CELEX: 62003TJ0402
Language: en
Date: 2007-03-15 00:00:00
Title: Judgment of the Court of First Instance (Fourth Chamber) of 15 March 2007. # Georgios Katalagarianakis v Commission of the European Communities. # Officials. # Case T-402/03.

JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber) 
      15 March 2007
      Case T-402/03
      Georgios Katalagarianakis
      v
      Commission of the European Communities
      (Officials – Appointment – Review of classification in grade and step – Application of the Court’s case-law – Articles 5 and 31(2), the second paragraph of Article 32 and Articles 45 and 62 of the Staff Regulations)
      Application: for annulment of the Commission’s decision reviewing and fixing the applicant’s classification at recruitment at Grade A6,
         step 1, reviewing and fixing his subsequent classification at Grade A5, step 3, on 1 April 2000 and fixing the starting point
         of its pecuniary effects at 5 October 1995.
      
      Held: The Commission’s decision of 14 April 2003 is annulled in so far as it fixes the starting point of its pecuniary effects at
         5 October 1995. The Commission is to undertake a comparative examination of the applicant’s merits and those of the officials
         promoted to Grade A5 in each promotion year since 1 May 1993. Following that examination and if the Commission should be unable
         to award the applicant such promotion in grade as may appear justified, the parties are invited to seek agreement as to appropriate
         compensation. The parties are to inform the Court within three months of the delivery of this judgment of the content of any
         agreement they may have reached, failing which, of their conclusions, with figures, as to the assessment of the loss sustained.
         The remainder of the action is dismissed. The costs are reserved.
      
      Summary
      1.      Officials – Decision adversely affecting an official – Decision on classification in grade and step – Obligation to give a
            statement of reasons at the latest when rejecting a complaint  
      (Staff Regulations, Arts 25, second para., 31(2), 32, second para., and 90(2))
      2.      Officials – Recruitment – Appointment in grade and classification in step 
      (Staff Regulations, Arts 31(2) and 32, second para.)
      3.      Officials – Recruitment – Equal treatment – Classification in step 
      (Staff Regulations, Arts 5(3), 31(2) and 32, second para.)
      4.      Officials – Recruitment – Appointment in grade 
      (Staff Regulations, Arts 31(2), 45(1) and 62, first para.)
      5.      Officials – Non-contractual liability of the institutions – Administrative fault 
      1.      The obligation to state reasons for a decision concerning classification in grade and in step 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 procedure and to the relevant individual
         ground for the decision taken concerning the official in question.
      
      The appointing authority is not under an obligation to state, in the decision rejecting a complaint brought against a decision
         fixing a newly recruited official’s classification in the higher grade of the career bracket, the training and special experience
         required in order to be granted additional seniority in the higher grade. In the light of, first, the discretion conferred
         on it to decide on classification in grade, and second, the fact that the exceptional nature of the training and experience
         that must have been acquired in order to be reclassified in the higher grade of the career bracket is evaluated on a case-by-case
         basis, the appointing authority is not obliged to give a general definition of the training and duration of experience required
         in order to be granted additional seniority in the grade in question.
      
      (see paras 39, 42-43)
      See: T-133/02 Chawdhry v Commission [2003] ECR-SC I‑A‑329 and II‑1617, para. 121; T-55/03 Brendel v Commission [2004] ECR-SC I‑A‑311 and II‑1437, para. 120; T‑284/03 Aycinena v Commission [2005] ECR-SC I‑A‑29 and II‑125, para. 33; T-145/04 Righini v Commission [2005] ECR-SC I‑A‑349 and II‑1547, para. 55
      
      2.      The appointing authority enjoys a wide discretion within the framework of Article 31 and the second paragraph of Article 32
         of the Staff Regulations when assessing the previous experience of a candidate recruited as an official, both as regards the
         nature and duration thereof and as regards the extent of its relevance to the requirements of the post to be filled. It follows
         that, when reviewing a decision concerning the classification in step of an official recruited at the higher grade of the
         career bracket, the Court may not substitute its assessment for that of the appointing authority.
      
      Consequently, where that authority has taken account of the training and special experience of a newly recruited official
         to appoint him, on recruitment, to the higher grade in his career bracket, it may consider that the official may not claim
         additional seniority in that grade, since his training and experience have already been taken into account for his appointment
         in grade.
      
      (see paras 59, 61)
      See: 314/86 and 315/86 De Szy-Tarisse and Feyaerts v Commission [1988] ECR 6013, para. 26; T‑2/90 Ferreira de Freitas v Commission [1991] ECR II‑103, para. 56; Aycinena v Commission, para. 72
      
      3.      Given that officials recruited at the higher grade in their career bracket and those recruited at the starting grade in their
         category are not in identical situations either in fact or in law, the fact that officials recruited at the starting grade
         in the career bracket may be allowed additional seniority, while those appointed at the higher grade might be denied that
         seniority precisely because of the grade in which they have been classified, cannot be regarded as unequal treatment between
         those officials.
      
      (see para. 71)
      4.      In drawing a distinction, when reviewing an official’s classification in grade at recruitment, between the change made to
         the classification on the date when the official was appointed, and the pecuniary effects of that decision, the starting point
         for which is fixed at a later date, the appointing authority arbitrarily limits, for the period between the two dates, the
         official’s entitlement to remuneration, which is an individual right guaranteed by the Staff Regulations and may not be limited
         save as otherwise expressly provided, as stipulated by the first paragraph of Article 62 of the Staff Regulations.
      
      Moreover, in drawing such a distinction, the appointing authority misconstrues the distinction between a request for reclassification,
         which seeks a review of the initial classification in grade made when the official was appointed, and the grant of a promotion,
         which, in accordance with Article 45(1) of the Staff Regulations, raises an official, in the course of his career, to a higher
         grade in the category to which he belongs.
      
      In that respect, the fact that the initial classification decision has not been contested within the appeal period is not
         relevant, since the decision to reclassify the official in the higher grade on the date of his appointment, taken in compliance
         with the judgment in Case C-389/98 P Gevaert v Commission, is intended to replace the initial classification decision in all its effects.
      
      (see paras 80, 84-85, 87-88, 90)
      See: C‑389/98 P Gevaert v Commission [2001] ECR I‑65, para. 39; T‑214/00 X v Commission [2001] ECR-SC I‑A‑143 and II‑663, para. 29
      
      5.      The fact that the appointing authority has excluded from a number of examinations of comparative merits prior to the award
         of a promotion an official whose classification in grade on recruitment it only belatedly reviewed, in compliance with the
         judgment in Gevaert v Commission, constitutes an administrative fault rendering it liable, since in doing so it has denied the official in question the chance
         to have his application taken into consideration in the promotion procedures concerned.
      
      However, despite that fault, actual liability is not incurred until the truth of the allegation of harm and its nature have
         been determined. For the latter to be proved, there must, in the present case, first be an examination of the comparative
         merits of the applicant and of the officials promoted in the promotion procedures from which he was unlawfully excluded; it
         can then be determined whether he really was denied a promotion which he was properly entitled to claim, and, if so, the loss
         sustained can be quantified.
      
      (see paras 101-106)
      See: T‑99/95 Stott v Commission [1996] ECR II‑2227, para. 72