ORDER OF THE CIVIL SERVICE TRIBUNAL (Second Chamber)
11 May 2011

Case F‑71/09

Paolo Caminiti

v

European Commission

(Civil service — Officials — Action manifestly lacking any foundation in law — Entry into force of Regulation (EC, Euratom) No 723/2004 — Articles 44 and 46 of the Staff Regulations — Article 7 of Annexe XIII to the Staff Regulations — Classification — Multiplication factor — Promotion points)

Application:      brought under Articles 236 EC and 152 EA, in which Mr Caminiti seeks annulment of the administration’s decision to classify him in grade AST 9, step 4, with a multiplication factor equal to 1, contained in his salary slips of March 2009 and subsequent months, and, consequently, his reclassification, with effect from 1 March 2009, in Grade AST 9, step 2, retaining a multiplication factor of 1.071151, as well as ‘the full restructuring of [his] career with retroactive effect from 1 March 2009 to the date of his classification in grade and step as thus corrected (including the valuation of his experience in his classification as thus corrected, his rights of advancement to a higher step and his pension rights), which includes the payment of default interest at the base rate fixed by the European Central Bank for its main refinancing operations, applicable during the period concerned, increased by two points, on all the sums corresponding to [the difference between the salary for] his classification [and the salary for] the classification to which he should have been entitled until the date on which the decision on his corrected classification is taken; in the alternative, the grant of promotion points corresponding to the conversion of the multiplication factor to a “time” factor’.

Held:      The action is dismissed as partly manifestly inadmissible and partly manifestly lacking any foundation in law. The applicant is ordered to refund the Tribunal the sum of EUR 500 under Article 94 of the Rules of Procedure, is to bear his own costs and is ordered to pay the costs of the Commission.

Summary

1.      Officials — Actions — Subject-matter — Direction to the administration — Inadmissibility

(Staff Regulations, Art. 91)

2.      Officials — Remuneration — Transitional rules applicable after the entry into force of Regulation No 723/2004 — First promotion obtained after 1 May 2004 by an official recruited before that date

(Staff Regulations, Annex XIII, Art. 7(5); Council Regulation No 723/2004)

3.      Officials — Remuneration — Transitional rules applicable after the entry into force of Regulation No 723/2004 — First promotion obtained after 1 May 2004 by an official recruited before that date

(Staff Regulations, Annex XIII, Art. 7(5) and (7); Council Regulation No 723/2004)

4.      Procedure — Costs — Costs unreasonably or vexatiously caused to the Civil Service Tribunal by an action by an official that is an abuse of process

(Rules of Procedure of the Civil Service Tribunal, Art. 94)

1.      In the context of an action brought under Article 91 of the Staff Regulations, the Court may not make declarations of principle or findings nor give directions to an institution without encroaching upon the powers of the executive. At the very most the institution might be led to take measures, such as those sought by the applicant, pursuant to a judgment granting the applicant’s claims for annulment.

(see para. 23)

See:

27 June 1991, T‑156/89 Valverde Mordt v Court of Justice, para.150; 30 April 2009, F‑65/07 Aayhan and Others v Parliament, para. 52

2.      The multiplication factors provided for in Article 7 of Annex XIII to the Staff Regulations are a transitional measure intended to guarantee the level of basic monthly salary paid to officials recruited under the previous version of the Staff Regulations, although the factors guarantee not just that the officials to whom they apply do not undergo any reduction in their basic monthly salaries as a result of the entry into force of Regulation No 723/2004 amending the Staff Regulations of Officials and the Conditions of Employment of Other Servants, but also that those same officials do not obtain any increase in their salaries, except for the increase obtained at their first promotion and calculated in accordance with paragraph 5 of the same article, and, if appropriate, the increase resulting from an advancement in step.

A multiplication factor is meaningful only if its value is less than or higher than 1. However, a multiplication factor equal to 1 means that the basic monthly salary of the official concerned corresponds to the basic month salary laid down in the Staff Regulations for his grade and step.

(see paras 47, 48)

See:

2 July 2010, T‑485/08 P Lafili v Commission, paras 87, 88, 95 and 96

3.      The sole purpose of Article 7 of Annex XIII to the Staff Regulations, and particularly paragraph 7, is to guarantee, through the application of multiplication factors, the level of basic monthly salary paid to officials recruited under the previous version of the Staff Regulations, so that their basic monthly salary is not reduced or increased except upon their first promotion, when the increase is calculated in accordance with paragraph 5 of that article, or upon any advancement in step.

The award of extra promotion points would manifestly go beyond the aim of financial neutrality pursued by Article 7 of Annex XIII to the Staff Regulations and would have the effect that the official concerned, who has not completed the years of service in question, would be treated differently not only from the other officials recruited after the entry into force of Regulation No 723/2004 amending the Staff Regulations of officials and the Conditions of Employment of Other Servants, but also from those recruited under the previous version of the Staff Regulations, whose basic month salary was subject to a multiplication factor initially below 1, but subsequently increased to 1 and thus abolished pursuant to Article 7(7) of Annex XIII to the Staff Regulations.

(see paras 63, 64)

See:

30 September 2010, F-107/05 Toth v Commission, paras 71 and 72 and the case‑law cited therein

4.      Under Article 94 of the Rules of Procedure of the Civil Service Tribunal, where a party has caused the Tribunal to incur avoidable costs, in particular where the action is manifestly an abuse of process, the Tribunal may order that party to refund them in whole or in part, but the amount of that refund may not exceed EUR 2 000.

5.      That provision must be applied with regard to an action which, in addition to being manifestly inadmissible or lacking any foundation in law, was brought after the delivery of a judgment of the Civil Service Tribunal on exactly the same legal issue. That is particularly true where, after suspension of the proceedings until the General Court delivered its decision on the appeal against that judgment, the appeal is dismissed, but the applicant pursues his action without justification, by simply leaving it to the Civil Service Tribunal’s discretion.

(see paras 67-69)