Judgment_paragraph 7 · Christos Gogos v European Commission (C-583/08 P)

7The facts which gave rise to the dispute are set out as follows in the judgment under appeal:4 Christos Gogos, who had been in the service of the European Communities since 1981, was recruited by the Commission on 1 October 1986 as an official in Category B, grade 5, step 1.5 In 1997 the applicant took part in internal competition COM/A/17/96 for promotion from Category B to Category A, for posts in career bracket A 7/A 6. Under the heading “Conditions for admission to the competition” it was stated that officials and members of the temporary staff who were classified in one of the grades of Category B and who had at least seven years’ seniority in that category were eligible to enter the competition. Under the heading “Conditions of recruitment” it was stated that appointments would generally be to the starting grade of the career bracket.6 By letter of 15 December 1997, the chairman of the selection board for that competition informed the applicant of the decision not to include him on the list of suitable candidates because his mark in the oral test was 24 out of 50 whereas the pass mark was 25.7 In the action brought by the applicant in Case T-95/98 Gogos v Commission [2000] ECR-SC I-A-51 and II-219, the Court of First Instance annulled that decision of the selection board, inter alia on the ground that [the board] had not been able to guarantee the equal treatment of all the candidates during the oral tests of the competition in question.8 Accordingly, the Commission called the applicant to another oral test on 25 September 2000. As the applicant failed that test he brought another action before the Court of First Instance, registered as Case T-97/01. Following an amicable settlement between the parties, the Commission undertook to extend, by way of exception and for the sole benefit of the applicant, the selection procedure in competition COM/A/17/96 (see order of the Court of First Instance of 21 October 2002 in Case T-97/01, not published in the ECR). The applicant then took a third oral test on 8 November 2002.9 By letter of 15 November 2002, the Commission informed the applicant that he had passed that test and that his name had been placed on the list of suitable candidates from competition COM/A/17/96.10 The applicant was then appointed an official as of 1 April 2003 and assigned to the Directorate General for Regional Policy, that is to say, the one for which he had worked since his recruitment as an official in Category B in 1986.11 On 31 March 2003, the applicant was informed of the decision of … the appointing authority to classify him in grade A 7, step 3, as of 1 April 2003 …12 In accordance with Article 90(2) of the Staff Regulations, on 30 June 2003 the applicant lodged a complaint against the [classification] decision. In support of his complaint, he pleaded breach of Articles 31 and 45 of the Staff Regulations, of Article 233 EC, of the principle of equal treatment and of the amicable settlement reached between the parties in Case T-97/01. He argued that his success in the competition in question should be deemed to date from his first oral test, that is to say, from 15 December 1997, since the competition had been reopened for his benefit. Finally, he submitted that, in view of his relevant professional experience for the profile which it was fairly difficult to fit, he should have been classified in grade A 6 as of 1 January 2002, given that the first promotions to grade A 6 of successful candidates in internal competition COM/A/17/96 had already taken place on 1 January 2001 and most of them had attained that grade by 2003.13 That complaint was rejected by a decision of the appointing authority of 24 November 2003 … According to that decision, Article 31(2) of the Staff Regulations does not apply because it only concerns new officials. It cannot, therefore, be applied to the applicant as he was already an official in Category B. In any event, there was nothing exceptional on his file for the purposes of the five criteria used to classify all officials on entry into service, namely, university profile, the length and quality of professional experience, the relevance of professional experience to the post occupied and the special value of a professional profile on the employment market. The appointing authority took the view, rather, that the applicant’s grade and step had been correctly calculated in accordance with Article 46 of the Staff Regulations.’