JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(Second Chamber)

18 May 2015

Case F‑11/14

Bruno Dupré

v

European External Action Service (EEAS)

(Civil service — Staff of the EEAS — Member of the temporary staff — Article 98 of the Staff Regulations — Article 2(e) of the CEOS — Contract of employment — Grading — Plea of illegality of the vacancy notice — Post at grade AD 5 open to staff from national diplomatic services and to officials of grades AD 5 to AD 14 — Principle of correspondence between the grade and the post — Judgment by default)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Dupré seeks annulment of his contract of employment as a member of the temporary staff of the European External Action Service (EEAS), signed on 1 April 2013, in so far as he was recruited at grade AD 5, and compensation for the harm allegedly suffered.

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

Summary

1.      Officials — Members of the temporary staff — Recruitment — Grading — Correspondence between grade and post — Employment in a post formerly occupied by an official at a higher grade — Circumstance not precluding recruitment at a lower grade — Appointment of a member of staff of a Member State’s national diplomatic service as a member of the temporary staff — Taking into consideration of functions previously performed as a seconded national expert — Precluded

(Staff Regulations, Arts 5, 32 and 98(1); Conditions of Employment of Other Servants, Arts 2(e), 15(1) and 50b; Council Decision 2010/427)

2.      Officials — Recruitment — Grading — Introduction of a new career structure by Regulation No 723/2004 — Correspondence between grade and post — Infringement solely where functions performed fall far short of the grade and post in question

(Staff Regulations, Art. 7 and Annex I, Section A)

3.      Officials — Recruitment — Grading — Appointment of a member of staff of a Member State’s national diplomatic service as a member of the temporary staff — Recruitment at the grade in the vacancy notice without taking account of seniority — Difference in treatment compared with established officials who are entitled to retain their grade — No discrimination

(Charter of Fundamental Rights, Art. 21(1); Staff Regulations, Art. 1d; Conditions of Employment of Other Servants, Arts 2(e) and 50b; Council Decision 2010/427, Art. 6(7))

1.      The rule that the post should correspond to the grade calls for a comparison between the functions performed by the official or other staff member and his grade in the hierarchy, regard being had to their nature, their importance and their scope.

In that respect, the fact that an official or other staff member is employed in a post formerly occupied by an official at a higher grade is not such as to affect the legality of a grading decision under which he was recruited at the basic grade in the AD function group in accordance with the vacancy notice to which he had responded.

As regards the grade in which a member of staff seconded from a Member State’s national diplomatic service is placed upon his appointment by an EU body as a member of its temporary staff, the functions previously performed by the person concerned as a seconded national expert within that same body cannot be taken into consideration for the purposes of comparison with the functions corresponding to the post occupied as a member of the temporary staff since, as a seconded national expert, he was not eligible for grading under the Staff Regulations.

(see paras 54, 57, 58)

See:

Judgments in Michail v Commission, F‑100/09, EU:F:2011:132, para. 65, and BV v Commission, F‑133/11, EU:F:2013:199, paras 64 to 67

2.      Since the amendment of the Staff Regulations on 1 May 2004, apart from grades AD 15 and AD 16, which are reserved for posts of Director and/or Director General, the Staff Regulations do not establish any correspondence between the functions performed and a particular grade, but allow grade and function to be separated, with the consequence that officials in the AD function group follow a linear career path which can progress, through promotion, from grade AD 5 up to grade AD 14.

Thus, the same or similar functions may be performed by officials or temporary staff in different grades, as is apparent from Annex I, Section A, of the Staff Regulations, which provides, for most of the functions set out therein, that they may be performed by officials in different grades. Consequently, there is a breach of the rule that the post should correspond to the grade only where the functions performed, taken as a whole, fall far short of those corresponding to the grade and post of the official or other staff member concerned.

(see paras 60, 62, 77)

See:

Judgments in Bouillez and Others v Council, F‑53/08, EU:F:2010:37, para. 54, and Z v Court of Justice, F‑88/09 and F‑48/10, EU:F:2012:171, para. 138, on appeal before the General Court of the European Union, Case T‑88/13 P

3.      There is a breach of the principle of equal treatment where two categories of persons whose factual and legal situations are not essentially different receive different treatment and where different situations are treated in an identical manner.

There is no breach of the principle of equal treatment where a vacancy notice published by an EU body provides, first, that if the post is filled by an official he will retain his grade and, second, that if it is filled by secondment of a member of staff of a Member State’s diplomatic service he will be recruited as a member of the temporary staff in grade AD 5, which has the effect of preventing the latter from asserting his seniority, in so far as EU officials and staff of the Member States’ national diplomatic services who are seconded to an EU institution or body are not in an identical or a similar situation as regards the framework within which their career is supposed to progress, or indeed the way in which their administration of origin assesses their seniority.

Officials in the AD function group are intended, as such, to follow a career path within the EU institutions, performing, inter alia, conceptual and analytical functions in grades AD 5 to AD 14.

However, it is apparent from Article 50b of the Conditions of Employment of Other Servants that staff from the national diplomatic services of the Member States, even if they are engaged as temporary staff under Article 2(e) of those Conditions of Employment, are supposed to resume their career path subsequently in their administration of origin, since they may be engaged by an EU institution or agency only for a maximum period of four years, renewable for one further period of up to four years, with the possibility, in exceptional circumstances, of an additional contract extension of two years, giving a maximum total secondment of ten years, with a guarantee of immediate reinstatement by the Member States at the end of their period of service in the EU institution or agency.

(see paras 69, 73-76)

See:

Judgment in Afari v ECB, T‑11/03, EU:T:2004:77, para. 65 and the case-law cited therein

Judgment in Schönberger v Parliament, F‑7/08, EU:F:2009:10, para. 45 and the case-law cited therein