JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(First Chamber)

16 July 2015

EJ and Others

v

European Commission

‛Civil service — Officials — Reform of the Staff Regulations — Regulation No 1023/2013 — Types of posts — Transitional rules concerning classification in types of posts — Article 30(2) of Annex XIII to the Staff Regulations — Lawyer administrators in grade AD 13 of the Commission’s Legal Service — Situation of ‘legal advisers’ and ‘members of the Legal Service’ — Methods of accessing grade AD 13 under the 2004 Staff Regulations — Promotion under Article 45 of the Staff Regulations — Appointment pursuant to Article 29(1) of the Staff Regulations — Classification in the types of posts ‘Adviser or equivalent’ and ‘Administrator in transition’ — Act adversely affecting an official — Concept of ‘significant responsibilities’ — Concept of ‘special responsibilities’ — Equal treatment — Eligibility for promotion to grade AD 14 — Legitimate expectations — Principle of legal certainty’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which EJ and the 19 other applicants whose anonymised names are set out in the annex hereto essentially seek annulment of the individual decisions adopted, they claim, after the entry into force on 1 January 2014 of Regulation (EU, Euratom) No 1023/2013 of the European Parliament and of the Council of 22 October 2013 amending the Staff Regulations of Officials of the European Union and the Conditions of Employment of Other Servants of the European Union (OJ 2013 L 287, p. 15), by the appointing authority of the European Commission, and classifying them in the post which within the Commission is entitled ‘Senior Administrator in transition’ and corresponds to the type of post ‘Administrator in transition’ as introduced by the above Regulation.

Held:

The individual decisions, as evidenced by a note added after 1 January 2014 to the applicants’ individual computerised files, adopted by the appointing authority of the European Commission, classifying EJ and the other applicants whose anonymised names are set out in the annex hereto in the post which within the European Commission is entitled ‘Senior Administrator in transition’ and corresponds to the Staff Regulations type of post ‘Administrator in transition’ are annulled. The European Commission is to bear its own costs and is ordered to pay the costs incurred by EJ and the other applicants whose anonymised names are set out in the annex hereto. The Council of the European Union is to bear its own costs.

Summary

Officials — Careers — Introduction of transitional rules for the move from the old to the new careers system for officials — Rules on classification in types of posts — Classification of officials in grade AD 13 performing duties as ‘members of the Legal Service’ or ‘legal advisers’ of the Commission — Classification of members of the Legal Service in the type of post ‘Administrator in transition’ and of legal advisers to the type of post ‘Adviser or equivalent’ — Not permissible — Breach of the principle of equal treatment

Officials — Careers — Introduction of transitional rules for the move from the old to the new careers system for officials — Rules on classification in types of posts — Classification of officials in grade AD 13 performing atypical duties — Administration’s discretion — Limits — Observance of the principle of equal treatment

A decision of the appointing authority adopted after the entry into force of Regulation No 1023/2013 amending the Staff Regulations of Officials of the European Union and the Conditions of Employment of Other Servants of the European Union, classifying a Commission official in grade AD 13, working in the Legal Service in a post as ‘member of the Legal Service’, in the type of post ‘Administrator in transition’ as introduced by that Regulation constitutes an act adversely affecting that official within the meaning of Article 90(2) and Article 91(1) of the Staff Regulations. The wording of Article 30(2)(c) and (d) of Annex XIII to the Staff Regulations, as amended by Regulation No 1023/2013 (‘the new Staff Regulations’), not only allowed the appointing authority to regard, from 1 January 2014, ‘legal advisers’ in grade AD 13 working for the Legal Service as occupying posts equivalent to those of ‘Advisers’ within the meaning of the Regulation and to regard members of the Commissioners’ Cabinets as performing activities equivalent to those of ‘Heads of unit’, but also did not, as a matter of law, preclude the possibility of considering that ‘members of the Legal Service’ in grade AD 13 who were also working for the Legal Service should also, given that the duties they performed in that capacity were similar to those of the ‘legal advisers’ working for that legal service, be classified in the type of post ‘Adviser or equivalent’, the term ‘equivalent’ being decisive for the purposes of classification in that type of post. In that regard, the Union legislature had not already specifically decided, in the amendments made to the Staff Regulations by Regulation No 723/2004 (‘the 2004 Staff Regulations’), that ‘members of the Legal Service’ in grade AD 13 should be classified in the type of post ‘Administrator in transition’, a title expressly provided for in the new Staff Regulations. Consequently, it was only because of the appointing authority’s refusal to consider that, on 31 December 2013, a legal adviser in grade AD 13 performed duties equivalent to those of ‘Advisers’ or ‘Heads of Unit’, types of post provided for in the 2004 Staff Regulations, that a member of the Legal Service in that grade was classified by default, pursuant to Article 30(2)(b) of Annex XIII to the new Staff Regulations, in the type of post ‘Administrator in transition’ as provided for in the new Staff Regulations, which covered the previous type of post ‘Administrator’ as provided for in the 2004 Staff Regulations. Since that classification had the effect of blocking the career of the official concerned in grade AD 13, the classification decision undoubtedly produced binding legal effects such as to affect his interests directly and immediately by bringing about a distinct change in his legal position. Furthermore, that decision does not constitute a preparatory measure, since it is capable of producing legal effects which are already such as to affect the interests of the officials concerned, regardless of the effect of any future decision refusing to promote him to grade AD 14 on the basis of Article 45 of the new Staff Regulations. (see paras 40, 42, 44, 45, 47) See: Judgment of 14 February 1989 in Bossi v Commission, 346/87, EU:C:1989:59, para. 23 Judgments of 18 December 1992 in Cimenteries CBR and Others v Commission, T‑10/92 to T‑12/92 and T‑15/92, EU:T:1992:123, and 18 September 2008 in Angé Serrano and Others v Parliament, T‑47/05, EU:T:2008:384, para. 61 and the case-law cited therein

It is clear from the wording of Article 30(2) of Annex XIII to the Staff Regulations that, with effect from 1 January 2014, following the entry into force of Regulation No 1023/2013 amending the Staff Regulations of Officials of the European Union and the Conditions of Employment of Other Servants of the European Union, the appointing authority is to classify officials in service on 31 December 2013 in function group AD in the various types of posts listed in that article, which implies that the appointing authority must formally adopt such decisions on classification in types of posts and that, in accordance with Article 25(2) of the Staff Regulations as amended by Regulation No 1023/2013, it must communicate those decisions in writing to the officials concerned. In that regard, a complaint directed against a classification decision evidenced by a change made to the individual computerised file of the official concerned in the ‘SysPer 2’ staff management information system was not lodged prematurely, since that change actually reflected a decision adopted by the appointing authority and implemented on a technical level by its departments, and which, in the light of the right to good administration provided for in Article 41 of the Charter of Fundamental Rights of the European Union and pursuant to Article 25(2) of the Staff Regulations, should have been communicated in writing to the official concerned. (see paras 41, 48)

When the Staff Regulations as amended by Regulation No 1023/2013 came into force, officials in grade AD 13 in service on 31 December 2013 were to be classified, by decision of the appointing authority, in one of the three types of posts provided for by way of exception in Article 30(2) of Annex XIII to the amended Staff Regulations for administrators occupying a grade AD 13 post on that date, that is to say, ‘Head of unit or equivalent’, ‘Adviser or equivalent’ or ‘Administrator in transition’ respectively. As regards the classification of officials in atypical posts such as ‘legal advisers’ in the Commission’s Legal Service, the appointing authority needed to determine whether, by analogy with grade AD 13 posts entitled ‘legal advisers’ in the Commission, which it had considered, in the light of the nature and scale of the duties performed, to be equivalent to those of ‘Advisers’, grade AD 13 posts too might be regarded, in the light of the nature and scale of the duties performed in those specific posts, as equivalent to those of ‘Advisers’ and therefore be classified in the type of post ‘Adviser or equivalent’ within the meaning of Article 30(2)(d) of the Staff Regulations as amended by Regulation No 1023/2013. In that regard, Article 30(2) of Annex XIII to the amended Staff Regulations does not contain any criterion enabling the appointing authority to determine whether a lawyer in grade AD 13 who, on 31 December 2013, occupied a post entitled in his institution ‘member of the Legal Service’, was in a post equivalent to the type of post ‘Adviser’ provided for in the table of posts listed in Annex I to the Staff Regulations, which relates to all the institutions and all their departments, not just their legal services. Consequently, in order to assess that equivalence, the appointing authority enjoys a certain discretion or latitude, to be exercised in the light of recitals 17 to 19 of Regulation No 1023/2013 and, in any event, in accordance with the principle of equal treatment. (see paras 56, 63, 64)

The legal link between officials and the administration is based upon the Staff Regulations and not upon a contract, so that the rights and obligations of officials may be altered at any time by the legislature, and, in that regard, amending legislation, such as the regulations amending the Staff Regulations, applies, unless otherwise provided, to the future consequences of situations which arose under the previous legislation, except for situations originating and becoming definitive under the previous legislation, which create acquired rights. In that regard, a right is considered to be acquired when the event giving rise to it occurred before the legislative amendment, but that is not the case when the event creating the right did not take place under the legislation that has been amended. Thus, where officials were, until the Staff Regulations as amended by Regulation No 1023/2013 came into force, merely eligible for promotion, and that promotion was subject to a decision of the appointing authority which it had not yet adopted, such officials cannot claim an acquired right to remain eligible for that promotion after that date. (see paras 58, 59) See: Judgments of 19 March 1975 in Gillet v Commission, 28/74, EU:C:1975:46, para. 4, and 22 December 2008 in Centeno Mediavilla and Others v Commission, C‑443/07 P, EU:C:2008:767, paras 60 to 65 and the case-law cited therein