JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

20 March 2012

Christian Kurrer and Others

v

European Commission

‛Appeal — Civil service — Officials — Appointment — Classification in grade — Transitional rules for classification in grade on recruitment — Article 5(4) of Annex XIII to the Staff Regulations — Principle of equal treatment’

Appeals:

against the judgments of the European Union Civil Service Tribunal (Second Chamber) of 8 July 2010 in Case F‑126/06 Magazzu v Commission, Case F‑130/06 Sotgia v Commission, and Case F‑139/06 Kurrer v Commission, seeking to have those judgments set aside.

Held:

The appeals are dismissed. Mr Christian Kurrer, Mr Salvatore Magazzu and Mr Stefano Sotgia are to bear their own costs and to pay those incurred by the European Commission in the present proceedings. The Council of the European Union is to bear its own costs.

Summary

By virtue of the clear and express provisions of Article 5(4) of Annex XIII to the Staff Regulations, both a competition for transfer into a higher category and an internal competition must enable a successful candidate to change categories, which cannot normally be achieved by succeeding in a general competition. A strict literal interpretation of that provision dictates the view, firstly, that it does not relate to temporary staff who have succeeded in an open competition, as such a competition cannot normally lead to recruitment with transfer to a new category, and secondly, that its wording does not leave any discretion to the administration to interpret and apply it differently. Moreover, a purposive and contextual interpretation of the provision does not detract from that assessment. The objective pursued in limiting the benefit of this exceptional transitional rule to temporary staff who had succeeded either in a competition for transfer into a new category, or an internal competition, was to encourage staff to participate in such a competition in order to become established officials while simultaneously obtaining a transfer into another category. By contrast, an open competition is open to all interested parties, including those external to the institutions, and is thus not designed to combine recruitment and establishment with transfer into a new category. In those circumstances, there is no reason to think that the legislature wished to extend the benefit of Article 5(4) of Annex XIII to the regulations to temporary staff who have succeeded in an open competition. (see paras 46, 48-49) See: 176/73 Van Belle v Council [1974] ECR 1361, para. 8 T‑237/00 Reynolds v Parliament [2005] ECR-SC I‑A‑385 and II‑1731, para. 101

There is a breach of the principle of equal treatment where two categories of persons whose factual and legal situations are not essentially different receive different treatment or where different situations are treated in the same way. Thus, staff placed in identical situations must be subject to the same rules and the Union legislature must take account of objective differences in the circumstances or situations in which those concerned find themselves. Furthermore, in a matter involving the exercise of discretion, such as the making of transitional rules intended to ensure a fair transition from an earlier regulatory regime to a new regime, that principle is disregarded where the institution makes a differentiation which is arbitrary or manifestly inappropriate in relation to the objective pursued by the regulations in question. Moreover, the question of whether the general principle of equal treatment has been complied with is a question of law, and accordingly the General Court has jurisdiction to verify the comparability of the various situations in issue. In order to make a correct determination as to their comparability, it is necessary to have regard to the objective pursued by the relevant regulations. In this regard, temporary staff who are candidates in an open competition held in order to fill posts in the category to which they already belong are not in the same position as successful candidates in a competition the purpose or effect of which is to enable them to transfer to a higher category and thus to make decisive progress in their career. The fact that the legislature, in adopting Article 5(4) of Annex XIII to the Staff Regulations, ensured that temporary staff in the latter position may, as an exception, be appointed as probationary officials in the grade they held in their former category, does not have the effect of applying an arbitrary or manifestly inappropriate distinction, in the light of the objective pursued by the legislature, compared with temporary staff recruited as officials, following an open competition, in the category to which they previously belonged. (see paras 54-56) See: C‑227/04 P Lindorfer v Council [2007] ECR I‑6767, para. 64; C‑127/07 Arcelor Atlantique et Lorraine and Others [2008] ECR I‑9895, para. 26; C‑176/09 Luxembourg v Parliament and Council [2011] ECR I‑3727, para. 32 T‑359/07 P to T‑361/07 Commission v Bertolete and Others [2009] ECR-SC I‑B‑1‑5 and II‑B‑1‑21, para. 38 and the case‑law cited, paras 39, 43 et seq.