ORDER OF THE CIVIL SERVICE TRIBUNAL
28 September 2011

Case F‑66/06

Kalliopi Kyriazi

v

European Commission

(Civil service – Officials – Appointment – Internal competition published before 1 May 2004 – Member of the temporary staff appearing on the list of suitable candidates before 1 May 2006 – Grading – Articles 5(4) and 12(3) of Annex XIII to the Staff Regulations – Secretarial allowance – Action in part clearly inadmissible and in part clearly unfounded)

Application:      received by the Registry of the Tribunal on 16 June 2006, in which Ms Kyriazi brought the present action seeking, principally, annulment of the Commission’s decision of 12 September 2005, notified on 20 September 2005, appointing her a probationary official from 16 April 2005, in so far as that decision fixed her classification in intermediate Grade C*1, now AST 1, step 2, as well as annulment of all measures consecutive and/or relating to that decision, such as the decision to withdraw and not re-establish her secretarial allowance after her establishment.

Held:      The action is dismissed. The applicant and the Commission are each ordered to bear their own costs. The Council, which intervened, is to bear its own costs.

Summary

1.      Officials – Actions – Prior administrative complaint – Time-limits – Point from which time starts to run – Action against a decision to withdraw an allowance – Communication of salary slip indicating that decision – Condition

(Staff Regulations, Arts 90(2) and 91)

2.      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 – Successful competition candidates appearing on lists of suitable candidates before 1 May 2006 and recruited after 1 May 2004 – Application of the new provisions – Transposition of grades set out in the competition notice into intermediate grades – Legality

(Staff Regulations, Art. 31(1); Annex XIII, Arts 2(1) and 12(3); Conditions of Employment of Other Servants, Annex, Art. 1; Council Regulation No 723/2004)

3.      Officials – Recruitment – Appointment in grade – Introduction of a new career structure by Regulation No 723/2004 – Transitional provisions for classification in grade – Successful competition candidates appearing on lists of suitable candidates before 1 May 2006 and recruited after 1 May 2004 – Application of Article 5(4) of Annex XIII to the Staff Regulations – Conditions

(Staff Regulations, Art. 31(1); Annex XIII, Arts 5(4), 12(3) and 13(1); Council Regulation No 723/2004)

4.      Officials – Recruitment – Assignment of grade and classification in step – Member of the temporary staff appointed as an official – Retention of grade and step held as member of the temporary staff – Conditions

(Staff Regulations, Art. 32; Annex XIII, Art. 5(4); Conditions of Employment of Other Servants, Art. 8)

1.      According to Article 90(2) of the Staff Regulations, a complaint against an act adversely affecting an official, in particular against a decision to withdraw the secretarial allowance, must be lodged within three months starting ‘on the date of notification of the decision to the person concerned, but in no case later than the date on which the latter received such notification, if the measure affects a specified person’.

It is true that, generally speaking, to impose the requirement that the official concerned lodge a complaint at the latest within three months of receipt of the salary slip that would have enabled him to have effective knowledge of the contested decision would have the effect, in such a situation, of rendering meaningless the second paragraph of Article 25 and the second and third paragraphs of Article 26 of the Staff Regulations, the aim of which is precisely to allow officials to take effective cognisance of decisions regarding, in particular, their administrative situation and to claim the rights guaranteed them by the Staff Regulations.

On the other hand, where the institution is not required to adopt a separate decision because the applicant’s relationship with the institution under the Staff Regulations has been interrupted and the applicant, who is no longer covered by the personal scope of Article 18 of Annex XIII to the Staff Regulations, is therefore not entitled to that allowance, it is not unlawful under the Staff Regulations to require the applicant to lodge a complaint at the latest within three months of receipt of the salary slip.

(see paras 48, 52, 54)

See:

28 June 2006, F‑101/05 Grünheid v Commission, para. 52

2.      Article 31(1) of the Staff Regulations provides that the successful candidates in a competition are to be appointed to the grade of the function group set out in the notice of the competition they have passed.

It is necessarily to be inferred from that provision that successful candidates in competitions for access to the civil service must be appointed probationary officials at the grade set out in the notice of the competition as a result of which they have been recruited. However, the determination of the importance of the posts to be filled and of the conditions for the appointment of the successful candidates to those posts, which the institution had carried out under the provisions of the old Staff Regulations when it drew up the competition notice, 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 right of successful competition candidates to be given the grade stated in the notice of competition can apply only where the law is unchanging, because the legality of a decision is assessed on the basis of the elements of law in force at the time it is adopted and that provision cannot therefore compel the appointing authority to take a decision which is incompatible with the Staff Regulations as amended by the legislature and therefore unlawful.

The sole purpose of the transitional measure contained in Article 2(1) of Annex XIII to the Staff Regulations was to convert, on 1 May 2004, the grades held by officials and other staff 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. That provision, read in conjunction with Article 1 of the Annex to the Conditions of Employment of Other Servants, relates only to those who, on 1 May 2004, were already classified in one of the grades listed in the column entitled ‘former grade’, since it was the legislature’s intention to maintain the situation acquired by staff before that date. In the case of temporary staff, however, the acquired situation may be guaranteed only as long as there continues to be a relationship governed by the Staff Regulations.

The abolition, as from 1 May 2004, of the grades of classification in the career brackets set out in those competition notices, 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 12(3), for the purpose of determining the classification in grade of successful candidates in competitions published before or after 1 May 2004 who were included on lists of suitable candidates before 1 May 2006 and were recruited between 1 May 2004 and 1 May 2006.

It is true that the table in Article 12(3) of Annex XIII to the Staff Regulations, which transposes the grades set out in the competition notices into intermediate grades of recruitment, differs from the table in Article 2(1) of that annex, in which the former grades of officials in post prior to 1 May 2004 are converted into new intermediate grades.

It is however open to the legislature to adopt, for the future, in the interests of the service, amendments to the provisions of the Staff Regulations, even if the amended provisions are less favourable than the former provisions.

(see paras 61-65, 68-70)

See:

22 December 2008, C‑443/07 P Centeno Mediavilla and Others v Commission, para. 100

30 September 1998, T‑121/97 Ryan v Court of Auditors, para. 98; 11 July 2007, T‑58/05 Centeno Mediavilla and Others v Commission, para. 109

3.      Article 5(4) of Annex XIII to the Staff Regulations concerns temporary servants ‘whose names appear on the list of candidates suitable for transfer from one category to another’ and those ‘on the list of successful candidates of an internal competition’. Although a competition for ‘change of category’ is also, by its very nature, an internal competition, the provision in question must be interpreted in such a way as to render it effective, avoiding, as far as possible, any interpretation which would lead to the conclusion that the provision is redundant. It appears that the legislature intended ‘internal competition’ to mean competitions for the establishment of members of the temporary staff, the purpose of which is to allow the recruitment as officials, in compliance with all the provisions of the Staff Regulations governing access to the European civil service, of staff who already have a certain experience of the institution and have demonstrated their ability to occupy the posts to be filled. That interpretation is borne out by the wording of Article 5(2) of Annex XIII to the Staff Regulations, which refers only to officials whose names appear ‘on the list of candidates suitable for transfer from one category to another’, without mentioning officials ‘on the list of successful candidates of an internal competition’. There would have been no reason for making such a reference given that there is, precisely, no reason to establish as officials staff who already are officials.

For Article 5(4) of Annex XIII to the Staff Regulations to be applicable, there must have been a transfer from a ‘former category’ to a ‘new category’ following either a competition which has led to the establishment of a ‘list of candidates suitable for transfer from one category to another’, or an internal competition for the establishment of members of the temporary staff, which has resulted in such a change of category. The legislature has thus, in exercising its broad discretion regarding transitional arrangements and classification criteria, departed from the general rule governing the classification of newly recruited officials set out in Article 31(1) of the Staff Regulations, as supplemented by Article 12(3) or Article 13(1) of Annex XIII to the Staff Regulations, in the case of successful candidates included in a list of suitable candidates before 1 May 2006 and recruited between 1 May 2004 and 30 April 2006 and after 1 May 2006 respectively, by reserving the benefit of classification in a grade other than that stated in the notice of competition for staff recruited as probationary officials who already have experience of the institution and have demonstrated, following the competitions referred to above, their suitability to occupy posts in a higher category.

(see paras 82-83, 88, 89)

See:

6 March 1997, T‑40/96 and T‑55/96 de Kerros and Kohn-Bergé v Commission, paras 45 and 46; 12 November 1998, T‑294/97 Carrasco Benítez v Commission, para. 51

12 May 2010, F‑13/09 Peláez Jimeno v Parliament, paras 40, 41, 46 and 47

4.      European Union law does not expressly enshrine either a principle of continuity of career or a principle of entitlement to a career. A fortiori, entitlement to reasonable career prospects for a member of the temporary staff is not generally recognised by Union law. The third paragraph of Article 32 of the Staff Regulations merely provides that members of the temporary staff are to retain the seniority in step acquired in that capacity if they are appointed officials

Article 32 of the Staff Regulations and Article 8 of the Conditions of Employment of Other Servants, in the versions in force before 1 May 2004, refer, in respect of temporary staff, to the possibility of continuing their career as an official in accordance with the procedures laid down in the Staff Regulations and, in that case, the seniority in step acquired as a temporary agent is to be preserved if the servant in question is appointed an official in the same grade immediately following the period of temporary service.

The fact remains, however, that, first, the abovementioned provisions merely ensure that a member of the temporary staff who is appointed an official in the same grade retains his seniority in step, and, second, that continuity of career is ensured in accordance with the procedures laid down in the Staff Regulations. Lastly, it is clear that, apart from Article 5(4) of Annex XIII to the Staff Regulations, which, being a transitional provision, is to be interpreted restrictively, the other provisions of the Staff Regulations do not give members of the temporary staff the possibility of being appointed as officials in the grade they held if that grade was higher than the one published for the competition which they passed.

(see paras 99, 107, 108)

See:

9 October 2008, C‑16/07 P Chetcuti v Commission, para. 46

5 March 2008, F‑33/07 Toronjo Benitez v Commission, para. 87