(Officials – Appointment – Classification in grade and step – Additional seniority – Action for damages)

Full text in French II - 0000

Application: first, for annulment of the Commission’s decision classifying the applicant in Grade A 7, step 2, and, second, for damages to compensate the damage allegedly suffered by the applicant.

Held: The Commission is ordered to pay default interest on the sum consisting of the difference between the remuneration payable to the applicant corresponding to Grade A 7, step 3, and the remuneration corresponding to Grade A 7, step 2, from 16 April 2001; this interest is to be computed as from the various dates on which each payment under the Staff Regulations ought to have been made until payment has been made in full. The rate of interest to be applied is to be calculated on the basis of the rate fixed by the European Central Bank for principal refinancing operations applicable during the various phases of the period concerned, increased by two points. There is no longer any need to adjudicate on the claim for payment of the difference between the remuneration owed to the applicant corresponding to Grade A 7, step 3, and the remuneration corresponding to Grade A 7, step 2, from 16 March 2001. The remainder of the action is dismissed. The Commission is ordered to pay its own costs and three quarters of the applicant’s costs. The applicant is to pay a quarter of his own costs.

Summary

1. Officials – Actions – Admissibility – Act replacing the contested act in the course of proceedings – Obligation to follow the pre-litigation procedure – Exception

(Staff Regulations, Arts 90 and 91)

(Staff Regulations, Art. 31(2))

(Staff Regulations, Art. 31(2))

1. By virtue of the requirements of procedural economy, when a contested act is replaced, in the course of proceedings, by an act having the same subject-matter, the latter constitutes a new factor enabling the applicants to amend their pleadings.

On the other hand, it is clear from Articles 90 and 91 of the Staff Regulations that the action directed against an act adversely affecting the applicant, consisting in a decision taken by the appointing authority, is admissible only if the official has previously submitted a complaint to the appointing authority and if the complaint has been rejected by express or implied decision, and the same applies to a new decision replacing a previous decision, following a review.

1. However, where the lodging of the application, initially directed against an act which has in the meantime been replaced, was preceded by a complaint meeting the requirements of Article 90(2) of the Staff Regulations, and where the act now contested, which has retrospectively replaced the original act in the course of proceedings, is based on the same considerations of fact and law as the act against which the application was originally directed, it must be considered that the obligation incumbent on officials, observance of which is, under Article 91(2), a condition of the admissibility of the action, to lodge a complaint with the appointing authority about the acts adversely affecting them has been complied with as regards the new contested act too.

(see paras 50-52, 56)

See: 14/81 Alpha Steel v Commission [1982] ECR 749, para. 8; 293/87 Vainker v Parliament [1989] ECR 23, para. 7; T-23/96 De Persio v Commission [1998] ECR-SC I-A-483 and II-1413, para. 32; T-161/00 Tsarnavas v Commission [2001] ECR-SC I-A-155 and II-721, para. 30

The appointing authority is required, in special circumstances such as in the case of a candidate with exceptional qualifications, specifically to assess the possible application of Article 31(2) of the Staff Regulations, as such an obligation arises in particular where the specific needs of the service require the recruitment of a specially qualified official or where the person recruited has exceptional qualifications and requests the application of those provisions. However, even where newly recruited officials fulfil the conditions for classification in the higher grade of the career bracket, they do not thereby have an automatic right to such classification.

(see paras 60-61)

See: C-298/93 P Klinke v Court of Justice [1994] ECR I-3009, para. 31; T-17/95 Alexopoulou v Commission [1995] ECR-SC I-A-227 and II-683, para. 21; T‑195/96 Alexopoulou v Commission [1998] ECR-SC I-A-51 and II-117, paras 38, 39 and 44, upheld on appeal in C-155/98 P Alexopoulou v Commission [1999] ECR I-4069, and the case-law cited therein; T-381/00 Wasmeier v Commission [2002] ECR-SC I-A-125 and II-677, para. 56; T-133/02 Chawdhry v Commission [2003] ECR-SC I-A-329 and II-1617, para. 44

(see paras 93-94)

See: T-79/98 Carrasco Benítez v EMEA [1999] ECR-SC I-A-29 and II-127, paras 45 and 46

(see paras 120, 123-124)

See: T-17/95 Alexopoulou v Commission, cited above, para. 27; T-230/99 McAuley v Council [2001] ECR-SC I-A-127 and II-583, para. 52, and the case-law cited therein; Chawdhry v Commission, cited above, paras 119 to 122

(see para. 133)

See: T-203/97 Forvass v Commission [1999] ECR-SC I-A-129 and II-705, paras 53 and 54, and the case-law cited therein

(see paras 153-155)