JUDGMENT OF THE CIVIL SERVICE TRIBUNAL
(Third Chamber)
5 March 2008
Case F-33/07
Alberto Toronjo Benitez
v
Commission of the European Communities
(Civil service – Officials – Promotion – Former members of the temporary staff paid from research appropriations – Removal of points from the applicant’s balance – Transfer of an official from the Research part to the Operational part of the general budget – Unlawfulness of Article 2 of the Commission’s decision of 16 June 2004 on the promotion procedure for officials paid from
research appropriations in the general budget)
Application: brought under Articles 236 EC and 152 EA, in which Mr Toronjo Benitez seeks a declaration that Article 2 of the Commission’s
decision of 16 June 2004, amended by the decision of 20 July 2005, on detailed rules governing the promotion procedure for
officials paid from research appropriations in the general budget is unlawful, and annulment of the Commission’s decision
to remove the 44.5 points from his balance which he had accumulated as a member of the temporary staff.
Held: The application is dismissed. The parties are to bear their own costs.
Summary
Officials – Promotion – Consideration of comparative merits
(Staff Regulations, Art. 45)
Article 2 of the Commission’s decision of 16 June 2004 on detailed rules governing the promotion procedure for officials paid
from research appropriations in the general budget, which restricts the mobility of officials, is not contrary to the interests
of the service.
That decision, which applies to officials who were previously members of the temporary staff paid from research appropriations,
provides in Article 2(1), notwithstanding Article 3(4) of the general provisions for implementing Article 45 of the Staff
Regulations adopted by the Commission, that such officials, who, following a competition, are paid from research appropriations
in the general budget, are to retain the promotion points which they have acquired as members of the temporary staff. Under
Article 2(2) of the decision, however, those merit points and priority points are to be cancelled if the officials are, at
their request, transferred to a post paid from the operating appropriations in the general budget in the two years following
their appointment as probationer officials.
The restriction on the mobility of the officials in question is justified by considerations relating to the proper functioning
of the institution and therefore the interests of the service. Although the efficient allocation of staff resources and the
mobility of officials within the institutions are aims which are consistent with the interests of the service, there is more
to it than that. The decision in question is intended to encourage officials who were previously members of the temporary
staff paid from research appropriations to remain for at least two years in posts covered by the Research part of the general
budget in which they have become established officials and for which they have the necessary skills.
It is clear from the provisions in question that the Commission is not unaware that it is in the interests of the service
to promote the mobility of officials within the institutions, and that the Commission is, on the contrary, endeavouring to
reconcile that with the other interests of the service which it specifically has in mind. Thus the restriction on the mobility
of the officials concerned is limited in scope, in so far as it relates only to officials who are former members of the temporary
staff under the Research budget, and who have been established as officials for less than two years in posts under that same
budget. Above all, it is limited in duration to a period of two years from the appointment of the officials in question as
probationer officials.
Furthermore, the decision does not infringe the principle of equal treatment for officials. Article 2(3) of the decision provides
that, by way of exception to Article 2(2) of the decision, three categories of officials referred to in paragraph 1 are to
retain the points they acquired as members of the temporary staff, even if they are transferred to a post paid from the Operational
part of the budget within two years of the date on which they are appointed as probationer officials. Officials who ‘are transferred
by the Appointing Authority in the interests of the service pursuant to Article 7(1) of the Staff Regulations’ form one of
those categories. It is clear from the aims of Article 2 of the decision that the institution intends this to refer to officials
who are transferred solely in the interests of the service regardless of whether they wish to move, which is a power conferred
on the institutions by the provisions of the first subparagraph of Article 7(1) of the Staff Regulations, excluding the provisions
of the second subparagraph of Article 7(1). Although transfers must always be decided in the interests of the service, the
situation of the officials transferred differs substantially depending on whether or not the administration has taken account
of their wishes.
Another category of officials provided for in Article 2(3) of the decision is officials who are transferred at their request
after occupying a sensitive post for two years or more . In that respect, it is justified for officials transferred at their
request to a post paid from the Operational part of the general budget within two years of being appointed as probationer
officials to be treated differently depending on whether or not they have occupied a sensitive post for at least two years.
Even if an official appointed to a sensitive post is generally transferred only at the end of five years, it is wrong to conclude
that such an official is in a different situation from other officials only at the end of five years and not at the end of
two. There is a greater obligation for officials assigned to sensitive posts to undergo mobility because the nature of their
duties exposes them to a greater risk of financial irregularities or a conflict of interests. As a result, officials in sensitive
posts are placed, for the duration of their assignment and not just at the end of five years, in a situation which is objectively
different from that of other officials. That being so, there is no reason to think that the application to those officials
of derogating rules on mobility is justified only at the end of five years. On the contrary, given that it is in the interests
of the service to facilitate the mobility of officials assigned to sensitive posts, in order to restrict the risks to which
they are exposed, it appears reasonable to exclude those officials from the scope of a provision which strongly encourages
stability for two further years from their appointment as probationer officials. Thus, the exception provided for in paragraph
3 for those officials is not disproportionate to the objective pursued.
(see paras 32, 67-73, 90-96)
See:
T-237/95 Carbajo Ferrero v Parliament [1997] ECR-SC I‑A‑141 and II‑429, para. 99