EN
ReportsofCases
ECLI:EU:F:2010 :118 1JUDGMENT O F THE CIVIL SERVICE TRIBUNAL
(Second Ch amber)
30 September 2010
Case F-107/05
Gergely Toth
v
European Comm ission
(Civil service — Member of the temp orary staff — Classification in grade — Grades laid d own in the 
call for applications — Amendment of the rules governing classification o f mem bers of the temp orary 
staff after publication o f the call for applications — Classification in grade under the new, less 
favourable rules — Transitional provisions — Application b y analogy — Article 12(3) of Annex XIII to 
the Staff Regulations — Proportionality — Principle of good ad ministration)
Application:brought u nder Articles 236 E C and 152 E A, in w hich M r Toth s eeks, principally, 
annulment, first, of the Commission’s decision o f 20 July 2005 r ejecting his complaint 
and, second, of the contract which he signed on 17 January 2005 i n so far as it fixes his 
grade; alternatively, an order that the Commission p ay him compe nsation.
Held: The Commission’s decision c lassifying th e applicant at grade A*6 , step 2 , contained in 
Article 3 of the temp orary staff contract signed on 17 January 2005 , is annulled. The 
remainder of the application i s dismissed. The Commission i s ordered to bear its own 
costs and to pay th e costs of th e applicant. T he Council of th e European U nion, 
intervener for the Commission, is ordered to bear its own costs.
Summ ary
1. Officials — Members of the temporary staff — Recruitment — Classification in grade — 
Introduction of a n ew career structure by Regulation N o 723/2004 — Transitional provisions on 
classification in grade
(Staff Regulations, Art. 5(1) to (4); Annex XIII, Art. 12(3); Conditions of Employment of Other Servants, 
Art. 10, second para.; C ouncil Regulation No 723/2004 )
2. European Union law — Transitional provisions — Restrictive interpretation
3. Officials — Principles — Principle of sound administration — Scope
1. In th e absence of any transitional provision i n R egulation N o 723/2004 a mending th e Staff 
Regulations of Officials and th e Conditions of Employment of Other Servants, in order to determine 
the classification in grade of mem bers of the temp orary staff recruited after that regulation c ame i nto
2 ECLI:EU:F:2010 :118SUMM ARY—CASEF-107/05
TOT HvCOMM ISSION
 force on 1 May 2004 on th e basis of calls for applications published before th at da te, and in th e 
absence of any internal provisions applicable for that purpose, only the second paragraph of Article 10 
of the Conditions of Employment may form th e basis for that classification.
It is apparent from A rticle 10 o f the Conditions of Employment th at th e ad ministration h as a 
discretion t o fix th e grade of mem bers of th e temp orary staff. In th e absence of any internal 
provisions on th e subject, that discretion is circumscribed on ly by the obligation to emp loy those staff 
in th e grade announced in th e call for applications and by the need to observe th e structure of the 
categories or function g roups laid d own by Article 5(1) to (4) of the Staff Regulations.
That being so, and where th e grade announced in th e call for applications has been repealed, an 
institution m ay reasonably be guided by th e solution ad opted by th e Community legislature when 
adopting Annex XIII to the Staff Regulations and apply by analogy Article 12(3) of that annex, which 
relates to the classification o f officials included in a l ist of suitable candida tes before 1 May 2006 a nd 
recruited between 1 May 2004 a nd 30 April 2006 .
(see paras 55, 58-59, 69, 73-74, 76)
See:
F-21/06 D a Silva v C omm ission [2007 ] ECR-SC I-A-1-179 a nd II-A-1-981, paras 64, 68 a nd 79
2. A transitional provision m ust, in general, be interpreted restrictively, which is incompatible a p riori 
with an application b y analogy. The restrictive n ature of the interpretation is justified by the fact that 
transitional provisions derogate from pe rmanent rules and principles w hich w ould be dir ectly 
applicable to the situations in question if those provisions did no t exist.
In th e absence of pe rmanent provisions, the ad ministration m ay, however, apply Article 12(3) of 
Annex XIII to the Staff Regulations by analogy without disregarding its transitional nature.
(see paras 71-74)
See:
77/82 Pes keloglou [1983 ] ECR 1085 , paras 11 to 15; C-267/5 and C-268/95 M erck and Beecham [1996 ] ECR I-6285 , 
paras 23 a nd 24; C-462/05 C omm ission v P ortugal [2008 ] ECR I-4183 , paras 53 a nd 54
T-252/97 D ürbeck v C omm ission [2000 ] ECR II- 3031 , paras 66 a nd 70
Da Silva v C omm ission, paras 64, 68 a nd 79
3. In accordance with th e principle of sound ad ministration, the ad ministration i s obliged, where it 
takes a d ecision on th e situation o f an official, to take into consideration a ll th e factors likely to 
determine its decision a nd, on th at basis, infringement of that principle is capable of leading to th e 
annulment of the contested decision.
(see para. 85)
See:
T-11/03 A fari v E CB [2004 ] ECR-SC I-A-65 a nd II-267, para. 42
F-99/06 Ló pez Teruel v O HIM [ 2007 ] ECR-SC I-A-1-147 a nd II-A-1-797, para. 92