JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(First Chamber)

16 July 2015

Simona Murariu

v

European Insurance and Occupational Pensions Authority (EIOPA)

‛Civil service — EIOPA staff — Member of the temporary staff — Vacancy notice — Requirement of minimum professional experience of eight years — Internal candidate already confirmed in her post as a member of the temporary staff following a probationary period — Provisionally assigned to the new position, entailing classification at a higher grade — Clerical error in the vacancy notice — Withdrawal of the offer of employment — Applicability of the GIPs — Consultation of the Staff Committee — Legitimate expectations’

Application:

under Article 270 TFEU, in which Ms Murariu seeks, in essence, first, annulment of the decision of 24 February 2014 by which, she claims, the Executive Director of the European Insurance and Occupational Pensions Authority (‘EIOPA’) withdrew his decision of 7 November 2013 provisionally appointing her to a post which had been the subject of a vacancy notice, and annulment of the decision of 24 July 2014 rejecting her complaint, and secondly, an order that EIOPA compensate her for the material and non-material harm which she considers she has suffered.

Held:

The decision of 24 February 2014 of the European Insurance and Occupational Pensions Authority is annulled in so far as: in disregard, in a contractual relationship, of the acquired rights and terms of the contract, it retroactively rejects the application of Ms Murariu for the post of senior expert on personal pensions and impliedly withdraws the offer of employment, under a provisional assignment, already accepted by Ms Murariu, made to her on 17 July 2013; it deprives Ms Murariu of the benefit of remuneration corresponding to grade AD 8 for the period of her provisional assignment from 16 September 2013 to 24 February 2014. The remainder of the claims are dismissed. The European Insurance and Occupational Pensions Authority is ordered to compensate Ms Murariu for her material loss, suffered between 16 September 2013 and 24 February 2014, in an amount corresponding to the difference in remuneration between grades AD 6 and AD 8, together with default interest, to run from 16 September 2013, at the rate set by the European Central Bank for main refinancing operations during the relevant period and increased by two points. The remainder of the claims for compensation are dismissed. The European Insurance and Occupational Pensions Authority is to bear its own costs and to pay the costs incurred by Ms Murariu.

Summary

Officials — Members of the temporary staff — Recruitment — Classification in grade — Internal candidate already confirmed in his post as a member of the temporary staff — Provisional assignment to the new post entailing classification at a higher grade — Retrospective classification at the end of a six-month probationary period — Not permissible

Officials — Members of the temporary staff — Vacancy notice — Purpose — Administration’s duty to state the conditions required for occupying a post — Scope — Rejection of an application for failure to satisfy a condition not stated in the vacancy notice, but laid down in the general implementing provisions applicable to the procedure — Lawfulness — Conditions

In the adoption of general implementing provisions under Article 110 of the Staff Regulations, the fact that the Chairman of the Management Board of an EU body affixed his signature to the text of a version those provisions merely serves to authenticate the general implementing provisions as a measure adopted by the Management Board. That does not mean, however, that they were adopted by the Chairman in an individual capacity. (see para. 69)

The principle of legal certainty requires that the administration put those concerned in a position to know precisely the scope of their obligations or their rights. Accordingly, the principle of legal certainty requires that a rule laid down by the administration which determines rights and obligations for the members of its staff is given adequate publicity according to the procedures and forms which it is for the administration to determine. In particular, as regards the rules on the recruitment of temporary staff, the authority empowered to conclude contracts of employment of an institution or agency is required to state as precisely as possible in the vacancy notice the conditions required to occupy the post in question, in order to enable those concerned to determine whether it is appropriate to submit an application. Admittedly, that authority cannot be required to refer to all the conditions expressly provided for in the Staff Regulations, since candidates are presumed to be familiar with the Staff Regulations, but a vacancy notice would be deprived of its purpose, which is to inform candidates of the conditions that must be satisfied in order to occupy a post, if the administration were able to exclude a candidate on a ground not expressly stated in the vacancy notice or in the Staff Regulations, or that has not previously been published in a form accessible to or known to the candidate concerned. However, an institution or agency has, as a general rule, the possibility, or even, in order to ensure observance of the principle of equal treatment in the conduct of the various selection procedures for posts at the same grade, the obligation to eliminate a candidate for failure to satisfy a condition which, because of a clerical error, did not appear as such in one of its vacancy notices, but which is clearly and unequivocally evident from general implementing provisions for the Staff Regulations and the Conditions of Employment of Other Servants adopted and appropriately publicised by that institution or agency, and which are therefore deemed to be known to a candidate exercising ordinary care who is a member of the staff of the institution or agency in question. In that regard, Article 110(3) of the Staff Regulations allows the administration a broad discretion in choosing how to communicate the information referred to in Article 110 of the Staff Regulations. (see paras 73-76) See: Judgments of 30 October 1974 in Grassi v Council, 188/73, EU:C:1974:112, para. 40; 25 November 1976 in Küster v Parliament, 123/75, EU:C:1976:162, para. 7; 21 June 2007 in ROM-projecten, C‑158/06, EU:C:2007:370, para. 25; 11 December 2007 in Skoma-Lux, C‑161/06, EU:C:2007:773, para. 28, and 10 March 2009 in Heinrich, C‑345/06, EU:C:2009:140, para. 44 Judgment of 2 October 1996 in Vecchi v Commission, T‑356/94, EU:T:1996:136, para. 50 Judgments of 30 November 2009 in Wenig v Commission, F‑80/08, EU:F:2009:160, para. 90; 14 April 2011 in Šimonis v Commission, F‑113/07, EU:F:2011:44, paras 73 and 74, and 15 October 2014 in Moschonaki v Commission, F‑55/10 RENV, EU:F:2014:235, paras 41 and 42

Although the general implementing provisions for Article 110 of the Staff Regulations cannot be adopted by an agency without the agreement of the Commission, thus conferring on the latter a certain supervisory power, it is, on the other hand, merely required that the Staff Committee be consulted, a modest form of participation in a decision-making process which in no circumstances involves any obligation for the administration to act upon the observations made by the Staff Committee in the course of the consultation. However, unless it is to undermine the effectiveness of the obligation to consult, the administration must comply with that obligation whenever consultation of the Staff Committee is such as to have an influence on the substance of the measure to be adopted. The above provisions of Article 110 of the Staff Regulations do not lay down the order in which the stages of the procedure for the adoption of general implementing provisions by an agency should be carried out, in particular as regards whether its Staff Committee can or must be heard before or after the Commission gives its agreement. In that regard, the power to adopt general implementing provisions formally conferred on the agency is conditional upon the Commission’s agreement, so that, in reality, both the agency and the Commission hold decision-making power in this field. Thus, an agency’s Staff Committee may be consulted before draft general implementing provisions are approved by the Commission provided that the text subsequently adopted, formally, by the agency is not substantially different, as a result of amendments made at the Commission’s request, from the text originally submitted to the Staff Committee. Consequently, the agency is obliged to consult the Staff Committee afresh before the general implementing provisions are adopted only if it decides to accept amendments called for by the Commission to its original proposal which would substantially affect the general tenor of that proposal. Such an obligation is, however, excluded in the case of specific amendments of limited effect, bearing in mind that whether or not an amendment is substantial must be determined from the point of view of its subject matter and the place occupied by the amended provisions in the enacting terms overall, and not from the point of view of the individual consequences that it might have for the officials or other staff concerned. (see paras 86-88) See: Judgment of 22 December 2008 in Centeno Mediavilla and Others v Commission, C‑443/07 P, EU:C:2008:767, para. 52 Judgment of 20 November 2003 in Cerafogli and Poloni v ECB, T‑63/02, EU:T:2003:308, para. 23 and the case-law cited therein

Although the principle of the protection of legitimate expectations may restrict the administration’s right to withdraw an unlawful act with retroactive effect in a case where the addressee of the act has been led to rely on its apparent lawfulness, that condition is not deemed to be satisfied where there are objective circumstances which should have led the person concerned to realise the error in question or, in other words, where there are factors casting doubt on the lawfulness of the act. Thus the person cannot rely on the apparent lawfulness of the withdrawn act in particular where that act has no legal basis or was evidently adopted contrary to the applicable rules of law. (see para. 98) See: Judgment of 12 May 2010 in Bui Van v Commission, T‑491/08 P, EU:T:2010:191, para. 44 and the case-law cited therein

The basis of the employment relationship between a member of the temporary staff and the institution or agency concerned is a contract of employment. Consequently, as regards the possibility of terminating a contractual relationship, once that relationship has been established by mutual agreement between the parties, the authority empowered to conclude contracts of employment cannot act unilaterally like an appointing authority, but is bound by the relevant provisions of the contract with its staff member and, in any event, is bound to comply with the provisions of the Conditions of Employment of Other Servants, in particular Articles 14 and 47 thereof. Although there is nothing in those Conditions which prevents the authority empowered to conclude contracts of employment, by means of contractual provisions which are more favourable for staff, from limiting, in the interests of those staff, its power under Article 47 of the Conditions to terminate employment contracts which have been lawfully concluded, it may not, however, outside the situations contemplated by those Conditions, unilaterally release itself from its contractual undertaking with the staff member concerned. In particular, an offer of employment addressed to a candidate with a view to his appointment as a member of the temporary staff is, admittedly, merely a statement of intent and, as such, a preparatory measure which does not create rights and may be withdrawn, for example where the authority empowered to conclude contracts of employment discovers, after making the offer of employment, that the person concerned does not satisfy one of the conditions of engagement laid down in the Conditions of Employment of Other Servants, the vacancy notice or internal rules. However, the situation is different where such an offer has been accepted, has been expressed in a decision of the authority empowered to conclude contracts of employment and the new contractual relationship has, in fact, already begun to be put into practice. In such a situation, the mutual agreement between the contracting parties gives rise to new contractual obligations which limit that authority’s power to act unilaterally outside the situations expressly provided for by the Conditions of Employment of Other Servants, such as those referred to in Article 47 thereof, and, in any event, to act retroactively. (see paras 101, 103) See: Judgments of 18 October 1977 in Schertzer v Parliament, 25/68, EU:C:1977:158, para. 40, and 19 June 1992 in V. v Parliament, C‑18/91 P, EU:C:1992:269, para. 39 Judgments of 30 November 1994 in Düchs v Commission, T‑558/93, EU:T:1994:279, para. 43, and 7 July 2004 in Schmitt v EAR, T‑175/03, EU:T:2004:214, para. 53 Judgment of 23 October 2012 in Eklund v Commission, F‑57/11, EU:F:2012:145, para. 66, and order of 10 July 2014 in Mészáros v Commission, F‑22/13, EU:F:2014:189, para. 73

An agency is entitled to provide, in its internal provisions, that a candidate for a post to be filled within it who was already working for that agency as a confirmed temporary staff member but in a lower grade than that of the post in question, may be required, like a candidate from outside that agency who must serve a probationary period under Article 14 of the Conditions of Employment of Other Servants in the post in question, to undergo a new form of probationary period of six months, the outcome of which will determine whether he is subsequently given fixed employment in the new post and at the new higher grade by means of an agreement supplementary to his contract providing for his permanent reassignment to the post concerned. Such an interpretation, based on an application by analogy of Article 14 of the Conditions of Employment of Other Servants to a temporary staff member who is not being newly recruited by an institution or agency, but already has fixed-term or indefinite employment within that institution or agency, obtained at the end of a probationary period under Article 14 of those Conditions, also makes it possible to avoid penalising temporary staff who have already been confirmed within an agency, since, depending on the circumstances, the agency might be led to favour the recruitment of candidates whose performance would have to be assessed at the end of a probationary period, in the present case under the conditions of Article 14 of those Conditions, precisely to the detriment of candidates within the agency for whom a fresh probationary period would not be a possibility. It is not evident from the wording or the scheme of Articles 10 and 14 of those Conditions that they prevent the administration from being able to require the staff member concerned to serve a fresh probationary period within the meaning of Article 14 thereof, or any other form of probationary period for the purposes of that new assignment. Thus, when it engages in one of its other posts a member of the temporary staff who has already been confirmed, under a fixed-term or indefinite contract, in his previous post at the end of a probationary period as provided for in Article 14 of those Conditions, the authority empowered to conclude contracts of employment may decide to exempt the person concerned from serving a fresh probationary period where it considers that he is continuing, in that temporary staff capacity, his employment relationship with his employer, even in a situation where the continuation of the employment relationship is accompanied by grade progression or a change in the duties performed, and where the vacancy notice relating to the newly occupied post refers only to recruitment for a specified period. Conversely, where the new employment contract with the same authority empowered to conclude contracts of employment involves a different category of post or marks an interruption of the career path of a temporary staff member who has already been confirmed following a probationary period under Article 14 of those Conditions, as shown, for example, by a material change in the type of duties performed by the staff member concerned or by a difference of two grades, that authority may, in the exercise of its discretion and its power to organise its departments, decide to consider that, for the purposes of Article 14 of those Conditions, the contract of service of the staff member concerned, including one supplementary to the previous contract, relates to a different post requiring the staff member, just like candidates from outside the institution or agency, such as temporary staff of other institutions or agencies or persons not working for the European Union, to demonstrate adequate professional abilities in the new post, thereby warranting confirmation in that post and classification in a higher grade than previously. (see paras 130-133)