JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

29 September 2011 ( )

(Civil service – Appointment – Recruitment and simultaneous transfer to another institution – Grading under new, less favourable rules – Admissibility of the action – Interest in bringing an action – Action out of time)

In Case F-93/05,

ACTION under Articles 236 EC and 152 EA,

Harald Mische, official of the European Commission, residing in Brussels (Belgium), represented initially by G. Vandersanden, and L. Levi, lawyers, and subsequently by R. Holland, D. Maluch and J. Mische, lawyers,

applicant,

v

European Parliament, represented by K. Zejdová and L.G. Knudsen, acting as Agents,

defendant,

supported by

Council of the European Union, represented by M. Arpio Santacruz and M. Simm, acting as Agents,

intervener,

THE CIVIL SERVICE TRIBUNAL (Second Chamber),

composed of P. Mahoney, President, H. Tagaras and S. Van Raepenbusch (Rapporteur), Judge,

Registrar: J. Tomac, Administrator,

having regard to the written procedure and further to the hearing on 12 April 2011,

gives the following

Judgment

1 By application received at the Registry of the Court of First Instance on 26 September 2005 by fax (the original being lodged on 29 September 2005), Mr Mische seeks, first, annulment of the decision of the European Parliament of 4 October 2004 in so far as it determines his grade to be A*6, step 1, second, reinstatement of all his rights deriving from the correct grading and, lastly, the award of damages.

Legal context

2 Article 29(1) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) provides:

‘Before filling a vacant post in an institution, the Appointing Authority shall first consider:

(a) whether the post can be filled by:

(i) transfer, or

(ii) appointment in accordance with Article 45a, or

(iii) promotion

within the institution;

(b) whether requests for transfer have been received from officials of the same grade in other institutions and/or whether to hold a competition internal to the institution, which shall be open only to officials and temporary staff as defined in Article 2 of the Conditions of Employment of other servants of the European Communities;

and then follow the procedure for competitions on the basis either of qualifications or of tests, or of both qualifications and tests.

Annex III lays down the competition procedure.

The procedure may likewise be followed for the purpose of constituting a reserve for future recruitment.’

Background to the dispute

3 On 23 May 2002 the European Parliament published in the Official Journal of the European Communities (OJ 2002 C 120 A, p. 11) Notice of Open Competition PE/96/A to constitute a reserve of German-language administrators in career bracket A7/A6 (‘Competition PE/96/A’).

4 The applicant entered that competition and his name was included on the reserve list adopted on 27 May 2004. In the meantime, namely on 1 November 2002, he had been recruited to the Commission’s Competition Directorate-General (DG) as a member of the temporary staff at grade A 7, step 2. From 1 May 2004, he worked as a member of the auxiliary staff in that Directorate-General.

5 On 25 June 2004 DG Competition published a notice of vacancy for a category A post, for which the applicant applied. It is not disputed that that Directorate-General requested the recruitment of the applicant to the post in question on 22 July 2004 and that, by letter of 19 August 2004, the Commission asked the Parliament to appoint him as a probationary official and transfer him simultaneously. In that context, the Commission’s DG Personnel and Administration and the applicant exchanged e-mails in September 2004 concerning the grading of the applicant; the Directorate-General envisaged his recruitment at grade A*6, step 2, as of 16 November 2004.

6 By decision of 4 October 2004, which took effect on 16 November 2004, the Parliament appointed the applicant as a probationary official at grade A*6, step 1, and transferred him to the Commission.

7 By letter of 8 November 2004, the Commission informed the applicant that the Parliament had agreed to his recruitment and simultaneous transfer and, accordingly, officially offered him a post as a probationary official in DG Competition, at grade A*6, step 2, on a basic salary of EUR 4 492.73. In the same letter, the Commission noted that the applicant, who was still working in that Directorate General, was in a position to continue working under his new status from 16 November 2004 and confirmed that he would be considered to be an official of the Commission from that date.

8 By decision of 11 November 2004, which took effect on 16 November 2004, the Commission took the formal decision to assign the applicant to a post as an administrator (probationary official) at grade A*6, step 2, in DG Competition.

9 The Commission notified the applicant of its decision of 11 November 2004 on 24 November 2004 and attached to that decision a copy of the decision of the Parliament of 4 October 2004 appointing him as a probationary official and transferring him to the Commission.

10 By letter of 23 February 2005, received by the administration on 25 February 2005, the applicant lodged a complaint with the Parliament against the decision of 4 October 2004. The Parliament rejected that complaint on 10 June 2005.

11 In addition, after lodging a complaint with the Commission on 18 February 2005 against the decision of 11 November 2004, which was rejected on 13 April 2005, the applicant brought an action against that decision, which was registered by the Court of First Instance as Case T-288/05 before being transferred to the Civil Service Tribunal where it was registered as Case F-70/05.

Forms of order sought and procedure

12 The applicant claims that the Tribunal should:

– annul the Parliament’s decision of 4 October 2004 in so far as it determined his grading by ‘reinstating all his rights as deriving from … a legal and regular grading at … A7’, step 3… or its equivalent;

– ‘order [the Parliament] to pay damages with default interest to make good the damage caused to his career and further damages in the form of a legal … salary or, in the alternative, order a reduction in his pension contributions’;

– order the Parliament to pay the costs.

13 The Parliament contends that the Tribunal should:

– dismiss the application as inadmissible in its entirety;

– in the alternative, dismiss the application as partially inadmissible;

– dismiss the application as unfounded;

– award costs in accordance with Article 88 of the Rules of Procedure of the General Court.

14 By letter received at the Registry of the Court of First Instance on 27 October 2005, the Council of the European Union applied for leave to intervene in this case in support of the forms of order sought by the Parliament. The President of the Fourth Chamber of the Court of First Instance granted such leave by order of 30 November 2005.

15 By order of 21 December 2005, the Court of First Instance, pursuant to Article 3(3) of Council Decision 2004/752/EC, Euratom of 2 November 2004 establishing the European Union Civil Service Tribunal (OJ 2004 L 333, p. 7), referred the present case to the Tribunal. The action was registered at the Registry of the Tribunal as Case F-93/05.

16 By its statement in intervention on the merits of the case, received at the Registry of the Tribunal on 27 February 2006, the Council contends that the Tribunal should dismiss the action.

17 By order of 14 March 2006, the President of the Second Chamber of the Tribunal decided to stay the proceedings pending the Court of First Instance’s decision disposing of Case T-58/05 Centeno Mediavilla and Others v Commission.

18 The Court of First Instance delivered its judgment in Case T-58/05 Centeno Mediavilla and Others v Commission on 11 July 2007 and that case was the subject of an appeal to the Court of Justice of the European Communities. The appeal was dismissed by the Court in its judgment of 22 December 2008 in Case C-443/07 P Centeno Mediavilla and Others v Commission.

19 By order of the President of the Second Chamber of 31 March 2011 the present case and Case F-70/05 Mische v Commission were joined for the purposes of the oral procedure.

20 The parties were requested in the preparatory report for the hearing to concentrate their observations (i) on the question whether the action has a purpose, given that, as the Parliament pointed out in its defence in the present case, in their pleadings concerning Case F-70/05 the applicant and the Commission take the view that the Commission is the institution which determined the grade of the applicant, and (ii) on the question whether the action is out of time.

21 At the hearing, the parties held an exchange of arguments as to whether it was the Commission or the Parliament which took the decision to determine the applicant’s grade as A*6.

Law

22 It is clear from Article 29(1)(b) of the Staff Regulations that before filling a vacant post in an institution the appointing authority for that institution must first consider whether it is possible to transfer officials of the same grade from other institutions, after considering whether the post concerned can be filled by transfer, certification or promotion.

23 In the present case, it is apparent from the statement of the facts (paragraph 4 et seq. above) that the applicant was recruited by the Parliament, at the express request of the Commission, solely in order to fill, in accordance with Article 29(1)(b) of the Staff Regulations, a vacant post within DG Competition in which he was already working. Moreover, it appears that the Commission took a particularly active part in determining his grade and step and in setting his actual date of recruitment as a probationary official. Lastly, it should be noted that the Commission took the initiative to notify the person concerned of its decision of 11 November 2004, together with that of the Parliament of 4 October 2004, on 24 November 2004, as the applicant concedes in his document initiating the proceedings.

24 It follows from the above that, at least so far as the applicant’s grade and step are concerned, the Parliament’s decision of 4 October 2004 is only formally attributable to it. That classification was, in reality, determined by the Commission, since the latter had specified in its decision of 11 November 2004 the grading of the post to which the person concerned was transferred and altered his step within that grade. The Commission’s decision of 11 November 2004 thus replaced, in those respects, the Parliament’s decision of 4 October 2004, without that decision having been implemented in that regard since the two decisions entered into force on the same day and the applicant had not worked for the Parliament. Moreover, the action in Case F-70/05 brought against the Commission’s decision of 11 November 2004 is dismissed by a judgment delivered today.

25 It should also be noted that the applicant would not have been transferred to DG Competition unless the Parliament had determined his grade to be the same as that determined by the Commission.

26 Lastly, it must be stated that the Parliament is not claiming effective responsibility for recruitment and classification of the applicant, but leaves that issue to be decided by the Tribunal, after noting that the applicant and the Commission, in their pleadings in Case F-70/05, consider that the Commission is the authority which took the decision in that regard.

27 In those circumstances, it is to be pointed out that the purpose of the action must exist at the time at which the action is brought, failing which it will be inadmissible, and must continue until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be liable, if successful, to procure an advantage to the party bringing it (judgment of 17 April 2008 in Joined Cases C-373/06 P, C-379/06 P and C-382/06 P Flaherty and Others v Commission, paragraph 25). It is to be inferred from the circumstances mentioned above that those conditions are not met in the present case.

28 Moreover, the action is inadmissible since the complaint which preceded it was lodged out of time.

29 In that connection, it is to be observed that the Parliament’s decision of 4 October 2004 was attached to the Commission’s notification of its own decision of 11 November 2004, that that notification took place on 24 November 2005 and that the complaint against the abovementioned decision of the Parliament was lodged on 25 February 2005, a complaint being ‘lodged’ not when it is sent to an institution, but when it is received by it (see, to that effect, judgment of 26 November 1981 in Case 195/80 Michel v Parliament, paragraphs 8 and 13, and of 13 December 2007 in Case F-73/06 Van Neyghem v Commission, paragraph 43). With regard to the date on which the three-month time-limit expires, according to established case-law the period provided for in Article 90(2) of the Staff Regulations expires at the end of the day which, in the third month, bears the same number as the day of the event or measure from which time was set running (see, to that effect, judgment of 15 January 1987 in Case 152/85 Misset v Council, paragraphs 8 and 9, and Van Neyghem v Commission, paragraph 45). Thus, according to that case-law, the period of three months expired in this case on Thursday, 24 February 2005, that is to say, one day before the complaint was lodged.

30 That conclusion is not undermined by the fact that the applicant received the Parliament’s decision of 4 October 2004 through the intermediary of the Commission. Since Article 90(2) of the Staff Regulations provides that although the period of three months normally runs from ‘the date of notification of the decision to the person concerned’, it starts ‘in no case later than the date on which the latter received such notification’, that wording must be interpreted as meaning that the period runs from the day on which the official became aware of the reasoning and content of the operative part of the decision (judgment of 3 June 1997 in Case T-196/95 H v Commission, paragraph 31), which in the present case was on 24 November 2004.

31 In the light of all the foregoing, it must be held that the applicant’s first head of claim, seeking annulment of the Parliament’s decision of 4 October 2004, determining his grade to be A*6, step 1, is inadmissible.

32 In consequence, the other heads of claim, which are all closely linked to the first, must also be held to be inadmissible.

Costs

33 Under Article 122 of the Rules of Procedure, the provisions of Title 2, Chapter 8, of those Rules, on costs, are to apply only to cases brought before the Tribunal from the date on which those Rules of Procedure entered into force, namely 1 November 2007. The relevant provisions of the Rules of Procedure of the General Court on the subject shall continue to apply mutatis mutandis to cases pending before the Tribunal before that date.

34 Under Article 87(2) of the Rules of Procedure of the General Court, the unsuccessful party is to pay the costs if they have been applied for in the successful party’s pleadings. However, Article 88 of those Rules provides that in proceedings between the Union and its servants the institutions are to bear their own costs.

35 Under the first paragraph of Article 87(4) of the Rules of Procedure of the General Court, institutions which intervene in the proceedings are to bear their own costs.

36 Since the applicant has been unsuccessful, each party must be ordered to bear its own costs.

On those grounds,

THE CIVIL SERVICE TRIBUNAL (Second Chamber)

hereby:

1. Dismisses the action;

2. Orders each party to bear its own costs;

3. Orders the Council of the European Union, the intervener, to bear its own costs.

Mahoney Tagaras Van Raepenbusch

Delivered in open court in Luxembourg on 29 September 2011.

W. Hakenberg P. Mahoney