ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(Third Chamber)
16 December 2015
Case F‑118/14
Wolfgang Bärwinkel
v
Council of the European Union
(Civil service — Officials — Reform of the Staff Regulations — Transitional rules concerning assignment to types of post — Article 30(3) of Annex XIII to the Staff Regulations — Concept of an act adversely affecting an official — Decision recognising that certain officials hold special responsibilities — Non-inclusion of the applicant in the first list of 34 officials recognised has holding special responsibilities — Requirements relating to the pre-litigation stage — Lack of any complaint within the meaning of Article 90(2) of the Staff Regulations — Article 81 of the Rules of Procedure)
Application: under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, by which Mr Bärwinkel seeks, essentially, annulment of Decision No 6/14 of the Secretary-General of the Council of the European Union of 1 January 2014, relating to the assignment of officials in grades AD 9 to AD 14 holding special responsibilities to the type of post ‘head of unit or equivalent’ or ‘adviser or equivalent’ before 31 December 2015, and of the decision of the Secretary-General of the Council of 13 January 2014, assigning 34 officials of that institution to the type of post ‘head of unit or equivalent’ pursuant to Decision No 6/14.
Held: The action is dismissed as manifestly inadmissible. The parties shall each bear their own costs.
Summary
1. Actions brought by officials — Acts adversely affecting an official — Concept — Measure of general scope — Action brought by an official against a decision of an institution laying down provisions implementing Article 30(3) of Annex XIII to the Staff Regulations — Inadmissibility
(Staff Regulations, Arts 90 and 91 and Annex XIII, Art. 30(3))
2. Actions brought by officials — Acts adversely affecting an official — Concept — Refusal to include the person concerned in the list of officials recognised as holding special responsibilities within an institution — Non-inclusion arising from an amendment of the Staff Regulations having the effect of imposing a ceiling on the careers of administrators in grade AD 12 — Not included
(Staff Regulations, Arts 45 and 90(1) and Annex XIII, Art. 30(3))
3. Actions brought by officials — Prior administrative complaint — Time-limits — Decision recognising that certain officials hold special responsibilities — Complaint against non-inclusion of the person concerned in the list of officials so recognised — Inadmissibility
(Art. 336 TFEU; Staff Regulations, Arts 45, 90, 91(1) and Annex XIII, Art. 30(2) to (4))
1. Since an official or other servant is not entitled to act in the interests of the law or of the institutions and may put forward, in support of an action, only such claims as relate to him personally, a claim seeking annulment of a decision of an institution laying down provisions implementing Article 30(3) of Annex XIII to the Staff Regulations, as amended by Regulation No 1023/2013, must be dismissed as being manifestly inadmissible, regardless of the fact that the official or other servant concerned sought to challenge that decision in his complaint and the appointing authority rejected that complaint on its merits.
That decision is a measure of general scope and does not involve the adoption of a definitive position by the administration as to the individual situation of the person concerned. Accordingly, it does not constitute a decision affecting that person directly and individually.
(see paras 40, 41)
See:
Order of 8 March 2007 in Strack v Commission, C‑237/06 P, EU:C:2007:156, paragraph 64
Judgments of 21 July 1998 in Mellett v Court of Justice, T‑66/96 and T‑221/97, EU:T:1998:187, paragraph 83, and 29 November 2006 in Agne-Dapper and Others v Commission and Others, T‑35/05, T‑61/05, T‑107/05, T‑108/05 and T‑139/05, EU:T:2006:365, paragraph 56
2. In relation to a decision of the administration to assign some of the institution’s officials to the type of post ‘head of unit or equivalent’ (introduced by Regulation No 1023/2013 amending the Staff Regulations of Officials of the European Union and the Conditions of Employment of Other Servants of the European Union), made pursuant to an internal decision laying down implementing provisions for Article 30(3) of Annex XIII to the Staff Regulations, as amended by that regulation, to the extent that the list of officials it contains does not include an official in grade AD 13, that decision cannot be regarded as a decision of the appointing authority refusing to grant that official the benefit of the derogating provisions in Article 30(3) of Annex XIII to the new Staff Regulations, or as a decision of that authority affecting his career prospects by depriving him of the possibility of being promoted to grade AD 14 under the amended Staff Regulations.
That conclusion is reinforced, first, by the fact that, in the case of an measure of a general nature designed to be implemented by means of a series of individual decisions affecting numerous officials of an institution, the non-application of that general measure to a particular case could not be regarded as a decision, even an implied decision, rejecting a request under Article 90(1) of the Staff Regulations.
Secondly, in relation to promotion, an official who is not included in the annual list of promoted officials may bring a complaint directly against that list since, by reason of the appointing authority’s obligation to carry out an annual promotion exercise, the non-inclusion of the official on that single list signifies that the appointing authority, which is required, annually, to consider the comparative merits of all its officials, has refused to promote the person concerned in the promotion exercise in question, reflecting the fact that a definitive assessment has been made by the appointing authority in relation to the official’s situation.
However, the same does not apply to the derogating provisions of Article 30(3) of Annex XIII to the new Staff Regulations which, moreover, are optional and do not require any consideration of comparative merits such as is referred to in Article 45 of the Staff Regulations. First, in using the terms ‘may be assigned’ in Article 30(3), the EU legislature merely conferred a power on each appointing authority to use or not to use the derogating provisions, while limiting the exercise of that power in terms of time (decisions of the appointing authority being required to be made before 31 December 2015) and number (the total number of officials benefiting from the derogation being limited to 5% of the officials in function group AD on 31 December 2013).
Secondly, the use of the words ‘may identify’, ‘may assign’ and ‘at any time between 1 January 2014 and 31 December 2015’, in the internal decision laying down provisions implementing Article 30(3) of Annex XIII to the amended Staff Regulations, clearly indicates that the appointing authority had not, by that decision, decided to bind itself to use the derogating provisions of Article 30(3) of Annex XIII to the new Staff Regulations, or to do so by means of a single assignment decision.
(see paras 47-51)
See:
Judgment of 16 October 1980 in Hochstrass v Court of Justice, 147/79, EU:C:1980:238, paragraph 3
Judgment of 19 October 2006 in Buendía Sierra v Commission, T‑311/04, EU:T:2006:329, paragraph 108 and the case-law cited therein
3. In relation to the derogating provisions concerning the promotion of administrators in grade AD 12 or above contained in Article 30(3) of Annex XIII to the Staff Regulations, as amended by Regulation No 1023/2013 amending the Staff Regulations of Officials of the European Union and the Conditions of Employment of Other Servants of the European Union, if an official wished to obtain the benefit of those provisions, the appropriate course was not to make a complaint against his non-inclusion in the list of officials benefiting from them and assigned to the type of post ‘head of unit or equivalent’, but to submit a request to the appointing authority under Article 90(1) of the Staff Regulations, such a request being required, in any circumstances, to be submitted before the date on which the period laid down by Article 30(3) expired, namely 31 December 2015.
The power to make a derogating assignment provided for by Article 30(3) of Annex XIII to the amended Staff Regulations is available until 31 December 2015. Furthermore, unlike the mandatory assignment provided for by Article 30(2) of Annex XIII to the amended Staff Regulations, the power to make a derogating assignment does not relate to the posts occupied and duties performed by the officials as at 31 December 2013, but, on the contrary, to the responsibilities, which must be ‘special’, held on the date on which the appointing authority exercises that power, subject to the clear proviso, under Article 30(4) of Annex XIII to the amended Staff Regulations, that an assignment made in the exercise of that power ceases to be valid in the event of the official being assigned to a new function corresponding to another type of post.
(see paras 55, 56)
See:
Order of 16 July 2015 in FG v Commission, F‑20/15, EU:F:2015:93, paragraphs 31 and 66