EN
ReportsofCases
ECLI:EU:F:2010 :117 1JUDGMENT O F THE CIVIL SERVICE TRIBUNAL
(Second Ch amber)
30 September 2010
Case F-76/05
Javier Torijano M ontero
v
Council of the European Un ion
(Civil service — Officials — Appointment — Candida tes placed on a r eserve list of a c ompe tition 
published prior to the entry into force of the new Staff Regulations — Classification in grade under the 
new, less favourable rules — Article 5 of the Staff Regulations — Article 12 o f Annex XIII to the Staff 
Regulations — Principle of equality — Principle of legitimate expectations — Duty to have regard f or 
the welfare of officials — Proportionality)
Application:brought u nder Articles 236 E C and 152 E A, in w hich M r Torijano M ontero seeks: 
primarily, annulment, first, of th e decision o f th e D eputy Secretary-General of th e 
Council of 17 May 2005 r ejecting his complaint and, second, of th e decision o f 
20 October 2004 a ppointing him a s a p robationary official, in so far a s that decision 
classifies him in grade A*6, step 2; alternatively, an order th at the Council pay him 
damages.
Held: The action is dismissed. Each party is ordered to bear its own costs.
Summ ary
1. Officials — Recruitment — Classification in grade — Introduction of a n ew career structure by 
Regulation No 723/2004 — Transitional provisions for classification in grade
(Staff Regulations, Arts 7(1), 27, first para., a nd 29(1); Annex XIII, Art. 12(3); Council Regulation 
No 723/2004 )
2. Officials — Recruitment — Classification in grade — Introduction of a n ew career structure by 
Regulation No 723/2004 — Transitional provisions for classification in grade
(Staff Regulations, Annex XIII, Art. 12(3); Council Regulation No 723/2004 )
3. Officials — Assignment — Correspondence between grade a nd post — Determination of level at 
which p ost is to be filled
(Staff Regulations, Arts 5(4), 7(1) and 62, first para.; A nnex I; Council Regulation No 723/2004 )
4. Officials — Principles — Administration’s duty to have regard for the interests of officials — 
Principle of sound administration — Limits
(Staff Regulations, Annex XIII, Art. 12(3))
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1. If all further developme nt of legislation i s no t to be prevented, the principle of equality cannot 
hinder the legislature’s freedom to make a t any time s uch amendments to th e Staff Regulations as it 
considers to be consistent with th e interests of the service, eve n if those amendments ar e less 
favourable.
Consequently, the legislature has been able, in th e context of the reform o f the Staff Regulations, to 
provide th at successful candida tes in compe titions who w ould, prior to 1 May 2004 , have b een 
recruited at grade A 7 would no w be appointed at grade A*6 , and at the same t ime t o reduce th e 
salaries relating to those grades.
In taking th at action th e legislature did no t infringe the principle of equality and, in particular, the 
prohibition o f any discrimination on g rounds of age, in so far as the table of corresponding grades 
given in Article 12(3) of Annex XIII to th e Staff Regulations and th e table of basic monthly salaries 
are manifestly unconnected to any taking into account, dir ectly or indirectly, of the age of the pe rsons 
concerned.
Furthermore, in accordance with th e rule flowing from A rticle 7(1), the first paragraph of Article 27 
and A rticle 29(1) of the Staff R egulations, according to w hich th e level of posts is determined 
according to their character, their importance and their scope, regardless of the qualifications of those 
concerned, the table of corresponding grades given in A rticle 12(3) of Annex XIII t o th e Staff 
Regulations distinguishes the basic grade A*5 f rom th e higher grade A*6 i n order to take a ccount of 
the experience required for posts at that level.
It cannot therefore be contended th at it is contrary to A rticle 12(3) of Annex XIII t o th e Staff 
Regulations to take p rofessional experience into consideration; on th e contrary, it requires th e 
appointing authority to take a ccount of th at experience in th e interests of th e service w hen 
determining the level of the posts to be filled.
(see paras 55-59)
See:
C-443/07 P C enteno Mediavilla and Others v C omm ission [2008 ] ECR I-10945 , para. 83
T-121/97 R yan v C ourt of Auditors [1998 ] ECR II- 3885 , paras 98 a nd 104; T-135/05 Ca mpoli v C omm ission [2006 ] 
ECR-SC I- A-2-297 a nd II-A-2-1527 , para. 105; T-58/05 C enteno M ediavilla and Others v C omm ission [2007 ] ECR 
II-2523 , paras 86, 89 a nd 113
F-54/06 D avis and Others v C ouncil [2007 ] ECR-SC I-A-1-165 a nd II-A-1-911, para. 81
2. The right o f emp loyees of the same emp loyer performing work of equal value to receive th e same 
remuneration c onstitutes a s pecific expression o f the general principle of equality, which it is the task 
of the Civil Service Tribunal to ensure is observed. That right is also set out in Article 7 of the 
International Covenant on E conomic, Social and Cultural Rights and in Convention N o 111 o f the 
International Labour Organisation.
However, the principle of equal treatment does no t prevent comparable situations from being treated 
differently if the difference is justified by objective a nd relevant circumstances which th e court can 
review.
As part of the reform o f the Staff Regulations the legislature amended th e correspondence between 
grades and posts, in particular by ad opting Article 12(3) of Annex XIII to the Staff Regulations, since, 
by its very nature, a transitional provision d erogates from certain rules of the Staff Regulations whose 
application is necessarily affected by the change of system.
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That being so, officials who were appointed as officials after the reform of the Staff Regulations came 
into force cannot be regarded as having been in th e same l egal position a s those recruited prior to 
1 May 2004 , whose appointment was governed by the old Staff Regulations.
Thus, in the light of the reform of the grading structure, the legislature did no t infringe the principle of 
equal pay for work of equal value in granting to officials emp loyed after that reform remuneration 
linked to the grade in which th ey were classified pursuant to Article 12(3) of Annex XIII to th e Staff 
Regulations, which is less favourable th an th at relating to th e previous grades in w hich officials 
recruited prior to 1 May 2004 w ere classified.
(see paras 67-71)
See:
C-381/99 B runnhofer [2001 ] ECR I-4961 , para. 28; C-443/07 P Centeno M ediavilla and Others v C omm ission, paras 
77 to 79 a nd 105
T-58/05 C enteno Mediavilla and Others v C omm ission, paras 75 to 80, 114 , 126 a nd 129
3. It follows from A rticle 7(1) in conjunction w ith th e first paragraph of Article 62 o f the Staff 
Regulations, according to which an official is entitled to th e remuneration c arried by his grade and 
step, that, on ce th e grade and th erefore th e salary level of the official have b een determined, he 
cannot be given a p ost which does no t correspond to th at grade. In other words, the grade and 
therefore th e salary to which an official is entitled determine th e type o f work he m ay be given. 
Consequently, the principle th at grade and post must correspond also allows any official to refuse 
assignment to a p ost which does no t correspond to his grade, and th us, in th e end, to refuse duties 
which do no t correspond to his remuneration.
The previous statement is no t invalidated by th e fact that Article 5(4) of the Staff Regulations and 
Annex I th ereto, in th e ve rsion r esulting from R egulation N o 723/2004 a mending th e Staff 
Regulations of Officials and the Conditions of Employment of Other Servants, do no t establish a f ixed 
correspondence between a g iven function a nd a g iven grade. Those provisions do no t alter th e 
principle flowing from A rticle 7(1) of the Staff Regulations, according to which th e level of a p ost to 
be filled must be decided in consideration o f the importance of the tasks conferred on th e function in 
question a nd solely in the interest of the service. They simply me an that the appointing authority is not 
obliged to fix the precise grade of a p ost to be filled in a no tice of vacancy. The appointing authority is 
still required, however, in exercising its broad di scretion, to ensure that the range of grades referred to 
in the no tice of vacancy gives a s ufficient indication o f the importance of the duties involved, and that 
appointment in on e of those grades remains objective in view, in particular, of the importance of the 
duties to be performed.
(see paras 72-73)
See:
T-18/90 Jo ngen v C omm ission [1991 ] ECR II- 187, para. 27; T-56/07 P Comm ission v E conomidis [2008 ] ECR-SC 
I-B-1-31 a nd II-B-1-213, paras 82 to 86; T-572/08 P C omm ission v T raore [2009 ] ECR-SC I-B-1-39 a nd II-B-1-223, 
paras 38, 40 a nd 41
4. The principle of sound ad ministration d oes no t have a b inding force superior to that of a regulation. 
The same a pplies to the ad ministration’s duty to have regard f or the welfare of officials, which reflects 
the balance of reciprocal rights and obligations established by the Staff Regulations in th e relationship 
between the official authority and the civil servants and which must therefore always be circumscribed 
by compliance with th e rules in force.
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Consequently, because of the position h eld in th e hierarchy of no rms by th e principle of sound 
administration a nd the duty to have regard f or the welfare of officials, an official appointed during the 
period between 1 May 2004 a nd 30 April 2006 c annot seek to rely on th em t o obtain a di fferent 
outcome f rom th at ari sing from A rticle 12(3) of Annex XIII t o th e Staff R egulations, since th e 
institution’s powers are circumscribed by that provision.
(see paras 94-95)
See:
T-123/89 C homel v C omm ission [1990 ] ECR II- 131, para. 32; T-65/92 A rauxo-Dumay v C omm ission [1993 ] ECR 
II-597, para. 37; T-97/92 a nd T-111/92 Ri jnoudt and H ocken v C omm ission [1994 ] ECR-SC I- A-159 a nd II-511, 
para. 104; T-135/05 Ca mpoli v C omm ission [2006 ] ECR-SC I-A-2-297 a nd II-A-2-1527 , para. 149
F-43/05 C hassagne v C omm ission [2007 ] ECR-SC I-A-1-27 a nd II-A-1-139, para. 111