JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(Second Chamber)
18 May 2015 (*)
(Civil service — Staff of the EEAS — Member of the temporary staff — Article 98 of the Staff Regulations — Article 2(e) of the CEOS — Contract of employment — Grading — Plea of illegality of the vacancy notice — Post at grade AD 5 open to staff from national diplomatic services and to officials of grades AD 5 to AD 14 — Principle of correspondence between the grade and the post — Judgment by default)
In Case F‑11/14,
ACTION brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof,
Bruno Dupré, a member of the temporary staff of the European External Action Service, residing in Etterbeek (Belgium), represented by S. Rodrigues and A. Tymen, lawyers,
applicant,
v
European External Action Service (EEAS), represented by S. Marquardt and M. Silva, acting as Agents,
defendant,
THE CIVIL SERVICE TRIBUNAL (Second Chamber)
composed of K. Bradley, President, H. Kreppel and M. I. Rofes i Pujol (Rapporteur), Judges,
Registrar: W. Hakenberg,
having regard to the written procedure,
gives the following
Judgment
1 By application lodged at the Registry of the Tribunal on 7 February 2014, Mr Dupré seeks annulment of his contract of employment as a temporary agent of the European External Action Service (EEAS), signed on 1 April 2013, in so far as he was recruited at grade AD 5, and compensation for the damage allegedly suffered.
Legal context
2 Article 5 of the Staff Regulations of Officials of the European Union, in the version resulting from Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities, as last amended by Council Regulation (EU) No 1240/2010 of 20 December 2010 (‘the Staff Regulations’) reads as follows:
‘1. The posts covered by the Staff Regulations shall be classified, according to the nature and importance of the duties to which they relate, in an administrators’ function group (hereinafter “AD”) and an assistants’ function group (hereinafter “AST”).
2. Function group AD shall comprise twelve grades, corresponding to administrative, advisory, linguistic and scientific duties. …
3. Appointment shall require at least:
…
(b) in function group AD for grades 5 and 6:
(i) a level of education which corresponds to completed university studies of at least three years attested by a diploma, or
(ii) …;
(c) in function group AD for grades 7 to 16:
(i) a level of education which corresponds to completed university studies attested by a diploma when the normal period of university education is four years or more, or
(ii) a level of education which corresponds to completed university studies attested by a diploma and appropriate professional experience of at least one year when the normal period of university education is at least three years …
…’
3 Under Article 31 of the Staff Regulations:
‘1. Candidates selected shall be appointed to the grade of the function group set out in the notice of the competition they have passed.
2. Without prejudice to Article 29(2) [of the Staff Regulations], officials shall be recruited only at grades AST 1 to AST 4 or AD 5 to AD 8. The grade of the competition notice shall be determined by the institution in accordance with the following criteria:
(a) the objective of recruiting officials of the highest standard as defined in Article 27 [of the Staff Regulations];
(b) the quality of the professional experience required.
…’
4 Article 32 of the Staff Regulations provides:
‘An official shall be recruited at the first step in his grade.
The Appointing Authority may allow additional seniority up to a maximum of 24 months to take account of his professional experience. General implementing provisions shall be adopted to give effect to this Article.
…’
5 According to Article 98 of the Staff Regulations, inserted by Regulation (EU, Euratom) No 1080/2010 of the European Parliament and of the Council of 24 November 2010 amending the Staff Regulations of Officials of the European [Union] and the Conditions of Employment of other Servants of [the European Union]:
‘1. For the purposes of Article 29(1)(a) [of the Staff Regulations], when filling a vacant post in the EEAS, the Appointing Authority shall consider the applications of officials of the General Secretariat of the Council [of the European Union], the [European] Commission and the EEAS, of temporary staff to whom Article 2(e) of the Conditions of Employment of Other Servants [of the European Union] applies and of staff from national diplomatic services of the Member States without giving priority to any of those categories. Until 30 June 2013, by way of derogation from Article 29 [of the Staff Regulations], for recruitment from outside the institution, the EEAS shall recruit exclusively officials from the General Secretariat of the Council [of the European Union] and from the [European] Commission as well as staff from the diplomatic services of Member States.
…’
6 Article 2 of the Conditions of Employment of other Servants of the European Union, in the version resulting from Regulation No 723/2004, as last amended by Regulation No 1240/2010 (‘the CEOS’), provides in subparagraph (e), a provision inserted by Regulation No 1080/2010:
‘For the purposes of these Conditions of Employment, “temporary staff”’ means:
…
(e) staff seconded from national diplomatic services of the Member States engaged to fill temporarily a permanent post in the EEAS.’
7 Article 10 of the CEOS provides:
‘1. Article … 5(1), (2), (3) and (4), and Article 7 of the Staff Regulations shall apply by analogy.
2. The grade and step at which temporary staff are engaged shall be stated in their contract.
…’
8 Under the first subparagraph of Article 15(1) of the CEOS :
‘Temporary staff shall be graded initially in accordance with Article 32 of the Staff Regulations.’
9 Article 50b of the CEOS, inserted by Regulation No 1080/2010, reads as follows:
‘1. Staff from national diplomatic services of the Member States who were selected under the procedure laid down in Article 98(1) of the Staff Regulations and who are seconded by their national diplomatic services shall be engaged as temporary staff under Article 2(e) [of the CEOS].
2. They may be engaged for a maximum period of four years. Contracts may be renewed for a maximum period of four years. Their engagement should not exceed eight years in total. However, in exceptional circumstances and in the interest of the service, at the end of the eighth year, the contract may be extended for a maximum period of two years. Each Member State shall provide its officials who have become temporary agents in the EEAS with a guarantee of immediate reinstatement at the end of their period of service [with] the EEAS, in accordance with the applicable provisions of its national law.
…’
10 Article 6, entitled ‘Staff’, of Council Decision 2010/427/EU of 26 July 2010 establishing the organisation and functioning of the [EEAS] (OJ 2010 L 201, p. 30) reads as follows:
‘…
7. Officials of the Union and temporary agents coming from the diplomatic services of the Member States shall have the same rights and obligations and be treated equally, in particular as concerns their eligibility to assume all positions [within the EEAS] under equivalent conditions. No distinction shall be made between temporary agents coming from national diplomatic services and officials of the Union as regards the assignment of duties to perform in all areas of activities and policies implemented by the EEAS. …
…
11. In accordance with the applicable provisions of its national law, each Member State shall provide its officials who have become temporary agents in the EEAS with a guarantee of immediate reinstatement at the end of their period of service [with] the EEAS. This period of service, in accordance with the provisions of Article 50b of the CEOS, shall not exceed eight years, unless, it is extended for a maximum period of two years in exceptional circumstances and in the interest of the service.
…’
Facts as contained in the application
11 From 2007 until 31 March 2013, the applicant worked, first for the European Commission and then for the EEAS, as a seconded national expert. His job description was ‘Policy Officer — Security in the area of [Chemical, Biological, Radiological and Nuclear] Risk mitigation’.
12 Before his period of secondment as a seconded national expert with the EEAS expired, the applicant applied for the post advertised in vacancy notice EEAS/2012/AD/36 for the recruitment within the Security Policy and Sanctions Division of a ‘Policy Officer — Security in the area of [Chemical, Biological, Radiological and Nuclear] Risk mitigation’ (‘the vacancy notice’).
13 The vacancy notice states that candidates must be officials of certain institutions of the European Union in one of the grades AD 5 to AD 14, or temporary staff to whom Article 2(e) of the CEOS applies, or staff from national diplomatic services of the Member States. In the case of candidates who are staff from national diplomatic services of the Member States, the vacancy notice states that, in addition to being nationals of one of the Member States, they must possess a level of education which corresponds to completed university studies attested by a diploma when the normal period of university education is at least three years. They were also required to have at least two years’ experience of working in a national administration.
14 The vacancy notice also states that if the successful candidate is an EU official he will be appointed in his existing grade. If the successful candidate is from the staff of the diplomatic service of one of the Member States, he will be offered a contract under Article 2(e) of the CEOS, the duration of which may not exceed four years, and will be appointed at grade AD 5.
15 The applicant’s application was successful and on 1 April 2013 he signed a contract of employment with the EEAS. The contract states that the applicant was engaged from that date as a temporary staff member under Article 2(e) of the CEOS, at grade AD 5, step 2. His place of employment was Brussels (Belgium).
16 Considering that grade AD 5 did not correspond either to the functions described in the vacancy notice or those he was performing and that he had been discriminated against in relation to EU officials, the applicant submitted a ‘Request under Article 90(2) [of the Staff Regulations]’ on 27 June 2013, with the objective of rectifying a manifest error of assessment in his grading.
17 The authority empowered to conclude contracts of employment of the EEAS considered the applicant’s request to be a ‘complaint within the meaning of Article 90(2) of the Staff Regulations’ and rejected it by a decision dated 28 October 2013.
Form of order sought by the applicant and procedure
18 The applicant claims that the Tribunal should:
‘
– … annul the decision [contained in his contract of employment] of 1 April 2013 recruiting him at grade AD 5;
– annul, in so far as necessary, the decision of 28 October 2013 rejecting the complaint;
…
– … order the regrading of [his] post … to a grade corresponding to the level of his responsibilities;
– … order [the EEAS] to bear all the consequences, in particular the financial consequences, of that regrading, retrospectively from the time of his entry into the service;
– … compensate for the non-material damage suffered …, assessed ex aequo et bono at EUR 5 000;
…
– order the [EEAS] to pay all the costs’.
19 Under Article 39(1) of the Rules of Procedure in force at the date on which the application was lodged, the defendant is required to lodge a defence within two months after service of the application.
20 The acknowledgement of receipt of service of the application shows that the latter was duly received on 14 February 2014 at the address of the High Representative of the Union for Foreign Affairs and Security in Brussels, the address which had previously been supplied to the Tribunal by the EEAS as its address for service.
21 The time-limit of two months for lodging a defence expired on 24 April 2014, including the extension on account of distance, without the EEAS lodging a defence.
22 The Registry of the Tribunal informed the applicant, by letter of 2 July 2014, that no defence had been lodged within the prescribed period and that the written procedure had been closed. At the same time the Registry informed the applicant that it was possible, under the first subparagraph of Article 116(1) of the Rules of Procedure in force at that time, for him to apply to the Tribunal for judgment by default. In its letter, the Registry of the Tribunal also drew the applicant’s attention to the wording of paragraph 4 of that article, which states that application may, however, be made to set aside a judgment by default. By letter also dated 2 July 2014, the Registry of the Tribunal sent the EEAS a copy of the letter it had sent to the applicant, and at the same time informed the EEAS that the written procedure had been closed.
23 By a letter dated 10 July 2014, the applicant applied to the Tribunal for a judgment by default on the claims set out in his application initiating proceedings. A copy of the application for a judgment by default was served on the EEAS.
24 On 11 July 2014, the EEAS approached the Tribunal with a request, under the second subparagraph of Article 116(1) of the Rules of Procedure in force at that time, to open the oral procedure on the applicant’s application of 10 July 2014 and to send it a copy of the application initiating proceedings. The Tribunal sent a copy of the application initiating proceedings to the EEAS and, in a decision of 24 November 2014, refused the request to open the oral procedure on the application of 10 July 2014.
Law
25 Under the provisions of Article 121(2) of the Rules of Procedure, which reproduce those of Article 116(2) of the Rules of Procedure in force until 30 September 2014, before giving judgment by default the Tribunal must consider whether the application initiating proceedings is admissible, whether the appropriate formalities have been complied with, and whether the applicant’s claims appear well-founded. It may adopt measures of organisation of procedure or order measures of inquiry.
26 In the present case, it is clear from the documents in the case that the action before the Tribunal was brought within the time-limit of three months laid down in the Staff Regulations, extended on account of distance by a single period of 10 days from the date on which the applicant received notification that the complaint had been rejected; that the applicant challenges the decision regarding his grading on his appointment as a temporary agent, which he regards as adversely affecting him, and that he has a legal interest in bringing proceedings since he is challenging an administrative decision of individual application producing binding legal effects that directly and immediately affect his interests.
27 It is also clear from the documents in the case that the application initiating proceedings was duly served on the EEAS at the address for service in Brussels which the latter had supplied to the Registry of the Tribunal and that the EEAS did not lodge a defence within the time-limit.
28 It follows that, in the present case, the admissibility of the application initiating proceedings is not in doubt and that the appropriate formalities were complied with.
29 The Tribunal must now determine whether, in the light of the application initiating proceedings and its annexes, the applicant’s claims appear well-founded. The Tribunal did not consider it necessary for that purpose to adopt measures of organisation of procedure or order measures of inquiry.
The claim for annulment of the decision rejecting the complaint
30 The applicant seeks annulment, in so far as is necessary, of the decision of 28 October 2013 rejecting the complaint.
31 It is settled case-law that the administrative complaint and its rejection, whether express or implied, constitute an integral part of a complex procedure and are no more than a precondition for bringing the matter before the judicature. Consequently, the action before the judicature, even if formally directed against the rejection of the complaint, has the effect of bringing before the judicature the act adversely affecting the applicant against which the complaint was submitted, except where the scope of the rejection of the complaint differs from that of the measure against which that complaint was made. It has been held on several occasions that an express decision rejecting a complaint may, in the light of its content, not be confirmatory of the measure contested by the applicant. That is the case where the decision rejecting the complaint contains a re-examination of the applicant’s situation in the light of new elements of law or of fact, or where it changes or adds to the original decision. In such circumstances, the rejection of the complaint constitutes a measure subject to review by the judicature, which will take it into consideration when assessing the legality of the contested measure or will even regard it as an act adversely affecting the applicant replacing the contested measure (judgment in Adjemian and Others v Commission, T‑325/09 P, EU:T:2011:506, paragraph 32).
32 Since, under the system laid down in the Staff Regulations, the person concerned must submit a complaint against the decision which he is contesting and then appeal against the decision rejecting his complaint, the EU judicature has held that the action is admissible whether it is directed against the initial decision alone, the decision rejecting the complaint or both, provided that the complaint and the appeal were lodged within the periods prescribed by Articles 90 and 91 of the Staff Regulations. However, in accordance with the principle of economy of procedure, the judicature may decide that it is not appropriate to rule specifically on the claims directed against the decision rejecting the complaint where it finds that those claims have no independent content and are, in reality, the same as those directed against the decision against which the complaint has been made (see, to that effect, judgment in Vainker v Parliament, 293/87, EU:C:1989:8, paragraphs 7 and 8). That may, in particular, be the case where the EU judicature finds that the decision rejecting the complaint, in some cases because it is implied, is purely confirmatory of the decision which is the subject of the complaint and that, therefore, the annulment of the first decision would have no effect on the legal position of the person concerned distinct from that which follows from the annulment of the second (judgment in Adjemian and Others v Commission, EU:T:2011:506, paragraph 33).
33 In the present case, it is settled that the decision rejecting the complaint does not contain a re-examination of the applicant’s situation in the light of new elements of law or of fact, but upholds the decision to recruit the applicant at grade AD 5, step 2, as contained in the applicant’s contract of employment, and is confined to addressing the claims and arguments put forward by the applicant and providing some clarification regarding the grounds for that grading decision. In such a situation, it is indeed the legality of the initial act adversely affecting the applicant that must be examined, taking into consideration the reasons set out in the decision rejecting the complaint, as that reasoning is deemed to coincide with that act (see, to that effect, judgment in Commission v Birkhoff, Case T‑377/08 P, EU:T:2009:485, paragraphs 58 and 59 and the case-law cited therein).
34 Consequently, the claim for annulment of the decision rejecting the complaint lacks any independent content and the action must be regarded as being directed against the decision contained in the applicant’s contract of employment of 1 April 2013 to recruit him at grade AD 5 (‘the contested grading decision’), the reasons for which are clarified by the decision of 28 October 2013 rejecting the complaint (see, to that effect, judgments in Eveillard v Commission, T‑258/01, EU:T:2004:177, paragraphs 31 and 32, and Buxton v Parliament, F‑50/11, EU:F:2012:51, paragraph 21).
35 There is therefore no need to adjudicate separately on the claim for annulment of the decision rejecting the complaint.
The claim for the applicant’s post to be regraded and for the EEAS to bear all the consequences of that regrading retrospectively
36 With regard to the claims for the Tribunal, first, to order the applicant’s post to be regraded to a grade corresponding to the level of his responsibilities and, secondly, to order the EEAS to bear all the consequences, in particular the financial consequences, of that regrading, retrospectively from the time of his entry into the service, it should be noted that, in the context of an action brought under Article 91 of the Staff Regulations, the court may not, without encroaching upon the powers of the administration, make declarations or findings of principle, or issue directions to an institution (see order in Caminiti v Commission, F‑71/09, EU:F:2011:53, paragraph 23 and the case-law cited therein). At most the institution might be required to take measures, such as those sought by the applicant, in pursuance of a judgment upholding the applicant’s claim for annulment.
37 It follows that the claims for the Tribunal to order the applicant’s post to be regraded to a grade corresponding to the level of his responsibilities and to order the EEAS to bear all the consequences, in particular the financial consequences, of that regrading retrospectively from the time of his entry into the service are inadmissible.
The claim for annulment of the contested grading decision
38 In support of the claim for annulment of the contested grading decision, the applicant puts forward a single plea, alleging the illegality of the vacancy notice on the basis of which he was recruited, which is divided into three parts. The first part is based on breach of the principle of correspondence between the grade and the post and on infringement of Article 5 of the Staff Regulations and Annex I, Section A, to the Staff Regulations. The second part alleges a manifest error of assessment. The third part is based on breach of the principle of equal treatment and of the prohibition on discrimination of any kind, and also infringement of Article 6(7) of Decision 2010/427.
39 The Tribunal notes that in his application the applicant puts forward arguments only in respect of the first and third parts of his single plea. The second part of the single plea of the application, alleging a manifest error of assessment, is not supported by any arguments, contrary to the rule contained in Article 35(1)(e) of the Rules of Procedure in force when the action was brought and restated in Article 50(1)(e) of the Rules of Procedure. The second part of the single plea of the application must therefore be declared inadmissible.
The first part of the plea: breach of the principle of correspondence between the grade and the post and infringement of Article 5 of the Staff Regulations and Annex I, Section A, to the Staff Regulations
40 The applicant claims that the vacancy notice was unlawful in that it provided for appointment at grade AD 5 only in the case of candidates who were staff from the national diplomatic services of the Member States. However, that grade, at which he was recruited as a temporary agent, does not correspond to the duties which the applicant is required to perform and does not reflect the importance of those duties or the responsibilities incumbent on him. Handling of the ‘sensitive’ files assigned to him necessarily requires considerable experience in his field of expertise and, in any event, could not be done by an official at the start of his carrier with only two years’ experience, as required in the vacancy notice. He adds that during his twenty-five years’ professional experience he worked for fifteen years in the field of expertise described in the vacancy notice and that the post he occupied as a seconded national expert was regarded as ‘sensitive’ due to the skills it required. His functions remained exactly the same when he was recruited as a temporary agent at grade AD 5.
41 The applicant also claims that the job descriptions of the two other members of the team to which he belongs, which he attaches as annexes to the application, are the same as for the post which he occupies, although, of the two officials occupying those posts, one is in grade AD 12 and the other in grade AD 13 and, moreover, the applicant was recruited at grade AD 5 as a replacement for an official in grade AD 13 to perform the same functions. Those circumstances, he argues, demonstrate the fact that the grade at which he was recruited is inappropriate in relation to his functions and responsibilities.
42 The applicant adds that Annex I, Section A, to the Staff Regulations provides that grade AD 5 corresponds to posts of junior administrators, but that he does not work in a junior capacity in relation to anyone and he performs his functions with a high degree of independence. The applicant also argues that the job description for the post of the seconded national expert who replaced him from October 2013, which he attaches as an annex to the application initiating the proceedings, calls for at least eight years’ experience in his field of expertise and that, in practice, none of his colleagues in the team to which he belongs was recruited at grade AD 5.
43 Lastly, the applicant asserts that the contested grading decision was a consequence of budgetary constraints, although, under Article 6(8) of Decision 2010/427, staff must be selected on an objective basis with the aim of securing the services of staff of the highest standard of ability, efficiency and integrity. The applicant contends that there is no reason to state that the EEAS was under budgetary constraints, since, if the candidate who came second in the selection process that followed the vacancy notice had been selected, his monthly salary would have been that of an official in grade AD 13, because he was an official.
44 The Tribunal notes, first, that the applicant’s assertion that the vacancy notice provided for appointment to grade AD 5 only in the case of candidates from the diplomatic services of the Member States is based on a misreading of the wording of the vacancy notice.
45 It is clear from paragraph 1 of the first group of eligibility criteria contained in the vacancy notice that, according to Article 98 of the Staff Regulations, candidates must be officials of the General Secretariat of the Council of the European Union, of the Commission or of the EEAS, or temporary staff to whom Article 2(e) of the CEOS applies, that is to say, staff seconded from the national diplomatic services of the Member States engaged in order to occupy temporarily a permanent post within the EEAS, or staff from the national diplomatic services of the Member States.
46 Accordingly, whilst there were three possible categories of candidates, namely, those who were EU officials, those who had already been recruited to the EEAS as temporary staff within the meaning of Article 2(e) of the CEOS and those who, like the applicant, did not come within either of those categories, the vacancy notice provided that the successful candidate would, in the case of an EU official, be recruited at his existing grade and, in the case of the others, that is to say staff from the national diplomatic services of the Member States, at grade AD 5.
47 Although the vacancy notice allowed officials in grades AD 5 to AD 14 to apply for the post, if the successful candidate had been an official in grade AD 5 he would none the less have been recruited at that same grade. Accordingly, the applicant’s argument that the vacancy notice is unlawful since it provided that only staff of the national diplomatic services of the Member States recruited for the post would be appointed in grade AD 5 cannot be accepted.
48 It should be noted, moreover, that the criteria required of candidates who were staff from the national diplomatic services of the Member States, in paragraph 2 of the second group of eligibility criteria, namely that they should have a level of education which corresponds to completed university studies of at least three years attested by a diploma, matches the criterion required in Article 5(3)(b)(i) of the Staff Regulations for appointment at grades 5 and 6 in the administrators’ function group (AD), a criterion which is very different from that required by Article 5(3)(c) of the Staff Regulations for appointment at grades 7 to 16 in the same function group.
49 It follows that, in view of the level of higher education required by the vacancy notice in the case of candidates who are staff from the national diplomatic services of the Member States, namely that provided for in Article 5(3)(b)(i) of the Staff Regulations for appointment to grades 5 and 6 in function group AD, and the number of years’ minimum professional experience required, which was only two, candidates who were staff from the national diplomatic services of the Member States, which included the applicant, could not be misled with regard to the grade that corresponded to the vacant post. If the EEAS had wished to fill the post at grade AD 7 or above the vacancy notice would have asked for the level of education provided for in Article 5(3)(c) of the Staff Regulations and, in any event, a greater number of years’ professional experience.
50 Secondly, the Tribunal cannot accept the applicant’s argument regarding the discrepancy between the level of his responsibilities, which he alleges he can carry out due only to his considerable experience in the field of expertise described in the vacancy notice, and grade AD 5 at which he was appointed.
51 Indeed, it is apparent from reading the descriptions of the main duties which the successful candidate is required to carry out as listed in the vacancy notice that they correspond fully with those that would be entrusted to an official at the start of his career. Those duties are described, several times, as follows: ‘[c]ontribute’ to the preparation of documents, in close cooperation with, inter alia, other institutions, Member States or international organisations; ‘[c]ontribute’ to the elaboration of basic legislation; ‘[s]eek to ensure’ coordination; ‘[p]articipate [in] and/or represent the [Security Policy and Sanctions] [d]ivision’ inter alia in meetings with EU institutions, Member States or third countries, and are functions which do not need considerable prior experience in order to carry them out.
52 It should be added that the applicant’s argument that the functions of an administrator in grade AD 5, as listed in Annex I, Section A, to the Staff Regulations, correspond inter alia to those of a junior lawyer, a junior economist or a junior scientist, and that this does not match the responsibilities that he undertakes on his own, without acting in a junior capacity in relation to another official or staff member, clearly fails to take into account the job description appearing in the vacancy notice, which gives as one of the main duties that of ‘[p]reparing briefings, notes and other documents … for the senior officials and [at a] political level’.
53 Thirdly, nor is it possible to accept the applicant’s arguments that he should have been recruited at a higher grade because, first, the post he occupied as a seconded national expert was regarded as ‘sensitive’ in the light of his job description, due to the particular skills required, and his functions remained exactly the same when he was appointed as a temporary agent in grade AD 5; secondly, because in December 2012 his job description was the same as those of the two other members of the same team who were officials, one in grade AD 12 and the other in grade AD 13; and, thirdly, because he was engaged as a temporary agent and recruited at grade AD 5, whilst his predecessor had been an official in grade AD 13.
54 It should be noted in that regard that the rule that the post to which an official is assigned should correspond to his grade calls for a comparison between the functions performed by the official or other staff member and his grade in the hierarchy, regard being had to their nature, their importance and their scope (judgment in Michail v Commission, F‑100/09, EU:F:2011:132, paragraph 65). In the present case, it is clear from paragraphs 48, 51 and 52 of the present judgment that both the duties as described in the vacancy notice and the criterion concerning the level of education required of candidates for the vacant post are equivalent, the former to the duties typically entrusted to officials and other staff in grade AD 5 and the latter to the minimum level of education required for appointment as an official or other staff member in that grade.
55 As regards the applicant’s first argument, the Tribunal notes that it is clear, from a simple comparison between the list of the functions to be performed by the temporary agent in grade AD 5 who was to be recruited, as given in the vacancy notice, and the list of functions in the job description for the post occupied by the applicant when he was a seconded national expert, that that argument has no basis in fact. The first group of functions contained in the description of the post the applicant occupied as a seconded national expert does not appear in the description of functions given in the vacancy notice. The same applies for the fourth and fifth duties in the third group of functions contained in the abovementioned job description, and the first, third and fourth duties in the fourth group of functions contained in the abovementioned job description.
56 As regards the applicant’s second argument, which is based on the job descriptions of the other two members of his team, both of whom are officials, one in grade AD 12 and the other in grade AD 13, it should be noted that the duties which appear in those descriptions do match the list of functions for the seconded national expert post which the applicant previously occupied, but they differ considerably from those listed in the vacancy notice.
57 As regards the applicant’s third argument, even if he had been engaged for a post formerly occupied by an official in grade AD 13, that would not affect the legality of the contested grading decision, under which the applicant was recruited at the basic grade in the AD function group in accordance with the vacancy notice to which he had responded (see, to that effect, judgment in BV v Commission, F‑133/11, EU:F:2013:199, paragraphs 64 to 67).
58 In any event, the functions performed by the applicant as a seconded national expert with the EEAS before being engaged as a temporary agent by the EEAS cannot be taken into consideration for purposes of a comparison with the functions performed in the post he occupies under the contract of employment at issue, since, as a seconded national expert, the applicant was not eligible for grading under the Staff Regulations.
59 Fourthly and lastly, it is not possible to accept the applicant’s arguments that the contested grading decision is unlawful, that is to say, first, that the vacancy notice allowed officials in a range of grades from grade AD 5 to grade AD 14 to apply for the post and, secondly, that officials who were working, or had worked, in the same service as the applicant and had presumably performed the same functions, were in a higher grade than the one at which the applicant was recruited.
60 Since the amendment of the Staff Regulations on 1 May 2004, apart from grades AD 15 and AD 16, which are reserved for the posts of Director and/or Director General, the Staff Regulations do not establish any correspondence between the functions performed and a particular grade, but allow grade and function to be separated (judgment in Bouillez and Others v Council, F‑53/08, EU:F:2010:37, paragraph 54) and, as a consequence, officials in function group AD have followed a linear career path, which can progress, through promotion, from grade AD 5 to grade AD 14.
61 In the present case, as the job description contained in the vacancy notice corresponded to administrative and advisory functions, functions which, according to Article 5(2) of the Staff Regulations, are performed by staff in function group AD from grade AD 5 upwards, it was right that the vacancy notice provided that officials applying for the post in question should be in one of the grades AD 5 to AD 14 and that the successful candidate would be appointed in his existing grade.
62 It is already established that the same or similar functions may be performed by persons in different grades, as is apparent from Annex I, Section A, to the Staff Regulations, which provides, for most of the functions set out therein, that they may be performed by officials in different grades. Thus, there is a breach of the rule that the post should correspond to the grade only where the functions performed, taken as a whole, fall far short of those corresponding to the grade and post of the official concerned (judgment in Z v Court of Justice, F‑88/09 and F‑48/10, EU:F:2012:171, paragraph 138, on appeal before the General Court of the European Union in Case T‑88/13 P). That case-law relating to officials also applies in the case of temporary staff.
63 As regards the applicant’s argument that he was recruited at grade AD 5 as a consequence of budgetary constraints, suffice it to say that it does not appear, from the documents in the case, that the EEAS’s decision that the post advertised in the vacancy notice was a grade AD 5 post was taken on those grounds.
64 It follows that the applicant has failed to demonstrate that grade AD 5 was inappropriate for the functions described in the vacancy notice and that the post he occupies does not correspond to the grade at which he was recruited, since he has confined himself in that regard to making mere assertions concerning his own responsibilities and the grades occupied by some of his colleagues who are officials.
65 Accordingly, the first part of the plea, based on breach of the principle of correspondence between the grade and the post and on infringement of Article 5 of the Staff Regulations and Annex I, Section A, to the Staff Regulations, must be rejected.
The third part of the plea: breach of the principle of equal treatment and of the prohibition on discrimination of any kind, and also infringement of Article 6(7) of Decision 2010/427
66 The applicant relies on Article 21(1) of the Charter of Fundamental Rights of the European Union, Article 1d of the Staff Regulations and Article 6(7) of Decision 2010/427 in his claim for equal treatment for temporary staff and officials. In the present case, it is clear from the vacancy notice that, in the case of the post to which the applicant was appointed, temporary staff from the national diplomatic services of the Member States could be recruited only at grade AD 5, whereas officials could be appointed to one of the grades AD 5 to AD 14.
67 The applicant contends that such a difference in grading for the performance of the same functions does not meet the requirement of eligibility to assume all positions under equivalent conditions, laid down in Article 6(7) of Decision 2010/427. The applicant claims, in that regard, that the range of grades proposed for the recruitment of officials enables them to retain and exercise their seniority rights, whilst staff from the diplomatic services of Member States are prevented from deriving advantage from their experience, which results in unequal treatment on grounds of origin as regards their conditions of recruitment and employment, although both groups are the subject of a common selection procedure.
68 Those arguments put forward by the applicant cannot be accepted.
69 It is settled case-law that the principle of non-discrimination applies only to persons who are in identical or comparable situations and, moreover, requires that differences in treatment between different categories of officials or temporary staff must be justified on the basis of objective and reasonable criteria and that the difference must be proportionate to the aim pursued by the differential treatment (judgment in Afari v ECB, T‑11/03, EU:T:2004:77, paragraph 65 and the case-law cited therein). There is a breach of the principle of equal treatment where two categories of persons whose factual and legal situations are not essentially different receive different treatment and where different situations are treated in an identical manner (judgment in Schönberger v Parliament, F‑7/08, EU:F:2009:10, paragraph 45 and the case-law cited therein).
70 In this particular case, admittedly, under Article 6(7) of Decision 2010/427, officials and staff from national diplomatic services of the Member States are to have the same rights and obligations and be treated equally, in particular as concerns their eligibility to assume all positions under equivalent conditions.
71 It is clear from the wording of the vacancy notice that both the list of eligibility criteria it contained and the selection criteria were the same for EU officials and for staff from national diplomatic services of the Member States, the only difference being that the latter were required to meet nationality and education criteria which officials in function group AD were presumed to have met at the time of their recruitment. Accordingly, it is appropriate to conclude that the vacancy notice did not differentiate as regards access to the post according to the origin of the candidates.
72 So far as grading is concerned, as the Tribunal stated in paragraph 47 above, if the successful candidate had been an official in grade AD 5 he would have been transferred and would have kept the same grade, which is the one at which the applicant was recruited as a temporary agent. Accordingly, the vacancy notice does not differentiate as regards recruitment at the basic grade in function group AD depending on whether the successful candidate is an EU official or a member of staff of the national diplomatic service of a Member State.
73 The applicant, however, sees himself as a victim of discrimination, since an official in a grade higher than AD 5 would have retained his grade if he had been appointed to the post advertised in the vacancy notice, whilst the applicant was prevented from asserting his seniority since it was possible for temporary staff to be recruited only at grade AD 5.
74 That argument cannot be accepted, since EU officials and staff from the Member States’ national diplomatic services who are seconded to the EEAS are not in an identical or a similar situation as regards the framework within which their career is supposed to progress or indeed the way in which their administration of origin assesses their seniority.
75 First, members of staff of the General Secretariat of the Council, the Commission or the EEAS, who could apply for the post advertised in the vacancy notice if they met the grading criterion, were officials in function group AD, who, as such, are intended to follow a career path within the EU institutions, performing, inter alia, conceptual and analytical functions in grades AD 5 to AD 14.
76 However, it is apparent from Article 50b of the CEOS that staff from the national diplomatic services of the Member States, even if they are engaged as temporary staff under Article 2(e) of the CEOS, are supposed to resume their career path subsequently in their administration of origin, since they may be engaged by the EEAS only for a maximum period of four years, renewable for one further period of up to four years, with the possibility, in exceptional circumstances, of an additional contract extension of two years, giving a maximum total secondment of ten years, with a guarantee of immediate reinstatement at the end of their period of service at the EEAS.
77 Secondly, where they exercise their broad discretion in deciding on the correspondence between posts and grades, in the light of the importance of the duties assigned to the functions at issue and solely in the interest of the service, the EU institutions must take into account the fact that, under the Staff Regulations, identical or similar functions may be performed by persons in different grades, as is apparent from Annex I, Section A, to the Staff Regulations, which provides, in the case of most of the functions listed therein, that they may be performed by officials in different grades.
78 It is apparent moreover from the data supplied by the applicant himself that, in the 2013 promotion procedure, 15 officials of the EEAS were eligible for promotion to grade AD 6; 18 officials were eligible for promotion to grade AD 7; 15 officials were eligible for promotion to grade AD 8; 26 officials were eligible for promotion to grade AD 9 and the same number were eligible for promotion to grade AD 10; 47 officials were eligible for promotion to grade AD 11; 33 officials were eligible for promotion to grade AD 12; 130 officials were eligible for promotion to grade AD 13 and 102 officials were eligible for promotion to grade AD 14. Although those figures do not match exactly the number of EEAS officials in each grade, since some of those officials were not eligible for promotion during that promotion procedure, they provide adequate proof that, although the vacancy notice had confined the opportunity to apply for the vacant post solely to EEAS officials in grade AD 5, nearly all EEAS officials would have been excluded from the selection procedure, in view of the high grades occupied by all those officials.
79 In those circumstances, it was entirely legitimate for the vacancy notice to provide that the recruitment of a temporary agent would be at grade AD 5 whilst providing that an EU official in one of the grades AD 5 to AD 14 would be appointed in his existing grade, and the principle of equal treatment was not infringed so far as eligibility for EU officials and for staff from the national diplomatic services of the Member States to assume all positions under equivalent conditions and the grading of the successful candidate were concerned.
80 Consequently, the third part of the plea, based on breach of the principle of equal treatment and of the prohibition on discrimination of any kind, and infringement of Article 6(7) of Decision 2010/427, must also be rejected.
81 It follows from the above that the single plea alleging the illegality of the vacancy notice is inadmissible in part and unfounded in part.
82 The claim for annulment of the contested grading decision must therefore be rejected.
The claim for damages
83 The applicant contends he has suffered material and non-material damage. The former stems from the fact that his remuneration is directly linked to his grade: if he had been recruited at grade AD 12, for example, he would have been entitled to receive double his present salary. Similarly, his recruitment at grade AD 5 may have negative consequences for his career prospects within the EEAS, in particular as regards being transferred, his opportunities being limited to transfers to other posts at the same grade, despite his experience which equips him to apply for posts at a much higher grade.
84 Lastly, the applicant contends that recruitment at grade AD 5 caused him non-material damage in view of the legitimate expectations he was entitled to entertain vis-à-vis his employer, when he had chosen of his own free will to continue his separation from his original national administration in order to continue working for the EEAS.
85 According to settled case-law, where the damage on which an applicant relies arises from the adoption of a decision whose annulment is sought, the rejection of the claim for annulment entails, as a matter of principle, the rejection of the claim for damages, as those claims are closely linked (judgment in Arguelles Arias v Council, F‑122/12, EU:F:2013:185, paragraph 127).
86 In the present case, it should be noted that the material and non-material damage which the applicant alleges arose from the adoption of a decision by the EEAS under which he was recruited at grade AD 5, contrary to his wishes and expectations. Since the claim for annulment of the contested grading decision has been rejected without the Tribunal finding any irregularity in the decision taken by the EEAS, the applicant’s claim for damages must be rejected.
87 It follows from all the foregoing that the application must be dismissed in its entirety.
Costs
88 Pursuant to Article 101 of the Rules of Procedure, subject to the other provisions of Chapter 8 of Title 2 of those Rules, the unsuccessful party is to bear his own costs and is to be ordered to pay the costs incurred by the other party if they have been applied for in the other party’s pleadings. Under Article 103(3) of the Rules of Procedure, if costs are not applied for, the parties are to bear their own costs.
89 The EEAS, having been duly served with the application, did not lodge a defence and did not apply for costs. In those circumstances, under Article 103(3) of the Rules of Procedure, it is appropriate to order the parties are to bear their own costs.
On those grounds,
THE CIVIL SERVICE TRIBUNAL (Second Chamber)
hereby:
1. Dismisses the action;
2. Orders the parties to bear their own costs.
Bradley | Kreppel | Rofes i Pujol |
Delivered in open court in Luxembourg on 18 May 2015.