(Officials – Probationary officials – Scientific or technical service – Appointment of a member of the temporary staff following a competition – Classification in grade and step – Articles 31 and 32 of the Staff Regulations)

Application: for annulment of the Commission’s decision of 5 April 2004 to appoint the applicant a probationary official in so far as it classifies him in grade A7, step 5.

Held: The action is dismissed. The parties are ordered to bear their own costs.

Summary

Officials – Recruitment – Appointment in grade and classification in step – Appointment to the higher grade in a career bracket

(Staff Regulations, Arts 31 and 32, third para.)

Article 31(2) of the Staff Regulations, which permits the appointing authority to make exceptions, within certain limits, to the rule laid down in Article 31(1) that newly recruited officials must be appointed to the starting grade of their category or service, does not concern cases where persons employed as members of the temporary staff are recruited as officials, whose classification is, as a general rule, governed by the third paragraph of Article 32.

While it is true that a literal reading of the third paragraph of Article 32, which states that members of the temporary staff who are appointed officials in the same grade that they occupied at the time of their appointment retain the seniority in the step acquired in that capacity, does not, a priori, preclude the possibility that they may be classified in a higher grade than the one they held as members of the temporary staff, pursuant to Article 31(2), such an interpretation would, however, be contrary to the structure and purpose of those various provisions, which cannot be applied jointly to determine the classification of a member of the temporary staff following his establishment as an official. In so far as it assumes that a member of the temporary staff will retain his grade after his appointment as an official, the third paragraph of Article 32 of the Staff Regulations lays down in an exception to the rule that newly recruited officials must be appointed to the starting grade of their category or service, and constitutes a special rule the effect of which, by implication, has to be that members of the temporary staff are placed outside the field of application of Article 31 of the Staff Regulations, including paragraph 2 of that article.

That interpretation is borne out by the fact that, first, where a member of the temporary staff is appointed as an official following an internal competition, there is no justification for the option of granting, in exceptional cases, more attractive conditions to an exceptional candidate in order to secure his services, which are sought by other potential employers, and, second, that the grade and step attained by a member of the temporary staff already reflect his experience and merits at the time of his appointment, so that applying Article 31(2) of the Staff Regulations in his favour would be tantamount to taking account of the same factors for a second time.

(see paras 51-57, 59)

See: T‑195/96 Alexopoulou v Commission [1998] ECR-SC I‑A‑51 and II‑117, para. 37; T-203/97 Forvass v Commission [1999] ECR-SC I‑A‑129 and II‑705, para. 44; T-411/03 Herbillon v Commission [2006] ECR-SC I-A-2-45 and II‑A‑2‑193, para. 77