Action brought on 4 September 2006 - Lübking and Others v Commission

(Case F-105/06)

Language of the case: French

Parties

Applicants: Johannes Lübking (Brussels, Belgium) and Others (represented by: B. Cortese and C. Cortese, lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicants claim that the Tribunal should:

annul the decision of the Appointing Authority published in Administrative Notice No 85-2005 of 23 November 2005, in so far as it provided for the applicants' promotion to grade A*9, step 1;

so far as necessary, annul the Appointing Authority's decision of 23 May 2006 in so far as it rejected the complaint submitted by the applicants;

order the defendant to pay the costs.

Pleas in law and main arguments

The applicants, Commission officials, challenge the Appointing Authority's decision to promote them in the 2005 promotion procedure to grade A*9, a new grade inserted since 1 May 2004 between grades A*8 (formerly A7) and A*10 (formerly A6). They claim that the Appointing Authority should have promoted them, not to grade A*9 but to grade A*10, as it did in the 2004 promotion procedure for officials who, like the applicants, on 30 April 2004 were classified in grade A7 and were eligible for promotion to the higher grade A6.

In support of their action, the applicants raise three pleas, the first of which alleges infringement of the principles of equal treatment and reasonable career prospects. The applicants claim that, in accordance with those principles, the officials who on 30 April 2004 were classified in grade A7 (renamed grade A*8 from 1 May 2004) and were eligible for promotion to the higher grade should all be subject to identical conditions as regards career progress. However, the officials who were promoted in November 2004 in the 2004 procedure - thus after the entry into force of the new Staff Regulations - were appointed after promotion to grade A*10, while those - such as the applicants - promoted in the 2005 procedure were only appointed to a lower grade, namely the intermediate grade A*9, even though the two groups of persons referred to above were in a position which was comparable in all respects.

In connection with this plea, the applicants also raise a plea of illegality for the purpose of Article 241 EC of the General Implementing Provisions ('GIP') of Article 45 of the Staff Regulations applicable to the 2005 promotion procedure or, more fundamentally, of Article 45 of Annex XIII to the Staff Regulations, in that those provisions did not lay down transitional measures intended to ensure the observance of the principles of equal treatment and reasonable career prospects between officials who were of grade A7 on 30 April 2004 and eligible for promotion on that date to the higher grade A6.

By their second plea, the applicants allege there was an infringement of the principle of the protection of legitimate expectations. They claim, inter alia, that Article 10(5) of the GIP of Article 45 of the Staff Regulations applicable to the 2004 promotion procedure guarantees to A7 officials eligible for promotion on 30 April 2004 (and reclassified as A*8 on 1 May 2004) career progress conditions comparable to those which they would have had under the career structure applicable until that date, by providing for, by means of a legal fiction (retroactive promotion) their promotion from grade A*8 directly to grade A*10. The applicants maintain that the adoption of that transitional measure created the legitimate expectation on their part that a measure having the same effect would also be adopted in subsequent promotion procedures.

The third plea alleges that no reasons were stated for the contested decision. The applicants claim in that regard that, even if, by its nature, the promotion decision does not need to contain specific reasons for the Appointing Authority's choice, the authorities are nevertheless required to give reasons for their choice in the reply to the complaint brought against that decision. However, in the present case, the Appointing Authority only answered the complaints set out by the applicants very superficially and, in particular, did not answer the fundamental question raised by the complaint, which is connected with the inequality of treatment between A7 officials (reclassified as A*8) promoted in the 2005 promotion procedure and their counterparts promoted in the 2004 promotion procedure.

____________