Action brought on 20 April 2007 - Francesco Caleprico v Commission

(Case F-38/07)

Language of the case: Italian

Parties

Applicant: Francesco Caleprico (Brussels, Belgium) (represented by: V. Guagliulmi, lawyer)

Defendant: Commission of the European Communities

Form of order sought

declare Articles 12 and 13 of Annex XIII to the Staff Regulations inapplicable, as provided for in Article 241 EC, in that they are unlawful;

annul the decision by which the appointing authority implicitly rejected the complaint submitted by the applicant against the decision of 12 June 2006;

annul in part the decision of the Commission of 12 June 2006, in so far as the appointing authority established the applicant in grade AD6/2 rather than AD8/3;

order the Commission to replace the contested part of the decision of 12 June 2006 with a part establishing the applicant in grade AD8/3 with retroactive effect (from 1 July 2006);

order the Commission to pay the applicant all the amounts which he has not received on account of the unlawfulness of the contested decisions, plus interest due and becoming due;

order the Commission to compensate all and any other damage suffered by the applicant as the Court of First Instance may deem fit in the present case;

order the Commission to pay the costs.

Pleas in law and main arguments

The applicant, placed on the reserve list of competition EUR/A/155/2000 ¹ for the establishment of a list of suitable candidates for grades A7/A6, was employed after Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities ² came into force, and established in grade AD6/2.

In support of his application, the applicant pleads two grounds.

In connection with the first plea, he submits that the decision of 12 June 2006 is vitiated by a conflict between, on the one hand, the reference in the preamble to Article 31 of the Staff Regulations, according to which candidates are to be appointed to the grade of the function group set out in the notice of the competition, and, on the other hand, the operative part of that decision which establishes him in grade AD6/2.

In connection with the second plea, he claims that, in any event, the decision at issue is unlawful because it is founded on an implicit legal basis (Articles 12 and 13 of Annex XIII to the Staff Regulations) which is unlawful under the following heads:

-    breach of the principles of legal certainty and the protection of legitimate expectations;

-    breach of the principle of non-discrimination and equal treatment;

-    breach of the principle of reasonableness, considering that the application of the new body of rules depends on a circumstance which is absolutely fortuitous, such as that of being recruited before or after a particular date, without any other reason justifying such a rule;

-    breach of the principle of sound administration;

-    in the alternative, infringement of the obligation to state the reasons on which Community measures are based laid down in Article 251 EC.

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¹ - OJ C 147 A of 25.5.2000, p. 10.

² - OJ L 124 of 27.4.2004, p. 1.