JUDGMENT OF THE CIVIL SERVICE TRIBUNAL
(Second Chamber)

29 September 2011

Case F‑70/05

Harald Mische

v

European Commission

(Civil service – Appointment – Successful candidate in a competition published before the entry into force of the new Staff Regulations but finalised afterwards – Grading under the new, less favourable rules)

Application:      brought under Articles 236 EC and 152 EA, in which Mr Mische seeks, first, annulment of the Commission’s decision of 11 November 2004 determining his grade to be A*6, step 2, secondly, reinstatement of all his rights deriving from a regular grading and, lastly, the award of damages.

Held:      The action is dismissed. Each party is ordered to bear its own costs. The Council, which intervened, is ordered to bear its own costs.

Summary

1.      Officials – Recruitment – Appointment in grade – Introduction of a new career structure by Regulation No 723/2004 – Transitional provisions for classification in grade

(Staff Regulations, Art. 5(5); Annex XIII, Art. 12(3); Council Regulation No 723/2004)

2.      Officials – Status of official – Conditions for acquiring

(Staff Regulations, Art. 3)

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, Arts 2(1) and 12(3); Conditions of Employment of Other Servants, Art. 1(1); Council Regulation No 723/2004)

4.      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)

5.      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, Arts 1(2) and 12(3); Council Regulation No 723/2004)

6.      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. 5(4); Council Regulation No 723/2004)

7.      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)

1.      In order not to render impossible changes to legislation, the principle of equal treatment cannot impede the freedom of the legislature to make at any time such amendments to the Staff Regulations as it considers to be consistent with the interests of the service, in the absence of acquired rights, even if the amended provisions are less favourable for officials than the former provisions.

Consequently, there is no ground for claiming that in Article 12(3) of Annex XIII to the Staff Regulations the legislature should have had regard to the published notice of competition when settling the grading rules applied on the appointment of candidates successful in competitions published before 1 May 2004, the date of entry into force of Regulation No 723/2004 amending the Staff Regulations and the Conditions of Employment of Other Servants, but included on reserve lists and recruited after that date, on the ground that publication of that notice created in itself acquired rights for the candidates in respect of their service career.

In so far as it lays down new grading criteria applicable at the time of the recruitment of successful candidates from competitions published before 1 May 2004, included in lists of suitable candidates prior to 1 May 2006 and recruited between those two dates, Article 12(3) of Annex XIII to the Staff Regulations complies with the principle that in the event of amendment of provisions of general application and, in particular, of 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. A right is considered to be acquired only when the event giving rise to it occurred before the legislative amendment. As regards the classification in grade of a successful candidate in a competition, that classification cannot be regarded as acquired so long as the person concerned has not been the subject of an appointment decision in proper form.

Likewise, it was open to the legislature, without infringing the principle of equal treatment, to take the date of recruitment decided by the appointing authority, which is an objective factor independent of the will of the legislature, as the criterion determining, in each case, whether it is the grading rules of the old Staff Regulations or those introduced by the reform of the Staff Regulations which apply. The same conclusion must be drawn in relation to Article 5(5) of the Staff Regulations, which embodies an expression of the principle of equal treatment.

(see paras 63, 64, 67, 127, 128)

See:

17 December 1981, 178/80 Bellardi-Ricci and Others v Commission, para. 19; 6 October 1982, 9/81 Williams v Court of Auditors, para. 21; 4 March 2010, C‑496/08 P Angé Serrano and Others v Parliament, para. 84

5 November 2003, T‑240/01 Cougnon v Court of Justice, para. 70; 29 November 2006, T‑135/05 Campoli v Commission, para. 105; 11 July 2007, T‑93/03 Konidaris v Commission, para. 110, and T‑58/05 Centeno Mediavilla and Others v Commission, paras 51, 53, 61, 81, 86, 113 and 124

19 June 2007, F‑54/06 Davis and Others v Council, para. 81

2.      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 appointing authority and that 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.

Consequently, since successful competition candidates included in lists of suitable candidates do not, as candidates, have any acquired right to be appointed, but are merely eligible to be so, their right to classification in a particular grade cannot a fortiori be regarded as acquired so long as they have not been the subject of an appointment decision in proper form.

(see paras 65, 66)

See:

Centeno Mediavilla and Others v Commission, paras 53 to 55

8 July 2010, F‑67/06 Lesniak v Commission, para. 106; 28 October 2010, F‑85/05 Sørensen v Commission, para. 92

3.      It is apparent from the principle that the legality of an individual measure is to be assessed on the basis of the facts and the law as they stood at the time of the measure’s adoption that the grading of a successful competition candidate entered on a reserve list and recruited after the entry into force of Regulation No 723/2004 amending the Staff Regulations and the Conditions of Employment of Other Servants, could be determined lawfully only in accordance with the new criteria in force on that date. Those new criteria were laid down during the transitional period from 1 May 2004 to 30 April 2006, by Article 12(3) of Annex XIII to the Staff Regulations.

In that regard, an official cannot claim that the grades prior to the reform of the Staff Regulations continued to exist during the transitional period under the new name provided for by Article 2(1) of Annex XIII to the Staff Regulations. In fact, the sole purpose of that provision, read in the light of Article 1(1) of the Conditions of Employment, was to rename during that period the grades of persons who, on 30 April 2004, already had the status of official or temporary staff member and who retained it after that date, and its purpose was not to retain the old grades, under that new name, for those who were not in that situation.

(see paras 70, 71)

4.      A successful competition candidate recruited after 1 May 2004, the date on which Regulation No 723/2004 amending the Staff Regulations and the Conditions of Employment of Other Servants came into force, cannot claim he suffered discrimination compared with successful candidates in competitions similar to the one in which he was successful who were recruited before that date, since those candidates cannot be regarded as being in the same legal situation as he is.

In that respect, the fact that an institution may, in breach of the principle of non-discrimination, have delayed the conduct of a competition in order to give priority to the recruitment of successful candidates from other competitions on an earlier date does not affect the legality of the decision to recruit the person concerned. Even if some competitions and recruitment procedures had been given priority, respect for the principle of equal treatment of officials must be reconciled with respect for the principle of legality, according to which no person may rely, in support of his claim, on an unlawful act committed in favour of another.

(see paras 72, 73)

See:

Centeno Mediavilla and Others v Commission, paras 154 and 155

5.      It is apparent from a reading of Article 1(2) of Annex XIII to the Staff Regulations in conjunction with Article 12(3) of the same annex that the word ‘recruited’ appearing in the latter provision has a precise meaning and that it must be interpreted as covering officials who entered into service with that status between 1 May 2004 and 30 April 2006 in a post that was open to them following their inclusion, before 1 May 2006, in a list of suitable candidates resulting from a competition published under the old Staff Regulations.

It follows that, for purposes of grading a new official, the fact that the person concerned was formerly a temporary or an auxiliary staff member is not a relevant consideration for the purposes of Article 12(3) of Annex XIII to the Staff Regulations. In the absence of a special provision concerning a particular aspect of the Staff Regulations, temporary or auxiliary staff members who are successful in open competitions do not have an acquired right to special treatment and they must therefore be treated in the same way as external candidates who have passed such competitions.

It cannot therefore be regarded as discriminatory to assign to an official, under Article 12(3) of Annex XIII to the Staff Regulations, a lower grade than the one he had as a non-established staff member although he remains in the same post as that which he held before 1 May 2004 and is performing duties identical to, or even more important than, those he performed in the past.

(see paras 75, 76, 78, 80)

6.      That the legislature, in adopting Article 5(4) of Annex XIII to the Staff Regulations, acted so as to ensure that successful candidates in a competition the purpose or effect of which is to enable them to move to a higher category may, as an exception, be appointed as probationary officials in the grade they held in their former category does not have the effect of applying an arbitrary or manifestly inappropriate distinction in their favour as compared with temporary staff who have been successful in an open competition and have been recruited as officials in the category to which they previously belonged. Those temporary staff are not in the same situation as successful candidates in a competition the purpose or effect of which is to enable them to move to a higher category and thus to make decisive progress in their career.

Moreover, a broad interpretation of Article 5(4), without taking into account the circumstance that between his contract as a member of the temporary staff and his appointment as a probationary official a person had a period of working as an auxiliary staff member, would be liable to deny equal treatment between successful candidates in one and the same open competition, who are in a comparable factual and legal situation and must be given the same treatment, particularly as regards grading, without prejudice to the freedom of the European Union’s legislature to make at any time such amendments to the rules of the Staff Regulations as it considers consistent with the interests of the service.

(see para. 85)

See:

Lesniak v Commission, paras 60 and 61, and the case-law cited therein; Sørensen v Commission, paras 53 and 54

7.      An official cannot rely on the principle of the protection of legitimate expectations in order to challenge the lawfulness of a new regulation, particularly in a field in which the legislature has a wide discretion. Moreover, a person may not plead breach of that principle unless he has been given specific assurances by the administration, which must be in conformity with the applicable rules.

A former member of the auxiliary staff who was appointed a probationary official after 1 May 2004, the date on which Regulation No 723/2004 amending the Staff Regulations and the Conditions of Employment of Other Servants came into force, after taking part in a competition published before that date, cannot claim, if the competition notice failed to mention the reform of the Staff Regulations, that an institution gave him assurances likely to lead him to entertain legitimate expectations that the former grading criteria for officials laid down in the Staff Regulations would be maintained. In order for there to be a legitimate expectation, an express assurance is required, silence not being sufficient.

(see paras 133, 134, 136, 137)

See:

22 December 2008, C‑443/07 P Centeno Mediavilla and Others v Commission, para. 91

11 July 2002, T‑381/00 Wasmeier v Commission, para. 106; 4 May 2005, T‑398/03 Castets v Commission, para. 34; 23 February 2006, T‑282/02 Cementbouw Handel & Industrie v Commission, para. 77; T‑58/05 Centeno Mediavilla and Others v Commission, para. 95; 4 February 2009, T‑145/06 Omya v Commission, para. 117