JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (Second Chamber)

11 September 2008

Case F-121/06

**David Spee**

**v**

**European Police Office (Europol)**

(Civil service – Members of the Europol staff – Remuneration – Articles 28 and 29 of the Europol Staff Regulations – Incremental points awarded on the basis of an assessment – Retroactive application of rules – Calculation method)

**Application:**brought under Article 40(3) of the Convention based on Article K.3 of the Treaty on European Union, on the establishment of
a European Police Office (Europol Convention) and Article 93(1) of the Europol Staff Regulations, in which Mr Spee seeks annulment
of the Europol Director’s decision of 5 July 2006 rejecting his complaint against the Director’s decision to grant him only
one incremental point, together with an order for Europol to grant him two incremental points with effect from 1 November
2005.

**Held:**The action is dismissed. Each party is to bear its own costs.

**Summary**

1.      *Officials – Members of the Europol staff – Actions – Conditions of admissibility*

*(Staff Regulations of Officials, Arts 90 and 91; Europol Staff Regulations, Arts 92(1) and (2) and 93)*

2.      *Officials – Members of the Europol staff – Two-yearly incremental points*

*(Staff Regulations of Officials, Art. 45; Europol Staff Regulations, Arts 28 and 29)*

1.      An action brought by a member of the Europol staff against a decision of its Director is admissible only if the staff member
concerned has first lodged a complaint with the Director which has been explicitly or implicitly rejected, as provided for
in Articles 92 and 93 of the Europol Staff Regulations, which are worded in the same terms as Articles 90 and 91 of the Staff
Regulations of Officials. Any head of claim which has not been raised in the prior administrative complaint must be dismissed
as inadmissible. That complaint is deemed to have been lodged not when it is sent to Europol, but when Europol receives it.

(see paras 30, 31, 55)

See:

195/80 *Michel* v *Parliament* [1981] ECR 2861, paras 8 and 13; 293/87 *Vainker* v *Parliament* [1989] ECR 23, para. 7; 224/87 *Koutchoumoff* v *Commission* [1989] ECR 99, para. 7

T-57/89 *Alexandrakis* v *Commission* [1990] ECR II‐143, paras 8 and 9; T-7/90 *Kobor* v *Commission* [1990] ECR II‐721, paras 34 and 35; T-59/96 *Burban* v *Parliament* [1997] ECR-SC I‐A‐109 and II‐331, paras 31 and 33

F-3/05 *Schmit* v *Commission* [2006] ECR-SC I‐A‐1‐19 and II‐A‐1‐33, para. 28; F-141/06 *Hartwig* v *Parliament and Commission* [2007] ECR-SC I-A-1-0000 and II-A-1-0000, para. 28

2.      The system for determining grades and incremental points applied in Europol involves two separate exercises governed by two
different sets of rules: first, the periodical report, which is drawn up under Article 28 of the Europol Staff Regulations,
and second, the award of incremental points provided for in Article 29 of those Staff Regulations, which is comparable to
the promotion provided for in Article 45 of the Staff Regulations of Officials. There is no rule which requires the award
of incremental points to be governed by the assessment rules applicable at the time when the periodical report is drawn up.
Therefore, where Europol’s internal rules on the award of incremental points are changed after the periodical report, the
relevant legal framework for deciding on the award of incremental points is, in the absence of any transitional provisions,
the internal rules in force on the date when that decision is taken.

(see paras 40, 44, 46)

See:

T-209/02 and T-210/04 *Mausolf* v *Europol* [2006] ECR-SC I‐A‐2‐79 and II‐A‐2‐335, paras 63 and 64