JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber)
13 February 2007
Case T-354/04
Gaetano Petralia
v
Commission of the European Communities
(Officials – Temporary staff – Scientific service – Classification in grade)
Application: for annulment of the Commission’s decision of 7 October 2003 definitively classifying the applicant in grade B 5, step 3,
and the decision of 13 May 2004 dismissing the applicant’s claim.
Held: The action is dismissed. The parties are ordered to bear their own costs.
Summary
1.      Officials – Temporary staff – Recruitment – Member of staff employed under Article 2(d) of the Conditions of Employment of
Other Servants of the European Communities
(Conditions of Employment of Other Servants, Arts 2(d) and 8, fourth para.)
2.      Officials – Staff Regulations – Conditions of Employment of Other Servants of the European Communities – Criteria for classification
in grade on recruitment of an official – Application to members of the temporary staff
(Staff Regulations, Art. 31)
3.      Officials – Recruitment – Appointment in grade – Appointment to the higher grade in a career bracket
(Staff Regulations, Arts 5 and 31(2); Annex I)
4.      Officials – Recruitment – Appointment in grade – Appointment to the higher grade in a career bracket
(Staff Regulations, Art. 31(2))
5.      Officials – Principles – Protection of legitimate expectations – Conditions
6.      Officials – Equal treatment
1.      It is clear from the first and second indents of the fourth paragraph of Article 8 of the Conditions of Employment of Other
Servants of the European Communities that the temporary staff referred to in Article 2(d) of those Conditions of Employment
may be employed in the scientific or technical services as well as in administrative posts. Engagement under Article 2(d)
of the Conditions of Employment to fill temporarily a permanent post paid from research and investment appropriations is therefore
not sufficient to be part, ipso facto, of the scientific service.
(see para. 65)
2.      Although Article 31 of the Staff Regulations on the criteria for the classification in grade of officials upon recruitment
is not expressly stated in the Conditions of Employment of Other Servants to be applicable to temporary staff, the rules set
out in that provision may reasonably be applied to members of the temporary staff, by virtue of the principle of sound administration.
(see paras 5, 85)
See: T‑217/96 Fabert-Goossens v Commission [1998] ECR-SC I‑A‑607 and II‑1841, para. 41; T‑203/97 Forvass v Commission [1999] ECR-SC I‑A‑129 and II‑705, para. 42; T‑133/02 Chawdhry v Commission [2003] ECR-SC I‑A‑329 and II‑1617, para. 35
3.      Even if Article 31(2) of the Staff Regulations confers on the appointing authority or, in the case of members of the temporary
staff, the authority authorised to conclude contracts of employment the power to recruit an official or other member of staff
at the higher grade in his career bracket, the use of that power must be reconciled with the requirements inherent in the
concept of a career bracket within the meaning of Article 5 of, and Annex I to, the Staff Regulations. Consequently, it is
permissible to recruit at the higher grade in a career bracket only exceptionally.
Where an internal directive which governs the exercise of the discretionary power conferred by Article 31(2) of the Staff
Regulations envisages, as alternative conditions that may be taken into consideration for classification in the higher grade
in a career bracket, the exceptional qualifications of the person concerned and the specific needs of a department calling
for the recruitment of a specially qualified candidate, it is for the appointing authority or the authority authorised to
conclude contracts of employment specifically to examine whether that is true of a newly-recruited official or member of staff
who asks for Article 31(2) of the Staff Regulations to be applied. Where it accepts that the case in question meets one of
those conditions, the authority is required specifically to assess the possible application of that provision. It may decide,
at that stage, taking into account the interests of the service in general, whether or not it is appropriate to grant the
person concerned a classification in the higher grade of the career bracket. The use of the verb ‘may’ in Article 31(2) of
the Staff Regulations implies that the authority is not obliged to apply that provision and that newly‑recruited officials
or other members of staff do not have an individual right to such a classification.
It follows from the above that the appointing authority or the authority authorised to conclude contracts of employment has
a wide discretion, within the framework laid down in Article 31 of the Staff Regulations, to examine whether the post to be
filled requires the recruitment of a specially qualified candidate or whether the candidate has exceptional qualifications.
It also has a wide discretion when, having determined that one of these two situations exists, it examines the implications
thereof.
(see paras 88-90, 92-93)
See: 33/67 Kurrer v Council [1968] ECR 127, 136; 146/84 De Santis v Court of Auditors [1985] ECR 1723, paras 9 and 11; C‑155/98 P Alexopoulou v Commission [1999] ECR I‑4069, paras 32 and 33; T‑17/95 Alexopoulou v Commission [1995] ECR-SC I‑A‑227 and II‑683, para. 21; T‑195/96 Alexopoulou v Commission [1998] ECR-SC I‑A‑51 and II‑117, para. 43; Chawdhry v Commission, paras 37 and 44; T‑55/03 Brendel v Commission [2004] ECR-SC I‑A‑311 and II‑1437, para. 61; T‑145/04 Righini v Commission [2005] ECR-SC I‑A‑349 and II‑1547, paras 43, 44 and 52; T-44/04 Kimman v Commission [2006] ECR-SC I-A-2-71 and II-A-2-299, paras 28 and 94; of 10 May 2006 in T-331/04 R v Commission, not published in the ECR, paras 18, 19, 23 and 24
4.      The court’s review of a decision concerning classification in grade cannot replace the assessment of the appointing authority
or the authority authorised to conclude contracts of employment. The Community courts must confine themselves to checking
that there has been no infringement of essential procedural requirements, that that authority has not based its decision on
incorrect or incomplete material facts or that the decision is not vitiated by misuse of powers, an error of law or an inadequate
statement of grounds. Lastly, it must be verified that the authority in question did not use its power in a manifestly incorrect
way.
(see para. 94)
See: T‑6/02 Platte v Commission [2002] ECR-SC I‑A‑189 and II‑973, para. 36; Chawdhry v Commission, para. 45; Brendel v Commission, para. 60; R v Commission, para. 26
5.      The right to rely on the principle of the protection of legitimate expectations, which is one of the fundamental principles
of the Community, extends to any individual in a situation where it is clear that the Community administration has, by giving
him precise assurances, led him to entertain reasonable expectations. In respect of an employment relationship with an institution,
such assurances must in any event comply with the provisions of the Staff Regulations or the Conditions of Employment of Other
Servants of the European Communities.
(see para. 115)
See: T-471/04 Karatzoglou v EAR [2006] ECR-SC I-A-2-35 and II-A-2-157, paras 33 and 34 and the case-law cited therein
6.      The principle of equality of treatment must be reconciled with the principle of legality, according to which no person may
rely, in support of his claim, on an unlawful act committed in favour of another. Even if the authority authorised to conclude
contracts of employment committed an error in classifying members of the temporary staff as scientific or technical staff,
a member of staff employed in an administrative post but in exactly the same factual and legal situation as those members
of the temporary staff, in that he participated in the same selection procedure and has the same duties, may not benefit from
that error by claiming an infringement of the principle of equality of treatment.
(see para. 134)
See: 188/83 Witte v Parliament [1984] ECR 3465, para. 15; 134/84 Williams v Court of Auditors [1985] ECR 2225, para. 14; C‑340/98 Italy v Council [2002] ECR I‑2663, paras 87 to 93