JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

20 May 2014

Case T‑200/13 P

Patrizia De Luca

v

European Commission

(Appeal — Civil service — Officials — Appointment — Classification in grade — Appointment to a post in a higher function group following an open competition — Dismissal of the action at first instance after it was referred back by the General Court — Entry into force of the new Staff Regulations — Transitional provisions — Article 12(3) of Annex XIII to the Staff Regulations)

Appeal:      against the judgment of the European Union Civil Service Tribunal (Third Chamber) of 30 January 2013 in Case F‑20/06 RENV De Luca v Commission [2013] ECR-SC, seeking to have that judgment set aside.

Held:      The appeal is dismissed. Ms Patrizia De Luca and the European Commission are each to bear their own costs in the two proceedings before the General Court and in the two proceedings before the Civil Service Tribunal. The Council of the European Union is to bear its own costs in the two proceedings before the General Court and in the two proceedings before the Civil Service Tribunal.

Summary

Officials — Careers — Change in category or in post following participation in an open competition — Reclassification in grade — Applicable rules — Successful candidates included in lists of suitable candidates before 30 April 2006 — Application of Article 12(3) of Annex XIII to the Staff Regulations — Conditions

(Staff Regulations, Annex XIII, Art. 12(3))

Article 12(3) of Annex XIII to the Staff Regulations governing the grading of officials recruited between 1 May 2004 and 30 April 2006, on the one hand, and the provisions in the Staff Regulations and general principles governing the normal career progression of officials working within the corpus of officials of the European Union, on the other, are two types of rules whose application is mutually exclusive.

Consequently, where Article 12(3) of Annex XIII to the Staff Regulations was applied, there is no need for the Civil Service Tribunal to take into consideration that the person concerned had been promoted, that is to say, to take account of the fact that he was an official already in service. In those circumstances, where the official concerned was to be regarded as newly recruited, the Civil Service Tribunal was right to consider that he should in fact be classified in the appropriate grade without a multiplier, in accordance with Article 12(3) of Annex XIII to the Staff Regulations and the correspondence between grades laid down in the table in that article.

Furthermore, the fact of classifying the official concerned in the appropriate grade without a multiplier does not constitute an infringement of the principle of entitlement to reasonable career prospects, since the exceptional application of the rules on recruitment would have been possible only if the official concerned derived a certain benefit or advantage compared with the application of the rules of the Staff Regulations.

The application of the rules on recruitment is contingent on there being a certain benefit or advantage for the official. Given the existence of such a benefit or advantage, therefore, the application of Article 12(3) of Annex XIII to the Staff Regulations may not be regarded as disproportionate. Having concluded that such a benefit or advantage exists, the Civil Service Tribunal may lawfully conclude that the principle of proportionality was not infringed.

Secondly, it is for the Civil Service Tribunal to assess whether there is a certain benefit or advantage for the official in terms of career development and/or remuneration capable of compensating for the fact that his classification was fixed in a lower grade than the one he already held. That benefit or advantage must necessarily be adequate and sufficient to warrant the application of Article 12(3) of Annex XIII to the Staff Regulations. However, the benefit or advantage resulting from the application of Article 12(3) of Annex XIII certainly does not have to be obvious in order to comply with the terms of the judgment referring the case back to the Civil Service Tribunal.

Thirdly, it was for the court ruling on the facts to assess what might constitute a certain benefit or advantage.

(see paras 37-39, 47, 50, 51)