JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (Second Chamber)

8 July 2010

Case F-67/06

Christophe Lesniak

v

European Commission

(Civil service — Officials — Appointment — Temporary agents appointed as officials — Candidates placed on a reserve list prior to 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, less favourable rules — Article 5(4) and Article 12(3) of Annex XIII to the Staff Regulations)

Application: brought under Articles 236 EC and 152 EA, in which Mr Lesniak seeks annulment of the Commission decision of 1 August 2005 appointing him as a probationary administrator, in so far as that decision classifies him in grade A*6, step 2.

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

Summary

1. Officials — Recruitment — Appointment in grade — Introduction of a new career structure by Regulation No 723/2004 — Transitional rules on classification in grade

(Staff Regulations, Art. 31(1); Annex XIII, Arts 5(2) and (4), 12(3) and 13(1); Council Regulation No 723/2004)

2. Officials — Recruitment — Appointment in grade — Introduction of a new career structure by Regulation No 723/2004 — Transitional rules on classification in grade

(Staff Regulations, Annex XIII, Art. 5(4); Council Regulation No 723/2004)

1. Article 5(4) of Annex XIII to the Staff Regulations concerns temporary servants ‘whose names appear on the list of candidates suitable for transfer from one category to another’ and those ‘on the list of successful candidates of an internal competition’. Although a competition for change of category is also, by its very nature, an internal competition, the provision in question should be interpreted so as to ensure that it is effective, avoiding, as far as possible, any interpretation that might lead to the conclusion that it is redundant. It is apparent that the legislature intended ‘internal competition’ to mean competitions for the establishment of members of the temporary staff, the purpose of which is to enable the recruitment as officials of staff who already have a certain experience of the institution and have demonstrated their suitability for the posts to be filled, in compliance with all the provisions of the Staff Regulations governing access to the European civil service. That interpretation is borne out by the terms of Article 5(2) of Annex XIII to the Staff Regulations, which refer only to officials whose names appear ‘on the list of candidates suitable for transfer from one category to another’, without mentioning officials ‘on the list of successful candidates of an internal competition’. There would have been no reason for such a mention since there is no need to establish staff who are already officials.

For Article 5(4) of Annex XIII to the Staff Regulations to apply, there must be a transfer from a ‘former category’ to a ‘new category’ following either a competition leading to the drawing up of a ‘list of candidates suitable for transfer from one category to another’ or an internal competition for the establishment of temporary staff, which has led to such a change of category. The legislature has thus, in exercising its broad discretion regarding transitional arrangements and classification criteria, departed from the general rule governing the classification of newly recruited officials set out in Article 31(1) of the Staff Regulations, as supplemented by Article 12(3) or Article 13(1) of Annex XIII to the Staff Regulations, in the case of successful candidates included in a list of suitable candidates before 1 May 2006 and recruited between 1 May 2004 and 30 April 2006 and after 1 May 2006 respectively, by reserving the benefit of classification in a grade other than that stated in the notice of competition for staff recruited as probationary officials who already have experience of the institution and have demonstrated, following the competitions referred to above, their suitability to occupy posts in a higher category.

(see paras 50, 51, 54-55)

See:

T-40/96 and T-55/96 de Kerros and Kohn-Bergé v Commission [1997] ECR-SC I-A-47 and II-135, paras 45 and 46; T-294/97 Carrasco Benítez v Commission [1998] ECR-SC I-A-601 and II-1819, para. 51

2. There is no reason to think, in the absence of any specific indication to that effect, that the legislature intended to extend the benefit of the rule in Article 5(4) of Annex XIII to the Staff Regulations to successful candidates in an open competition, which is intended for candidates outside the EU institutions as well as for officials and other staff, who may also be allowed to apply for such a competition. Furthermore, it is also not necessary to give Article 5(4) of Annex XIII to the Staff Regulations a broad interpretation which also includes successful candidates in an open competition in order to ensure equal treatment between temporary staff who have passed an open or internal competition. Clearly, temporary staff who have passed a 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 those temporary staff 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.

Furthermore, a broad interpretation of Article 5(4) of Annex XIII to the Staff Regulations would be likely to interfere with equality of treatment between successful candidates in the same competition, who, according to the case-law, are in a legal and factual situation that is comparable and must, in the absence of any objective reasons justifying differentiation, be given the same treatment, particularly as regards classification. However, a difference in treatment depending on whether recruitment occurred prior to or after the reform of the Staff Regulations came into force may objectively be justified by the need to preserve the EU legislature’s freedom to make at any time such amendments to the rules of the Staff Regulations as it considers consistent with the interests of the service, even if those rules are less favourable to officials than the former rules.

(see paras 59-61)

See:

176/73 Van Belle v Council [1974] ECR 1361, para. 8; C-443/07 P Centeno Mediavilla and Others v Commission [2008] ECR I-10945, para. 79

T-92/96 Monaco v Parliament [1997] ECR-SC I-A-195 and II-573, para. 55; T-11/03 Afari v ECB [2004] ECR-SC I-A-65 and II-267, para. 65; T-58/05 Centeno Mediavilla and Others v Commission [2007] ECR II-2523, para. 86