JUDGMENT OF THE EUROPEAN UNION
CIVIL SERVICE TRIBUNAL
(Second Chamber)
19 July 2016
Case F‑131/15
Adolf Stips
v
European Commission
(Civil service — Member of the temporary staff paid from research and investment appropriations — Article 2(d) CEOS — Contract of indefinite duration — Reclassification in the grade above — 2013 reclassification exercise — Closure of the exercise after 1 January 2014 — Entry into force of Regulation No 1023/2013 — Methods of accessing grade AD 13 — Application, by analogy, of Article 45(1) and Annex I, Section A, point 1, to the Staff Regulations — Refusal to reclassify an AD 12 member of the temporary staff — Eligibility for reclassification — Principles of legal certainty and non-retroactivity — Right to good administration)
Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Adolf Stips seeks the annulment of the decision of the European Commission’s authority empowered to conclude contracts of employment, of 21 January 2015, not to reclassify him as grade AD 13 in the 2013 reclassification exercise.
Held:      The decision of 21 January 2015, by which the European Commission did not reclassify Mr Adolf Stips as grade AD 13 in the 2013 reclassification exercise, is annulled. The European Commission is to bear its own costs and is ordered to pay the costs incurred by Mr Stips.
Summary
1.      Officials — Members of the temporary staff — Temporary staff covered by Article 2(d) of the Conditions of Employment of Other Servants, employed under a contract of indefinite duration — Reclassification in the grade above — Applicable rules — 2013 reclassification exercise — Closure of the exercise after 1 January 2014 — Refusal to reclassify an AD 12 member of the temporary staff — Application, by analogy, of Article 45 of the Staff Regulations and of Annex I, Section A, point 1, thereto, as amended by Regulation No 1023/2013 — Infringement of the principles of non-retroactivity and legal certainty — None
(Staff Regulations, Art. 45 and Annex I, Section A, point 1; Regulation No 1023/2013 of the European Parliament and of the Council)
2.      Officials — Members of the temporary staff — Temporary staff covered by Article 2(d) of the Conditions of Employment of Other Servants, employed under a contract of indefinite duration — Reclassification in the grade above — Reclassification exercise — Time limits — Obligation on the administration to comply with the principle of good administration
(Charter of Fundamental Rights of the European Union, Art. 41; Staff Regulations, Art. 45)
1.      The lawfulness of a contested measure must be assessed on the basis of the facts and the law as they stood at the time when the measure was adopted. Consequently, the provisions applicable to a measure are, in principle, the provisions in force at the time that measure was adopted, unless a derogation is made from that rule by a specific provision.
Moreover, amending legislation applies, unless otherwise provided, to the future consequences of situations which arose under the previous legislation. The position is different only in respect of situations originating and becoming definitive under the previous legislation, which create acquired rights.
In that regard, the principles of non-retroactivity and legal certainty cannot be extended to the point of altogether preventing a new rule from applying to the future effects of situations which arose under the earlier rule. On the contrary, the EU legislature is free to make at any time such amendments as it considers to be consistent with the interests of the service, even where the provisions introduced are less favourable for the officials or other staff concerned, provided, however, that the rights duly acquired by the officials or other staff are safeguarded and that those specifically affected by the new rules are treated in exactly the same way.
Thus, where the Commission adopts, more than a year after the entry into force of the Staff Regulations as amended by Regulation No 1023/2013 (the new Staff Regulations), a decision not to promote in respect of the 2013 promotion exercise, it is required, in order to take that decision, to apply, by analogy, the provisions of the new Staff Regulations in force at that time, namely Article 45(1), Annex I, Section A, point 1, and Article 30(1) and (2) of Annex XIII to the new Staff Regulations, which limit to grade AD 12 the carrier progression of officials belonging to function group AD where they have not been classified by a decision of the appointing authority in one of the types of posts allowing progression beyond that grade.
Moreover, as regards promotion exercises and, by analogy, reclassification exercises which were not closed by 31 December 2013, the new Staff Regulations provide no derogation with regard to the immediate applicability of Article 45(1) of those Staff Regulations, read in conjunction with Annex I, section A, point 1, to those regulations. In that regard, the new Staff Regulations differ in relation to the 2004 Staff Regulations. The second paragraph of Article 6 of Annex XIII to the 2004 Staff Regulations, still in force, provides that with regard to promotion decisions taking effect prior to the entry into force of those regulations, on 1 May 2004, the provisions in force at the date on which those promotions take effect are to apply.
In that context, the refusal to reclassify an AD 12 member of the temporary staff covered by Article 2(d) of the Conditions of Employment of Other Servants employed under a contract of indefinite duration, on the basis of the rules of the new Staff Regulations relating to promotion and the setting of upper career limits for administrators, would not involve infringement of the principles of non-retroactivity and legal certainty unless, in applying those provisions the institution had challenged rights acquired by the person concerned before 1 January 2014.
With regard to decisions concerning promotion, since officials were, until the new Staff Regulations came into force, merely eligible for promotion, and that promotion was subject to a decision of the appointing authority which it had not yet adopted, in the present case on 1 January 2014, such officials cannot claim an acquired right to remain eligible for that promotion after that date. That principle applies also, by analogy, to a decision concerning the reclassification of a temporary staff member covered by Article 2(d) of the Conditions of Employment, employed under a contract of indefinite duration.
As with any promotion of an official, the reclassification of such a staff member is subject to a decision of the authority empowered to conclude contracts of employment, adopted following consideration of the comparative merits of the temporary staff members employed under a contract of indefinite duration who meet the conditions for possible reclassification.
(see paras 39-42, 44-48)
See:
Judgments of 7 February 1979 in France v Commission, 15/76 and 16/76, EU:C:1979:29, para. 7, and of 22 December 2008 in Centeno Mediavilla and Others v Commission, C‑443/07 P, EU:C:2008:767, paras 61 to 63
Judgment of 15 July 2004 in Valenzuela Marzo v Commission, T‑384/02, EU:T:2004:239, para. 98
Judgments of 10 November 2010 in OHIM v Simões Dos Santos, T‑260/09 P, EU:T:2010:461, para. 48 and the case law cited, and of 13 October 2015 in Commission v Verile and Gjergji, T‑104/14 P, EU:T:2015:776, para. 152
Judgments of 31 January 2008 in Di Bucci v Commission, F‑98/05, EU:F:2008:11, para. 43 and the case law cited; of 10 September 2009 in Behmer v Parliament, F‑47/07, EU:F:2009:103, para. 52 and the case law cited; and of 16 July 2015, EJ and Others v Commission, F‑112/14, EU:F:2015:90, para. 59
2.      Article 45(1) of the Staff Regulations and the general implementing provisions for that article adopted by the Commission do not contain specific mandatory time limits concerning the closure of a reclassification or promotion exercise. In practice, the time limits for the reclassification or promotion procedure for the exercise concerned are set each year, in principle, by an ad hoc decision of the administration.
In the absence of such a decision, it cannot be inferred from an internal provision requiring the organisation of a reclassification exercise each year by the Commission, that the closure of a reclassification exercise after 31 December of the year concerned will in itself vitiate that exercise with an irregularity that might undermine the validity of the entire reclassification procedure in question and justify the annulment of the decisions adopted on completion of that procedure.
However, the authority empowered to conclude contracts of employment is required, according to the right to good administration, as contained in Article 41 of the Charter of Fundamental Rights of the European Union, and in particular its obligation to ensure equitable treatment in respect of matters concerning its staff, to conduct a reclassification exercise with diligence and to do everything to make sure that that exercise is closed, so far as possible, before the end of the year concerned in order to ensure the effectiveness of its decision on reclassification for all the staff who may be reclassified in the context of the reclassification exercise in question.
That duty of good administration is all the more important where, in accordance with the internal provisions of the institution, each reclassification exercise must take into account the budgetary funds available to that institution for the year concerned, which reflect inter alia the staffing requirements predicted for the year in question.
In any event, the difficulties and slowness inherent in the internal decision-making process, cited by the institution to justify the delays that have built up over the course of the various reclassification exercises for temporary staff employed under contracts of an indefinite duration, assuming they are proven, should prompt the institution to exercise increased diligence in dealing with files relating to the reclassification of those temporary staff, especially since the number of candidates for reclassification is particularly small.
(see paras 58-61, 72)