JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber)

15 September 1998

Case T-23/96

Elsa De Persio

v

Commission of the European Communities

‛Officials — Assignment to another post — Request to be transferred from the Language Service to category A — ‘Decompartmentalisation’’

Full text in Italian II-1413

Application for:

first, annulment of the decision of the Commission refusing to grant a request for classification in category A, second, annulment of the decision of the Commission of 22 December 1995 reassigning the applicant to the Translation Service of that institution and, finally, damages.

Decision:

Application dismissed.

Abstract of the Judgment

The applicant, a (category LA) official in the Commission's Translation Service, with responsibility for the Italian version of the CELEX system, was transferred to the Office for Official Publications of the European Communities (‘the Publications Office’) in Brussels, where she was given responsibility for the methodology of entering information into CELEX.

By letter of 24 October 1994 to the Director-General of the Publications Office, also sent to the Director-General of the Commission's Translation Service, the applicant requested that she be classified in category A. She maintained that, as a result of the entry into force of Council Regulation (EEC, Euratom, ECSC) No 3947/92 of 21 December 1992 amending the Staff Regulations of Officials (‘the Staff Regulations’) and the Conditions of Employment of Other Servants of the European Communities (OJ 1992 L 404, p. 1, hereinafter ‘Regulation No 3947/92’), which amends Article 45 of the Staff Regulations, her classification in category A was justified, on the ground that the duties performed by her in the Publications Office corresponded to those of a category A official.

Having received a negative response from the Director-General of the Publications Office, the applicant on 18 January 1995 submitted a request pursuant to Article 90(1) of the Staff Regulations, in which she asked, in particular, to be transferred to category A. No response was given to that request, and the applicant therefore lodged a complaint pursuant to Article 90(2) of the Staff Regulations against the implicit decision rejecting her request. That complaint and a second complaint against a decision reassigning the applicant to the Translation Service were rejected by decisions of 22 December 1995 and 4 February 1996.

Substance

The claims for annulment of the decision rejecting the request for classification in category A

Under the first subparagraph of Article 45(1) of the Staff Regulations, ‘promotion’ means ‘appointment of the official to the next higher grade in the category or service to which he belongs’, and not a move from one category to a higher category, which is governed by Article 45(2). According to the latter provision, such a move may take place only on the basis of a competition or, as the case may be, in the case of officials in the Language Service, by means of a transfer subject to the conditions laid down in Article 45(3) and (4).

It follows that, even assuming that the situation of officials in the Language Service is comparable with that of officials in categories B, C and D, the fact that an LA official is unable to move to category A by way of a ‘promotion’ cannot under any circumstances constitute discrimination as compared with officials in categories B, C and D, since, in accordance with Article 45(1) and (2) of the Staff Regulations, the latter are also not eligible to benefit on that basis from such a measure.

The plea alleging unequal treatment between LA officials and officials in categories B, C and D and the objection of illegality in relation to Article 45(2) to (4) of the Staff Regulations are therefore rejected.

It is also necessary to reject the various arguments to the effect that the assignment of the applicant to the Publications Office in March 1993 fell within the provisions inserted into Article 45(3) of the Staff Regulations by Article 11 of Regulation No 3947/92, concerning the possibility of moving from the Language Service to category A without a competition being held. The plea alleging infringement of Article 11 of Regulation No 3947/92 must consequently be rejected.

Lastly, the Court also rejects the plea alleging infringement of Articles 6, 7, 26 and 45(1) of the Staff Regulations, misuse of powers and an error of reasoning.

The claim for annulment of the decision of 22 December 1995 reassigning the applicant to the Commission 's Translation Service

The Court rejects the pleas alleging lack of competence on the part of the author of the decision, breach of the principles of the protection of legitimate expectations and of sound administration, failure to have regard for the welfare and interests of officials, the provision of inadequate and erroneous reasons for the decision, failure to have regard to the interests of the service and misuse of powers.

The claim for damages

A claim for damages must be rejected in so far as it is closely associated with claims seeking annulment which have themselves been dismissed as inadmissible or as unfounded.

See: T-l/91 Della Pietra v Commission [1992] ECR II-2145, para. 34; T-262/94 Baiwir v Commission [l996] ECR-SC II-739, para. 151; T-123/95 B v Parliament[1997]ECR-SC II-697, para. 82

Operative part:

The application is dismissed.