JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

11 July 2002

Case T-381/00

Franz-Martin Wasmeier

v

Commission of the European Communities

‛Officials — Appointment — Classification in grade — Article 31(2) of the Staff Regulations’

Full text in German II-677

Application for:

annulment of the Commission's decisions of 24 September 1999 definitively classifying the applicant at Grade A 7, step 3, and of 7 September 2000 rejecting his complaint.

Held:

The application is dismissed as inadmissible in so far as it claims that the Court should direct the defendant to classify the applicant at a higher grade. The remainder of the application is dismissed as unfounded. The parties are ordered to bear their own costs.

Summary

Officials — Recruitment — Appointment in grade — Appointment to the higher grade of the career bracket — Appointing authority 's discretion — Obligation, in certain cases, to consider the possibility of making such an appointment — Review by the Court — Limits

An application claiming that the Community Courts should require the defendant institution to adopt a new decision on the classification of an official is inadmissible. Firstly, the Community Courts have no jurisdiction to issue directions to the administration and, secondly, where an act is annulled, the institution concerned is required, under Article 233 EC, to take the necessary measures to comply with the judgment. (see paras 20, 21) See: T-203/97 Forvass v Commission [1999] ECRSC I-A-129and II-705, para. 25, and the case-law cited

Article 31(2) of the Staff Regulations provides for the possibility of making exceptions, within certain limits, to the principle laid down in Article 31(1). In that regard, when appointing a newly recruited official, the appointing authority is not, as a general rule, obliged to examine in each case whether it is necessary to apply Article 31(2) of the Staff Regulations or to state the grounds on which a decision not to make use of that provision is based. However, in order to prevent Article 31(2) of the Staff Regulations from being deprived of all legal meaning, the appointing authority is required, in special circumstances, specifically to assess the possible application of that provision. Such an obligation arises where the specific needs of the service require the recruitment of a specially qualified official or where the person recruited has exceptional qualifications and requests the application of that provision. Provided that it has in fact carried out that assessment, and subject to any classification conditions which it has imposed on itself in the vacancy notice, the appointing authority is free to decide, taking account of the interests of the service, whether it is appropriate to grant a classification at the higher grade. In that respect, the appointing authority has a discretion. In those circumstances, the Court's review cannot replace the appointing authority's assessment. It must be limited to verifying that there has been no infringement of essential procedural requirements, that the appointing authority has not based its decision on incorrect or incomplete material facts and that the decision is not vitiated by misuse of powers, an error of law or an inadequate statement of grounds. (see paras 52-58) See: T-17/95 Alexopoulou v Commission [1995] ECRSC I-A-227 and II-683, paras 20 and 21; T-92/96 Monaco v Parliament [1997] ECRSC I-A-195 and II-573, para. 45; T-195/96 Alexopoulou v Commission [1998] ECRSC I-A-51 and II-117, paras 38 and 39

Article 31(2) of the Staff Regulations is intended, inter alia, to enable the institution concerned, in its capacity as an employer, to secure the services of a person who, in the context of the labour market, may well be sought after by many other potential employers and therefore be lost to the institution. The option of using Article 31(2) of the Staff Regulations thus gives the institution concerned the opportunity, in exceptional cases, of granting more attractive conditions to an exceptional candidate in order to secure his or her services for itself. That option may therefore be considered only in the event that an employer other than the Community institution concerned has expressed its interest in recruiting the candidate. That cannot be the case where such interest is expressed by different departments of the institution concerned. (see paras 80-81) See: T-195/96 Alexopoulou v Commission, cited above, para. 37

Even if they satisfy the conditions of eligibility for classification at the higher grade, newly recruited officials nevertheless have no individual right to such classification. (see para. 92) See: T-195/96 Alexopoulou v Commission, para. 43

The right to claim protection of legitimate expectations presupposes that three conditions are satisfied. Firstly, specific, unconditional and consistent assurances must have been given to the person concerned by the Community administration. Secondly, those assurances must be such as to lead the person to whom they are addressed to entertain a legitimate expectation. Thirdly, the assurances given must comply with the relevant rules. In that regard, the information contained in a competition notice is, in principle, too general and conditional to be capable of justifying a legitimate expectation on which a successful candidate could rely for the purposes of the precise determination of his classification in grade and step. (see paras 106. 108) See: Forvass v Commission, cited above, para. 70

There is a breach of the principle laid down in Article 5(3) of the Staff Regulations when two categories of person whose factual and legal circumstances disclose no essential difference are treated differently at the time of their recruitment. There is also an infringement of the principle of equal treatment where situations which are different are treated in an identical manner. (see para. 122) See: T-18/89 and T-24/89 Tagaras v Court of Justice [1991] ECR II-53. para. 68