Judgment — ECLI:EU:F:2007:116
Date: 2007-06-28
Language of the case: French
Court formation: Second Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Concepts: Recruitment other than by competition
Procedure: Staff cases - successful

Summary Officials – Recruitment – Application of Article 29(2) of the Staff Regulations (Staff Regulations, Art. 29(2); Annex XIII, Art. 5(5); Council Regulation No 723/2004) In the absence of any transitional provision in Regulation No 723/2004 amending the Staff Regulations of Officials and the Conditions of Employment of Other Servants, in order to determine the classification in grade and step of an official appointed to a higher post after that regulation came into force on 1 May 2004, as the result of a recruitment procedure launched before that date pursuant to Article 29(2) of the Staff Regulations, it is appropriate to be guided by the solution adopted by the Community legislature in Article 5(5) of Annex XIII to the Staff Regulations for appointments to the post of director through promotion, and to place the official in the ‘next higher grade’. The recruitment procedure opened pursuant to Article 29(2) of the Staff Regulations can, when it benefits an official or a member of the temporary staff in active employment, be treated as a promotion. In such a case, appointment to a higher post cannot be considered to be a second recruitment to the institution with the effect of interrupting the career of the person concerned, but must be regarded as an advance in his career, and it cannot result in his demotion in grade or step and, consequently, in a decrease in his salary, without there being a breach of the principle that every official has the right to reasonable career prospects within his institution, as set out in the Staff Regulations. Such a solution is all the more necessary since it is in accordance with the administration’s duty to have regard for the welfare of officials, which in particular implies that when the relevant authority takes a decision concerning the position of an official, it should take into consideration all the factors capable of affecting its decision and that when doing so it should take into account not only the interests of the service but also those of the official concerned, since an official appointed to a higher post in recognition of his personal merits has a legitimate interest, provided it is not contrary to the rules of the Staff Regulations in force, in not having his remuneration reduced. (see paras 63, 75-76, 79-80) See: 20/83 and 21/83 Vlachos v Court of Justice [1984] ECR 4149, para. 23; C-298/93 P Klinke v Court of Justice [1994] ECR I‑3009, para. 38 T-133/89 Burban v Parliament [1990] ECR II‑245, para. 27; T‑114/98 and T‑115/98 Rodríguez Pérez and Others v Commission [1999] ECR-SC I‑A‑97 and II‑529, para. 32