JUDGMENT OF THE CIVIL SERVICE TRIBUNAL
(First Chamber)

26 September 2011

Case F‑29/06

Andres Arnaldos Rosauro and Others

v

European Commission

(Civil service – Officials – Appointment – Article 5(2) of Annex XIII to the Staff Regulations – Internal competitions for transfer from one category to another published before 1 May 2004 – Candidates appearing on reserve lists before 1 May 2006 – Grading – Application of a multiplication factor of less than 1 – Loss of promotion points)

Application:      brought under Articles 236 EC and 152 EA, in which Mr Arnaldos Rosauro and five other officials of the Commission, who were successful candidates in internal competitions for change of category the notices of which were published before 1 May 2004, principally seek annulment of the decisions appointing them to the higher category, in so far as those decisions fix their classification in grade.

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

Summary

1.      European Union law – Principles – Protection of legitimate expectations – Conditions

2.      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. 31; Annex XIII, Art. 2(1))

3.      Officials – Careers – Introduction of transitional rules for the change from the old to the new career system for officials – Rules on classification in grade

(Staff Regulations, Art. 35; Annex XIII, Arts 2(1) and 8)

4.      Officials – Recruitment – Appointment in grade – Appointment to the grade of the function group set out in the notice of competition – Introduction of a new career structure by Regulation No 723/2004 – Transitional provisions for classification in grade

(Staff Regulations, Art. 31; Annex XIII, Art. 5(2))

5.      Officials – Careers – Introduction of transitional rules for the change from the old to the new career system for officials – Rules on classification in grade

(Staff Regulations, Art. 45(2); Annex XIII, Art. 5(2))

6.      Officials – Remuneration – Transitional rules applicable after the entry into force of Regulation No 723/2004 – Determination of grade and multiplication factor

(Staff Regulations, Art. 45a; Annex XIII, Arts 2, 5(2), 7 and 8)

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, Arts 2(2) and 7(2))

8.      Officials – Promotion – Change of category following an internal competition

(Staff Regulations, Arts 45, 45a and 110(1); Annex XIII, Art. 5)

1.      The right to rely on the protection of legitimate expectations extends to any individual who is in a situation in which it is apparent that the Union administration has led him to entertain justified expectations by giving him precise assurances in the form of precise, unconditional and consistent information coming from authorised and reliable sources.

However, a person may not plead infringement of the principle unless he has been given precise assurances by the administration.

(see paras 56, 57)

See:

19 March 2003, T‑273/01 Innova Privat-Akademie v Commission, para. 26 and the case-law cited therein; 11 July 2007, T‑58/05 Centeno Mediavilla and Others v Commission, para. 96

2.      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.

In internal competitions for transfer from one category to another, the inclusion of successful candidates in those competitions on the reserve lists drawn up as a result of selection processes merely renders those concerned eligible to be appointed in the higher category. That eligibility is necessarily to the exclusion of any acquired right, for the classification in grade of a successful candidate included in the reserve list from an internal competition cannot be regarded as acquired so long as he has not been the subject of an appointment decision in good and due form.

Consequently, even if an official passed an internal competition for transfer from one category to another before 1 May 2004, the date when the new Staff Regulations came into force, the inclusion of his name on a list of suitable candidates before that date does not confer on him a right to be appointed, if he is recruited after that date, at the grade mentioned in the notice of competition, or at the corresponding grade under Article 2(1) of Annex XIII to the Staff Regulations, and in accordance with Article 31 of the old Staff Regulations.

An official cannot claim an acquired right unless the facts giving rise to that right arose by virtue of a particular status prior to the amendment of the provisions of the Staff Regulations.

(see paras 70-74, 131)

See:

5 December 1973, 143/73 SOPAD, para. 8; 10 July 1986, 270/84 Licata v ESC, para. 31

Centeno Mediavilla and Others v Commission, paras 52, 58 and 79 to 81

3.      Article 2(1) of Annex XIII to the Staff Regulations provides that, on 1 May 2004, and subject to Article 8 of that Annex, the grades of officials having one of the administrative statuses set out in Article 35 of the Staff Regulations are to be renamed as shown in the table set out in that provision, which specifies for each grade the corresponding new (intermediate) grade.

It is therefore clear from the very wording of Article 2(1) of Annex XIII to the Staff Regulations that that provision relates only to persons who, on 1 May 2004, already had the status of official and were classified in one of the grades shown in the column entitled ‘former grade’.

The grades shown in the table in Article 2(1) of Annex XIII to the Staff Regulations are the former grades of officials in post before 1 May 2004, which were converted into new intermediate grades. Moreover, the sole purpose of Article 2(1) of Annex XIII to the Staff Regulations 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, and it cannot be ascribed a scope which extends beyond the establishment of that intermediate relationship. The provision was thus not intended to be applied to determine the grading of officials who were appointed to the higher category in 2005, as a result of their status as successful candidates in internal competitions for transfer from one category to another the tests for which were held after 1 May 2004.

(see paras 80-82)

See:

Centeno Mediavilla and Others v Commission, para. 112

30 September 2010, F‑20/06 De Luca v Commission, para. 91, on appeal before the General Court of the European Union, Case T‑563/10 P

4.      In internal competitions for transfer from one category to another, the determination of the level of the posts to be filled and of the conditions of appointment of successful candidates to those posts, which the institution concerned had carried out under the provisions of the old Staff Regulations when drawing up the competition notices, could not extend its effects beyond the date of 1 May 2004 adopted by the Union legislature for the entry into force of the new career structure for officials.

The abolition, as from 1 May 2004, of the grades of classification in the career brackets set out in the notices of the competitions, which results from the introduction of the new careers system, prompted the legislature to adopt the transitional provisions of Annex XIII to the Staff Regulations and in particular Article 5(2), for the purpose of determining the classification in grade of successful candidates in competitions who were included on reserve lists before 1 May 2006 but were transferred to the new category after 1 May 2004.

It is true that the gradings determined by Article 5(2) of Annex XIII to the Staff Regulations do not correspond to the grades published in notices of internal competition prior to 1 May 2004 and that that provision conflicts with the rule laid down in Article 31 of the Staff Regulations and reproduced from Article 31 of the old Staff Regulations. However, having regard to its purpose, Article 5(2) 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. It should be remembered that 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.

(see paras 84, 85, 90)

See:

Centeno Mediavilla and Others v Commission, paras 109 and 110

De Luca v Commission, para. 86 and the case-law cited therein

5.      Article 5(2) of Annex XIII to the Staff Regulations concerns officials whose names appeared before 1 May 2006 on a list of candidates suitable for transfer from one category to another and who actually transferred to another category after 1 May 2004. According to Article 45(2) of the old Staff Regulations, officials and other servants could be transferred to another category only on the basis of a competition. By definition this could only be an internal competition. Precisely by mentioning officials whose names appeared on a list of candidates suitable for transfer from one category to another, therefore, the Union legislature intended to refer to candidates who had passed that specific type of competition. It must be inferred that Article 5(2) of Annex XIII to the Staff Regulations only concerns officials changing category as a result of an internal competition

(see paras 87, 88)

See:

28 October 2010, F‑113/05 Kay v Commission, paras 52 and 54

6.      Article 7(1) of Annex XIII to the Staff Regulations provides that the renaming of grades on 1 May 2004 pursuant to Article 2(1) of that Annex must not lead to any changes in the basic monthly salary paid to officials recruited prior to that date. To that end, Article 7(2) provides that, for each official, a multiplication factor is to be calculated at 1 May 2004 which is equal to the ratio between the basic monthly salary paid to each of those officials before 1 May 2004 and the applicable amount defined in Article 2(2) of Annex XIII to the Staff Regulations. Article 2(3) of that Annex provides that the salaries for the new intermediate grades are to be used as the applicable amounts within the meaning of Article 7 of Annex XIII to the Staff Regulations. Article 7 is thus intended to prevent the renaming of grades from leading to any change to the basic monthly salaries of officials recruited under the old Staff Regulations and, in particular, unjust enrichment on their part.

Furthermore, in so far as grades B*3 and B*4 are new intermediate grades expressly referred to in Article 2(3) of Annex XIII to the Staff Regulations, the salaries relating to those new intermediate grades may also be subject to a multiplication factor where the grades are held by persons recruited before 1 May 2004. Although Article 2(2) does not mention any multiplication factor for the new intermediate grades B*3 and B*4, that is because, under paragraph 1 of that same article, those two new intermediate grades do not correspond to any grade in the old Staff Regulations.

Lastly, although footnote 1 to Article 2(2) of Annex XIII to the Staff Regulations states that the figures in italics refer to the amounts of the salaries paid to officials before 1 May 2004 and that they are included merely for explanatory reasons and do not have any legal implication, it is clear that those figures are reproduced for the purpose of calculating the multiplication factor. Consequently, it cannot be inferred from that footnote that the payment, after 1 May 2004, of a salary equal to that paid under the old Staff Regulations would be unlawful.

Furthermore, Article 2(2) of Annex XIII to the Staff Regulations determines the basic monthly salary for each grade and step of the new intermediate grades. According to that provision, read in conjunction with Article 8 of Annex XIII to the Staff Regulations governing the renaming of intermediate grades as new grades in the two function groups created by the new Staff Regulations, the salaries for the various grades and steps in the AST function group are the same as those for the AD function group to which they correspond.

Moreover, Article 45a of the Staff Regulations lays down a system under which, from 1 May 2006, officials no longer transfer from function group AST (replacing the old categories B, C and D) to function group AD (replacing the old category A) by internal competition, but through a ‘certification’ procedure based on successful participation in a training programme. Article 45a(3) of the Staff Regulations expressly provides that appointment to a post in function group AD does not change the grade or step that the official has attained at the moment of his appointment.

In the light of those provisions it is apparent that the Union legislature intended a transfer to the higher function group to entail the performance of administrative duties and more advantageous career prospects, but no immediate salary increase.

Consequently, the new Staff Regulations do not provide for any change in an official’s basic salary, either as a result of their entry into force or as a result of the official’s transfer to the higher function group.

Although it was the legislature’s intention, in adopting Article 5(2) of Annex XIII to the Staff Regulations, to give an advantage to officials who, as a result of an internal competition for change of category, had demonstrated their ability to occupy posts in the higher category, it did not, however, intend them to have a greater advantage than officials who passed a certification procedure after 1 May 2006.

Consequently, in accordance with Article 7 of Annex XIII to the Staff Regulations, and in the absence of express provisions to the contrary in that Annex, the salary of officials appointed under Article 5(2) of Annex XIII to the Staff Regulations must be calculated, like that of officials recruited prior to 1 May 2004, with the application of a multiplication factor.

(see paras 103-113)

See:

11 May 2011, F‑71/09 Caminiti v Commission, para. 46

7.      The right of employees of the same employer performing work of equal value to receive the same remuneration constitutes a specific expression of the general principle of equality, which it is the task of the Civil Service Tribunal to ensure is observed. That right is set out in Article 7 of the International Covenant on Economic, Social and Cultural Rights and in Convention No 111 of the International Labour Organisation.

There is a breach of the principle of equal treatment where two categories of persons whose factual and legal situations are not essentially different receive different treatment or where different situations are treated in the same way. The principle of equal treatment therefore requires that two categories of persons whose factual and legal situations are essentially different must be treated differently.

In comparing officials who passed an internal competition for change of category before 1 May 2006 and were appointed to the higher category after 1 May 2004 with persons who, after passing an open competition, were directly appointed as established officials in that higher category, whether or not they came from a lower category, it is true that officials in the second group receive in reality the basic monthly salaries laid down in Article 2(2) of Annex XIII to the Staff Regulations without the application of any multiplication factor. Since Article 7(2) of Annex XIII to the Staff Regulations only provides for a multiplication factor to be applied to the salaries of officials recruited before 1 May 2004, that provision does not apply to them.

However, the fact that officials in the first group mentioned above passed an internal competition for change of category, and officials in the second group mentioned above passed an open competition, constitutes an objective factor which differentiates the two groups of officials. The officials in the first group were already officials under the old Staff Regulations and passed an internal competition to transfer from one category to another. The officials in the second group, on the other hand, were recruited under the new Staff Regulations after having passed an open competition.

That was why the Union legislature, in exercising its broad discretion, decided to treat the two groups of officials mentioned above differently. In the case of the first group, it decided to give an advantage to those officials, who were successful candidates in an internal competition for change of category before 1 May 2006, by allowing them to be classified, in the higher category, in the same grade and step as they held in the lower category, but without that classification leading to an immediate increase in salary. For the officials in the second group, on the other hand, who were successful candidates in an open competition and recruited under the new Staff Regulations, the legislature decided that, in so far as they were recruited in lower grades than those of officials recruited under the old Staff Regulations to fill the same posts, no multiplication factor would be applied to them.

(see paras 118-123)

See:

18 September 2008, T‑47/05 Angé Serrano and Others v Parliament, para. 142 and the case-law cited therein

30 September 2010, F‑76/05 Torijano Montero v Council, para. 67

8.      Neither Article 45a, Article 5 of Annex XIII nor any other provision of the Staff Regulations mentions, for transfers from one category to another, promotion points accumulated in the former category or, a fortiori, how they should be treated. The Staff Regulations do, however, lay down the basic rules of the legal regime that applies to officials and, according to Article 110(1), it is for each institution to adopt general provisions for giving effect to the Staff Regulations, which may lay down criteria capable of guiding the administration in the exercise of its discretionary power or of explaining more fully the scope of provisions of the Staff Regulations which are not wholly clear. The Commission thus adopted, pursuant to Article 110(1) of the Staff Regulations, general provisions giving effect to Article 45 of the Staff Regulations for the implementation of the promotion procedure.

Appointment to a higher grade following an internal competition is treated as equivalent to a promotion, and the rules of the Staff Regulations concerning promotion properly so called therefore apply.

Consequently, in so far as appointment to a higher grade following an internal competition is treated as equivalent to a promotion, the same should, a fortiori, be true of an appointment to the higher grade following an internal competition for change of category: a transfer to the higher category, which involves the performance of different duties, constitutes a promotion and the rules governing promotion apply.

The non-cancellation of points accumulated by an official appointed to a higher category on the basis of Article 5(2) of Annex XIII to the Staff Regulations would have the effect of facilitating that official’s promotion mainly on the basis of points acquired in his former category, which would contradict Article 45 of the Staff Regulations, according to which the merits of an official eligible for promotion must be compared with those of colleagues in the same grade. That article of the Staff Regulations clearly states that the administration must take into account, when considering the comparative merits of officials eligible for promotion in the same grade, the promotion points which they have accumulated in the grade in question. The points accumulated by an official before his transfer from one category to another correspond to merits demonstrated in a post in a lower category and in the performance of a different type of duties. Those points therefore served for promotion to the next grade in the lower category and cannot serve for promotion to the next grade in the higher category, in which the official has not yet demonstrated his merits.

In such a case, the retention of accumulated points would have the effect of enabling an official classified in accordance with Article 5(2) of Annex XIII to the Staff Regulations following a transfer from one category to another to have a greater chance of rapid promotion than colleagues in the same grade who were promoted to the higher category under Article 45 of the Staff Regulations, which would be contrary to Article 5(5) of the Staff Regulations, as regards conditions of career development, and would infringe the principle of equal treatment, which requires that all officials in the same grade should, where their merits are equal, have the same chance of promotion to the higher grade.

Consequently, accumulated promotion points must be cancelled where an official is appointed to the higher category pursuant to Article 5(2) of Annex XIII to the Staff Regulations.

(see paras 141-143, 146, 147, 149)

See:

13 December 1984, 20/83 and 21/83 Vlachos v Court of Justice, paras 22 to 24

20 November 2007, T‑308/04 Ianniello v Commission, para. 38

28 June 2007, F‑21/06 Da Silva v Commission, para. 75