JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(First Chamber)

12 December 2013

BV

v

European Commission

‛Civil service — Appointment — Candidates entered on reserve lists for competitions the notice for which was published prior to the entry into force of the new Staff Regulations — Classification in grade — Principle of equal treatment — Discrimination on grounds of age — Freedom of movement for persons’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which BV seeks, inter alia, annulment of the decision of the European Commission appointing her as a probationer, in so far as that decision classified her at Grade AD 6, step 2, and also an order for damages against the Commission.

Held:

The action is dismissed. BV is to bear her own costs and is ordered to pay the costs incurred by the European Commission. The Council of the European Union is to bear its own costs.

Summary

Officials — Recruitment — Appointment in grade — Introduction of a new career structure by Regulation No 723/2004 — Transitional provisions governing classification in grade — Successful competition candidates included in lists of suitable candidates before 1 May 2006 but recruited after that date — Application of the new provisions — Infringement of the principle of freedom of movement for workers –None)

Officials — Assignment — Correspondence between grade and post — Assignment to an official of duties higher than those of his grade after his recruitment — No effect on the lawfulness of the decision on classification in grade at the time of recruitment

Officials — Recruitment — Appointment in grade — Introduction of a new career structure by Regulation No 723/2004 — Transitional provisions governing classification in grade — Successful competition candidates included in lists of suitable candidates before 1 May 2006 but recruited after that date — Application of the new provisions — Discrimination on grounds of age — None)

Under Article 31(1) of the Staff Regulations, candidates who are included in a list of suitable candidates following a competition and are selected by the appointing authority to be appointed to vacant posts are to be appointed to the grade of the function group set out in the notice of the competition they have passed. However, as part of the reform of the Staff Regulations adopted by Regulation No 723/2004, the legislature inserted into the Staff Regulations Annex XIII, Article 13(1) of which, a special transitional provision, provides by way of derogation from the general rule laid down in Article 31(1) of the Staff Regulations that officials who have been included in a list of suitable candidates in competitions for levels A 7 and A 6 before 1 May 2006 and are recruited after that date are to be classified at grade AD 6. (see para. 39)

The general principle of equal treatment and non-discrimination requires that comparable situations are not treated differently unless differentiation is objectively justified. Thus, there can be no cause for calling in question the differences in status between the various categories of persons employed by the Union, whether as officials properly so called or in the different categories of staff covered by the Conditions of Employment of Other Servants, since each of those categories of staff is defined in accordance with the legitimate requirements of the Union administration and the nature of the tasks, whether permanent or temporary, which it has to perform. Consequently, the situation of officials recruited after passing a competition, who are going to make a career within the institutions by occupying a succession of posts cannot be compared, as regards their classification in grade and step at the time of their recruitment, to the situation of temporary staff engaged to fill a particular post. (see paras 46-48) See: 9 February 1994, T‑109/92 Lacruz Bassols v Court of Justice, para. 87 17 November 2009, F‑57/08 Palazzo v Commission, para. 38; 9 December 2010, F‑83/05 Ezerniece Liljeberg and Others v Commission, para. 93

Subject to compliance with the first paragraph of Article 27 and Article 29(1) of the Staff Regulations, designed to ensure the recruitment of officials of the highest standards, the appointing authority has a wide discretion in deciding upon the criteria of ability required for the posts to be filled and in specifying, on the basis of those criteria and, more generally, in the interests of the service, the conditions and procedure for organising a competition. The choice allowed under that wide discretion must always be made with reference to the requirements of the posts to be filled and, more generally, to the interests of the service. (see para. 50) See: 5 February 1997, T‑211/95 Petit-Laurent v Commission, para. 54

There is a breach of the principle of equal treatment not only where two categories of persons whose factual and legal situations are not essentially different receive different treatment but also where different situations are treated in the same way. However, where a notice of competition published in order to recruit officials to a specific grade requires candidates to fulfil a minimum condition with regard to professional experience, the successful candidates in that competition must be regarded, irrespective of their age and previous professional experience, as all being in the same situation as regards their grading. Thus, the table of corresponding grades set out in Article 13(1) of Annex XIII to the Staff Regulations manifestly takes no account, whether directly or indirectly, of the age of the officials recruited. Consequently, successful competition candidates included in the list of suitable candidates before 1 May 2006 but recruited after that date, who have joined the European civil service after acquiring substantial professional experience outside the institutions, are not, all things being equal, entitled to employment prospects equivalent to those of successful candidates who joined that civil service at a younger age, since in principle the former’s careers will be shorter than the latter’s. However, that situation does not amount to discrimination on grounds of age, but depends on the particular circumstances of each of those candidates. (see paras 56, 58-60) See: 22 December 2008, C‑443/07 P Centeno Mediavilla and Others v Commission, para. 83 25 October 2005, T‑368/03 De Bustamante Tello v Council, para. 69; 11 July 2007, T‑58/05 Centeno Mediavilla and Others v Commission, para. 89

It follows from Article 7(1) in conjunction with the first paragraph of Article 62 of the Staff Regulations, according to which an official is entitled to the remuneration carried by his grade and step, that, once the grade and therefore the salary level of the official have been determined, he cannot be given a post which does not correspond to that grade. In other words, the grade and therefore the salary to which an official is entitled determine the type of work he may be given. However, a circumstance in which an official who, soon after his recruitment, has been assigned management duties that do not correspond to the duties normally assigned to an official in his grade and, as a result, the remuneration he receives does not correspond to the level of his services, can be relied on only against the decision appointing that official to those duties after he has been recruited. That circumstance does not, however, have any effect on the lawfulness of the decision whose only purpose and effect were to classify that official by grade and step at the time of his recruitment. (see paras 64, 66) See: 30 September 2010, F‑36/05 Schulze v Commission, paras 80 and 82