Judgment — ECLI:EU:C:2010:116
Date: 2010-03-04
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Appeal - unfounded;Staff cases;Action for damages

summary assessment of that head of claim by the General Court does not take into account the new elements of loss relating to the adoption of the new classification decisions. The replacement of the contested decisions during the proceedings in no way constituted adequate and sufficient compensation for the non‑material loss suffered by the three appellants because they remain in a state of anxiety and uncertainty as to the development of their careers. 58 The Parliament notes that the appellants make no distinction between the loss allegedly suffered which was caused by the contested decisions and the loss which, according to them, continues, following their reclassification in grade by the decisions replacing the contested decisions. In the present case, even if the loss were continuing, it would have been impossible for the General Court to analyse that loss without examining the substance of the new decisions on the classification in grade of those three appellants. In any event, according to the Parliament, following those reclassification decisions, the appellants progressed in their respective careers. b) Findings of the Court 59 In paragraph 168 of the judgment under appeal, the General Court pointed out, as a preliminary point, that in the context of a claim for damages brought by an official, the Community can be held liable only if a number of conditions are satisfied as regards the illegality of the alleged wrongful act committed by the institution concerned, the harm actually suffered, and the existence of a causal link between the alleged act of the institution and the damage alleged to have been suffered. Similarly, in paragraph 169 of the judgment, it pointed out that those three conditions for Community liability are cumulative, which implies that, if any one of them is not satisfied, the Community cannot be liable. 60 With regard to the non‑material loss alleged by Ms Angé Serrano, Mr Bras and Mr Orcajo Teresa, resulting from the alleged infringements of the principle of sound administration and of the duty to have regard for the welfare of officials by the Parliament, the General Court held inter alia, in paragraph 175 of the judgment under appeal, that the Parliament, in simply basing the contested decisions on the provisions of the Staff Regulations, had not infringed that principle or that duty, and went on to find that the illegality of the act alleged to be at the origin of the non‑material loss allegedly suffered had not been established in the present case. 61 The General Court thus stated, to the requisite legal standard, reasons for rejecting the claim for compensation for the non‑material loss. The mere finding by the General Court that the alleged illegality of the act had not been established was sufficient to justify the rejection of the application on the ground that one of the three cumulative conditions recalled in paragraph 169 of the judgment under appeal was not met. Accordingly, the General Court was not obliged to state further reasons before giving its judgment, by making additional findings as to the existence of alleged non‑material damage. 62 Thus, that ground of appeal must be considered to be unfounded. B – The part of the judgment under appeal concerning Mr Decoutere, Mr Hau and Mr Solana Ramos 1. Admissibility of the action brought by Mr Decoutere and Mr Hau a) Arguments of the parties 63 In its cross appeal, the Parliament states in relation to Mr Decoutere that he was classified in grade B after his success in the competition for change of category and that, therefore, he was in an identical situation to all officials in grade B of the old Staff Regulations when the new Staff Regulations entered into force. The Parliament contends that, contrary to what the General Court held, Mr Decoutere was classified, before the internal competition for change of category, in grade C 3 and, after taking part in that competition, in grade B 5, then B*5 and lastly in AST 5. Following those promotions, he is currently in grade AST 7. Mr Decoutere was thus reclassified, under the system of the new Staff Regulations, taking account of his classification in grade B and not in grade C of the old Staff Regulations. The Parliament contends, in essence, that, after the new Staff Regulations entered into force, Mr Decoutere had the same career advancement as officials who attained grade B under the old Staff Regulations and, accordingly, has not been discriminated against compared with those officials. 64 With regard to Mr Hau, the Parliament contends that the General Court incorrectly found that he was in the same situation as the other appellants. At the time when he took part in the competition, he was a member of the temporary staff and, on passing that competition, rather than advancing to a higher category, he underwent a change of status from that of a member of the temporary staff to that of an official. The General Court defined Mr Hau’s situation incorrectly, because, following his success in the competition for change of category, he benefited not from an advance in grade, but from a change of status under the Staff Regulations. 65 The appellants claim that the Parliament confines itself to reproducing arguments already presented at first instance and to calling into question the findings of fact. The ground of appeal must be considered to be inadmissible. As to the substance, it considers that the reasons stated in the judgment under appeal concerning the rejection of the plea of inadmissibility are correct. b) Findings of the Court 66 As regards Mr Decoutere, in paragraphs 68 to 70 of the judgment under appeal, the General Court dismissed the plea of inadmissibility raised at first instance by the Parliament, finding that Mr Decoutere had an interest in bringing proceedings. It found that Mr Decoutere, who was transferred from grade C 3 to grade B 5, was, on 1 May 2006, in a lower grade than officials in grade C 1 who had not passed the competition for change of category under the old Staff Regulations. 67 In that regard, it is clear that the General Court did not err when it stated in paragraphs 68 to 70 of the judgment under appeal that the objection which Mr Decoutere made at first instance concerns the fact that his classification, established according to the rules of the new Staff Regulations, does not reflect the advancement to a higher category resulting from success in the competition, and that, consequently, it concerns the alleged failure to take into account his success in the competition in the light of the classification of Mr Decoutere’s colleagues who were in the same category under the old Staff Regulations and who did not pass that competition. 68 As held by the General Court, Mr Decoutere was principally challenging an alteration in the hierarchical relations under the old Staff Regulations allegedly brought about by the transitional classification rules of Annex XIII to the new Staff Regulations. 69 It follows that, inasmuch as the contested decision concerning Mr Decoutere does not satisfy him in relation to that objection, the General Court rightly dismissed the Parliament’s plea of inadmissibility. 70 Therefore, that ground of the cross appeal is unfounded. 71 As regards Mr Hau, the General Court found that he participated as a member of the temporary staff in the competition for change of category on an equal footing with officials and, following the contested decision concerning him, lost the classification in a higher grade than that of the officials in the old category C who had not passed such a competition. He thus had an interest in bringing proceedings. 72 The Parliament’s arguments as to the admissibility of Mr Hau’s action relate not to his interest in bringing proceedings and, consequently, to the admissibility of his action, but to whether that action is well founded and in particular whether, following his success in the competition for change of category, he is entitled to receive different treatment in the advancement of his career from that applied to officials classified in grade C before the new Staff Regulations entered into force. Those arguments thus do not call into question the admissibility of the action which he has brought. 73 Therefore, the General Court rightly held that Mr Hau’s action was admissible. 74 It follows from all the foregoing that the grounds of the cross appeal must be rejected and that that appeal must be dismissed in its entirety. 2. The dismissal of the plea of illegality concerning Articles 2 and 8 of Annex XIII to the new Staff Regulations a) The grounds of appeal alleging infringement of acquired rights i) Arguments of the parties 75 The appellants claim that, contrary to the finding of the General Court, on insufficient grounds, the cancellation of the old classification in grade by the new Staff Regulations constitutes an infringement of acquired rights. Their appointment to a higher grade is in fact equivalent to a promotion taking place before the reform the Staff Regulations. Similarly, the appellants challenge the assessments made by the General Court in paragraphs 113 to 118 of the judgment under appeal, relating to the alleged better career prospects compared with officials who did not pass such a competition. They further claim that, unlike the situation of the appellants in Case C‑443/07 P Centeno Mediavilla and Others v Commission [2008] ECR I‑0000, who were not officials when the new Staff Regulations entered into force and who accordingly had no prospect of being appointed officials, the appellants in the present case were already officials and had passed an internal competition for change of category, which constituted the event giving rise to their acquired right to a higher grade. 76 In that regard, the Parliament contends that the appellants, even after the new Staff Regulations entered into force, advanced in their careers more rapidly than their colleagues who had not passed such internal competitions for change of category. Therefore, the entry into force of the new Staff Regulations in no way adversely affected their rights. 77 The Council contends that the factual and legal situation of a group of officials, defined in relation to that of another group of officials and not in absolute terms, is not sufficiently stable and definitive to be regarded as an acquired right. Moreover, the hierarchy between officials will always be subject to alterations and career prospects will always be subject to chance to a certain extent. That is why it is not possible in this field to rely on acquired rights. The Council thus considers that the General Court, in finding that the appellants had an acquired right to the advancement of their careers, reached an erroneous conclusion. The appellants’ situation was, at the time of the reform of the Staff Regulations, vaguely defined and could not have constituted a right limiting the wide discretion of the legislature, as acknowledged by the Court in Centeno Mediavilla and Others v Commission. ii) Findings of the Court 78 At paragraph 107 of the judgment under appeal, the General Court held inter alia that the classification in a higher grade from which, at a given moment in their career, certain officials benefited vis-à-vis others does not constitute an acquired right which must be protected by the provisions of the new Staff Regulations. 79 In paragraph 109 of the judgment under appeal, it was found, moreover, that, before the new Staff Regulations entered into force, Mr Decoutere, Mr Hau and Mr Solana Ramos, after passing the internal competitions for change of category, advanced in their careers. They were thus placed in a higher grade than officials who had not succeeded, after such an internal competition, in advancing to a higher category. 80 On the basis of that finding, the General Court held, in paragraph 110 of the judgment under appeal, that the better career prospects acquired by the appellants under the old Staff Regulations compared with officials not having passed the same competitions constitute acquired rights which must be protected under the new Staff Regulations. 81 Next, in paragraphs 114 to 117 of the judgment under appeal, it stated that, because of the promotion rules set out in Article 10 of Annex XIII to the Staff Regulations, the legislature has provided for mechanisms differentiating the careers of officials according to the category to which they belonged under the old Staff Regulations. The General Court held that those rules made it possible to ensure respect for acquired rights. 82 According to the case-law of the Court of Justice the legal link between an official and the administration is based upon the Staff Regulations and not upon a contract. Thus, the rights and obligations of officials may, subject to compliance with the requirements of Community law, be altered at any time by the legislature (Centeno Mediavilla and Others v Commission, paragraph 60 and the case-law cited). 83 It is well established that amending legislation, such as the regulations amending the Staff Regulations, applies, unless otherwise provided, to the future consequences of situations that arose under the previous legislation (see, to that effect, Case C-60/98 Butterfly Music [1999] ECR I-3939, paragraph 24, and Centeno Mediavilla and Others v Commission, paragraph 61). 84 That is so except for situations originating and becoming definitive under the previous legislation which create acquired rights (see, to this effect, Case 68/69 Brock [1970] ECR 171, paragraph 7; Case 143/73 SOPAD [1973] ECR 1433, paragraph 8; Case 270/84 Licata v ESC [1986] ECR 2305, paragraph 31 and Centeno Mediavilla and Others v Commission, paragraph 62). A right is considered to be acquired when the event giving rise to it occurred before the legislative amendment (see Centeno Mediavilla and Others v Commission, paragraph 63). 85 In the present case, it must be held that the appellants, who advanced in their careers because they passed the internal competition, have acquired the right to have the advance thus made under the old Staff Regulations acknowledged. However, contrary to what they claim, such a right implies merely that they should receive the same treatment under the Staff Regulations, concerning in particular career advancement, as that given to all the officials of the new grade that they have thus attained. 86 The legislature’s wide discretion to make the amendments to the Staff Regulations needed on the conditions set out in paragraphs 82 and 83 above and in particular to alter the structure of the grades of officials cannot authorise it to make amendments which, among other things, are unconnected with that need or which do not take into account the competences which those grades are supposed to reflect. However, the legislature cannot, on the other hand, be bound by a requirement to maintain strictly the relationship which had hitherto existed between those grades before the amendment of the Staff Regulations. 87 Therefore, the appellants cannot properly invoke alleged acquired rights to be classified in a higher grade obtained under the old Staff Regulations in order to claim that Articles 2 and 8 of Annex XIII to the new Staff Regulations are vitiated by illegality. 88 In those circumstances, and although, as the General Court observed in paragraph 114 of the judgment under appeal, the legislature adopted, in those new Staff Regulations, provisions which differentiate the career advancement of those officials by taking account of the category to which they belonged under the old Staff Regulations, the appellants are not justified in maintaining that the General Court, which stated sufficient reasons for its assessment, erred in law in dismissing their plea alleging infringement of acquired rights. b) The ground alleging infringement of the principle of the protection of legitimate expectations i) Arguments of the parties 89 Concerning infringement of the principle of the protection of legitimate expectations, the appellants claim that the General Court, erroneously and on insufficient grounds found that they could not have a legitimate expectation that an existing situation would be maintained in the absence of acquired rights. The scope of those two principles is distinct because the source of the principle of the protection of legitimate expectations is different from the acquisition of such rights. Moreover, unlike the appellants in Centeno Mediavilla and Others v Commission, the appellants in the present case based their expectations of career advancement on success in a competition for change of category and, accordingly, on a situation acquired before the new Staff Regulations entered into force. To accept that the legislature was not obliged to take account of such an expectation would amount to placing it above the general principle of the protection of legitimate expectations. 90 In that regard, the Council contends that the appellants’ career prospects do not constitute a sufficiently stable situation to be considered to have been an acquired right. It recalls, moreover, that, according to Centeno Mediavilla and Others v Commission, individuals cannot rely on that principle in order the challenge the legality of a new regulatory provision relating to the Community civil service. ii) Findings of the Court 91 In paragraph 121 of the judgment under appeal, the General Court, for the reasons recalled in paragraph 34 above, held that the appellants could not rely on the principle of the protection of legitimate expectations in order to challenge a provision of the Staff Regulations. 92 That assessment, for which sufficient reasons were stated, of the scope of the principle of the protection of legitimate expectations does not appear to be vitiated by error of law. 93 Individuals cannot rely on the principle of the protection of legitimate expectations in order to oppose the application of a new legislative provision, especially in a sphere in which the legislature enjoys a considerable degree of latitude (Case C‑284/94 Spain v Council [1998] ECR I‑7309, paragraph 43 and Centeno Mediavilla and Others v Commission, paragraph 91). 94 It follows that the appellants’ arguments concerning the infringement of the principle of the protection of legitimate expectations are unfounded. c) The ground alleging infringement of the principle of equal treatment i) Arguments of the parties 95 According to the appellants, the General Court erred in its interpretation of the principle of equal treatment by holding that, even if the contested decisions caused them to suffer loss in terms of their career progress compared with that of their colleagues who had not passed the internal competition for change of category, that could not result in infringement of that principle. The General Court thus accepted, on insufficient grounds, that different situations could be treated identically. Moreover, it erred in finding that the transitional rules at issue were capable of meeting the requirements for compliance with that principle. 96 Furthermore, in respect of Mr Decoutere’s situation, the General Court wrongly refused to censure the fact that, on the basis in particular of Articles 2(1), (4) and (5) of Annex XIII to the new Staff Regulations, he was treated differently from officials who had passed the same competition and who were thus in the same legal situation as him. 97 The Parliament and the Council contend that the General Court rightly held that the careers system was radically altered by the new Staff Regulations, but that that system made provision for advantages for officials who were classified in a higher grade before the new Staff Regulations entered into force. The Council states, moreover, that the classification in the new hierarchical system is not in itself conclusive for the purpose of assessing whether the legislature took account of the differences, in terms of career prospects, between the officials who had passed a competition for change of category under the old Staff Regulations and those who had not. 98 As regards Mr Decoutere’s situation, the Parliament and the Council state that the interpretation of the provisions at issue by the General Court was confirmed by Centeno Mediavilla and Others v Commission, in which the Court held that officials appointed on two different dates could not be considered to be in the same legal situation. ii) Findings of the Court 99 As is clear from the Court’s settled case-law, a breach of the principle of equal treatment, applicable to the law relating to the employment of Community officials, occurs when two categories of person whose factual and legal circumstances disclose no essential difference are treated differently at the time of their recruitment and that difference in treatment is not objectively justified (see Case C-459/98 P Martínez del Peral Cagigal v Commission [2001] ECR I‑135, paragraph 50 and Centeno Mediavilla and Others v Commission, paragraph 76). 100 It is also well established that, in adopting applicable rules, especially in the sphere of the Community civil service, the Community legislature is obliged to observe the general principle of equal treatment (Centeno Mediavilla and Others v Commission, paragraph 78). 101 As the General Court correctly pointed out in paragraph 142 of the judgment under appeal, it is also settled case‑law that the principle of equality is infringed where two different situations are treated identically (see, to that effect, Case C‑227/04 P Lindorfer v Council [2007] ECR I‑6767, paragraph 63). 102 In that regard, the General Court held, in paragraph 145 of the judgment under appeal, that the appellants who have passed an internal competition for change of category under the old Staff Regulations are not in the same factual and legal situation as officials who have not passed such a competition. It held, moreover, in paragraphs 146 and 147 of the judgment under appeal, that the former had, under the rules of the Staff Regulations, better career prospects than the latter, account of which had been taken in the transitional provisions of Annex XIII to the new Staff Regulations. 103 Contrary to what the appellants claim, such an assessment, for which, as pointed out in paragraph 37 above, sufficient reasons were stated, is not vitiated by any error of law. 104 The appellants restricted themselves to claiming that the transitional arrangements at issue do not include provisions that specifically concern the category of officials who have passed a competition under the old Staff Regulations and that, in any event, the better career prospects which they enjoyed under the new Staff Regulations are neither substantial nor certain. 105 That reasoning is not such as to establish that those new Staff Regulations infringed the principle of equal treatment with regard to those officials. As follows from paragraph 86 above, since, by adopting new Staff Regulations, the Community legislature remodelled the entire system of careers then in force, it cannot be required to reproduce identically the hierarchy of grades under the old Staff Regulations, without adversely affecting the possibility that they have of making alterations to the Staff Regulations. In that context, the comparison of hierarchical ranks before and after the reform of the Staff Regulations is not, in itself, conclusive for assessing whether the new Staff Regulations comply with the principle of equal treatment. 106 The new Staff Regulations, contrary to what the appellants claim, make a distinction between the careers of officials belonging, under the old Staff Regulations, to various grades in the hierarchy and ensures, for those who have passed a competition for change of category, different career prospects from those of officials who have not passed the same competition. In particular, the transitional arrangements and Article 10(1) and (2) of Annex XIII to the Staff Regulations especially, ensure, through the rule on the blocking of career advancement and the rule on fixing rates of promotion for the different grades, better career prospects for officials in higher grades under the arrangements of the old Staff Regulations and, accordingly, to those who have advanced in the grades after passing a competition for change of category. 107 Lastly, with regard to Mr Decoutere, the General Court held, in paragraphs 152 to 155 of the judgment under appeal, that that appellant was not in the same legal situation as another official who had taken the same competition as him, but had been recruited as an official under the new Staff Regulations, whereas Mr Decoutere had been recruited and classified in a new grade after that competition under the old Staff Regulations. That being the case, the General Court had not erred in law and had stated reasons for the judgment under appeal to the requisite legal standard. 108 Two officials who are reclassified in a higher grade under different rules of the Staff Regulations are, accordingly, in different situations (see, by analogy, Centeno Mediavilla and Others v Commission, paragraphs 79 and 80). 109 It follows from all of the considerations above that the appellants are not justified in claiming that the General Court erred in rejecting the plea of illegality in respect of Articles 2 and 8 of Annex XIII to the new Staff Regulations and that insufficient grounds were stated for the judgment. 3. The dismissal of the claim for damages 110 To the extent that the appellants refer to their arguments concerning the part of the judgment under appeal dealing with that plea of illegality in order also to challenge paragraphs 177 to 180 of the judgment under appeal concerning the claim for damages, that ground of the main appeal must also be considered to be unfounded. 111 As none of the pleas relied on by the appellants is well founded, the main appeal must be dismissed. VII – Costs 112 In accordance with the first paragraph of Article 122 of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to costs. 113 Under Article 69(2) of those Rules, which apply to the procedure on appeal by virtue of Article 118, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. In accordance with Article 69(3) of those Rules, where each party succeeds on some and fails on other heads, or where the circumstances are exceptional, the Court may order that the costs be shared or that the parties bear their own costs. Since both the appellants and the Parliament have been unsuccessful in their respective grounds of appeal, each party must be ordered to bear its own costs. 114 In accordance with Article 69(4) of the Rules of Procedure of the Court of Justice, which is also applicable by virtue of Article 118, the institutions that intervene in the proceedings are to bear their own costs. The Council must therefore be ordered to bear its own costs. On those grounds, the Court (Second Chamber) hereby: 1. Dismisses the main appeal; 2. Dismisses the cross appeal; 3. Orders Ms Angé Serrano, Mr Bras, Mr Orcajo Teresa, Mr Decoutere, Mr Hau, Mr Solana Ramos, the European Parliament and the Council of the European Union to bear their own costs. [Signatures] * Language of the case: French.