Case C-443/07 P

Isabel Clara Centeno Mediavilla and Others

v

Commission of the European Communities

‛Appeals — Staff Regulations of Officials — Plea of illegality of Article 12(3) of Annex XIII on the classification of officials recruited after 1 May 2004 — Consulting of the Staff Regulations Committee — No infringement of acquired rights or of the principle of equal treatment’

Opinion of Advocate General Sharpston delivered on 4 September 2008 I ‐ 10949

Judgment of the Court (Second Chamber), 22 December 2008 I ‐ 10996

Summary of the Judgment

The terms of Article 10 of the Staff Regulations, which provides for the setting up of a Staff Committee which must be consulted on all proposals to revise the Staff Regulations and may put forward suggestions in connection with such revision, are manifestly irreconcilable with a restrictive interpretation. The Commission is obliged to consult that Committee afresh before the legislative provisions in question are adopted by the Council, when amendments to a proposal concerning the Staff Regulations substantially affect the general tenor of the proposal, such obligation being excluded in the case of specific amendments of limited effect. Whether or not an amendment is substantial must be determined from the point of view of its subject-matter and the place occupied by the amended provisions in the enacting terms overall, and not from the point of view of the individual consequences that it might have for the officials concerned. In this regard, substitution of the grade A*6 for the grade A*7, arising from the reform of career brackets introduced by the Community legislature on 1 May 2004, initially envisaged in Article 12(3) of Annex XIII to the Staff Regulations, is not substantial, for it constitutes an additional element of the reform, which fits into the broad logic and overall perspective of a progressive restructuring of careers. That amendment not departing substantially from the text put before that committee, which was therefore able to express an opinion as to whether it might be possible to envisage a difference in recruitment grades between officials, successful in competitions held before the reform entered into force, who were recruited before that date, and those recruited after that date, it did not call for fresh consultation of the committee. (see paras 50-53)

Candidates successful in competitions and included in lists of suitable candidates have, as such, no acquired right to be appointed, but are merely eligible to be so, and their classification in grade is dependent on their appointment, which is a matter falling within the power of the appointing authority. It follows that candidates successful in competitions and included in lists of suitable candidates before 1 May 2004, the date of entry into force of Regulation No 723/2004 amending the Staff Regulations and the Conditions of employment of other servants, but appointed as probationary officials after that date, cannot assert any acquired right to claim, instead of the application of the new classification criteria laid down by the regulation, observance of the classification in grade stated in the notices of competition, in so far as the situation creating their right to observance of certain recruitment conditions had not come to an end before that regulation entered into force. Those considerations hold good also for those recruited as probationary officials before 1 May 2004 and appointed as officials after that date. Although candidates successful in a competition derive, in principle, the right from Article 31(1) of the Staff Regulations to be given the grade of the function group stated in the notice of competition if they are appointed, that provision can apply only where the law is unchanging, because it cannot compel the appointing authority to take a decision incompatible with the Staff Regulations as amended by the Community legislature and therefore unlawful. Article 12(3) of Annex XIII to the Staff Regulations, as a transitional provision of a special kind, may introduce a derogation from the general rule provided for by Article 31 of the Staff Regulations applicable to a given category of officials. (see paras 64-66, 100, 101)

The legislature, in adopting Article 12(3) of Annex XIII to the Staff Regulations, which gives rise to a difference in the treatment of officials successful in the same competition, recruited respectively before and after 1 May 2004, the date of entry into force of the reform introduced by Regulation No 723/2004 amending the Staff Regulations and the Conditions of employment of other servants, has not infringed that principle, for the differentiated treatment affects officials who do not form part of a single category. In fact, officials recruited after 1 May 2004 are not in the same legal situation as officials recruited before that date for, at the moment when the reform entered into force, they, unlike officials already recruited, were merely eligible to be appointed. Such a difference in treatment is, moreover, based on an objective factor independent of the will of the Community legislature, namely, the date of recruitment decided by the appointing authority. Furthermore, in balancing the interests of the different categories of officials in the gradual introduction of the new rules of the Staff Regulations, the Community legislature was able legitimately to decide that recruitment of officials successful in competitions that took place before 1 May 2004 but who were recruited after that date would take place according to the terms of the new rules, affording them more advantageous treatment than that applied to officials successful in competitions held after 1 May 2004 and recruited later. The classification criteria set out in Article 12(3) of Annex XIII to the Staff Regulations do not entail any discrimination on grounds of age either, for they are manifestly unconnected to any taking into account of the age of the successful candidates in the competitions concerned and, furthermore, having regard to Category A, they distinguish the basic Grade A*5 (formerly Grade A8) from the higher Grade A*6 (formerly Grade A7/A6). (see paras 79-81, 83)