JUDGMENT OF THE CIVIL SERVICE TRIBUNAL
(Second Chamber)

29 September 2011

Case F‑56/05

Peter Strobl

v

European Commission

(Civil service – Officials – Appointment – Candidates placed on a reserve list prior to the entry into force of the new Staff Regulations – Grading under the new, less favourable rules – Article 12 of Annex XIII to the Staff Regulations – Protection of legitimate expectations – Principle of equality – Age discrimination)

Application:      brought under Articles 236 EC and 152 EA, in which Mr Strobl seeks, in particular, annulment of the Commission’s decision of 7 October 2004 fixing his classification in grade A*6.

Held:      The action is dismissed. Each party is ordered to bear its own costs. The Council, which intervened, is ordered to bear its own costs.

Summary

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

(Staff Regulations, Annex XIII, Art. 12(3); Council Regulation No 723/2004)

2.      Officials – Recruitment – Appointment in grade – Introduction of a new career structure by Regulation No 723/2004 – Transitional provisions for classification in grade

(Staff Regulations, Arts 5(3)(c) and 31); Annex XIII, Art. 12(3))

3.      Officials – Recruitment – Appointment in grade – Introduction of a new career structure by Regulation No 723/2004 – Transitional provisions for classification in grade

(Staff Regulations, Art. 7(1), Art. 27, first para., and Art. 29(1); Annex XIII, Art. 12(3); Council Regulation No 723/2004)

4.      Officials – Recruitment – Appointment in grade – Introduction of a new career structure by Regulation No 723/2004 – Transitional provisions for classification in grade – Successful candidates in open competitions recruited between 1 May 2004 and 30 April 2006 – Application of the new provisions – Breach of the principle of equal treatment – None

(Staff Regulations, Art. 3; Annex XIII, Arts 12(3) and 13(2))

5.      Officials – Assignment – Correspondence between grade and post – Assignment to a post in a higher grade – Right to reclassification – None

(Staff Regulations, Arts 7(1) and 62, first para.)

1.      An official cannot rely on the principle of the protection of legitimate expectations in order to challenge the lawfulness of a new regulation, particularly in an area in which the legislature has a wide discretion as to the need for reform to the Staff Regulations. Furthermore, the right to rely on the principle of the protection of legitimate expectations extends to any individual in a situation where it is clear that the Community administration has caused him to entertain expectations which are justified, by providing him with precise assurances in the form of precise, unconditional and consistent information coming from authorised and reliable sources; on the other hand, a person may not plead infringement of that principle unless he has been given precise assurances by the administration.

It is true that a legitimate expectation that the grading criteria of the old Staff Regulations would be retained could, in some circumstances, have resulted from precise and consistent assurances to that effect. However, such legitimate expectations could not be warranted where a warning, allegedly imprecise, had been given that new Staff Regulations were being drawn up, much less where an indication, allegedly just as vague, had been given of the classification at which the person concerned would be recruited.

(see paras 39, 44)

See:

11 July 2007, T‑58/05 Centeno Mediavilla and Others v Commission, paras 9, 13 and 98

2.      Article 12(3) of Annex XIII to the Staff Regulations has the effect, by its very nature as a transitional provision of a special kind, of derogating from the general rules contained in the permanent provisions of the Staff Regulations, so that there is no contradiction between that article on the one hand and Article 5(3)(c) or Article 31 of the Staff Regulations on the other.

Moreover, Article 12(3) of Annex XIII to the Staff Regulations does not have retroactive effect and does not prejudice the supposed acquired rights of successful candidates in competitions published prior to 1 May 2004.

(see paras 45, 46)

See:

22 December 2008, C‑443/07 P Centeno Mediavilla and Others v Commission, paras 62 and 101

T‑58/05 Centeno Mediavilla and Others v Commission, cited above, para. 48 et seq.

30 September 2010, F‑20/06 De Luca v Commission, para. 86

3.      The legislature has been able, in the context of the reform of the Staff Regulations, to provide that successful candidates in competitions who would, prior to 1 May 2004, have been recruited at grade A*7 would now be appointed at grade A*6, and at the same time to reduce the salaries relating to those grades.

In taking that action the legislature did not infringe the principle of equality and, in particular, the prohibition of any discrimination on grounds of age, in so far as the table of corresponding grades given in Article 12(3) of Annex XIII to the Staff Regulations and the table of basic monthly salaries are manifestly unconnected to any taking into account, directly or indirectly, of the age of the persons concerned.

Furthermore, in accordance with the rule flowing from Article 7(1), the first paragraph of Article 27 and Article 29(1) of the Staff Regulations, according to which the level of posts is determined according to their character, their importance and their scope, regardless of the qualifications of those concerned, the table of corresponding grades given in Article 12(3) of Annex XIII to the Staff Regulations distinguishes the basic grade A*5 from the higher grade A*6 in order to take account of the experience required for posts at that level.

Consequently, Article 12(3) of Annex XIII to the Staff Regulations requires the appointing authority to take account of that experience in the interests of the service, when objectively determining the level of the posts to be filled.

(see para. 54)

See:

30 September 1998, T‑121/97 Ryan v Court of Auditors, paras 98 and 104; 29 November 2006, T‑135/05 Campoli v Commission, para. 105

19 June 2007, F‑54/06 Davis and Others v Council, para. 81

4.      If all further development of legislation is not to be prevented, the principle of equality cannot hinder the legislature’s freedom to make at any time such amendments to the Staff Regulations as it considers to be consistent with the interests of the service, even if those amendments are less favourable for officials than the former provisions.

Moreover, it is made clear by Article 3 of the Staff Regulations that the appointment of an official necessarily has its origin in a unilateral instrument of the appointing authority, and it is only after being the subject of such a decision that a successful candidate in a competition can claim the status of official and therefore demand the application to him of provisions of the Staff Regulations.

Officials appointed after 1 May 2004 could be lawfully graded only with the application of the new criteria in force from that date. During the transitional period from 1 May 2004 to 30 April 2006 those criteria were laid down by Article 12(3) of Annex XIII to the Staff Regulations.

Furthermore, the lawfulness of a contested measure falls to be assessed on the basis of the elements of fact and of law existing at the time when the measure was adopted, and the appointing authority has a wide discretion to fix the conditions for admission to competitions according to the needs of the service. Consequently, an official may not infer that Article 12(3) of Annex XIII to the Staff Regulations breaches the principle of equal treatment solely from the fact that, in the light of the needs of the service, competitions for the recruitment of officials at higher grades than his were organised after the reform of the Staff Regulations. The same reasoning applies regarding the fact that vacant posts were reserved in specific fields for candidates with higher grades than that held by the official concerned.

In addition, the option offered to the institutions by Article 13(2) of Annex XIII to the Staff Regulations of recruiting officials as lawyer linguists at grade A*7 is explained by their special profile on the labour market and in particular by the difficulties which the institutions may encounter in recruiting them.

Lastly, Article 12(3) of Annex XIII to the Staff Regulations does not discriminate against an official who challenges a decision taken on the basis of that provision compared with officials who began their career in the European Union at a younger age. Admittedly, the failure to take account, in the initial grading, of all the experience which the official had acquired prior to recruitment by the institution has consequences throughout his career. However, in such cases, experience which is relevant for the posts to be filled is established objectively, in the light of the needs of the service, when the level of those posts is determined in the competition notice, and in determining that relevant experience the administration pursues a legitimate objective without making any arbitrary or manifestly inappropriate distinctions. Moreover, having regard to the purpose of the European civil service, persons who have worked as officials are not, as a general rule, in a comparable situation to that of persons who have acquired experience outside the institutions. Generally, unlike persons outside, officials have acquired relevant experience of the institutions since they have already demonstrated their ability to perform the tasks of the institutions within the framework of the specific features of the European administrative organisation and the employment relationships provided for by the Staff Regulations as regards subordination, assessment and discipline, as well as in a multicultural context with a wide range of traditions.

(see paras 79, 81, 82, 87)

See:

Campoli v Commission, para. 105; T‑58/05 Centeno Mediavilla and Others v Commission, paras 86 and 113; 13 December 2006, T‑173/05 Heus v Commission, paras 43, 44 and 52; 15 November 2001, T‑142/00 Van Huffel v Commission, para. 52

15 June 2006, F‑25/05 Mc Sweeney and Armstrong v Commission, para. 39; 3 May 2007, F‑123/05 Bracke v Commission, paras 51 and 56; Davis and Others v Council, para. 81

5.      It follows from Article 7(1) in conjunction with the first paragraph of Article 62 of the Staff Regulations, according to which an official is entitled to the remuneration carried by his grade and step, that, once the grade and therefore the salary level of the official have been determined, he cannot be given a post which does not correspond to that grade. In other words, the grade and therefore the salary to which an official is entitled determine the type of work he may be given. Consequently, the principle that grade and post must correspond also allows any official to refuse assignment to a post which does not correspond to his grade, and thus, in the end, to refuse duties which do not correspond to his remuneration.

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.

(see paras 90, 92)

See:

7 May 1991, T-18/90 Jongen v Commission, para. 27; 20 March 2002, T‑23/99 LR AF 1998 v Commission, para. 367; 22 December 2005, T-146/04 Gorostiaga Atxalandabaso v Parliament, para. 141