JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

11 July 1996

Case T-5 87/93

Elena Ortega Urretavizcaya

v

Commission of the European Communities

‛Officials — Temporary staff — Offer — Contract as a temporary employee — Alteration in grade and duties — Protection of legitimate expectations’

Full text in Spanish II-1027

Application for:

annulment of the grading decision arising from Articles 2 and 3 of the applicant's contract as a temporary employee and for damages.

Decision:

Annulment of the Commission's decision.

Abstract of the Judgment

The applicant submitted an application for the post of research assistant when the Commission held a competition for recruitment of temporary staff in 1991 with a view to constituting a reserve of laboratory technicians in career brackets C 3, B 5 and B 3. On passing the examination, she was placed on the reserve list.

On 11 September 1992, the Commission offered to engage her for an indefinite period as a temporary employee in Grade B 3, step 1 (subject to confirmation by the Grading Committee). By letter of 16 September 1992 the applicant accepted the Commission's offer. She took up her duties on 16 October 1992. From that date, the Commission paid her the salary of an employee in Grade B 3, step 1, in accordance with the terms set out in the offer.

By letter of 19 February 1993, the applicant, referring to the offer of employment of 11 September 1992, asked the Commission to send her a written employment contract for a temporary employee. On 3 March 1993, it sent her a contract which diverged from the offer of 11 September 1992 in two respects: first, Article 2 defined the duties to be performed by her as those of a deputy assistant and, secondly, Article 3 stipulated that she was to be classified in Grade B 5, step 3. On 10 March 1993, she signed the temporary contract without expressing any reservation. From March 1993, the Commission paid her the salary of an employee in Grade B 5, step 3. On 10 June 1993, she lodged a complaint, which was rejected by implied decision. By letter of 25 April 1994, she offered her resignation to the Commission. On 22 July 1994, she asked, at the Commission's suggestion, for that letter to be treated as null and void.

Admissibility

Legal interest in bringing proceedings

The conditions of admissibility laid down by Articles 90 and 91 of the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’) are a matter of public policy and the Community judicature must therefore consider them of its own motion (paragraph 25).

See: T-130/89 B. v Commission [1990] ECR II-761, para. I; T-34/91 Whitehead v Commission [1992] ECR II-1723. paras 18 and 19; T-37/93 Stagakis v Parliament [1994] ECRSC II-451, para. 17

Under the system of remedies laid down by the Staff Regulations, a contract may not be challenged: an official may bring an action only against acts of the appointing authority which adversely affect him. In this case, the parties agree that the Commission adopted a grading decision which is incorporated within the contract at issue. Such a decision may in principle constitute an act adversely affecting an official within the meaning of Article 90(2) of the Staff Regulations. An act does not cease to be an act adversely affecting an official if that official consents to it. The opposite view would result in his being deprived of any opportunity of challenging the act, even if it were unlawful, which would be contrary to the system of remedies laid down by the EC Treaty and the Staff Regulations. Finally, in its case-law the Court acknowledges that grading decisions contained in contracts of employment for temporary staff may be challenged (paragraphs 26 to 29).

See: 191/81 Plug v Commission [1982] ECR 4229, para. 15 et seq.; 302/85 Pressler-Hoeft v Court of Auditors [1987] ECR 513, para. 4

The claim for an order requiring a fresh decision to be adopted

The Community judicature has consistently held, on the one hand, that it has no jurisdiction to issue directions to the administration when exercising judicial review of legality under Article 91 of the Staff Regulations and, on the other, that where an act is annulled, the institution concerned is required, pursuant to Article 176 of the EC Treaty, to take the measures necessary in order to comply with the judgment (paragraph 33).

See: 41/88 and 178/88 Becker and Starquit v Parliament [1989] ECR 3807, para. 6; T-94/92X v Commission [1994] ECRSC II-481, paras 32 and 33; T-583/93 P v Commission [1995] ECRSC II-433, paras 17 and 18

Consistency between the official complaint and the application

The purpose of the principle that the official complaint and the application instituting proceedings should be consistent with one another is to enable the appointing authority to have a sufficiently detailed knowledge at the pre-litigation stage of the objections of the person concerned to the contested decision, so that the dispute might be settled amicably. That principle requires that the heads of claim set out in the application should have the same subject-matter and legal basis as those set forth in the complaint, failing which the application will be inadmissible. However, the applicant may develop those heads of claim, after he has brought an action, by the submission of pleas and arguments which need not necessarily appear in the complaint, but are closely connected with it. In addition, the administration is required at the pre-litigation stage not to interpret the complaints restrictively but, on the contrary, to consider them with an open mind (paragraph 37).

See: 23/87 and 24/87 Attinger and Virgili v Parliament [1988] ECR 4395, para. 15; 224/87 Koutchoumoff v Commission [1989] ECR 99, para. 10; T-2/90 Ferreira de Freitas v Commission [1991] ECR II-103, para. 41; T-l/90 Pérez-Mínguez Casariego v Commission [1991] ECR II-143, para. 47; T-l8/90 Jongen v Commission [1991] ECR II-187, para. 22; T-58/91 Booss and Fischer v Commission [1993] ECR II-147 para. 83; T-496/93 Allo v Commission [1995] ECRSC II-405, paras 26 and 27

The Court rejects the plea of inadmissibility based on breach of the principle that the official complaint and the application must be consistent with one another (paragraph 42).

The claim for annulment

The plea alleging breach of the principle of the protection of legitimate expectations

Any individual who is in a situation in which it appears that the Community administration had led him to entertain reasonable expectations is entitled to rely on the principle of the protection of legitimate expectations; however, he may not rely on that principle unless he has obtained from the administration precise assurances which take account of the Staff Regulations (paragraph 57).

See: 289/81 Mavrictis v Parliament [1983] ECR 1731, para. 21; 162/84 Vlachou v Court of Auditors [1986] ECR 481, para. 6; T-123/89 Chomel v Commission [1990] ECR II-131, paras 25 and 26; T-46/90 Devillez and Others v Parliament [1993] ECR II-699, para. 38; T-3/92 Latham v Commission [1994] ECRSC II-83, para. 58; T-534/93 Grynberg and Hall v Commission [ 1994] ECRSC II-595, para. 53 ; T-498/93 Dornonville de la Cour v Commission [1994] ECRSC II-813, para. 46

The Court considers that the offer in dispute is equivalent to a precise assurance and was such as to lead the applicant to entertain reasonable expectations, within the meaning of the case-law cited above (paragraph 65).

As to the question whether the offer of employment complied with the Staff Regulations, the Court points out, first, that the competition notice stipulated that the competition would be organized with a view to constituting a reserve for future recruitment of laboratory technicians in career brackets C 3, B 5 and B 3 and, secondly, that the Commission has not disputed that the applicant satisfied all the conditions regarding education, experience and seniority for recruitment in Grade B 3 (paragraph 66).

Furthermore, the applicant's post is administrative in nature, as the Commission has indeed confirmed. The offer of employment related to duties as an assistant, and the temporary employment contract to duties as a deputy assistant. In each case, those are administrative duties under Annex I A to the Staff Regulations. In addition, the contract was entered into, on the basis of Article 2(d) of the Conditions of Employment of Other Servants of the European Communities, for an indefinite period when, according to the second indent of the fourth paragraph of Article 8 thereof, that type of contract is envisaged only for temporary staff performing administrative duties. Therefore, contrary to the Commission's contention, it is not Annex I B relating to the scientific and technical services, but Annex I A relating to the administrative service, that must be taken into account in order to determine whether a post in career bracket B 3 may lawfully be filled in this case. Annex I A in fact provides for such an eventuality (paragraph 67).

As regards the Commission's argument, put forward for the first time at the hearing, that assigning the applicant to a post in Grade B 3 was precluded by a lack of the necessary budgetary appropriations, the Court takes the view that it is belated in that it is not based on matters of law or of fact which came to light in the course of the procedure and concludes therefrom that it constitutes a new plea in law within the meaning of Article 48(2) of its Rules of Procedure. Besides, the Commission has not adduced any evidence in support ofthat argument (paragraphs 69 and 70).

The claim for damages

The Community can be held liable in damages only if the applicant demonstrates that the institution concerned acted unlawfully, that he or she has suffered harm and that there is a causal link between the act and the damage alleged. In tliis case, annulment of the contested act constitutes adequate compensation for the nonmaterial damage suffered by the applicant (paragraphs 77 and 78).

See: T-82/91 Latham v Commission [1994] ECRSC II-61, para. 72; T-39/93 and T-553/93 Baltsavias v Commission [1995] ECRSC II-695, para. 80

The material damage suffered by the applicant through frustration of her legitimate expectations amounts to the difference between the net remuneration that she would have received if she had been classified as from 1 March 1993 in Grade B 3, in the step determined in accordance with the Commission decision of 1 September 1983 on the criteria applicable to grade and step classification on recruitment, multiplied by the number of months between adoption of the disputed decision and delivery of this judgment, taking account of automatic advancements in step that the applicant would have been entitled to, and the remuneration that she has actually received. Interest must be added to that sum at the rate of 8% as from the date on which the applicant brought this action (paragraph 79).

Operative part:

1. The action is dismissed as inadmissible in so far as it seeks an order from the Court requiring the Commission to adopt a fresh decision.

2. The grading decision adopted by the Commission, as set out in the employment contract, is annulled.

3. The sum to be paid in damages to the applicant is equal to the difference between the net remuneration that she would have received if she had been classified as from 1 March 1993 in Grade B 3, in the step determined in accordance with the decision on the criteria applicable to grade and step classification, multiplied by the number of months between adoption of the disputed decision and delivery of this judgment, taking account of automatic advancements in step that the applicant would have been entitled to, and the remuneration that she has actually received.

4. Interest at the rate of 8% shall be paid on the sum referred to in paragraph 3 above as from 23 December 1993 until payment thereof.