JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

8 November 2007

Case F-125/06

Walter Deffaa

v

Commission of the European Communities

(Civil service – Officials – Reform of the Staff Regulations – Transfer – Post of Director-General – Grading – Article 7(1) of the Staff Regulations – Article 29(1) of the Staff Regulations – Second paragraph of Article 44 of the Staff Regulations – Article 45(1) of the Staff Regulations – Management premium)

Application: brought under Articles 236 EC and 152 EA, in which Mr Deffaa seeks annulment of the decision of the President of the Commission of 12 January 2006 promoting him to the post of Director-General of DG Internal Audit Service with effect from 1 August 2004, in so far as it grades him in step 4 of Grade A*15, and, in so far as is necessary, annulment of the decision of the Director-General of DG Personnel and Administration of 23 December 2005 refusing him the advance in step, with effect from the date of his appointment as Director-General, provided for in the second paragraph of Article 44 of the Staff Regulations, as amended by Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 (OJ 2004 L 124, p. 1).

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

Summary

1.      Officials – Vacancy – Filled by transfer – Grading

(Staff Regulations, Arts 7(1) and 29; Annex XIII, Art. 2(1), and Annex XIII.1)

2.      Officials – Advance in step – Official occupying a management post

(Staff Regulations, Art. 44, second para.; Annex XIII, Art. 7(4))

1.      An official in the former Grade A 2, renamed A*15 following the entry into force of Regulation No 723/2004 amending the Staff Regulations of Officials of the European Communities and the Conditions of Employment of Other Servants of the European Communities, who has been appointed, in his grade and step, to a post as Director-General at the Commission, having submitted an application following a notice of vacancy for a post in the former grade A 1, renamed A*16, cannot reasonably claim that the Commission was required to appoint him to Grade A*16, the higher grade for the function group in question, in order to confer on him the more senior post of Director-General.

There is no provision of the Staff Regulations which prevents the Commission from appointing officials to Director-General posts in the lower grade of the function group in question, unless they are already classified in the higher grade. Such an appointment in the lower grade of the function group cannot be regarded as incompatible with the principle that every official is entitled to reasonable career prospects within his institution, since an official in Grade A*15 who is transferred to a post as Director-General while retaining his grade can expect to be promoted subsequently to Grade A*16.

Although the notice of vacancy fixed the level of the post to be filled at Grade A 1, the abolition of that grade from 1 May 2004 prior to the introduction of the new career structure led the Commission to have to apply Annex XIII.1 of the Staff Regulations in order to determine the corresponding grade. The basic post of Director-General corresponds to two grades, Grades A*15 and A*16. The fact that the Commission fixed the level of the post to be filled in the notice of vacancy under the provisions of the previous Staff Regulations could not extend the effects of those Staff Regulations beyond the date of 1 May 2004, which the Community legislature chose for the entry into force of the new career structure for Community officials.

It cannot reasonably be argued that it is impossible for the appointing authority to appoint an official to a more senior post without promoting him to the higher grade. The table of different types of posts given in Annex XIII.1 to the Staff Regulations provides that one single grade corresponds to posts at different levels, such as the posts of Director and Director-General in Grade A*15.

(see paras 58-62)

See:

T-58/05 Centeno Mediavilla and Others v Commission [2007] ECR-SC I‑A‑2‑0000 and II-A-2-0000, para. 109

2.      There is a strong correlation between the provisions of the second paragraph of Article 44 of the Staff Regulations governing advancement in step, and of Article 7(4) of Annex XIII to the Staff Regulations governing the management premium, in the versions resulting from Regulation No 723/2004 amending the Staff Regulations of Officials of the European Communities and the Conditions of Employment of Other Servants of the European Communities, so that neither can be applied independently without consideration for the other.

The amount of the financial benefits provided for in those two provisions is identical, and even if the rules for granting them differ, they have clear similarities in their subject-matter and purpose, which is to compensate for the stresses inherent in middle or senior management posts.

Moreover, accepting that an official recruited before 1 May 2004 and performing management duties could receive both the management premium and the advancement in step, whereas officials recruited after 30 April 2004 and performing management duties can never, in any event, claim the management premium, would have the effect of creating, without any objective justification, unequal treatment between officials in the application of the new provisions introduced at the time of the administrative reform, depending on whether they were recruited before or after that reform came into force.

(see paras 82, 84-88)