JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

26 September 2011





Case F-31/06





Marco Pino

v

European Commission

(Civil service – Officials – Appointment – Article 5(2) of Annex XIII to the Staff Regulations – Internal competition for transfer from one category to another published before 1 May 2004 – Candidate appearing on the reserve list before 1 May 2006 – Grading – Application of a multiplication factor of less than 1 – Loss of promotion points)

Application: brought under Articles 236 EC and 152 EA, in which Mr Pino seeks, principally, annulment of the decisions appointing him to a higher category, in so far as those decisions classify him in a lower grade than should have been his under the provisions of the Staff Regulations.

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 – 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))

2. 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, Annex XIII, Arts 2(1) and 5(2))

3. Union law – Principles – Protection of legitimate expectations – Conditions

4. 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)

5. Officials – Actions – Interest in bringing proceedings – Plea in law alleging infringement of essential procedural requirements – Limited power of the administration

(Staff Regulations, Art. 91)

6. 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)

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

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

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

While it is necessarily to be inferred from that provision that successful candidates in internal competitions must be appointed to the grade set out in the notice of the competition following which they have been recruited, the fact remains that the determination of the level of the posts to be filled and of the conditions of appointment of successful candidates to those posts, which the institution concerned had carried out under the provisions of the old Staff Regulations when drawing 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 right of successful competition candidates, deriving from Article 31(1) of the Staff Regulations, to be given the grade stated in the notice of competition can apply only where the law is unchanging, because the legality of a decision is assessed on the basis of the elements of law in force at the time it is adopted and that provision cannot therefore compel the administration to take a decision which is incompatible with the Staff Regulations as amended by the legislature and therefore unlawful.

In that context, in which the grades set out in notices of competitions published before 1 May 2004 were abolished from that date under the new careers system, it was open to the legislature to adopt Article 5(2) of Annex XIII to the Staff Regulations in order to resolve the difficulties inherent in that situation and determine the classification in grade of successful candidates in internal competitions for change of category who were included on reserve lists before 1 May 2006 and appointed in the new category on the basis of those competitions 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 competitions prior to 1 May 2004 and that that provision conflicts with the rule laid down in Article 31 of the Staff Regulations and taken 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 noted 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 66-70)

See:

11 July 2007, T-58/05 Centeno Mediavilla and Others v Commission, paras 100 and 109

30 September 2010, F-20/06 De Luca v Commission, para. 86 and the case-law cited therein, on appeal before the General Court of the European Union, Case T-563/10 P

2. Article 2(1) of Annex XIII to the Staff Regulations establishes a more advantageous equivalence between the old and new grades compared with the classification set out in Article 5(2) of the same annex for officials who have passed a competition for change of category. However, the sole purpose of Article 2(1) of Annex XIII to the Staff Regulations was to rename, 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 therefore 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 an official who was only appointed to the higher category on 27 April 2005, as a result of passing an internal competition for change of category the notice of which was published before 1 May 2004 and the list of suitable candidates from which was drawn up prior to 1 May 2006.

(see para. 75)

See:

Centeno Mediavilla and Others v Commission, paras 112-115

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 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 breach of that principle unless he has been given precise assurances by the administration.

(see paras 80, 81)

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

4. There is a breach of the principle of equal treatment where different situations are treated in an identical manner or, conversely, where two classes of persons whose factual and legal situations are not essentially different 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 to the higher category before 1 May 2004.

(see paras 96, 98, 99)

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

5. An official has no legitimate interest in the annulment of a decision for a formal defect, and in particular for a breach of the obligation to state the reasons on which the decision is based, where the administration has no scope for the exercise of discretion but is bound to act as it has done, since the annulment of the contested decision will inevitably result in the adoption of the same decision, in substance, as the annulled decision.

(see para. 112)

See:

23 April 2002, T-372/00 Campolargo v Commission, para. 62

6. 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 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 Annex XIII 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 involve 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 that advantage to exceed that enjoyed by officials who passed a certification procedure from 1 May 2006 onwards.

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 131-139)

See:

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

7. Article 5 of Annex XIII to the Staff Regulations does not mention, for transfers from one category to another, promotion points accumulated in the former category. The purpose of the article is to determine, in particular, classification in grade and step where successful candidates in internal competitions for change of category were entered on a list of suitable candidates prior to 1 May 2006 and are appointed to a higher category under the new Staff Regulations.

Furthermore, 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, under 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 makes it clear 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, which would infringe 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 the higher grade.

(see paras 155-157, 159, 160)

See:

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

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