ORDER OF THE CIVIL SERVICE TRIBUNAL (Second Chamber)

25 October 2007

Case F-53/05

José Fernandez Tunon

v

Commission of the European Communities

(Civil service – Member of the contract staff – Application for review of grade and remuneration fixed upon recruitment – Former member of the auxiliary staff employed as contract staff without change in duties – Articles 3a and 80(2) and (3) of the CEOS – Duties falling within different function groups – Equal treatment – Action manifestly unfounded)

Application: brought under Articles 236 EC and 152 EA, in which Mr Fernandez Tunon seeks, first, annulment of the decision of the authority responsible for concluding contracts of employment of 21 March 2005 dismissing his application of 23 November 2004, reclassified as a claim, against the decision fixing his grade and remuneration upon his engagement as contract staff and, in so far as necessary, annulment of the original decision by which the same grade and remuneration were fixed under the terms of the contract signed on 23 August 2004, and second, damages which he assesses at EUR 25 000.

Held: The action is dismissed as manifestly unfounded. Each party is to bear its own costs.

Summary

1.      Officials – Conditions of Employment of Other Servants – Application of Title IV, concerning contract staff, not subject to the prior adoption of the description of functions and responsibilities covered by each type of duty characterising the various function groups for those staff

(Conditions of Employment of Other Servants, Arts 52 and 80(3); Council Regulation No 723/2004)

2.      Officials – Conditions of Employment of Other Servants – Equal treatment

3.      Officials – Equal treatment

1.      The Conditions of Employment of Other Servants and Regulation No 723/2004 amending the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Communities do not contain any provision which makes the application of Title IV of those Conditions of Employment, concerning contract staff, and of its provisions on their engagement in particular, subject to the adoption of the description of functions and responsibilities covered by each type of duty characterising each of the function groups to which contract staff may belong, set out in Article 80(3) of those Conditions of Employment. On the contrary, Article 52 of the Conditions of Employment, which provides that the actual period of employment of auxiliary staff, intended to be eventually replaced by contract staff, as is apparent from recital 36 of Regulation No 723/2004, must not extend beyond 31 December 2007 and that no new auxiliary staff may be engaged after 31 December 2006, confirms that Title IV applies immediately, since that article makes no mention of the prior implementation of Article 80(3) of the Conditions of Employment.

(see para. 60)

See:

T-415/06 P De Smedt v Commission [2007] ECR-SC I-B-1-0000 and II‑B‑1‑0000, para. 40

F-59/05 De Smedt v Commission [2006] ECR-SC I-A-1-109 and II‑A-1-409, para. 52

2.      The Community legislature is free to make at any time such amendments to the rules of the Staff Regulations as it considers to be consistent with the interests of the service, and to adopt for the future provisions of the Staff Regulations which are less favourable for the officials or other staff concerned, provided, however, that the rights duly acquired by the officials or other staff are safeguarded and that those specifically affected by the new rules are treated in exactly the same way. It cannot therefore be objected that it created a new category of staff, contract staff, who are subject to different financial rules from those of auxiliary staff, and who are intended eventually to replace auxiliary staff and category D officials, if the rights acquired by officials or staff recruited under the previous Staff Regulations have not been unlawfully affected and if the staff in the new category have been treated in an identical manner.

(see para. 79)

See:

28/74 Gillet v Commission [1975] ECR 463, paras 5 and 6

T-121/97 Ryan v Court of Auditors [1998] ECR II‑3885, paras 98 and 104; T‑135/05 Campoli v Commission [2006] ECR-SC I‑A‑2‑297 and II-A-2-1527, para. 85

F-59/05 De Smedt v Commission, para 71

3.      It is not possible to question the differences in status between the various categories of persons employed by the Communities, whether as officials properly so called or in the various categories of staff covered by the Conditions of Employment of Other Servants. Each of those categories is defined in accordance with the legitimate requirements of the Community administration and the nature of the permanent or temporary tasks which it has to perform. The fact that some categories of persons employed by the Communities may enjoy guarantees under the Staff Regulations and social security benefits which are not given to other categories cannot, therefore, be regarded as discrimination. In particular a general feature of the position of staff covered by the Conditions of Employment of Other Servants is the contractual nature of the employment relationship, whereas the legal relationship between an official and the administration is governed by the Staff Regulations.

(see para. 83)

See:

118/82 to 123/82 Celant and Others v Commission [1983] ECR 2995, para. 22

T-415/06 P De Smedt v Commission, paras 54 and 55

F-59/05 De Smedt v Commission, para. 76