JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

28 June 2007

Case F-21/06

Joao da Silva

v

Commission of the European Communities

(Officials – Appointment in grade – Post of director advertised before 1 May 2004 – Amendment of the Staff Regulations – Article 2 and Article 5(5) of Annex XIII to the Staff Regulations – Classification in grade pursuant to new, less favourable provisions – Principle that all officials are entitled to reasonable career prospects)

Application: brought under Articles 236 EC and 152 EA, in which Mr da Silva seeks, first, annulment of the Commission’s decision of 18 May 2005 fixing his grade as a Director at A*14, step 2, secondly, his classification in grade A*15 in accordance with the provisions of vacancy notice COM/R/8003/03, published on 7 November 2003 (OJ C 268 A, p. 1), and full restoration of his career prospects with retrospective effect to the date of his rectified classification in grade and step, including payment of default interest.

Held: The Commission’s decision of 18 May 2005 is annulled inasmuch as it classifies the applicant as a Director in grade A*14, step 2. The Commission is ordered to pay its own costs and those of the applicant. The Council, as an intervener, is ordered to bear its own costs.

Summary

Officials – Recruitment – Application of Article 29(2) of the Staff Regulations

(Staff Regulations, Art. 29(2); Annex XIII, Art. 5(5); Council Regulation No 723/2004)

In the absence of any transitional provision in Regulation No 723/2004 amending the Staff Regulations of Officials and the Conditions of Employment of Other Servants, in order to determine the classification in grade and step of an official appointed to a higher post after that regulation came into force on 1 May 2004, as the result of a recruitment procedure launched before that date pursuant to Article 29(2) of the Staff Regulations, it is appropriate to be guided by the solution adopted by the Community legislature in Article 5(5) of Annex XIII to the Staff Regulations for appointments to the post of director through promotion, and to place the official in the ‘next higher grade’.

The recruitment procedure opened pursuant to Article 29(2) of the Staff Regulations can, when it benefits an official or a member of the temporary staff in active employment, be treated as a promotion. In such a case, appointment to a higher post cannot be considered to be a second recruitment to the institution with the effect of interrupting the career of the person concerned, but must be regarded as an advance in his career, and it cannot result in his demotion in grade or step and, consequently, in a decrease in his salary, without there being a breach of the principle that every official has the right to reasonable career prospects within his institution, as set out in the Staff Regulations. Such a solution is all the more necessary since it is in accordance with the administration’s duty to have regard for the welfare of officials, which in particular implies that when the relevant authority takes a decision concerning the position of an official, it should take into consideration all the factors capable of affecting its decision and that when doing so it should take into account not only the interests of the service but also those of the official concerned, since an official appointed to a higher post in recognition of his personal merits has a legitimate interest, provided it is not contrary to the rules of the Staff Regulations in force, in not having his remuneration reduced.

(see paras 63, 75-76, 79-80)

See:

20/83 and 21/83 Vlachos v Court of Justice [1984] ECR 4149, para. 23; C-298/93 P Klinke v Court of Justice [1994] ECR I‑3009, para. 38

T-133/89 Burban v Parliament [1990] ECR II‑245, para. 27; T‑114/98 and T‑115/98 Rodríguez Pérez and Others v Commission [1999] ECR-SC I‑A‑97 and II‑529, para. 32