JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

9 July 2009

Case F-91/07

Javier Torijano Montero

v

Council of the European Union

(Civil service – Officials – Notice of vacancy – Act adversely affecting an official – Admissibility – Required qualifications – Grade – Principle of the protection of legitimate expectations – Interests of the service – Equal treatment)

Application: brought under Articles 236 EC and 152 EA, in which Mr Torijano Montero seeks annulment of notice of vacancy 197/06, published with a view to filling an administrator’s post (AD 11‑8) in the ‘External Protection’ Sector of the ‘Security Office’ Directorate of the Secretariat-General of the Council of the European Union.

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

Summary

1. Officials – Actions – Act adversely affecting an official – Vacancy notice – Conditions excluding officials eligible for transfer or promotion – Admissibility

(Staff Regulations, Arts 29, 90 and 91)

2. Officials – Organisation of departments – Assignment of staff – Vested right to remain in post to which assigned – None

3. Officials – Organisation of departments – Assignment of staff – Notice of vacancy – Conditions having the effect of excluding the application of an official who has performed duties corresponding to the post referred to in the vacancy notice – Infringement of the principle of the protection of legitimate expectations – None

4. Officials – Organisation of departments – Fixing of the level of a post to be filled – Criteria

(Staff Regulations, Art. 7(1))

5. Officials – Organisation of departments – Fixing of the level of a post to be filled – Administration's discretion

(Staff Regulations, Art. 7)

1. To the extent to which the conditions for appointment to a post defined by the vacancy notice have the effect of excluding the applications of officials eligible for transfer or promotion, the vacancy notice amounts to an act adversely affecting those officials. That finding is not called into question by the mere fact that a candidate does not have the grade required by that notice. If candidates with the grade required by the vacancy notice were the only ones allowed to challenge the lawfulness of that notice, it would be tantamount to depriving all officials with a different grade from that required by the vacancy notice of the opportunity to challenge the lawfulness of the conditions laid down therein. That would severely curb an effective review of the lawfulness of a vacancy notice, since the right to judicial review would be reserved for officials satisfying the condition concerning the minimum grade required to occupy the vacant post. Those officials would not have an interest in bringing proceedings against such a vacancy notice unless a different condition laid down in the notice had the effect of excluding their application.

(see paras 27, 30-31)

See:

79/74 Küster v Parliament [1975] ECR 725, paras 5 and 6; 25/77 De Roubaix v Commission [1978] ECR 1081, paras 7 and 8

F‑13/05 Corvoisier and Others v ECB [2006] ECR-SC I‑A‑1‑19 and II‑A‑1‑65, para. 42

2. An official does not have a vested right to remain in the post to which he has been assigned. Such permanence would place unacceptable limits on the freedom of the institutions to organise their departments and to adapt them as their needs change.

(see para. 74)

See:

T-138/01 F v Court of Auditors [2003] ECR-SC I‑A‑25 and II‑137, para. 43

3. Unless the administration has given an official precise, unconditional and consistent assurances that he may seek to apply for a post and have his application accepted to occupy that post, a notice of vacancy laying down conditions which have the effect of excluding that official’s application may not be regarded as infringing the principle of the protection of legitimate expectations solely on the ground that that official has performed duties corresponding to the post referred to in that notice.

(see para. 74)

4. The concept of the interests of the service relates to the smooth running of the institution in general and, in particular, to the specific requirements of the post to be filled. Although the institution has a wide discretion in organising its departments and assessing posts, it is the importance of the duties and responsibilities assigned to a particular post which must be the principal criterion by virtue of which it is appropriate to determine the level of a post which is to be filled. It follows from that principle that the appointing authority is required to set the level of a post to be filled by reference to the importance of the post, irrespective of the qualifications of the candidate or candidates who may have applied following publication of the vacancy notice.

(see para. 77)

See:

2/80 Dautzenberg v Court of Justice [1980] ECR 3107, para. 9

T-3/92 Latham v Commission [1994] ECR-SC I‑A‑23 and II‑83, para. 45; T-3/97 Campogrande v Commission [1998] ECR-SC I‑A‑89 and II‑215, para. 41

5. The decision by which an institution fixes the level of a post does not mean that the institution has deprived itself of the possibility of changing the classification of that post at a later date to take account of a change in policy. The mere fact that a different assessment was made in the past cannot amount to proof that the appointing authority exceeded the limits of the discretion it enjoys in fixing the level of a post to be filled, or that it used it in a manifestly incorrect way.

(see paras 80, 86)

See:

324/85 Bouteiller v Commission [1987] ECR 529, para. 6; 233/85 Bonino v Commission [1987] ECR 739, para. 5

T-143/98 Cendrowicz v Commission [1999] ECR-SC I‑A‑273 and II‑1341, paras. 23 and 28