EN
ReportsofCases
ECLI:EU:F:2010 :114 1JUDGMENT O F THE CIVIL SERVICE TRIBUNAL (Second Ch amber)
30 September 2010
Case F-29/05
Jean-F rançois Vivier
v
European Comm ission
(Civil service — Members of the temp orary staff — Classification in grade — Grades laid d own in the 
call for applications — Amendment of the rules governing classification o f staff — 
Transitional provisions — Article 12(3) of Annex XIII to the Staff Regulations — Application 
by analogy)
Application:brought u nder Articles 236 E C and 152 E A, in which M r Vivier seeks annulment of the 
Commission’s decision o f 21 July 2004 c lassifying him at grade A*6.
Held: The Commission’s classification d ecision a s annexed to the amendment of 21 July 2004 t o 
the temp orary staff contract signed by the applicant on 10 June 2004 i s annulled. The 
Commission is ordered to bear its own costs and to pay the costs of the applicant.
Summ ary
1. Procedure — Introduction of new pleas during the proceedings — Conditions
(Rules of Procedure of the Court of First Instance, Art 44(1)(c) and 48(2))
2. European Union law — Transitional provisions — Restrictive interpretation
3. Officials — Members of the temporary staff — Recruitment — Classification in grade — 
Introduction of a n ew career structure by Regulation N o 723/2004 — Transitional provisions for 
classification in grade
(Staff Regulations, Art. 5(1) to (4); Annex XIII, Art. 12(3); Conditions of Employment of Other Servants, 
Art. 10, second para.; C ouncil Regulation No 723/2004 )
1. It follows from A rticle 44(1)(c) in conjunction w ith A rticle 48(2) of the Rules of Procedure of the 
Court of First Instance th at th e original application m ust contain th e subject-matter of th e 
proceedings and a s ummary of the pleas in law relied on , and th at new pleas in law m ay no t be 
introduced in th e course of the proceedings unless th ey are based on m atters of law or of fact which 
come t o light in th e course of the procedure. However, a p lea which may be regarded as amplifying a 
plea m ade previously, whether dir ectly or by implication, in th e original application, and which is 
closely connected therewith, w ill be declared ad missible.
2 ECLI:EU:F:2010 :114SUMM ARY—CASEF-29/05
VIVIERvCOMM ISSION
(see para. 32)
See:
T-495/04 B elfass v C ouncil [2008 ] ECR II-781, para. 87
2. A transitional provision m ust, in principle, be interpreted restrictively, which is incompatible a 
priori w ith a n application b y analogy. A r estrictive interpretation i s justified by th e fact that the 
transitional provisions derogate from th e pe rmanent rules and principles that would dir ectly apply to 
the situations at issue in the absence of those provisions.
Where th ere are no pe rmanent provisions, however, the ad ministration m ay apply Article 12(3) of 
Annex XIII to the Staff Regulations by analogy without disregarding its transitional nature.
(see paras 67-70)
See:
77/82 Pes keloglou [1983 ] ECR 1085 , paras 11 to 15; C-267/95 a nd C-268/95 M erck and Beecham [1996 ] ECR I-6285 , 
paras 23 a nd 24; C-240/05 Eu rodental [2006 ] ECR I-11479 , paras 52 to 54; C-462/05 C omm ission v P ortugal [2008 ] 
ECR I-4183 , paras 53 a nd 54
T-252/97 D ürbeck v C omm ission [2000 ] ECR II-3031 , paras 66 a nd 70
3. In th e absence of any transitional provision i n R egulation N o 723/2004 a mending th e Staff 
Regulations of Officials and th e Conditions of Employment of Other Servants, in order to determine 
the classification in grade of mem bers of the temp orary staff recruited after that regulation c ame i nto 
force on 1 May 2004 on th e basis of calls for applications published before th at da te, and in th e 
absence of any internal provisions applicable for that purpose, only the second paragraph of Article 10 
of the Conditions of Employment may form th e basis for that classification.
It follows from A rticle 10 o f the Conditions of Employment that the ad ministration h as discretion t o 
determine the grade of mem bers of the temp orary staff. In the absence of any internal provision on th e 
subject, th at discretion i s circumscribed solely by th e obligation t o emp loy th ose staff in th e grade 
announced in th e call for applications and by the need to ad here to the structure of the categories or 
function g roups laid d own in Article 5(1) to (4) of the Staff Regulations.
That being so, and where th e grade announced in th e call for applications has been repealed, an 
institution m ay reasonably be guided by th e solution ad opted by th e Community legislature when 
adopting Annex XIII to the Staff Regulations and apply by analogy Article 12(3) of that annex, which 
relates to the classification o f officials included in a l ist of suitable candida tes before 1 May 2006 a nd 
recruited between 1 May 2004 a nd 30 April 2006 .
(see paras 60, 64, 65, 69, 70, 72)
See:
F-21/06 D a Silva v C omm ission [2007 ] ECR-SC I-A-1-179 a nd II-A-1-981, paras 64, 68 a nd 79