Case F-41/07: Action brought on 2 May 2007 — Fernandez García and García Rato v Court of Justice
Date: 2007-06-23
Institutions: Civil Service Tribunal
Subjects: Court of Justice of the European Union, European official, action for annulment (EU), appointment of staff, regulations for civil servants

C 140/46

EN

Official Journal of the European Union

23.6.2007

Pleas in law and main arguments

Action brought on 2 May 2007 — Fernandez García and
García Rato v Court of Justice

The applicant, placed on the reserve list of competition EUR/A/
155/2000 (1) for the establishment of a list of suitable candi-
dates for grades A7/A6, was employed after Council Regulation
(EC, Euratom) No 723/2004 of 22 March 2004 amending the
Staff Regulations of officials of the European Communities and
the Conditions of Employment of other servants of the Euro-
pean Communities (2) came into force, and established in grade
AD6/2.

In support of his application, the applicant pleads two grounds.

Parties

(Case F-41/07)

(2007/C 140/74)

Language of the case: French

In connection with the first plea, he submits that the decision of
12 June 2006 is vitiated by a conflict between, on the one
hand, the reference in the preamble to Article 31 of the Staff
Regulations, according to which candidates are to be appointed
to the grade of the function group set out in the notice of the
competition, and, on the other hand, the operative part of that
decision which establishes him in grade AD6/2.

In connection with the second plea, he claims that, in any event,
the decision at issue is unlawful because it is founded on an
implicit legal basis (Articles 12 and 13 of Annex XIII to the
Staff Regulations) which is unlawful under the following heads:

— breach of the principles of legal certainty and the protection

of legitimate expectations;

— breach of
treatment;

the principle of non-discrimination and equal

— breach of the principle of reasonableness, considering that
the application of the new body of rules depends on a
circumstance which is absolutely fortuitous, such as that of
being recruited before or after a particular date, without any
other reason justifying such a rule;

— breach of the principle of sound administration;

— in the alternative, infringement of the obligation to state the
reasons on which Community measures are based laid down
in Article 251 EC.

(1) OJ C 147 A of 25.5.2000, p. 10.
(2) OJ L 124 of 27.4.2004, p. 1.

Applicants: Brigida Fernandez García (Luxembourg, Luxembourg)
and Carolina García Rato (Luxembourg, Luxembourg)(repre-
sented by: S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal,
lawyers)

Defendant: Court of Justice

Form of order sought

The applicants claim that the Tribunal should:

— annul the decisions to appoint the applicants as officials of
the European Communities in so far as they fix their grade
of recruitment under Article 13 of Annex XIII to the Staff
Regulations;

— order the defendant to pay the costs.

Pleas in law and main arguments

The applicants, successful candidates in competition CJ/LA/
25 (1), the notice of which was published before 1 May 2004,
were recruited after the entry into force of Council Regulation
(EC, Euratom) No 723/2004 of 22 March 2004 amending the
Staff Regulations of officials of the European Communities and
the Conditions of Employment of other servants of the Euro-
pean Communities (2).

In their action, the applicants claim, first, that the contested
decisions misapplied the legal
framework established by the
notice of competition. Under Article 13 of Annex XIII to the
Staff Regulations, they were recruited in a grade lower than that
indicated in the notice of competition.

The applicants also plead that the contested decisions infringe
Articles 5, 29 and 31 of the Staff Regulations, as well as the
principle of equal treatment and non-discrimination. The grade
and step of successful candidates in the same competition or in
competitions at
the same level was fixed at different levels
depending on whether they were recruited before or after the
entry into force of Regulation No 723/2004.

23.6.2007

EN

Official Journal of the European Union

C 140/47

In addition, the applicants plead breach of the principle of the
protection of
legitimate expectations, since they legitimately
expected to be recruited in the grade indicated in the notice of
the competition for filling the posts for which they applied.

(1) OJ C 182 A of 31.07.2002, p. 8.
(2) OJ L 124 of 27.04.2004, p. 1.

Action brought on 10 May 2007 — Prieto v Parliament

(Case F-42/07)

(2007/C 140/75)

Language of the case: French

Parties

Applicant: Antonio Prieto (Bousval, Belgium) (represented by: E.
Boigelot, lawyer)

Defendant: European Parliament

Form of order sought

The applicant claims that the Tribunal should:

— annul the European Parliament's decision of 9 June 2006 to
appoint the applicant as a probationary official in step 3 of
Grade AST 2;

— order the defendant to pay the costs.

Pleas in law and main arguments

The applicant, a successful candidate in internal competition C/
348 for Grades C5-4, was a member of
the Commission's
temporary staff in Grade AST 3 (formerly Grade C4) when he
was appointed as a probationary official in Grade AST 2.

In support of his action, the applicant claims, first, that the deci-
sion to appoint him as an official in a grade and step lower
the
than that which was his when he was a member of
temporary staff infringes Article 5(4) of Annex XIII to the Staff
Regulations of Officials of the European Communities (‘the Staff
Regulations’).

The applicant also pleads breach of the principle of equal treat-
ment and non-discrimination, on the ground that only the
successful candidates in the competition in question who were
previously, as members of the temporary staff, in category D
were able to retain their former more advantageous grade and
step when they were appointed as officials.

The applicant claims, finally, that the contested decision also
infringes the principles of legal certainty, the protection of legit-
imate
sound
management.

administration and of

expectations, proper