do not have the same career prospects as other, younger
officials benefiting from the same classification.

69      Furthermore, since some of the applicants had, before their appointment as probationary officials, the status of members of
the temporary staff or the auxiliary staff of the European Communities, they were assigned, under the new rules laid down
in the Staff Regulations, the same posts with the same duties, or even increased duties, whereas, on the other hand, their
classification in grade was lowered.

70      The Commission submits, on the contrary, that the successful candidates in the competitions at issue, who were appointed before
1 May 2004 and from that date onwards respectively, are not in a comparable situation.

71      As follows by implication from Article 3 in conjunction with the first paragraph of Article 4 of the Staff Regulations, the
relevant date for the purpose of determining whether an instrument appointing an official is legal is that on which it takes
effect. However, both the dates on which the contested decisions were adopted and those on which they took effect were later
than 1 May 2004.

72      Since the lawfulness of a Community measure must be assessed on the basis of the facts and law existing on the date of its
adoption, the successful candidates in the competitions at issue who were appointed before 1 May 2004 were eligible to be
appointed officials in accordance with the provisions of Articles 31 and 32 of the old Staff Regulations, whereas, following
the entry into force of Regulation No 723/2004, the successful candidates in the competitions at issue who were appointed
after that date were eligible to be appointed officials in accordance with the transitional provisions of Article 12(3) of
Annex XIII to the Staff Regulations.

73      Unlike *Monaco* v *Parliament*, these proceedings relate neither to the administrative practice of an institution concerning the classification in grade
of the officials recruited by it nor to an internal directive laying down such an administrative practice, but to a provision
which is enacted by the Community legislature and which does not entail the risk of arbitrariness inherent in an ad hoc amendment
made by an institution to an internal directive relating to classification in grade on recruitment.

74      The Community legislature is at any time entitled to adopt, for the future, any amendments to the provisions of the Staff
Regulations which it considers to be consistent with the interests of the service, even if such amendments result in a situation
less favourable to officials than that which resulted from the former provisions.

–       Findings of the Court

75      According to settled case-law, the general principle of equal treatment and non-discrimination requires that comparable situations
are not treated differently unless differentiation is objectively justified (Case T‐109/92 *Lacruz Bassols* v *Court of Justice* [1994] ECR‐SC I‐A 31 and II‐105, paragraph 87).

76      In order to determine whether the applicants can properly rely on that principle, it must therefore be determined whether
all the successful candidates in the competitions in question who were included on the lists of suitable candidates drawn
up following the selection processes must be regarded as falling within a single category of persons, whether they were appointed
before 1 May 2004 or from that date onwards.

77      As is apparent from the arguments set out above, the classification in grade of the applicants could be lawfully carried out
only in accordance with the new criteria in force on the date of the adoption of the decision appointing them probationary
officials.

78      The applicants do in fact implicitly acknowledge that the new provisions of the Staff Regulations are indeed applicable to
them, in so far as they claim that they should benefit from the application of Article 1d of the Staff Regulations.

79      By contrast, the successful candidates in the competitions in question who were appointed prior to 1 May 2004 were bound to
be classified in grade on the basis of the old criteria still in force on the date of their appointment but abolished since
that date by virtue of the entry into force of the new provisions of the Staff Regulations.

80      It follows that the applicants cannot be regarded as falling within the same category of persons as the successful candidates
in the competitions in question who were recruited prior to 1 May 2004.

81      The applicants cannot therefore properly maintain that their inclusion on the list of suitable candidates prior to 1 May 2004
conferred on them a right to be appointed, in the event of recruitment, at the grade mentioned in the vacancy notice or in
the competition notice, or at the corresponding grade under Article 2(1) of Annex XIII to the Staff Regulations, and in accordance
with Article 31 of the old Staff Regulations.

82      As long as their appointment remained hypothetical, they did not have capacity to rely on classification criteria under the
Staff Regulations which are applicable upon the recruitment of successful candidates in open competitions.

83      Indeed, by specifying that the transitional provisions of the Staff Regulations should respect the acquired rights of the
staff in the framework of the Community system before the entering into force of the new body of rules governing the Community
civil service, recital 37 in the preamble to Regulation No 723/2004 confirms the distinction which must be made between the
successful candidates in the competitions at issue who were appointed before and those who were appointed from 1 May 2004
onwards.

84      The idea that all the officials recruited by an institution from the same competition are in comparable situations was advanced
in paragraph 55 of the judgment in *Monaco* v *Parliament* only for the purpose of establishing the illegality of applying to a successful candidate in an open competition stricter
internal directives on classification in grade adopted by the employer institution itself after the inclusion of the person
concerned on the list of suitable candidates, with a view to applying classification criteria under the Staff Regulations
which had remained unchanged.

85      In this instance, and in any event, it was, on the contrary, the Community legislature which, in exercising a right of which
the applicants themselves state that they do not dispute the existence, chose to amend the criteria in the Staff Regulations
for the classification in grade of new officials on their recruitment.

86      According to settled case-law, the legislature is entitled at any time to make, for the future, such amendments to the Staff
Regulations as it considers to be consistent with the interests of the service, even if those amendments are, as in this case,
less favourable (Case T‐121/97 *Ryan* v *Court of Auditors* [1998] ECR II‐3885, paragraph 98).

87      Since the post to which the official is appointed is itself also determined by the appointment decision (*Ventura* v *Parliament*, cited above, paragraph 41) and that decision may be based only on the provisions applicable on the date of its adoption,
nor can it be regarded as discriminatory to assign to certain applicants, under the new rules in the Staff Regulations, a
lower classification in grade, even though they are now being appointed to the same post as that which they had held before
1 May 2004 as non-established members of staff and are performing duties identical to, or even more important than, those
they performed in the past. .

88      Finally, the argument based on the alleged downgrading of the applicants’ classification, resulting in their appointment to
‘senior’ posts classified in ‘junior’ grades and in the absence of career prospects, which are by contrast available to other,
younger officials benefiting from the same classification, must be rejected.

89      Apart from the fact that it cannot be characterised, contrary to what the applicants maintain, as discrimination based on
age within the meaning of Article 1d of the Staff Regulations, since the new criteria for classification in grade are manifestly
unconnected with any taking into account of the age of the persons concerned, such a circumstance cannot be regarded as a
breach of the principle of equal treatment and non-discrimination for the reasons set out above.

90      It follows that Article 12(3) of Annex XIII to the Staff Regulations is not contrary to the principle of equal treatment and
non-discrimination.

91      In those circumstances, the claim cannot succeed.

 Breach of the principle of the protection of legitimate expectations

–       Arguments of the parties

92      The applicants maintain that Article 12(3) of Annex XIII to the Staff Regulations breaches the principle of the protection
of legitimate expectations in so far as they were justified in expecting to benefit, after their success in the competitions
in question, from treatment in accordance with the conditions laid down in the competition notices.

93      New rules can apply to the future effects of a situation which arose under previous provisions only provided that they do
not alter substantially situations established under the old Staff Regulations, are foreseeable and justified by an overriding
public interest.

94      The Commission replies in essence that the applicants were not justified in entertaining legitimate expectations of a classification
in the grade set out in the competition notices.

–       Findings of the Court

95      It is sufficient to recall that an official cannot rely on the principle of the protection of legitimate expectations in order
to challenge the lawfulness of a new regulation, particularly in a field in which the legislature has, as in this case, a
wide discretion, the principle of which the applicants have in no way disputed, as to the need for reforms to the Staff Regulations
(see, to that effect, Case T‐30/02 *Leonhardt* v *Parliament* [2003] ECR‐SC I‐A-41 and II‐265, paragraph 55).

96      Moreover, the right to rely on the principle of the protection of legitimate expectations extends to any individual who is
in a situation in which it is apparent that the Community administration has led him to entertain justified expectations by
giving him precise assurances in the form of precise, unconditional and consistent information coming from authorised and
reliable sources.

97      However, a person may not plead breach of that principle unless he has been given precise assurances by the administration
(Case T‐273/01 *Innova Privat-Akademie* v *Commission* [2003] ECR II‐1093, paragraph 26).

98      However, the fact remains that the file does not contain any document which would enable the applicants to conclude that the
Community institutions gave them any assurances capable of giving rise to a legitimate expectation of the maintenance of the
old criteria of the Staff Regulations for the classification in grade of officials on their recruitment. Competition notices
and correspondence from the Commission even pointed out that the successful candidates in the competitions could be offered
recruitment on the basis of new provisions of the Staff Regulations.

99      Finally, the applicants cannot properly rely on a substantial change in a situation established under the old Staff Regulations
since, as has been stated above, the inclusion of the applicants on a list of suitable candidates could not have the effect
of entitling them to benefit from such a situation.

100    In those circumstances, the claim cannot be allowed.

 Inconsistency of Article 12(3) of Annex XIII to the Staff Regulations with Article 31(1) of the Staff Regulations

–       Arguments of the parties

101    The applicants claim that Article 12(3) of Annex XIII to the Staff Regulations is inconsistent with Article 31(1) of the Staff
Regulations, under which an official is to be recruited at the grade set out in the notice of the competition he has passed.
Although it refers to the new concept of ‘function group’, the latter provision applies to all competitions, including those
held before 1 May 2004 and in which the successful candidates were included on a list of suitable candidates before that date.

102    The administration cannot derogate unilaterally from the competition notice of which it is the author and by which it is bound
in all its elements, since its main purpose is to inform interested persons as accurately as possible of the importance of
the posts to be filled and of the qualifications for appointment to them.

103    Even though the competition notices in question did not contain any reference to the date of 1 May 2004 and did not provide
for any future alteration of the classification in grade of the successful candidates on their recruitment, all the applicants
were classified, in accordance with Article 12(3) of Annex XIII to the Staff Regulations, in a grade lower than that mentioned
in the competition notices and those former grades had not been correctly converted in relation to the new intermediate grades
defined by Article 2(1) of Annex XIII to the Staff Regulations.

104    The Commission observes that the applicants are in actual fact criticising the fact that they were not appointed to the grade
set out in the competition notices, in accordance with Article 31 of the Staff Regulations.

105    In the Commission’s view, as a transitional legal rule, Article 12(3) of Annex XIII to the Staff Regulations cannot infringe
Article 31 of the Staff Regulations, with respect to which it is *lex specialis*, without there being any need to state expressly that it derogates from the latter.

106    As a result of the entry into force of the new provisions of the Staff Regulations, the former grades were replaced by new
grades: Article 8(1) of Annex XIII to the Staff Regulations refers to ‘the grades introduced by Article 2(1)’ and the tables
in Article 2(2) and (3) of that annex use the phrase ‘new intermediate grades’.

107    It follows that the competition notices published before 1 May 2004 became devoid of purpose in so far as they referred to
recruitment at a particular grade, *a fortiori* since the competitions at issue related to a particular career bracket (two grades) in accordance with Article 5 of the old
Staff Regulations. As from that date, it is no longer appropriate to refer to ‘career brackets’, since any mention of that
concept has disappeared from Article 5 of the Staff Regulations. The legislature therefore had to fill that gap by adopting
‘transitional grading rules’, that is to say by itself determining the (new) classification in grade of an official recruited
following a competition the notice of which had been published before 1 May 2004. Article 12(3) of Annex XIII to the Staff
Regulations is precisely such a ‘transitional grading rule’.

–       Findings of the Court

108    Article 31(1) of the Staff Regulations provides that the successful candidates in a competition are to be appointed to the
grade of the function group set out in the notice of the competition they have passed.

109    Although it is necessarily to be inferred from that new provision that successful candidates in open competitions must be
appointed probationary officials at the grade set out in the notice of the competition as a result of which they have been
recruited, it nevertheless follows from the reply given to the claim alleging breach of the principle of equal treatment and
non-discrimination that the determination of the importance of the posts to be filled and of the conditions for the appointment
of the successful candidates to those posts, which the Commission had carried out under the provisions of the old Staff Regulations
when it drew up the competition notices at issue, could not extend its effects beyond the date of 1 May 2004 adopted by the
Community legislature for the entry into force of the new career structure for officials of the European Communities.

110    The abolition, as from 1 May 2004, of the grades of classification in the career brackets set out in the notices of the competitions,
which results from the introduction of the new careers system, prompted the legislature to adopt the transitional provisions
of Annex XIII to the Staff Regulations and in particular Article 12(3), for the purpose of determining the classification
in grade of successful candidates in competitions who were included on lists of suitable candidates before 1 May 2004 but
were appointed probationary officials on or after that date.

111    To that end, the legislature substituted the intermediate grades B\*3, A\*5 and A\*6 provided for by Article 12(3) of Annex XIII
to the Staff Regulations for the career bracket grades B5/B4, A8 and A7/A6 corresponding, respectively, to the former career
brackets for administrative assistants, assistant administrators and administrators, which appeared in the competition notices
in question but were abolished as from 1 May 2004.

112    It is true that the table in Article 12(3) of Annex XIII to the Staff Regulations, which transposes the grades set out in
the competition notices into intermediate grades of recruitment, differs from the table in Article 2(1) of that annex, in
which the former grades of officials in post prior to 1 May 2004 are converted into new intermediate grades.

113    As pointed out above, it is however open to the legislature to adopt, for the future, in the interests of the service, amendments
to the provisions of the Staff Regulations, even if the amended provisions are less favourable than the former provisions
(*Ryan* v *Court of Auditors*, cited above, paragraph 98).

114    By its very nature, a transitional provision such as that at issue here derogates from certain rules of the Staff Regulations
whose application is necessarily affected by the change of system. In this case, the derogation does not go beyond that which
follows from the appointment as officials, under the new rules of the Staff Regulations, of persons selected by competition
procedures initiated and concluded under the old provisions.

115    In those circumstances, the applicants cannot properly claim, in order to demonstrate that Article 12(3) of Annex XIII to
the Staff Regulations is inconsistent with Article 31(1) of the Staff Regulations, that they were classified in a lower grade
than that mentioned in the competition notices or on the basis of a table of equivalence of grades which differs from the
relationship established between the old and the new classification in grade of officials.

116    It follows that the claim cannot be accepted.

 Infringement of Articles 5 and 7 of the Staff Regulations

–       Arguments of the parties

117    The applicants allege infringement of Article 5(5) of the Staff Regulations which makes identical conditions of recruitment
and service career applicable to all officials belonging to the same function group. Whereas the successful candidates in
the competitions at issue who were appointed officials before 1 May 2004 benefited from the classification and remuneration
corresponding to the grade mentioned in the competition notices, the classification of the applicants was made on the basis
of Article 12 of Annex XIII to the Staff Regulations.

118    Article 5(1) and (4) of the Staff Regulations were also infringed since, as a result of the ‘automatic’ application of Article
12(3) of Annex XIII to the Staff Regulations, their posts were not subjected to a ‘reclassification’ on the basis of the nature
and importance of the duties to which they relate in each basic post.

119    Article 12(3) of Annex XIII to the Staff Regulations also infringes Article 5(3) of the Staff Regulations, as implemented
by Annex I, point A, thereto, relating to basic posts and corresponding career brackets, in so far as it had the effect of
reclassifying the applicants’ posts at a level below the duties relating to those posts.

120    Finally, the principle of equivalence of post and grade, the guarantee of equal treatment for officials, laid down by Article
7(1) of the Staff Regulations, was also infringed.

121    The Commission objects that it is not the task of the Community legislature, but exclusively that of the institutions responsible
for applying the Staff Regulations, in accordance with Article 5(4) of those regulations, to define the duties attaching to
each type of post and to observe equivalence of posts whenever they decide on the assignment of their staff.

122    The reference made by the applicants to the table in Annex I, point A, to the Staff Regulations is not permissible in so far
as, pursuant to Article 4(n) of Annex XIII to the Staff Regulations, Annex XIII.1, relating to types of posts during the transitional
period, replaces Annex I, point A, from 1 May 2004 to 30 April 2006.

123    Finally, Article 5(1) is purely declaratory and does not lay down any independent obligations for the institutions.

–       Findings of the Court

124    As is to be inferred from the reply given above to the claim alleging breach of the principle of equal treatment and non-discrimination,
it cannot properly be maintained that Article 5(5) of the Staff Regulations was infringed as a result of the classification
of the successful candidates in the competitions in question who were recruited before 1 May 2004 in the grade mentioned in
the competition notices, whereas the applicants were classified in accordance with the criteria laid down by Article 12(3)
of Annex XIII to the Staff Regulations.

125    The Court of First Instance points out in that regard that, at the time of the appointment of the successful candidates in
the competitions in question before 1 May 2004, the provisions of the old Staff Regulations and the grades of classification
set out in the competition notices were applicable, whereas the classification in grade of the applicants was covered by the
new provisions in force since that date, including the transitional provisions of Article 12(3) of Annex XIII to the Staff
Regulations.

126    The applicants are also wrong in maintaining that Article 12 of Annex XIII to the Staff Regulations is contrary to Article
5 of the Staff Regulations. In adopting that first-mentioned provision, the legislature defined the grades of classification
of officials recruited during the transitional period, in exercise of its power to amend the provisions of the Staff Regulations.

127    Article 12 of Annex XIII to the Staff Regulations states, in paragraph 2, that the provisions of Article 5(3) of the Staff
Regulations, which define the level of the qualifications required for appointments to the posts covered by the new career
structure, do not apply to officials recruited, as the applicants were, from lists of suitable candidates resulting from competitions
published before 1 May 2004.

128    In that regard, Article 4(n) of Annex XIII to the Staff Regulations specifies that Annex I, point A, entitled ‘Types of posts
in each function group, as provided for in Article 5(3)’ and including the table showing the new types of posts, to which
Article 5(4) of the Staff Regulations refers, is replaced by Annex XIII.1 to the Staff Regulations, setting out the types
of posts during the transitional period.

129    Article 12(3) and Article 4(n) of Annex XIII to the Staff Regulations thus prevail over the general provisions of Article
5 of the Staff Regulations by derogating from them as special legislation (see, to that effect, Case C‐444/00 *Mayer Parry Recycling* [2003] ECR I‐6163, paragraph 57, and Case T‐371/03 *Le Voci* v *Council* [2005] ECR‐SC I‐A‐209 and II‐957, paragraph 122).

130    Nor can the applicants plead infringement of Article 7(1) of the Staff Regulations, under which each official must be appointed
to a post in his function group which corresponds to his grade.

131    That provision also must, of course, be understood as meaning that it is without prejudice to the application on a transitional
basis, from 1 May 2004 to 30 April 2006, of Article 12(3) of Annex XIII to the Staff Regulations and its accompanying provisions.

132    In those circumstances, the claim cannot succeed.

133    It follows from the foregoing that the plea of illegality concerning Article 12(3) of Annex XIII to the Staff Regulations
must be rejected in its entirety.

*Incompatibility of the contested decisions with the general principles of good administration, transparency, the protection
of legitimate expectations, equal treatment and non-discrimination, equivalence of post and grade, good faith and the principle
that an institution is to have regard for the welfare of its officials*

 Arguments of the parties

134    The applicants submit, first of all, that the contested decisions are contrary to the principle of good administration and
the rule of transparency in so far they were not informed precisely and clearly of the fundamental alteration which was to
be made to their classification in grade in the event of their being appointed after 1 May 2004.

135    All the applicants officially became aware of their classification in grade in accordance with the provisions of the Staff
Regulations only after that date. In addition, the contested decisions expressly refer only to Article 31 of the Staff Regulations,
to the vacancy notice and to the competition notice and do not refer to Article 12 of Annex XIII to the Staff Regulations.

136    The publication of Regulation No 723/2004 three days before its entry into force and, in the majority of cases, after the
offers of employment had been sent to the applicants, cannot be considered satisfactory in the light of the complexity and
abstruseness of the text in question, acknowledged by the Commission itself.

137    If the applicants had been clearly informed, in good time, of the effect which the new regulations would have on their classification
in grade in the event of recruitment after 1 May 2004, they could, at least in some cases, have tried to be recruited before
that date, or even refused to be appointed under those new, detrimental conditions.

138    The applicants also maintain that the contested decisions were taken in breach of the principle of the protection of legitimate
expectations. Certain applicants had contact, during recruitment interviews prior to 1 May 2004, with senior staff of the
administration who confirmed to them, in some cases on several occasions, a classification in the grade corresponding to that
mentioned in the competition notice. References are also made to texts and documents published in the *Official Journal of the European Union* and on the Commission’s Internet site, as well as to official letters inviting them to undergo medical examinations and take
part in administrative interviews.

139    The applicants further complain that the appointing authority did not adopt the same conduct towards all the successful candidates
in the competition, in breach of the principle of non-discrimination. For certain reasons, some of the successful candidates
in the competitions in question were able to be recruited before 1 May 2004 and others were not.

140    Moreover, the Commission infringed the principle of equivalence of post and grade by not carrying out an assessment of the
applicants’ duties and responsibilities in relation to the grade which they should have been assigned.

141    It is therefore legitimate to enquire whether the appointing authority genuinely acted in good faith and in accordance with
the principle that an institution should have regard for the welfare of its officials, even though it was itself able to measure
the ­– unacceptable – consequences of appointing to different grades successful candidates in the same competition, who were
entitled to rely on the classification in grade set out in the competition notice and who were not informed of the detrimental
effects of the Staff Regulations on their future classification in the event that their recruitment took place after 1 May
2004.

142    The Commission replies that the applicants were sufficiently informed. Regulation No 723/2004 was published prior to the adoption
of the contested decisions and even, in some cases, before the applicants accepted the offer of employment which was made
to them. Furthermore, the reform of the careers system had been announced in the competition notices or in the letters informing
the applicants of the extension of the lists of suitable candidates.

143    Contrary to what the applicants seem to consider, the institutions are not required, by virtue of a general obligation, to
draw the attention of their future officials, prior to their appointment, to all aspects of their legal position.

144    The offers of employment sent to the applicants clearly informed them that their classification in grade would be made in
accordance with Article 12(3) of Annex XIII to the Staff Regulations. Those letters also referred to an Internet site on which
further information could be found.

145    It is by no means demonstrated that the administration gave the applicants precise, unconditional and consistent assurances
to the effect that their classification in grade would be made in accordance with the provisions of the old Staff Regulations.
Moreover, legitimate expectations can arise only from assurances which are consistent with the applicable legal rules. Since
Article 12(3) of Annex XIII to the Staff Regulations is binding and does not confer any discretion on the administration,
any promises by the latter would not be capable of giving rise to a legitimate expectation on the part of the applicants that
they would be assigned a classification in grade pursuant to the old Staff Regulations.

146    Finally, the duty to have regard for the interests of officials can give rise, for an institution, to obligations towards
a person only from the date of his appointment as an official.

 Findings of the Court

147    The file shows that neither the competition notices nor the letters extending the validity of the lists of suitable candidates
which were sent to the applicants indicated that the new criteria for classification in grade on recruitment were likely to
entail a downward alteration of the grades of recruitment set out in the notices of the competitions.

148    It was only after they had taken up their duties as probationary officials that the applicants were directly informed about
the new grading system introduced by the new provisions of the Staff Regulations and about the corresponding lowering of their
grade of recruitment in relation to that set out in the competition notices.

149    It will also be noted in that regard that the majority of the contested decisions do not include in their cited legal bases
any reference to Article 12(3) of Annex XIII to the Staff Regulations, even though the applicants’ grade of recruitment was
settled on the basis of that transitional provision, the character of which as *lex specialis* with respect to Article 31 of the Staff Regulations has been pointed out by the Commission itself.

150    However, although a shortage of prior information is such as to constitute an effective argument for the purpose of rendering
the Community non-contractually liable towards the parties concerned, it is not in itself such as to render the contested
decisions illegal.

151    It is settled case-law that the legality of an individual measure contested before the Community judicature must be assessed
on the basis of the facts and the law as they stood at the time when the measure was adopted (Case C‐449/98 P *IECC* v *Commission* [2001] ECR I‐3875, paragraph 87, and Case T‐69/03 *W* v *Parliament* [2004] ECR‐SC I‐A‐153 and II‐687, paragraph 28).

152    Since the contested decisions were all adopted with effect from 1 May 2004 at the earliest, the Commission had no choice but
to classify the applicants in grade in the contested decisions in accordance with the new mandatory provisions of Article
12(3) of Annex XIII to the Staff Regulations, the illegality of which has not been demonstrated.

153    In those circumstances, the irregularities which the Commission is alleged by the applicants to have committed in the management
of their recruitment, assuming that they were contrary to the principles invoked by the parties concerned, were not capable,
on any view, of having the slightest effect on the actual legality of the classification in grade disputed by the applicants.

154    In particular, the fact that the Commission may, in breach of the principle of non-discrimination, have recruited, on a basis
of priority, certain successful candidates on a date prior to 1 May 2004, cannot affect the legality of the contested decisions.

155    Even if some recruitments may thus have been given priority, the principle of equal treatment must be reconciled with the
principle of legality, according to which no person may rely, in support of his claim, on an unlawful act committed in favour
of another (Case 134/84 *Williams* v *Court of Auditors* [1985] ECR 2225, paragraph 14).

156    Accordingly, the plea must be rejected.

157    It follows from all the foregoing that the application must be dismissed in its entirety, there being therefore no need to
rule on the applicants’ heads of claim seeking, firstly, reconstitution of their careers and, secondly, the award of default
interest on the arrears of pay which could have resulted from a judgment annulling the contested decisions.

**Costs**

158    Under the first subparagraph of Article 87(2) of the Rules of Procedure of the Court of First Instance, the unsuccessful party
is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

159    Pursuant to Article 88 of the same rules, in proceedings between the Communities and their servants the institutions are to
bear their own costs.

160    However, pursuant to the first subparagraph of Article 87(3) of the same rules, where the circumstances are exceptional, the
Court of First Instance may order that the costs be shared.

161    In the circumstances of this case, the Court of First Instance considers that, as is apparent from the above, the Commission
did not warn the applicants clearly and precisely of the foreseeable specific effect on their individual situations of a draft
amendment to the Staff Regulations of which it was itself the author.

162    Because of the uncertainty which was thus able to continue to exist in the minds of the applicants concerning the classification
in grade which they would be assigned until the contested decisions were notified, the parties concerned were entitled to
believe themselves justified in disputing their classification in grade before the Community judicature.

163    In those circumstances, the present proceedings may be considered to have been occasioned in part by the conduct of the Commission
in so far as it may, through failure to provide information, have given rise, in the minds of the persons concerned, to understandable
questions about the legality of their initial grade of classification as a result of a recruitment procedure which was not
free from ambiguity as regards an essential condition of engagement.

164    Such circumstances are exceptional circumstances justifying a sharing between the defendant institution and the applicants
of the costs incurred by the latter for the purposes of the proceedings (see, to that effect, Case 26/66 *Hoogovens en Staalfabrieken* v *High Authority* [1967] ECR 115, 127, and Case 26/67 *Danvin* v *Commission* [1968] ECR 315, 323).

165    The Court considers it fair in the circumstances of the case to order the Commission to pay half of the costs incurred by
the applicants.

166    In addition, Article 87(4) of the Rules of Procedure states that the institutions which intervened in the proceedings are
to bear their own costs.

167    Accordingly, the Council must be ordered to bear its own costs.

On those grounds,

THE COURT OF FIRST INSTANCE (Fourth Chamber, Extended Composition)

hereby:

1.      **Dismisses the action;**

2.      **Orders the Commission to bear its own costs and half of the costs incurred by the applicants;**

3.      **Orders the applicants to bear half of the costs incurred by them;**

4.      **Orders the Council to bear its own costs.**

| | | |
| --- | --- | --- |
| Legal | Wiszniewska-Białecka | Vadapalas |

| | | |
| --- | --- | --- |
| Moavero Milanesi | | Wahl |

Delivered in open court in Luxembourg on 11 July 2007.

| | | |
| --- | --- | --- |
| E. Coulon | | H. Legal |

| | | |
| --- | --- | --- |
| Registrar | | President |

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[\*](#Footref*) Language of the case: French.