JUDGMENT OF THE COURT OF FIRST INSTANCE (Appeal Chamber)

8 July 2008

Case T-56/07 P

Commission of the European Communities

v

Ioannis Economidis

(Appeal – Civil service – Officials – Annulment at first instance of the Commission’s decision to appoint a head of unit – Rejection of the applicant’s candidature – Appointment of another candidate – Determination of the level of the post to be filled in the vacancy notice – Principle of separation of the grade and the function – Appeal well founded – Dispute capable of being decided – Dismissal of the action)

Appeal: against the judgment of the Civil Service Tribunal of the European Union (Second Chamber) of 14 December 2006 in Case F-122/05 Economidis v Commission [2006] ECR-SC I-A-1-179 and II-A-1-725, seeking to have that judgment set aside.

Held: The judgment of the Civil Service Tribunal of the European Union (Second Chamber) of 14 December 2006 in Case F-122/05 Economidis v Commission [2006] ECR-SC I-A-1-179 and II-A-1-725 is set aside. The action brought by Mr Ioannis Economidis before the Civil Service Tribunal in Case F‑122/05 is dismissed. Mr Economidis and the Commission are to bear their own costs, both in relation to the proceedings before the Civil Service Tribunal and before this Court. 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’s claims, are to bear their own costs.

Summary

1.      Officials – Post – Correspondence between grade and function – Heads of unit – None

(Staff Regulations, Annex I, paragraph A)

2.      Officials – Organisation of departments – Determination of the level of a post to be filled – Heads of unit – Administration’s discretion – Criteria – Duty to fix the level of the post before considering candidatures – None

(Staff Regulations, Annex I, paragraph A)

3.      Officials – Recruitment – Procedures – Choice – Administration’s discretion

(Staff Regulations, Arts 29(1) and 45a)

1.      The Staff Regulations do not establish any correspondence between the function of head of unit and a particular grade. On the contrary, for the function of head of unit it expressly separates the grade and the function.

(see para. 59)

2.      In a recruitment procedure for a head of unit post to be filled by transfer, where the determination of the level of the post to be filled does not depend on any independent decision taken by the appointing authority, but follows automatically from the grade of the candidate selected and therefore does not constitute a criterion for the selection of the candidate, where that determination has not changed the vacancy notice, and where it has occurred after the candidate has been definitively selected following a consideration of comparative merits in accordance with the conditions laid down in the vacancy notice, it is not liable to eliminate candidates who satisfied the conditions in the vacancy notice or to affect the objectivity of the procedure.

Annex I, paragraph A, of the Staff Regulations provides that grades AD 9 to AD 12 (A*9 to A*12 during the transitional period) and grades AD 13 and AD 14 (A*13 and A*14 during the transitional period) may correspond, without distinction, to a post as ‘administrator working for example as head of unit’. The legislature thus clearly intended to allow the institutions a wide discretion in fixing the appropriate grade when recruiting a head of unit.

Furthermore, a recruitment procedure for a head of unit post is objective if it enables the selection of the most suitable person to perform the required duties, in accordance with the interest of the service. If the institutions were under an obligation to fix the precise grade of the head of unit post to be filled in the vacancy notice, that obligation would not only have no basis in the provisions of the Staff Regulations, it would also considerably reduce the number of candidatures for the post in question. Consequently, such an obligation could prevent the appointing authority from choosing the best candidate from all the officials with a comparable and suitable profile holding the wide range of grades eligible for such a post under the provisions of the Staff Regulations.

(see paras 66, 67, 81, 85)

3.      Article 29 of the Staff Regulations does not place the appointing authority under any obligation to consider simultaneously the three possibilities provided for in Article 29(1)(a) – transfer, appointment in accordance with Article 45a of the Staff Regulations, and promotion – before filling a vacant head of unit post where it considers that examining possible transfers alone will enable it to find a candidate with the highest standard of ability, efficiency and integrity for the post in question. It is clear from Article 29(1) of the Staff Regulations that it is only where an institution deems it necessary to consider requests for transfer from officials in other institutions or to hold an internal or external competition that it must first make sure that the three possibilities provided for in Article 29(1)(a) will not enable it to find the most suitable candidate for the post in question within the institution.

(see para. 89)