EN
ReportsofCases
ECLI:EU:F:2010 :119 1JUDGMENT O F THE CIVIL SERVICE TRIBUNAL (Second Ch amber)
30 September 2010
Case F-20/06
Patrizia De L uca
v
European Comm ission
(Civil service — Officials — Appointment — Officials advancing to a h igher function g roup by open 
compe tition — Candida te placed on a r eserve list prior to the entry into force of the new Staff 
Regulations — Transitional rules governing classification in grade at the time o f recruitment — 
Classification in grade pursuant to the new, less favourable rules — Article 5(2) and Article 12(3) of 
Annex XIII to the Staff Regulations)
Application:brought under Articles 236 E C and 152 E A, in which M s De Luca, a successful candida te 
in a c ompe tition b efore 1 May 2004 , seeks a nnulment of the Commission’s decision o f 
23 February 2005 a ppointing her as an ad ministrator, in so far a s it classifies her in 
Grade A*9, step 2.
Held: The application is dismissed. Each party is ordered to bear its own costs.
Summ ary
1. Officials — Actions — Prior administrative complaint — Time-limits — Point from wh ich time starts 
to run
(Staff Regulations, Arts 25, 26, 90 a nd 91)
2. Actions for annulment — Jurisdiction of the Comm unity judicature — Application for annulment of 
an individual act adversely affecting an official — Comm unity judicature’s lack of competence to 
declare a p rovision of general application unlawful in the operative part of its judgments
(Art. 230 E C)
3. Officials — Recruitment — Appointment in grade — Introduction of a n ew career structure by 
Regulation No 723/2004 — Transitional provisions on classification in grade
(Staff Regulations, Annex XIII, Arts 1(2) and 12(3); Council Regulation No 723/2004 )
4. Officials — Recruitment — Appointment in grade — Introduction of a n ew career structure by 
Regulation No 723/2004 — Transitional provisions on classification in grade
(Staff Regulations, Art. 3; Annex XIII, Art. 12(3); Council Regulation No 723/2004 )
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5. Officials — Recruitment — Appointment in grade — Appointment in the grade o f the function group 
stated in the competition notice — Introduction of a n ew career structure by Regulation No 723/2004 — 
Transitional provisions on classification in grade
(Staff R egulations, Arts 29 (1) and 31(1); Annex XIII, Arts 2(1) and 12(3); Council Regulation 
No 723/2004 )
6. Official — Recruitment — Appointment in grade — Introduction of a n ew career structure by 
Regulation No 723/2004 — Transitional provisions on classification in grade
(Staff Regulations, Annex XIII, Art. 12(3); Council Regulation No 723/2004 )
7. Officials — Recruitment — Appointment in grade — Appointment in the grade o f the function group 
stated in the competition notice — Introduction of a n ew career structure by Regulation No 723/2004 — 
Transitional provisions on classification in grade
(Staff Regulations, Annex XIII, Art. 12(3); Council Regulation No 723/2004 )
1. The time-limit for complaints laid d own in Article 90 o f the Staff Regulations may start to run from 
the da y on w hich th e pe rson c oncerned receives no tification o f the act adversely affecting him. That 
procedural provision, which is intended to cover a l arge number of situations, must be interpreted in 
the light of the fundamental rules of the Staff Regulations governing how officials are to be informed 
concerning th e essential features of th eir emp loyment and, in p articular, th e form th at th at 
information is to take. It is clear from th e general scheme o f the Staff Regulations and, in particular 
from A rticles 25 a nd 26, that grading decisions, just like appointment decisions, must be duly no tified 
to the person c oncerned and that the administration m ay no t confine itself to informing him by me ans 
of a d ocument which me rely expresses the consequences of those decisions, no r may it neglect to 
ensure that those decisions actually reach th eir addr essee. To impose the requirement that the official 
concerned lodge a c omplaint at the latest within th ree m onths of receipt of an offer of emp loyment, 
rather than within th ree m onths of notification o f the appointment decision, would have th e effect of 
rendering me aningless th e second paragraph of Article 25 a nd th e second and th ird p aragraphs of 
Article 26 o f the Staff Regulations, the aim o f which is precisely to allow officials to take e ffective 
cognizance of decisions regarding, in particular, their ad ministrative situation a nd to claim th e rights 
guaranteed them b y the Staff Regulations.
(see paras 38-40)
See:
F-101/05 G rünheid v C omm ission [2006 ] ECR-SC I-A-1-55 a nd II-A-1-199, paras 49, 52 a nd 56
2. Although, in an application f or annulment of an individual me asure having ad verse effect, th e 
Community judicature does in fact have j urisdiction t o declare, incidentally, the illegality of a 
provision o f general application u pon w hich th e contested me asure is based, it does no t, however, 
have jurisdiction to make such declarations in the operative p art of its judgments.
(see para. 44)
See:
F-134/07 a nd F-8/08 A djemian and Others v C omm ission [2009 ] ECR-SC I- A-1-149 a nd II-A-1-841, para. 38, on 
appeal before the General Court of the European Union, Case T-325/09 P; F-20/08, F-34/08 a nd F-75/08 A paricio 
and Others v C omm ission [2009 ] ECR-SC I-A-1-375 a nd II-A-1-2013 , para. 28
3. It is apparent from a r eading of Article 1(2) of Annex XIII to the Staff Regulations in conjunction 
with A rticle 12(3) of the same a nnex that the word ‘recruited’ appearing in th e latter provision h as a 
precise me aning and that it must be interpreted as covering officials who entered into service between
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 1 May 2004 , the da te on w hich Regulation N o 723/2004 a mending the Staff Regulations of Officials 
and th e Conditions of Employment of Other Servants came i nto force, and 30 April 2006 i n a p ost 
that was open to them f ollowing their inclusion, before 1 May 2006 , in a l ist of successful candida tes 
resulting from a c ompe tition p ublished under the old Staff Regulations, whether or no t those officials 
already had th at status when they entered into service.
(see para. 56)
4. A breach of the principle of equal treatment occurs when two categories of person w hose factual 
and legal circumstances disclose no e ssential difference ar e treated di fferently at the time o f their 
recruitment and that difference in treatment is no t objectively justified.
Furthermore, if all further developme nt of legislation is no t to be prevented, the principle of equality 
cannot hinder th e legislature’s freedom t o m ake a t any time s uch amendments to th e Staff 
Regulations as it considers to be consistent with th e interests of the service, eve n if those amendments 
are less favourable for officials.
Moreover, it is made clear b y Article 3 of the Staff Regulations that the appointment of an official 
necessarily has its origin in a u nilateral instrument of the ad ministration, and it is on ly after being the 
subject of such a d ecision th at a s uccessful candida te in a c ompe tition c an claim th e status of official 
and therefore demand the application to him of provisions of the Staff Regulations.
It follows from th e above th at the classification i n grade of officials appointed from 1 May 2004 
onwards, the da te on w hich Regulation N o 723/2004 a mending the Staff Regulations of Officials and 
the Conditions of Employment of Other Servants came i nto force, could be lawfully carried out on ly 
in accordance with th e new criteria in force on th at date. During the transitional period from 1 May 
2004 t o 30 April 2006 th ose criteria w ere laid d own by Article 12(3) of Annex XIII t o th e Staff 
Regulations.
That finding is no t undermined by considerations relating to th e da te when th e reform o f the Staff 
Regulations came i nto force. First of all, while it is possible that the da te when new regulations come 
into force m ay prove di scriminatory, the da te of 1 May 2004 w as, in th e present case, objectively 
justified. The reason for the reform of the Staff Regulations was that changes had o ccurred in society 
in general and needed to be reflected in th e regulatory framework applicable to th e European civil 
service ‘in order to mee t the changing needs of the institutions and th eir staff’, in th e words of the 
first recital of Regulation N o 723/2004 . It is therefore understandable that its entry into force should 
coincide with th e accession o f 10 n ew M ember States. Secondly, the da te of recruitment decided by 
the ad ministration c onstitutes an o bjective f actor independent of th e w ill of th e C ommunity 
legislature.
(see paras 68-71, 73)
See:
C-443/07 P Centeno Mediavilla and Others v C omm ission [2008 ] ECR I-10945 , paras 76 a nd 81
T-121/97 R yan v C ourt of Auditors [1998 ] ECR II- 3885 , para. 100 ; T-135/05 Ca mpoli v C omm ission [2006 ] ECR-SC 
I-A-2-297 a nd II-A-2-1527 , para. 105; T-58/05 C enteno M ediavilla and Others v C omm ission [2007 ] ECR II-2523 , 
paras 54, 55, 77, 86 a nd 113
F-54/06 D avis and Others v C ouncil [2007 ] ECR-SC I-A-1-165 a nd II-A-1-911, para. 81
5. As regards th e appointment in grade of officials following th e introduction o f the new career 
structure by Regulation N o 723/2004 a mending the Staff Regulations of Officials and th e Conditions 
of Employment of Other Servants, the determination o f the level of the posts to be filled, carried out
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 by the ad ministration u nder the provisions of the old Staff Regulations when dra wing up a no tice of 
compe tition, could no t extend its effects beyond 1 May 2004 , the da te on w hich R egulation 
No 723/3004 c ame i nto force.
Consequently, the right o f successful compe tition c andida tes, deriving from A rticle 31(1) of the Staff 
Regulations, to be given th e grade stated in th e no tice of compe tition c an apply on ly where the law is 
unchanging, because the legality of a d ecision is assessed on th e basis of the elements of law in force at 
the time i t is adopted and that provision c annot therefore compe l the administration to take a d ecision 
which is incompatible with th e Staff Regulations as amended by the legislature and therefore unlawful.
In that context, with th e abolition a s from 1 May 2004 , under the new careers system, of the grades set 
out in th e no tices of compe titions which had b een published before th at da te, it was open to th e 
legislature to ad opt Article 12(3) of Annex XIII t o th e Staff Regulations in order to resolve th e 
difficulties inherent in th at situation a nd determine the classification in grade of successful candida tes 
in compe titions placed on r eserve lists published before 1 May 2004 , but appointed probationary 
officials on th e basis of those compe titions after that date.
It is true that the gradings determined by Article 12(3) of Annex XIII to the Staff Regulations do no t 
correspond to th e grades published in no tices of compe tition p rior to 1 May 2004 a nd th at that 
provision c onflicts with th e rule laid d own in A rticle 31 o f the Staff Regulations and taken from 
Article 31 o f the old Staff R egulations. However, having regard t o its purpose, Article 12(3) of 
Annex XIII to the Staff Regulations constitutes a t ransitional provision o f a s pecial kind which may, as 
such, derogate, for a g iven category of officials, from th e general rule provided for by Article 31 o f the 
Staff Regulations.
The constraints inherent in changing from on e me thod of management to another, in respect of 
officials’ careers, may require the ad ministration to depart temp orarily, and within certain limits, from 
the strict application o f the pe rmanent rules and principles that no rmally apply to th e situations at 
issue.
Furthermore, as regards compliance with A rticle 29 o f the Staff Regulations, from w hich it follows that 
the vacancy no tice constitutes a b inding legal framework for the ad ministration, that article does no t 
have a b inding effect greater than that of Article 12(3) of Annex XIII to the Staff Regulations and may 
not take p recedence over that special transitional provision.
Moreover, the sole purpose of Article 2(1) of Annex XIII to the Staff Regulations, which establishes a 
more favourable relationship th an th at laid d own in Article 12(3) of the same a nnex between th e old 
grades and th ose in force during th e transitional period from 1 May 2004 t o 30 April 2006 , was to 
convert, on 1 May 2004 , the grades held by those with th e status of official on 30 April 2004 i n order 
to bring th em i nto line with th e new career structure that would come i nto force in full on 1 May 
2006 . Interpreted strictly, as eve ry transitional provision m ust be, Article 2(1) of Annex XIII t o th e 
Staff R egulations cannot be ascribed a s cope w hich extends beyond th e establishment of th at 
intermediate relationship.
(see paras 84-86, 91-92)
See:
C-443/07 P C enteno Mediavilla and Others v C ommission, paras 100 a nd 101
T-30/02 L eonhardt v P arliament [2003 ] ECR-SC I-A-41 a nd II-265, para. 51; T-311/04 B uendía Sierra v C omm ission 
[2006 ] ECR II-4137 , para. 213; T-58/05 C enteno Mediavilla and Others v C omm ission, paras 110 a nd 112 t o 115
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6. An official may no t rely on th e principle of protection o f legitimate expectations to challenge the 
legality of a n ew regulatory provision, particularly in an ar ea where th e legislature has a b road 
discretion. Furthermore, the right t o claim p rotection o f legitimate expectations presupposes, in 
particular, that the assurances given ar e consistent with th e relevant rules. The appointing authority 
would have taken an unlawful decision, because it was contrary to th e Staff Regulations, if it had 
classified an official appointed after 1 May 2004 , the da te on w hich R egulation N o 723/2004 
amending th e Staff Regulations of Officials and th e Conditions of Employment of Other Servants 
came i nto force, according to th e provisions on g rades and career brackets of th e old Staff 
Regulations, which were no l onger in force.
(see paras 99-101)
See:
C-443/07 P C enteno Mediavilla and Others v C omm ission, paras 91 a nd 100
T-381/00 W asmeier v C omm ission [2002 ] ECR-SC I-A-125 a nd II-677, para. 106; T-398/03 Ca stets v C omm ission 
[2005 ] ECR-SC I- A-109 a nd II-507, para. 34; T-282/02 C ementbouw H andel & Industrie v C omm ission [2006 ] 
ECR II-319, para. 77; T-58/05 C enteno Mediavilla and Others v C omm ission, para. 95; T-145/06 Om ya v C omm ission 
[2009 ] ECR II-145, para. 117
7. In th e context of the reform o f the Staff R egulations introduced by Regulation N o 723/2004 
amending th e Staff Regulations of Officials and th e Conditions of Employment of Other Servants, 
which led to changes to the grading structure of officials, the principle that eve ry official is entitled to 
reasonable career prospects within his institution c annot justify, as such, th e application o f earlier 
provisions to an official, thereby destroying th e aim p ursued by the legislature. It is well established 
that, in th e eve nt of amendment of provisions of general application a nd, in particular, of the 
provisions of the Staff Regulations, a n ew rule applies imme diately to th e future effects of legal 
situations which arose, but were no t fully constituted, under the previous rule. The Staff Regulations 
do no t confer any right to ad vance to a h igher grade through an open compe tition, eve n for officials 
satisfying all th e conditions for such appointment, because the inclusion o f successful candida tes on 
the lists of suitable candida tes dra wn up as a r esult of selection p rocesses me rely renders th ose 
concerned eligible to be appointed to on e of the posts which the compe tition w as intended to fill, and 
because that eligibility is necessarily to the exclusion o f any acquired right.
(see paras 125 -126)
See:
T-58/05 C enteno Mediavilla and Others v C omm ission, paras 51 to 53