JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (Second Chamber)

14 December 2010

Case F-25/07

Thomas Bleser

v

Court of Justice of the European Union

(Civil service — Officials — Appointment — Classification in grade by application of new, less favourable rules — Articles 2 and 13 of Annex XIII to the Staff Regulations — Principle of transparency — Principle of correspondence between the grade and the post — Prohibition of discrimination on grounds of age — Duty of care — Principle of sound administration — Principles of legal certainty and non-retroactivity — The prohibition on reformatio in pejus — Principle of the protection of legitimate expectations — Principle of good faith — Principle patere legem quam ipse fecisti)

Application: brought under Articles 236 EC and 152 EA, in which Mr Bleser, a successful candidate in a competition published prior to 1 May 2004, seeks, first, annulment of the decision appointing him as an official at the Court of Justice, in so far as that decision classifies him in a lower grade than that announced in the competition notice, second, annulment of Article 32 of the Staff Regulations of Officials of the European Union, as well as of Articles 2 and 13 of Annex XIII to those Staff Regulations, third, reconstitution of his career and, fourth, the award of damages.

Held: The action is dismissed. Each party is ordered to bear its own costs.

Summary

1. Officials — Actions — Prior administrative complaint — Time-limits — Point from which time starts to run

(Staff Regulations, Arts 25, 26 and 90(2))

2. Officials — Actions — Prior administrative complaint — Correspondence between the administrative complaint and the legal action — Same subject-matter and legal basis

(Staff Regulations, Arts 90 and 91)

3. Officials — Recruitment — Appointment in grade — Introduction of a new career structure by Regulation No 723/2004 — Transitional provisions on classification in grade

(Staff Regulations, Annex XIII, Art. 2(1))

4. Officials — Recruitment — Appointment in grade — Introduction of a new career structure by Regulation No 723/2004 — Transitional provisions on classification in grade

(Staff Regulations, Art. 31; Annex XIII, Arts 2(1) and 13(1))

5. Officials — Recruitment — Appointment in grade — Introduction of a new career structure by Regulation No 723/2004 — Transitional provisions on classification in grade

(Staff Regulations, Annex XIII, Arts 12(3) and 13(1))

6. Officials — Principles — Administration’s duty to have regard for the interests of officials — Principle of sound administration — Limits

(Staff Regulations, Annex XIII, Art. 13(1))

7. Officials — Actions — Time-limits — Point from which time starts to run

(Staff Regulations, Art. 91(3))

8. Officials — Recruitment — Appointment in grade — Introduction of a new career structure by Regulation No 723/2004 — Transitional provisions on classification in grade

(Staff Regulations, Annex XIII, Art. 13(1); Council Regulation No 723/2004)

9. European Union law — General principles — The prohibition of reformatio in pejus — Scope

1. The first paragraph of Article 90(2) of the Staff Regulations provides that a complaint must be lodged within three months of ‘the date of notification of the decision to the person concerned, but in no case later than the date on which the latter received such notification, if the measure affects a specified person’. A letter informing the person concerned that the competent authority is to appoint him a probationary official from a certain date and inviting him to indicate whether he accepts that appointment merely constitutes an offer of employment, even if his appointment has already been announced, and does not start the time-limit for appeal running.

Furthermore, although Article 90(2) of the Staff Regulations provides that the period for bringing a complaint may start to run from the date on which the person concerned received notification of the act adversely affecting him, that provision, which is of a procedural nature and is designed to cover a large number of situations, must be interpreted in the light of the fundamental rules of the Staff Regulations governing how officials are to be informed concerning the essential features of their employment and, in particular, the form that that information is to take.

It is clear from the general scheme of the Staff Regulations and, in particular, from Articles 25 and 26 that grading decisions, just like appointment decisions, must be duly notified to the person concerned and that the administration may not confine itself to informing him by means of a document which, like an offer of employment, merely expresses the consequences of those decisions, nor may it neglect to ensure that those decisions actually reach their addressee.

To impose the requirement that the official concerned must lodge a complaint at the latest within three months of receipt of an offer of employment, without allowing him to await notification of the appointment decision, would have the effect of rendering meaningless the second paragraph of Article 25 and the second and third paragraphs of Article 26 of the Staff Regulations as regards the appointment and classification in grade on which the career of the person concerned will be based, whereas the aim of those articles is precisely to allow officials to take effective cognizance of decisions regarding, in particular, their administrative situation and to claim the rights guaranteed them by the Staff Regulations.

(see paras 30-35)

See:

F-101/05 Grünheid v Commission [2006] ECR-SC I-A-1-55 and II-A-1-199, paras 49, 52 and 56

2. The rule requiring correspondence between the prior administrative complaint and the legal action requires that the relief sought in the application to the Civil Service Tribunal must be the same as that set out in the complaint and the application may contain only heads of claim based on the same cause of action as those raised in the complaint.

Since the complainant contests only his classification in grade and not his classification in step in his complaint, he may not challenge his classification in step before the Civil Service Tribunal.

(see paras 42-44)

See:

T-193/96 Rasmussen v Commission [1998] ECR-SC I-A-495 and II-1495, para. 47; T-375/02 Cavallaro v Commission [2005] ECR-SC I-A-151 and II-673, para. 97

F-51/07 Bui Van v Commission [2008] ECR-SC I-A-1-289 and II-A-1-1533, para. 24; judgment of 1 July 2010 in F-45/07 Mandt v Parliament, paras 110 and 119

3. The sole purpose of Article 2(1) of Annex XIII to the Staff Regulations was to convert, during the transitional period from 1 May 2004 to 30 April 2006, the grades held by those who already had 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. That provision cannot therefore be ascribed a scope which extends beyond the establishment of an intermediate relationship between the old and new classifications in grade of officials already recruited on 1 May 2004.

(see para. 57)

See:

T-58/05 Centeno Mediavilla and Others v Commission [2007] ECR II-2523, paras 112 to 115

4. Article 31 of the Staff Regulations and Article 2(1) of Annex XIII to the Staff Regulations have the same regulatory force as Article 13(1) of that Annex, so that the former may not take precedence over the latter.

As a transitional provision of a special kind, however, Article 13(1) of Annex XIII to the Staff Regulations may include a derogation from the general rule laid down in Article 31 of the Staff Regulations, which is applicable to a particular category of officials.

Furthermore, Article 2(1) of Annex XIII to the Staff Regulations relates only to those who already had the status of official on 30 April 2004, while Article 13(1) of Annex XIII to the Staff Regulations applies only to officials recruited after 1 May 2006. Those two provisions thus have a different personal scope.

It follows that there is no contradiction and, therefore, no inconsistency between Article 31 of the Staff Regulations and Article 2(1) of Annex XIII to the Staff Regulations, on the one hand, and Article 13(1) of Annex XIII to the Staff Regulations, on the other.

(see paras 65-68)

See:

C-443/07 P Centeno Mediavilla and Others v Commission [2008] ECR I-10945, para. 101

5. The legislature, in adopting Article 12(3) of Annex XIII to the Staff Regulations, which gives rise to a difference in the treatment of officials successful in the same competition, recruited before and after the reform respectively, has not infringed the principle of equal treatment, for the differentiated treatment affects officials who do not form part of a single category.

Since Article 13(1) of Annex XIII to the Staff Regulations has a scope comparable to that of Article 12(3) of the same Annex, an official recruited after 1 May 2006 cannot rely on infringement of the principle of equal treatment by claiming to have been treated differently from other successful candidates in the same competition as his who were recruited before the reform of the Staff Regulations came into force.

Moreover, if all further development of legislation is not to be prevented, the principle of equality cannot hinder the legislature’s freedom to make at any time such amendments to the Staff Regulations as it considers to be consistent with the interests of the service, even if those amendments are less favourable.

The legislature was thus able, as part of the reform of the Staff Regulations, first, to provide that successful candidates in a competition who would have been recruited in grade A 7 or A 6 prior to 1 May 2004 would now be employed in grade AD 6 and, second, to reduce at the same time the remunerations relating to those grades.

In doing so the legislature did not infringe the principle of equal treatment or, in particular, the prohibition on discrimination on the grounds of age, since the table of corresponding grades set out in Article 13(1) of Annex XIII to the Staff Regulations and the basic monthly salaries manifestly take no account, whether directly or indirectly, of the age of the persons concerned.

Article 13(1) of Annex XIII to the Staff Regulations does not base officials’ classification in grade on the type of professional experience they have acquired, but on the objective requirements of the posts to be filled, taking account of the new grade structure. It cannot, therefore, be alleged that Article 13(1) of Annex XIII to the Staff Regulations discriminates against officials who have acquired some of their professional experience in the private sector.

(see paras 83-85, 95, 96, 99-100)

See:

C-443/07 P Centeno Mediavilla and Others v Commission, paras 79 and 83

T-121/97 Ryan v Court of Auditors [1998] ECR II-3885, paras 98 and 104; T-135/05 Campoli v Commission [2006] ECR-SC I-A-2-297 and II-A-2-1527, para. 105; T-58/05 Centeno Mediavilla and Others v Commission, paras 86, 89 and 113

F-54/06 Davis and Others v Council [2007] ECR-SC I-A-1-165 and II-A-1-911, para. 81

6. The principle of sound administration does not have a binding force superior to that of a regulation. The same applies to the administration’s duty to have regard for the welfare of officials, which reflects the balance of reciprocal rights and obligations established by the Staff Regulations in the relationship between the official authority and the civil servants and which must therefore always be circumscribed by compliance with the rules in force.

The principle of sound administration and the duty to have regard for the welfare of officials cannot therefore form the basis of a plea of illegality directed against Article 13(1) of Annex XIII to the Staff Regulations.

(see paras 119-120)

See:

T-123/89 Chomel v Commission [1990] ECR II-131, para. 32; T-97/92 and T-111/92 Rijnoudt and Hocken v Commission [1994] ECR-SC I-A-159 and II-511, para. 104; Campoli v Commission, para. 149

F-43/05 Chassagne v Commission [2007] ECR-SC I-A-1-27 and II-A-1-139, para. 111

7. Where the addressee of a decision rejecting a complaint is unable to have effective knowledge of it because of the language in which it is written, it is for him to ask the institution, with all due despatch, to provide him with a translation either in the language of the complaint or in his mother tongue. In such a case, the use of another language means that the time for filing an appeal starts to run only from the date on which that translation is notified to the official concerned.

(see para. 124)

See:

T-118/99 Bonaiti Brighina v Commission [2001] ECR-SC I-A-25 and II-97, paras 18 and 19

F-63/07 Patsarika v Cedefop [2009] ECR-SC I-A-1-39 and II-A-1-159, para. 31

8. Article 13(1) of Annex XIII to the Staff Regulations results from Regulation No 723/2004 amending the Staff Regulations of Officials and the Conditions of Employment of Other Servants, which came into force on 1 May 2004, after the date of its publication on 27 April 2004. It therefore cannot be held to be retroactive. Furthermore, in so far as it defines new criteria for classification in grade applicable when recruiting successful candidates in competitions published prior to 1 May 2004, who were included in lists of suitable candidates before 1 May 2006 and recruited after that date, Article 13(1) of Annex XIII to the Staff Regulations complies with the principle that, where provisions of general application and, especially, provisions of the Staff Regulations are amended, the new rule applies immediately to the future effects of legal situations which arose, but were not entirely constituted, under the previous rule.

A right is considered to be acquired only when the event giving rise to it occurred before the legislative amendment. In the case of the classification in grade of a successful candidate in an open competition, it should be noted that that classification cannot be regarded as acquired until the person concerned has been the subject of a proper appointment decision.

(see paras 126-128)

See:

C-443/07 P Centeno Mediavilla and Others v Commission, paras 61 to 64

T-58/05 Centeno Mediavilla and Others v Commission, paras 51 and 53

9. Even if the principle of the prohibition on reformatio in pejus may be relied on in non-criminal proceedings, that prohibition is not, in any event, binding on the legislature, when it amends rules of the Staff Regulations, or on the administration, when it fixes officials’ classification in grade. That prohibition is closely linked to the principle that the parties are free to delimit the subject-matter of their case, whereas classification in grade is not determined in the course of the exercise of a legal remedy.

(see para. 132)