ORDER OF THE COURT OF FIRST INSTANCE (Appeal Chamber)

9 July 2007

Case T-415/06 P

Elisabeth De Smedt

v

Commission of the European Communities

(Appeals – Civil service – Contractual agents – Former auxiliary agent – Application for revision of the classification fixed at the time of recruitment – Appeal manifestly unfounded)

Appeal: against the judgment of the Civil Service Tribunal of the European Union (Second Chamber) of 19 October 2006 in Case F-59/05 De Smedt v Commission [2006] ECR-SC I-A-1-109 and II-A-1-409 seeking to have that judgment set aside.

Held: The appeal is dismissed. Ms Elisabeth De Smedt is ordered to bear her own costs and to pay those of the Commission. The Council, which intervened in support of the Commission’s claims, is ordered to bear its own costs.

Summary

1.      Officials – Conditions of Employment of Other Servants – Applicability of Title IV, on contract staff, not subject to the prior definition of the powers attaching to each type of duties in the various function groups for those staff

(Conditions of Employment of Other Servants, Art. 80(2) and (3), and Title IV; Council Regulation No 723/2004)

2.      Officials – Equal treatment

3.      Officials – Staff Regulations – Conditions of Employment of Other Servants – Extension by analogy of a provision of the Staff Regulations or the Conditions of Employment of Other Servants – Not possible

(Conditions of Employment of Other Servants, Title IV; Council Regulation No 723/2004)

1.      There is no provision of the Conditions of Employment of Other Servants or of Regulation No 723/2004 amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities which makes the applicability of the provisions on the recruitment of a member of the contract staff dependent on the definition of powers provided for in Article 80(3) of those Conditions of Employment. The definition of powers referred to in that article may, as it expressly provides, be effected by the administration only on the basis of the table set out in paragraph 2 of that same article, which includes in particular a description of the duties which the contract staff are required to perform, that description being sufficiently precise to be applied as it stands. That definition must keep within the limits set out by the table in paragraph 2 and, consequently, must necessarily have a lower status than the table. The fact that the administration has not yet defined the powers in question does not affect the applicability of the provisions of Article 80(2) of the Conditions of Employment. Even once the powers have been defined, that definition cannot lawfully depart from the table by laying down rules that are more favourable for the person concerned than those resulting from the table.

That being so, the purpose of defining the powers in question must, as a purely internal measure, be to make it easier in administrative terms to classify members of the contract staff by detailing as clearly as possible the different duties they will be called upon to perform.

(see paras 40-42)

2.      The principle of equal treatment cannot be relied on to call into question the differences in status between members of the contract staff on the one hand and officials or members of the temporary staff on the other. Those objective legal differences in terms of the guarantees provided by the Staff Regulations, classification, remuneration and social benefits are of a fundamental nature, so that the principle of equal treatment does not apply.

Furthermore, it is not possible to question the differences in status between the various categories of persons employed by the Communities in so far as some of those categories may enjoy advantages that are not granted to others. The definition of each of those categories of staff corresponds to the legitimate needs of the Community administration and to the nature of the tasks it is required to perform.

(see paras 54-55)

See: 118/82 to 123/82 Celant and Others v Commission [1983] ECR 2995, para. 22; 37/87 Sperber v Court of Justice [1988] ECR 1943, paras 8 and 9; C‑389/98 P Gevaert v Commission [2001] ECR I‑65, para. 54; T‑100/92 La Pietra v Commission [1994] ECR-SC I‑A‑83 and II‑275, para. 55; T-66/95 Kuchlenz-Winter v Commission [1997] ECR II‑637, para. 55; T‑66/96 and T‑221/97 Mellett v Court of Justice [1998] ECR-SC I‑A‑449 and II‑1305, para. 129

3.      The provisions of the Staff Regulations, the sole purpose of which is to regulate legal relations between the institutions and officials by establishing reciprocal rights and obligations, employ precise wording and there is no reason to extend their scope by analogy to situations to which they do not refer. That also applies to the provisions of the Conditions of Employment of Other Servants.

As regards Title IV of the Conditions of Employment of Other Servants, relating to the new category of contract staff, there is nothing to suggest that it contains a gap on the subject of the classification and remuneration of the staff concerned that could be filled by applying the rules for officials or those for temporary staff. On the contrary, in creating that new category, the Council used its freedom to make at any time such amendments to the rules in the Staff Regulations and the Conditions of Employment of Other Servants as it considered to be in accordance with the interests of the service, and to adopt for the future provisions which are less favourable for the staff concerned.

(see paras 57-58)

See: 48/70 Bernardi v Parliament [1971] ECR 175, paras 11 and 12; 123/84 Klein v Commission [1985] ECR 1907, para. 23; T‑121/97 Ryan v Court of Auditors [1998] ECR II‑3885, paras 98 and 104; T‑74/98 Mammarella v Commission [1999] ECR-SC I‑A‑151 and II‑797, para. 38