ORDER OF THE CIVIL SERVICE TRIBUNAL (First Chamber)

28 September 2011





Case F-42/07





Antonio Prieto

v

European Parliament

(Civil service – Officials – Appointment – Internal competition published before 1 May 2004 – Member of the temporary staff appearing on the list of suitable candidates before 1 May 2006 – Grading – Articles 5(4) and 13(1) of Annex XIII to the Staff Regulations – Secretarial allowance – Action in part clearly inadmissible and in part clearly unfounded)

Application: brought under Articles 236 EC and 152 EA, in which Mr Prieto seeks annulment of the Parliament’s decision of 9 June 2006 appointing him a probationary official from 1 July 2006, in so far as that decision fixes his classification in Grade AST 2, step 3.

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 provisions for classification in grade

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

2. Officials – Recruitment – Assignment of grade and classification in step – Member of the temporary staff appointed as an official

(Staff Regulations, Art. 32; Annex XIII, Art. 5(4); Conditions of Employment of Other Servants, Art. 8)

3. European Union law – Principles – Protection of legitimate expectations – Conditions – Specific assurances given by the administration

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 must be interpreted in such a way as to render it effective, avoiding, as far as possible, any interpretation which would lead to the conclusion that the provision is redundant. It appears that the legislature intended ‘internal competition’ to mean competitions for the establishment of members of the temporary staff, the purpose of which is to allow the recruitment as officials, in compliance with all the provisions of the Staff Regulations governing access to the European civil service, of staff who already have a certain experience of the institution and have demonstrated their ability to occupy the posts to be filled. That interpretation is borne out by the wording of Article 5(2) of Annex XIII to the Staff Regulations, which refers 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 making such a reference given that there is, precisely, no reason to establish as officials staff who already are officials.

For Article 5(4) of Annex XIII to the Staff Regulations to be applicable, there must have been a transfer from a ‘former category’ to a ‘new category’ following either a competition which has led to the establishment of a ‘list of candidates suitable for transfer from one category to another’, or an internal competition for the establishment of members of the temporary staff, which has resulted in 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 48, 49, 54, 55)

See:

6 March 1997, T-40/96 and T-55/96 de Kerros and Kohn-Bergé v Commission, paras 45 and 46; 12 November 1998, T-294/97 Carrasco Benítez v Commission, para. 51

12 May 2010, F-13/09 Peláez Jimeno v Parliament, paras 40, 41, 46 and 47

2. European Union law does not expressly enshrine either a principle of continuity of career or a principle of entitlement to a career. A fortiori, entitlement to reasonable career prospects for a member of the temporary staff is not generally recognised by Union law. The third paragraph of Article 32 of the Staff Regulations merely provides that members of the temporary staff are to retain the seniority in step acquired in that capacity if they are appointed officials

Article 32 of the Staff Regulations and Article 8 of the Conditions of Employment of Other Servants, in the versions in force until 30 April 2004, refer, in respect of temporary staff, to the possibility of continuing their career as an official in accordance with the procedures laid down in the Staff Regulations and, in that case, the seniority in step acquired as a temporary agent is to be preserved if the servant in question is appointed an official in the same grade immediately following the period of temporary service.

The fact remains, however, that, first, the above-mentioned provisions merely ensure that a member of the temporary staff who is appointed an official in the same grade retains his seniority in step, and, second, that continuity of career is ensured in accordance with the procedures laid down in the Staff Regulations. Lastly, it is clear that, apart from Article 5(4) of Annex XIII to the Staff Regulations, which, being a transitional provision, is to be interpreted restrictively, the other provisions of the Staff Regulations do not give members of the temporary staff the possibility of being appointed as officials in the grade they held if that grade was higher than the one published for the competition which they passed.

(see paras 61, 69, 70)

See:

5 March 2008, F-33/07 Toronjo Benitez v Commission, para. 87

3. The right to rely on the protection of legitimate expectations extends to any individual who is in a situation in which it is apparent that the administration has led him to entertain justified expectations by giving him precise assurances in the form of precise, unconditional and consistent information coming from authorised and reliable sources.

However, a person may not plead infringement of the principle unless he has been given precise assurances by the administration.

While it is true that an email from a colleague of the official concerned, which ‘confirms that his classification as an official will be in the same grade/step as he held as a member of the temporary staff’, is precise information, that information does not, however, come from the appointing authority which alone has the power to decide on the classification of officials.

(see paras 98, 99, 101, 102)

See:

19 March 2003, T-273/01 Innova Privat-Akademie v Commission, para. 26; 11 July 2007, T-58/05 Centeno Mediavilla and Others v Commission, para. 96

30 September 2010, F-20/06 De Luca v Commission, para. 102; 28 October 2010, F-85/05 Sørensen v Commission, para. 84