Judgment — ECLI:EU:F:2015:90
Date: 2015-07-16
Language of the case: French
Court formation: First Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Staff cases - successful

Summary 1. Actions brought by officials — Act adversely affecting an official — Concept — Decision of the appointing authority classifying a member of the Commission’s Legal Service in grade AD 13 in the type of post ‘Administrator in transition’ — Included (Staff Regulations, Arts 45, 90(2) and 91(1), and Annex XIII, Art. 30(2); Council Regulation No 723/2004; European Parliament and Council Regulation No 1023/2013) 2. Actions brought by officials — Prior administrative complaint — Complaint directed against a decision evidenced by a change made to the individual computerised file of the official concerned — Admissibility (Charter of Fundamental Rights of the European Union, Art. 41; Staff Regulations, Arts 25(2) and 90(2), and Annex XIII, Art. 30(2); European Parliament and Council Regulation No 1023/2013) 3. Officials — Careers — Introduction of transitional rules for the move from the old to the new careers system for officials — Rules on classification in types of posts — Classification of officials in grade AD 13 performing atypical duties — Administration’s discretion — Limits — Observance of the principle of equal treatment (Staff Regulations, Annex XIII, Art. 30(2); European Parliament and Council Regulation No 1023/2013, recitals 17 to 19) 4. Officials — Promotion — Adoption of a new promotion system — Transition from the old to the new system — Administration’s discretion — Limits — Observance of acquired rights (Staff Regulations; European Parliament and Council Regulation No 1023/2013) 5. Officials — Careers — Introduction of transitional rules for the move from the old to the new careers system for officials — Rules on classification in types of posts — Classification of officials in grade AD 13 performing duties as ‘members of the Legal Service’ or ‘legal advisers’ of the Commission — Classification of members of the Legal Service in the type of post ‘Administrator in transition’ and of legal advisers to the type of post ‘Adviser or equivalent’ — Not permissible — Breach of the principle of equal treatment (Charter of Fundamental Rights of the European Union, Arts 20 and 21; Staff Regulations, Arts 29(1) and 45, and Annex XIII, Art. 30(2); Council Regulation No 723/2004; European Parliament and Council Regulation No 1023/2013) 1. A decision of the appointing authority adopted after the entry into force of Regulation No 1023/2013 amending the Staff Regulations of Officials of the European Union and the Conditions of Employment of Other Servants of the European Union, classifying a Commission official in grade AD 13, working in the Legal Service in a post as ‘member of the Legal Service’, in the type of post ‘Administrator in transition’ as introduced by that Regulation constitutes an act adversely affecting that official within the meaning of Article 90(2) and Article 91(1) of the Staff Regulations. The wording of Article 30(2)(c) and (d) of Annex XIII to the Staff Regulations, as amended by Regulation No 1023/2013 (‘the new Staff Regulations’), not only allowed the appointing authority to regard, from 1 January 2014, ‘legal advisers’ in grade AD 13 working for the Legal Service as occupying posts equivalent to those of ‘Advisers’ within the meaning of the Regulation and to regard members of the Commissioners’ Cabinets as performing activities equivalent to those of ‘Heads of unit’, but also did not, as a matter of law, preclude the possibility of considering that ‘members of the Legal Service’ in grade AD 13 who were also working for the Legal Service should also, given that the duties they performed in that capacity were similar to those of the ‘legal advisers’ working for that legal service, be classified in the type of post ‘Adviser or equivalent’, the term ‘equivalent’ being decisive for the purposes of classification in that type of post. In that regard, the Union legislature had not already specifically decided, in the amendments made to the Staff Regulations by Regulation No 723/2004 (‘the 2004 Staff Regulations’), that ‘members of the Legal Service’ in grade AD 13 should be classified in the type of post ‘Administrator in transition’, a title expressly provided for in the new Staff Regulations. Consequently, it was only because of the appointing authority’s refusal to consider that, on 31 December 2013, a legal adviser in grade AD 13 performed duties equivalent to those of ‘Advisers’ or ‘Heads of Unit’, types of post provided for in the 2004 Staff Regulations, that a member of the Legal Service in that grade was classified by default, pursuant to Article 30(2)(b) of Annex XIII to the new Staff Regulations, in the type of post ‘Administrator in transition’ as provided for in the new Staff Regulations, which covered the previous type of post ‘Administrator’ as provided for in the 2004 Staff Regulations. Since that classification had the effect of blocking the career of the official concerned in grade AD 13, the classification decision undoubtedly produced binding legal effects such as to affect his interests directly and immediately by bringing about a distinct change in his legal position. Furthermore, that decision does not constitute a preparatory measure, since it is capable of producing legal effects which are already such as to affect the interests of the officials concerned, regardless of the effect of any future decision refusing to promote him to grade AD 14 on the basis of Article 45 of the new Staff Regulations. (see paras 40, 42, 44, 45, 47) See: Judgment of 14 February 1989 in Bossi v Commission, 346/87, EU:C:1989:59, para. 23 Judgments of 18 December 1992 in Cimenteries CBR and Others v Commission, T‑10/92 to T‑12/92 and T‑15/92, EU:T:1992:123, and 18 September 2008 in Angé Serrano and Others v Parliament, T‑47/05, EU:T:2008:384, para. 61 and the case-law cited therein 2. It is clear from the wording of Article 30(2) of Annex XIII to the Staff Regulations that, with effect from 1 January 2014, following the entry into force of Regulation No 1023/2013 amending the Staff Regulations of Officials of the European Union and the Conditions of Employment of Other Servants of the European Union, the appointing authority is to classify officials in service on 31 December 2013 in function group AD in the various types of posts listed in that article, which implies that the appointing authority must formally adopt such decisions on classification in types of posts and that, in accordance with Article 25(2) of the Staff Regulations as amended by Regulation No 1023/2013, it must communicate those decisions in writing to the officials concerned. In that regard, a complaint directed against a classification decision evidenced by a change made to the individual computerised file of the official concerned in the ‘SysPer 2’ staff management information system was not lodged prematurely, since that change actually reflected a decision adopted by the appointing authority and implemented on a technical level by its departments, and which, in the light of the right to good administration provided for in Article 41 of the Charter of Fundamental Rights of the European Union and pursuant to Article 25(2) of the Staff Regulations, should have been communicated in writing to the official concerned. (see paras 41, 48) 3. When the Staff Regulations as amended by Regulation No 1023/2013 came into force, officials in grade AD 13 in service on 31 December 2013 were to be classified, by decision of the appointing authority, in one of the three types of posts provided for by way of exception in Article 30(2) of Annex XIII to the amended Staff Regulations for administrators occupying a grade AD 13 post on that date, that is to say, ‘Head of unit or equivalent’, ‘Adviser or equivalent’ or ‘Administrator in transition’ respectively. As regards the classification of officials in atypical posts such as ‘legal advisers’ in the Commission’s Legal Service, the appointing authority needed to determine whether, by analogy with grade AD 13 posts entitled ‘legal advisers’ in the Commission, which it had considered, in the light of the nature and scale of the duties performed, to be equivalent to those of ‘Advisers’, grade AD 13 posts too might be regarded, in the light of the nature and scale of the duties performed in those specific posts, as equivalent to those of ‘Advisers’ and therefore be classified in the type of post ‘Adviser or equivalent’ within the meaning of Article 30(2)(d) of the Staff Regulations as amended by Regulation No 1023/2013. In that regard, Article 30(2) of Annex XIII to the amended Staff Regulations does not contain any criterion enabling the appointing authority to determine whether a lawyer in grade AD 13 who, on 31 December 2013, occupied a post entitled in his institution ‘member of the Legal Service’, was in a post equivalent to the type of post ‘Adviser’ provided for in the table of posts listed in Annex I to the Staff Regulations, which relates to all the institutions and all their departments, not just their legal services. Consequently, in order to assess that equivalence, the appointing authority enjoys a certain discretion or latitude, to be exercised in the light of recitals 17 to 19 of Regulation No 1023/2013 and, in any event, in accordance with the principle of equal treatment. (see paras 56, 63, 64) 4. The legal link between officials and the administration is based upon the Staff Regulations and not upon a contract, so that the rights and obligations of officials may be altered at any time by the legislature, and, in that regard, amending legislation, such as the regulations amending the Staff Regulations, applies, unless otherwise provided, to the future consequences of situations which arose under the previous legislation, except for situations originating and becoming definitive under the previous legislation, which create acquired rights. In that regard, a right is considered to be acquired when the event giving rise to it occurred before the legislative amendment, but that is not the case when the event creating the right did not take place under the legislation that has been amended. Thus, where officials were, until the Staff Regulations as amended by Regulation No 1023/2013 came into force, merely eligible for promotion, and that promotion was subject to a decision of the appointing authority which it had not yet adopted, such officials cannot claim an acquired right to remain eligible for that promotion after that date. (see paras 58, 59) See: Judgments of 19 March 1975 in Gillet v Commission, 28/74, EU:C:1975:46, para. 4, and 22 December 2008 in Centeno Mediavilla and Others v Commission, C‑443/07 P, EU:C:2008:767, paras 60 to 65 and the case-law cited therein 5. There is a breach of the principle of equal treatment, a general principle of EU law enshrined in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union and applicable to EU civil service law, where two categories of persons whose factual and legal situations are not essentially different receive different treatment in their classification and where that difference in treatment is not objectively justified. When that principle is applied, the situations to be compared must be examined taking account of all the factors characterising those situations. The fact that the Commission considered that posts entitled ‘members of the Legal Service’ in the Commission’s terminology, occupied on 31 December 2013 by officials in grade AD 13, were not posts equivalent, under Article 30(2)(d) of Annex XIII to the Staff Regulations as amended by Regulation No 1023/2013 (‘the new Staff Regulations’), to that of ‘Adviser’ as provided for in the nomenclature of the Staff Regulations as amended by Regulation No 723/2004 (‘the 2004 Staff Regulations’), even though ‘legal advisers’, who were also grade AD 13 administrators and performed the same duties, were recognised as having equivalent posts, is an infringement of the principle of equal treatment. In so doing, the Commission gave different treatment to officials who were, however, in essentially identical situations as regards their grade and the duties they performed in that grade, because the posts they occupied had, in formal terms, different titles under the 2004 Staff Regulations and the Commission’s internal terminology. In that regard, the fact that promotion was obtained under Article 45 of the 2004 Staff Regulations alone does not, in the light of the objective of guaranteeing all officials the prospect of career development, in accordance with the principle of equal treatment, constitute a relevant difference justifying the fact that, even though they were performing strictly identical duties on 31 December 2013, their classification as ‘members of the Legal Service’ in the types of posts provided for by the new Staff Regulations may give rise to unequal consequences compared with the classification of their ‘legal adviser’ colleagues who obtained promotion to the same grade AD 13 under both Article 29(1) and Article 45 of the 2004 Staff Regulations or the version of the Staff Regulations applicable until the entry into force of Regulation No 723/2004 (‘the old Staff Regulations’). In that context, the fact that ‘legal advisers’ in grade AD 13 in service on 31 December 2013 were appointed, under the 2004 Staff Regulations or the old Staff Regulations, in conditions applicable at the time for appointments to middle management posts does not, in itself, show that they demonstrated particular merits or greater merits than those which had to be demonstrated by candidates for promotion to grade AD 13, or that they necessarily had ‘significant’ or ‘special’ responsibilities as provided for in the new Staff Regulations. (see paras 65, 71, 75, 79) See: Judgment of 22 December 2008 in Centeno Mediavilla and Others v Commission, EU:C:2008:767, para. 76 and the case-law cited therein Judgment of 15 November 2011 in Nolin v Commission, T‑58/11 P, EU:T:2011:664, paras 37 to 39