JUDGMENT OF THE GENERAL COURT (Appeal Chamber)
14 December 2011

Case T‑563/10 P

Patrizia De Luca

v

European Commission

(Appeal — Cross-appeal — Civil service — Officials — Appointment to a post in a higher function group following an open competition — 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 (Second Chamber) of 30 September 2010 in Case F‑20/06 De Luca v Commission, seeking to have that judgment set aside.

Held:      The cross-appeals are dismissed. The judgment of the European Union Civil Service Tribunal (Second Chamber) of 30 September 2010 in Case F‑20/06 De Luca v Commission is set aside. The case is referred back to the Civil Service Tribunal. Costs are reserved.

Summary

1.      Appeals — Cross-appeal — Admissibility — Examination by the General Court of its own motion

2.      Appeals — Cross-appeal — Subject-matter– Substitution of the grounds of the judgment under appeal — Inadmissibility — Reference to arguments raised by another party in support of his cross-appeal — Inadmissibility

(Statute of the Court of Justice, Annex I, Art. 13(1); Rules of Procedure of the General Court, Arts 48(2), 141(2) and 142(1))

3.      Officials — Competitions — Open competition — Not exclusively external means of recruitment

(Staff Regulations, Art. 29(1))

4.      Officials — Careers — Change in category or in post following participation in an open competition — Classification in step — Applicable rules

(Staff Regulations, Arts 32, second para., and 46)

5.      Officials — Careers — Change in category or in post following participation in an open competition — Reclassification in grade — Applicable rules

(Staff Regulations, Annex XIII, Arts 1(2) and 12(3))

1.      Even if an applicant requests the General Court to order that a cross-appeal is admissible, it is for the General Court to raise of its own motion any issue concerning the admissibility of that cross-appeal.

(see para. 29)

See:

C‑23/00 P Council v Boehringer [2002] ECR I‑1873, para. 46; judgment of 28 February 2008 in C‑17/07 P Neirinck v Commission, not published in the ECR, para. 38

2.      A form of order in a cross-appeal which does not seek the setting-aside in whole or in part of the operative part of the judgment under appeal, but only the substitution of some of the grounds which constitute the necessary support for it, must be dismissed as inadmissible. Such a form of order does not comply with the requirement of Article 142(1) of the Rules of Procedure of the General Court. As is apparent inter alia from Article 13(1) of Annex I to the Statute of the Court of Justice, all appeals must seek the setting-aside in whole or in part of a judgment of the Civil Service Tribunal, since, in the event that that judgment is set aside, the General Court may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the Civil Service Tribunal for judgment.

In addition, it follows from Article 142 and Article 141(2) and Article 48(2) of those Rules of Procedure that any ground seeking that the decision of the Civil Service Tribunal be set aside which is not adequately articulated in the response must be held inadmissible. Grounds or complaints put forward in support of a cross-appeal in which a party who was an intervener at first instance restricts himself to simply referring to the reasoning set out in the pleading lodged by the defendant at first instance in support of his cross-appeal do not meet this requirement of precision, and must consequently be rejected as insufficiently detailed and therefore inadmissible.

(see paras 30, 31, 34, 35)

See:

C‑71/07 P Campoli v Commission [2008] ECR I‑5887, para. 41

T‑231/99 Joynson v Commission [2002] ECR II‑2085, para. 154; T‑209/01 Honeywell v Commission [2005] ECR II‑5527, para. 54

3.      The open competition procedure provided for by Article 29(1) of the Staff Regulations does not exclusively constitute an external means of recruitment, since it is open both to candidates coming from outside the EU institutions and to other candidates who already have the status of officials or of members of the temporary staff.

(see para. 44)

See:

176/73 Van Belle v Council [1974] ECR 1361, para. 8

4.      The Staff Regulations do not contain any general provision governing the classification in step of a serving official appointed to a different post after being successful in an open competition. Such an appointment does not follow the procedures which the Staff Regulations lay down for the promotion of officials; at the same time it cannot be regarded as recruitment within the strict meaning of the word, since the employee in question has already been recruited. Recruitment relates to the situation of a person accepted for the first time into the corpus of officials of the European Union, whereas promotion governs the normal progression of a career thus started within that corpus. The application of the relevant provisions, whether they are the rules in the Staff Regulation governing recruitment or the provisions in the Staff Regulations and general principles governing the normal career progression of officials serving within that corpus, can only be by analogy, given that application of the latter provisions requires the appointing authority to ensure, above, all, equality of treatment as between the official concerned and the other officials with an expectancy of promotion, whilst the application of the former provisions has the effect rather of ensuring equal treatment for all the successful candidates in an open competition, regardless of whether they are already officials or not.

(see para. 46)

See:

266/83 Samara v Commission [1985] ECR 189, para. 13; 273/83 Michel v Commission [1985] ECR 347, para. 18; 37/87 Sperber v Court of Justice [1988] ECR 1943, paras 9 and 11 and the case-law cited; 47/87 Lucas v Commission [1988] ECR 3019, para. 11

T‑103/92 to T‑105/92 Baiwir and Others v Commission [1993] ECR II‑987, para. 34

5.       In the same way as the Staff Regulations do not contain any general provision governing the reclassification in step of a serving official appointed to a different post after being successful in an open competition, nor do they contain any provision governing the reclassification in grade of a serving official who has been successful in an open competition allowing him access to posts at a level a priori above that which he held previously.

In this connection, Article 12(3) of Annex XIII to the Staff Regulations, which relates to the classification of officials included in a list of suitable candidates before 1 May 2006 and ‘recruited’ between 1 May 2004 and 30 April 2006, applies only by analogy to a serving official who has been appointed to another post as a successful candidate in an open competition and in so far as the official could draw from the application of that provision a certain benefit or advantage, in terms of career development or remuneration, to which entitlement was reserved in principle to officials ‘recruited’ between 1 May 2004 and 30 April 2006.

Although, as transitional provisions of a special kind, the provisions of Annex XIII to the Staff Regulations may derogate from the general rules which would apply, in their absence, to the situation at issue, it cannot however be inferred from the text of Article 12(3) of Annex XIII to the Staff Regulations, read in conjunction with Article 1(2) of Annex XIII to the Staff Regulations, that, in the context of the transitional measures applicable to officials, the legislature intended to define the concept of recruitment, specifically and in derogation to the usual provisions, as being applicable to the situation of a serving official appointed to another post as the successful candidate of a competition. The Courts of the European Union have only extended in exceptional circumstances the concept of recruitment, in the strict sense, to cover the hiring of persons who are already officials and in cases where those persons could draw from it some benefit or advantage in terms of career or remuneration.

(see paras 46 and 48-52)

See:

Samara v Commission, paras 13 and 15; Michel v Commission, para 18; Sperber v Court of Justice, paras 9 and 11; Lucas v Commission, paras 11, 14 and 15 and the case-law cited

Baiwir and Others v Commission, para. 34; T‑58/05 Centeno Mediavilla and Others v Commission [2007] ECR II‑2523, para. 39