JUDGMENT OF THE COURT OF FIRST INSTANCE (Appeal Chamber)

18 June 2009

Case T-572/08 P

Commission of the European Communities

v

Amadou Traore

(Appeal – Civil service – Officials – Recruitment – Notice of vacancy – Appointment to the post of Head of Operations at the Commission Delegation in Tanzania – Determination of the level of the post to be filled – Principle of separation of the grade and the function)

Appeal: against the judgment of the Civil Service Tribunal of the European Union (Second Chamber) of 13 November 2008 in Case F-90/07 Traore v Commission [2008] ECR-SC I-A-1-0000 and II‑A‑1‑0000, seeking annulment of that judgment.

Held: The judgment of the Civil Service Tribunal of the European Union of 13 November 2008 in Case F-90/07 Traore v Commission is set aside in so far as it annuls the decision of the Director of Resources of the EuropeAid Co-operation Office of the Commission of 12 December 2006 rejecting Mr Amadou Traore’s candidature for the post of Head of Operations at the Commission Delegation in Tanzania and the decision to appoint Mr S to that post. The action brought by Mr Traore before the Civil Service Tribunal in Case F‑90/07 is dismissed. Mr Traore and the Commission of the European Communities are ordered to pay their own costs relating to the proceedings at first instance and the appeal proceedings. The European Parliament, the Council of the European Union and the Court of Auditors of the European Communities, which intervened in support of the Commission, are ordered to pay their own costs.

Summary

1.      Officials – Organisation of departments – Determination of the level of a post to be filled – Head of Operations in a Commission delegation

(Staff Regulations, Art. 5)

2.      Officials – Organisation of departments – Determination of the level of a post to be filled – Obligation to fix the specific grade in the vacancy notice – None

(Staff Regulations, Arts 5(4), 7(1) and 29; Annex I)

1.      Even if the level of a post to be filled must be decided in consideration of the importance of the tasks conferred on the function in question and solely in the interests of the service, the publication of a notice of vacancy relating to four different grades, grades A* 9 (now AD 9) to A* 12 (now AD 12), in order to fill a post of Head of Operations in a Commission delegation is lawful in so far as, first, the legal framework applicable does not place the appointing authority under any obligation to determine, when publishing a notice of vacancy, the precise grade of the post to be filled within that range, since the authority, in exercising its discretion, is entitled to consider that it is in the interests of the service for the level of a post to be filled to be fixed by reference to a range of grades, particularly in order to increase the number of eligible candidates, and second, the reference to the four grades in question in the notice of vacancy does not call into question the objective nature of the procedure.

(see paras 38, 41)

See: T-56/07 P Commission v Economidis [2008] ECR-SC I-B-1-0000 and II‑B‑1‑0000, paras 82 to 86

2.      Article 29 of the Staff Regulations, while listing three alternatives for filling a post within an institution, namely transfer, appointment in accordance with the procedure laid down in Article 45a of the Staff Regulations or promotion, does not say anything about determining the grade of the post to be filled in the notice of vacancy. It cannot therefore be inferred from that provision that a notice of vacancy must not fix the level of the post to be filled by reference to a range of grades.

Similarly, Article 7(1) of the Staff Regulations, which requires the appointing authority to make appointments ‘solely in the interest of the service’, does not impose any obligation on that authority to fix in a notice of vacancy the specific grade at which the post will be filled.

Furthermore, the Staff Regulations do not establish a fixed correspondence between a particular function and a particular grade. Annex I to the Staff Regulations, to which Article 5(4) of the Staff Regulations refers, lays down, for each type of post listed by way of example, different grades corresponding to the post in question.

Thus the fact that the level of the post to be filled must be decided in consideration of the importance of the tasks conferred on the function in question and solely in the interests of the service does not mean that the appointing authority is required to fix the precise grade of the post to be filled in the notice of vacancy.

(see paras 59-62)

See: Economidis v Commission, para. 80