JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

28 October 2010

Case F-85/05

Susanne Sørensen

v

European Commission

(Civil service — Officials — Appointment — Officials advancing to a higher function group by open competition — Candidates placed on a reserve list prior to the entry into force of the new Staff Regulations — Transitional rules governing classification in grade at the time of recruitment — Classification in grade pursuant to the new, less favourable rules — Article 5(2) and Article 12(3) of Annex XIII to the Staff Regulations)

Application: brought under Articles 236 EC and 152 EA, in which Ms Sørensen seeks, first, annulment of the Commission’s decision of 6 August 2004 appointing her to a post as assistant, in so far as that decision classifies her in grade B*3, step 2, and, second, annulment of the decision to cancel all the promotion points she had acquired.

Held: The action is dismissed. Each party is ordered to bear its own costs.

Summary

1. Officials — Recruitment — Appointment in grade — Introduction of a new career structure by Regulation No 723/2004 — Transitional provisions on classification in grade

(Staff Regulations, Annex XIII, Arts 5(2) and 12(3); Council Regulation No 723/2004)

2. Officials — Recruitment — Appointment in grade — Introduction of a new career structure by Regulation No 723/2004 — Transitional provisions on classification in grade

(Staff Regulations, Annex XIII; Council Regulation No 723/2004)

1. Article 5(2) of Annex XIII to the Staff Regulations, as amended by Regulation No 723/2004 and came into force on 1 May 2004, concerns officials whose names appeared before 1 May 2006 ‘on the list of candidates suitable for transfer from one category to another’ and who actually transferred to another category after 1 May 2004. Article 5(2) relates solely to officials changing category through an internal competition. Consequently, where an official has passed an open competition rather than an internal competition, Article 5(2) of Annex XIII to the Staff Regulations does not apply to him.

In Article 12(3) of Annex XIII to the Staff Regulations, which concerns successful candidates in open competitions ‘recruited between 1 May 2004 and 30 April 2006’, the word ‘recruited’ has a precise meaning and must be interpreted as covering officials who entered into service between 1 May 2004 and 30 April 2006 in a post that was open to them as a consequence of their inclusion, before 1 May 2006, in a list of suitable candidates resulting from a competition published under the old Staff Regulations. Consequently, that provision is applicable for determining the classification of a person who was already an official when he became a successful candidate in an open competition.

(see paras 56, 59, 60, 65-66)

2. The principle of equality cannot hinder the legislature’s freedom to make at any time such amendments to the Staff Regulations as it considers to be consistent with the interests of the service, even if those amendments are less favourable.

Successful candidates in an open competition may be treated differently according to whether or not the date of their appointment is after the entry into force of a reform of the Staff Regulations introduced by the European Union legislature, because such differentiation is objectively justified by the need to preserve the legislature’s freedom to make at any time such amendments to the Staff Regulations as it considers to be consistent with the interests of the service. Two officials who are reclassified in a higher grade under different rules of the Staff Regulations are, accordingly, in different situations.

(see paras 91, 96-97)

See:

C-443/07 P Centeno Mediavilla and Others v Commission [2008] ECR I-10945, para. 79; C-496/08 P Angé Serrano v Parliament [2010] ECR I-1793, para. 108

T-58/05 Centeno Mediavilla and Others v Commission [2007] ECR II-2523, para. 86