JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (Second Chamber)

20 September 2007

Case F-111/06

Nikos Giannopoulos

v

Council of the European Union

(Civil service – Officials – Recruitment – Appointment in grade – Request for reclassification – Equal treatment – Experience – Obligation to state the reasons on which the decision is based – New fact – Admissibility)

Application: brought under Articles 236 EC and 152 EA, in which Mr Giannopoulos seeks, in particular, annulment of the decision of the Council appointing authority of 29 November 2005 rejecting his request under Article 90(1) of the Staff Regulations to be reclassified in grade, together with payment of damages.

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

Summary

1. Officials – Actions – Prior administrative complaint – Time-limits – Claim barred by lapse of time – Reopening – Condition

(Staff Regulations, Arts 90 and 91)

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

(Staff Regulations, Art. 31(2))

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

(Staff Regulations, Arts 5 and 31(2))

4. Officials – Recruitment – Decision appointing in grade – Obligation to state the reasons on which the decision is based – Scope

(Staff Regulations, Arts 25, second para., and 31)

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

(Staff Regulations, Arts 4d(1) and 31(2))

1. Although Article 90(1) of the Staff Regulations provides that any official may request the appointing authority to take a decision relating to him, that right does not allow an official to set aside the time-limits laid down in Articles 90 and 91 of the Staff Regulations for the lodging of a complaint and an appeal by indirectly calling in question by means of a request a previous decision which has not been challenged within the period prescribed. Only the existence of material new facts may justify the submission of a request for a review of such a decision.

That applies with regard to a request from an official for a review of the classification he was given when he became an established official, where the administration has, prior to that request, reviewed the official’s file, together with the files of other officials whose classification had also become definitive, with a view to reclassifying them, but without having communicated that information to the official concerned. That fact is the reason why, in accordance with the principle of access to the courts, the Tribunal may review the validity of the refusal to reclassify the applicant.

(see paras 28, 31)

2. The exceptional qualifications which permit the application of Article 31(2) of the Staff Regulations must be assessed, not by comparison with the population as a whole, but in relation to the average level of qualification of successful candidates in similar competitions, who represent a group of people who are already very rigorously selected in accordance with the requirements of Article 27 of the Staff Regulations.

As regards the duration of a newly recruited official’s professional experience, the fact that a person can claim many years of professional experience does not, in itself, confer on that person the right to be appointed to the higher grade in a career bracket. The mere fact that that experience was greater than the minimum required to apply for the competition in which the official was successful is not sufficient to prove that that experience was of exceptional duration, which must be assessed in comparison with the duration of professional experience of other successful candidates in competitions with comparable selection procedures. In any event, even if the official’s professional experience were to be regarded as of exceptional duration, that assessment would not confer on him the right to be classified in the higher grade of his career bracket. Even if a newly recruited official meets the conditions set out in Article 31(2) of the Staff Regulations for eligibility to be classified in the higher grade of his career bracket, that does not give him a subjective right to such a classification. That assessment applies all the more to an official who does not meet all the criteria considered by the appointing authority when assessing whether he has exceptional qualifications.

As for the quality of the professional experience, it must be assessed not in the abstract, but solely in terms of the requirements of the post conferred on the official concerned when he entered the service.

(see paras 57, 60, 62-64)

See:

C-298/93 P Klinke v Court of Justice [1994] ECR I‑3009, para. 30

T-12/97 Barnett v Commission [1997] ECR-SC I‑A‑313 and II‑863, para. 50; T-203/97 Forvass v Commission [1999] ECR-SC I‑A‑129 and II‑705, para. 49; T-381/00 Wasmeier v Commission [2002] ECR-SC I‑A‑125 and II‑677, paras 56, 57, 65 and 125; T-6/02 Platte v Commission [2002] ECR-SC I‑A‑189 and II‑973, para. 38; T‑133/02 Chawdhry v Commission [2003] ECR-SC I‑A‑329 and II‑1617, para. 102; T-145/04 Righini v Commission [2005] ECR-SC I‑A‑349 and II‑1547, para. 92; T-411/03 Herbillon v Commission [2006] ECR-SC I-A-2-45 and II-A-2-193, para. 62; T-429/03 Valero Jordana v Commission [2006] ECR-SC I-A-2-51 and II-A-2-217, paras 89 and 91; judgment of 10 May 2006 in T‑331/04 R v Commission, not published in the ECR, paras 72 and 74

F-16/05 Falcione v Commission [2006] ECR-SC I-A-1-3 and II-A-1-7, paras 55 and 56

3. The possibility of classifying a specially qualified candidate for the European civil service at the higher grade in his career bracket, because of the specific needs of the service, is intended to enable the institution concerned, in its capacity as an employer, to secure the services of a person who, in the context of the labour market, may well be sought after by many other potential employers and therefore be lost to the institution. In any event, Article 31(2) of the Staff Regulations requires the qualifications of the person concerned to be compared with the demands of the post to which he was assigned as an official when he was recruited.

Under those circumstances, a newly recruited official can prove that his institution disregarded the specific interests of the service only if the notice of competition in which he was successful, the vacancy notice for his first post or the nature of the duties which he actually performed in that post contained information supporting his classification in the higher grade of his career bracket.

In that regard, the fact that, at a given point, there was an increased need within his institution for officials specialising in the newly recruited official’s field does not, in itself, lead to the conclusion that that institution encountered particular difficulties in recruiting suitable staff to perform the tasks in question.

(see paras 67-69, 71)

See:

T-55/03 Brendel v Commission [2004] ECR-SC I‑A‑311 and II‑1437, para. 112; R v Commission, paras 36 and 39

4. Although it is regrettable, in terms of its duty of sound administration, that the administration did not consider it necessary to inform the official that his classification in grade had been reviewed by the competent departments with a view to his possible reclassification in the higher grade of his career bracket, that fact does not constitute an infringement of the appointing authority’s obligation to state reasons for its decision refusing the review requested by the official concerned, where that decision clearly states the criteria and factors on which the authority based its assessment of the exceptional nature of the applicant’s training and professional experience. In view of the appointing authority’s wide discretion, such a statement of reasons allows the applicant to know the particular, relevant reason for the authority’s refusal to classify him in the higher grade. In order to satisfy the obligation to state reasons, the appointing authority is not required to specify, in addition, the type of training and the duration of experience necessary in order to be granted the additional grade requested by the applicant, which are examined on a case-by-case basis.

(see para. 84)

5. The assessment of an official’s exceptional qualifications for the purpose of his classification in grade cannot be made in the abstract, but must take account of the post for which he is recruited. The Community judicature cannot evaluate an allegation of infringement of the principle of equal treatment by assessing in detail the qualifications of comparable candidates, which could lead it to assume the role of the appointing authority, thereby failing to have regard to the wide discretion which that authority enjoys. Furthermore, the nature of the case-by-case assessment carried out in accordance with Article 31(2) of the Staff Regulations means that, in principle, an official cannot reasonably rely on an infringement of that principle.

(see paras 94-95)

See:

Chawdhry v Commission, para. 102; Brendel v Commission, para. 129; R v Commission, para. 104