Case C-496/08 P

Pilar Angé Serrano and Others

v

European Parliament

(Appeals – 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 – Plea of illegality – Acquired rights – Legitimate expectations – Equal treatment – Principle of sound administration and the duty to have regard for the welfare of officials)

Summary of the Judgment

1.        Officials – Careers – Introduction of a new structure by Regulation No 723/2004 – Acquired rights – Success in an internal competition for change of category before 1 May 2004

(Art. 336 TFEU; Staff Regulations of Officials, Annex XIII, Arts 2, 8 and 10; Council Regulation No 723/2004)

2.        Officials – Careers – Introduction of a new structure by Regulation No 723/2004 – Challenging the legality of a new regulatory provision

(Art. 336 TFEU; Staff Regulations of Officials, Annex XIII, Arts 2(1), 8(1) and 10(1)(2) and (3); Council Regulation No 723/2004)

3.        Officials – Careers – Introduction of a new structure by Regulation No 723/2004 – Breach of the principle of equal treatment – None

(Art. 336 TFEU; Staff Regulations of Officials, Annex XIII, Arts 2 and 10; Council Regulation No 723/2004)

1.        As the legal link between an official and the administration is based upon the Staff Regulations and not upon a contract, the rights and obligations of officials may, subject to compliance with the requirements of Community law, be altered at any time by the legislature. The alteration applies to the future consequences of situations that arose under the previous legislation, except where there are acquired rights, that is, where the event giving rise to those rights occurred before the legislative amendment

Thus, officials who advanced in their careers because they passed an internal competition organised under the old Staff Regulations have acquired the right to have the advance thus made under those regulations acknowledged. However, such a right implies merely that they should receive the same treatment under the Staff Regulations, concerning in particular career advancement, as that given to all the officials of the new grade that they have thus attained.

The legislature’s wide discretion to make the amendments to the Staff Regulations needed, and in particular to alter the structure of the grades of officials, cannot authorise it to make amendments which, among other things, are unconnected with that need or which do not take into account the competences which those grades are supposed to reflect. However, the legislature cannot, on the other hand, be bound by a requirement to maintain strictly the relationship which had hitherto existed between those grades before the amendment of the Staff Regulations. Therefore, officials cannot properly invoke alleged acquired rights to be classified in a higher grade obtained under the old Staff Regulations in order to claim that Articles 2 and 8 of Annex XIII to the new Staff Regulations are vitiated by illegality.

(see paras 82-87)

2.        Officials cannot rely on the principle of the protection of legitimate expectations in order to oppose the application of a new statutory provision, especially in a sphere in which the legislature enjoys a considerable degree of latitude, as it does with the new career structure introduced by Regulation No 723/2004, amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants.

(see para. 93)

3.        Officials who have passed an internal competition for change of category under the old Staff Regulations are not in the same factual and legal situation as officials who have not passed such a competition. The former had, under the rules of the Staff Regulations, better career prospects than the latter, account of which has been taken in the transitional provisions of Annex XIII to the new Staff Regulations.

Since, by adopting new Staff Regulations, the Community legislature remodelled the entire system of careers then in force, it cannot be required to reproduce identically the hierarchy of grades under the old Staff Regulations, without adversely affecting the possibility that they have of making alterations to the Staff Regulations. In that context, the comparison of hierarchical ranks before and after the reform of the Staff Regulations is not, in itself, conclusive for assessing whether the new Staff Regulations comply with the principle of equal treatment.

The new Staff Regulations make a distinction between the careers of officials belonging, under the old Staff Regulations, to various grades in the hierarchy and ensure, for those who have passed a competition for change of category, different career prospects from those of officials who have not passed the same competition. In particular, the transitional arrangements and Article 10(1) and (2) of Annex XIII to the Staff Regulations especially, ensure, through the rule on the blocking of career advancement and the rule on fixing rates of promotion for the different grades, better career prospects for officials in higher grades under the arrangements of the old Staff Regulations and, accordingly, for those who have advanced in the grades after passing a competition for change of category.

(see paras 102, 105-106)

JUDGMENT OF THE COURT (Second Chamber)

4 March 2010 (*)

(Appeals – 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 – Plea of illegality – Acquired rights – Legitimate expectations – Equal treatment – Principle of sound administration and the duty to have regard for the welfare of officials)

In Case C‑496/08 P,

APPEAL under Article 56 of the Statute of the Court of Justice, lodged on 17 November 2008,

Pilar Angé Serrano, official of the European Parliament, residing in Luxembourg (Luxembourg),

Jean-Marie Bras, official of the European Parliament, residing in Luxembourg (Luxembourg),

Adolfo Orcajo Teresa, official of the European Parliament, residing in Brussels (Belgium),

Dominiek Decoutere, official of the European Parliament, residing in Wolwelange (Luxembourg),

Armin Hau, official of the European Parliament, residing in Luxembourg (Luxembourg),

Francisco Javier Solana Ramos, official of the European Parliament, residing in Brussels (Belgium),

represented by E. Boigelot, avocat,

appellants,

the other parties to the proceedings being:

European Parliament, represented by L.G. Knudsen and K. Zejdová, acting as Agents,

defendant at first instance,

Council of the European Union, represented by M. Bauer and K. Zieleśkiewicz, acting as Agents,

intervener at first instance,

THE COURT (Second Chamber),

composed of J.‑C. Bonichot, President of the Fourth Chamber, acting for the President of the Second Chamber, C. Toader (Rapporteur), C.W.A. Timmermans, K. Schiemann and L. Bay Larsen, Judges,

Advocate General: E. Sharpston,

Registrar: R. Grass,

having regard to the written procedure,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1        By their appeal, Ms Angé Serrano, Mr Bras, Mr Orcajo Teresa, Mr Decoutere, Mr Hau and Mr Solana Ramos request the Court to set aside the judgment of the Court of First Instance of the European Communities (now ‘the General Court’) of 18 September 2008 in Case T‑47/05 Angé Serrano and Others v Parliament [2008] ECR-SC I-A-2-0000 and II‑A-2-0000, ‘the judgment under appeal’, in which the General Court dismissed their actions against the respective decisions reclassifying them in grade (‘the contested decisions’) adopted after the entry into force of Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending the Staff Regulations of Officials of the European Communities and the Conditions of Employment of Other Servants of the European Communities (OJ 2004 L 124, p. 1).

I –  Legal context

A –  Relevant provisions of the Staff Regulations in the version applicable until 30 April 2004

2        Article 45(2) of the Staff Regulations of Officials of the European Communities in force until 30 April 2004 (‘the old Staff Regulations’) provide:

‘An official may be transferred from one service to another or promoted from one category to another only on the basis of a competition.

...’

B –  Relevant provisions of the Staff Regulations in the version applicable from 1 May 2004

3        The old Staff Regulations were amended by Regulation No 723/2004, which came into force on 1 May 2004.

4        Article 5(1) and (2) of the Staff Regulations, in the version in force from 1 May 2004 (‘the new Staff Regulations’ or ‘the Staff Regulations’), provides:

‘1.      The posts covered by the Staff Regulations shall be classified, according to the nature and importance of the duties to which they relate, in an administrators’ function group ... and an assistants’ function group ...

2.      ... Function group AST shall comprise eleven grades, corresponding to executive, technical and clerical duties.’

5        Article 6(1) and (2) of the new Staff Regulations provides:

‘1.      The establishment plan appended to the section of the budget related to each institution shall indicate the number of posts in each grade and function group.

2.      To ensure equivalence of the average career in the career structure before 1 May 2004 (hereinafter “old career structure”) and as from 1 May 2004 (hereinafter “new career structure”) and without prejudice to the principle of promotion based on merit as laid down in Article 45 of the Staff Regulations, this plan shall ensure that for each institution, the number of vacant positions at every grade of the establishment plan on 1 January of each year corresponds to the number of officials in the lower grade in active employment on 1 January of the preceding year, multiplied by the rates laid down in Annex I, point B, for that grade. These rates shall be applied on a five-year average basis as from 1 May 2004.

...’

6        The new Staff Regulations provide for transitional arrangements which are set out in Annex XIII. The considerations which prompted the creation of those transitional arrangements are set out in recital 37 in the preamble to Regulation No 723/2004, which provides:

‘Provision should be made for transitional arrangements to enable the new rules and measures to be applied gradually, whilst respecting the acquired rights of the staff in the framework of the Community system before the entering into force of these amendments to the Staff Regulations and taking account of their legitimate expectations.’

7        Article 1 of Annex XIII to the new Staff Regulations provides:

‘1.      For the period from 1 May 2004 to 30 April 2006, Article 5(1) and (2) of the Staff Regulations are replaced by the following:

“1.      The posts covered by the Staff Regulations shall be classified, according to the nature and importance of the duties to which they relate, in four categories A*, B*, C* and D*, in descending order of rank.

2.      Category A* shall comprise twelve grades, category B* shall comprise nine grades, category C* shall comprise seven grades and category D* shall contain five grades.”

2.      Any reference to the date of recruitment shall be taken to refer to the date of entry into service.’

8        Article 2(1) of Annex XIII to the new Staff Regulations provides:

‘1.      On 1 May 2004, and subject to Article 8 of this Annex, the grades of officials having one of the administrative statuses set out in Article 35 of the Staff Regulations shall be renamed as follows:

Former

grade

New (intermediate) grade

Former

grade

New (intermediate) grade

Former grade

New (intermediate) grade

Former grade

New (intermediate) grade

A 1

A*16            

A 2

A*15            

A 3/LA 3

A*14            

A 4/LA 4

A*12            

A 5/LA 5

A*11            

A 6/LA 6

A*10

B 1

B*10        

A 7/LA 7

A*8

B 2

B*8        

A 8/LA 8

A*7

B 3

B*7

C 1

C*6        

B 4

B*6

C 2

C*5        

B 5

B*5

C 3

C*4

D 1

D*4        

C 4

C*3

D 2

D*3        

C 5

C*2

D 3

D*2            

D 4

D*1

…’

9        Article 8(1) of Annex XIII to the new Staff Regulations provides:

‘1.      With effect from 1 May 2006, the grades introduced by Article 2(1) shall be renamed as follows:

New (intermediate) grade

New grade

New (intermediate) grade

New grade

A*16

AD16    

A*15

AD 15    

A*14

AD 14    

A*13

AD 13    

A*12

AD 12    

A*11

AD 11

B*11

AST 11

A*10

AD 10

B*10

AST 10

A*9

AD 9

B*9

AST 9

A*8

AD 8

B*8

AST 8

A*7

AD 7

B*7 / C*7

AST 7

A*6

AD 6

B*6 / C*6

AST 6

A*5

AD 5

B*5 / C*5 / D*5

AST 5    

B*4 / C*4 / D*4

AST 4    

B*3 / C*3 / D*3

AST 3    

C*2 / D*2

AST 2    

C*1 / D*1

AST 1

…’

10      Article 10(1) to (3) of Annex XIII to the new Staff Regulations provides:

‘1.      Officials in service before 1 May 2004 [in] categories C or D shall be assigned as of 1 May 2006 to career streams allowing for promotions:

(a)       in former category C up to grade AST 7;

(b)      in former category D up to grade AST 5;

2.      For those officials, as of 1 May 2004 and by derogation from Annex I, Section B, to the Staff Regulations, the percentages referred to in Article 6(2) of the Staff Regulations shall be as follows:

Career stream C

Grade

1 May 2004 until

After 30.4.2010  

30.4.2005

30.4.2006

30.4.2007

30.4.2008

30.4.2009

30.4.2010  

C*/AST 7

–

–

–

–

–

–

–

C*/AST 6

5 %

5 %

5 %

10 %

15 %

20 %

20 %

C*/AST 5

22 %

22 %

22 %

22 %

22 %

22 %

22 %

C*/AST 4

22 %

22 %

22 %

22 %

22 %

22 %

22 %

C*/AST 3

25 %

25 %

25 %

25 %

25 %

25 %

25 %

C*/AST 2

25 %

25 %

25 %

25 %

25 %

25 %

25 %

C*/AST 1

25 %

25 %

25 %

25 %

25 %

25 %

25 %

Career stream D

Grade

1 May 2004 until

After 30.4.2010  

30.4.2005

30.4.2006

30.4.2007

30.4.2008

30.4.2009

30.4.2010  

D*/AST 5

–

–

–

–

–

–

–

D*/AST 4

5 %

5 %

5 %

10 %

10 %

10 %

10 %

D*/AST 3

22 %

22 %

22 %

22 %

22 %

22 %

22 %

D*/AST 2

22 %

22 %

22 %

22 %

22 %

22 %

22 %

D*/AST 1

–

–

–

–

–

–

–

3.      An official to whom paragraph 1 applies may become a member of the assistants’ function group without restriction if he passes an open competition or on the basis of an attestation procedure …’.

II –  Background to the dispute as described in the judgment under appeal

11      The appellants are officials of the European Parliament.

12      According to paragraph 23 of the judgment under appeal the appellants passed internal competitions for transfer from one category to another under the old Staff Regulations. Accordingly, Ms Angé Serrano transferred from grade C 1 to grade B 5; Mr Bras transferred from grade D 1 to grade C 5; Mr Decoutere transferred from grade C 3 to grade B 5; Mr Hau, member of the temporary staff in grade C 1, transferred to grade B 4; Mr Orcajo Teresa transferred from grade D 1 to grade C 5; and, lastly, Mr Solana Ramos transferred from grade C 1 to grade B 5. For all those officials, the transfer to the new grade took place before the new Staff Regulations came into force.

13      The appellants received the contested de