JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

18 September 2008

Case T-47/05

Pilar Angé Serrano and Others

v

European Parliament

(Civil service – Officials – Success in internal competitions for change of category under the old Staff Regulations – Entry into force of the new Staff Regulations – Transitional rules for classification in grade – Changes to levels of hierarchy under the old Staff Regulations – Admissibility – Plea of illegality – Acquired rights – Legitimate expectations – Proportionality – Equal treatment – Principle of sound administration and duty of care)

Application: for annulment of the individual decisions containing the applicants’ classification in the intermediate grade from 1 May 2004 and communicated to them, by letter from the Director General for Personnel of the European Parliament, during the first week of May 2004, and of any act consecutive to and/or relating to those decisions, even ones adopted subsequent to the present action, and an application to order the European Parliament to pay damages and interest.

Held: There is no need to adjudicate in respect of Ms Angé Serrano, Mr Bras and Mr Orcajo Teresa as regards the first head of claim. The remainder of the application is dismissed. The European Parliament is to bear its own costs and to pay those incurred by Ms Angé Serrano, Mr Bras and Mr Orcajo Teresa. Mr Dominiek Decoutere, Mr Armin Hau and Mr Francisco Javier Solana Ramos are to bear their own costs. The Council, which intervened in support of the European Parliament’s claims, is to bear its own costs.

Summary

1.      Procedure – Production of evidence – Time-limit – Late submission of evidence relied on – Conditions

(Rules of Procedure of the Court of First Instance, Art. 48(1))

2.      Officials – Actions – Act adversely affecting an official – Definition

(Staff Regulations, Arts 90(2) and 91(1); Annex XIII)

3.      Officials – Actions – Interest in bringing proceedings – Complaints concerning the alteration, brought about by the transitional classification rules of Annex XIII to the Staff Regulations, to earlier hierarchical relations – Admissibility

(Staff Regulations, Annex XIII)

4.      Officials – Careers – Acquired rights – Success in an internal competition for change of category prior to 1 May 2004

(Staff Regulations, Annex XIII, Arts 2 and 8)

5.      Officials – Careers – Introduction of transitional rules for the move from the old to the new career system for officials – Rules for classification in grade

(Staff Regulations, Annex XIII, Arts 2 and 8)

1.      In accordance with the provisions of Article 48(1) of the Rules of Procedure of the Court of First Instance, if parties can offer further evidence in support of their arguments in reply or rejoinder, they must give reasons for the delay in offering it.

The lodging of evidence offered after the rejoinder remains possible only where the person offering the evidence was unable, before the end of the written procedure, to obtain possession of the evidence in question, or if evidence produced belatedly by the other party justifies completing the file so as to ensure observance of the rule that both parties should be heard.

The obligation to give reasons for the delay in offering evidence implies that the court has the power to check whether those reasons and, depending on the case, the substance of that evidence are well founded, as well as the power to disregard the evidence if the application is not sufficiently founded. The same applies, a fortiori, to offers of evidence made after the rejoinder is submitted.

(see paras 54-56)

See: judgment of 14 April 2005 in C-243/04 P Gaki-Kakouri v Court of Justice, not published in the ECR, paras 32 and 33

2.      Only measures which produce binding legal effects such as to affect the interests of an applicant directly and immediately by bringing about a distinct change in his legal position may be the subject of an action for annulment. That is true of individual decisions applying in practice the transitional rules on classification in grade laid down in Annex XIII to the Staff Regulations. Those decisions are capable of adversely affecting the legal situation of the official in question, even if the institution to which he belongs is merely applying those rules.

(see paras 61-62)

See: judgment of 10 January 2008 in C-373/04 P Commission v Alvarez Moreno, not published in the ECR, para. 42 and the case-law cited therein; T‑391/94 Baiwir v Commission [1996] ECR-SC I‑A‑269 and II‑787, para. 34; T‑293/94 Vela Palacios v ESC [1996] ECR-SC I‑A‑305 and II‑893, para. 22; T‑35/05, T‑61/05, T‑107/05, T‑108/05 and T‑139/05 Agne-Dapperand and Others v Commission [2006] ECR-SC I‑A‑2‑291 and II‑A‑2‑1497, paras 32 and 33

3.      For an action to be admissible, the applicants must, at the time when they bring their action, have a sufficiently clear, real and current interest in having the individual decisions which they are contesting annulled, it being assumed with such an interest that the outcome of the action will bring them an advantage. That is true of officials contesting an alteration in the hierarchical relations under the Staff Regulations in force prior to 1 May 2004 brought about by the transitional classification rules of Annex XIII to the new Staff Regulations.

(see paras 65, 68, 70, 76, 81)

See: 167/86 Rousseau v Court of Auditors [1988] ECR 2705, para. 7; T‑310/00 MCI v Commission [2004] ECR II‑3253, para. 44

4.      An official cannot claim an acquired right unless the circumstances giving rise to it arose under a particular regime prior to the changes to the provisions of the Staff Regulations.

In a system in which the hierarchy between officials is subject to alteration, the classification in a higher grade which, at a given moment in their career, certain officials held vis-à-vis others does not constitute an acquired right which must be protected by the provisions of the version of the Staff Regulations in force after 1 May 2004. However, officials who have passed an internal competition to change category before that date are entitled to expect the Staff Regulations to offer them better career prospects than those it offers to other officials. The general principle of fairness demands that the officials’ determination and hard work prior to that date in order to progress in their career should be recognised after that date. Thus the better career prospects acquired prior to that date constitute acquired rights which must be protected.

The career prospects of officials are determined according to a number of factors – relating to aspects which are specific to each official (in particular merit or age) as well as aspects external to him (in particular factors relating to the department to which he is assigned) – and are not determined solely by classification in grade. Consequently, even if the effect of the rules on classification in grade laid down in Articles 2 and 8 of Annex XIII to the Staff Regulations, viewed in isolation, is to change the hierarchical relations created prior to 1 May 2004 between officials who have passed an internal competition to change category and other officials, it does not necessarily follow that the career prospects of officials who have passed such a competition are no better than those of officials who have not. On the contrary, Annex XIII to the Staff Regulations contains provisions which distinguish between officials according to the category to which they belonged prior to 1 May 2004, thereby placing a premium on passing a competition to change category prior to that date.

(see paras 106-108, 110, 113-114)

See: 28/74 Gillet v Commission [1975] ECR 463, para. 5

5.      An official may not rely on the principle of protection of legitimate expectations to challenge the legality of a new regulatory provision, in an area where the legislature has a broad discretion as regards the need for reform. That is true of changes to the career system of officials – in which, first, an official has acquired classification in a higher grade and, secondly, his success in an internal competition to change category has produced and exhausted all its effects – as well as of the adoption of transitional rules alongside those changes, including the rules on classification in grade contained in Articles 2 and 8 of Annex XIII to the Staff Regulations.

Furthermore, by virtue of the principle of proportionality, the legality of Community rules is subject to the condition that the means employed must be appropriate for the attainment of the legitimate objective pursued and must not go further than is necessary to attain it, and, where there is a choice of appropriate measures, it is necessary, in principle, to choose the least onerous. However, in an area in which the Community legislature has a broad discretion which accords with the political responsibilities given to it by the Treaty, only if a measure is manifestly inappropriate having regard to the objective which the competent institution is required to pursue, can its lawfulness be affected. Since the Council enjoys a wide discretion concerning the introduction of transitional rules in the change from the old to the new career system of officials, including the rules on classification in grade laid down in Articles 2 and 8 of Annex XIII to the Staff Regulations, those rules on classification cannot be regarded as manifestly inappropriate for attaining the objective, set out in recital 37 of Regulation No 723/2004, of enabling the new rules and measures to be applied gradually, whilst respecting the acquired rights of the staff and taking account of their legitimate expectations.

Lastly, the classification of officials who passed an internal competition for change of category before 1 May 2004 in a grade lower or equal to officials who failed such a competition does not constitute an infringement of the principle of equal treatment. In the light of the radical alteration to the system of careers, the comparison of the hierarchical rank of officials before and after that date is not in itself decisive for the purpose of finding an infringement of the principle of equal treatment in Articles 2 and 8 of Annex XIII to the Staff Regulations.

(see paras 121, 131-133, 146)

See: 33/87 Christianos v Court of Justice [1988] ECR 2995, para. 23; T‑162/94 NMB France and Others v Commission [1996] ECR II‑427, para. 69 and the case-law cited therein, and para. 70 and the case-law cited therein; T‑30/02 Leonhardt v Parliament [2003] ECR-SC I‑A‑41 and II‑265, para. 55