JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

15 March 2007

Case T-430/03

Iosif Dascalu

v

Commission of the European Communities

(Officials – Appointment – Review of classification in grade and step – Application of the Court of Justice’s case-law – Articles 5 and 31(2), the second paragraph of Article 32 and Articles 45 and 62 of the Staff Regulations)

Application: first, for annulment of the Commission’s decisions of 23 December 2002 and 14 April 2003 altering the applicant’s classification in grade, in so far as they fix his classification in step on recruitment in Grade A6, step 1, fix 5 October 1995 as the date on which they were to take pecuniary effect and do not re-establish the applicant’s career in grade and, so far as may be necessary, an application for annulment of the decisions rejecting the applicant’s complaints and, second, an application seeking compensation for the damage allegedly caused by those decisions.

Held: The Commission’s decision of 14 April 2003 is annulled in so far as it fixes 5 October 1995 as the starting point of its pecuniary effects. The Commission is to undertake an examination of the comparative merits of the applicant and of the officials promoted to Grade A5 since 16 April 1993, and then to Grade A4 since 16 January 1998. Following that examination and if the Commission should be unable to award the applicant such promotion in grade as may appear justified, the parties are invited to seek agreement as to appropriate compensation, taking into account, if appropriate, the application for damages by way of compensation made by the applicant. The parties are to inform the Court within three months of the delivery of this judgment of the content of any agreement they may have reached, failing which, of their conclusions, with figures, as to the assessment of the loss sustained. The remainder of the action is dismissed. The costs are reserved.

Summary

1. Officials – Recruitment – Appointment in grade – Appointment to the higher grade in a career bracket

(Staff Regulations, Arts 31(2) and 32, second para.)

2. Officials – Decision adversely affecting an official – Decision on classification in grade and step

(Staff Regulations, Arts 25, second para., and 90(2))

3. Officials – Recruitment – Appointment in grade and classification in step

(Staff Regulations, Arts 31(2) and 32, second para.)

4. Officials – Recruitment – Equal treatment – Classification in step

(Staff Regulations, Arts 5(3), 31(2) and 32, second para.)

5. Officials – Recruitment – Appointment in grade

(Staff Regulations, Arts 31(2), 45(1) and 62, first para.)

6. Officials – Non-contractual liability of the institutions – Administrative fault

1. In the light of the partial overlapping of the criteria laid down for granting a classification in the higher grade of the career bracket and for determining the step, particularly as regards the duration of experience acquired, an application for the appointing authority to examine any special qualifications that an official might have with a view to reviewing his classification in grade, made at the time of his recruitment, and classifying him in the higher grade of his career bracket necessarily involves an application to review the step assigned to that official by the initial classification decision.

(see para. 40)

2. The obligation to state reasons for a decision concerning classification in grade and in step may reasonably be satisfied at the stage when a decision is taken on a complaint, and it is sufficient for the statement of reasons to relate to the satisfaction of the legal conditions which under the Staff Regulations govern the regularity of the procedure and to the relevant individual ground for the decision taken concerning the official in question. Should that statement of reasons be regarded as inadequate, additional information may be provided in the course of proceedings.

(see paras 48, 51)

See: C‑316/97 P Parliament v Gaspari [1998] ECR I‑7597, para. 29; T‑25/92 Vela Palacios v ESC [1993] ECR II‑201, para. 26; T‑16/94 Benecos v Commission [1995] ECR-SC I‑A‑103 and II‑335, para. 36; T‑37/94 Benecos v Commission [1996] ECR-SC I‑A‑461 and II‑1301, para. 46; T‑71/96 Berlingieri Vinzek v Commission [1997] ECR-SC I‑A‑339 and II‑921, para. 79; T‑86/98 Gouloussis v Commission [2000] ECR-SC I‑A‑5 and II‑23, para. 79; T‑133/02 Chawdhry v Commission [2003] ECR-SC I‑A‑329 and II‑1617, para. 121; T‑55/03 Brendel v Commission [2004] ECR-SC I‑A‑311 and II‑1437, para. 120; T‑284/03 Aycinena v Commission [2005] ECR-SC I‑A‑29 and II‑125, para. 33; T‑145/04 Righini v Commission [2005] ECR-SC I‑A‑349 and II‑1547, para. 55

3. The appointing authority enjoys a wide discretion within the framework of Article 31 and the second paragraph of Article 32 of the Staff Regulations when assessing the previous experience of a candidate recruited as an official, both as regards the nature and duration thereof and as regards the extent of its relevance to the requirements of the post to be filled. It follows that, when reviewing a decision concerning the classification in step of an official recruited at the higher grade of the career bracket, the Court may not substitute its assessment for that of the appointing authority.

Consequently, where that authority has taken account of the training and special experience of a newly recruited official to appoint him, on recruitment, to the higher grade in his career bracket, it may consider that the official may not claim additional seniority in that grade, since his training and experience have already been taken into account for his appointment in grade.

(see paras 77, 79)

See: 314/86 and 315/86 De Szy-Tarisse and Feyaerts v Commission [1988] ECR 6013, para. 26; T‑2/90 Ferreira de Freitas v Commission [1991] ECR II‑103, para. 56; Aycinena v Commission, para. 72

4. Given that officials recruited at the higher grade in their career bracket and those recruited at the starting grade in their category are not in identical situations either in fact or in law, the fact that officials recruited at the starting grade in the career bracket may be allowed additional seniority, while those appointed at the higher grade might be denied that seniority precisely because of the grade in which they have been classified, cannot be regarded as unequal treatment between those officials.

(see para. 90)

5. In drawing a distinction, when reviewing an official’s classification in grade at recruitment, between the change made to the classification on the date when the official was appointed, and the pecuniary effects of that decision, the starting point for which is fixed at a later date, the appointing authority arbitrarily limits, for the period between the two dates, the official’s entitlement to remuneration, which is an individual right guaranteed by the Staff Regulations and may not be limited save as otherwise expressly provided, as stipulated by the first paragraph of Article 62 of the Staff Regulations.

Moreover, in drawing such a distinction, the appointing authority misconstrues the distinction between a request for reclassification, which seeks a review of the initial classification in grade made when the official was appointed, and the grant of a promotion, which, in accordance with Article 45(1) of the Staff Regulations, raises an official, in the course of his career, to a higher grade in the category to which he belongs.

In that respect, the fact that the initial classification decision has not been contested within the appeal period is not relevant, since the decision to reclassify the official in the higher grade on the date of his appointment, taken in compliance with the judgment in Case C-389/98 P Gevaert v Commission, is intended to replace the initial classification decision in all its effects.

(see paras 98, 102-103, 105-106, 108)

See: C‑389/98 P Gevaert v Commission [2001] ECR I‑65, para. 39; T‑214/00 X v Commission [2001] ECR-SC I‑A‑143 and II‑663, para. 29

6. The fact that the appointing authority has excluded from a number of examinations of comparative merits prior to the award of a promotion an official whose classification in grade on recruitment it only belatedly reviewed, in compliance with the judgment in Gevaert v Commission, constitutes an administrative fault rendering it liable, since in doing so it has denied the official in question the chance to have his application taken into consideration in the promotion procedures concerned.

However, despite that fault, actual liability is not incurred until the truth of the allegation of harm and its nature have been determined. For the latter to be proved, there must, in the present case, first be an examination of the comparative merits of the applicant and of the officials promoted in the promotion procedures from which he was unlawfully excluded; it can then be determined whether he really was denied a promotion which he was properly entitled to claim, and, if so, the loss sustained can be quantified.

(see paras 128-129, 136-139)

See: T‑99/95 Stott v Commission [1996] ECR II‑2227, para. 72