CELEX: 62005FJ0036
Language: en
Date: 2010-09-30 00:00:00
Title: JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (Second Chamber) 30 September 2010.#Gudrun Schulze v European Commission.#Civil service — Officials — Appointment — Candidates placed on a reserve list prior to the entry into force of the new Staff Regulations — Transitional rules governing classification in grade at the time of recruitment — Classification in step — Article 32 of the Staff Regulations — Articles 2, 5 and 12 of Annex XIII to the Staff Regulations — Discrimination on grounds of age — Equal pay for work of equal value — Principle of good administration — Duty to have regard for the welfare of officials.#Case F-36/05.

Reports of Cases
                    JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (Second Chamber)
                                                30 September 2010
                                                    Case F-36/05
                                                 Gudrun Schulze
                                                          v
                                              European Commission
   (Civil service — Officials — Appointment — Candidates placed on a reserve list prior to the entry into
   force of the new Staff Regulations — Transitional rules governing classification in grade at the time of
     recruitment — Classification in step — Article 32 of the Staff Regulations — Articles 2, 5 and 12 of
      Annex XIII to the Staff Regulations — Discrimination on grounds of age — Equal pay for work of
      equal value — Principle of good administration — Duty to have regard for the welfare of officials)
   Application:brought under Articles 236 EC and 152 EA, in which Ms Schulze seeks: primarily,
                 annulment, first, of the Commission’s decision of 8 February 2005 rejecting her complaint
                 and, second, of the Commission’s decision of 11 October 2004 classifying her in grade A*
                 6, step 2; alternatively, an order that the Commission pay her damages.
   Held:         The application is dismissed. Each party is to bear its own costs.
                                                      Summary
   1. Officials — Status of official — Conditions for acquiring
   (Staff Regulations, Art. 3)
   2. Officials — Recruitment — Appointment in grade — Introduction of a new career structure by
   Regulation No 723/2004 — Transitional provisions for classification in grade
   (Staff Regulations, Arts 7(1), 27, first para., and 29(1); Annex XIII, Art. 12(3); Council Regulation
   No 723/2004)
   3. Officials — Recruitment — Appointment in grade — Introduction of a new career structure by
   Regulation No 723/2004 — Transitional provisions for classification in grade
   (Staff Regulations, Annex XIII, Art. 12(3); Council Regulation No 723/2004)
   4. Officials — Assignment — Correspondence between grade and post — Determination of level at
   which post is to be filled
   (Staff Regulations, Arts 5(4), 7(1), and 62, first para.; Annex I; Council Regulation No 723/2004)
   5. Officials — Principles — Administration’s duty to have regard for the interests of officials —
   Principle of sound administration — Limits
   (Staff Regulations, Annex XIII, Art. 12(3))
EN
          ECLI:EU:F:2010:115                                                                              1
 ---pagebreak---                                                 SUMMARY — CASE F-36/05
                                                 SCHULZE v COMMISSION
1. It is clear from Article 3 of the Staff Regulations that the appointment of an official necessarily has
its origin in a unilateral instrument of the appointing authority stating the date on which the
appointment takes effect and the post to which the official is appointed. It is only after being the
subject of such a decision that a successful candidate in an open competition can claim the status of
official and therefore demand the application to him of provisions of the Staff Regulations.
                                                                                                           (see para. 48)
          See:
          T-58/05 Centeno Mediavilla and Others v Commission [2007] ECR II-2523, paras 54 and 55
2. If all further development of legislation is not to be prevented, the principle of equality cannot
hinder the legislature’s freedom to make at any time such amendments to the Staff Regulations as it
considers to be consistent with the interests of the service, even if those amendments are less
favourable.
Consequently, the legislature has been able, in the context of the reform of the Staff Regulations, to
provide that successful candidates in competitions who would, prior to 1 May 2004, have been
recruited at grade A 7 would now be appointed at grade A*6, and at the same time to reduce the
salaries relating to those grades.
In taking that action the legislature did not infringe the principle of equality and, in particular, the
prohibition of any discrimination on grounds of age, in so far as the table of corresponding grades
given in Article 12(3) of Annex XIII to the Staff Regulations and the table of basic monthly salaries
are manifestly unconnected to any taking into account, directly or indirectly, of the age of the persons
concerned.
Furthermore, in accordance with the rule flowing from Article 7(1), the first paragraph of Article 27
and Article 29(1) of the Staff Regulations, according to which the level of posts is determined
according to their character, their importance and their scope, regardless of the qualifications of those
concerned, the table of corresponding grades given in Article 12(3) of Annex XIII to the Staff
Regulations distinguishes the basic grade A*5 from the higher grade A*6 in order to take account of
the experience required for posts at that level.
It cannot therefore be contended that it is contrary to Article 12(3) of Annex XIII to the Staff
Regulations to take professional experience into consideration; on the contrary, it requires the
appointing authority to take account of that experience in the interests of the service when
determining the level of the posts to be filled.
                                                                                                       (see paras 58-62)
          See:
          C-443/07 P Centeno Mediavilla and Others v Commission [2008] ECR I-10945, para. 83
          T-121/97 Ryan v Court of Auditors [1998] ECR II-3885, paras 98 and 104; T-135/05 Campoli v Commission [2006]
          ECR-SC I-A-2-297 and II-A-2-1527, para. 105; T-58/05 Centeno Mediavilla and Others v Commission, paras 86, 89
          and 113
          F-54/06 Davis and Others v Council [2007] ECR-SC I-A-1-165 and II-A-1-911, para. 81
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 ---pagebreak---                                                SUMMARY — CASE F-36/05
                                                SCHULZE v COMMISSION
3. The right of employees of the same employer performing work of equal value to receive the same
remuneration constitutes a specific expression of the general principle of equality, which it is the task
of the Civil Service Tribunal to ensure is observed. That right is also set out in Article 7 of the
International Covenant on Economic, Social and Cultural Rights and in Convention No 111 of the
International Labour Organisation.
However, the principle of equal treatment does not prevent comparable situations from being treated
differently if the difference is justified by objective and relevant circumstances which the court can
review.
As part of the reform of the Staff Regulations the legislature amended the correspondence between
grades and posts, in particular by adopting Article 12(3) of Annex XIII to the Staff Regulations, since,
by its very nature, a transitional provision derogates from certain rules of the Staff Regulations whose
application is necessarily affected by the change of system.
That being so, officials who were appointed as officials after the reform of the Staff Regulations came
into force cannot be regarded as having been in the same legal position as those recruited prior to
1 May 2004, whose appointment was governed by the old Staff Regulations.
Thus, in the light of the reform of the grading structure, the legislature did not infringe the principle of
equal pay for work of equal value in granting to officials employed after that reform remuneration
linked to the grade in which they were classified pursuant to Article 12(3) of Annex XIII to the Staff
Regulations, which is less favourable than that relating to the previous grades in which officials
recruited prior to 1 May 2004 were classified.
Consequently, the fact that assistants or administrators recruited prior to 1 May 2004 would be better
paid that those recruited as officials after that date does not infringe the principle of equal pay for work
of equal value.
                                                                                                          (see paras 74-79)
          See:
          C-381/99 Brunnhofer [2001] ECR I-4961, para. 28; C-443/07 P Centeno Mediavilla and Others v Commission, ,
          paras 77 to 79 and 105
          T-58/05 Centeno Mediavilla and Others v Commission, cited above, paras 75, 80, 114, 126 and 129
4. 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.
Consequently, the principle that grade and post must correspond also allows any official to refuse
assignment to a post which does not correspond to his grade, and thus, in the end, to refuse duties
which do not correspond to his remuneration.
The previous statement is not invalidated by the fact that Article 5(4) of the Staff Regulations and
Annex I thereto, in the version resulting from Regulation No 723/2004 amending the Staff
Regulations of Officials and the Conditions of Employment of Other Servants, do not establish a fixed
correspondence between a given function and a given grade. Those provisions do not alter the
principle flowing from Article 7(1) of the Staff Regulations, according to which the level of a post to
be filled must be decided in consideration of the importance of the tasks conferred on the function in
question and solely in the interest of the service. They simply mean that the appointing authority is not
ECLI:EU:F:2010:115                                                                                                        3
 ---pagebreak---                                                  SUMMARY — CASE F-36/05
                                                  SCHULZE v COMMISSION
obliged to fix the precise grade of a post to be filled in a notice of vacancy. The appointing authority is
still required, however, in exercising its broad discretion, to ensure that the range of grades referred to
in the notice of vacancy gives a sufficient indication of the importance of the duties involved, and that
appointment in one of those grades remains objective in view, in particular, of the importance of the
duties to be performed.
                                                                                                       (see paras 80-81)
          See:
          T-18/90 Jongen v Commission [1991] ECR II-187, para. 27; T-56/07 P Commission v Economidis [2008] ECR-SC
          I-B-1-31 and II-B-1-213, paras 82 to 86; T-572/08 P Commission v Traore [2009] ECR-SC I-B-1-39 and II-B-1-223,
          paras 38, 40 and 41
5. The principle of sound administration does not have a binding force superior to that of a regulation.
The same applies to the administration’s duty to have regard for the welfare of officials, which reflects
the balance of reciprocal rights and obligations established by the Staff Regulations in the relationship
between the official authority and the civil servants and which must therefore always be circumscribed
by compliance with the rules in force.
Consequently, because of the position held in the hierarchy of norms by the principle of sound
administration and the duty to have regard for the welfare of officials, an official appointed during the
period between 1 May 2004 and 30 April 2006 cannot seek to rely on them to obtain a different
outcome from that arising from Article 12(3) of Annex XIII to the Staff Regulations, since the
institution’s powers are circumscribed by that provision.
                                                                                                       (see paras 86-87)
          See:
          T-123/89 Chomel v Commission [1990] ECR II-131, para. 32; T-65/92 Arauxo-Dumay v Commission [1993]
          ECR II-597, para. 37; T-97/92 and T-111/92 Rijnoudt and Hocken v Commission [1994] ECR-SC I-A-159 and II-511,
          para. 104; T-135/05 Campoli v Commission [2006] ECR-SC I-A-2-297 and II-A-2-1527, para. 149
          F-43/05 Chassagne v Commission [2007] ECR-SC I-A-1-27 and II-A-1-139, para. 111
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