JUDGMENT OF THE COURT OF FIRST INSTANCE (Single Judge)

17 December 2003

Case T-133/02

Pravir Kumar Chawdhry

v

Commission of the European Communities

‛Member of the temporary staff — Post paid from appropriations to the research budget — Classification in grade’

Full text in French II-1617

Application for:

first, annulment of the Commission's decision placing the applicant in Grade A 6, Step 3, and, secondly, compensation in respect of harm suffered.

Held:

The application is dismissed. The Commission is ordered to bear its own costs and to pay a quarter of the applicant's costs. The applicant is ordered to bear three quarters of his own costs.

Summary

Officials — Recruitment — Appointment in grade — Appointment to the higher grade of the career bracket — Account taken of exceptional qualifications — Assessment in the light of the post in question — Breach of the principle of equal treatment cannot be relied on

Officials — Recruitment — Appointment in grade — Appointment to the higher grade of the career bracket — Appointing authority's discretion — Obligation, in certain cases, to consider the possibility of making such an appointment — Review by the Court — Limits

Although Article 31(2) of the Staff Regulations on the criteria for the classification in grade of officials upon recruitment is not expressly stated in the Conditions of Employment of Other Servants to be applicable to temporary staff, the rules set out in that provision may reasonably be applied to members of the temporary staff, by virtue of the principle of sound administration. (see para. 35) See: T-217/96 Fabert-Goossens v Commission [19981 ECRSC I-A-607 and II-1841. paras 41 and 42; T-203/97 Forvass v Commission [1999] ECRSC I-A-129 and II-705. para. 42

Article 31(2) of the Staff Regulations confers on the appointing authority or the authority authorised to conclude contracts of employment the option of appointing a candidate to the higher grade in his career bracket. That option must be construed as an exception to the general classification rules. Article 31 of the Staff Regulations does not lay down any specific condition governing the appointing authority's discretion to depart from the rule that classification should be at the starting grade in the career bracket. The discretion which Article 31(2) of the Staff Regulations confers on the appointing authority and, in the case of members of the temporary staff, the authority authorised to conclude contracts of employment may, however, be governed by internal directives of the institutions. However, internal directives adopted by the Community institutions may not derogate from the Staff Regulations. In that respect, a Community institution cannot waive altogether the power conferred upon it by Article 31(2) of the Staff Regulations by debarring itself absolutely from appointing a newly-recruited official to a grade other than the starting grade in the career bracket. Therefore, an internal directive which governs the exercise of the discretionary power conferred by Article 31(2) of the Staff Regulations must leave open the possibility in exceptional cases of appointing a candidate to the upper grade in the career bracket. (see paras 36-37, 41) See: Opinion of Advocate General Slynn in 146/84 De Santis v Court of Auditors [1985] ECR 1723, 1724, 1728; C-155/98 P Alexopoulou v Commission [1999] ECR I-4069, para. 32, and Opinion of Advocate General Léger in the same case, ECR I-4071, point 3; T-17795 Alexopoulou v Commission [1995] ECRSC I-A-227 and II-683, paras 23 and 24

Under Article 31(2) of the Staff Regulations the appointing authority or the authority authorised to conclude contracts of employment must consider the option of applying that provision, particularly where the circumstances of the department require the recruitment of a person with specific qualifications, or where the person recruited has exceptional qualifications. However, those authorities do not have to apply Article 31(2) of the Staff Regulations even if there is a candidate with exceptional qualifications. Where they have actually assessed the specific qualifications and practical experience of a person in the light of the criteria set down in Article 31 of the Staff Regulations, and subject to any conditions in respect of classification which they may have imposed on themselves in the vacancy notice, they are free to decide, taking into account the interests of the service, whether they should award a classification at a higher grade. It follows that even if newly-recruited officials and other members of staff fulfil the conditions for classification in the higher grade of their career bracket, they do not thereby have an automatic right to such classification. In those circumstances, the Court's review of a decision concerning classification in grade cannot replace the assessment of the appointing authority or the authority authorised to conclude contracts of employment. The Court must confine itself to verifying that there has been no infringement of essential procedural requirements, that the appointing authority or the authority authorised to conclude contracts of employment has not based its decision on incorrect or incomplete material facts and that the decision is not vitiated by misuse of powers, an error of law or an inadequate statement of grounds. It is also for the Court to verify that the person who took the decision did not use his power in a manifestly incorrect way. (see paras 44-45) See: T-17/95 Alexopoulou v Commission, cited earlier, para. 21; T-195/96 Alexopoulou v Commission [1998] ECRSC I-A-51 and II-117. paras 36. 38 and 43: T-381/00 Wasmeier v Commission [2002] ECRSC I-A-125 and II-677, para. 56

The exceptional qualifications referred to in the second paragraph of Article 32 of the Staff Regulations must be assessed, not by comparison with the population as a whole, but in relation to the average level of qualification of successful candidates in competitions, who represent a group of people who are already very rigorously selected in accordance with the requirements of Article 27 of the Staff Regulations. However, that comparison must not be with successful candidates in all competitions or selection procedures, but with successful candidates in similar competitions or selection procedures to that through which the person concerned was recruited. On the other hand, the comparison must not be confined merely to successful candidates in the same selection procedure. The appointing authority and the authority authorised to conclude contracts of employment have broad discretion in determining the selection procedures and the period to be taken into account here. (see para. 76) Sec: T-12/97 Barnett v Commission [1997] ECRSC I-A-313 and II-863, paras 50 and 51 : Wasmeier v Commission, cited earlier, para. 73; T-6/02 Platte v Commission [2002] ECRSC I-A-189 and II-973. para. 38

The exceptional nature of a newly-recruited official's qualifications cannot be assessed in the abstract, but must be assessed in the light of the post for which he was recruited. The casuistic nature of that assessment means that the person concerned cannot reasonably rely on a breach of the principle of equal treatment. (see para. 102) See: Wasmeier v Commission, cited earlier, para. 76

The administration's duty to have regard for the welfare of its servants reflects the balance of reciprocal rights and obligations established by the Staff Regulations in the relationship between the official authority and the civil servants. A particular consequence of this duty is that when the official authority takes a decision concerning the situation of an official or other member of staff it should take into consideration all the factors which may affect its decision and that when doing so it should take into account not only the interests of the service but also those of the official concerned. The protection of the rights and interests of officials must always be subject to compliance with the rules in force. (see para. 107) See: Forvass v Commission, cited earlier, paras 53 and 54, and the case-law cited