JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

26 September 2011





Case F-23/06





Roberto Abad-Villanueva and Others

v

European Commission

(Civil service – Officials – Appointment – Article 5(2) of Annex XIII to the Staff Regulations – Internal competitions for transfer from one category to another published before 1 May 2004 – Candidates appearing on reserve lists before 1 May 2006 – Grading – Maintenance of the multiplication factor – Loss of promotion points)

Application: brought under Articles 236 EC and 152 EA, in which Mr Abad-Villanueva and initially 19 other officials of the Commission, who were successful candidates in internal competitions for transfer from one category to another the notices of which were published before 1 May 2004, seek annulment of the decisions appointing them to a higher category, in so far as those decisions fix their classification in grade, maintain the multiplication factor in respect of them and withdraw their promotion points.

Held: The action is dismissed. Each party is ordered to bear its own costs. The Council, which intervened, is ordered to bear its own costs.

Summary

1. Officials – Careers – Introduction of transitional rules for the change from the old to the new career system for officials – Rules on classification in grade

(Staff Regulations, Art. 35; Annex XIII, Arts 2(1) and 8)

2. Officials – Recruitment – Appointment in grade – Appointment to the grade of the function group set out in the notice of competition – Introduction of a new career structure by Regulation No 723/2004 – Transitional provisions for classification in grade

(Staff Regulations, Art. 31; Annex XIII, Art. 5(2))

3. Officials – Careers – Introduction of transitional rules for the change from the old to the new career system for officials – Rules on classification in grade

(Staff Regulations, Art. 45(2); Annex XIII, Art. 5(2))

4. European Union law – Principles – Protection of legitimate expectations – Conditions

5. 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; Annex XIII, Art. 2(1))

6. Officials – Recruitment – Appointment in grade – Introduction of a new career structure by Regulation No 723/2004 – Transitional provisions for classification in grade

(Staff Regulations; Council Regulation No 723/2004)

7. Officials – Remuneration – Transitional rules applicable after the entry into force of Regulation No 723/2004 – Determination of grade and multiplication factor

(Staff Regulations, Art. 45a; Annex XIII, Arts 2, 5(2), 7 and 8)

8. Officials – Promotion – Change of category following an internal competition – Right to retain promotion points – None

(Staff Regulations, Arts 45, 45a and 110(1); Annex XIII, Art 5)

1. Article 2(1) of Annex XIII to the Staff Regulations provides that, on 1 May 2004, and subject to Article 8 of that Annex, the grades of officials having one of the administrative statuses set out in Article 35 of the Staff Regulations are to be renamed as shown in the table set out in that provision, which specifies for each grade the corresponding new (intermediate) grade.

It is therefore clear from the very wording of Article 2(1) of Annex XIII to the Staff Regulations that that provision relates only to persons who, on 1 May 2004, already had the status of official and were classified in one of the grades shown in the column entitled ‘former grade’.

The grades shown in the table in Article 2(1) of Annex XIII to the Staff Regulations are the former grades of officials in post before 1 May 2004, which were converted into new intermediate grades. Moreover, the sole purpose of Article 2(1) of Annex XIII to the Staff Regulations was to convert, on 1 May 2004, the grades held by those with the status of official on 30 April 2004 in order to bring them into line with the new career structure that would come into force in full on 1 May 2006, and it cannot be ascribed a scope which extends beyond the establishment of that intermediate relationship. The provision was thus not intended to be applied to determine the grading of officials who were appointed to the higher category in 2005, as a result of their status as successful candidates in internal competitions for transfer from one category to another the tests for which were held after 1 May 2004.

(see paras 50-52)

See:

11 July 2007, T-58/05 Centeno Mediavilla and Others v Commission, para. 112

30 September 2010, F-20/06 De Luca v Commission, para. 91, on appeal before the General Court of the European Union, Case T-563/10 P

2. Article 31(1) of the Staff Regulations provides that the successful candidates in a competition are to be appointed to the grade of the function group set out in the notice of the competition they have passed.

Although it is necessarily to be inferred from that provision that successful candidates in internal competitions must be appointed at the grade set out in the notice of the competition as a result of which they have been recruited, it is nevertheless clear that the determination of the importance of the posts to be filled and of the conditions for the appointment of the successful candidates to those posts, which the institution had carried out under the provisions of the old Staff Regulations when it drew up the competition notices, could not extend its effects beyond the date of 1 May 2004 adopted by the Union legislature for the entry into force of the new career structure for officials.

The abolition, as from 1 May 2004, of the grades of classification in the career brackets set out in the notices of the competitions, which results from the introduction of the new careers system, prompted the legislature to adopt the transitional provisions of Annex XIII to the Staff Regulations and in particular Article 5(2), for the purpose of determining the classification in grade of successful candidates in competitions for change of category who were included on reserve lists before 1 May 2006 but were transferred to the new category after 1 May 2004.

It is true that the gradings determined by Article 5(2) of Annex XIII to the Staff Regulations do not correspond to the grades published in notices of internal competition prior to 1 May 2004 and that that provision conflicts with the rule laid down in Article 31 of the Staff Regulations and reproduced from Article 31 of the old Staff Regulations. However, having regard to its purpose, Article 5(2) of Annex XIII to the Staff Regulations constitutes a transitional provision of a special kind which may, as such, derogate, for a given category of officials, from the general rule provided for by Article 31 of the Staff Regulations. It should be remembered that the constraints inherent in changing from one method of management to another, in respect of officials’ careers, may require the administration to depart temporarily, and within certain limits, from the strict application of the permanent rules and principles that normally apply to the situations at issue.

(see paras 53-55, 60)

See:

Centeno Mediavilla and Others v Commission, paras 109 and 110

De Luca v Commission, para. 86 and the case-law cited therein

3. Article 5(2) of Annex XIII to the Staff Regulations concerns officials whose names appeared before 1 May 2006 on a list of candidates suitable for transfer from one category to another and who actually transferred to another category after 1 May 2004. According to Article 45(2) of the old Staff Regulations, officials and other servants could be transferred to another category only on the basis of a competition. By definition this could only be an internal competition. Precisely by mentioning officials whose names appeared on a list of candidates suitable for transfer from one category to another, therefore, the Union legislature intended to refer to candidates who had passed that specific type of competition. It must be inferred that Article 5(2) of Annex XIII to the Staff Regulations only concerns officials changing category as a result of an internal competition.

(see paras 57, 58)

See:

28 October 2010, F-113/05 Kay v Commission, paras 52 and 54

4. 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 Union 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.

(see paras 78, 79)

See:

19 March 2003, T-273/01 Innova Privat-Akademie v Commission, para. 26 and the case-law cited therein; Centeno Mediavilla and Others v Commission, para. 96

5. In the event of amendment of provisions of general application and, in particular, of the provisions of the Staff Regulations, a new rule applies immediately to the future effects of legal situations which arose, but were not fully constituted, under the previous rule.

In internal competitions for transfer from one category to another, the inclusion of successful candidates in those competitions on the reserve lists drawn up as a result of selection processes merely renders those concerned eligible to be appointed in the higher category. That eligibility is necessarily to the exclusion of any acquired right, for the classification in grade of a successful candidate included in the reserve list from an internal competition cannot be regarded as acquired so long as he has not been the subject of an appointment decision in good and due form.

Consequently, even if an official passed an internal competition for transfer from one category to another before 1 May 2004, the date when Regulation No 723/2004 amending the Staff Regulations of Officials and the Conditions of Employment of Other Servants came into force, the inclusion of his name on a list of suitable candidates before that date does not confer on him a right to be appointed, if he is recruited after that date, at the grade mentioned in the notice of competition, or at the corresponding grade under Article 2(1) of Annex XIII to the Staff Regulations, and in accordance with Article 31 of the old Staff Regulations.

An official cannot claim an acquired right unless the facts giving rise to that right arose by virtue of a particular status prior to the amendment of the provisions of the Staff Regulations.

(see paras 84-88)

See:

5 December 1973, 143/73 SOPAD, para. 8; 10 July 1986, 270/84 Licata v ESC, para. 31

Centeno Mediavilla and Others v Commission, paras 52, 58 and 79 to 81

6. A breach of the principle of equal treatment occurs when different situations are treated in the same way or, conversely, where two categories of person whose factual and legal circumstances disclose no essential difference are treated differently.

In that regard, successful candidates in an open competition who were included on the list of suitable candidates before 1 May 2004, the date Regulation No 723/2004 amending the Staff Regulations of Officials and the Conditions of Employment of Other Servants entered into force, but appointed as officials only after that date, cannot be regarded as falling within the same category of persons as other successful candidates in the same competition who were recruited prior to 1 May 2004.

Consequently, successful candidates in internal competitions for change of category published before 1 May 2004 who were entered on a reserve list after 1 May 2004 and who can therefore be appointed in the higher category only after that date, do not fall within the same category of persons as successful candidates in other competitions for change of category who were appointed in the higher category before 1 May 2004.

(see paras 94, 96, 97)

See:

25 October 2005, T-368/03 De Bustamante Tello v Council, para. 69 and the case-law cited therein; Centeno Mediavilla and Others v Commission, para. 80

7. Article 7(1) of Annex XIII to the Staff Regulations provides that the renaming of grades on 1 May 2004 pursuant to Article 2(1) of that Annex must not lead to any changes in the basic monthly salary paid to officials recruited prior to that date. To that end, Article 7(2) provides that, for each official, a multiplication factor is to be calculated at 1 May 2004 which is equal to the ratio between the basic monthly salary paid to each of those officials before 1 May 2004 and the applicable amount defined in Article 2(2) of Annex XIII to the Staff Regulations. Article 2(3) of that Annex provides that the salaries for the new intermediate grades are to be used as the applicable amounts within the meaning of Article 7 of Annex XIII to the Staff Regulations. Article 7 is thus intended to prevent the renaming of grades from leading to any change to the basic monthly salaries of officials recruited under the old Staff Regulations and, in particular, unjust enrichment on their part.

Furthermore, Article 2(2) of Annex XIII to the Staff Regulations determines the basic monthly salary for each grade and step of the new intermediate grades. According to that provision, read in conjunction with Article 8 of Annex XIII to the Staff Regulations governing the renaming of intermediate grades as new grades in the two function groups created by the new Staff Regulations, the salaries for the various grades and steps in the AST function group are the same as those for the AD function group to which they correspond.

Moreover, Article 45a of the Staff Regulations lays down a system under which, from 1 May 2006, officials no longer transfer from function group AST (replacing the old categories B, C and D) to function group AD (replacing the old category A) by internal competition, but through a ‘certification’ procedure based on successful participation in a training programme. Article 45a(3) of the Staff Regulations expressly provides that appointment to a post in function group AD does not change the grade or step that the official has attained at the moment of his appointment.

In the light of those provisions it is apparent that the Union legislature intended a transfer to the higher function group to entail the performance of administrative duties and more advantageous career prospects, but no immediate salary increase.

Consequently, the new Staff Regulations do not provide for any change in an official’s basic salary, either as a result of their entry into force or as a result of the official’s transfer to the higher function group.

Although it was the legislature’s intention, in adopting Article 5(2) of Annex XIII to the Staff Regulations, to give an advantage to officials who, as a result of an internal competition for change of category, had demonstrated their ability to occupy posts in the higher category, it did not, however, intend them to have a greater advantage than officials who passed a certification procedure after 1 May 2006.

Consequently, in accordance with Article 7 of Annex XIII to the Staff Regulations, and in the absence of express provisions to the contrary in that Annex, the salary of officials appointed under Article 5(2) of Annex XIII to the Staff Regulations must be calculated, like that of officials recruited prior to 1 May 2004, with the application of a multiplication factor.

(see paras 104-112)

See:

11 May 2011, F-71/09 Caminiti v Commission, para. 46

8. Neither Article 45a, Article 5 of Annex XIII nor any other provision of the Staff Regulations mentions, for transfers from one category to another, promotion points accumulated in the former category or, a fortiori, how they should be treated. The Staff Regulations do, however, lay down the basic rules of the legal regime that applies to officials and, according to Article 110(1), it is for each institution to adopt general provisions for giving effect to the Staff Regulations, which may lay down criteria capable of guiding the administration in the exercise of its discretionary power or of explaining more fully the scope of provisions of the Staff Regulations which are not wholly clear. The Commission thus adopted, pursuant to Article 110(1) of the Staff Regulations, general provisions giving effect to Article 45 of the Staff Regulations for the implementation of the promotion procedure.

Appointment to a higher grade following an internal competition is treated as equivalent to a promotion, and the rules of the Staff Regulations concerning promotion properly so called therefore apply.

Consequently, in so far as appointment to a higher grade following an internal competition is treated as equivalent to a promotion, the same should, a fortiori, be true of an appointment to the higher grade following an internal competition for change of category: a transfer to the higher category, which involves the performance of different duties, constitutes a promotion and the rules governing promotion apply.

The non-cancellation of points accumulated by an official appointed to a higher category on the basis of Article 5(2) of Annex XIII to the Staff Regulations would have the effect of facilitating that official’s promotion mainly on the basis of points acquired in his former category, which would contradict Article 45 of the Staff Regulations, according to which the merits of an official eligible for promotion must be compared with those of colleagues in the same grade. That article of the Staff Regulations clearly states that the administration must take into account, when considering the comparative merits of officials eligible for promotion in the same grade, the promotion points which they have accumulated in the grade in question. The points accumulated by an official before his transfer from one category to another correspond to merits demonstrated in a post in a lower category and in the performance of a different type of duties. Those points therefore served for promotion to the next grade in the lower category and cannot serve for promotion to the next grade in the higher category, in which the official has not yet demonstrated his merits.

In such a case, the retention of accumulated points would have the effect of enabling an official classified in accordance with Article 5(2) of Annex XIII to the Staff Regulations following a transfer from one category to another to have a greater chance of rapid promotion than colleagues in the same grade who were promoted to the higher category under Article 45 of the Staff Regulations, thereby infringing the principle of equal treatment, which requires that all officials in the same grade should, where their merits are equal, have the same chance of promotion to a higher grade.

Furthermore, the general implementing provisions for Article 45 of the Staff Regulations, adopted by the Commission, which applied from the 2005 promotion year, expressly refer to officials who have changed category in the course of the promotion year under consideration. For those officials, it is provided that the merit points are to be calculated on the basis of the merit mark taking account of the number of days which have elapsed since the change in category, and that the points accumulated under previous promotion exercises must be cancelled. The Commission was therefore right to cancel, in accordance with Article 3(4) of those general implementing provisions, the points which officials had accumulated under promotion exercises prior to 2005.

(see paras 128-130, 132, 133, 135-137)

See:

13 December 1984, 20/83 and 21/83 Vlachos v Court of Justice, paras 22-24

20 November 2007, T-308/04 Ianniello v Commission, para. 38

28 June 2007, F-21/06 Da Silva v Commission, para. 75