JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

28 October 2010

Case F-113/05

Roderick Neil Kay

v

European Commission

(Civil service — Officials — Appointment — Officials advancing to a higher function group by open competition — 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 grade pursuant to the new, less favourable rules — Article 2, 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 Mr Kay seeks annulment of the Commission’s decision of 31 January 2005 appointing him as an administrator, in so far as that decision classifies him in grade A*6, step 2.

Held:      The action is dismissed. Each party is 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 on classification in grade

(Staff Regulations, Annex XIII, Arts 5(2) and 12(3); Council Regulation No 723/2004)

2.      Officials — Recruitment — Appointment in grade — Introduction of a new career structure by Regulation No 723/2004 — Transitional provisions on classification in grade

(Staff Regulation, Annex XIII; Council Regulation No 723/2004)

3.      Officials — Promotion — Change of category — Right to retain promotion points — None

(Staff Regulations, Art. 45)

1.      Article 5(2) of Annex XIII to the Staff Regulations, as amended by Regulation No 723/2004 and came into force on 1 May 2004, concerns officials whose names appeared before 1 May 2006 ‘on the list of candidates suitable for transfer from one category to another’ and who actually transferred to another category after 1 May 2004. Article 5(2) relates solely to officials changing category through an internal competition. Consequently, where an official has passed an open competition rather than an internal competition, Article 5(2) of Annex XIII to the Staff Regulations does not apply to him.

In Article 12(3) of Annex XIII to the Staff Regulations, which concerns successful candidates in open competitions ‘recruited between 1 May 2004 and 30 April 2006’, the word ‘recruited’ has a precise meaning and must be interpreted as covering officials who entered into service between 1 May 2004 and 30 April 2006 in a post that was open to them as a consequence of their inclusion, before 1 May 2006, in a list of suitable candidates resulting from a competition published under the old Staff Regulations. Consequently, that provision is applicable for determining the classification of a person who was already an official when he became a successful candidate in an open competition.

(see paras 52, 54, 55, 60-61)

2.      Successful candidates in the same open competition may be treated differently as regards classification depending on whether or not the date of their recruitment comes after the entry into force of a reform of the Staff Regulations by the Union legislature, because that difference in treatment is objectively justified by the need to preserve 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.

(see para. 67)

See:

C‑443/07 P Centeno Mediavilla and Others v Commission [2008] ECR I‑10945, para. 79

T‑58/05 Centeno Mediavilla and Others v Commission [2007] ECR II‑2523, para. 86

3.      Article 45 of the Staff Regulations precludes an official in Category B* who is appointed in the higher Category A* from retaining the points awarded to him on the basis of his previous performance in the lower category in which he was performing duties of a different type.

(see para. 83)