JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber)

26 October 2004

Case T-55/03

Philippe Brendel

v

Commission of the European Communities

(Officials – Appointment – Classification in grade and step – Additional seniority – Action for damages)

Full text in French II - 0000

Application: first, for annulment of the Commission’s decision classifying the applicant in Grade A 7, step 2, and, second, for damages to compensate the damage allegedly suffered by the applicant.

Held: The Commission is ordered to pay default interest on the sum consisting of the difference between the remuneration payable to the applicant corresponding to Grade A 7, step 3, and the remuneration corresponding to Grade A 7, step 2, from 16 April 2001; this interest is to be computed as from the various dates on which each payment under the Staff Regulations ought to have been made until payment has been made in full. The rate of interest to be applied is to be calculated on the basis of the rate fixed by the European Central Bank for principal refinancing operations applicable during the various phases of the period concerned, increased by two points. There is no longer any need to adjudicate on the claim for payment of the difference between the remuneration owed to the applicant corresponding to Grade A 7, step 3, and the remuneration corresponding to Grade A 7, step 2, from 16 March 2001. The remainder of the action is dismissed. The Commission is ordered to pay its own costs and three quarters of the applicant’s costs. The applicant is to pay a quarter of his own costs.

Summary

1. Officials – Actions – Admissibility – Act replacing the contested act in the course of proceedings – Obligation to follow the pre-litigation procedure – Exception

(Staff Regulations, Arts 90 and 91)

2. Officials – Recruitment – Appointment in grade and classification in step – Appointment to the higher grade of the career bracket – Appointing authority’s discretion – Review by the Court – Limits – Obligation, in certain cases, to consider the possibility of making such an appointment – Right to be appointed to the higher grade of the career bracket – None

(Staff Regulations, Art. 31(2))

3. Officials – Recruitment – Appointment in grade and classification in step – Appointment to the higher grade of the career bracket – Determination of level of professional experience – Taking into account of the category of the post previously occupied – Evidence by the official concerned of a higher actual level – Whether permissible

(Staff Regulations, Art. 31(2))

4. Officials – Recruitment – Appointment in grade and classification in step – Appointment to the higher grade of the career bracket – Obligation to state reasons – Scope

5. Officials – Administration’s duty to have regard for the welfare of its servants – Scope – Limits

6. Officials – Non-contractual liability of the institutions – Classification in grade on recruitment effected unlawfully – Subsequent retrospective rectification – Damage resulting from delay in payment of remuneration – Payment of default interest

1. By virtue of the requirements of procedural economy, when a contested act is replaced, in the course of proceedings, by an act having the same subject-matter, the latter constitutes a new factor enabling the applicants to amend their pleadings.

On the other hand, it is clear from Articles 90 and 91 of the Staff Regulations that the action directed against an act adversely affecting the applicant, consisting in a decision taken by the appointing authority, is admissible only if the official has previously submitted a complaint to the appointing authority and if the complaint has been rejected by express or implied decision, and the same applies to a new decision replacing a previous decision, following a review.

However, where the lodging of the application, initially directed against an act which has in the meantime been replaced, was preceded by a complaint meeting the requirements of Article 90(2) of the Staff Regulations, and where the act now contested, which has retrospectively replaced the original act in the course of proceedings, is based on the same considerations of fact and law as the act against which the application was originally directed, it must be considered that the obligation incumbent on officials, observance of which is, under Article 91(2), a condition of the admissibility of the action, to lodge a complaint with the appointing authority about the acts adversely affecting them has been complied with as regards the new contested act too.

(see paras 50-52, 56)

See: 14/81 Alpha Steel v Commission [1982] ECR 749, para. 8; 293/87 Vainker v Parliament [1989] ECR 23, para. 7; T-23/96 De Persio v Commission [1998] ECR-SC I-A-483 and II-1413, para. 32; T-161/00 Tsarnavas v Commission [2001] ECR-SC I-A-155 and II-721, para. 30

2. Article 31(2) of the Staff Regulations provides for the possibility of making exceptions to the principle that all officials are recruited in the starting grade of their category. The decision on classification based on Article 31(2) of the Staff Regulations falls, subject to any conditions in respect of classification which the appointing authority may have imposed on itself in the vacancy notice, within the very wide discretion of that authority. In the course of its review in that regard, the Court cannot substitute its assessment for that of the appointing authority. It must confine itself to verifying that there has been no infringement of essential procedural requirements, that the appointing authority has not based its decision on incorrect or incomplete material facts and that the decision is not vitiated by misuse of powers, a manifest error of assessment or an inadequate statement of grounds.

The appointing authority is required, in special circumstances such as in the case of a candidate with exceptional qualifications, specifically to assess the possible application of Article 31(2) of the Staff Regulations, as such an obligation arises in particular where the specific needs of the service require the recruitment of a specially qualified official or where the person recruited has exceptional qualifications and requests the application of those provisions. However, even where newly recruited officials fulfil the conditions for classification in the higher grade of the career bracket, they do not thereby have an automatic right to such classification.

(see paras 60-61)

See: C-298/93 P Klinke v Court of Justice [1994] ECR I-3009, para. 31; T-17/95 Alexopoulou v Commission [1995] ECR-SC I-A-227 and II-683, para. 21; T‑195/96 Alexopoulou v Commission [1998] ECR-SC I-A-51 and II-117, paras 38, 39 and 44, upheld on appeal in C-155/98 P Alexopoulou v Commission [1999] ECR I-4069, and the case-law cited therein; T-381/00 Wasmeier v Commission [2002] ECR-SC I-A-125 and II-677, para. 56; T-133/02 Chawdhry v Commission [2003] ECR-SC I-A-329 and II-1617, para. 44

3. The administration does not exceed the limits of its wide discretion as regards classification where, in order to determine the level of the experience acquired by an official before taking up his duties, it refers to the category of the post previously held. However, for the purposes of his classification on recruitment, an official must be allowed to show that the actual level of the duties he carried out in the institution was higher than that of the category to which he belonged.

(see paras 93-94)

See: T-79/98 Carrasco Benítez v EMEA [1999] ECR-SC I-A-29 and II-127, paras 45 and 46

4. The obligation to state reasons for a decision on classification may reasonably be satisfied at the stage when a decision is taken on a complaint, and it is sufficient for the statement of reasons to relate to the satisfaction of the legal conditions which under the Staff Regulations govern the regularity of the classification procedure, there being no need to reveal the comparative assessment which the appointing authority has undertaken. It is sufficient that the appointing authority inform the official concerned of the relevant individual ground for the decision taken concerning him. The institution is not required to provide detailed statistics on the classification in grade and step of other officials who passed a comparable competition. First, such details are not relevant for verifying that the qualifications of the person concerned were properly assessed, given the specific nature of that assessment and its limitation to the case in point.

(see paras 120, 123-124)

See: T-17/95 Alexopoulou v Commission, cited above, para. 27; T-230/99 McAuley v Council [2001] ECR-SC I-A-127 and II-583, para. 52, and the case-law cited therein; Chawdhry v Commission, cited above, paras 119 to 122

5. 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 is, however, subject to compliance with the rules in force.

(see para. 133)

See: T-203/97 Forvass v Commission [1999] ECR-SC I-A-129 and II-705, paras 53 and 54, and the case-law cited therein

6. An official whose classification in grade was initially effected unlawfully before being rectified by a retrospective decision is entitled to default interest on the sums due as a result of that rectification as of the date when the appointing authority had at its disposal all the information needed for an appropriate classification.

(see paras 153-155)