JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

9 December 2010

Case F-83/05

Kristine Ezerniece Liljeberg and Others

v

European Commission

(Civil service — Officials — Appointment — Lawyer-linguists placed on a reserve list prior to the entry into force of the new Staff Regulations — Discrimination compared with lawyer-linguists recruited by other European Union institutions and bodies)

Application: brought under Articles 236 EC and 152 EA, in which Ms Ezerniece Liljeberg and nine other officials, all lawyer-linguists at the Commission, principally seek annulment of their appointment decisions of 6 October 2004, in so far as they fix their classification at grade A*6, whereas they should have been classified in grade A*7.

Held: The action is dismissed. The Commission is ordered to bear its own costs and to pay half of the applicants’ costs. The applicants are ordered to bear half of their own costs.

Summary

1.      Officials — Recruitment — Appointment in grade — Introduction of a new career structure by Regulation No 723/2004 — Transitional provisions on classification in grade

(Staff Regulations, Annex XIII, Art. 13(2); Council Regulation No 723/2004)

2.      Officials — Recruitment — Appointment in grade — Appointment to the higher grade in a career bracket — Discretion of the appointing authority — Judicial review — Limits

(Staff Regulations, Annex XIII, Art. 13(2); Council Regulation No 723/2004)

3.      Officials — Assignment — Correspondence between the grade and the post — Assignment to a post in a higher grade — Right to be reclassified — None

(Staff Regulations, Art. 7(1))

4.      Officials — Equal treatment — Different treatment of various categories of staff as regards guarantees under the Staff Regulations — No discrimination

5.      Officials — Principles — Protection of legitimate expectations — Conditions

6.      Officials — Administration’s duty to have regard for the interests of officials — Scope — Limits

(Staff Regulations, Annex XIII, Art. 13(2))

1.      Decisions on classification in grade adopted by institutions other than the Commission on the basis of Article 13(2) of Annex XIII to the Staff Regulations constitute measures which cannot be relied on in support of a plea of infringement, by the Commission, of the principle of equal treatment.

Regarding the claim that lawyer-linguists classified in grade A*6 by the Commission suffer discrimination in comparison with successful candidates in the same competition who were classified in grade A*7 by the other institutions, it is clear from Article 13(2) of Annex XIII to the Staff Regulations that each institution is entitled to determine whether it is appropriate to classify a lawyer-linguist in grade A*7. It follows that officials recruited by an institution and classified in that grade pursuant to that provision must be regarded as in a different situation from that of officials recruited by another institution which has chosen not to apply that provision.

The fact of being included on the same reserve list is not relevant for the application of Article 13(2) of Annex XIII to the Staff Regulations since, as was noted, it is for each institution to decide whether it is appropriate to use that provision in order to classify a lawyer linguist in grade A*7. Secondly, the case-law according to which all successful candidates in the same competition are in the same situation concerns the recruitment of officials by the same institution and not by different institutions. Lastly, although, under the principle of a single administration, as laid down in Article 9(3) of the Treaty of Amsterdam, all officials of all the institutions of the Union are subject to a single body of Staff Regulations, that principle does not mean that the institutions are required to make identical use of the discretion afforded to them by the Staff Regulations when, on the contrary, they enjoy a principle of autonomy.

(see paras 55, 58-59)

See:

T-220/95 Gimenez v Committee of the Regions [1997] ECR-SC I‑A‑275 and II‑775, para. 72

2.      Where the administration has a wide discretion to decide whether it is appropriate to make use of a provision, in order not to deprive that provision of all useful effect, the administration must, in the light of the particular circumstances with which it is faced, conduct a specific assessment of the possible application of the provision in question.

The fact remains that, according to the terms of Article 13(2) of Annex XIII to the Staff Regulation, the institutions may recruit officials entrusted with lawyer-linguist duties at grade A*7 or AD 7, which means that the appointing authority is not obliged to apply that provision and newly recruited officials do not have an individual right to such a classification.

Given that the appointing authority enjoys a wide discretion to decide whether or not to make use of Article 13(2) of Annex XIII to the Staff Regulations, the judicial review of a decision on classification in grade cannot be substituted for the appointing authority’s assessment. Consequently, the Courts of the European Union judicature must confine themselves to ascertaining whether there has been a breach of essential procedural requirements, whether the appointing authority based its decision on inaccurate or incomplete facts, whether the decision was invalidated by a misuse of powers, an error of law or an inadequate statement of the reasons on which it was based, or whether the appointing authority used its discretion in a manifestly incorrect manner.

(see paras 75-77)

See:

T-17/95 Alexopoulou v Commission [1995] ECR-SC I‑A‑227 and II‑683, para. 21; T-55/03 Brendel v Commission [2004] ECR-SC I‑A‑311 and II‑1437, para. 60; T-145/04 Righini v Commission [2005] ECR-SC I‑A‑349 and II‑1547, para. 53

F‑16/05 Falcione v Commission [2006] ECR-SC I‑A‑1‑3 and II‑A‑1‑7, para. 49; F-111/06 Giannopoulos v Council [2007] ECR-SC I‑A‑1‑253 and II‑A‑1‑1415, para. 52

3.      Even where an official agrees to do a job corresponding to a higher grade than his own, the principle of correspondence between the grade and the post does not confer on the official any right to have his post reclassified in a higher grade.

In any event, there is no provision of the Staff Regulations or the Conditions of Employment of Other Servants which requires the administration to take account of the former situation of successful candidates in a competition in order to determine their classification in grade.

(see paras 89-90)

See:

28/72 Tontodonati v Commission [1973] ECR 779, para. 8

T-18/90 Jongen v Commission [1991] ECR II‑187, para. 27; T‑112/96 and T‑115/96 Séché v Commission [1999] ECR-SC I‑A‑115 and II‑623, para. 182

F‑104/06 Arpaillange and Others v Commission [2009] ECR-SC I‑A‑1‑57 and II‑A‑1‑273, para. 106

4.      There can be no cause for calling in question the differences in status between the various categories of persons employed by the Union, whether as officials properly so called or in the different categories of staff covered by the Conditions of Employment of Other Servants, since each of those categories of staff is defined in accordance with the legitimate requirements of the Union administration and the nature of the tasks, whether permanent or temporary, which it has to perform.

(see para. 93)

See:

F‑57/08 Palazzo v Commission [2009] ECR-SC I‑A‑1‑437 and II‑A‑1‑2371, para. 38 and the case-law cited therein

5.      The right to rely on the principle of the protection of legitimate expectations extends to any individual who is in a situation in which it is apparent that the administration, by giving him precise and consistent assurances, has led him to entertain justified expectations.

Three conditions must be satisfied in order to claim entitlement to the protection of legitimate expectations. First, precise, unconditional and consistent assurances originating from authorised and reliable sources must have been given to the person concerned by the administration. Second, those assurances must be such as to give rise to a legitimate expectation on the part of the person to whom they are addressed. Third, the assurances given must comply with the rules of the Staff Regulations and the applicable rules in general or, at the very least, any irregularity must be capable of escaping the notice of a normally diligent official, in the light of the information at his disposal and his ability to carry out the necessary checks.

Regarding decisions on classification in grade, comments made by a head of unit may not be regarded as information originating from authorised and reliable sources, since those decisions are solely a matter for the appointing authority.

(see paras 98, 99, 101)

See:

T-203/97 Forvass v Commission [1999] ECR-SC I‑A‑129 and II‑705, para. 70; T-381/00 Wasmeier v Commission [2002] ECR-SC I‑A‑125 and II‑677, para. 106; Righini v Commission, paras 130 and 131; T-237/00 Reynolds v Parliament [2005] ECR-SC I‑A‑385 and II‑1731, para. 146

F‑51/07 Bui Van v Commission [2008] ECR-SC I‑A‑1‑289 and II‑A‑1‑1533, para. 55; judgment of 11 May 2010 in F-55/09 Maxwell v Commission, para. 87

6.      The administration’s duty to have regard to the welfare of its staff reflects the balance of reciprocal rights and obligations established by the Staff Regulations in the relationship between the official authority and its staff. That duty implies in particular that when the authority takes a decision concerning the situation of an official or other staff member, it must take into consideration all the factors which may affect its decision, and when doing so it should take into account not only the interests of the service but also those of the official concerned. The protection of the rights and interests of officials is, however, subject to compliance with the rules in force.

The duty to have regard to the welfare of staff cannot have the effect of transforming the possibility offered under Article 13(2) of Annex XIII to the Staff Regulations into an obligation for the administration. Consequently, the fact that the appointing authority did not apply Article 13(2) cannot constitute, as such, a breach of the duty to have regard to the welfare of staff.

(see paras 110-111)

See:

Forvass v Commission, paras 53 and 54 and the case-law cited therein

F‑101/05 Grünheid v Commission [2006] ECR-SC I‑A‑1‑55 and II‑A‑1‑199, para. 149