JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber)

4 March 1998

Case T-146/96

Maria da Graça De Abreu

v

Court of Justice of the European Communities

‛Probationary officials — Appointment of a former member of the temporary staff — Maintenance of seniority in step — Principle of equal treatment — Objection of illegality’

Full text in French II-281

Application for:

annulment of the decision of the Court of Justice of 5 December 1995 appointing the applicant as an official and assigning her to the post of typist, in so far as that decision classified her in Grade C 4, step 3

Decision:

Annulment.

Abstract of the Judgment

The applicant was employed as a member of the temporary staff, within the meaning of Article 2(c) of the conditions of employment of other servants of the European Communities, in the chambers of a Judge of the Court of Justice as a typist in Grade C 3, step 4.

The applicant was a successful candidate in Open Competition EUR/C/22 organised by the Court of Justice and the European Parliament for the recruitment of typists (OJ 1992, C 47 A). After she was included on the reserve list drawn up on 30 September 1992, she was appointed as a probationary official by decision of the appointing authority of 5 December 1995. She was posted to the Translation Directorate but immediately seconded to the abovementioned chambers where she has been employed since then.

The appointing decision classified the applicant in Grade C 4, step 3, pursuant to Article 32 of the Staff Regulations of officials of the European Communities.

The applicant contested her classification in step 3 and lodged a complaint on 1 April 1996. She relied in particular on Article 8 of Council Regulation (EEC, Euratom, ECSC) No 3947/92 of 21 December 1992 amending the Staff Regulations of officials and the conditions of employment of other servants of the European Communities (OJ 1992 L 404, p. 1, hereinafter ‘the regulation at issue’ or ‘the Regulation’), which added a third paragraph to Article 32 of the Staff Regulations as follows:

‘Members of the temporary staff graded in accordance with the grading criteria adopted by the institution shall retain the seniority in the step acquired in that capacity if they are appointed officials in the same grade immediately following the period of temporary service. ’

By decision of 10 June 1996, the Complaints Committee rejected the complaint on the ground, inter alia, that the applicant had not been appointed as an official ‘in the same grade’ immediately following her period of temporary service and that the third paragraph of Article 32 of the Staff Regulations did not therefore apply.

On 24 May 1996 the applicant was appointed as an official with effect from 1 July 1996 and classified in Grade C 4, step 3. On 18 June 1996 she was seconded to the abovementioned chambers, also with effect from 1 July 1996, and classified in Grade C 3, step 5.

Admissibility

The act contested by this action, that is to say, the applicant's classification in step when she was appointed as an official, is covered by a different part of the Staff Regulations than that covering the higher classification accorded to her by virtue of her employment in the chambers on the basis of a secondment under Article 37(a), second indent, of the Staff Regulations. Unlike the scheme applicable to an official assigned to a permanent post, there is a degree of uncertainty attached to such a secondment, in that it may be terminated at any moment at the request of the person to whom the official has been seconded. The applicant therefore runs the risk of being reassigned, at any time, to the contested step of Grade 4 in which she was classified as an official. It follows that, even during the period of her secondment, this classification has a potential and latent adverse effect on the applicant (paragraph 16).

Consequently, the applicant's interest in bringing proceedings did not cease because of her secondment, so that this action must be held admissible (paragraph 17).

The objection that Article 8 of the regulation at issue and Article 32, third paragraph, of the Staff Regulations are unlawful

The admissibility of the objection of illegality

The objection of illegality is a remedy provided forby Article 184 of the EC Treaty and gives any party the right in legal proceedings to challenge the validity of a legislative measure in order to obtain the annulment of a decision addressed to that party which has that measure as its legal basis (paragraph 24).

See: 262/80 Andersen and Others v Parliament [1984] ECR 195, para. 6; 87/77, 130/77, 22/83, 9/84 and 10/84 Salerno and Others v Commission and Council [1985] ECR 2523, para. 36; T-6/92 and T-52/92 Reinan v Commission [1993] ECR II-1047, para. 56; T-64/92 Chavane de Dalmassy and Others v Commission [1994] ECRSC II-723, para. 41

In the present case the provision against which the objection of illegality is raised is not formally the legal basis for the contested decision. That decision was adopted on the basis of Article 32, second paragraph, of the Staff Regulations, and the provision at issue, which the applicant invokes, was not applied by the appointing authority. It is therefore clear that the objection of illegality is directed not against the legislative measure which forms the direct legal basis of the decision adversely affecting the applicant, but rather against one element (‘in the same grade’) of the provision at issue, since the applicant contends that it is solely the fact that she does not satisfy the requirement ofthat element which precludes her from relying on that provision (paragraph 25).

In order to establish whether the objection of illegality directed against that element is covered by Article 184 of the Treaty, regard should be had to the fact that the very wording of that article allows any party to proceed to ‘invoke the inapplicability of [a] regulation’. Furthermore, in view of the need to ensure efficient review by the Community judicature, the scope of application ofthat article must extend to measures which are not in the form of a regulation but which produce similar effects (paragraph 26).

See: 92/78 Simmenthal v Commission [1979] ECR 777, paras 39 to 41

Consequently, an objection of illegality may be directed against any legislative provision which is relevant to the adoption of the administrative decision whose annulment is sought. The test of whether the applicant was ‘in the same grade’, which played a role in the adoption of the contested decision, is such a relevant provision (paragraphs 27 and 29).

There is nothing in principle to preclude part of a legislative measure being declared inapplicable under Article 184 of the Treaty. No distinction should be made in that regard between a complex scheme of rules which is partially invalid on account of the illegality of a particular provision, and, provided that the specific part is severable, a single legislative provision which is partially invalid on account of the illegality of that part. The phrase ‘in the same grade’ can be severed from the third paragraph of Article 32 of the Staff Regulations without that provision thereby ceasing to be capable of producing legal effects (paragraphs 34 and 35).

See: 37/71 J amet v Commission [1972] ECR 483, para. 11

As to infringement of the principle of equal treatment

There is a breach of the principle of equal treatment where two classes of persons, whose factual or legal situations are not essentially different, are treated differently. That principle therefore requires that comparable situations should not be treated differently unless such differentiation is objectively justified (paragraph 53).

See: T-100/92 La Pietra v Commission [1994] ECR-SC II-275, para. 50; T-472/93 Campo Ebro and Others v Council [1995] ECR II-421, para. 82; C-479/93 Francovich [1995] ECR I-3843, para. 23

By reserving the benefit of the system of additional seniority in step - a relatively generous scheme - solely for members of the temporary staff who, irrespective of their merits, are fortuitously in a position in which they may submit their application to participate in a competition for the recruitment of officials in a grade corresponding precisely to their grade at that time, and by excluding any member of the temporary staff assigned to the immediately higher grade, the part of the third paragraph of Article 32 of the Staff Regulations which contains the criterion of ‘in the same grade’ infringes the principle of equal treatment (paragraphs 66 and 71).

Operative part:

The decision of the Court of Justice of 5 December 1995 appointing the applicant to the post of typist in Grade C 4 is annulled, in so far as it classifies her in step 3 of that grade.