ORDER OF THE GENERAL COURT (Appeal Chamber)

13 December 2012

Case T‑641/11 P

Harald Mische

v

European Commission

(Appeal — Civil service — Officials — Appointment — Classification in grade and step — Competition published before the entry into force of the new Staff Regulations of Officials — Recruitment by the Parliament and simultaneous transfer to the Commission — No need to adjudicate in part — Appeal in part clearly unfounded)

Appeal: against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 29 September 2011 in Case F‑70/05 Mische v Commission [2011] ECR-SC seeking to have that judgment set aside.

Held: There is no further need to adjudicate on the appeal to the extent that it is directed against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 29 September 2011 in Case F‑70/05 Mische v Commission [2011] ECR-SC in so far as that judgment dismisses the claims for annulment of the decision of the Commission of the European Communities of 11 November 2004 because that decision determines Mr Harald Mische’s grade to be A*6. The appeal is dismissed as to the remainder. Mr Harald Mische is to bear his own costs and pay those incurred by the European Commission in the present proceedings. The Council of the European Union is to bear its own costs.

Summary

1. Appeals — Pleas in law — Pleas which are manifestly inadmissible or manifestly unfounded — Dismissal at any point, by reasoned order, without an oral procedure

(Rules of Procedure of the General Court, Art. 145)

2. Appeals — Interest in bringing proceedings — Examination by the Court of its own motion — Event subsequent to the judgment of the Civil Service Tribunal having removed the prejudicial effect thereof as regards the appellant — Appeal not capable of securing an advantage — No need to adjudicate

3. Appeals — Pleas in law — Need for a precise criticism of a point in the reasoning of the Civil Service Tribunal

(Art. 257 TFEU; Statute of the Court of Justice, Annex I, Art. 11; Rules of Procedure of the General Court, Art. 138(1), first para., (c))

4. Officials — Recruitment — Appointment in grade — Introduction of a new career structure by Regulation No 723/2004 — Transitional provisions on classification in grade — Scope of Article 5(4) of Annex XIII to the Staff Regulations — Temporary staff who have passed an open competition — Not included

(Staff Regulations, Annex XIII, Art. 5(4); Council Regulation No 723/2004)

5. Officials — Equal treatment — Measures adopted by an institution in favour of a particular group of persons in the absence of a legal obligation — Impossibility of relying on the principle of equal treatment against another institution

6. Appeals — Pleas in law — Plea against a ground of the judgment not necessary to support the operative part — Ineffective plea in law

7. Actions brought by officials — Action for damages brought without a pre-litigation procedure in accordance with the Staff Regulations — Inadmissibility

(Staff Regulations, Arts 90 and 91)

8. Actions brought by officials — Unlimited jurisdiction — Possibility of an order of the Court’s own motion that the defendant institution pay compensation — Optional

(Staff Regulations, Arts 91(1))

1. See the text of the decision.

(see para. 25)

See:

T‑233/07 P Lebedef-Caponi v Commission [2008] ECR-SC I‑B‑1-3 and II‑B‑1‑19, paras 21 and 22

2. See the text of the decision.

(see para. 26)

See:

C‑19/93 P Rendo and Others v Commission [1995] ECR I‑3319, para. 13; judgment of 27 October 2011 in C‑605/10 P(R) Inuit Tapiriit Kanatami and Others v Parliament and Council, not published in the ECR, para. 15

3. See the text of the decision.

(see para. 40)

See:

Judgment of 19 July 2012 in C‑264/11 P Kaimer and Others v Commission, not published in the ECR, para. 61 and the case-law cited therein

4. The transitional rule in Article 5(4) of Annex XIII to the Statute, having the nature of an exception to a general principle, must be strictly interpreted. Following a strict literal interpretation of Article 5(4) of Annex XIII to the Staff Regulations, it must indeed be held that, first, that provision does not apply to members of the temporary staff who are successful candidates in an open competition, since such a competition does not normally give rise to recruitment in a different category, and, secondly, the wording of that provision does not give the administration any discretion to interpret and apply it differently. While it is true that all members of the temporary staff, whatever type of competition they sit, have some professional experience within the institutions, the fact remains that the EU legislature deliberately excluded from the scope of Article 5(4) of Annex XIII to the Staff Regulations members of the temporary staff who were successful candidates in an open competition. If the benefit of that exceptional transitional rule was reserved to members of the temporary staff who were successful candidates in a competition for transfer to another category or in an internal competition, the objective was to encourage those staff to participate in such competitions in order to become established as officials while also obtaining a transfer to another category. By contrast, open competitions are open to all interested parties, even from outside the institutions, and are therefore not designed to combine recruitment and establishment as an official with such a transfer to another category. In those circumstances, there is no reason to think that the legislature wished to extend the benefit of the scheme provided for in Article 5(4) of Annex XIII to the Staff Regulations to members of the temporary staff who were successful candidates in an open competition. It follows that a successful candidate in an open competition is not in a comparable legal situation to that of successful candidates in a competition for transfer to another category or in an internal competition. In the light of the distinction made between those types of competition and the objective pursued by the EU legislature, that successful candidate cannot rely on the professional experience and seniority which he had acquired as a member of the temporary staff in order to demonstrate that he is in a comparable situation to that of those other members of the temporary staff, since the legislature did not accept those aspects as being legally relevant criteria for comparison or differentiation and did not leave any discretion to the administration in that regard.

(see paras 45-47)

See:

176/73 Van Belle v Council [1974] ECR 1361, para. 8

T‑237/00 Reynolds v Parliament [2005] ECR-SC I‑A‑385 and II‑1731, para. 101

5. See the text of the decision.

(see para. 49)

See:

T‑271/08 P Boudova and Others v Commission [2009] ECR-SC I‑B‑1-71 and II‑B‑1-441, para. 53 and the case-law cited therein

6. See the text of the decision.

(see para. 54)

See:

C‑496/99 P Commission v CAS Succhi di Frutta [2004] ECR I‑3801, para. 68 and the case-law cited therein

7. See the text of the decision.

(see paras 57-58)

See:

T‑15/96 Liao v Council [1997] ECR-SC I‑A‑329 and II‑897, paras 57 and 58; T‑378/00 Morello v Commission [2002] ECR-SC I‑A‑311 and II‑1479, para. 102; T‑25/03 de Stefano v Commission [2005] ECR-SC I‑A‑125 and II‑573, para. 78

8. See the text of the decision.

(see para. 60)

See:

24/79 Oberthür v Commission [1980] ECR 1743, para. 14

T‑130/96 Aquilino v Council [1998] ECR-SC I‑A‑351 and II‑1017, para. 39; T‑10/02 Girardot v Commission [2004] ECR-SC I‑A‑109 and II‑483, para. 89; T‑132/03 Casini v Commission [2005] ECR-SC I‑A‑253 and II‑1169, para. 101