Orders nº T-31/19 of Tribunal General de la Unión Europea, March 26, 2020

• Resolution Date: March 26, 2020
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-31/19

(Action for annulment and damages - Civil service - Members of the temporary staff - Contract for an indefinite period - Duties as an administrator as a policy adviser in grade AD 12 - Assignment to the type of post ‘administrator’ - 2014 Staff Regulations - No eligibility for reclassification in the grade above - 2017 reclassification exercise - Refusal to consider the applicant for the purposes of his reclassification in grade AD 13 - Action manifestly lacking any foundation in law)

in Case T-31/19

AF, residing in Vienna (Austria), represented by L. Levi and N. Flandin, lawyers,

applicant,

v

European Union Agency for Fundamental Rights (FRA), represented by M. O’Flaherty, acting as Agent, and by B. Wägenbaur, lawyer,

defendant,

ACTION under Article 270 TFEU seeking, first, annulment of the FRA decision of 9 May 2018 not to include the applicant’s name in the list of temporary staff eligible for reclassification to grade AD 13 in the 2017 reclassification exercise and, secondly, compensation for the loss he has allegedly suffered as a result of that decision,

THE GENERAL COURT (Eighth Chamber),

composed of J. Svenningsen (Rapporteur), President, R. Barents and C. Mac Eochaidh, Judges,

Registrar: E. Coulon,

makes the following

Order

Background to the dispute

1 The applicant, AF, was recruited on 1 July 1999 by the authority empowered to conclude contracts of employment (‘the AECE’) of the European Monitoring Centre on Racism and Xenophobia (EUMC) as a member of the temporary staff in Category A, grade 8, under the Staff Regulations of Officials of the European Communities and the Conditions of Employment of Other Servants of the Union in the versions then applicable.

2 Following an EUMC internal selection procedure, the applicant was engaged, with effect from 1 November 2003, as a temporary agent in category A, grade 5, step 2, holding a post of ‘Principal Administrator - Head of Unit “[confidential] (1)”’. By way of amendment to the applicant’s contract, the AECE and the latter agreed that, as from 1 May 2006, he would be employed as ‘Head of Unit “[confidential]”’ at grade AD 11, step 3, as provided for, in the versions applicable from 1 May 2004, by the Staff Regulations of Officials of the European Union (‘the 2004 Staff Regulations’) and the Conditions of Employment of Other Servants. According to the information provided by the applicant, in that capacity as head of that department, he was at that time exercising managerial duties, since he was managing the three teams of the department and administering the budget for the department.

3 By Council Regulation (EC) No 168/2007 of 15 February 2007 establishing a European Union Agency for Fundamental Rights (OJ 2007 L 53, p. 1), the European Union Agency for Fundamental Rights (FRA) was established to replace the EUMC.

4 Following a reorganisation of the FRA’s services, the [confidential] Unit was abolished. Under Decision 2011/13 of the Director of the FRA of 20 June 2011 on the revision of the organisational structure, as amended by Decision 2011/23 of 24 June 2011 (‘the reassignment decision’), the post of ‘Head of [confidential] Unit’ was transformed into the post of ‘Policy Advisor [confidential]’ in the category of administrators (AD) while the applicant was reassigned to the post of Policy Advisor [confidential]. By way of amendment signed on 22 July 2011 by the applicant and the AECE, it was agreed that the applicant would be appointed as Adviser to the Director.

5 With effect from 1 January 2014 and in accordance with Article 30(2) of Annex XIII to the Staff Regulations of Officials of the European Union, in the version resulting from the implementation of the provisions of Regulation (EU, Euratom) No 1023/2013 of the European Parliament and of the Council of 22 October 2013 amending the Staff Regulations of Officials of the European Union and the Conditions of Employment of Other Servants of the European Union (OJ 2013 L 287, p. 15) (respectively, ‘the new Staff Regulations’ and ‘the new CEOS’), the appointing authority of each institution had to classify all officials in the administrators’ function group (AD) in service on 31 December 2013, in the various types of post listed in that provision. Under Article 1 of the Annex to the new CEOS, Article 30 of Annex XIII to the new Staff Regulations is applicable by analogy to members of the temporary staff.

6 Following the 2015 reclassification exercise and by decision of the Director of the FRA of 23 March 2017, the applicant was reclassified in grade AD 12, with retroactive effect from 1 January 2015, pursuant to Article 54 of the new CEOS, according to which, as regards members of the temporary staff referred to in Article 2(f) of the new CEOS, such as the applicant, their classification in the next higher grade shall be exclusively by selection from among staff members who have completed a minimum of two years in their grade, after consideration of the comparative merits of such temporary staff and of the reports on them.

7 In accordance with Article 3 of Decision 2016/01 of the Director of the FRA, of 26 February 2016, laying down general implementing provisions regarding Article 54 of the new CEOS (‘the GIP for Article 54’), members of the temporary staff of that agency may be reclassified in the next higher grade if, inter alia, they show the minimum period of two years’ in the grade, as laid down in Article 54(1) of the new CEOS and if, at the time of the launch of the reclassification exercise, they occupy a post which corresponds to one of the types of posts set out in Annex I, Section A, or in Article 31(1) of Annex XIII to the new Staff Regulations for the grade to which they may be reclassified.

8 On 26 April 2018, the FRA published an administrative notice concerning the launch of the 2017 reclassification exercise (‘the 2017 reclassification exercise’), in which it was explained, inter alia, that holders of posts in grades AD 12 and AD 13 were not eligible for reclassification unless they occupied a type of post ‘head of unit or equivalent (AD 9-AD 14)’.

9 On 9 May 2018, the Director of the FRA published a provisional list of members of the temporary staff proposed for reclassification in the higher grade in the 2017 reclassification exercise, in which the applicant’s name did not appear (‘the contested decision’).

10 On 5 June 2018, the applicant, pursuant to Article 90(2) of the new Staff Regulations, lodged a complaint against the contested decision in which he claimed, inter alia, (i) that he satisfied all the conditions required by Article 54 of the new CEOS and the GIP for Article 54 in order to be reclassified in the next higher grade, in this case grade AD 13; (ii) that he occupied a type of post ‘adviser or equivalent’ within the meaning of Section A of Annex I to the new Staff Regulations, meaning that he was eligible for reclassification at grades AD 13 and AD 14; (iii) that the administrative notice of 26 April 2018 was contrary to Article 54 of the new CEOS in that it provided that FRA temporary staff in grades AD 12 and AD 13 were eligible for reclassification only if they occupied a type of post ‘head of unit or equivalent’; (iv) that, in so far as the applicant had held a post of ‘head of unit or equivalent’, in the present case until 2011, and that he had been reassigned to a post as ‘adviser or equivalent’, he had a right and a legitimate expectation that he would be eligible for promotion to grades AD 13 and AD 14, and finally (v) that he could not be assigned to another type of post without his legitimate expectation being affected, because, otherwise it would adversely affect his professional advancement and would constitute a breach of Articles 20, 21 and 41 of the Charter of Fundamental Rights of the European Union and of Articles 54 and 55 of the new CEOS.

11 By a decision which was undated but received by the applicant on 5 October 2018, the Director of the FRA, in his capacity as AECE, rejected the complaint (‘the decision rejecting the complaint’). In that decision, the Director pointed out that, following his reassignment in 2011 to the post of Special Advisor to [confidential], the applicant had since then occupied a post corresponding to ‘Principal Administrator’ within the meaning of Section A of Annex I to the 2004 Staff Regulations. He pointed out in that regard that the existence of types of post governed by the Staff Regulations did not prevent the AECE from deciding on job titles specific to the FRA without, however, creating a legitimate expectation on the part of the persons occupying the posts so titled that they would hold a different type of post under the Staff Regulations. Furthermore, according to the Director of the FRA, officials in grades AD 5 to AD 12 within the meaning of the 2004 Staff Regulations who were in post on 31 December 2013 could not, in any event, be regarded as occupying a post of ‘adviser or equivalent’ within the meaning of the new Staff Regulations, including in the case of the applicant. In that regard, according to the Director of the FRA, the fact that the term ‘advisor’ appeared in the title of his job was irrelevant.

12 Furthermore, as regards the applicant’s claim to preserve a legitimate expectation that he would continue in the same way as a head of unit after his reassignment in 2011, the Director of the FRA pointed out, in the decision rejecting the complaint, that, in the context of the reassignment decision adopted solely in the interests of the service, the AECE had at no time given the applicant any assurance that he would be able to retain the career expectations associated with ‘heads of unit or equivalent’ or with ‘advisers or equivalent’.

Procedure and forms of order sought

13 By application lodged at the Court Registry on 15 January 2019, the applicant brought the present action. By separate document lodged on 25 January 2019, the applicant applied for anonymity under Article 66 of...