62006FJ0032_EN
Parties
Grounds
Operative part
Parties
In Case F‑32/06,
ACTION under Articles 236 EC and 152 EA,
María del Carmen de la Cruz, residing in Galdakao (Spain), and four other members of the contract staff of the European Agency for Safety and Health at Work, whose names are attached in an annex, represented by G. Vandersanden and L. Levi, lawyers,
applicants,
v
European Agency for Safety and Health at Work (OSHA), represented by E. Ortega and C. Georges and by J. G. Blanch, acting as Agents, assisted by S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers,
defendant,
THE TRIBUNAL (Second Chamber),
composed of S. Van Raepenbusch (Rapporteur), President, I. Boruta and H. Kanninen, Judges,
Registrar: S. Boni, Administrator,
having regard to the written procedure and further to the hearing on 22 March 2007,
gives the following
Judgment
Grounds
1. By application received by fax at the Registry of the Tribunal on 17 March 2006 (the original being lodged on the same day), Ms de la Cruz, Ms Estrataetxe, Ms Grados, Mr Moral and Mr Sanchez, all members of the contract staff of the European Agency for Safety and Health at Work (OSHA), seek :
– the annulment of the OSHA’s decisions classifying them in function group II, rather than in function group III, under their contracts as contract staff of 28 and 29 April 2005;
– and, consequently, the restoration of all their rights with effect from 1 May 2005 and, in particular, the payment of damages and default interest.
Legal context
2. Under Article 4 of the Conditions of Employment of Other Servants (the ‘CEOS’) in the version applicable prior to 1 May 2004, when 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 came into force (OJ 2004 L 124, p. 1):
‘For the purposes of these Conditions of Employment, “local staff” means staff engaged according to local practice for manual or service duties, assigned to a post not included in the list of posts appended to the section of the budget relating to each institution and paid from the total appropriations for the purpose under that section of the budget. By way of exception, staff engaged to perform executive duties at the Press and Information Offices of the Commission of the European Communities may also be regarded as local staff.
...’
3. Article 4 of the CEOS, in the version applicable from 1 May 2004, now provides:
‘For the purposes of these Conditions of Employment, “local staff” means staff engaged in places outside the European Union according to local practice for manual or service duties, assigned to a post not included in the list of posts appended to the section of the budget relating to each institution and paid from the total appropriations for the purpose under that section of the budget. Staff engaged in places of employment situated outside the European Union for duties other than those mentioned above which, in the interests of the service, could not be assigned to an official or servant having another capacity within the meaning of Article 1, shall also be regarded as local staff.’
4. Contract staff are a new category of staff inserted into the CEOS, specifically in Article 1, second paragraph, third indent thereof, by
Regulation No 723/2004.
5. According to recital 36 in the preamble to Regulation No 723/2004, ‘[contract] staff, whose responsibilities are of a more limited nature, will generally be required to work under the supervision of officials or temporary staff. They will be employed inter alia with a view to eventually replacing auxiliaries and Category D officials in the institutions, Commission Offices and Representations, Delegations and Agencies and also in executive agencies and other bodies created by a specific legal act’.
6. Article 3a(1) of the CEOS provides :
‘For the purposes of these Conditions of Employment, “contract staff” means staff not assigned to a post included in the list of posts appended to the section of the budget relating to the institution concerned and engaged for the performance of full-time or part-time duties:
(a) in an institution to carry out manual or administrative support service tasks,
(b) in the agencies referred to in Article 1a(2) of the Staff Regulations [of Officials of the European Communities],
(c) in other entities inside the European Union created, after consultation of the Staff Regulations Committee, by specific legal act issued by one or more institutions allowing for the use of such staff,
... ’
7. The category of contract staff is the subject-matter of Title IV (‘Contract staff’) of the CEOS, which fixes, among other things, their conditions of engagement, including the rules on classification.
8. Under Article 80(1) of the CEOS, ‘[c]ontract staff shall be subdivided into four function groups corresponding to the duties to be performed [;] [e]ach function group shall be subdivided into grades and steps’.
9. The table in Article 80(2) of the CEOS sets out the tasks covered by the different function groups. Thus, function group II, which includes grades 4 to 7, covers the tasks known as ‘[c]lerical and secretarial tasks, office management and other equivalent tasks, performed under the supervision of officials or temporary staff ’. Function group III covers grades 8 to 12 and corresponds to the tasks known as ‘executive tasks, drafting, accountancy and other equivalent technical tasks, performed under the supervision of officials or temporary staff’.
10. Article 80(3) of the CEOS states, for its part:
‘Based on this table each institution or body referred to in Article 3a shall, after consulting the Staff Regulations Committee, define the powers attaching to each type of duties.’
11. Under Article 82(2) of the CEOS :
‘Recruitment as a member of the contract staff shall require at least:
...
(b) in function groups II and III:
(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 interest of the service, professional training or professional experience of an equivalent level;
…’
12. Article 86(1) of the CEOS provides :
‘Contract staff referred to in Article 3a shall only be recruited:
…
(ii) in grades 8, 9 or 10 for function group III ;
(iii)	in grades 4 or 5 for function group II ;
…
The grading of such contract staff within each function group shall take account of the qualifications and experience of the persons concerned. To address specific needs of the institutions, labour market conditions prevailing in the Community may also be taken into account. Within their grade, such contract staff shall be recruited in the first step.’
13. The CEOS contains an annex on ‘transitional provisions’ relating to the entry into force of Regulation No 723/2004. Article 2 of that annex provides :
‘1. In accordance with the [CEOS], the authority [authorised to conclude contracts] shall offer employment of indefinite duration as a member of the contract staff to any person employed by the Communities on 1 May 2004 under a contract of indefinite duration as a local staff member in the European Union or by virtue of national legislation in one of the agencies and entities referred to in Article 3a(1)(b) and (c) of the [CEOS]. The offer of employment shall be based on an assessment of the tasks to be performed by the servant as a member of the contract staff. The contract concerned shall take effect at the latest on 1 May 2004. Article 84 of the CEOS shall not apply to such contract.
2. Should the classification of the staff member accepting the offer of a contract result in a reduction in remuneration, the institution may pay an additional amount taking into account current difference between fiscal, social security and pension legislation of the Member State of employment and the relevant provisions applicable to the contract staff member.
3. Each institution shall adopt general provisions for the implementation of paragraphs 1 and 2 in accordance with Article 110 of the Staff Regulations [of Officials of the European Communities], as necessary.
4. A staff member who does not accept the offer referred to in paragraph 1 may retain his contractual relationship with the institution.’
14. On 8 April 2005, the OSHA adopted guidelines regarding the classification of contract agents (‘the guidelines’) which, by analogy with Article 2(1)(b) and (c) of the General Implementing Provisions on the procedures governing the engagement and the use of contract staff at the Commission, of 7 April 2004 ( Administrative Notice
No 49-2004 of 1 June 2004, ‘the GIP’) set out the minimum qualifications required for access to the function groups II and III as follows:
‘ (b) 	in function group II :
– a post secondary education diploma, or
– a secondary education diploma giving access to higher education plus three years’ appropriate professional experience. In the case of function group II, the secondary education diploma giving access to higher education may be replaced by a certificate of adequate professional training of not less than three years on condition that there was no similar professional training giving access to higher education at the time it was issued, or
– successful completion of intermediary education plus two years’ relevant specialisation and at least five years of appropriate professional experience.
(c) in function group III:
– a post-secondary education diploma, or
– a secondary education diploma giving access to higher education plus three years’ appropriate professional experience.’
15. By analogy with Article 7(1)(b) and (c) of the GIP, the guidelines also govern the classification of contract agents in function groups II and III as follows:
‘(b) in function group II :
– in grade 4 if the person has professional experience of up to seven years;
– in grade 5 if the person has professional experience of more than seven years;
(c) in function group III:
– in grade 8 if the person has professional experience of up to seven years;
– in grade 9 if the person has professional experience of more than seven years;
– in grade 10 if the person has professional experience of more than fifteen years.’
16. The OSHA has set out in an annex to the guidelines a description of the functions and responsibilities involved in the tasks covered by function group II. Thus, within that group, the functions and responsibilities exercised by secretaries, administrative agents and agents in the ‘information technology’ (‘IT’) field
are described as follows:
–  As regards the post of secretary:
‘Overall purpose:
Under the supervision of an official or temporary agent, ensuring administrative and secretarial support to the unit/head of unit/director.
Functions and duties:
* Administrative support
– organisation of meetings, conferences (planning, booking, timing, etc.), trips (hotel and plane booking, mission request forms, etc.) and liaison with internal and external contacts,
– assisting in the implementation, upgrading and reporting of [OSHA] databases,
– assisting with information requests and [OSHA] publications, including follow up of its schedule and translation/language checking,
– management and follow up of stationery supplies, publications, etc.,
– management and follow up of staff leave and medical visits,
– administrative support to selection procedures.
* Secretarial support
– management of the head of unit/director agenda,
– correspondence and mailing,
– archiving and mail registration (physically and electronically),
– designing documents required (letters, forms, notes, reports),
– distribution and follow up of mail within the unit,
– assistance to all new staff members.
* Support to the general functioning of the [OSHA]
* Any other related administrative tasks as required.’
– As regards the post of administrative agent :
‘Overall purpose :
Under the supervision of an official or temporary agent, ensuring management of administrative/financial issues.
Functions and duties:
* Administrative and financial support:
– liquidation of missions and follow up of mission budget,
– preparation, calculation and processing of financial operations, including commitments and payments,
– management of imprest account.
* Procurement and contracts
– launching and management of calls for tenders,
– follow up and management of the contracts and relations with suppliers,
– management of the inventory.
* Documentation and archiving systems
– management and follow up of access to documents,
– research/distributions of documents and publications,
– ensuring sound management of the registration system,
– management and update of classification plans,
– management and follow up of the archives.
* Web
– management and maintenance of the website,
– update of content and development of features,
– provision of technical support and advice,
– assist in related projects.
* Support to the general functioning of the [OSHA]
* Any other related administrative task as required.’
– As regards the post of IT support agent :
‘Overall purpose:
Under the supervision of an official or temporary agent, ensuring management of information systems of the [OSHA].
Functions and duties:
* Information systems
– technical support to the workstations/servers of the [OSHA’s] network,
– technical management of the databases of the [OSHA],
– implementation, maintenance and support to the IT systems,
– assistance to the users and management of accesses.
* Other tasks
– budget management,
– launching and management of calls for tenders,
– relations with suppliers.
* Support to the general functioning of the [OSHA]
* Any other related tasks as required.’
17. Lastly, Article 5(1)(a) and (b) of the OSHA Regulation of 9 November 1998 laying down the composition and operation of the Staff Committee of the OSHA (DEC.ADM/98/2, ‘the regulation’) grants the Staff Committee the right to be consulted before a decision is taken or existing provisions amended with respect to matters concerning:
‘(a) 	the guidelines governing personnel policy, in particular with regard to the following: the conditions of employment of staff of the [OSHA], working time, gradings, staff reports, training, promotion, disciplinary measures, leave and special leave;
(b) working conditions and living conditions, in particular health and safety provisions, premises, equipment and social activities.’
Factual background to the dispute
18. Before 1 May 2005, the applicants worked for the OSHA as local staff, under Article 4 of the CEOS, as applicable prior to 1 May 2004.
19. The qualifications and professional careers of the applicants, prior to their recruitment as local staff within the OSHA can be summarised as follows :
– Ms de la Cruz has an Honours Degree in Economics and has taken several postgraduate courses; she has been an assistant professor in ‘Regional analysis’ at the Faculty of Economics of the Basque Country University (UPV-EHU) and in the audit department of an accounting company;
– Ms Estrataetxe has an Honours Degree in History from the University of Deusto (Spain) and a Masters in Documentation and Archival Sciences, she has followed other specific training courses on information and documentation management. Her professional experience began in 1996 as an assistant documentalist in an engineering undertaking, and then continued in different private and public companies and at the Guggenheim Bilbao Museum (Spain);
– Ms Grados has a Diploma and an Honours Degree in Business Administration and a Masters in Human Resources Management; she has taken several specialist courses in areas such as finance and administration; she took part in a work experience training programme in an insurance company for several months, worked in the export department of a company for almost one year and a half and also worked for six years in a public institution in the Basque Country;
– Mr Moral has an Honours Degree in Fine Arts and a Masters in Multimedia Products, and he has taken several technical courses in computer science; he has acquired five years of experience as a webmaster and has given lessons in computer sciences on behalf of various undertakings;
– Mr. Sanchez holds an Honours Degree in Computer Science and the ‘Cisco Certified Networking Associates (CCNA)’ certificate, issued by Cisco, as well as certificates for other postgraduate IT courses; he worked at Deusto University as a System Administrator and later as a lecturer; he has completed two years of a PhD and is currently writing up his doctoral thesis.
20. The applicants signed, on 28 and 29 April 2005, contracts as members of the contract staff which took effect on 1 May 2005.
21. Under Article 2 of the contract staff contracts signed by the applicants:
‘The staff member shall be employed as agent performing clerical and secretarial tasks, office management and other equivalent tasks, as foreseen in the table of Article 80 of the CEOS.’
22. According to Article 3 of their contracts, the applicants were classified in function group II, the grade and the step varying for each of the applicants.
23. On 30 June 2005, each of the applicants lodged a complaint against his or her classification. Those complaints were rejected by decisions of the OSHA of 7 December 2005.
Forms of order sought
24. The applicants claim that the Tribunal should :
– annul their classification in function group II contained in the contract of employment of 28 and 29 April 2005, and thereby restore all the applicant’s rights deriving from lawful and regular employment in function group III, with effect from 1 May 2005;
– order the OSHA to pay:
(i) damages in the form of lawful and regular pay which is to include all derived financial rights, including pension rights;
(ii) 	default interest on the amounts claimed, as from 1 May 2005 until their full payment;
(iii) 	damages in respect of the harm caused to their career;
(iv) 	a euro to each applicant by way of compensation for the non-material damage they claim to have suffered;
– order the OSHA to pay the costs.
25. The OSHA contends that, after declaring all the pleas to be inadmissible except the plea alleging infringement of Article 80(2) of the CEOS, the Tribunal should:
– dismiss the application;
– order the applicants to pay the costs.
Law
26. The applicants raise four pleas alleging, respectively :
– infringement of Article 80 of the CEOS, of Article 2 of the annex to the CEOS, of the principle of good administration and of the GIP, the illegality of the guidelines and a manifest error of assessment;
– infringement of the principles of equal treatment and non‑discrimination as well as of the principle of equivalence of positions and grades;
– infringement of Article 5 of the regulation;
– infringement of the duty to have regard for the welfare of officials.
Admissibility of the action
Arguments of the parties
27. The OSHA questions the admissibility of the action.
28. First, since the applicants had the choice between retaining their contractual relationship with the OSHA or signing a new contract, the OSHA submits that they do not have legal standing to bring proceedings against the new contractual arrangements which they have accepted.
29. Secondly, it claims that all the pleas apart from that alleging infringement of Article 80 of the CEOS are inadmissible on the ground that they were not raised in the complaints of 30 June 2005.
30. The applicant’s contend in reply that the fact that they signed their contracts as contract staff cannot have the effect of denying them the right to dispute their classification (see, to that effect, Case T‑587/93 Urretavizcaya
v Commission
[1996] ECR-SC  I‑A‑349 and II‑1027). They have, furthermore, already clearly disputed their classification in function group II in a memorandum of 13 April 2005 addressed to the OSHA, in so far as that classification does not reflect, in their view, the tasks effectively carried out. They have therefore requested classification in function group III.
31. As regards the pleas raised in the application which are alleged to be new pleas, the applicants point out that their complaints, together with all the attached documents and information, seek explicitly to have their classification in function group II re-examined and are clearly based on the infringement of Article 80 of the CEOS and of Article 2 of the annex thereto, and on a manifest error of assessment. The pleas invoking the principle of sound administration and the duty to have regard to the welfare of officials necessarily underlie the foregoing complaints.
32. Furthermore, the applicants sought the assistance of the Staff Committee at a very early stage and were legitimately entitled to wait until the process of consultation of that Committee had run its due course.
33. In so far as the OSHA has thus been clearly informed, since the complaints stage, of the grounds on which the applicants are disputing their classification – as those pleas were restructured and clarified in the originating application – the applicants submit that all of the pleas should be held to be admissible.
Findings of the Court
34. The OSHA disputes, first, whether the applicants have legal standing to bring proceedings since they have consented to the conditions of their contracts as members of the contract staff.
35. In that regard, it is common ground that the applicants are seeking annulment of the classification decisions, included in their respective contested contracts. Such decisions are, in principle, capable of being acts adversely affecting an official within the meaning of Article 90(2) of the Staff Regulations of Officials of the European Communities.
36. It follows from case-law that an act does not cease to be an act adversely affecting an official if that official consents to it. The opposite view would result in the person being deprived of any opportunity of challenging the act, even if it were unlawful, which would be contrary to the system of remedies laid down by the EC Treaty and the Staff Regulations ( Ortega Urretavizcaya
v Commission, paragraph 28).
37. It follows that the action cannot be declared inadmissible on the ground the applicants lack legal standing to bring proceedings.
38. Secondly, the OSHA considers that all the pleas, with the exception of that alleging infringement of Article 80 of the CEOS, are inadmissible because of a lack of consistency between the complaints raised prior to the litigation and the subsequent application initiating proceedings.
39. That rule of consistency requires that a complaint brought before the Community courts, if it is not to be inadmissible, must have already been raised in the pre‑litigation procedure enabling the appointing authority to know in sufficient detail the criticisms made by the person concerned of the contested decision (Case T‑175/03 Schmitt
v AER
[2004] ECR‑SC I‑A‑211 and II‑939, paragraph 42, and the case-law cited).
40. That rule is justified by the very aim of the pre-litigation procedure, the object of which is to permit an amicable settlement of the differences which have arisen between officials and the administration (Case 133/88 Del Amo Martinez
v Parliament
[1989] ECR 689, paragraph 9; Case T‑57/89 Alexandrakis
v Commission
[1990] ECR II‑143, paragraph 8). The appointing authority must therefore have been clearly informed of the complaints raised by the claimant in order to be in a position to offer him an amicable settlement.
41. It follows that, in actions brought by officials, claims for relief before the Community judicature may contain only heads of claim based on the same matters as those raised in the complaint, although those heads of claim may be developed before the Community judicature by the presentation of pleas in law and arguments which, whilst not necessarily appearing in the complaint, are closely linked to it
(Case 242/85 Geist
v Commission
[1987] ECR  2181, paragraph 9; Case 224/87 Koutchoumoff
v Commission
[1989] ECR 99, paragraph 10, and Del Amo Martinez
v Parliament, paragraph 10).
42. It should also be pointed out that that last requirement must not result in binding strictly and absolutely the judicial stage of the proceedings, provided that the claims submitted at the latter stage change neither the cause nor the object of the complaint (Case 58/75 Sergy
v Commission
[1976] ECR 1139, paragraph 33, and Case C‑316/97 P Parliament
v Gaspari
[1998] ECR I‑7597, paragraph 17).
43. In the present case, the complaints, which challenge the classification of the applicants in function group II, refer expressly to Article 80 of the CEOS and Article 2 of the annex to the CEOS. Although those complaints do not contain express allegations of infringement of the principles of sound administration, equal treatment and the equivalence of posts and grades, of the GIP, of the duty to have regard for the welfare of officials and a manifest error of assessment, it must however be acknowledged that such allegations are closely linked to the heads of claim set out, albeit in very general terms, in the applicants’ respective complaints.
44. As regards the plea of illegality against the guidelines, even though that was not explicitly raised in the applicants’ complaints, the appointing authority’s decisions of rejection of 7 December 2005 refer to those guidelines as a basis, with Article 80(2) of the CEOS, for the contested classification decisions. The plea of illegality must therefore be held to be a reaction to the view adopted by the administration in its responses to the complaints (see, to that effect, Case T‑214/99 Carrasco Benítez
v Commission
[2000] ECR-SC I‑A‑257 and II‑1169, paragraphs 37 and 38 ; Case T‑197/99 Gooch
v Commission
[2000] ECR-SC I‑A‑271 and II‑1247, paragraphs 35 to 40, and the order in Case T‑293/02 Vranckx
v Commission
[2003] ECR I‑A‑187 and II‑947, paragraph 50).
45. On the other hand, as regards the plea relied on by the applicants that the OSHA infringed Article 5 of the regulation by adopting, on 8 April 2005, the guidelines without really having taken into consideration the Staff Committee’s opinion, which nevertheless reached it the day before, and without that Committee having received all the information necessary in order to adopt a position with full knowledge of the facts, it must be held that there are no allegations in the complaints with which that plea might be linked.
46. Accordingly, only the third plea must be dismissed as inadmissible.
On the first plea, alleging the infringement of Article 80(2) of the CEOS, of Article 2 of the annex to the CEOS, of the principle of sound administration and of the GIP, the illegality of the guidelines and a manifest error of assessment
Arguments of the parties
47. The applicants point out that Article 80(2) of the CEOS sets out the correspondence between the types of duties allocated to the members of the contract staff and the function groups into which those staff are divided. Pursuant to Article 2 of the annex to the CEOS, the change from local staff status to contract staff status is to be based on an assessment of the tasks to be performed by the staff member concerned. In this connection, case-law provides that review by the courts is limited to the issue of whether the administration has exercised its discretion within reasonable limits and has not used its discretion in a way which is manifestly wrong.
48. Likewise, the principle of sound administration, which is affirmed by the GIP, requires that detailed job descriptions are established for the purpose of grading contract staff.
49. The applicants add that the transitional regime of Article 2 of the annex to the CEOS does not provide for equivalence between the old classification of local staff and the new classification laid down by Article 80 of the CEOS. While local staff were employed for the purpose of manual or service duties, in accordance with Article 4 of the version of the CEOS applicable prior to 1 May 2004 – with the exception of those who were recruited for the purpose of executive tasks in the Press and Information Offices – contract staff may carry out a range of tasks at a higher level of responsibility. Moreover, the regime for local staff was very different from the new contract staff regime, the status of the local staff being governed by local law whereas the status of the contract staff is fully governed by the CEOS.
50. In the present case, the level of duties carried out by the applicants, which require a high degree of specialisation and qualification, is far above that of the duties pertaining to function group II, which are ‘clerical and secretarial ... and other equivalent tasks’, according to the wording of Article 80 of the CEOS.
51. In fact, the appellants are clearly performing some of their duties with a high level of responsibility and independence. The duties concerned include that of administrative assistant (coordination, drafting); information and communication assistant, technical and graphic design, documentalist/archivist, as well as accounting, budget management, contract management, planning and supervision, project analysis and management, systems development and administration duties. The applicants are also dealing with matters relating to liability, security, authorisation and access to sensitive information, which exceed the level of the duties carried out by almost all other OSHA staff. All those tasks are covered by function group III.
52. In support of their argument, the applicants go on to give a detailed description of their duties within the OSHA, about which their contracts do not provide any specific information.
53. According to the applicants, their classification within function group II infringes Article 80 of the CEOS and is vitiated by a manifest error of assessment. In addition, there has been no proper assessment of the duties which the interested parties were supposed to perform as members of the contract staff, contrary to the requirements of Article 2 of the annex to the CEOS. No detailed description of the duties allocated to the applicants was drawn up, in the guidelines in particular, whereas, under the sixth recital to the GIP, it is for the agencies to adopt implementing rules for contract staff based on the model of the GIP. Both the principle of good administration and the GIP have thus been infringed.
54. Should their classification in function group II be held to be based on the guidelines, the applicants submit that those guidelines are unlawful.
55. The OSHA contends in reply that, since it was not required to adopt general provisions implementing Article 2 of the annex to the CEOS, because that article was sufficiently clear, the pleas invoking an alleged infringement of the principle of sound administration and the infringement of the GIP are unfounded.
56. Nevertheless, in order to ensure transparency and equal treatment the OSHA considered it necessary to adopt guidelines regarding the classification and minimum qualifications required for contract staff within the meaning of Article 3a of the CEOS. Such an approach is consistent with the principle of good administration.
57. As regard the GIP, the OSHA states that they are not applicable to the OSHA and that, as they cover the selection and recruitment of contract staff, they do not concern Article 2 of the annex to the CEOS, but Article 82 of the CEOS. The reference to those implementing provisions is thus irrelevant.
58. As regards the ground of complaint alleging a manifest error of assessment, the OSHA considers it to be unfounded. It specifically assessed the tasks to be performed by the staff concerned after due consideration of the tasks they had performed previously and its own future needs, in the light the job profiles attached as an annex to the guidelines.
59. The applicants have failed to prove, taking into account the tasks and particular features of the OSHA and its autonomy as regards the establishment of its organisation plan, that they were assigned to posts involving the level of responsibility and duties of a job in function group III rather than in function group II. In support of its arguments, the OSHA provides in its turn a description of the duties carried out by each of applicants from which, it submits, it is apparent that, under the wide discretion available to it in the assessment of its needs, when classifying the applicants the OSHA correctly took into account the level of responsibilities and nature of the tasks performed, under the authority of an official or member of the temporary staff, for each of the posts it offered to them.
60. In any event, it contends, the fact that a staff member is called upon to carry out the duties of a higher function group does not give him any right to classification in that function group. The OSHA recalls, in that regard, that, under Article 87(4) of the CEOS,
‘a member of the contract staff referred to in Article 3a may change to a higher function group only through participation in a general selection procedure’.
61. The performance, by a staff member of functions of a level above his grade is no more than one factor among others to be borne in mind in connection with promotion (see, to that effect, Case T‑157/99 Griesel
v Council
ECR‑SC I‑A‑151 and II‑699, paragraph 46). The OSHA points out that Article 87(3) of the CEOS provides for a procedure similar to the promotion of officials under which the level of functions carried out may be taken into consideration without however there being a right to a promotion or reclassification.
Findings of the Court
62. First, under Article 82(2) of the CEOS, the minimum requirements as regards training and professional experience for the recruitment of a contractual agent in function groups II and III are identical: the staff member must have a diploma attesting to either a level of post‑secondary education or a level of secondary education giving access to post-secondary education, together with appropriate professional experience of at least three years in the latter case, or, where justified in the interest of the service, professional training or professional experience of an equivalent level.
63. In the present case, the OSHA does not dispute that the applicants possess the minimum training and professional experience qualifications required, even taking account of the requirements added in this respect by the guidelines, to join both function groups II and function group III.
64. Second, according to Article 80(2) of the CEOS, which defines the duties covered by the different function groups, function group II covers ‘clerical and secretarial tasks, office management and other equivalent tasks, performed under the supervision of officials or temporary staff’, while function group III covers ‘executive tasks, drafting, accountancy and other equivalent technical tasks, performed under the supervision of officials or temporary staff’. Such definitions are binding on the authority authorised to conclude the contracts of engagement.
65. Nevertheless, in the light of the wide discretion which the institutions or other executive agencies have in assessing the duties which may fall within the various function groups referred to in Article 80(2) of the CEOS, the Tribunal’s review of compliance with the division of the duties among those function groups must be limited to the question whether the authority authorised to conclude the contracts remained within reasonable bounds and did not use its discretion in a manifestly incorrect way.
66. In order to regulate the exercise of its discretion in applying Article 80(2) of the CEOS, the OSHA has set out in an annex to the guidelines a description of the functions and responsibilities involved in the tasks covered by function group II, specifically as regards the posts of administrative agent and of IT support agent. That description is reproduced in paragraph 16 of this judgment.
67. In the present case, the OSHA maintains that it classified the applicants in function group II on the basis of the assessment of the tasks entrusted to them and having regard to that description. It submits, specifically, that the tasks performed by each of the applicants correspond to the job profiles of administrative agent or IT support agent, as the case may be, set out in the annex to the guidelines.
68. This being so, it must first be determined whether the descriptions of the post of administrative agent and IT support agent, as set out in the annex to the guidelines, actually do correspond to the ‘clerical and secretarial tasks, office management and other equivalent tasks’ in function group II, referred to in Article 80(2) of the CEOS. That review must entail a comparison with the definition of the tasks in function group III under that same provision, that is, ‘executive tasks, drafting, accountancy and other equivalent technical tasks’.
69. It is evident, in this connection, that the descriptions at issue are capable, as such, of corresponding exactly to that latter category of tasks. On this point, the OSHA’s representative at the hearing was not able to specify what further particulars needed to be added to those descriptions in order for them to correspond to the tasks carried out by members of the contract staff belonging to function group III rather than to tasks carried out by those in function group II.
70. It must accordingly be held that the correspondence between the tasks allocated to the applicants and the job profiles of administrative agent and IT support agent, respectively, as set out in the annex to the guidelines, is not as such determinative for the purposes of assessing whether the classification decisions in dispute comply with Article 80(2) of the CEOS.
71. As to the tasks carried out by the applicants, the following is apparent from the file, and in particular from the staff reports drawn up for each applicant in respect of 2004, and from the contractual agreements concerning the OSHA ‘Resource and Service Centre’ and ‘Information and Communication’ Units in respect of 2005 and 2006:
– Ms de la Cruz, an administrative agent in the section in charge of finance and accounting, has been assigned, inter alia, the tasks of accounts management and implementation for certain budgetary accounts; initiator in respect of certain specific expenses; preparation of the budget, involving estimation of the relevant expenses; managing suppliers’ invoices, preparing commitments and payment orders; liquidation of missions of OSHA staff and preparation of the system for monitoring missions on behalf of the management; assistance in the ‘Resource and Service Centre’ in administrative and financial tasks; provision of information to the Court of Auditors; maintenance of financial archives; assistance to the IT manager with regard to documentation and financial aspects; management of petty cash; support to the accountant in different tasks as necessary; replacement of the financial officer and accountant during their absence on sick leave; signature rights, in conjunction with the accountant’s rights, with regard to every bank transaction.
– Ms Estrataetxe, an administrative agent in the section in charge of documentation, was assigned, inter alia, the tasks of organisation of the archives; management of the Adonis software, which included training staff in its use, and of the contract for the storage and security of the archives outside the OSHA’s premises; supervision of the proper use of the documentation and archiving system; distribution of information and publications to staff; management of the access to internal documents and dealing with external requests for information; preparation of the ‘documentary management plan’; management of the budget of the documentary section; management of the ‘documentation’ site on the internal server (intranet);
– Ms Grados, an administrative agent in the section in charge of general services, was assigned, inter alia, the tasks of preparation and management of supply contracts; preparation and launching of calls for tender; following up contractual relationships and the correct execution of services, including verification of invoices; the implementation of appropriate internal controls; budget management and acting as an ‘initiator’ for some specific expenses; supervision of the general maintenance services of the premises and equipment; organisation of the workspace in accordance with occupational health and safety requirements; management of the fixed assets;
– Mr Moral, an administrative agent, ‘webmaster’, in the information and communications unit, was assigned, inter alia, the tasks of
technical management, maintenance and updating of various websites; drafting the technical specifications for tenders under the control of the head of unit or communication manager, and following up the tendering procedure; website graphic design; technical coordination of various projects related to the web and to the European and International networks of websites relating to occupational health and safety; organisation of training; support to the publications staff;
– Mr Sanchez, an IT support agent in the section in charge of information and communications technology (‘ICT’) was assigned, inter alia, the tasks of management, technical support and maintenance of the technological infrastructure and data transmission (information servers, data transmission network and communication lines); assistance to other sections and units providing information services; managing the security of the system (inter alia, ‘backups’, antivirus, authentication and access control); technical management of the databases: drafting the technical specifications of calls for tenders and participation in the evaluation and award of the tenders; collaboration in feasibility studies.
72. It follows from the foregoing that the performance of the duties assigned to the applicants requires a high level of specialised knowledge, in particular in the fields of accounting and financial regulations, tendering procedures, information and document management and computing, respectively.
The applicants possess this knowledge as a result of their level of training or professional experience. Their duties certainly include co-ordination, drafting, management, supervision, even design on occasions, demanding a certain degree of autonomy, rendered even more necessary by the lack, so far as Ms de la Cruz, Ms Estrataetxe and Ms Grados are concerned, and as the OSHA organisation plan shows, of middle‑management personnel between the staff members concerned and their immediate superiors under the Staff Regulations or the CEOS in charge of the sectors in question. As regards Mr Moral and Mr Sanchez, as the OSHA acknowledges, the former works directly under the supervision of the Director of Communications and the latter directly under the supervision of the Head of Unit and of the Director of the ICT.
73. Such duties exceed the framework of the ‘clerical and secretarial’ and even ‘office management’ tasks covered by function group II. Even if some of them may correspond to responsibilities specific to function group II, as a whole they are ‘executive tasks, drafting’ or ‘accountancy’ and ‘other equivalent tasks’, within the meaning of Article 80(2) of the CEOS, typical of the responsibilities covered by function group III.
74. It is true that the applicants’ staff reports relate to a period during which they were employed by the OSHA as local staff. However, that fact is not material in the present case, since it is common ground that the tasks which were assigned to them were not significantly altered after their recruitment as contract staff. Furthermore, the fact that those tasks were carried out in the past by the applicants acting as local staff, under the version of Article 4 of the CEOS applicable prior to 1 May 2004, cannot be a determining factor for the interpretation and proper application of Article 80(2) of the CEOS.
75. Nor is it relevant that the applicants perform their tasks under the supervision of an official or member of the temporary staff, since that is the rule set out in Article 80(2) of the CEOS for all members of the contract staff, regardless of the function group to which they are attached.
76. As a result, and without it being necessary to rule on the other grounds relied on in the action, the decisions classifying the applicants must be held to be vitiated by a manifest error of assessment and annulled for that reason.
The effect of any annulment of the decisions classifying the applicants
77. In the event of the annulment of the decisions classifying them, the applicants are seeking restoration of all their rights deriving from classification in function group III with effect from 1 May 2005, including interest for late payment on the amounts due and damages for the non-material harm suffered, assessed at one euro per person.
78. In that regard, it suffices to state that the heads of claim seeking the restoration of the applicants’ rights, including interest for late payment on the amounts owed, come within the scope of the measures which the OSHA will be called on to take in order to ensure the enforcement of this judgment. As regards the application for compensation for the non‑material harm suffered, the annulment of the classification decisions in dispute must be held to constitute adequate compensation in itself for the harm alleged.
Costs
79. As the Tribunal held in its judgment in Case F‑16/05 Falcione
v Commission
(not yet published in the ECR, paragraphs 77 to 86), pending the entry into force of the Rules of Procedure of the Civil Service Tribunal and, in particular, of the specific provisions relating to costs, it is appropriate merely to apply the Rules of Procedure of the Court of First Instance of the European Communities, applicable mutatis mutandis
to the Tribunal under Article 3(4) of Council Decision 2004/752/EC of 2 November 2004 establishing the European Union Civil Service Tribunal (OJ 2004 L 333, p. 7).
80. Under Article 87(2) of the Rules of Procedure of the Court of First Instance, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the OSHA has been unsuccessful, it must be ordered to pay the costs.
Operative part
On those grounds,
THE TRIBUNAL (Second Chamber)
hereby
1. Annuls the decisions of the European Agency for Safety and Health at Work (OSHA) classifying the applicants in function group II by virtue of their contracts as members of the contract staff, signed on 28 and 29 April 2005.
2. Dismisses the remainder of the heads of claim.
3. Orders the OSHA to pay the costs.