Case T‑525/16

GQ and Others

v

European Commission

(Civil service — Officials — Reform of the Staff Regulations — Regulation (EU, Euratom) No 1023/2013 — Types of posts — Transitional rules for classification in a type of post — Article 31 of Annex XIII to the Staff Regulations — Assistant in transition — Promotion under Article 45 of the Staff Regulations allowed only within the career stream corresponding to the type of post occupied — Access to the type of post ‘senior assistant’ (AST 10) only in accordance with the procedure laid down in Article 4 and Article 29(1) of the Staff Regulations — Equal treatment — Loss of eligibility for promotion to grade AST 10 — Legitimate expectations)

Summary — Judgment of the General Court (First Chamber), 14 December 2018

Officials — Promotion — Adoption of a new promotion system — Transition from the old to the new system — Assignment by way of derogation — Absence of transitory measures — Differentiated treatment of officials in the administrators’ function group and those in the assistants’ function group — Breach of the principle of equal treatment — None

Officials — Administration’s duty to have regard for the interests of officials — Principle of sound administration — Scope — Obligation for the administration to compensate for the loss of the eligibility for promotion of officials to the higher grade following a reform of the Staff Regulations — None

Officials — Promotion — Adoption of a new promotion system — Transition from the old to the new system — Application of different rules to assistants in grade AST 9 than to those in grades AST 1 to AST 8 — Breach of the principle of equal treatment — None

Officials — Promotion — Adoption of a new promotion system — Transition from the old to the new system — Administration’s discretion — Limits — Observance of acquired rights — Breach of principle of the protection of legitimate expectations — None

Action for annulment — Jurisdiction of the EU judicature — Application for annulment of an individual act adversely affecting an official — EU judicature’s lack of jurisdiction to declare a provision of general application unlawful in the operative part of its judgments

Actions brought by officials — Acts adversely affecting an official — Concept — Decision to classify an official in a type of post introduced by Regulation No 1023/2013 and having come into being by a modification made in the computerised personal files of the persons concerned — Included

Even if the appointing authority is merely applying the provisions of the new Staff Regulations, the decision to apply those provisions for the first time may constitute an act adversely affecting an official. Even if, in the light of the wording of Article 31(2) of Annex XIII to the new Staff Regulations, as amended by Regulation No 1023/2013, they were adopted in the context of circumscribed powers, the decisions of the appointing authority to assign the applicants to the type of post ‘assistant in transition’ with effect from 1 January 2014, as indicated by a reference made to the assignment to that type of post in the applicants’ individual files in the Human Resource Management information system known as ‘SysPer 2’, adversely affect them, in so far as they lose their eligibility for promotion to grade AST 10. (see paras 32, 33)

See the text of the decision. (see paras 35-38)

See the text of the decision. (see paras 49-54, 113)

See the text of the decision. (see para. 57)

There is a only breach of the principle of equal treatment, a general principle of EU law enshrined in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union and applicable to EU civil service law, where two categories of persons whose factual and legal situations are not essentially different receive different treatment in their classification and where that difference in treatment is not objectively justified. When that principle is applied, the situations to be compared must be examined taking account of all the factors characterising those situations. As for assistants in grade AST 1 to AST 8, they are objectively not in the same situation as that of grade AST 9 officials since, unlike the latter and even though, under the Staff Regulations as amended by Regulation No 723/2004, they were all classified in the same type of post, they have not yet reached the maximum grade for the type of post in which they are likely to advance. The principle of equal treatment implies that all officials promoted to the same grade must, in case of equal merit, be given the same opportunities to be promoted to a higher grade. It is therefore consistent with that principle that assistants in transition and assistants are all subject to the promotion procedure provided for in Article 45 of the Staff Regulations to achieve the highest grade available for those types of posts and that, once they reach grade AST 9, they are all subject to the same procedure, in this case the procedure under Article 4 and Article 29 of the Staff Regulations, in order to be appointed to a post of a higher grade, in this case grade AST 10, in respect of which the number of posts is determined by the appointing authority in accordance with its needs. (see paras 61, 64, 65)

The principle of proportionality requires that measures adopted by EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued. With regard to judicial review of compliance with those conditions, it has been accepted that in the exercise of the powers conferred on it the EU legislature must be allowed a broad discretion in areas in which its action involves political, economic and social choices and in which it is called upon to undertake complex assessments and evaluations. Thus the criterion to be applied is not whether a measure adopted in such an area was the only or the best possible measure. Where the EU legislature has a wide discretion, which is the case when adopting, under Article 336 TFEU, modifications to the Staff Regulations and the Conditions of Employment of Other Servants, its legality, with regard to the proportionality principle, can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue. (see para. 70)

The duty to have regard for the welfare of officials cannot be interpreted as requiring the appointing authority to compensate for the loss of eligibility for promotion to grade AST 10, as laid down by the EU legislature, by means of internal measures designed to create more ‘senior assistant’ posts at grades AST 10 and AST 11, because such an approach would lead the appointing authority to disregard the will of the EU legislature by reducing the desired impact of the measures it has adopted as part of the reform introduced by Regulation No 1023/201. (see para. 78)

In a matter involving the exercise of discretionary powers, such as laying down transitional rules which seek to ensure a fair transition from previous Staff Regulations to new Staff Regulations, the principle of equal treatment is infringed only where the institution in question imposes a distinction which is arbitrary or manifestly inappropriate in relation to the objective pursued by the legislation in question. As a result of the very nature of the duties they perform and the minimum requirements for access to those duties, as provided for, in particular, in Article 5(3) of the Staff Regulations, the factual and legal situation of officials in the administrators’ function group and of officials in the assistants’ function group is objectively and substantially different, so that the EU legislature was not required to adopt transitional measures or adopt the same transitional measures for those two function groups. The EU legislature was not required to provide, for the assistants’ function group, the possibility of an assignment by way of derogation, such as that provided for in Article 30(3) of Annex XIII to the Staff Regulations, as amended by Regulation No 1023/2013. (see paras 104-107)