JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

29 September 2011





Case F-9/07





Pilar Angé Serrano

v

European Parliament

(Civil service – Officials – Change of category under the old Staff Regulations – Transitional rules for grading as at 1 May 2004 – Decision of the Bureau of the European Parliament of 13 February 2006 – Reclassification on the basis of the salary of officials receiving a compensatory payment – Applicable multiplier – Loss of promotion points – Claim for compensation)

Application: brought under Articles 236 EC and 152 EA, in which Ms Angé Serrano seeks annulment of the Parliament’s decision of 20 March 2006 regrading her at grade B*6, step 8, from 1 May 2004, together with an order that the Parliament pay her damages for the material and non-material harm she claims to have suffered.

Held: The action is dismissed. Each party is ordered to bear its own costs. The Council, which intervened, is ordered to bear its own costs.

Summary

1. Procedure – Res judicata – Scope

2. Officials – Careers – Introduction of a new structure by Regulation No 723/2004 – Breach of the principle of equal treatment – None

(Art. 336 TFEU; Staff Regulations, Annex XIII, Arts 2 and 10; Council Regulation No 723/2004)

3. Officials – Administration’s duty to have regard for the interests of officials – Scope – Limits

1. In order to ensure both stability of the law and legal relations and the sound administration of justice, it is important that judicial decisions which have become definitive after all available rights of appeal have been exhausted or after expiry of the time-limits provided for in that connection can no longer be called in question.

A judgment’s status as res judicata is such as to bar the admissibility of an action if the proceedings disposed of by the judgment in question were between the same parties and had the same purpose and the same legal basis. However, the principle of res judicata extends only to matters of fact and law actually or necessarily settled by the judicial decision in question.

(see paras 41-43)

See:

19 February 1991, C-281/89 Italy v Commission, para. 14; 30 September 2003, C-224/01 Köbler, para. 38; 28 November 1996, C-277/95 P Lenz v Commission, para. 50; 16 March 2006, C-234/04 Kapferer, para. 20

25 June 2010, T-66/01 Imperial Chemical Industries v Commission, paras 196 and 197 and the case-law cited therein

2. Officials who have passed an internal competition for change of category under the old Staff Regulations are not in the same factual and legal situation as officials who have not passed such a competition. The former had, under the rules of the Staff Regulations, better career prospects than the latter, account of which has been taken in the transitional provisions of Annex XIII to the new Staff Regulations.

Since, by adopting new Staff Regulations, the legislature remodelled the entire system of careers then in force, it could not be required to reproduce identically the hierarchy of grades under the old Staff Regulations, without adversely affecting the possibility that it has of making alterations to the Staff Regulations. In that context, the comparison of hierarchical ranks before and after the reform of the Staff Regulations is not, in itself, conclusive for assessing whether the new Staff Regulations comply with the principle of equal treatment.

The new Staff Regulations make a distinction between the careers of officials belonging, under the old Staff Regulations, to various grades in the hierarchy and ensure, for those who have passed a competition for change of category, different career prospects from those of officials who have not passed the same competition. In particular, the transitional arrangements and Article 10(1) and (2) of Annex XIII to the Staff Regulations especially, ensure, through the rule on the blocking of career advancement and the rule on fixing rates of promotion for the different grades, better career prospects for officials in higher grades under the arrangements of the old Staff Regulations and, accordingly, for those who have advanced in the grades after passing a competition for change of category.

(see paras 64, 66, 67)

See:

18 September 2008, T-47/05 Angé Serrano, paras 145-147

3. The duty to have regard for the interests of officials and the principle of sound administration imply in particular that when the competent authority takes a decision concerning the situation of an official, it should take into consideration all the factors which may affect its decision and that when doing so it should take into account not only the interests of the service but also those of the official concerned.

That duty to have regard for the interests of the person concerned cannot under any circumstances require the administration to act against the applicable provisions. In particular it cannot lead the administration to give a provision of Union law an effect which would go against the clear and precise terms of that provision. Consequently, an applicant cannot rely on the administration’s duty to have regard for his interests in order to obtain advantages which the Staff Regulations do not allow him to be granted.

(see paras 88, 89)

See:

2 March 2004, T-14/03 Di Marzio v Commission, paras 99 and 100 and the case-law cited therein