62007CC0443_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1. With effect from 1 May 2004, the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’) were extensively amended. (2)
In particular, a radically new career structure was introduced.
Entry grades in the new structure often carried lower salaries than those in the old structure, but any disadvantage was to be offset by greater opportunities for promotion.
Transitional provisions dealt with various situations, including that of officials who had been successful in an open competition organised before, but who were appointed after, the new career structure came into force.
The present proceedings, now on appeal from the Court of First Instance, were brought by 17 such officials, dissatisfied in particular with the fact that they were appointed under less favourable starting conditions than other officials who had been successful in the same open competitions but were recruited before 1 May 2004.
2. Fifty more cases before the Civil Service Tribunal, concerning essentially the same issue, are currently suspended pending the outcome of this appeal.
In addition, the Commission has undertaken, in the event of a judgment deciding that the disputed provisions should not have been applied to the officials concerned, to extend the benefit of the subsequent re-grading exercise to all officials in the same situation as those concerned by such a judgment, including those who have not lodged complaints contesting their grading. (3)
Legislative background
Considerations governing the amendments to the Staff Regulations
3. The preamble to Regulation No 723/2004, which introduced the amendments, contains, inter alia, the following recitals:
‘(7) Compliance should be observed with the principle of non-discrimination as enshrined in the EC Treaty, which thus necessitates the further development of a staff policy ensuring equal opportunities for all, regardless of sex, physical capacity, age, racial or ethnic identity, sexual orientation and marital status.’
‘(10)	There is a clear need to strengthen the principle of career development based on merit, establishing a closer link between performance and remuneration by providing greater incentives for good performance through structural changes to the careers system, whilst ensuring equivalence of average career profiles between the new and the old structures, in keeping with the establishment plan and budgetary discipline.’
‘(12)	The need has arisen to devise a system of ensuring the equivalence of average career profiles which, when viewed as a whole, will offset fairly and reasonably, first, the increase in the total number of grades and, second, the reduction in the number of steps in each grade.’
‘(34)	The conditions of employment covering overall level of pay and pensions for officials and other servants, remain [(4) ] at a level which attracts and retains the best applicants from all the Member States in an independent and permanent European civil service.’
‘(37)	Provision should be made for transitional arrangements to enable the new rules and measures to be applied gradually, whilst respecting the acquired rights of the staff in the framework of the Community system before the entering into force of these amendments to the Staff Regulations and taking account of their legitimate expectations.’
Provisions of the Staff Regulations, before and after amendment
4. Article 1a(1) of the pre-2004 version of the Staff Regulations, introduced by Regulation No 781/98, (5) provided:
‘Officials shall be entitled to equal treatment under these Staff Regulations without reference, direct or indirect, to race, political, philosophical or religious beliefs, sex or sexual orientation, without prejudice to the relevant provisions requiring a specific marital status.’
5. In the new version, that provision was reworded, and became Article 1d(1):
‘In the application of these Staff Regulations, any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age, or sexual orientation shall be prohibited.
For the purposes of these Staff Regulations, non-marital partnerships shall be treated as marriage provided that all the conditions listed in Article 1(2)(c) of Annex VII are fulfilled.’
6. Prior to the 2004 amendments, Article 5 of the Staff Regulations provided as follows:
‘1.	The posts covered by these Staff Regulations shall be classified, according to the nature and importance of the duties to which they relate, in four categories A, B, C and D, in descending order of rank.
Category A shall comprise eight grades, divided into career brackets ordinarily containing two grades each for staff engaged in administrative and advisory duties which require university education or equivalent professional experience.
Category B shall comprise five grades, divided into career brackets ordinarily containing two grades each for staff engaged in executive duties which require an advanced level of secondary education or equivalent professional experience.
Category C shall comprise five grades, divided into career brackets ordinarily containing two grades each for staff engaged in clerical duties which require secondary education or equivalent professional experience.
Category D shall comprise four grades, divided into career brackets ordinarily containing two grades each for staff engaged in manual or service duties which require primary education, if necessary supplemented by some technical training.
...
2.	Posts of translators and interpreters shall be grouped in a Language Service designated by the letters LA, comprising six grades equivalent to grades 3 to 8 of Category A and divided into career brackets ordinarily containing two grades each.
3.	Identical conditions of recruitment and service career shall apply to all officials belonging to the same category or the same service.
...’
7. Following amendment, Article 5 now reads:
‘1.	The posts covered by the Staff Regulations shall be classified, according to the nature and importance of the duties to which they relate, in an administrators’ function group (hereinafter “AD”) and an assistants’ function group (hereinafter “AST”).
2.	Function group AD shall comprise twelve grades, corresponding to administrative, advisory, linguistic and scientific duties.
Function group AST shall comprise eleven grades, corresponding to executive, technical and clerical duties.
3.	Appointment shall require at least:
(a) in function group AST:
(i) a level of post-secondary education attested by a diploma, or
(ii) a level of secondary education attested by a diploma giving access to post-secondary education, and appropriate professional experience of at least three years, or
(iii)	where justified in the interests of the service, professional training or professional experience of an equivalent level.
(b) in function group AD for grades 5 and 6:
(i) a level of education which corresponds to completed university studies of at least three years attested by a diploma, or
(ii) where justified in the interest of the service, professional training of an equivalent level.
(c) in function group AD for grades 7 to 16:
(i) a level of education which corresponds to completed university studies attested by a diploma when the normal period of university education is four years or more, or
(ii) a level of education which corresponds to completed university studies attested by a diploma and appropriate professional experience of at least one year when the normal period of university education is at least three years, or
(iii)	where justified in the interests of the service, professional training of an equivalent level.
4.	A table showing types of posts is given in Annex I, point A.
By reference to this table, each institution shall define the duties and powers attaching to each type of post after consulting the Staff Regulations Committee.
5.	Identical conditions of recruitment and service career shall apply to all officials belonging to the same function group.’
8. The grades in the old career structure comprised in general eight steps, each involving a salary increment, whereas those in the new career structure comprise in general five steps.
There has been no change to the rule that officials enjoy automatic advancement to the next step in their grade every two years (Article 44 of the Staff Regulations), whereas promotion to a higher grade is by decision of the appointing authority on the basis of merit (Article 45).
9. Article 7(1) of the Staff Regulations provides that the appointing authority, acting solely in the interest of the service and without regard to nationality, is to assign each official by appointment or transfer to a post in his category or service (or, since 1 May 2004, his function group) which corresponds to his grade.
10. Article 10 sets up a Staff Regulations Committee, consisting of representatives of the Community institutions and an equal number of representatives of their Staff Committees.
Before amendment, (6) it stated, in so far as relevant:
‘The Committee shall be consulted by the Commission on any proposal for the revision of the Staff Regulations; it shall make known its opinion within such period as may be set by the Commission.’
11. Article 31 of the Staff Regulations relates to the appointment of officials selected by means of an open competition.
Before amendment, Article 31(1) provided that officials in Category A or the Language Service should be appointed to the starting grade of their category or service, and those in other categories to the starting grade for the post for which they were recruited.
Article 31(2) allowed the appointing authority to derogate from those rules within the limit of between one third and two thirds of the posts available, depending on the grade and on the type of vacancy.
12. Following the 2004 amendments, Article 31(1) and (2) provides:
‘1.	Candidates selected shall be appointed to the grade of the function group set out in the notice of the competition they have passed.
2.	Without prejudice to Article 29(2), [(7) ] officials shall be recruited only at grades AST 1 to AST 4 or AD 5 to AD 8.
The grade of the competition notice shall be determined by the institution in accordance with the following criteria:
(a) the objective of recruiting officials of the highest standard as defined in Article 27[(8) ];
(b) the quality of the professional experience required.
To address specific needs of the institutions, labour market conditions prevailing in the Community may also be taken into account when recruiting officials.’ (9)
13. Both before and after amendment, Article 32 provides that an official is to be recruited in principle at the first step in his grade, but that the appointing authority may allow additional seniority to take account of training and experience.
Its third paragraph provides:
‘Members of the temporary staff graded in accordance with the grading criteria adopted by the institution shall retain the seniority in the step acquired in that capacity if they are appointed officials in the same grade immediately following the period of temporary service.’
Transitional provisions
14. Since 1 May 2004, the Staff Regulations have included an Annex XIII, entitled ‘Transitional measures applicable to officials of the Communities’, Articles 1 and 2 of which are worded as follows:
‘Article 1
1.	For the period from 1 May 2004 to 30 April 2006 Article 5(1) and (2) of the Staff Regulations are replaced by the following:
“1.	The posts covered by the Staff Regulations shall be classified, according to the nature and importance of the duties to which they relate, in four categories A*, B*, C* and D*, in descending order of rank.
2.	Category A* shall comprise twelve grades, category B* shall comprise nine grades, category C* shall comprise seven grades and category D* shall contain five grades.”
2.	Any reference to the date of recruitment shall be taken to refer to the date of entry into service.
Article 2
1.	On 1 May 2004, and subject to Article 8 of this Annex, the grades of officials having one of the administrative statuses set out in Article 35 of the Staff Regulations [(10) ] shall be renamed as follows:
>lt>1
…’
15. Under Article 4 of Annex XIII, for the period from 1 May 2004 to 30 April 2006, the words ‘function group’ were to be replaced by ‘category’ in, inter alia, Articles 5(5) and 31(1) of the Staff Regulations, the words ‘function group AD’ by ‘category A*’ in, inter alia, Article 5(3)(c) of the Staff Regulations and the words ‘function group AST’ by ‘categories B* and C*’ in, inter alia, Article 5(3)(a) of the Staff Regulations.
Under Article 4(n), the reference in Article 5(4) of the Staff Regulations to Annex I.A was to be replaced by a reference to Annex XIII.1, which listed types of post during the transitional period.
16. Article 12 of Annex XIII provides:
‘1.	Between 1 May 2004 and 30 April 2006, reference to grades in function groups AST and AD in paragraph 2 and 3 of Article 31 of the Staff Regulations shall be made as follows:
– AST 1 to AST 4: C*1 to C*2 and B*3 to B*4
– AD 5 to AD 8: A*5 to A*8
– AD 9, AD 10, AD 11, AD 12: A*9, A*10, A*11, A*12.
2.	In the case of officials recruited from lists of suitable candidates [(11) ] resulting from competitions published before 1 May 2004 Article 5(3) of the Staff Regulations shall not apply.
3.	Officials who have been included in a list of suitable candidates before 1 May 2006 and are recruited between 1 May 2004 and 30 April 2006 shall:
– if the list was drawn up for category A*, B* or C*, be graded in the grade published in the competition,
– if the list was drawn up for category A, LA, B or C, be graded in accordance with the following table:
>lt>2
…’
17. With regard to the second line of the above table, it appears from the case-file at first instance that the Commission had proposed that those on a reserve list for old career bracket A7/LA7 and A6/LA6 should be recruited at the new grade not of A*6 but of A*7.
It is common ground that the Staff Regulations Committee provided for in Article 10 of the Staff Regulations was consulted on the earlier proposal but not on the later substitution of A*6 for A*7.
By way of comparison, the starting salary for old grade A7/LA7 was EUR 4 815.59 per month;
that for new grade A*7 was EUR 4 878.24 whereas that for A*6 was EUR 4 311.55. (12)
Facts giving rise to the proceedings
18. The relevant facts are set out in paragraphs 9 to 21 of the judgment under appeal (13) as follows:
‘(9) The Commission published in the Official Journal of the European Communities, during the period between 11 April 2001 and 18 June 2002, a number of notices of open competitions to constitute reserves of Administrators in career bracket A7/A6 (COM/A/6/01, COM/A/9/01, COM/A/10/01, COM/A/1/02, COM/A/3/02 and CC/A/12/02), Assistant Administrators in career bracket A8 (competition COM/A/2/02) and Administrative Assistants in career bracket B5/B4 (competition COM B/1/02).
(10) The 17 applicants were included before 1 May 2004 on the various lists of suitable candidates drawn up following the selection tests.
(11) Under the section headed “Recruitment”, the competition notices stated that if successful candidates were placed on a reserve list they would be eligible for appointment, as required.
(12) At the end of point D (“General Information”) of the notices of open competitions COM/A/l/02 and COM/A/2/02, the following note appeared:
“The Commission has formally transmitted to the Council a proposal to amend the Staff Regulations.
This proposal contains, inter alia, a new career system.
The successful candidates in this competition could, therefore, be offered a post on the basis of new Staff Regulations, if they have been adopted by the Council.”
(13) The notice of competition COM/A/3/02 contained an almost identical note which referred to “the provisions of the new Staff Regulations”.
(14) The lists of suitable candidates drawn up following competitions COM/A/6/01, COM/A/9/01 and COM/A/10/01 (“the 2001 competitions”) were published in the Official Journal of the European Communities
on, respectively, 19 November 2002 (competition COM/A/6/01), 8 March (competition COM/A/10/01) and 2 July 2003 (competition COM/A/9/01).
(15) The letters informing the successful candidates in the 2001 competitions of their inclusion on the list of suitable candidates stated inter alia that the validity of that list was due to expire on 31 December 2003.
(16) In December 2003, the Commission’s Directorate-General for Personnel and Administration sent a letter to each of the successful candidates in the 2001 competitions, informing them that the validity of the various lists of suitable candidates was being extended until 31 December 2004.
(17) The lists of suitable candidates drawn up following competitions COM/A/l/02, COM/A/2/02, COM/A/3/02, COM/B/1/02 and CC/A/12/02 (“the 2002 competitions”) were published in the Official Journal of the European Communities
on, respectively, 19 December 2003 (competition CC/A/12/02), 23 March (competitions COM/A/1/02 and COM/A/2/02) and 18 May 2004 (competitions COM/A/3/02 and COM/B/1/02).
(18) The applicants were appointed probationary officials by decisions adopted after 1 May 2004 (“the contested decisions”) and taking effect by a date between that date and 1 December 2004.
(19) By the contested decisions, the applicants were graded in accordance with Article 12(3) of Annex XIII to the Staff Regulations, that is to say, in grade B*3 (competition COM/B/1/02), grade A*5 (competition COM/A/2/02) or grade A*6 (all other competitions).
(20) All the applicants lodged, between 6 August 2004 and 21 October 2004, complaints under Article 90(2) of the Staff Regulations against the decisions appointing them probationary officials in so far as those decisions fixed their classification, in accordance with Article 12(3) of Annex XIII to the Staff Regulations, at grades less favourable than those set out in the various competition notices.
(21) By decisions taken between 21 October 2004 and 22 December 2004, the appointing authority rejected the complaints lodged by the applicants.’
19. Thus, the applicants fall into three categories:
– those who would have been appointed, before 1 May 2004, to grade A7 (with a basic starting salary EUR 4 815.59 per month), which would have then have been renamed grade A*8, with salary maintained at the same level, but who were in fact appointed, after 1 May 2004, to grade A*6 (with a basic starting salary of EUR 4 311.55 per month);
– those who would have been appointed, before 1 May 2004, to grade A8 (with a basic starting salary EUR 4 258.95 per month), which would have then have been renamed grade A*7, with salary maintained at the same level, but who were in fact appointed, after 1 May 2004, to grade A*5 (with a basic starting salary of EUR 3 810.69 per month);
– those who would have been appointed, before 1 May 2004, to grade B5 (with a basic starting salary EUR 3 143.24 per month), which would have then have been renamed grade B*5, with salary maintained at the same level, but who were in fact appointed, after 1 May 2004, to grade B*3 (with a basic starting salary of EUR 2 976.76 per month). (14)
Proceedings at first instance
20. By a single application lodged on 3 February 2005, the 17 applicants asked the Court of First Instance to:
– annul the contested decisions in so far as they fix their classification in grade in accordance with Article 12(3) of Annex XIII to the Staff Regulations;
– reconstitute their careers (including recognition of their experience in the grade thus amended, their rights to promotion and their pension entitlement), starting from the grade at which they should have been appointed as stated in the notice of the competition following which they were placed on the list of suitable candidates, either at the grade mentioned in that competition notice or at that corresponding to its equivalent according to the classification established by the rules laid down in the new Staff Regulations (and at the appropriate step in accordance with the rules applicable before 1 May 2004), as from the appointment decision;
– award them default interest, calculated on the basis of the rate fixed by the European Central Bank, payable in respect of all sums corresponding to the difference between the salary corresponding to their classification shown in the appointment decision and the classification to which they should have been entitled, up to the date of the decision properly classifying them in grade;
– order the Commission to pay the entire costs.
21. The Council intervened in support of the Commission.
22. In support of their claims for annulment, the applicants argued, first, that Article 12(3) of Annex XIII to the Staff Regulations, on the basis of which they were classified, was unlawful and, second, that the contested decisions themselves infringed the principles of good administration, of regard for the interests of officials, of transparency, of legitimate expectation, of good faith, of equal treatment and of equivalence between post and grade.
23. In its judgment of 11 July 2007, the Court of First Instance rejected those arguments for annulment of the contested decisions (15) and, there being thus no need to rule on the claims for reconstitution of their careers and for the award of default interest on arrears of pay which could have resulted from annulment, dismissed the application in its entirety.
24. However, it considered that the Commission had not warned the applicants clearly and precisely of the foreseeable specific effect on their individual situations of a draft amendment to the Staff Regulations of which it was itself the author, and that, because of the uncertainty thus engendered, they were entitled to feel justified in disputing their classification in grade.
It therefore ordered the Commission to bear half of the applicants’ costs.
The appeal
25. All 17 applicants at first instance lodged a joint appeal on 21 September 2007.
26. They make the preliminary points that the Court of First Instance (i) treated them all in the same way without taking account of the particular situation of each of them and (ii) based its decision on the presumption, which they dispute, that the legality of their grade classification can be assessed only as of the date of their appointment.
27. The appellants then put forward two grounds of appeal.
28. First, they submit that the Court of First Instance was wrong in concluding that Article 12(3) of Annex XIII to the Staff Regulations is lawful.
They claim, in summary, that the Court of First Instance (i) infringed Article 10 of the old Staff Regulations by interpreting it as justifying a failure to re-consult the Staff Regulations Committee;
(ii) infringed the principle of acquired rights by considering whether there was an acquired right in being appointed, rather than in being classed in a certain grade in the event of appointment;
(iii) infringed the principle of equal treatment by distinguishing between successful candidates according to whether they were appointed before or after 1 May 2004;
(iv) infringed the principle of legitimate expectation and distorted the evidence; and (v) misconstrued the scope of Articles 5, 7 and 31 of the Staff Regulations, thereby infringing its duty to give reasons.
29. Second, the appellants contest the finding that the Commission’s failure in its duty to provide information could not, in itself, render the contested decisions unlawful.
They claim, in that regard, that the Court of First Instance infringed the principles of good administration, regard for the interests of officials, transparency, legitimate expectation, good faith, equal treatment and equivalence between post and grade.
Admissibility of the appeal
30. The Council, whilst not claiming that the appeal is inadmissible as a whole, submits that many of the appellants’ arguments do not meet the requirements of Article 58 of the Statute of the Court of Justice in that they do not identify any infringement of Community law by the Court of First Instance but simply seek a reconsideration of their arguments at first instance.
31. It is settled case-law that ‘an appeal is inadmissible if, without even including an argument specifically identifying the error of law allegedly vitiating the decision under appeal, it merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the Court of First Instance.
By contrast, provided that the appellant challenges the interpretation or application of Community law by the Court of First Instance, the points of law examined at first instance may be discussed again in the course of an appeal.
Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the Court of First Instance, an appeal would be deprived of part of its purpose’. (16)
32. In the present case, it is clear to me that the appellants have, for each ground of appeal, identified the legal errors which they consider the Court of First Instance to have committed in successive passages of its judgment.
The fact that they necessarily recall, in that context, some of the arguments they advanced at first instance can therefore in no way affect the admissibility of their grounds of appeal.
Substance of the appeal
First ground of appeal:
illegality of Article 12(3) of Annex XIII to the Staff Regulations
First limb:
infringement of Article 10 of the Staff Regulations
– The judgment under appeal
33. The applicants argued at first instance that the substitution of grade A*6 for grade A*7 in the table in Article 12(3) of Annex XIII to the Staff Regulations was vitiated by the failure to consult the Staff Regulations Committee on that point. (17)
34. At paragraphs 35 to 43 of its judgment, the Court of First Instance rejected that argument, reasoning essentially as follows.
35. The Staff Regulations Committee must be consulted not only on formal proposals but on substantial changes to proposals already considered, unless such changes correspond to those proposed by the Committee.
Thus, if changes substantially affecting the tenor of a proposal for revision of the Staff Regulations are introduced during negotiation within the Council, the committee must be re-consulted before the provisions concerned are adopted.
However, there is no such obligation for specific changes of limited effect – that would excessively restrict the right of amendment in the legislative process.
Whether a change is substantial or not must be assessed from the point of view of its subject-matter and position within the whole text proposed, not of the individual consequences which it may have for those likely to be affected by it.
36. In this instance, the proposed new career structure had the immediate effect of lowering recruitment grades for new officials, with in due course an expansion of their career prospects.
The substitution of grade A*6 for grade A*7 fitted into the broad logic and overall perspective of such a progressive restructuring.
It was a specific adaptation of the transitional provisions, affecting neither their general tenor nor their substance to an extent which would justify re-consultation of the Staff Regulations Committee.
37. Consequently, the Commission did not infringe Article 10 of the Staff Regulations by not re-consulting the committee, even though the substitution in question, inserted after the committee had been consulted, did immediately have a significant financial effect on the initial classification and starting salary of the officials concerned.
– Argument
38. The appellants
accept the first part of that reasoning, but not (i) the view that the question whether a change is substantial cannot be assessed from the point of view of the individual consequences it may have for those likely to be affected or, consequently, (ii) the conclusion that the substitution in issue was not a substantial change.
39. Without developing the first point further, the appellants stress the importance of the consequences in the present case for a ‘very large’ number of officials – not only a lower starting salary but also a career-long lag of one grade in comparison with their situation if they had been appointed at the higher grade – on which the Staff Regulations Committee might well have had comments to make.
40. They compare the substitution in the present case with the change made to Regulation No 2688/95 (18) during the legislative process.
The initial proposal, on which the Staff Regulations Committee had been consulted, provided for early retirement arrangements for officials of all the institutions, but the text finally adopted limited those arrangements to officials of the Parliament.
In Losch (19) the Court of First Instance considered that to amount to a substantial change on which the Committee should have been re-consulted.
41. Moreover, the appellants consider, the Court of First Instance failed to state adequate reasons for its conclusion that the substitution of grade A*6 for A*7 ‘fits into the broad logic and overall perspective of a progressive transformation of career structures’, particularly since it also acknowledged that the table in Article 12(3) of Annex XIII differs from the table in Article 2(1) of that annex, converting the grades of officials in post prior to 1 May 2004 into new intermediate grades.
42. The Commission
considers that the substitution in question has no impact on the unity of the Community civil service, which it is the Staff Regulations Committee’s specific role to safeguard.
The fact that the committee might have had comments to make cannot found an obligation to consult it.
Moreover, the Court of First Instance gave adequate reasons for its conclusion;
the appellants’ allegation concerns rather a failure of the legislator to provide adequate reasons and that issue, not having been raised at first instance, is inadmissible on appeal.
43. The Council
adds that the change in issue in Losch
excluded the staff of all the institutions other than the Parliament from the benefit of the early retirement arrangements, whereas the present change is a minor modification of a transitional provision affecting a limited number of officials.
The change was logical within the overall framework, because grade A7 was the second grade in the old A-category career structure and A*6 is equivalent to AD 6, the second grade in the new AD function group.
And, since the Staff Regulations Committee had already given its views on the correspondence system in general, nothing would have been gained by a further consultation on this specific point.
– Assessment
44. First of all, the appellants’ arguments concerning the importance of the substitution in issue all relate to its consequences for affected individuals.
They can therefore be relevant only if it is established either (a) that the Court of First Instance was wrong to decide that a change to a proposal must be assessed from the point of view of its subject matter and position within the whole text proposed, not of the individual consequences which it may have for those likely to be affected, or (b) that the change was substantial also from the point of view of its subject matter and position within the whole text proposed.
45. It seems to me that neither has been established.
46. The appellants put forward no argument to support their contention that the basic approach was wrong in law.
Nor does that approach seem unreasonable.
Clearly, not every detailed change to a proposal need be referred back to the Staff Regulations Committee, or the legislative process would be in danger of paralysis.
Yet any change, however small, is likely to have individual consequences for a greater or lesser number of officials.
In those circumstances, it seems reasonable to judge whether such a change is substantial enough to warrant a further consultation on the basis not of those consequences in themselves but of its objective importance in the overall scheme of the proposal being considered.
47. From that latter point of view, it does not seem to me to be justified to argue that the change in issue is substantial.
48. I would start from the basis that the relevant ‘proposal being considered’ is not the reform of the Staff Regulations as a whole but the transitional arrangements, and more especially the system of correspondence between competition grade and recruitment grade set out in the table in Article 12(3) of Annex XIII.
(If one were to define the proposal more broadly, the significance of the change in the overall scheme would of course decrease.)
49. Looking at that table, and at the starting salaries before and after 1 May 2004, (20) I note that, with only two exceptions, the starting salary for the new recruitment grade is lower than for the old grade or career bracket for which the competition was organised.
The exceptions are the two highest grades, essentially for directors or directors general, where recruitment is often not by competition. (21)
For all the other grades concerned, the new recruitment grade (C*1 to A*12) is lower than the old competition grade (C5 to A3/LA3).
Over that range, in the version of the proposal on which the Staff Regulations Committee was originally consulted, only the recruitment grade of A*7 bore a starting salary slightly higher than the corresponding competition career brackets (A7/LA7 and A6/LA6).
The substitution of A*6 for A*7 was thus in line with the overall scheme of the table of correspondence.
50. In that light, the reasoning of the Court of First Instance which I have summarised at points 36 and 37 above seems clear and adequate.
The question of the difference between the correspondence tables in Articles 2(1) and 12(3) of Annex XIII relates, as the Commission and Council have pointed out, to the reasons given by the legislature in Regulation No 723/2004, not to those given by the Court of First Instance in its judgment.
51. Consequently, I would dismiss the first limb of the appellants’ first ground of appeal.
Second limb:
infringement of the principle of acquired rights
– The judgment under appeal
52. The applicants argued at first instance that by their inclusion on a reserve list they acquired the right to be appointed at the grades referred to in the respective notices of competition.
Article 12(3) of Annex XIII to the Staff Regulations infringed that right.
53. At paragraphs 52 to 58 of its judgment, the Court of First Instance rejected that argument, reasoning essentially as follows.
54. Inclusion on a reserve list following an open competition confers only eligibility for appointment.
Classification in grade is not acquired until formal appointment by a unilateral decision of the appointing authority, stating the date on which it takes effect and the post to which the official is appointed.
Only then can a successful candidate claim the status of official and the application of the Staff Regulations.
55. When Article 12(3) of Annex XIII to those Regulations came into force on 1 May 2004, the applicants had not yet been the subject of such a decision.
That provision thus did not infringe any right to classification in one of the former grades set out in the competition notices.
An official cannot claim an acquired right unless the circumstances giving rise to it arose under a particular regime which was subsequently amended. (22)
– Argument
56. The appellants
take issue, essentially, with the premiss that their entitlement to be classified in a particular grade was not acquired until after the amendments to the Staff Regulations had entered into force.
They accept that their inclusion on a reserve list did not give them a right to be appointed but contend that it did give them a right to be classified, in the event of appointment, at the grade published in the notice of competition.
57. They cite case-law to the effect that the appointing authority is bound by the terms of a notice of competition.
In Spachis, (23) the applicant had been successful in two open competitions and was appointed first to a linguistic post for which she had no relevant professional experience then, on the basis of the second competition, to an administrative post for which she had nine years’ relevant experience.
The Commission did not take that experience into consideration when determining her grade on the second appointment, but appointed her at the same grade as in the language service.
The Court considered that to be a breach of an inchoate right (24) which she had acquired by passing the competition in question.
58. Moreover, the appellants submit, the circumstances giving rise to their right arose under the old Staff Regulations:
their participation in the competitions, their inclusion on the reserve lists and, in some cases, the decision to offer them a post and the letter indicating that a post would be offered.
And the Court of First Instance itself acknowledged that it was only after their appointment that they were directly informed about the new grading system, lowering their grade of recruitment in relation to that set out in the competition notices.
Finally, it is not only those who are already officials who may rely on the Staff Regulations – it is settled case-law that persons claiming that status may also do so.
59. The Commission
considers (25) that there can be no acquired right unless the circumstances giving rise to it arose under a provision in force before the amendments were introduced.
The Staff Regulations may not be amended retroactively to the detriment of officials, but they may be amended in a way unfavourable for the future.
Moreover, a right cannot be ‘acquired’ until the legal situation has been fixed and no longer depends on a future decision with a discretionary element.
In the present case, the appellants’ situations were still dependent on such decisions being taken after 1 May 2004.
60. The appellants’ argument is illogical in claiming that success in an open competition confers no right to appointment but does confer a right to appointment at a particular grade, which is a consequence of appointment.
The Spachis
judgment implicitly confirms that it confers only eligibility
for appointment at a particular grade – the applicant could have been appointed at either of two grades in the career bracket concerned, and the Court found that her relevant experience had to be taken into account when determining which grade was appropriate.
61. As regards the argument that, in some cases, the decision to offer the appellants a post and the letter indicating that a post would be offered predated 1 May 2004, only the moment when the formal decision of appointment was adopted can be relevant, not the moment when the intention to adopt it was formed or communicated.
In any event, that argument was not raised at first instance and is inadmissible on appeal.
62. Finally, the terms of a notice of competition are binding on the appointing authority as regards the conditions to be met by candidates, but not as regards the content of a decision appointing a successful candidate, which must comply with the applicable rules of the Staff Regulations at the time it is adopted.
63. The Council
submits that the appellants had acquired no rights or duties vis-à-vis any Community institution until such time as the decision appointing them was adopted.
Inclusion on a reserve list offers no guarantee and imposes no obligation.
The judgment in Spachis
does not concern a change in the Staff Regulations, and so no conclusion can be drawn from it.
A notice of competition does indeed bind the appointing authority but does not preclude a change to the legislative framework within which that authority must operate.
In this case, nobody could be appointed at the old grades which had ceased to exist on 1 May 2004, but the legislature maintained the possibility of appointing those on existing reserve lists by specifying a table of correspondence with the new grades.
– Assessment
64. The appellants’ arguments are based to a significant extent on case-law to the effect that the appointing authority is bound by the terms of a notice of competition.
However, the notice of competition is subordinate to the Staff Regulations.
When taking any decision pursuant to that notice, the appointing authority cannot be bound by anything in it which is contrary to a provision in the Staff Regulations which is both lawful and applicable at the time of the decision.
In the present context, only arguments relating to the legality of Article 12(3)
of Annex XIII to those Regulations are relevant.
65. It is accepted by the Commission (and clear from the Court’s case-law) that the legislature may amend the Staff Regulations for the future but, in doing so, must refrain from interfering with any rights previously acquired under the unamended versi on.
The question is therefore whether the Court of First Instance was correct in deciding that no right to appointment at a particular grade had been acquired by those whose names appeared on a reserve list, but who had not yet been appointed, before 1 May 2004.
66. It is common ground that such persons had acquired no right to actual appointment.
It is also incontestable that their actual grade and step on appointment was uncertain until they were actually appointed.
In most cases, the competitions were for posts in a career bracket comprising two grades (and the competition notices specified only that appointment was ‘as a rule’ to the lower grade) and, in all cases, Article 32 of the Staff Regulations allowed training and experience to be taken into account when determining step.
67. In those circumstances, I cannot see how the appellants could have acquired any right to appointment at a specific grade or step, or in what way the Court of First Instance’s finding that they had acquired no such right could be criticised.
68. The case-law of this Court (or of the Court of First Instance or the Civil Service Tribunal) has not hitherto given any detailed indication of what constitutes an acquired right which might be breached by an amendment to the Staff Regulations.
It has merely said that the circumstances giving rise to it must have arisen when the previous regime was in force.
The Commission adds that the right must also have become definite under that regime, in so far as no further discretionary decision remains to be taken.
I would agree – notwithstanding the ‘inchoate’ acquired right to which the Court referred in Spachis, where there was no change to the applicable rules.
In the present case, on 1 May 2004, a number of decisions remained to be taken (or might not have been taken) and could have led to appointment at a different grade or step (or to no appointment at all), even if the old career structure had remained in place.
Those in the appellants’ situation could therefore have no acquired right to appointment at a particular grade or step.
69. It is interesting to note that the Administrative Tribunal of the International Labour Organisation (26) has defined acquired rights rather more closely.
In a recent judgment drawing on its longstanding case-law going back to 1961, (27) it stated:
‘… an acquired right is breached only when ... an amendment adversely affects the balance of contractual obligations by altering fundamental terms of employment in consideration of which the official accepted an appointment, or which subsequently induced him or her to stay on’.
70. Although Community officials are not in a contractual relationship with the institutions employing them, the notion of ‘fundamental terms of employment in consideration of which the official accepted an appointment, or which subsequently induced him or her to stay on’ could be easily – and in my view helpfully – transposed to the Community context.
In the present case, by definition, none of the officials concerned by the table in Article 12(3) of Annex XIII to the Staff Regulations had accepted an appointment before that annex came into force.
Nor could they acquire any right from the old provisions of the Staff Regulations on the basis of an erroneous belief (however it came about) that those provisions still applied.
71. I would therefore dismiss the second limb of the first ground of appeal.
Third limb:
equal treatment
– The judgment under appeal
72. At first instance, the applicants argued that Article 12(3) of Annex XIII to the Staff Regulations treats a single category of persons – successful candidates in the same competition – differently depending on whether they were recruited before or after 1 May 2004.
That date was not an objective distinguishing criterion, since the date of appointment depends on factors which are not objective and over which the official has no control.
The only objective date was that on which they were informed of their inclusion on the reserve list.
In Monaco, (28) the Court of First Instance had held that the principle of equal treatment required all the successful candidates in a competition to be treated identically, irrespective of any new rules which might be adopted before some of them are appointed.
73. Another effect in the applicants’ cases was to assign them ‘senior’ posts with ‘junior’ grades.
In so far as they had already acquired considerable qualifications and experience, they were subject to discrimination based on age, contrary to Article 1d of the Staff Regulations, since they did not have the same career prospects as other, younger officials benefiting from the same classification.
Furthermore, some of them had previously been on the temporary or auxiliary staff, and were assigned to the same posts with the same, or even increased, duties, but a lower classification in grade.
74. At paragraphs 75 to 91 of its judgment, the Court of First Instance rejected that argument, reasoning essentially as follows.
75. The general principle of equal treatment requires that comparable situations must not be treated differently unless differentiation is objectively justified.
The question was therefore whether all the successful candidates in a competition formed a single category, regardless of date of appointment.
76. As was clear from the consideration of the acquired rights issue, the applicants could be lawfully classified only in accordance with the criteria in force when the decision appointing them was adopted.
They implicitly acknowledged, moreover, that the new provisions applied to them, in that they claimed the benefit of Article 1d of the Staff Regulations.
By contrast, successful candidates in the same competitions who were appointed before 1 May 2004 had to be classified in grade on the basis of the old criteria still in force on the date of their appointment.
The two groups therefore could not be regarded as falling within the same category.
77. By specifying that the transitional provisions should respect the acquired rights of the staff in the framework of the Community system before the entry into force of the new rules, recital 37 in the preamble to Regulation No 723/2004 confirmed that distinction.
78. The idea that all officials recruited from the same competition are in comparable situations was advanced in the Monaco
judgment only to establish that it was unlawful for an employer institution to apply its own stricter internal directives on classification in grade, adopted after the candidate’s inclusion on the reserve list, when the classification criteria under the Staff Regulations had not changed.
Here, it was the legislature which, exercising an uncontested right, chose to amend the criteria in the Staff Regulations for classification in grade on recruitment.
The legislature may any time make, for the future, such amendments to the Staff Regulations as it considers consistent with the interests of the service, even if those amendments are less favourable. (29)
79. Since the post to which an official is appointed is determined by the appointment decision, which must be based on the provisions in force on the date of its adoption, it cannot be discriminatory to assign certain officials to a lower grade under the new rules, even though they were being appointed to the same post as they had held before 1 May 2004 as non-established members of staff and were performing duties identical to, or even more important than, those previously performed.
80. Finally, there was no discrimination based on age within the meaning of Article 1d of the Staff Regulations, since the new criteria for classification in grade are manifestly unconnected with any taking into account of the age of the persons concerned.
– Argument
81. The appellants
argue, first, that they had in fact acquired a right to appointment in a particular grade (as argued with regard to the previous limb of the plea) and that they were therefore in the same category as those appointed from the same reserve lists before 1 May 2004, who had acquired the same right.
Recital 37 in the preamble to the amending regulation cannot change that.
82. Next, they submit, the Court of First Instance was wrong to distinguish between a legislative amendment to the Staff Regulations and an amendment to an institution’s internal implementing rules.
Monaco
does not support such an analysis, which is tantamount to placing a legislative amendment beyond the reach of the principle of equal treatment.
That is an unacceptable breach of the rule of law.
In the Community legal order, the principle of equal treatment applies equally to the executive, the legislature and the judicature.
83. The Court of First Instance failed in fact to examine whether all the successful candidates in a single competition formed a comparable group entitled to equal treatment, and failed to follow its own reasoning in Ryan .
In that case, it had established, without distinguishing Monaco, that (i) the discretionary power of the Community authorities to amend the Staff Regulations was subject to the principle of equal treatment, (ii) the nature of the amending act made no difference and (iii) the principle of equal treatment requires that the date of entry into force of new rules should not entail discrimination.
84. By departing from its previous case-law, the Court of First Instance failed in its duty to provide adequate reasons for its decision.
It failed to examine the possible justifications for the difference between the old and new rules and the date of entry into force of the latter.
85. Moreover, it is circular to reason that officials recruited before and after 1 May 2004 form different groups because different rules apply to them, so that there is no unlawful discrimination.
86. The reasoning concerning age discrimination is also wrong in law.
Prohibited discrimination may be indirect as well as direct.
In this case, the discrimination was indirect, in that officials recruited on the basis of competitions for which professional experience was required were appointed at grades appropriate for those lacking such experience.
87. For the Commission, the Court of First Instance’s judgment is not predicated on the idea that the legislature is not bound by the principle of equal treatment.
The true issue is the ‘intertemporal scope’ of the principle:
when, as a result of a new rule introduced as from a certain date, individuals are treated less favourably after that date than before it, does that breach the principle of equal treatment?
The case-law supports the view that it does not.
88. First, in Belgium
v Commission (30) the Court of Justice considered that a Commission regulation had not infringed the principle of non-discrimination by maintaining previously authorised aid schemes while introducing a significantly stricter regime for new schemes.
Although there was unequal treatment as between schemes previously declared compatible and those established in accordance with the new conditions, it was objectively justified.
The Commission could not be precluded from laying down stricter conditions if developments so required.
Nor could it have unilaterally brought existing aid schemes into line with the new conditions, which would have been tantamount to conferring retroactive effect on the regulation, undermining legal certainty and legitimate expectations.
89. Second, the legislature is entitled to adopt, for the future, staff regulations which are less favourable for officials, where it considers that to be consistent with the interests of the service, (31) and officials can have no vested right in the maintenance of an advantage which they enjoyed at a given time. (32)
New rules may lawfully apply to future effects of situations which arose under previous rules.
The use of a particular date as a distinguishing criterion justifying a difference of treatment has moreover been recognised in, at least, German case-law, on the ground that legislation introducing new rules could not otherwise attain its aim.
90. Admittedly, the judgment in Ryan
stated that it is conceivable for the date on which new legislation becomes applicable to constitute unlawful discrimination but, first, that case concerned a date external to the legislative amendment (the date of the change in status of the Court of Auditors under the EC Treaty), whereas the present case concerns a date inherent in the amendment itself and, second, the amendment in Ryan
retroactively reclassified a situation which had arisen under the previous rules, rather than simply defining anew its future effects.
The judgment in Monaco
(on the correctness of which the Commission in any event expresses some doubt) was based not on the nature of the measure changing the rules but on the fact that it was the institution rather than the legislature which changed them.
91. The Council
considers that candidates recruited before 1 May 2004 and those recruited as from that date are in different legal situations, their recruitment being governed by different provisions.
The new provisions were introduced for fully justifiable reasons set out in the preamble to Regulation No 723/2004.
The Court of First Instance did not place the legislature beyond the reach of the principle of equal treatment, but examined carefully whether it had been respected.
To take the appellants’ approach would be in fact to create unjustifiable discrimination between officials recruited as from 1 May 2004, depending on whether they had been successful in a competition initiated before or after that date.
Finally, the appellants’ allegation of age discrimination is based on the claim that those with greater experience are necessarily older, which is factually incorrect.
– Assessment
92. First, it seems to me that the issue of equal treatment is separate from that of acquired rights.
If all the successful candidates in a given competition acquired a conditional right to appointment at a particular grade, then that would indeed be a common factor capable of placing them in a single category, all of whose members should benefit from equality of treatment.
Having reached the view that they do not acquire such a right, I conclude that the appellants cannot on that basis claim equal treatment with other officials recruited from the same reserve lists.
That does not mean, however, that they cannot claim equality of treatment on a different basis.
93. Second – and disregarding therefore such arguments and considerations as tend to link the fate of the plea based on equal treatment with that of the plea based on acquired rights – I find that the reasoning of the Court of First Instance is, as the appellants submit, inadequate.
94. That Court correctly states the principle of equal treatment as requiring that comparable situations must not be treated differently unless differentiation is objectively justified, and correctly identifies the first relevant question as being whether all the successful candidates in a competition form a single category – in other words, are in comparable situations – regardless of their date of appointment (paragraphs 75 and 76 of the judgment under appeal).
95. It answers that question in the negative, on the basic – indeed sole – ground that those appointed before 1 May 2004 had to be classified in accordance with the old provisions whereas those appointed on or after that date had to be classified in accordance with the new provisions (paragraphs 77 to 80), then supports that finding with various additional considerations.
96. The basic reasoning seems circular – indeed, the Commission appeared to accept as much at the hearing.
The criterion relied on to justify placing the two groups considered in different categories is the very criterion which is alleged to infringe the principle of equal treatment.
That justification seems to imply that, if Community legislation treats two sets of persons differently, there can be no discrimination because they necessarily fall into different categories by virtue of the difference in treatment.
And that, as the appellants point out, implies that the Community legislature is beyond the reach of the principle of equal treatment – which, as the Court has consistently held, is not the case. (33)
97. Nor am I convinced by the other considerations with which the Court of First Instance supports its finding.
98. The reference to acquired rights, in particular as mentioned in recital 37 in the preamble to Regulation No 723/2004, is in my view not relevant to the question of equal treatment.
In any event, recital 37 is internal to the regulation and any rel iance on it would again be circular.
99. The way in which the Court of First Instance distinguishes its previous judgment in Monaco
is, to my mind, unsatisfactory.
Nothing in the relevant paragraphs of that judgment indicates that the principle expressed – that it is unlawful discrimination to recruit from the same competition some officials under earlier, more favourable, rules and others under later, less favourable, rules – is confined to cases where the new rules are internal provisions adopted by the employer institution, to the exclusion of provisions of the Staff Regulations themselves, adopted by the Community legislature.
Nor would such a view seem easy to defend.
The principle of equal treatment is a fundamental principle of law which must be respected by any measure taken by any Community institution at any level.
100. The reference to the legislature’s power at any time to make, for the future, such amendments to the Staff Regulations as it considers to be consistent with the interests of the service, even if those amendments are less favourable, does not seem to me to be in point.
It is undoubtedly true that the legislature has such a power, but what the appellants have complained of from the outset is not that a new career structure was introduced as from 1 May 2004 but that two different sets of transitional provisions were applied in that regard to officials recruited from the same reserve lists, according to whether they entered into service before or after that date.
101. As regards the Court of First Instance’s treatment of the applicants’ arguments alleging age discrimination and discrimination in the form of ‘demotion’ by comparison with the grades which certain of them had held as members of the temporary staff, it seems to me that those allegations are quite simply extraneous to the issue of whether the two sets of transitional provisions differentiate justifiably between two categories of officials in different situations or unjustifiably between officials in comparable situations.
Consequently, while I consider that the Court of First Instance was right to reject those arguments in that context, that does not affect my view that the reasoning with regard to the difference in treatment is inadequate.
102. For analogous reasons, I am unconvinced by the arguments put forward by the Commission and the Council.
The issue is not whether a legislative amendment introducing new rules applicable to situations which arise after a certain date can breach the principle of equal treatment, but whether different transitional provisions regulating the passage from the old rules to the new are, in the present case, applied to officials in comparable situations, in breach of that principle.
103. I would analyse the issue as follows.
104. In principle, successful candidates in the same competition are in comparable situations and entitled to equal treatment.
In the absence of any change to the Staff Regulations, they are all entitled to recruitment under the same conditions, except in so far as a differentiation may be justified on objective grounds – such as, for example, their previous professional experience.
Since all those on a given reserve list cannot, in practice, be appointed simultaneously, that necessarily implies that those recruited later are entitled, by virtue of the principle of equal treatment and not of any acquired right, to appointment under the same conditions as those recruited earlier.
To say that those not yet appointed on a given date are objectively in a different situation from those already appointed, and may thus be treated differently, would be to confine equal treatment only to those appointed on the same date.
105. In contrast to the open groups of all officials recruited, respectively, before 1 May 2004 or as from that date, each reserve list forms a closed group, whose members are definitively identified at the time it is drawn up and are thus entitled to equality of treatment, subject to any internal differentiation which may be justified on objective grounds.
Consequently, any new measure affecting that treatment – whether an internal implementing provision of an employer institution or a legislative provision of the Staff Regulations – must in principle respect that unity and equality.
Outside circumstances may perhaps be capable of separating the original group into two groups which are no longer in comparable situations and therefore call for different treatment, but a change to the applicable rules cannot itself, by a single stroke, both effect the separation and determine the difference of treatment without breaching the principle of equal treatment.
106. However, the differentiation at issue in the present case is based not just on the single date of 1 May 2004 but on the relationship between that date and, for each member of the closed group of successful candidates in a given competition, the date of entry into service.
107. But neither that latter date nor the relationship between the two can constitute, in my view, an objective ground for differentiating between successful candidates.
The order and timing of recruitment of different candidates from a given reserve list may depend on a number of factors which are not relevant to any differentiation with regard to terms of recruitment – for example, the availability of a budgetary post or the length of notice which a candidate must give to leave his existing job.
In relation to the issue of acquired rights, the Commission emphasised, in particular at the hearing, that the appellants could not have acquired a right to appointment at a particular grade before 1 May 2004 because further discretionary decisions remained to be taken at that time.
In that regard, some of the factors taken into consideration might even be subjective.
The employer institution might expedite or delay the recruitment of a particular candidate for various reasons of convenience or even preference.
The appellants have referred to evidence that certain candidates who were already members of the temporary staff were appointed by an expedited procedure shortly before 1 May 2004, a possibility which was not available to outside candidates or members of the auxiliary staff. (34)
Without needing to take any view on that evidence as such, I consider that a provision which leaves open the possibility of such a discretionary differentiation between candidates who are in principle all in a comparable situation cannot be regarded as compliant with the principle of equal treatment.
108. I stress that I do not dispute the possibility for the legislature to introduce a new career structure, involving less favourable starting conditions for new officials, with effect from a particular date.
109. It may not, however, apply different transitional provisions to different officials recruited on the basis of the same competition designed for the old career structure, unless on the basis of an objective differentiation which is neither internal to the legislative amendment itself nor open to any discretionary manipulation by the employer institution.
110. In the light of all those considerations, I would uphold this third limb of the appellants’ first ground of appeal.
On that basis, and regardless of the fate of their other submissions, the judgment under appeal should be quashed.
Fourth limb:
breach of legitimate expectation – distortion of evidence
– The judgment under appeal
111. At first instance, the applicants argued that Article 12(3) of Annex XIII to the Staff Regulations breached their legitimate expectation of benefiting from treatment in accordance with the conditions laid down in the competition notices.
112. At paragraphs 95 to 99 of its judgment, the Court of First Instance rejected that argument, reasoning essentially as follows.
113. An official cannot rely on the principle of the protection of legitimate expectations in order to challenge the lawfulness of a new regulation, particularly since the legislature has a wide discretion as to the need for reform to the Staff Regulations.
That principle applies only where the Community administration has led the claimant to entertain justified expectations by giving him precise assurances in the form of precise, unconditional and consistent information coming from authorised and reliable sources.
In the present case, the file did not contain any document capable of giving rise to a legitimate expectation that the old criteria for classification in grade on recruitment would be maintained.
Competition notices and correspondence from the Commission pointed out that the successful candidates could be offered recruitment on the basis of new provisions of the Staff Regulations.
Nor could the applicants rely on a substantial change in a situation established under the old Staff Regulations since their inclusion on a reserve list could not entitle them to benefit from such a situation.
– Argument
114. The appellants
submit that the Court of First Instance distorted the evidence by stating that the file did not contain any document capable of giving rise to a legitimate expectation that the old criteria for classification in grade on recruitment would be maintained.
The file did in fact contain documents which showed that, for four appellants, precise, unconditional and consistent information to the effect that appointment would be at the grade announced in the competition notices, or its equivalent, was given by authorised and reliable sources.
Those documents included offers of employment made and accepted before 1 May 2004, with no indication that the post would be at a lower level of salary or seniority.
For the remainder, who were not offered employment until after that date, several were given no information in the form of any offer of employment, and several took part in competitions which made no mention of any possible change to the Staff Regulations.
115. The
Commission
and the Council submit first that, according to consistent case-law, (35) individuals are not justified in having a legitimate expectation that an existing situation which is capable of being altered by the Community institutions in the exercise of their discretionary power will be maintained.
116. Second, assurances given by an administrative authority cannot affect the legality of legislative measures.
Consequently, the appellants’ factual claims are irrelevant in relation to the plea of illegality and the Court of First Instance was correct in stating that the file did not contain any document capable of giving rise to a legitimate expectation that the old criteria for classification in grade would be maintained.
117. Third, promises which do not take account of the applicable provisions cannot give rise to legitimate expectation on the part of the person concerned (36) so that, even with regard to the legality of the appointments rather than of the disputed provision, a promise made in the context of the unamended Staff Regulations cannot be relied on following the entry into force of the amendments.
118. Finally, the Court of First Instance did not distort the evidence.
Its statements faithfully reflect the fact that different applicants were in different situations as regards the indications given to them.
– Assessment
119. It is undisputed that various appellants were given various indications from which they could have concluded that they would be appointed at one of the grades for which the competitions in which they were successful had been organised.
I detect, however, no flaw in the Court of First Instance’s finding that they were not entitled to derive any legitimate expectation from those indications – however precise, consistent and unconditional they may have been and however authorised and reliable their source.
120. As the Court of First Instance recalled, individuals cannot rely on the principle of the protection of legitimate expectations in order to challenge the lawfulness of new legislation, particularly in an area in which the legislature has a wide discretion. (37)
121. Moreover, I would agree with the Commission that an assurance given by an administrative authority cannot in any event give rise to a legitimate expectation limiting the scope of action of the legislature.
Consequently, any legitimate expectation which could have been derived from the information given to the appellants would be relevant only to the validity of the appointment decisions or, as the Commission pointed out at the hearing, to a possible claim for reparation, but not to the legality of Article 12(3) of Annex XIII to the Staff Regulations.
122. However, the validity of those decisions depends in the first place on the legality of the provision on which they were based and with which they necessarily had to comply.
If, as I suggest, that provision is unlawful because it breaches the principle of equal treatment, the appointment decisions must in any event be annulled, irrespective of any infringement of legitimate expectations, and new decisions adopted on a proper legal basis.
123. I am therefore of the view that the fourth limb of the first ground of appeal should not be upheld.
Fifth limb:
infringement of Article 31 of the Staff Regulations
– The judgment under appeal
124. At first instance, the applicants argued that Article 12(3) of Annex XIII was inconsistent with the amended Article 31(1) of the Staff Regulations, under which candidates are to be recruited at the grade set out in the notice of the competition they have passed.
They should therefore have been recruited at those grades, converted into the new intermediate grades in accordance with Article 2(1) of Annex XIII.
125. At paragraphs 108 to 116 of its judgment, the Court of First Instance rejected that argument, reasoning essentially as follows.
126. Under Article 31(1) of the Staff Regulations, successful candidates must be appointed at the grade set out in the notice of the competition.
It nevertheless follows from the reasoning applied to the issue of equal treatment that the Commission’s determination of the importance of the posts to be filled and of the conditions for the appointment of successful candidates to those posts, carried out under the provisions of the old Staff Regulations, could not extend its effects beyond 1 May 2004 when the new career structure entered into force.
127. The situation of candidates who were included on reserve lists before 1 May 2004 but appointed on or after that date was therefore dealt with in Article 12(3) of Annex XIII.
It is true that the table in that provision differs from the one in Article 2(1) of the same annex, converting the former grades of officials in post prior to 1 May 2004 into new intermediate grades.
It is however open to the legislature to adopt, for the future, amendments to the provisions of the Staff Regulations, even if they are less favourable than the former provisions.
128. By its very nature, such a transitional provision derogates from certain rules whose application is necessarily affected by the change of system.
In this case, it does not go beyond that which follows from the appointment under the new rules of persons selected by competition procedures initiated and concluded under the old provisions.
– Argument
129. The appellants
submit that the Court of First Instance’s reasoning with regard to Article 31(1) of the Staff Regulations must fall with its reasoning concerning the principle of equal treatment.
That principle would have been satisfied by a transitional provision to the effect that, if one or more successful candidates in a particular competition had already been appointed on the basis of the old criteria, those criteria would apply to all those candidates.
The aim of ‘enabl[ing] the new rules and measures to be applied gradually’ could have been satisfied by aligning Article 12(3) with Article 2(1) of Annex XIII to the Staff Regulations.
The reasoning in the judgment under appeal is therefore defective.
130. They also point out that Article 12(3) of Annex XIII in fact produces definitive, not transitional or progressive, effects and that in Economidis (38) the Civil Service Tribunal had decided that none of the transitional measures in Annexe XIII concerned Article 31 of the Staff Regulations.
131. The Commission
replies essentially only to the latter two points.
It states that a decision taken on the basis of a transitional provision can have definitive effects, and that Economidis
did not concern Article 31 of the Staff Regulations.
132. The Council
submits that the appellants’ arguments are based on the false premiss that Article 31(1) of the Staff Regulations is a higher-ranking norm than Article 12(3) of Annex XIII – their relationship is rather that of lex generalis
and lex specialis .
As regards the adequacy of the reasoning, the appellants are again confusing the reasoning of the Court of First Instance and that of the legislature but, in any event, Articles 2(1) and 12(3) of Annex XIII deal with two objectively different situations – that of officials who had acquired rights under the old Staff Regulations and that of successful candidates who had not.
With regard to the Economidis judgment, the Council makes essentially the same points as the Commission.
– Assessment
133. Although the Court of First Instance’s reasoning in this regard is based primarily on its reasoning with regard to equal treatment, and although I consider the latter reasoning to be defective, I do not agree with the appellants that the conclusion on Article 31 of the Staff Regulations is similarly invalid.
134. The Court of First Instance also pointed out, unassailably, that, following the introduction of the new career structure, it was no longer materially possible to appoint candidates at the grades announced in notices of competition drawn up under the old career structure.
Transitional measures were therefore necessary, and were adopted in Article 12(3) of Annex XIII to the Staff Regulations.
I agree here with the Council that the relationship between Article 31 of the Staff Regulations and Article 12(3) of Annex XIII is that between a lex generalis
and a lex specialis .
135. The Court of First Instance noted the discrepancy between the two sets of transitional provisions – Articles 2(1) and 12(3) of Annex XIII – but considered that the discrepancy fell within the legislature’s ability to adopt new provisions for the future.
Whilst I disagree with that view, on the grounds I have set out in relation to equal treatment, I do not think that has any impact on the present issue.
Article 2(1) of Annex XIII, which deals with the conversion of grades in the old career structure to grades in the new structure, is unrelated to Article 31 of the Staff Regulations, which concerns the grade of appointment following success in an open competition.
136. As regards the two minor points, the Commission is correct in stating that transitional provisions can have definitive effects, and it is clear from a reading of the Economidis
judgment that the facts of the case were all subsequent to 1 May 2004, so that the Civil Service Tribunal’s statement must be read in that context (it cannot, in any event, be read literally, as Article 12(1) of Annex XIII explicitly affects Article 31(2) and (3) of the Staff Regulations).
137. I would therefore dismiss the fifth limb of the first ground of appeal.
Sixth limb:
infringement of Articles 5 and 7 of the Staff Regulations and of the principle of equivalence
– The judgment under appeal
138. At first instance, the applicants argued that Article 12(3) of Annex XIII to the Staff Regulations infringed the principles of equivalence between post and grade, and identity of conditions of recruitment and service career for officials in the same function group, embodied in Articles 5 and 7 of the Regulations.
139. At paragraphs 124 to 132 of its judgment, the Court of First Instance rejected that argument, reasoning essentially as follows.
140. It follows from the analysis of the claim regarding equal treatment that there is no basis for claiming infringement of the principle of identity of conditions of recruitment and service career for officials in the same function group.
Different provisions applied to those recruited before 1 May 2004 and those recruited as from that date.
Annex XIII and in particular Articles 4(n) (39) and 12(3) thereof form a lex specialis
which prevails, for a specified period, over the provisions of Articles 5 and 7 of the Staff Regulations.
– Argument
141. The appellants
submit that the reasoning with regard to this claim must fall with the reasoning concerning the principle of equal treatment.
Moreover, the reasoning here, if carried to its logical conclusion, would mean that a transitional provision is capable of derogating from any general principle of law, which is patently absurd.
The principle of equivalence in issue is a fundamental principle which must be respected.
142. The Commission
and the Council submit, essentially, that it is clear from the judgment under appeal that the Court of First Instance correctly decided that Articles 5 and 7 of the Staff Regulations were fully respected by the introduction of transitional provisions which temporarily prevailed over certain of their provisions.
– Assessment
143. Again, I disagree with the appellants’ claim that the conclusion on this point must fall with the reasoning with regard to equal treatment.
The Court of First Instance’s conclusion is based also on other reasoning which, as the Commission and the Council point out, is valid.
The transitional provision in question forms a lex specialis
which temporarily prevails over the lex generalis
of Articles 5 and 7 of the Staff Regulations.
As for the appellants’ attempted reductio ad absurdum, it is clear that Article 12(3) of Annex XIII in no way derogates from the principle
of equivalence, or correspondence between post and grade, but merely establishes, on a transitional basis, new criteria for determining equivalence which are more in line with the new career structure.
144. I would therefore dismiss this final limb of the first ground of appeal.
Second ground of appeal:
breach of the principles of good administration, transparency, protection of legitimate expectations, good faith, equal treatment and non-discrimination, and equivalence of post and grade
– The judgment under appeal
145. At first instance, the applicants submitted that the contested decisions, as opposed to the provision on which they were based, themselves breached the requirements of good administration, transparency, protection of legitimate expectations, equal treatment and non-discrimination, equivalence of post and grade, good faith and regard for officials’ interests.
146. At paragraphs 147 to 155 of its judgment, the Court of First Instance dismissed that plea, reasoning essentially as follows.
147. It was only after the applicants had taken up their duties that they were directly informed about the new grading system and the lowering of their grade of recruitment in relation to that set out in the competition notices.
Moreover, most of the contested decisions do not refer to Article 12(3) of Annex XIII to the Staff Regulations, even though it was the basis for determining the grade of recruitment.
148. However, although that might form the basis of a claim for reparation, it does not itself render the contested decisions illegal.
The legality of an individual measure must be assessed on the basis of the facts and the law as they stood at the time when it was adopted. (40)
Since none of the contested decisions was adopted before 1 May 2004, the Commission had to classify the applicants in grade in accordance with Article 12(3) of Annex XIII to the Staff Regulations, the illegality of which has not been demonstrated.
Consequently, any irregularities which the Commission may have committed contrary to the principles invoked by the applicants could have no effect on the legality of their classification in grade.
149. In particular, even if, in breach of the principle of non‑discrimination, the Commission gave priority to recruiting certain successful candidates before 1 May 2004, that cannot affect the legality of the contested decisions.
The principle of equal treatment must be reconciled with the principle of legality:
no person may rely, in support of his claim, on an unlawful act committed in favour of another. (41)
– Argument
150. The appellants
submit that the dismissal of their second plea at first instance cannot stand if it is established that, as they argue, Article 12(3) of Annex XIII to the Staff Regulations is unlawful.
151. As regards the issue of priority recruitment of certain candidates before 1 May 2004, (42) they maintain that they did not claim that such recruitments were unlawful but rather that it was contrary to the principle of equal treatment for them not to have had the same benefit.
The Court of First Instance therefore failed to provide adequate reasons for its conclusion.
152. As regards the duty to have regard to officials’ interests, the appellants state that they were appointed to posts in recognition of their merits but at a remuneration lower than that of which they had been informed during the recruitment procedure, that several of them carried out the same tasks before and after appointment as officials and that two of them had even been reclassified, as members of the temporary staff, in accordance with Article 2(1) of Annex XIII to the Staff Regulations before being ‘demoted’, on appointment as officials, to a grade fixed in accordance with Article 12(3) of the same annex.
That is contrary to the institutions’ duty to have regard to officials’ interests, which implies that an official’s remuneration should not be reduced upon appointment to a higher post in recognition of personal merit. (43)
The Court of First Instance disregarded that principle by considering that the Commission had respected it.
153. The Commission
submits that the reasoning in the judgment under appeal adequately addresses all the issues, and that the Da Silva
judgment is not relevant, as it concerns an official who had already been appointed before 1 May 2004 and had therefore acquired rights under the former provisions.
The Court of First Instance did not consider any priority recruitments to be illegal; its statements were clearly based on a simple hypothesis.
154. The Council makes no submission on this ground of appeal, which concerns only the legality of the Commission’s decisions.
– Assessment
155. It seems to me that, in any event, this second ground of appeal is superfluous or inoperative.
Either Article 12(3) of Annex XIII to the Staff Regulations is valid, or it must be declared unlawful as contravening the principle of equal treatment.
If it is valid, the Commission was obliged to appoint the appellants in accordance with its provisions and, inasmuch as it is not alleged that Article 12(3) itself contravenes the principles invoked here, those principles could not be relied on to require the Commission to adopt decisions in contravention of those provisions.
If it is declared unlawful, the appointment decisions taken on its basis must in any event be annulled and new decisions, compliant with the principle of equal treatment, must be taken.
Those new decisions must of course comply with all the principles invoked in connection with this ground of appeal, but it is irrelevant in that regard whether they were observed in the first decisions.
156. It is true that, as the Court of First Instance pointed out, the appellants might have sought (or indeed might yet seek) reparation independently on the basis of failure to comply with at least some of the principles they invoked, even if the appointment decisions and the provision on which they were based were themselves lawful.
However, no such claim for reparation forms any part of their action at first instance or, consequently, of their appeal – their claims for reconstitution of their careers and default interest are dependent on the annulment of the decisions appointing them.
157. I would therefore dismiss the second ground of appeal as inoperative.
Procedural consequences
158. I have reached the view that Annex XIII to the Staff Regulations contravenes the principle of equal treatment in so far as it provides for two divergent sets of transitional provisions – Articles 2(1) and 12(3) – to be applied to successful candidates in one and the same open competition, on grounds which are not objective in that the distinguishing criterion is, in part, laid down by the provisions themselves and, in part, subject to the possibility of change at the discretion of the employer institution.
159. The judgment under appeal should therefore be quashed in so far as it errs in law by reaching the contrary view.
160. That being so, the contested decisions should be annulled in so far as they are based on unlawfully discriminatory provisions of Annex XIII to the Staff Regulations.
It is unnecessary to refer the case back to the Court of First Instance for that purpose.
161. The question arises, however, of the claims for career reconstitution and default interest, on which the Court of First Instance did not rule.
162. As regards the claim for the Commission to be ordered to reconstitute the appellants’ careers, it is settled case-law that the Community courts do not have jurisdiction to issue such directions to the institutions. (44)
163. However, pursuant to the first paragraph of Article 233 EC, following annulment of the contested decisions on the ground I propose, the Community legislature must take the necessary measures to establish equality of treatment between officials recruited on the basis of the same competition, and the Commission must re-examine the appellants’ classification in grade, with effect from the dates of their respective appointments.
None the less, it is open to the Court to specify the rate of interest which should apply to any arrears of salary which may become due to the appellants as a result of that re-examination. (45)
The rate fixed by the European Central Bank appears an appropriate rate to specify in that context.
Costs
164. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
The appellants have applied for costs, and should in my view be successful.
The Commission should therefore bear the costs, both at first instance and on appeal.
The Council, as intervener, must bear its own costs at both instances, in accordance with Article 69(4) of the Rules of Procedure.
Conclusion
165. In the light of all the foregoing considerations, I am of the opinion that the Court should
– quash the judgment of the Court of First Instance in Case T‑58/05, in so far as it finds that the transitional provisions on which the contested decisions were based respected the principle of equal treatment;
– annul the contested decisions in so far as they fixed the appellants’ classification in grade on the basis of those transitional provisions;
– specify that any arrears of salary which may become due to the appellants as a result of that annulment should bear interest, from the date on which they would have fallen due, at the rate fixed by the European Central Bank
– order the Commission to pay the costs at first instance and on appeal, except those of the Council, which must bear its own costs.
(1) .
(2)
–	The Staff Regulations were initially adopted by Council Regulation No 31 (EEC), 11 (EAEC), laying down the Staff Regulations of officials and the Conditions of Employment of other servants of the European Economic Community and the European Atomic Energy Community (JO 1962 p. 1385), and have been amended many times.
The amendments in issue here were embodied in Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities (OJ 2004 L 124, p. 1).
(3)  –	See Administrative Notice N° 59‑2005 of 20 July 2005, ‘Grading upon recruitment on or after 1 May 2004’, and the order of the Civil Service Tribunal in Case F‑78/07 Boudova and Others
v Commission
[2008] ECR‑SC I‑A‑0000, paragraphs 6 and 27.
(4)  – In French, ‘sont maintenues’, which may be more suggestive of intention.
(5)  –	Council Regulation (EC, ECSC, Euratom) No 781/98 of 7 April 1998 amending the Staff Regulations of Officials and Conditions of Employment of Other Servants of the European Communities in respect of equal treatment (OJ 1998 L 113, p. 4).
(6)  –	There was no material amendment in 2004.
(7)  –	Article 29(2) allows exceptional procedures to be used for recruitment at the highest levels (Director and Director-General).
(8)  – Namely, ‘the highest standard of ability, efficiency and integrity, recruited on the broadest possible geographical basis from among nationals of Member States of the Communities’.
(9)  – Article 31(3) allows competitions to be organised also at certain other grades, provided that appointments on that basis do not exceed 20% of the total number of appointments in function group AD for the year concerned.
(10)  –	Namely, active employment, secondment, leave on personal grounds, non-active status, leave for military service and parental leave or family leave.
(11)
–	Also commonly referred to as ‘reserve lists’.
(12)  –	Salaries are taken from Article 66 of the Staff Regulations, as last amended prior to 1 May 2004 by Council Regulation (EC, Euratom) No 2182/2003 of 8 December 2003 adjusting with effect from 1 January 2004 the remuneration and pensions of officials and other servants of the European Communities and the weightings applied thereto (OJ 2003 L 327, p. 3) and as amended with effect from 1 May 2004 by Regulation No 723/2004.
(13)  –	Case T‑58/05 Centeno Mediavilla and Others
v Commission
[2007] ECR II‑0000.
(14)  –	Salaries are for the first step in the relevant grade.
See footnote 12 above.
(15)  –	I shall set out the Court of First Instance’s reasoning in such detail as is required when presenting the successive grounds of appeal.
(16)  –	See, most recently, Case C-10/06 P De Bustamente Tello
v Council [2007] ECR I‑0000, paragraph 28.
(17)  –	See point 17 above.
It appears from the case-file that the applicants originally claimed that the committee was not consulted on any part of what was to become Article 12(3), but subsequently limited the claim to the substitution of A*6 for A*7, in the light of evidence produced by the Commission.
(18)  –	Council Regulation (EC, Euratom, ECSC) No 2688/95 of 17 November 1995 introducing special measures to terminate the service of officials of the European Communities as a result of the accession of Austria, Finland and Sweden (OJ 1995 L 280, p. 1).
(19)  –	Case T‑13/97 Losch
v Court of Justice
[1998] ECR‑SC I-A-543 and II-1633, especially at paragraphs 151 to 172.
(20)  –	See footnote 12 above.
(21)  –	See Article 29(2) of the Staff Regulations.
(22)  –	Case 28/74 Gillet
v Commission
[1975] ECR 463, paragraph 5.
(23)  –	Case 138/84 Spachis
v Commission
[1985] ECR 1939, especially at paragraph 12.
(24)  –	‘Droit virtuel’ in French, the language of the case and the language in which the Court drafted its judgment.
The English version ‘substantive right’ is clearly a mistranslation, and counsel for the appellants was wrong to seek at the hearing to base an argument on that version.
(25)  –	Citing the Opinion of Advocate General Capotorti in Case 127/80 Grogan
v Commission
[1982] ECR 869, at p. 898.
(26)  –	Which decides staff disputes for more than 50 international bodies.
(27)  –	Judgment No 2682 of 6 February 2008, consideration 6.
(28)  –	Case T-92/96 Monaco
v Parliament
[1997] ECR-SC I‑A‑195 and II‑573, paragraph 55.
(29)  –	Case T‑121/97 Ryan
v Court of Auditors [1998] ECR II‑3885, paragraph 98.
(30)  –	Case C‑110/03 [2005] ECR I‑2801, paragraphs 70 to 75.
(31)  –	Ryan, cited above in footnote 29, paragraphs 98 and 104.
(32)  –	Case 230/78 Eridania
[1979] ECR 2479, paragraph 22.
(33)
–	See, for example, Case 20/71 Sabbatini
v Parliament
[1972] ECR 345;
Case C‑249/96 Grant
[1998] ECR I‑621, paragraph 45;
and Case C‑25/02 Rinke
[2003] ECR I‑8349, paragraphs 25 to 28.
(34)  –	Annex A.6 to the application at first instance;
referred to, but not evaluated, in paragraph 154 of the judgment under appeal.
See also point 151 below.
(35)
–	Case C‑310/04 Spain
v Council [2006] ECR I‑7285, paragraph 81 and the case-law cited there.
(36)
–	Case 162/84 Vlachou
v Court of Auditors
[1986] ECR 481, paragraph 6.
(37)  –	The Court of First Instance referred to its judgment in Case T‑30/02 Leonhardt
v Parliament
[2003] ECR‑SC I‑A‑41 and II‑265, paragraph 55;
see also, for example, in the field of commercial policy, Case C‑284/94 Spain
v Council
[1998] ECR I‑7309, paragraph 43.
(38)  –	Case F‑122/05 Economidis
v Commission
[2006] ECR‑SC I‑A‑0000.
(39)  –	See point 15 above.
(40)  –	Case C‑449/98 P IECC
v Commission
[2001] ECR I‑3875, paragraph 87, and Case T‑69/03 W
v Parliament
[2004] ECR‑SC I‑A‑153 and II‑687, paragraph 28.
(41)  –	Case 134/84 Williams
v Court of Auditors
[1985] ECR 2225, paragraph 14.
(42)  –	For the existence of which there is some evidence in the form of an email message produced as Annex A.6 to the application at first instance.
(43)  –	Case F‑21/06 Da Silva v Commission
[2007] ECR‑SC I‑A‑0000.
(44)  –	See, for example, Case T‑136/98 Campogrande
v Commission
[2000] ECR‑SC I‑A‑267 and II‑1225, paragraph 67, and Case C-62/01 P Campogrande
v Commission
[2002] ECR I‑3793, paragraph 43.
(45)  –	Joined Cases 75/82 and 117/82 Razzouk and Beydoun
v Commission
[1984] ECR 1509, paragraphs 18 and 19.