JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

30 January 2013

Case F‑20/06 RENV

Patrizia De Luca

v

European Commission

(Civil service — Officials — Case referred back to the Tribunal after judgment has been set aside — Appointment — Official advancing to a higher function group by open competition — Candidate placed on a reserve list before 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 rules — Article 12(3) of Annex XIII to the Staff Regulations)

Re: Referral back to the Tribunal of Case F‑20/06, initially brought under Articles 236 EC and 152 EA, by judgment of the General Court of the European Union of 14 December 2011 in Case T‑563/10 P De Luca v Commission (‘the referral judgment’), setting aside the judgment of the Tribunal of 30 September 2010 in Case F‑20/06 De Luca v Commission (‘De Luca’), determining the action, received at the Registry of the Tribunal on 22 February 2006, whereby Ms De Luca, a successful candidate in a competition before 1 May 2004, sought annulment of the decision of the Commission of the European Communities of 23 February 2005 appointing her as an administrator, in that that decision classified her in Grade A*9, step 2 (‘the contested decision’).

Held: The action is rejected. Ms De Luca and the Commission are ordered to bear their own costs in both sets of proceedings before the Tribunal. The Commission is ordered to bear its own costs and to pay those borne by the applicant in the proceedings before the General Court of the European Union. The Council of the European Union is ordered to bear its own costs.

Summary

Officials — Careers — Change of category or service following participation in an open competition — Reclassification in grade — Applicable rules — Successful candidates in a competition placed on a list of suitable candidates before 30 April 2006 — Application of Article 12(3) of Annex XIII to the Staff Regulations — Conditions

(Staff Regulations of Officials, Annex VIII, Art. 12(3))

Since the Staff Regulations contain no provision governing the classification in grade of an official who is appointed to another post when he has been a successful candidate in an open competition allowing him to advance to posts at a level that is prima facie higher than the post which he held, it is appropriate to apply by analogy the case-law on the reclassification in step of an official in active service appointed to another post when he has been successful in an open competition. Consequently, in order to decide whether Article 12(3) of Annex XIII to the Staff Regulations, on the classification of officials placed on a list of suitable candidates before 1 May 2006 and recruited between 1 May 2004 and 30 April 2006, is applicable to the situation of an official in active service who has been appointed to another post after he has been successful in an open competition, it is appropriate to consider, in accordance with that case-law, whether the classification in the new grade, a grade below that which he already held and conferred on him by the effect of that provision, conferred on him a certain interest or advantage in terms of his career development and/or remuneration, the benefit of which was, in principle, confined to officials recruited between 1 May 2004 and 30 April 2006.

In order to determine whether or not the application of Article 12(3) of Annex XIII to the Staff Regulations would have been advantageous in the case of the classification of an official in a lower grade than that which he already held, the Civil Service Tribunal must, more specifically, ascertain whether the recruitment method organised by that article offered the official a certain interest or advantage in terms of career development and/or remuneration capable of offsetting, in his case, the fact that his classification was fixed at a lower grade than that which he already held. It is therefore necessary to compare the career and salary that the official might have expected on the basis of the higher grade, which he already held, with the career and salary that he may have following his appointment to the lower grade.

The comparison of careers and salaries is all the more essential in the terms described above because if the decision appointing the official in a different post offered him a certain interest or a certain advantage in terms of career or remuneration by comparison with the previous situation, that would be sufficient, in spite of the redeployment of grades following the reform of the Staff Regulations, for the general objective of the Staff Regulations of guaranteeing to officials continuity in the development of their professional life to be satisfied.

In that regard, it would be sufficient that the classification of the official in the lower grade was of interest or advantageous solely in terms of remuneration for the application, by analogy, of Article 12(3) of Annex XIII to the Staff Regulations to have been legally permissible.

(see paras 47-49, 53)