JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (Second Chamber)
4 October 2007
Case F-32/06
María del Carmen de la Cruz and Others
v
European Agency for Safety and Health at Work (OSHA)
(Civil service – Contract staff – Reform of the Staff Regulations of Officials – Former local staff – Fixing of classification and remuneration on recruitment – Equivalence of posts – Consultation of the Staff Committee)
Application: brought under Articles 236 EC and 152 EA, in which Mrs de la Cruz, Mrs Estrataetxe, Mrs Grados, Mr Moral and Mr Sánchez, all members of the contract staff of the OSHA, seek annulment of the OSHA’s decisions classifying them in function group II, rather than in function group III, by virtue of their contracts as members of the contract staff of 28 and 29 April 2005, and, in consequence, restoration of all their rights with effect from 1 May 2005 and, in particular, payment of damages and default interest.
Held: The decisions of the European Agency for Safety and Health at Work (OSHA) classifying the applicants in function group II by virtue of their contracts as members of the contract staff, signed on 28 and 29 April 2005, are annulled. The remainder of the heads of claim are annulled. The OSHA is ordered to pay the costs.
Summary
1. Officials – Actions – Interest in bringing proceedings
(Staff Regulations, Arts 90 and 91)
2. Officials – Actions – Prior administrative complaint – Same subject-matter and legal basis
(Staff Regulations, Arts 90 and 91)
3. Officials – Contract staff – Recruitment – Assessment of duties which may fall within the various function groups
(Conditions of Employment of Other Servants, Art. 80(2))
4. Officials – Contract staff – Classification
(Conditions of Employment of Other Servants, Arts 4 and 80(2))
1. An act does not cease to be an act adversely affecting an official if that official consents to it. The opposite view would result in the person being deprived of any opportunity of challenging the act, even if it were unlawful, which would be contrary to the system of remedies laid down by the Treaty and the Staff Regulations.
(see para. 36)
See:
T-587/93 Ortega Urretavizcaya v Commission [1996] ECR‑SC I‑A‑349 and II‑1027, para. 28
2. The rule that there must be consistency between the complaints raised prior to the litigation and the subsequent application initiating proceedings requires that a complaint brought before the Community Courts, if it is not to be inadmissible, must have already been raised in the pre‑litigation procedure, enabling the appointing authority to know in sufficient detail the criticisms made by the person concerned of the contested decision. That rule is justified by the very aim of the pre-litigation procedure, the object of which is to permit an amicable settlement of the differences which have arisen between officials and the administration. The appointing authority must therefore have been clearly informed of the complaints raised by the complainant in order to be in a position to offer him an amicable settlement.
It follows that, in actions brought by officials, claims for relief before the Community judicature may contain only heads of claim based on the same matters as those raised in the complaint, although those heads of claim may be developed before the Community judicature by the presentation of pleas in law and arguments which, whilst not necessarily appearing in the complaint, are closely linked to it. The last requirement must not result in binding strictly and absolutely the judicial stage of the proceedings, provided that the claims submitted at the latter stage change neither the cause nor the object of the complaint.
(see paras 38-42)
See:
58/75 Sergy v Commission [1976] ECR 1139, para. 33; 242/85 Geist v Commission [1987] ECR 2181, para. 9; 224/87 Koutchoumoff v Commission [1989] ECR 99, para. 10; 133/88 Del Amo Martinez v Parliament [1989] ECR 689, paras 9 and 10; C-316/97 P Parliament v Gaspari [1998] ECR I‑7597, para. 17
T-57/89 Alexandrakis v Commission [1990] ECR II‑143, para. 8; T‑175/03 Schmitt v EAR [2004] ECR-SC I‑A‑211 and II‑939, para. 42 and the case-law cited therein
3. In the light of the wide discretion which the institutions or other executive agencies have in assessing the duties which may fall within the various function groups referred to in Article 80(2) of the Conditions of Employment of Other Servants, the Tribunal’s review of compliance with the division of the duties among those function groups must be limited to the question whether the authority authorised to conclude the contracts remained within reasonable bounds and did not use its discretion in a manifestly incorrect way .
(see para. 65)
4. The administration commits a manifest error of assessment by classifying in function group II contract staff who have been assigned duties the performance of which requires a high level of specialised knowledge, particularly in fields such as accounting and financial regulations, tendering procedures, information and document management and computing. Those duties certainly include co-ordination, drafting, management, supervision and even design on occasions, demanding a certain degree of autonomy. Such duties exceed the framework of the ‘clerical and secretarial’ and even ‘office management’ tasks covered by function group II. Even if some of them may correspond to responsibilities specific to function group II, as a whole they are ‘executive tasks, drafting’ or ‘accountancy’ and ‘other equivalent tasks’ within the meaning of Article 80(2) of the Conditions of Employment of Other Servants, typical of the responsibilities covered by function group III.
The fact that the staff reports for the staff members in question relate to a period during which they were employed as local staff is not material, since the tasks assigned to them were not significantly altered after their recruitment as contract staff. Furthermore, the fact that those tasks were carried out in the past by the same staff acting as local staff, under the version of Article 4 of the Conditions of Employment of Other Servants applicable prior to 1 May 2004, cannot be a determining factor for the interpretation and proper application of Article 80(2) of those Conditions of Employment.
It is also not relevant that the applicants perform their tasks under the supervision of an official or member of the temporary staff, since that is the rule set out in Article 80(2) of the Conditions of Employment of Other Servants for all members of the contract staff, regardless of the function group to which they are attached.
(see paras 72-76)