JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (Second Chamber)

4 September 2008

Case F-22/07

Paul Lafili

v

Commission of the European Communities

(Civil service – Officials – Entry into force of Regulation (EEC, Euratom) No 723/2004 – Articles 44 and 46 of the Staff Regulations – Article 7 of Annex XIII to the Staff Regulations – Promotion – Grading – Multiplication factor)

Application: brought under Articles 236 EC and 152 EA, in which Mr Lafili seeks: annulment of the administration’s decision of 11 May 2006 to place him in Grade AD 13, step 5, as contained in his pay slips of June 2006 and of subsequent months, and, consequently, his restoration to Grade AD 13, step 2, with effect from 1 May 2006, retaining a multiplication factor of 1.1172071, together with complete reinstatement of his career with retrospective effect from 1 May 2006 to the date of his classification in the grade and step thus corrected (including the evaluation of his experience in the classification thus corrected, his entitlement to promotion and his pension rights), including interest for late payment based on the rate set by the European Central Bank for main refinancing operations during the period in question, plus two percentage points, on the whole of the amount corresponding to the difference between the salary for his classification and the salary for the classification to which he should have been entitled until the date of the decision as to his proper classification.

Held: The decision of the Head of Unit A 6 ‘Career structure, evaluation and promotion’ in the Directorate-General for Personnel and Administration of the Commission of 11 May 2006 is annulled. The applicant is to bear half his own costs. The Commission is to bear its own costs and to pay half of the applicant’s costs.

Summary

1. Officials – Actions – Act adversely affecting an official – Definition

(Staff Regulations, Arts 90 and 91)

2. Officials – Remuneration – Transitional rules applicable after the entry into force of Regulation No 723/2004

(Staff Regulations, Annex XIII, Art. 7(7))

3. Officials – Remuneration – Transitional rules applicable after the entry into force of Regulation No 723/2004

(Staff Regulations, Art. 66; Annex XIII, Arts 2(1) and 7(6) and (7); Council Regulation No 723/2004)

1. Only measures producing binding legal consequences liable to affect the legal situation of those concerned directly and immediately may be regarded as adversely affecting them and can set the time-limits running for lodging a complaint or bringing an action under Articles 90 and 91 of the Staff Regulations.

That is true of a communication from the administration informing an official that his classification in step and the multiplication factor applicable to his remuneration have been set incorrectly and will subsequently be corrected.

(see paras 30-32)

See:

judgment of 8 March 2007 in C-237/06 P Strack v Commission, not published in the ECR, para. 62

T-562/93 Obst v Commission [1995] ECR-SC I‑A‑247 and II‑737, para. 23; T-4/05 Strack v Commission [2006] ECR-SC I‑A‑2‑83 and II‑A‑2‑361, para. 35

2. A decision fixing an official’s classification in step and the multiplication factor applicable to his remuneration pursuant to Article 7(7) of Annex XIII to the Staff Regulations, signed by an authority which does not have that power under the provisions relating to the exercise of the powers conferred by the Staff Regulations on the appointing authority which are in force in the institution concerned, is vitiated by its author’s lack of power if there is no sub-delegation justifying a deviation from the criteria for division of powers contained in those provisions, the purpose of which is to ensure that the decision to act will be adopted by the authority best placed, in principle, to take it in the light of the principles of good administration in staff management.

(see paras 34, 38-39)

See:

46/72 De Greef v Commission [1973] ECR 543, para. 18

T-118/04 and T-134/04 Caló v Commission [2007] ECR-SC I-A-2-0000 and II‑A-2-0000, paras 67 and 68

3. If the multiplication factor applicable to the remuneration of an official recruited before the entry into force of Regulation No 723/2004 amending the Staff Regulations of Officials of the European Communities and the Conditions of Employment of Other Servants of the European Communities is higher than one following the first promotion after the date when that regulation came into force, it must be converted as provided for in Article 7(7) of Annex XIII to the Staff Regulations and transformed into seniority in step. An interpretation to the effect that that provision applies only if the multiplication factor is more than one as a result of an advancement in step following a promotion, but not directly as a result of the promotion itself, cannot be accepted, so that, in that latter case, only Article 7(6) of Annex XIII should be applied and a new multiplication factor determined.

The wording of Article 7(6) and (7) of Annex XIII to the Staff Regulations is sufficiently ambivalent to warrant seeking an interpretation which is not merely literal and which is consistent with the system and purpose of the transitional provisions in question. The discounted interpretation could have the effect of maintaining the application of multiplication factors for an unlimited period, throughout the official’s career and even beyond, after retirement, whereas the application of the multiplication factor, which is a transitional measure, is designed to guarantee the level of the basic monthly salary paid to officials recruited prior to 1 May 2004, since that salary, under Article 7(1) of Annex XIII to the Staff Regulations, cannot be changed as a result of the renaming of grades pursuant to Article 2(1) of that Annex. Once the multiplication factor rises to one, the fourth sentence of Article 7(7) of that Annex, as it is worded, cannot prevent the application of the new Article 66 of the Staff Regulations, which fixes officials’ basic salaries for each grade and step, on the basis of a new career structure. Such disregard for the salary scale included in Article 66, which would be contrary to the principle that a new regulation applies immediately, cannot be accepted in the absence of a clear and unambiguous indication to that effect from the legislature.

Furthermore, the discounted interpretation would also have the effect of putting an end, in future, to equal treatment as regards remuneration between officials recruited prior to 1 May 2004 and those recruited after that date, whereas the transitional measures should, by their very nature, be designed to facilitate the transition from an earlier set of rules to a new set of rules, protecting acquired rights, but without maintaining, for one category of officials, the effects of the earlier rules in situations to come in the future, such as an advancement in step as part of a new career structure.

(see paras 73, 75, 78, 80, 81, 83, 86, 88)