ORDER OF THE GENERAL COURT (Eighth Chamber)
26 March 2020 (*)
(Action for annulment and damages — Civil service — Members of the temporary staff — Contract for an indefinite period — Duties as an administrator as a policy adviser in grade AD 12 — Assignment to the type of post ‘administrator’ — 2014 Staff Regulations — No eligibility for reclassification in the grade above — 2017 reclassification exercise — Refusal to consider the applicant for the purposes of his reclassification in grade AD 13 — Action manifestly lacking any foundation in law)
in Case T‑31/19
AF, residing in Vienna (Austria), represented by L. Levi and N. Flandin, lawyers,
applicant,
v
European Union Agency for Fundamental Rights (FRA), represented by M. O’Flaherty, acting as Agent, and by B. Wägenbaur, lawyer,
defendant,
ACTION under Article 270 TFEU seeking, first, annulment of the FRA decision of 9 May 2018 not to include the applicant’s name in the list of temporary staff eligible for reclassification to grade AD 13 in the 2017 reclassification exercise and, secondly, compensation for the loss he has allegedly suffered as a result of that decision,
THE GENERAL COURT (Eighth Chamber),
composed of J. Svenningsen (Rapporteur), President, R. Barents and C. Mac Eochaidh, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1        The applicant, AF, was recruited on 1 July 1999 by the authority empowered to conclude contracts of employment (‘the AECE’) of the European Monitoring Centre on Racism and Xenophobia (EUMC) as a member of the temporary staff in Category A, grade 8, under the Staff Regulations of Officials of the European Communities and the Conditions of Employment of Other Servants of the Union in the versions then applicable.
2        Following an EUMC internal selection procedure, the applicant was engaged, with effect from 1 November 2003, as a temporary agent in category A, grade 5, step 2, holding a post of ‘Principal Administrator — Head of Unit “[confidential] (1)”’. By way of amendment to the applicant’s contract, the AECE and the latter agreed that, as from 1 May 2006, he would be employed as ‘Head of Unit “[confidential]”’ at grade AD 11, step 3, as provided for, in the versions applicable from 1 May 2004, by the Staff Regulations of Officials of the European Union (‘the 2004 Staff Regulations’) and the Conditions of Employment of Other Servants. According to the information provided by the applicant, in that capacity as head of that department, he was at that time exercising managerial duties, since he was managing the three teams of the department and administering the budget for the department.
3        By Council Regulation (EC) No 168/2007 of 15 February 2007 establishing a European Union Agency for Fundamental Rights (OJ 2007 L 53, p. 1), the European Union Agency for Fundamental Rights (FRA) was established to replace the EUMC.
4        Following a reorganisation of the FRA’s services, the [confidential] Unit was abolished. Under Decision 2011/13 of the Director of the FRA of 20 June 2011 on the revision of the organisational structure, as amended by Decision 2011/23 of 24 June 2011 (‘the reassignment decision’), the post of ‘Head of [confidential] Unit’ was transformed into the post of ‘Policy Advisor [confidential]’ in the category of administrators (AD) while the applicant was reassigned to the post of Policy Advisor [confidential]. By way of amendment signed on 22 July 2011 by the applicant and the AECE, it was agreed that the applicant would be appointed as Adviser to the Director.
5        With effect from 1 January 2014 and in accordance with Article 30(2) of Annex XIII to the Staff Regulations of Officials of the European Union, in the version resulting from the implementation of the provisions of Regulation (EU, Euratom) No 1023/2013 of the European Parliament and of the Council of 22 October 2013 amending the Staff Regulations of Officials of the European Union and the Conditions of Employment of Other Servants of the European Union (OJ 2013 L 287, p. 15) (respectively, ‘the new Staff Regulations’ and ‘the new CEOS’), the appointing authority of each institution had to classify all officials in the administrators’ function group (AD) in service on 31 December 2013, in the various types of post listed in that provision. Under Article 1 of the Annex to the new CEOS, Article 30 of Annex XIII to the new Staff Regulations is applicable by analogy to members of the temporary staff.
6        Following the 2015 reclassification exercise and by decision of the Director of the FRA of 23 March 2017, the applicant was reclassified in grade AD 12, with retroactive effect from 1 January 2015, pursuant to Article 54 of the new CEOS, according to which, as regards members of the temporary staff referred to in Article 2(f) of the new CEOS, such as the applicant, their classification in the next higher grade shall be exclusively by selection from among staff members who have completed a minimum of two years in their grade, after consideration of the comparative merits of such temporary staff and of the reports on them.
7        In accordance with Article 3 of Decision 2016/01 of the Director of the FRA, of 26 February 2016, laying down general implementing provisions regarding Article 54 of the new CEOS (‘the GIP for Article 54’), members of the temporary staff of that agency may be reclassified in the next higher grade if, inter alia, they show the minimum period of two years’ in the grade, as laid down in Article 54(1) of the new CEOS and if, at the time of the launch of the reclassification exercise, they occupy a post which corresponds to one of the types of posts set out in Annex I, Section A, or in Article 31(1) of Annex XIII to the new Staff Regulations for the grade to which they may be reclassified.
8        On 26 April 2018, the FRA published an administrative notice concerning the launch of the 2017 reclassification exercise (‘the 2017 reclassification exercise’), in which it was explained, inter alia, that holders of posts in grades AD 12 and AD 13 were not eligible for reclassification unless they occupied a type of post ‘head of unit or equivalent (AD 9-AD 14)’.
9        On 9 May 2018, the Director of the FRA published a provisional list of members of the temporary staff proposed for reclassification in the higher grade in the 2017 reclassification exercise, in which the applicant’s name did not appear (‘the contested decision’).
10      On 5 June 2018, the applicant, pursuant to Article 90(2) of the new Staff Regulations, lodged a complaint against the contested decision in which he claimed, inter alia, (i) that he satisfied all the conditions required by Article 54 of the new CEOS and the GIP for Article 54 in order to be reclassified in the next higher grade, in this case grade AD 13; (ii) that he occupied a type of post ‘adviser or equivalent’ within the meaning of Section A of Annex I to the new Staff Regulations, meaning that he was eligible for reclassification at grades AD 13 and AD 14; (iii) that the administrative notice of 26 April 2018 was contrary to Article 54 of the new CEOS in that it provided that FRA temporary staff in grades AD 12 and AD 13 were eligible for reclassification only if they occupied a type of post ‘head of unit or equivalent’; (iv) that, in so far as the applicant had held a post of ‘head of unit or equivalent’, in the present case until 2011, and that he had been reassigned to a post as ‘adviser or equivalent’, he had a right and a legitimate expectation that he would be eligible for promotion to grades AD 13 and AD 14, and finally (v) that he could not be assigned to another type of post without his legitimate expectation being affected, because, otherwise it would adversely affect his professional advancement and would constitute a breach of Articles 20, 21 and 41 of the Charter of Fundamental Rights of the European Union and of Articles 54 and 55 of the new CEOS.
11      By a decision which was undated but received by the applicant on 5 October 2018, the Director of the FRA, in his capacity as AECE, rejected the complaint (‘the decision rejecting the complaint’). In that decision, the Director pointed out that, following his reassignment in 2011 to the post of Special Advisor to [confidential], the applicant had since then occupied a post corresponding to ‘Principal Administrator’ within the meaning of Section A of Annex I to the 2004 Staff Regulations. He pointed out in that regard that the existence of types of post governed by the Staff Regulations did not prevent the AECE from deciding on job titles specific to the FRA without, however, creating a legitimate expectation on the part of the persons occupying the posts so titled that they would hold a different type of post under the Staff Regulations. Furthermore, according to the Director of the FRA, officials in grades AD 5 to AD 12 within the meaning of the 2004 Staff Regulations who were in post on 31 December 2013 could not, in any event, be regarded as occupying a post of ‘adviser or equivalent’ within the meaning of the new Staff Regulations, including in the case of the applicant. In that regard, according to the Director of the FRA, the fact that the term ‘advisor’ appeared in the title of his job was irrelevant.
12      Furthermore, as regards the applicant’s claim to preserve a legitimate expectation that he would continue in the same way as a head of unit after his reassignment in 2011, the Director of the FRA pointed out, in the decision rejecting the complaint, that, in the context of the reassignment decision adopted solely in the interests of the service, the AECE had at no time given the applicant any assurance that he would be able to retain the career expectations associated with ‘heads of unit or equivalent’ or with ‘advisers or equivalent’.
Procedure and forms of order sought
13      By application lodged at the Court Registry on 15 January 2019, the applicant brought the present action. By separate document lodged on 25 January 2019, the applicant applied for anonymity under Article 66 of the Rules of Procedure of the General Court, which he was granted.
14      After the FRA lodged its defence, the Court authorised a second exchange of pleadings. On 22 May 2019, the applicant filed his reply. For its part, the FRA did not lodge a rejoinder within the prescribed period, with the result that the written part of the procedure was closed on 4 July 2019.
15      The applicant claims that the Court should:
–        annul the contested decision;
–        so far as necessary, annul the decision rejecting the complaint;
–        order, if the present action is to be declared admissible and well founded, compensation for the material prejudice suffered by the applicant;
–        order the FRA to produce the decision to classify the applicant in the ‘administrator’ type of post which the AECE of the FRA allegedly adopted pursuant to Article 30(2) of Annex XIII to the new Staff Regulations;
–        order the FRA to pay the costs.
16      The FRA contends that the Court should:
–        dismiss the action as inadmissible and unfounded;
–        order the applicant to pay all the costs.
Law
17      Under Article 126 of the Rules of Procedure, where it is clear that the Court has no jurisdiction to hear and determine an action or where the action is manifestly inadmissible or manifestly lacking any foundation in law, the Court may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings.
18      In that regard, the dismissal of an action by reasoned order made on the basis of Article 126 of the Rules of Procedure not only benefits procedural economy, but also saves the parties the costs entailed by the holding of a hearing, if, upon reading the case file, the Court, provided that it considers itself to be sufficiently informed by the documents before it, is entirely convinced of the manifest inadmissibility of the application or that it is manifestly lacking any foundation in law and further considers that the holding of a hearing would be unlikely to provide new evidence capable of affecting that belief (see, by analogy, order of 10 July 2014, Mészáros v Commission, F‑22/13, EU:F:2014:189, paragraph 39 and the case-law cited).
19      In the present case, the Court considers that it has sufficient information from the documents available to it from the material in the file and has decided, pursuant to Article 126 of the Rules of Procedure, to give a decision without taking further steps in the proceedings.
Admissibility
20      In its defence, the FRA contends that the action is inadmissible on the ground that, by the arguments put forward in the application, the applicant is seeking to contest the legality of the reassignment decision dating back to 2011 even though that decision is definitive. In addition, the FRA contends that, in order to be able to take part in the 2017 reclassification exercise, the applicant would have needed to be placed in a type of post ‘head of unit or equivalent’, that is to say, a managerial position within the meaning of Decision 2012/01 concerning middle management at the FRA. However, as far as the FRA is concerned, since his reassignment in 2011 the applicant has no longer occupied such a post. Contrary to what he maintains, he was duly informed and was fully aware of the fact that he had been reassigned to a post other than a managerial position. Accordingly, since that reassignment, the applicant has held a post in the ‘category of Administrators (AD 5-12) in the classification of Article 30 [of] Annex XIII [to] the [new] Staff Regulations’.
21      The applicant claims that the action is admissible, emphasising that it seeks the annulment not of the reassignment decision but of the contested decision and of the decision rejecting the complaint by which he first became aware that he was classified in the type of post ‘administrator’ within the meaning of the new Staff Regulations. In that regard, FRA was wrong to claim that he was classified in such a type of post as a result of the reassignment decision. The classification by the AECE pursuant to Article 30(2) of Annex XIII to the new Staff Regulations had to have been carried out before 1 January 2014. Thus, from a temporal point of view, it was impossible for the reassignment decision, taken in 2011, to be regarded as a decision to classify the applicant in the type of post ‘administrator’ under that provision of the new Staff Regulations. The applicant points out that, in reality, the AECE failed to notify him of the classification decision which that authority was supposed to take, with effect from 1 January 2014, in accordance with Article 30(2) of Annex XIII to the new Staff Regulations.
22      At the outset, it should be noted that, according to settled case-law, the institutions have a wide discretion in the organisation of their departments according to the tasks conferred on them and in the assignment, in view of those tasks, of staff who are made available to them, whether they are officials or members of the temporary staff, on condition, however, first, that that assignment is carried out in the interests of the service and, second, that the principle of assignment to an equivalent post is respected (see judgments of 7 February 2007, Clotuche v Commission, T‑339/03, EU:T:2007:36, paragraph 47, and of 7 June 2018, OW v EASA, T‑597/16, not published, EU:T:2007:338, paragraph 41 and the case-law cited).
23      In that regard, in the event of a change in the duties assigned to an official or other staff member, the rule that the post should correspond to the grade, set out in particular in Article 7 of the Staff Regulations, calls for a comparison between the functions and the grade of the official or staff member following his reassignment, not a comparison between his present and previous duties. Accordingly, the rule that the post should correspond to the grade does not preclude a decision from entailing the assignment of new duties which, although they are different from those previously carried out and are perceived by the person concerned as bringing about a reduction of his responsibilities, are nonetheless consistent with a post corresponding to his grade. Thus, an effective diminution in the responsibilities of an official or other member of staff infringes the rule that the post to which an official or other member of staff is assigned should correspond to his grade only if, taken together, his new duties clearly fall short of those corresponding to his grade and post, taking account of their character, importance and scope. Finally, while the Staff Regulations aim to guarantee officials and other members of staff the grade obtained and also a post corresponding to that grade, they do not grant them any right to a specific post, but, on the contrary, leave to the appointing authority or the AECE the power to assign officials and other members of staff, in the interest of the service, to the various new types of posts corresponding to their respective grades. Furthermore, while it cannot be denied that the administration has every interest in assigning its officials and other members of staff to posts which accord with their particular aptitudes and their personal preferences, the interested parties cannot be recognised as having a right to perform or to retain specific duties or to refuse any other duties relating to their type of post (judgment of 7 June 2018, OW v EASA, T‑597/16, not published, EU:T:2018:338, paragraph 69; see also judgment of 19 June 2014, BN v Parliament, F‑157/12, EU:F:2014:164, paragraphs 55 to 57 and the case-law cited).
24      In the present case, it is common ground that, following his reassignment, the applicant no longer exercised middle management tasks, as provided for by Decision 2012/01, which, moreover, is a condition for the grant of the allowance referred to in the second paragraph of Article 44 of the new Staff Regulations, applicable by analogy to temporary staff since 1 January 2014 (judgment of 12 May 2016, FS v EESC, F‑50/15, EU:F:2016:119, paragraph 85) and of which the applicant has not claimed to be a beneficiary.
25      Furthermore, it is common ground that the applicant signed the amendment relating to his reassignment and did not lodge a complaint pursuant to Article 90(2) of the new Staff Regulations, nor bring an action under Article 270 TFEU, against the reassignment decision in order to challenge the fact that, in the duties of ‘Policy Advisor’ which were entrusted to him as from 1 July 2011 onwards, he no longer exercised, contrary to what was the case when he occupied the post of Head of Unit ‘[confidential]’ or that of ‘[confidential]’, middle management tasks, such as human resources management, or budgetary or financial responsibilities.
26      In those circumstances, the reassignment decision is final and its lawfulness, including the loss of middle management tasks, cannot be called into question, either directly or indirectly, in the present action.
27      Having clarified that point, it must be held that, by the reassignment decision, the AECE reassigned the applicant to a post not involving middle management duties, in this case an ‘administrator’ post within the meaning of the 2004 Staff Regulations, which generic type of post allowed, at the time, a continuation to grade AD 14 irrespective of the duties actually performed by the ‘administrator’. However, it must be stated that the adoption of that decision in 2011 did not exempt the AECE, contrary to what is claimed by the FRA, from its obligation, under Article 30(2) of Annex XIII to the new Staff Regulations, from classifying the applicant, with effect from 1 January 2014, in one of the new types of post provided for by the new Staff Regulations.
28      Even if it is common ground that, since his reassignment, the applicant no longer exercises managerial functions, such as those specific to a post as head of unit, the fact remains that, on 31 December 2013, he occupied, under the 2004 Staff Regulations, a post in the category of administrator in grade AD 11. In those circumstances, he could be classified by the AECE either, pursuant to Article 30(2)(e) of Annex XIII to the new Staff Regulations, in a post of ‘administrator’ within the meaning of the new Staff Regulations or, pursuant to Article 30(2)(c) of that annex, in a post of ‘head of unit or equivalent’, provided that, on 31 December 2013, he was performing the duties of ‘head of unit or equivalent’ which it was for the AECE to assess. By contrast, contrary to the applicant’s submission, he could in no way be classified, with effect from 1 January 2014, in the type of post ‘adviser or equivalent’ since he had not reached grade AD 13 or AD 14 by 31 December 2013 (see, to that effect, judgment of 28 April 2017, HN v Commission, T‑588/16, not published, EU:T:2017:292, paragraph 41).
29      In that regard, the FRA has failed to demonstrate, first, that its AECE adopted, in the applicant’s case, a classification decision under Article 30(2) of Annex XIII to the new Staff Regulations and, second, that it notified the applicant of such a decision. On the contrary, it admitted, in its observations in the statement of defence, in response to the applicant’s request for a measure of organisation of procedure, that it had not formally adopted such a classification decision, thus rendering the request made by the applicant devoid of purpose.
30      Consequently, since the contested decision is the first decision revealing, as a result of his exclusion from the list of temporary agents eligible for reclassification to a higher grade, that the applicant was classified in the type of post ‘administrator’ under Article 30(2) of Annex XIII to the new Staff Regulations, the applicant may, in the present action, challenge that classification decision (see, conversely, as regards a case in which the administration had adopted a classification decision and in which the list of officials eligible for promotion subsequently drawn up was merely an implementing decision confirming the classification decision, judgment of 28 April 2017, HN v Commission, T‑588/16, not published, EU:T:2017:292, paragraphs 42 and 43).
31      In the light of the foregoing, notwithstanding the inadmissibility of the applicant’s arguments seeking to challenge the legality of the reassignment decision, the present action, in so far as it seeks the annulment of the contested decision and of the decision rejecting the complaint on the ground that the applicant was unlawfully removed from the list of members of the temporary staff proposed for reclassification, must be declared admissible.
Subject matter of the action
32      In accordance with the principle of economy of procedure, the judicature may decide that it is not appropriate to rule specifically on the claims directed against the decision rejecting the complaint where it finds that those claims have no independent content and are, in reality, the same as those directed against the decision against which the complaint has been made (judgment of 24 April 2017, HF v Parliament, T‑584/16, EU:T:2017:282, paragraph 72; see also, to that effect, judgment of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraphs 8 and 9).
33      However, where the scope of the decision to reject the complaint differs from that of the measure against which that complaint was made — inter alia where it changes the original decision or where it contains a re-examination of the applicant’s situation in the light of new elements of law or of fact which, had they arisen or become known by the competent authority before the adoption of the original decision, would have been taken into consideration (see, to that effect, judgment of 21 September 2011, Adjemian and Others v Commission, T‑325/09 P, EU:T:2011:506, paragraph 32 and the case-law cited) — the Court may be required to rule on the claim formally directed against the decision rejecting the complaint (judgment of 17 September 2014, CQ v Parliament, F‑12/13, EU:F:2014:214, paragraph 70).
34      In the present case, although, in the contested decision, the AECE did not consider the applicant to be eligible for reclassification in the higher grade, it nevertheless, in the decision rejecting the complaint, justified its refusal to take him into account in the 2017 reclassification exercise on the ground that the applicant had been reassigned in 2011 to a post as ‘Principal Administrator’ within the meaning of the 2004 Staff Regulations and that, in the light of the wording of Article 30(1) of Annex XIII to the new Staff Regulations, it was clear that the applicant, a member of the temporary staff whose grade was between grades AD 5 and AD 12, was classified as being an ‘administrator’ within the meaning of the new Staff Regulations and that it was no longer possible for him to have access to a post of ‘adviser or equivalent’ by reclassification.
35      In those circumstances, it is necessary to rule on the claim for annulment both of the contested decision and of the decision rejecting the complaint.
The claim for annulment
36      In support of his claim for annulment of the contested decision and the decision rejecting the complaint, the applicant puts forward three pleas in law alleging, respectively:
–        first, infringement of Article 54 of the new CEOS, Article 30(3) and (4) of Annex XIII to the new Staff Regulations, and Article 3 of the GIP for Article 54;
–        second, infringement of the right to good administration and of the duty of care;
–        third, infringement of the principles of legal certainty and the protection of legitimate expectations.
The first plea, alleging infringement of Article 54 of the new CEOS, Article 30(3) and (4) of Annex XIII to the new Staff Regulations, and Article 3 of the GIP for Article 54
37      In support of the first plea, the applicant submits that the AECE did not, in his case, correctly apply Article 30(3) and (4) of Annex XIII to the new Staff Regulations and that, consequently, it infringed that provision, Article 54 of the new CEOS and Article 3 of the GIP for Article 54.
38      Even though, on 31 December 2013, the applicant no longer held a post of head of unit, in this case that of Head of Department of [confidential], which was abolished in 2011, he considers that the post of ‘policy adviser’ at grade AD 11 which he held on 31 December 2013 could ‘a priori’ correspond to the type of post ‘head of unit or equivalent (AD 9-AD 14)’ as provided for in Article 30 of Annex XIII to the new Staff Regulations. Consequently, the AECE was wrong to assign the applicant, with effect from 1 January 2014, to the type of post ‘administrator’ within the meaning of the new Staff Regulations.
39      In any event, the AECE should have considered that the applicant, in his duties as ‘Policy Advisor’, exercised special responsibilities within the meaning of Article 30(3) of Annex XIII to the new Staff Regulations, justifying his being classified as a ‘head of unit or equivalent’. The applicant was appointed as a ‘policy advisor’ at grade AD 11, although such a job title did not, in his view, correspond to any of the types of post of ‘administrator’ envisaged by the 2004 Staff Regulations, since, contrary to what the AECE held in the decision rejecting the complaint, the 2004 Staff Regulations do not provide for the function of ‘principal administrator’. Since, first, on 31 December 2013, the applicant was entrusted with tasks which were not those normally assigned to the post of administrator and thus exercised ‘special responsibilities’, very similar to those of an ‘adviser or equivalent’ within the meaning of the new Staff Regulations and of ‘adviser’ within the meaning of Decision 2018/04 of the executive board of the FRA of 15 May 2018 on the adoption of implementing rules concerning the function of adviser, and that, second, he was not classified, under the 2004 Staff Regulations, in an alleged post as ‘principal administrator’, he should have been classified as ‘head of unit or equivalent’ under Article 30 of Annex XIII to the new Staff Regulations.
40      By adopting the decision to classify him in the post of ‘administrator’, the AECE ultimately downgraded the applicant in his career. Furthermore, the AECE failed to lay down provisions to give effect to Article 30(3) of Annex XIII to the new Staff Regulations.
41      The FRA contends that the first plea should be rejected as unfounded, observing that, in any event, it is still possible for the applicant to gain access to grade AD 13 by participating in selection procedures to fill vacant posts as ‘advisers or equivalent’ or ‘heads of unit or equivalent’. It further claims that the applicant’s arguments that he exercised special responsibilities are inadmissible on the ground of lack of clarity with regard to the requirements of Article 76(d) of the Rules of Procedure. In any event, the FRA considers that the tasks performed by the applicant in his duties as ‘policy adviser’ did not involve the ‘permanent and continuous management of an administrative unit’ within the meaning of Article 2 of Decision 2012/01.
42      In that regard, it should be borne in mind, as regards the provisions of the reform, at issue in the present case and which came into effect on 1 January 2014, that the EU legislature had set itself the legitimate objective of ensuring that promotion to a higher grade should be made conditional on personal dedication, improvement of skills and competences, and the performance of duties the importance of which justifies the official’s appointment to that higher grade. Accordingly, the EU legislature intended to remedy the unsatisfactory situation observed in practice within the EU civil service, namely that a clear link could not necessarily be established between the responsibilities and the grade of officials and other members of staff, and, ultimately, it wished to put an end to the possibility, opened up by the 2004 Staff Regulations, that officials or members of staff could be inexorably promoted or reclassified to the highest grades without any correlation being established between the responsibilities they had been given and the grade occupied, which could have resulted in officials or members of staff in the administrators’ function group having reached grades AD 13 or AD 14 without necessarily exercising high-level or increased responsibilities (see, to that effect, judgment of 14 December 2018, FZ and Others v Commission, T‑526/16, EU:T:2018:963, paragraphs 73 to 75).
43      For the purposes of implementing the new Staff Regulations, it follows both from point 1 of Section A of Annex I to the new Staff Regulations and from Article 30 of Annex XIII to the new Staff Regulations, applicable by analogy to temporary staff by virtue of Article 1 of the Annex to the new CEOS, that temporary staff in grade AD 11 in service on 31 December 2013, such as the applicant, were to be classified in the various new types of post. Accordingly, from the entry into force of the new Staff Regulations, all temporary staff in grade AD 11 in service on 31 December 2013 had to be classified, by decision of the AECE, in one of the two types of post provided for by way of exception in Article 30(2) of Annex XIII to the new Staff Regulations for administrators occupying a grade AD 11 post on that date, namely, respectively, ‘administrator’ or ‘head of unit or equivalent’ (see, to that effect, judgments of 28 April 2017, HN v Commission, T‑588/16, not published, EU:T:2017:292, paragraph 40; of 16 July 2015, EJ and Others v Commission, F‑112/14, EU:F:2015:90, paragraph 56, and order of 16 July 2015, FG v Commission, F‑20/15, EU:F:2015:93, paragraph 51), it being noted that, under the classification which the AECE was required to make with effect from 1 January 2014 pursuant to the latter provision, the type of post ‘adviser or equivalent’ was open only to officials or members of staff in grade AD 13 or AD 14, a grade which the applicant did not occupy on 31 December 2013 (see, to that effect, judgment of 28 April 2017, HN v Commission, T‑588/16, not published, EU:T:2017:292, paragraph 41).
44      In the present case, the applicant challenges his classification in the type of post ‘administrator’, which was disclosed to him in the context of the decision rejecting the complaint, arguing that he exercised responsibilities similar to an ‘adviser or equivalent’ within the meaning of the new Staff Regulations, which justified the post, which he held on 31 December 2013 and which he has held ever since, being regarded as equivalent to that of head of unit.
45      In that regard, although confused, it is apparent from the applicant’s arguments, which should not be rejected as manifestly inadmissible for lack of clarity, that he considers that the AECE of the FRA could have classified him in the type of post ‘head of unit or equivalent’ both under Article 30(2) of Annex XIII to the new Staff Regulations and under Article 30(3) of that annex. It is therefore appropriate to examine in turn those two parts of the first plea.
–       The applicant’s classification in the type of post ‘head of unit or equivalent’ under Article 30(2) of Annex XIII to the new Staff Regulations
46      As regards the applicant’s classification in the type of post ‘head of unit or equivalent’ under Article 30(2) of Annex XIII to the new Staff Regulations, it must be noted that, as is apparent in particular from the description of his post, the post of ‘Adviser — [confidential]’ occupied by the applicant since 2011, although it involves important tasks of providing high-level advice on matters falling within the FRA’s remit, does not involve, unlike the post of head of unit which he held prior to the reassignment decision, middle management tasks specific to the functions of head of unit nor the running of an administrative unit.
47      In that regard, the applicant’s allegation, which is, moreover, unproven, that he is nevertheless required to complete career development reports, albeit to an unspecified and unsubstantiated extent, and the fact that he benefits from the assistance of a member of staff, are not such as to invalidate the finding that, per se, the duties of policy adviser which he performed on 31 December 2013 and that he continues to perform are not equivalent, from the point of view of management duties, to head of unit duties.
48      The applicant objects, however, that his duties as policy adviser are closer to those of an ‘adviser’ within the meaning of the Staff Regulations than to those of a basic administrator, which is, moreover confirmed by the word ‘adviser’ in the title of his post.
49      In that regard, it must be noted, first, that, both before 31 December 2013 under the 2004 Staff Regulations and after that date under the new Staff Regulations, the type of post ‘Administrator working for example as Adviser’ and ‘adviser or equivalent’ were reserved exclusively for administrators in grades AD 13 or AD 14. Thus, in any event, since the applicant had not reached grade AD 13 on the date of entry into force of the new Staff Regulations, he cannot reasonably claim that, on 31 December 2013, he held, despite being classified in grade AD 11, an ‘adviser’ post within the meaning of the 2004 Staff Regulations nor that he could have been classified, with effect from 1 January 2014 and pursuant to Article 30(2) of Annex XIII to the new Staff Regulations, in the type of post ‘adviser or equivalent’ when the latter was not accessible to administrators at grade AD 11.
50      Secondly, in so far as, by his arguments concerning the equivalence of the grade and duties, the applicant seeks to challenge his classification in grade AD 11 following his reassignment, that argument must be rejected as ineffective in that the applicant did not challenge the reassignment decision within the time limits laid down in the Staff Regulations and he cannot, several years after that reassignment, claim that the duties thus performed as ‘Policy Advisor’ should have led the AECE to appoint him in 2011 at grade AD 13 or to classify him, with effect from 1 January 2014, in the type of post ‘adviser or equivalent’ for which provision is made for that grade by the new Staff Regulations.
51      Furthermore, in view of the types of post of administrators existing under the 2004 Staff Regulations, which were administrators in grades AD 5 to AD 14 and were described as ‘working for example as’, it appears that, at that time, each EU institution, body, office or agency could, internally, use with a certain degree of freedom job titles for each of the types of post, which were essentially detailed by grade and by way of illustration. In that context, the FRA’s reference to the fact that the applicant held, on 31 December 2013, a post of ‘principal administrator’ is explained by the fact that the adjective ‘principal’ was directly used in the title of the administrator types of posts as set out in Annex I to the 2004 Staff Regulations.
52      However, it cannot be concluded from the qualifier ‘principal’ that a principal administrator at grade AD 11 on 31 December 2013 should necessarily have been classified, pursuant to Article 30(2) of Annex XIII to the new Staff Regulations, as a ‘head of unit or equivalent’ or, as the FRA contends, as an ‘administrator’.
53      For the purposes of the classification, provided for in Article 30(2) of Annex XIII to the new Staff Regulations, of an administrator in grade AD 11, such as the applicant, the AECE of the FRA, in addition to the job title used to designate the post actually held by the person concerned in its establishment plan, had to examine the duties actually carried out by that person on 31 December 2013 (see, to that effect, judgment of 16 July 2015, EJ and Others v Commission, F‑112/14, EU:F:2015:90, paragraphs 41 to 43, 63 and 64).
54      First, as noted above, the duties actually performed by the applicant on 31 December 2013, under the job title ‘Policy Advisor’, did not involve middle management tasks.
55      Second, the AECE has a wide discretion in the organisation and structuring of its departments and, consequently, in the level of responsibility for the tasks which it entrusts to its officials and other staff. Accordingly, that discretion implied that the AECE of the FRA could consider that, internally, only staff employed at grades AD 9 to AD 12 and exercising middle management functions on 31 December 2013, such as heads of unit, deputy heads of unit or heads of sector, could be classified, under Article 30(2) of Annex XIII to the new Staff Regulations, in the type of post ‘heads of unit or equivalent’. In those circumstances, it was entitled to take the view, in the applicant’s case, that even if, in practice, he exercised responsibilities at a certain level, those responsibilities were not comparable to those of a ‘head of unit’ in the absence of middle management duties consisting of the running of an administrative unit, unlike, for example, deputy heads of unit or heads of sector. Consequently, it could take the view that the level of the applicant’s responsibilities on 31 December 2013 did not justify his classification, with effect from 1 January 2014, in the type of post ‘head of unit or equivalent’ and that he should therefore be classified in the type of post ‘administrator’ (see, to that effect, judgment of 28 April 2017, HN v Commission, T‑588/16, not published, EU:T:2017:292, paragraph 81 and the case-law cited).
56      It is true that the classification of the applicant in the type of post ‘administrator’ rather than that of ‘head of unit or equivalent’, as carried out by the AECE under Article 30(2) of Annex XIII to the new Staff Regulations, has its origin in the applicant’s loss of duties as head of unit which he exercised prior to the reassignment decision. However, since the applicant did not challenge that change in duties and responsibilities in good time, he cannot, in the context of the present action, which does not concern his reassignment but his classification in a type of post under the transitional arrangements in Annex XIII to the new Staff Regulations, seek to have remedied retroactively any infringement by the AECE, when adopting the reassignment decision, of the principle of equivalence of posts, as required by Article 7 of the Staff Regulations.
57      In the present case, in exercising its broad discretion concerning the classification which it was required to make under the transitional arrangements in Article 30(2) of Annex XIII to the new Staff Regulations, which differ from the obligation to observe the equivalence of posts under Article 7 of the Staff Regulations, the AECE was not required to ensure equivalence of posts between that of head of unit previously held by the applicant and that of policy adviser, but was required only to assess whether the duties actually performed by the applicant as a policy adviser on 31 December 2013, including in the event that they are shown to be below those which he performed as head of unit before the reassignment decision which he did not contest, were to be objectively regarded, solely in the light of Article 30(2), as equivalent to those of ‘head of unit’ to such an extent as to justify his classification in the new type of post ‘head of unit or equivalent’.
58      Lastly, for the purposes of that classification, the alleged proximity of the duties carried out by the applicant to those of an ‘adviser or equivalent’ within the meaning of the Staff Regulations was not necessarily relevant since the duties of ‘adviser’ and ‘head of unit’ are two separate types of posts under the Staff Regulations which, therefore, do not involve the performance of duties of the same nature or a similar classification under Article 30(2) of Annex XIII to the new Staff Regulations. In fact, the applicant’s argument, relating to that alleged proximity of the duties carried out, concerns more the question whether he exercised, within the meaning of Article 30(3) of Annex XIII to the new Staff Regulations, ‘special responsibilities’ within the meaning of that provision justifying his classification under the derogation arrangements provided for by that provision, which will be examined at a later stage.
59      It follows from the foregoing that the applicant’s arguments relating to the classification made in his case by the AECE under Article 30(2) of Annex XIII to the new Staff Regulations, including, most recently, in the decision rejecting the complaint, must be rejected as manifestly unfounded.
–       Whether it is possible for the AECE to classify the applicant in the type of post ‘head of unit or equivalent’ under Article 30(3) of Annex XIII to the new Staff Regulations
60      As regards the possibility that the AECE would have been able to classify the applicant in the type of post ‘head of unit or equivalent’ under the derogation provisions laid down in Article 30(3) of Annex XIII to the new Staff Regulations, it must be held that those derogation arrangements were optional and that, in particular, by using the term ‘may be classified’ in that provision, the EU legislature merely conferred a power on each AECE to use or not to use the derogating arrangements, so that an institution could decide not to make use of that derogation (judgment of 28 April 2017, HN v Commission, T‑588/16, not published, EU:T:2017:292, paragraph 77, and order of 16 December 2015, Bärwinkel v Council, F‑118/14, EU:F:2015:154, paragraph 50).
61      Consequently, contrary to the applicant’s claim and as the Court has already held (see, to that effect, judgment of 28 April 2017, HN v Commission, T‑588/16, not published, EU:T:2017:292, paragraph 78), the AECE of the FRA could decide, generally and, therefore, including in the case of the applicant, not to make use of Article 30(3) of Annex XIII to the new Staff Regulations, without the applicant being able to criticise it for not having laid down provisions to give effect to that optional provision.
62      In any event, as the Courts of the European Union in essence pointed out, it was incumbent on officials and other staff who wished to benefit from the derogating and transitional classification provided for under Article 30(3) of Annex XIII to the new Staff Regulations to submit a request in good time to the AECE, pursuant to the first sentence of Article 90(1) of the Staff Regulations, to benefit from those derogation arrangements (see, to that effect, judgment of 28 April 2017, HN v Commission, T‑588/16, not published, EU:T:2017:292, paragraph 73; orders of 16 July 2015, FG v Commission, F‑20/15, EU:F:2015:93, paragraphs 31 and 66, and of 16 December 2015, Bärwinkel v Council, F‑118/14, EU:F:2015:154, paragraph 56).
63      In the present case, it is common ground (i) that the applicant did not submit such a request before 31 December 2015, (ii) that, on the date of the contested decision and that of the rejection of the complaint, the derogation laid down in Article 30(3) of Annex XIII to the new Staff Regulations was no longer applicable and (iii) that, in any event, the AECE of the FRA had decided not to use the derogation provided for in that provision, so that no member of the temporary staff benefited from those provisions in that agency and (iv) that, consequently, even if the applicant had become aware earlier of his classification in the type of post ‘administrator’ under Article 30(2) of Annex XIII to the new Staff Regulations, he would not have been able to benefit from those derogation arrangements in order to obtain classification in the type of post of ‘head of unit or equivalent’.
64      In the light of the foregoing, the applicant’s argument concerning the possibility for the AECE, under Article 30(3) of Annex XIII to the new Staff Regulations, to classify him in the type of post ‘head of unit or equivalent’ by reason of the particular responsibilities allegedly entrusted to him in his post as policy adviser since 1 July 2011 must be rejected as manifestly unfounded.
65      The first plea must therefore be rejected in its entirety as being manifestly unfounded.
Second plea in law, alleging breach of the right to good administration and of the duty of care
66      In the second plea in law, the applicant claims that the AECE infringed his right to good administration and its duty of care in that, when it classified him in the type of post of ‘administrator’ within the meaning of the new Staff Regulations, it did not take sufficient account of his interests, in particular the fact that he would be downgraded in his post. In particular, first, the decision rejecting the complaint limits his career prospects, since, pursuant to Article 30 of Annex XIII to the new Staff Regulations, ‘the type of post of staff in grade AD 5 — AD 12 on 31st December 2013 as Administrator is no longer accessible through reclassification’. Secondly, the applicant never had any information from the AECE suggesting that he was not employed as an ‘adviser’ within the meaning of the Staff Regulations. Similarly, his personal file does not contain any decision to classify him in the type of post ‘administrator’ within the meaning of the new Staff Regulations.
67      The FRA contends that the second plea should be rejected as inadmissible and, in any event, unfounded.
68      In that regard, it should be borne in mind that, according to settled case-law, the duty of care of the administration in regard to its staff, which reflects the balance of reciprocal rights and obligations established by the Staff Regulations in the relationship between the public authority and civil servants, and the principle of sound administration combine to require the hierarchical authority, when it takes a decision concerning the situation of an official, to take into account not only the interests of the service, but also those of the official or staff member concerned (judgments of 7 March 2007, Sequeira Wandschneider v Commission, T‑110/04, EU:T:2007:78, paragraphs 184 and 185; of 19 September 2019, WI v Commission, T‑379/18, not published, EU:T:2019:617, paragraph 52 and; of 13 November 2014, De Loecker v EEAS, F‑78/13, EU:F:2014:246, paragraph 76).
69      In the present case, the AECE of the FRA was obliged, under Article 30(2) of Annex XIII to the new Staff Regulations, to classify, with effect from 1 January 2014, all members of the temporary staff in active service in that agency on 31 December 2013 in the various types of post provided for by that provision and, in order to do so, had to take account of their respective grades and assess the extent of their duties in the light of those types of post. In that exercise of assessment by the AECE of whether the duties performed by temporary staff in grade AD 11 on 31 December 2013, such as the applicant, were equivalent to those of a ‘head of unit’, the AECE had a certain degree of freedom, that is to say, discretion, to be exercised in the light of recitals 17 to 19 of Regulation No 1023/2013 and, in any event, in accordance with the principle of equal treatment (see, to that effect, judgment of 16 July 2015, EJ and Others v Commission, F‑112/14, EU:F:2015:90, paragraph 64).
70      However, the fact that the AECE concluded, for the purposes of the classification provided for in Article 30(2) of Annex XIII to the new Staff Regulations, including at the stage of the reply to the complaint lodged in the present case, that the applicant was not carrying out, on 31 December 2013, duties equivalent to those of a head of unit does not mean that it did not take sufficient account of the applicant’s interest in benefiting from the scale for progression between grades AD 9 and AD 14 laid down for ‘heads of unit or equivalent’ under the new Staff Regulations.
71      In any event, contrary to what the applicant claims, the limitation of the careers for the various types of post was provided for by the European Union legislature. Furthermore, the applicant cannot rely on his past assignment as head of unit to contest the fact that the duties which he carried out on 31 December 2013 and which he continues to perform were not considered, with effect from 1 January 2014, to be equivalent to those of a head of unit, when he has not performed those head of unit duties since 2011 and has not challenged the reassignment decision.
72      As regards the applicant’s assertion that the decision rejecting the complaint was equivalent, in his case, to downgrading, it must be stated that his grade was not altered either by the reassignment decision or by the contested decision or by the decision rejecting the complaint. In fact, by referring to a downgrading, the applicant seeks to complain of the loss of eligibility for promotion to grade AD 14 which any administrator had under the 2004 Staff Regulations, a loss which, in his case, he attributes to the combination of the reassignment decision and the entry into force of the new Staff Regulations.
73      In that regard, it is sufficient to point out that, where, as in the present case, officials or other members of staff were, until the date of entry into force of the new Staff Regulations, merely eligible for promotion or reclassification and that promotion or reclassification was subject to a decision on promotion to the higher grade by the appointing authority or the AECE which it had not yet adopted, in the present case on 1 January 2014, such officials or other members of staff cannot claim an acquired right to retain their eligibility for such promotion or reclassification after that date (see, to that effect, judgments of 14 December 2018, FZ and Others v Commission, T‑526/16, EU:T:2018:963, paragraph 52, and of 16 July 2015, EJ and Others v Commission, F‑112/14, EU:F:2015:90, paragraph 59 and the case-law cited). Furthermore, the applicant was, on 31 December 2013, classified only in grade AD 11 and not in grade AD 12. Consequently, he had not, on that date, an immediate right as regards eligibility for reclassification in grade AD 13, so that he cannot claim that he had lost such a right as a result of the entry into force of the reform of the Staff Regulations and the decision rejecting the complaint confirming his classification in the type of post ‘administrator’.
74      Finally, as regards the absence of relevant information provided by the AECE as to the applicant’s classification under Article 30(2) of Annex XIII to the new Staff Regulations, apart from the fact that such a complaint cannot result in the annulment of a decision classifying an official or other member of staff in a type of post such as the contested decision and the decision rejecting the complaint (see, to that effect and by analogy, judgment of 28 April 2017, HN v Commission, T‑588/16, not published, EU:T:2017:292, paragraph 86), it should be recalled that, in general, the imminent adoption of decisions classifying all officials and other staff in the new types of post was already announced in the very wording of Article 30(2) of Annex XIII to the new Staff Regulations (judgment of 14 December 2018, FZ and Others v Commission, T‑540/16, not published, EU:T:2018:965, paragraph 52, and order of 16 July 2015, FG v Commission, F‑20/15, EU:F:2015:93, paragraph 54). Furthermore, those new provisions of the Staff Regulations, in so far as they are adopted by means of regulations pursuant to Article 336 TFEU, have been the subject of mandatory publication in the Official Journal of the European Union and, as of the date of that publication, that is, in the present case with regard to Regulation No 1023/2013, on 22 October 2013, they constituted positive law on the subject of which any official or other member of staff exercising normal care is deemed to be aware (judgment of 14 December 2018, FZ and Others v Commission, T‑540/16, not published, EU:T:2018:965, paragraph 53).
75      Thus, in his capacity as policy adviser at grade AD 11 directly under the authority of the [confidential], the applicant, in the light of his experience, grade and duties, could have enquired, following the entry into force of the new Staff Regulations on 1 January 2014, as to his classification in one of the new types of post provided for in those Staff Regulations. However, he did not take that step immediately and only became interested in the matter following the publication, four years later and while he had, in the meantime, been reclassified to grade AD 12, of the list of temporary agents proposed for reclassification to the higher grade AD 13, which revealed, in his case, that he was not regarded by the AECE as occupying a post as ‘head of unit or equivalent’.
76      In those circumstances, the second plea in law should be dismissed as being manifestly unfounded.
The third plea in law, alleging infringement of the principles of legal certainty and the protection of legitimate expectations
77      In the third plea in law, the applicant criticises the AECE for infringing the principles of legal certainty and the protection of legitimate expectations in so far as it gave the job of policy adviser, which he has held since 2011, a title which did not correspond to the types of post provided for under the 2004 Staff Regulations and that now it contends that he did not perform the duties of ‘adviser’ within the meaning of the new Staff Regulations. However, his reassignment in 2011 to a post entitled ‘Policy Advisor’ gave rise to a legitimate expectation on his part as to his career prospects and reclassification in grade. In that regard, the fact that the applicant participated in selection procedures for posts of heads of unit or advisers at grade AD 13 does not mean that he was not entitled to be included on the list of members of the temporary staff proposed for the 2017 reclassification exercise.
78      The FRA contends that the third plea should be rejected as unfounded, pointing out that the applicant could not have a legitimate expectation that he would continue to have the same career development in the type of post ‘adviser or equivalent’ even though he did not hold the grade required in order to be classified, with effect from 1 January 2014, in such a type of post under Article 30 of Annex XIII to the new Staff Regulations.
79      In that regard, it should be noted at the outset that, contrary to what the applicant claims, the AECE did not give the job of policy adviser, which he holds since his reassignment in 2011, a title which did not correspond to the types of post provided for under the 2004 Staff Regulations. As has already been stated, under Annex I to the 2004 Staff Regulations, administrators could be classified in grades AD 5 to AD 14 and were described as ‘performing, for example’, certain duties. The wording of the various administrators’ posts allowed each institution, body, office or agency of the European Union, at that time, to use with a certain degree of freedom job titles for each of the types of post, which were essentially detailed by grade and by way of illustration. Accordingly, under the 2004 Staff Regulations, the AECE of the FRA could give a title to a grade AD 11 job as ‘Policy Advisor’, without this implying that the holder of that post exercised ‘adviser’ functions within the meaning of those exercised by the AD 13 or AD 14 administrators at the time.
80      Next, the reassignment of the applicant, in 2011, to a job entitled ‘Policy Advisor’ cannot have given rise to a legitimate expectation on his part as to his career prospects and reclassification in grade.
81      According to well-established case-law, the principle of the protection of legitimate expectations, which is one of the fundamental principles of EU law (see judgment of 5 May 1981, Dürbeck, 112/80, EU:C:1981:94, paragraph 48 and the case-law cited), means that any official or other staff member is entitled to rely on that principle when he finds himself in a situation from which it appears that the administration of the European Union, by providing him with precise assurances, has raised well-founded expectations in his regard. Furthermore, the assurances given must comply with the applicable rules (judgments of 18 July 2007, EAR v Karatzoglou, C‑213/06 P, EU:C:2007:453, paragraph 33, and of 17 May 2017, Piessevaux v Council, T‑519/16, not published, EU:T:2017:343, paragraph 88).
82      In the present case, the applicant has failed to prove that the AECE of the FRA gave him precise assurances, whether at the time of his reassignment in 2011, when the new Staff Regulations entered into force, at the time of his reclassification in grade AD 12 or when the reclassification procedure at issue in the present case was initiated, as to whether, despite his reassignment to a non-management administrator’s job as a policy adviser, he could continue to be eligible for a career development comparable to that of a head of unit.
83      As regards the applicant’s claim that the title of his post, namely ‘Policy Advisor’, gave rise to a legitimate expectation on his part, supported by the fact that the European Commission, in the context of a selection procedure, regarded him as an ‘adviser’ within the meaning of the Staff Regulations, it must be held that it is unfounded.
84      The applicant claims that his reassignment to the job of ‘Policy Advisor’ gave him guarantees that he could continue in that post by reclassification up to grade AD 14.
85      However, first, as stated above, the applicant did not, on 31 December 2013, occupy a post of ‘adviser’ within the meaning of the 2004 Staff Regulations and, in any event, not having at that date reached grade AD 13, could not be classified in the type of post ‘adviser or equivalent’ under Article 30(2) of Annex XIII to the new Staff Regulations. Secondly, officials and other members of staff cannot rely on the principle of the protection of legitimate expectations in order to oppose the application of a new legislative provision, especially in an area in which the EU legislature has a wide discretion. Accordingly, as a member of the temporary staff in grade AD 11 on the date on which the new Staff Regulations came into force, the applicant had no acquired right as regards eligibility for an inexorable reclassification to grade AD 13 or AD 14 while remaining in the same job of policy adviser, which was a post in the administrators’ category, but in no circumstances a post of ‘adviser’ within the meaning of the Staff Regulations (see, to that effect, judgment of 14 December 2018, FZ and Others v Commission, T‑526/16, EU:T:2018:963, paragraph 53).
86      In any event, temporary staff in grade AD 12 classified in the type of post ‘administrator’, as is currently the applicant, are not deprived of access to higher grades AD 13 and AD 14, but must only, in order to attain those grades, display the qualities required by the AECE as corresponding to the high level of responsibility expected of holders of posts as ‘head of unit or equivalent’ or ‘adviser or equivalent’. Accordingly, the applicant’s career is not blocked, since, notwithstanding the fact that it is not now possible for him to attain grade AD 13 by reclassification, it is still open to him — which, moreover, he has already undertaken to do, albeit unsuccessfully at this stage — to take part in a selection procedure with a view to filling a post covered by those types of post, thereby enabling him to reinstate his eligibility for promotion or reclassification to a higher grade (see, to that effect, judgments of 28 April 2017, HN v Commission, T‑588/16, not published, EU:T:2017:292, paragraph 86, and of 14 December 2018, FZ and Others v Commission, T‑526/16, EU:T:2018:963, paragraph 88).
87      It follows that the third plea in law must be rejected as manifestly unfounded.
88      In the light of all the foregoing considerations, the claim for annulment must be rejected as being manifestly lacking any foundation in law.
The claim for damages
89      In support of his claim for damages, the applicant submits that the action should be declared admissible and well founded, with the result that, pursuant to the present judgment, the FRA must reclassify him retroactively to the effective date of the 2017 reclassification exercise, in the type of post ‘adviser or equivalent — AD 13 — AD 14’. Such reclassification for the applicant would entail payment of the difference in salary, together with default interest calculated on the basis of the rate applied by the European Central Bank (ECB) for its main refinancing operations.
90      The FRA contends that the claim for damages should be rejected on the ground that, since the action is inadmissible and, in any event, it has no foundation in law, the applicant has no basis for claiming damages.
91      In that regard, suffice it to recall that claims for compensation of material or non-material damage must be rejected where, as in the present case, they are closely linked with the claims seeking annulment, which themselves were rejected as inadmissible or unfounded (judgments of 14 September 2006, Commission v Fernández Gómez, C‑417/05 P, EU:C:2006:582, paragraph 51, and of 24 April 2017, HF v Parliament, T‑584/16, EU:T:2017:282, paragraph 165).
92      The claim for damages must therefore also be rejected as manifestly unfounded.
93      Accordingly, the action in its entirety must be dismissed as being manifestly lacking any foundation in law.
Costs
94      Under Article 134(1) 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. However, under Article 135(2) of the Court’s Rules of Procedure, the Court may order a party, even if successful, to pay some or all of the costs, if this appears justified by the conduct of that party, including before the proceedings were brought, especially if he has made the opposite party incur costs which the Court holds to be unreasonable or vexatious.
95      In the present case, as has already been held in the proceedings relating to classification in the types of post provided for in the new Staff Regulations (see, to that effect, judgment of 14 December 2018, FZ and Others v Commission, T‑540/16, not published, EU:T:2018:965, paragraph 59; orders of 14 December 2018, GM and Others v Commission, T‑539/16, not published, EU:T:2018:991, paragraph 47, and of 16 July 2015, FG v Commission, F‑20/15, EU:F:2015:93, paragraph 70), the Court considers that the FRA could have better discharged, in the light of the right to good administration provided for in Article 41 of the Charter of Fundamental Rights and, pursuant to the second paragraph of Article 25 of the new Staff Regulations, its obligation to communicate to the applicant, in writing, the decision to classify him in a type of post which the AECE of that agency was required to adopt under Article 30(2) of Annex XIII to the new Staff Regulations, applicable by analogy to temporary staff by virtue of Article 1 of the Annex to the new CEOS.
96      Having regard, however, to his experience, duties and grade, the applicant’s lack of diligence in making prompt inquiries with the AECE of the FRA, after the entry into force of the new Staff Regulations, as to his classification in a type of post, the Court considers that the FRA should bear its own costs and be ordered to pay one quarter of the applicant’s costs, while the latter must bear three quarters of his own costs.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby orders:
1.      The action is dismissed.
2.      The European Union Agency for Fundamental Rights (FRA) shall bear its own costs and pay one quarter of the costs incurred by AF.
3.      AF shall bear three quarters of his own costs.
Luxembourg, 26 March 2020.
E. Coulon
J. Svenningsen
Registrar
President
*      Language of the case: English.
1      Confidential information omitted.