JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

11 December 2009

Case T-436/07 P

**Nikos Giannopoulos**

**v**

**Council of the European Union**

(Appeal – Civil service – Officials – Recruitment – Classification in grade – Request for reclassification – Article 31(2) of the Staff Regulations)

**Appeal:**brought against the judgment of the European Union Civil Service Tribunal (Second Chamber) in Case F-111/06 *Giannopoulos* v *Council* [2007] ECR-SC I-A-1-253 and II-A-1-1415, seeking to have that judgment set aside.

**Held:**The appeal is dismissed. Mr Nikos Giannopoulos and the Council of the European Union are ordered to bear their own costs in
connection with the present instance.

**Summary**

1.      *Officials – Recruitment – Appointment in grade – Appointment to the higher grade in a career bracket – Exception to the general
rules on classification*

*(Staff Regulations, Art. 31(2))*

2.      *Officials – Recruitment – Appointment in grade – Appointment to the higher grade in a career bracket – Exception to the general
rules on classification*

*(Staff Regulations, Art. 31(2))*

1.      The three conditions relating to academic profile and duration and quality of professional experience respectively, which
the appointing authority must take into account and evaluate when it assesses whether or not it is appropriate to deviate
from the rule that recruitment should be to the starting grade in a career bracket, are cumulative. That cumulative nature
stems from the fact that, since recruitment to the higher grade in the career bracket may occur only in exceptional cases,
the circumstances justifying such a classification must be interpreted restrictively.

Therefore, where an institution decides to exercise the discretion conferred on it by Article 31(2) of the Staff Regulations,
in the version in force until 30 April 2004, on the basis of conditions laid down in an internal document of another institution,
those conditions must be interpreted as restrictively as when they are applied by the institution which drew up the internal
document, except where it is clear from the file that the institution in question intended the conditions it applied to have
a different nature.

(see paras 33-35)

See: T‐145/04 *Righini* v *Commission* [2005] ECR-SC I‐A‐349 and II‐1547, para. 49 and the case-law cited therein; T‐429/03 *Valero Jordana* v *Commission* [2006] ECR-SC I‐A‐2‐51 and II‐A‐2‐217, para. 79 and the case-law cited therein

2.      If a staff member is to be recruited at the higher grade in the career bracket, Article 31(2) of the Staff Regulations, in
the version in force until 30 April 2004, requires a comparison to be made between the qualifications of that staff member
and the requirements of the post to which he is assigned as an official. That comparison is necessary since the assessment
of whether the specific needs of the service require a possible derogation from the rule of recruitment at the starting grade
involves two conditions, one concerning the relevance of the person’s qualifications for the post to be filled, and the other
concerning the situation on the labour market as regards the skills required. Since the circumstances justifying classification
in the higher grade in the career bracket are to be interpreted restrictively, those conditions are cumulative.

Moreover, the classification of a candidate in the higher grade of the career bracket may be considered only where the specific
needs of the service require the recruitment of a specially qualified person. In order to establish whether that is the case,
it is necessary to examine the competition notice and the vacancy notice, as well as the duties actually performed, if necessary,
in order to identify the needs of the service justifying the organisation of the competition and the opening of the post,
and to determine whether they required the recruitment of a specially qualified person. If that is not the case, recruitment
at the higher grade in the career bracket will not be possible, even if the person ultimately recruited has exceptional or
very special qualifications or if the administration has a large number of posts to be filled.

(see paras 51-52, 56)

See: *Righini* v *Commission*, paras 48, 49 and 106; judgment of 10 May 2006 in T-331/04 *R* v *Commission*, not published in the ECR, para. 18