Reports of Cases

(Civil service — Officials — Appointment — Officials advancing to a higher function group by open competition — Candidate 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 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 EC and 152 EA, in which Ms De Luca, a successful candidate in a competition before 1 May 2004, seeks annulment of the Commission’s decision of 23 February 2005 appointing her as an administrator, in so far as it classifies her in Grade A*9, step 2.

Held: The application is dismissed. Each party is ordered to bear its own costs.

Summary

4. Officials — Recruitment — Appointment in grade — Introduction of a new 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)

EN ECLI:EU:F:2010:119

SUMMARY — CASE F-20/06 DE LUCA v COMMISSION

7. Officials — Recruitment — Appointment in grade — Appointment in the grade of the function group stated in the competition notice — Introduction of a new 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)

(see paras 38-40)

See: F-101/05 Grünheid v Commission [2006] ECR-SC I-A-1-55 and II-A-1-199, paras 49, 52 and 56

(see para. 44)

See: F-134/07 and F-8/08 Adjemian and Others v Commission [2009] ECR-SC I-A-1-149 and 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 and F-75/08 Aparicio and Others v Commission [2009] ECR-SC I-A-1-375 and II-A-1-2013, para. 28

(see para. 56)

4. A breach of the principle of equal treatment occurs when two categories of person whose factual and legal circumstances disclose no essential difference are treated differently at the time of their recruitment and that difference in treatment is not objectively justified.

Furthermore, 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 for officials.

Moreover, it is made clear by Article 3 of the Staff Regulations that the appointment of an official necessarily has its origin in a unilateral instrument of the administration, and it is only after being the subject of such a decision that a successful candidate in a competition can claim the status of official and therefore demand the application to him of provisions of the Staff Regulations.

It follows from the above that the classification in grade of officials appointed from 1 May 2004 onwards, the date on which Regulation No 723/2004 amending the Staff Regulations of Officials and the Conditions of Employment of Other Servants came into force, could be lawfully carried out only in accordance with the new criteria in force on that date. During the transitional period from 1 May 2004 to 30 April 2006 those criteria were laid down by Article 12(3) of Annex XIII to the Staff Regulations.

That finding is not undermined by considerations relating to the date when the reform of the Staff Regulations came into force. First of all, while it is possible that the date when new regulations come into force may prove discriminatory, the date of 1 May 2004 was, in the present case, objectively justified. The reason for the reform of the Staff Regulations was that changes had occurred in society in general and needed to be reflected in the regulatory framework applicable to the European civil service ‘in order to meet the changing needs of the institutions and their staff’, in the words of the first recital of Regulation No 723/2004. It is therefore understandable that its entry into force should coincide with the accession of 10 new Member States. Secondly, the date of recruitment decided by the administration constitutes an objective factor independent of the will of the Community legislature.

(see paras 68-71, 73)

See: C-443/07 P Centeno Mediavilla and Others v Commission [2008] ECR I-10945, paras 76 and 81

Consequently, the right of successful competition candidates, deriving from Article 31(1) of the Staff Regulations, to be given the grade stated in the notice of competition can apply only where the law is unchanging, because the legality of a decision is assessed on the basis of the elements of law in force at the time it is adopted and that provision cannot therefore compel the administration to take a decision which is incompatible with the Staff Regulations as amended by the legislature and therefore unlawful.

In that context, with the abolition as from 1 May 2004, under the new careers system, of the grades set out in the notices of competitions which had been published before that date, it was open to the legislature to adopt Article 12(3) of Annex XIII to the Staff Regulations in order to resolve the difficulties inherent in that situation and determine the classification in grade of successful candidates in competitions placed on reserve lists published before 1 May 2004, but appointed probationary officials on the basis of those competitions after that date.

It is true that the gradings determined by Article 12(3) of Annex XIII to the Staff Regulations do not correspond to the grades published in notices of competition prior to 1 May 2004 and that that provision conflicts with the rule laid down in Article 31 of the Staff Regulations and taken from Article 31 of the old Staff Regulations. However, having regard to its purpose, Article 12(3) of Annex XIII to the Staff Regulations constitutes a transitional provision of a special kind which may, as such, derogate, for a given category of officials, from the general rule provided for by Article 31 of the Staff Regulations.

The constraints inherent in changing from one method of management to another, in respect of officials’ careers, may require the administration to depart temporarily, and within certain limits, from the strict application of the permanent rules and principles that normally apply to the situations at issue.

Furthermore, as regards compliance with Article 29 of the Staff Regulations, from which it follows that the vacancy notice constitutes a binding legal framework for the administration, that article does not have a binding effect greater than that of Article 12(3) of Annex XIII to the Staff Regulations and may not take precedence 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 than that laid down in Article 12(3) of the same annex between the old grades and those in force during the transitional period from 1 May 2004 to 30 April 2006, was to convert, on 1 May 2004, the grades held by those with the status of official on 30 April 2004 in order to bring them into line with the new career structure that would come into force in full on 1 May 2006. Interpreted strictly, as every transitional provision must be, Article 2(1) of Annex XIII to the Staff Regulations cannot be ascribed a scope which extends beyond the establishment of that intermediate relationship.

(see paras 84-86, 91-92)

See: C-443/07 P Centeno Mediavilla and Others v Commission, paras 100 and 101

(see paras 99-101)

See: C-443/07 P Centeno Mediavilla and Others v Commission, paras 91 and 100

T-381/00 Wasmeier v Commission [2002] ECR-SC I-A-125 and II-677, para. 106; T-398/03 Castets v Commission [2005] ECR-SC I-A-109 and II-507, para. 34; T-282/02 Cementbouw Handel & Industrie v Commission [2006] ECR II-319, para. 77; T-58/05 Centeno Mediavilla and Others v Commission, para. 95; T-145/06 Omya v Commission [2009] ECR II-145, para. 117

7. In the context of the reform of the Staff Regulations introduced by Regulation No 723/2004 amending the Staff Regulations of Officials and the Conditions of Employment of Other Servants, which led to changes to the grading structure of officials, the principle that every official is entitled to reasonable career prospects within his institution cannot justify, as such, the application of earlier provisions to an official, thereby destroying the aim pursued by the legislature. It is well established that, in the event of amendment of provisions of general application and, in particular, of the provisions of the Staff Regulations, a new rule applies immediately to the future effects of legal situations which arose, but were not fully constituted, under the previous rule. The Staff Regulations do not confer any right to advance to a higher grade through an open competition, even for officials satisfying all the conditions for such appointment, because the inclusion of successful candidates on the lists of suitable candidates drawn up as a result of selection processes merely renders those concerned eligible to be appointed to one of the posts which the competition was intended to fill, and because that eligibility is necessarily to the exclusion of any acquired right.

(see paras 125-126)

See: T-58/05 Centeno Mediavilla and Others v Commission, paras 51 to 53

ECLI:EU:F:2010:119