JUDGMENT OF THE COURT OF FIRST INSTANCE (Seventh Chamber)

15 October 2008

Case T-66/04

Christos Gogos

v

Commission of the European Communities

(Civil service – Officials – Internal competition for change of category – Appointment – Classification in grade – Article 31(2) of the Staff Regulations)

Application: for annulment of the Commission’s decision classifying the applicant in Grade A7, step 3, and the decision of 24 November 2003 rejecting the administrative complaint.

Held: The action is dismissed. The Commission is ordered to pay all the costs.

Summary

1. Officials – Recruitment – Appointment in grade – Appointment to the higher grade in a career bracket – Not applicable to an appointment following an internal competition to change category

(Staff Regulations, Arts 5, 31(1) and (2) and 45(2); Annex I)

2. Officials – Recruitment – Appointment in grade – Appointment to the higher grade in a career bracket – Appointing authority’s discretion

(Staff Regulations, Art. 31(2))

3. Officials – Recruitment – Appointment in grade – Appointment to the higher grade in a career bracket – Taking into account of the official’s exceptional qualifications

(Staff Regulations, Arts 5(3) and 31(2))

1. While it is true that a literal interpretation of Articles 31(1) and (2) and 45(2) of the Staff Regulations does not preclude an official from being appointed to the higher grade in a career bracket pursuant to Article 31(2) of the Staff Regulations where he passes an internal competition to change to a higher category, such an interpretation would be inconsistent with the system and purpose of those provisions. First, the use of the possibility recognised in Article 31(2) of the Staff Regulations must be reconciled with observance of the requirements inherent in the concept of a career bracket resulting from Article 5 of the Staff Regulations and from Annex I thereto. A person can therefore be recruited to the higher grade in a career bracket only exceptionally, so that the conditions justifying such a classification must be interpreted restrictively. Secondly, the purpose of the exception set out in Article 31(2) of the Staff Regulations is 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. Article 31(2) of the Staff Regulations thus gives the institutions the opportunity, in exceptional cases, of granting more attractive conditions to an exceptional candidate in order to secure his or her services for itself. Where the appointment is made following an internal competition to change category open to officials or members of staff already employed within the institution, that justification for the possibility of an exceptional classification for the person concerned does not apply. Furthermore, in a competition to change category, experience acquired within the institution has already been taken into account in the definition of the conditions for admission to the competition, which is open to officials previously employed in a lower category, and cannot constitute an exceptional merit to be taken into account for determining whether a new official might be given a classification other than the basic grade for the career bracket to which he is recruited, since that would be tantamount to taking the same factors into account for a second time. It follows that Article 31(2) of the Staff Regulations is not applicable to appointments following an internal competition to change category.

(see paras 30-35)

See: C‑155/98 P Alexopoulou v Commission [1999] ECR I‑4069, paras 32 and 33; T‑195/96 Alexopoulou v Commission [1998] ECR-SC I‑A‑51 and II‑117, para. 37; T‑235/97 Campoli v Commission [1998] ECR-SC I‑A‑577 and II‑1731, para. 32; T‑203/97 Forvass v Commission [1999] ECR-SC I‑A‑129 and II‑705, para. 44; T‑284/03 Aycinena v Commission [2005] ECR-SC I‑A‑29 and II‑125, para. 71; T‑145/04 Righini v Commission [2005] ECR-SC I‑A‑349 and II‑1547, para. 49; T-65/05 Seldis v Commission [2007] ECR-SC I-A-0000, para. 55

2. It is for the appointing authority to consider in practice whether a newly‑recruited official or member of staff who requests the application of Article 31(2) of the Staff Regulations has exceptional qualifications or if the specific needs of a department call for the recruitment of a specially qualified official. Where it accepts that one of those criteria is satisfied, the appointing authority is required specifically to assess the possible application of Article 31(2) of the Staff Regulations. It may also decide, at that stage, taking into account the interests of the service in general, whether or not it is appropriate to grant a newly‑recruited official or member of staff a classification in the higher grade. The use of the verb ‘may’ in Article 31(2) of the Staff Regulations implies that the appointing authority is not obliged to apply that provision and that newly‑recruited members of staff or officials do not have an individual right to such a classification. It follows from the above that the Commission has a wide discretion, within the framework laid down by Article 31 of the Staff Regulations, both to consider whether the post to be filled requires the recruitment of a specially qualified official or if the official has exceptional qualifications, and to consider the implications of those findings.

In such a context, the Court’s review cannot replace the assessment of the appointing authority and must therefore be confined 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, a manifest error of assessment or an inadequate statement of grounds.

(see paras 39-42)

See: C-155/98 P Alexopoulou v Commission, para. 43; T-195/96 Alexopoulou v Commission, para. 21; T‑133/02 Chawdhry v Commission [2003] ECR-SC I‑A‑329 and II‑1617, para. 44; T‑55/03 Brendel v Commission [2004] ECR-SC I‑A‑311 and II‑1437, para. 61; Righini v Commission, para. 52; T‑411/03 Herbillon v Commission [2006] ECR-SC I‑A‑2‑45 and II‑A‑2‑193, para. 25

3. Since the exceptional nature of a newly-recruited official’s qualifications under Article 31(2) of the Staff Regulations cannot be assessed in the abstract, but in the light of the post for which he was recruited, that assessment is of a casuistic nature which prevents the official concerned from reasonably being able to rely on an infringement of the principle of equal treatment.

That is particularly true for officials appointed following an internal competition to change category. In such a situation, the official’s specific professional experience has already been taken into account for his appointment to the higher category.

(see paras 45, 46)

See: Chawdhry v Commission, para. 102