Contents
Judgment of the European Union Civil Service Tribunal(First Chamber)16 July 2015note(Civil service — EIOPA staff — Member of the temporary staff — Vacancy notice — Requirement of minimum professional experience of eight years — Internal candidate already confirmed in her post as a member of the temporary staff following a probationary period — Provisionally assigned to the new position, entailing classification at a higher grade — Clerical error in the vacancy notice — Withdrawal of the offer of employment — Applicability of the GIPs — Consultation of the Staff Committee — Legitimate expectations)In Case F‑116/14,ACTION brought under Article 270 TFEU,Simona Murariu, member of the temporary staff of the European Insurance and Occupational Pensions Authority, residing in Frankfurt am Main (Germany), represented by L. Levi, lawyer,vEuropean Insurance and Occupational Pensions Authority (EIOPA), represented by C. Coucke, acting as Agent, assisted by F. Tuytschaever, lawyer,THE CIVIL SERVICE TRIBUNAL (First Chamber)composed of R. Barents, President, E. Perillo and J. Svenningsen (Rapporteur), Judges,Registrar: X. Lopez Bancalari, Administrator,having regard to the written procedure and further to the hearing on 28 April 2015,gives the following
Judgment
1By an application lodged at the Tribunal Registry on 23 October 2014, Ms Murariu brought the present action seeking, in essence, first, annulment of the decision of 24 February 2014 by which, she claims, the Executive Director of the European Insurance and Occupational Pensions Authority (‘EIOPA’ or ‘the Authority’) withdrew his decision of 7 November 2013 provisionally appointing her to a post which had been the subject of a vacancy notice, and annulment of the decision of 24 July 2014 rejecting her complaint, and secondly, an order that EIOPA compensate her for the material and non-material harm which she considers she has suffered.
Legal context
Staff Regulations
2Article 7(2) of the Staff Regulations of Officials of the European Union, in the version in force until 31 December 2013 (‘the Staff Regulations’), which is applicable to the present dispute, provides:‘An official may be called upon to occupy temporarily a post in a grade in his function group which is higher than his substantive grade. From the beginning of the fourth month of such temporary posting, he shall receive a differential allowance equal to the difference between the remuneration carried by his substantive grade and step, and the remuneration he would receive in respect of the step at which he would be classified if he were appointed to the grade of his temporary posting.The duration of a temporary posting shall not exceed one year, except where, directly or indirectly, the posting is to replace an official who is seconded to another post in the interests of the service, called up for military service or absent on protracted sick leave.’
3Article 110 of the Staff Regulations provides:1. The general provisions for giving effect to these Staff Regulations shall be adopted by each institution after consulting its Staff Committee and the Staff Regulations Committee. Agencies shall adopt the appropriate implementing rules for giving effect to these Staff Regulations, after consultation of the relevant Staff Committee and in agreement with the [European] Commission.…3. All such general provisions and all rules adopted by agreement between the institutions shall be brought to the attention of the staff.…’
Ceos
4As regards temporary staff, Article 10 of the Conditions of Employment of Other Servants of the European Union, in the version in force until 31 December 2013 (‘the CEOS’), which is applicable to the present dispute, provides:‘… Article 7 of the Staff Regulations shall apply by analogy.The grade and step at which temporary staff are engaged shall be stated in their contract.Assignment of temporary staff to a post carrying a higher grade than that at which they were engaged shall be recorded in an agreement supplementary to their contract of service.…’
5Article 14 of the CEOS provides, in particular, that ‘a member of the temporary staff may be required to serve a probationary period not exceeding six months’ and that ‘a member of the temporary staff whose work has not proved adequate to justify retention in his post shall be dismissed’. In the version in force since 1 January 2014 resulting from Regulation (EU, Euratom) No 1023/2013 of the European Parliament and of the Council of 22 October 2013 amending the Staff Regulations … and the [CEOS] (OJ 2013 L 287, p. 15), Article 14 now makes a probationary period mandatory.
6Article 15(1) of the CEOS provides:‘Temporary staff shall be graded initially in accordance with Article 32 of the Staff Regulations.Where a member of the temporary staff is assigned to a post corresponding to a higher grade, as provided for in the third paragraph of Article 10 [of the CEOS], his grading shall be determined in accordance with Article 46 of the Staff Regulations.’
Regulation No 1094/2010
7It is apparent from Article 6 of Regulation (EU) No 1094/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority ([EIOPA]), amending Decision No 716/2009/EC and repealing Commission Decision 2009/79/EC [establishing the Committee of European Insurance and Occupational Pensions Supervisors (CEIOPS)] (OJ 2010 L 331, p. 48) that the Authority is to comprise, in particular, ‘a Board of Supervisors, which shall exercise the tasks set out in Article 43’; ‘a Management Board, which shall exercise the tasks set out in Article 47’; ‘a Chairperson, who shall exercise the tasks set out in Article 48’, and ‘an Executive Director, who shall exercise the tasks set out in Article 53’.
8Under Article 40 of Regulation No 1094/2010 ‘the Board of Supervisors shall be composed of … the Chairperson, who shall be non-voting; … the head of the national public authority competent for the supervision of financial institutions in each Member State, who shall meet in person at least twice a year; … one representative of the [European] Commission, who shall be non-voting; … one representative of the E[uropean Systemic Risk Board], who shall be non-voting; [and] one representative of each of the other two European Supervisory Authorities, who shall be non-voting’. The first sub-paragraph of Article 45(1) of Regulation No 1094/2010 provides that ‘the Management Board shall be composed of the Chairperson and six other members of the Board of Supervisors, elected by and from the voting members of the Board of Supervisors’.
9Article 68 of Regulation No 1094/2010, headed ‘Staff’, provides:1. The Staff Regulations, the [CEOS] and the rules adopted jointly by the Union institutions for the purpose of applying them shall apply to the staff of the Authority, including its Executive Director and its Chairperson.2. The Management Board, in agreement with the [European] Commission, shall adopt the necessary implementing measures, in accordance with the arrangements provided for in Article 110 of the Staff Regulations.…’
10Article 77 of Regulation No 1094/2010, headed ‘Transitional staff provisions’, provides:1. By way of derogation from Article 68, all employment contracts and secondment agreements concluded by CEIOPS or its Secretariat and in force on 1 January 2011 shall be honoured until their expiry date. …2. All members of staff under contracts referred to in paragraph 1 shall be offered the possibility of concluding temporary agent contracts under Article 2(a) of the [CEOS] at the various grades as set out in the Authority’s establishment plan.An internal selection limited to staff who have contracts with CEIOPS or its Secretariat shall be carried out after the entry into force of this Regulation by the authority authorised to conclude contracts in order to check the ability, efficiency and integrity of those to be engaged. …3. Depending on the type and level of functions to be performed, successful applicants shall be offered temporary agents’ contracts of a duration corresponding at least to the time remaining under the prior contract.…’
11Under Article 47(2) and Article 53(3) of Regulation No 1094/2010 respectively, ‘the Management Board [of the Authority] shall propose, for adoption by the [Authority’s] Board of Supervisors, an annual and multi-annual work programme’, while ‘the Executive Director [of the Authority] shall take the necessary measures, notably the adoption of internal administrative instructions and the publication of notices, to ensure the functioning of the Authority, in accordance with this Regulation’.
Decision of 30 June 2011
12On 30 June 2011, the Executive Director of EOIPA (‘the Executive Director’) adopted a ‘Decision on Contract Management — Handling of successful internal recruitment …’ (‘the decision of 30 June 2011’), which reads as follows:‘There is currently a gap in the Staff Regulations and EIOPA … implementing rules regarding the handling of contracts whenever an internal candidate is successful in a recruitment [procedure].In order to handle the first case [faced by the Agency] and until the [Authority’s relevant] policy is developed, the following criteria will be applied and will serve [as] the basis for the future policy on the matter:1. It applies to internal candidates successful in recruitment [procedures] [for a different post] within the same function.2. It implies an amendment of the original contract regarding the job title, grade and step, whatever is applicable.3. The appointment will be at step 1 or 2 [in the grade] depending on the previous step [of the person concerned].4. No change [will be made] in the [original] contract in terms of when the [contract] renewal period comes into effect.5. Requirement [to serve a] provisional assignment period of [six] months [in the new post].6. After successful completion of the provisional assignment the staff member will be confirm[ed] in the new position and [his] salary will be increased retroactively [in line with the grade proposed in the vacancy notice for the post in question].These criteria have been discussed with the Staff Committee.’
Recruitment GIPs
13On 10 January 2011, at the first meeting of the EIOPA Management Board, the Interim Executive Director explained to the members of the Board that the rules for the application of the Staff Regulations and the CEOS had to be approved by the European Commission first ‘before there can be a final approval by the Board of EIOPA’.
14At a meeting on 15 November 2012, the EIOPA Management Board adopted general implementing provisions (‘GIPs’), as provided for in Article 110 of the Staff Regulations, on the procedure governing the engagement and the use of temporary agents (‘the Recruitment GIPs’). Article 7 of the Recruitment GIPs, headed ‘Grading of Temporary Agents’, provides that the minimum number of years of professional experience required in order to be engaged in a grade AD 8 post is nine years.
Transitional measures GIPs
15At its meeting on 15 November 2012 the EIOPA Management Board also adopted GIPs on the internal selection procedure provided for by the transitional staff provisions set out in Article 77 of Regulation No 1094/2010.
Original version of the minutes of the Management Board meeting of 15 November 2012
16It is apparent from the original version of the minutes of the meeting of 15 November 2012 that the EIOPA Management Board decided to ask the members of the Board of Supervisors to approve by written procedure the rules for the application of the Staff Regulations and the CEOS, in other words the GIPs provided for by Article 110 of the Staff Regulations, which had already been approved by the Commission.
Facts
17The applicant was employed by the CEIOPS as a member of its temporary staff. On 1 January 2011, when EOIPA succeeded the CEIOPS, it concluded a contract with the applicant under which she was engaged by EIOPA as a member of the temporary staff, in accordance with Article 2(a) of the CEOS, for an indefinite period.
18On 1 January 2011, the applicant thus began working for EIOPA as an expert in the administrators function group (AD) at grade AD 5. In accordance with Article 5 of her employment contract she served a probationary period of six months, as provided for in Article 14 of the CEOS.
19Following an internal selection procedure for a post of expert on stakeholders (‘expert on stakeholders’) at grade AD 6, at the end of which she was the candidate selected, the applicant was provisionally assigned to that post for a period of six months from 16 October 2011. The taking up of her new post was governed by the criteria laid down in the decision of 30 June 2011.
20On 19 July 2012, at the end of the six months provisional assignment period during which she had continued to be paid at grade AD 5, corresponding to the post referred to in paragraph 18 of this judgment, the applicant was confirmed in her new post as an expert on stakeholders, entailing classification in grade AD 6, and retroactively received classification in that grade and, accordingly, the corresponding remuneration for the six months provisional assignment period, while also retaining the benefit of her indefinite engagement with the Authority.
21On 24 May 2013 EIOPA published vacancy notice 1327TAAD 08 (‘the vacancy notice’) seeking to fill a post as senior expert on personal pensions at grade AD 8 (‘the senior expert post’) for which the successful candidate was to be offered a temporary contract under Article 2(a) of the CEOS, for an initial period of three years. As regards the criteria which candidates needed to fulfil, the vacancy notice stated that candidates must, among other things, ‘have [by the deadline for application on 16 June 2013] at least [eight] years of proven full-time professional experience in a field relevant for this position’.
22The applicant submitted her application for the vacancy. On 17 July 2013 EIOPA informed her by email that she had been selected for the post and asked her to confirm her interest in the position. The email also stated: ‘In case you accept it, you will be on provisional assignment on that new level for the period of [six] month[s]. If you have passed it, you will be confirmed on that new level’. The following day the applicant confirmed that she accepted the post she had been offered.
23By a note of 7 November 2013, and in accordance with the procedure described in the decision of 30 June 2011, which had already been followed for her engagement in the post of expert on stakeholders, the applicant was assigned, again provisionally for a period of six months, to the senior expert post with effect from 16 September 2013 (‘the decision of 7 November 2013’). It is apparent from the documents in the case that, during that provisional assignment period, the applicant continued to be paid at the AD 6 grade attached to her previous post as expert on stakeholders, in respect of which she retained the benefit of her indefinite temporary staff contract.
24At the end of the six month provisional assignment period, which expired on 15 March 2014, it was envisaged that, provided that the Authority was satisfied with the applicant’s performance during that period, she would be confirmed in her new position and thus benefit from classification in grade AD 8, as provided for in the vacancy notice for the senior expert post, which would have applied retroactively to 16 September 2013 in accordance with the decision of 30 June 2011, while she would still maintain an indefinite employment relationship, regardless of the fact that the post offered by the vacancy notice entailed only engagement for a fixed term of three years.
25As part of its annual internal review policy, EIOPA identified a mistake in the vacancy notice. As stated in paragraph 21 above, the notice required candidates to have at least eight years’ relevant professional experience, whereas, under the Recruitment GIPs, recruitment to a grade AD 8 post is only open, within EIOPA, to candidates with relevant professional experience of at least nine years. A member of the human resources team consequently asked the applicant, on 3 February 2014, whether, on the deadline for application on 16 June 2013 referred to in the vacancy notice, she had the nine years’ professional experience required in order to be eligible for the senior expert post.
26In an email of 10 February 2014 the applicant’s line manager asked her to supply certain details in order to finalise her 2013 appraisal report. On that occasion the applicant was informed that she ‘ha[d] passed the probationary period’.
27At a meeting with the Director of the Regulations Directorate on 11 February 2014 (‘the meeting of 11 February 2014’) the applicant was informed that the Authority had certain questions, in the light of the Recruitment GIPs, about the length of her relevant professional experience prior to taking up the senior expert post.
28On 12 February 2014, the applicant attempted unsuccessfully to gain access to the text of the Recruitment GIPs in order to acquaint herself with them.
29On 13 February 2014, the applicant’s appraisal report for 2013 was finalised. It is evident from that report that she had given a satisfactory performance in the two posts she had occupied during the year in question. That positive assessment was in line with her appraisals for the previous two years.
30The applicant states that, on 19 February 2014, she finally gained access to the Recruitment GIPs. She claims, however, to have encountered two different versions of those GIPs.
31By a letter of 24 February 2014, entitled ‘Outcome of recruitment campaign [for the senior expert post]’, the Executive Director informed the applicant that the vacancy notice contained a mistake since, contrary to the requirement laid down in the Recruitment GIPs of at least nine years’ relevant professional experience in order to be eligible for a grade AD 8 post within EIOPA, the vacancy notice had incorrectly given the requirement as eight years. The Executive Director then explained that, having come to the conclusion that the applicant did not have nine years’ relevant professional experience on the deadline for application, first, he was obliged to reject her application for the senior expert post and, second, even though, as he noted, his decision came at the end of the six months’ provisional assignment in a grade AD 8 post, which had started on 16 September 2013 and for which he had received positive feedback, he could not confirm her in that grade. As a result, the applicant’s grading would continue at AD 6 (the grade she held in relation to the post of expert on stakeholders), including for the period she had worked as a senior expert since 16 September 2013, pursuant to the rules laid down in the decision of 30 June 2011 (‘the contested decision’).
32On 12 March 2014 a meeting was held between the applicant, the Directors of the Regulations and Operations Directorates, and the Head of the Policy Unit in order to determine what the applicant’s employment position within the Authority could or should now be, given that, according to the documents in the case, she retained the status of temporary staff member engaged indefinitely at grade AD 6 on account of the post of expert on stakeholders which she held prior to her provisional assignment to the senior expert post.
33On 25 March 2014, the applicant lodged a complaint against the contested decision. In the complaint she asked the Executive Director, first, to issue a new decision formally confirming her eligibility for the senior expert post and, second, to give clear instructions that she should receive retroactive payment of remuneration corresponding to grade AD 8 from 16 September 2013, the date from which she was provisionally assigned to the post in question.
34In support of her complaint, the applicant essentially argued that, contrary to the Executive Director’s finding in the contested decision, the Recruitment GIPs were neither in force nor applicable in her case because they had not been lawfully adopted or published or otherwise brought to the attention of the Authority’s staff or the candidates, and although the vacancy notice referred to a guide for the use of candidates and to the CEOS, it made no mention of the Recruitment GIPs. The applicant pointed out in particular that the Executive Director had himself acknowledged that the vacancy notice contained a mistake concerning the minimum length of relevant professional experience required for the senior expert post.
35Moreover, as regards the procedure for the adoption of GIPs for the Staff Regulations and the CEOS, as provided for in Article 110 of the Staff Regulations, the applicant pointed out that the EIOPA Management Board had stated in January 2011 that the GIPs had first to be approved by the Commission, and were so approved on 3 April 2012, before the final version was sent to the ‘Board’ for adoption. However, at its meeting on 15 November 2012, and as was apparent from the minutes of that meeting, the GIPs for the Staff Regulations and the CEOS had been re-submitted to the Management Board, which stated in the minutes that ‘the BoS Members will be asked to approve the HR Implementing Rules documents by written procedure’. The applicant observed that since that adoption by written procedure by the Board of Supervisors had not taken place, the Staff Regulations and CEOS GIPs could not have been adopted by the Management Board, so that the requirement for a minimum of nine years’ relevant professional experience in order to be eligible for a grade AD 8 post, laid down in what were therefore only draft GIPs not yet adopted, could not be applied in her case instead of the eight year requirement expressly referred to in the vacancy notice.
36On 10 April 2014 the Executive Director asked the applicant to confirm that she wished to continue working for EIOPA in a grade AD 6 post available in another department by way of internal mobility. On 14 April 2014 the applicant replied, inter alia, that she was sorry not to be able to return to her original post in the external relations team of the Policy Unit. Subsequently, the Executive Director decided, on 22 May 2014, to reassign the applicant to the Policy Unit external relations team in accordance with her wishes.
37By a decision of 24 July 2014, notified to the applicant on the same date, the Executive Director, in his capacity as the authority empowered to conclude contracts of employment (‘the AECE’) of EIOPA, rejected the complaint of 25 March 2014 (‘the decision rejecting the complaint’).
38First of all, the Authority’s AECE disputed the claim that the Management Board had not adopted the Staff Regulations and CEOS GIPs at its meeting on 15 November 2012. According to the AECE, the statutory requirements for the adoption of those GIPs had been complied with, including by the bodies empowered or legally required to do so, since such GIPs must be adopted by the Management Board after approval by the Commission and consultation of the Staff Committee, which had been the case in this instance. In reality, the reference, in the minutes of the meeting of the Management Board of 15 November 2012, to submission of the text to members of the Board of Supervisors for their approval at the end of a written procedure was merely a clerical error, since the Management Board was not required to submit the text to the Board of Supervisors, had not done so and had never intended to do so.
39Consequently, according to the Authority’s AECE, the adoption and entry into force of the Staff Regulations and CEOS GIPs were not dependent on action by the Board of Supervisors, so that the GIPs, which had been brought to the attention of staff, could be applied in the present case. Furthermore, the applicant had been informed of the fact that the Management Board had meanwhile adopted, on 22 July 2014, a corrigendum to the minutes of its meeting of 15 November 2012 in order to make it clear that the procedure actually followed by the Management Board in order to adopt the Recruitment GIPs was indeed the procedure laid down by Article 68(2) of Regulation No 1094/2010, read in conjunction with Article 110 of the Staff Regulations (‘the corrigendum’).
Forms of order sought and procedure
40Essentially, the applicant claims that the Tribunal should:— annul the contested decision;— annul the decision rejecting the complaint;— order EIOPA to pay compensation for the material damage she sustained, evaluated at the difference in remuneration between grades AD 6 and AD 8, together with default interest calculated at the rate of two points above the European Central Bank (ECB) rate, principally from 16 September 2013 or, in the alternative, for the period from 16 September 2013 to 24 February 2014;— in any case, order compensation for the non-material damage suffered, evaluated ex aequo et bono at EUR 20000;— order EIOPA to pay the costs.
41EIOPA essentially claims that the Tribunal should:— declare the action unfounded;— order the applicant to pay all the costs.
42By a letter from the Tribunal Registry of 14 January 2015, the Judge-Rapporteur in the present case, by way of measures of organisation of procedure, put questions to the Authority, which the Authority duly answered in its defence.
43The Authority stated, in particular, that no other candidate on the reserve list drawn up at the end of the recruitment procedure initiated by the vacancy notice has been appointed to the senior expert post, and that it had also not published a new vacancy notice in order to fill that post since, in the context of a 7.5% reduction in the 2015 budget, the post would no longer be available within EIOPA and was to be redeployed to cover other needs.
44As for the method of communicating the Staff Regulations and CEOS GIPs to its staff, the Authority explained, first, that, at a general information meeting held on 12 November 2012, the staff were informed that the Management Board was shortly to adopt the Recruitment GIPs. The agenda for that information meeting, which was distributed to all staff, contained an item headed ‘Updating … the GIPs [for the Staff Regulations and the CEOS]’. Moreover, the Authority explained that, on 18 December 2012, the Recruitment GIPs were brought to the attention of staff by being published on EIOPA’s ‘Allegro’ intranet site which, as was common knowledge within the Authority, was accessed by staff through the Firefox browser rather than Internet Explorer. The Authority pointed out that the draft Recruitment GIPs had also been made available to staff on the Allegro intranet site. It conceded that there were differences between the draft and final versions of the Recruitment GIPs. However, it pointed out that, in any event, the two versions both contained the same requirement of at least nine years’ relevant professional experience in order to be recruited to a grade AD 8 post.
45For the purposes of the hearing, the parties were asked, in the preparatory report for the hearing, to respond in writing to a number of measures of organisation of the procedure. The parties duly complied with that request within the prescribed period, and EIOPA presented written observations on the applicant’s responses to the above measures of organisation of the procedure. At the hearing the applicant presented her observations on EIOPA’s written responses to the measures of organisation of the procedure.
46In that context, the Authority confirmed that no supplementary agreement had been formally concluded with the applicant in connection with the senior expert post because, under the decision of 30 June 2011, no agreement supplementary to the contract of employment is supposed to be signed until the end of the six month provisional assignment period in the new post. Thus the applicant’s previous contract had not been amended at any point. Moreover, the Authority told the Tribunal that the applicant had, at her own request, taken one year’s leave on personal grounds in order to occupy a post in a national public authority supervising financial institutions and, in that regard, EIOPA stated that the applicant was able to obtain that leave solely because of her position as an indefinite temporary agent, which she had retained thanks to the system established by the decision of 30 June 2011 whose lawfulness she was now challenging. Without that system, the applicant would have been engaged as a fixed-term temporary agent in the grade AD 8 post from 16 September 2013 and would thus only have been able to obtain personal leave for a maximum of three months, which would have obliged her, had she wished to accept the offer of one year’s employment with the national supervisory authority mentioned earlier, to resign from EIOPA.
47Finally, since EIOPA was not able, at the hearing, to answer a question put by a member of the Tribunal as to whether the Staff Committee had been consulted not only on the first version of the Recruitment GIPs, but also, after the Commission’s opinion, on the second version of those GIPs, the Tribunal decided not to close the oral procedure at the end of the hearing in order to give EIOPA the opportunity to submit evidence to support its position, which it did on 12 May 2015. On 22 May 2015 the applicant submitted observations on the response and the evidence provided in that context by EIOPA.
48On 27 May 2015 the Tribunal closed the oral procedure.
Law
Subject matter of the action
49It should be noted that, in accordance with the principle of economy of procedure, the European Union judicature may decide that it is not appropriate to rule specifically on the claims directed against the decision rejecting the complaint where it finds that those claims have no independent content and are, in reality, the same as those directed against the decision against which the complaint has been made. That may, in particular, be the case where it finds that the decision rejecting the complaint is purely confirmatory of the decision which is the subject of the complaint and that, therefore, the annulment of the first decision would have no effect on the legal position of the person concerned distinct from that which follows from the annulment of the second (judgments of 21 September 2011 in Adjemian and Others v Commission, T‑325/09 P, EU:T:2011:506, paragraph 33, and 19 November 2014 in EH v Commission, F‑42/14, EU:F:2014:250, paragraph 85).
50In the present case, even though the decision on the complaint is confirmatory of the contested decision and it is therefore not appropriate to rule specifically on the claims for annulment of the decision rejecting the complaint, the statement of reasons given in the latter decision clarifies some of the grounds for the contested decision. Consequently, in view of the evolving nature of the pre-litigation procedure, the statement of reasons for the decision on the complaint must also be taken into account in the review of legality of the contested decision, since that statement of reasons is expected to cover the latter decision also (see judgment of 19 November 2014 in EH v Commission, F‑42/14, EU:F:2014:250, paragraph 86 and the case-law cited therein).
The claim for annulment
51In support of her claim for annulment the applicant essentially relies on five pleas in law, alleging, respectively:— first, breach of the principles of legality and legal certainty;— second, breach of the principle of protection of legitimate expectations;— third, the unlawfulness of the Recruitment GIPs by reason of failure to consult the Staff Committee;— fourth, breach of the rights of the defence and of Article 41 of the Charter of Fundamental Rights of the European Union;— fifth, principally, the unlawfulness of the rules contained in the decision of 30 June 2011 and, in the alternative, failure to take account of the scope of that decision.
Admissibility of some of the pleas in law
52The Authority initially argued, in the light of the rule of correspondence between the complaint and the action, that the second, fourth and fifth pleas in law were inadmissible, before withdrawing its challenge to the admissibility of the fourth plea at the hearing.
53The Authority contends that the second and fifth pleas in law are inadmissible because the applicant did not raise in her complaint either the issue of a breach of the principle of protection of legitimate expectations or the legality of the rules laid down by the decision of 30 June 2011, nor did she put forward arguments closely linked to those issues.
54In that regard, the Tribunal notes, first, that since the pre-litigation procedure is an informal procedure and those involved at that stage are generally acting without the assistance of a lawyer, as was the case here, the administration must not interpret complaints restrictively but should, on the contrary, examine them with an open mind. Secondly, it is not the purpose of Article 91 of the Staff Regulations to bind strictly and absolutely the contentious stage of the proceedings, if any, provided that the claims submitted at that stage change neither the legal basis nor the subject matter of the complaint (judgment of 25 October 2013 in Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, paragraph 76).
55It is apparent from the complaint that the applicant had pointed out that, on the basis of the vacancy notice and the guide for the use of candidates (an explanatory document which EIOPA provided for both internal and external candidates), she had not expected rules other than those in the CEOS to be applicable to the selection procedure concerned. That being so, the Authority cannot reasonably claim, at the contentious stage of the proceedings, that it had not been in a position to know sufficiently precisely, at the complaint stage, that the applicant intended to rely on the principle of protection of legitimate expectations (see, to that effect, judgment of 25 October 2013 in Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, paragraph 78).
56Consequently, the plea of illegality concerning the second plea in law, based on a breach of the rule of correspondence, must be rejected.
57As regards the fifth plea in law, the Tribunal finds that that head of claim was indeed not expressly mentioned in the complaint, whereas under the rule of correspondence between the complaint and the action a plea raised before the Courts of the European Union must, in principle, if it is not to be declared inadmissible, have already been raised in the context of the pre-litigation procedure, so that the administration is in a position to know the criticisms which the person concerned makes against the contested decision (see judgment of 25 October 2013 in Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, paragraph 71).
58However, first of all, as regards the fifth plea in law, which principally alleges that the decision of 30 June 2011 is unlawful, the Tribunal considers that, even if the applicant accepted that she had agreed to serve a provisional assignment period as part of the engagement procedure for the senior expert post, she requested, in her complaint, that she be paid during that period at grade AD 8, which was tantamount to contesting the possibility provided for by the decision of 30 June 2011 of making that payment conditional on her confirmation in the post at the end of the provisional assignment period, and of only contemplating that payment retroactively.
59Moreover, and in any event, the Tribunal has already held that an applicant may raise a plea of illegality for the first time in an action despite the correspondence rule (see judgments of 12 March 2014 in CR v Parliament, F‑128/12, EU:F:2014:38, paragraph 32, and 18 September 2014 in Cerafogli v ECB, F‑26/12, EU:F:2014:218, paragraph 39, on appeal before the General Court of the European Union, Case T‑787/14 P). Thus, in the end, and according to consistent case-law, for a plea of illegality to be admissible, the only requirement is that the general measure claimed to be illegal must be applicable, directly or indirectly, to the issue with which the action is concerned and that there must be a direct legal connection between the contested individual decision and the general measure in question (see judgments of 6 June 2007 in Walderdorff v Commission, T‑442/04, EU:T:2007:161, paragraph 47 and the case-law cited therein, and 11 July 2007 in Wils v Parliament, F‑105/05, EU:F:2007:128, paragraph 36).
60Since the two conditions mentioned in the previous paragraph are met in the present case as concerns both the Recruitment GIPs and the decision of 30 June 2011, the pleas of illegality against both of those two general measures respectively must therefore also, in any event and for the latter reason, be declared admissible.
61Finally, even if the admissibility of this plea was not challenged by the Authority, the Tribunal finds that, in the light of the case-law cited in paragraph 59 of this judgment, the third plea in law alleging the illegality of the Recruitment GIPs because of failure to consult the Staff Committee, an aspect not raised in the complaint, is admissible.
The first plea, alleging breach of the principles of legality and legal certainty
–Arguments of the parties
62First of all, as regards the principle of legality, the applicant contends that, in so far as the Board of Supervisors had not approved the Recruitment GIPs, as required by the decision of the EIOPA Management Board at its meeting of 15 November 2012, those provisions could not constitute a legal basis for disregarding the requirement set out in the vacancy notice of at least eight years’ relevant professional experience, and thus justify the contested decision. In that regard, the applicant states that, in deciding to seek the approval of the Board of Supervisors, the Management Board did not, however, infringe Regulation No 1094/2010.
63The fact that the Management Board felt it necessary to correct the minutes of its meeting of 15 November 2012 in order to make clear that the Recruitment GIPs had been properly adopted is evidence, the applicant alleges, of an inconsistent approach. Consequently, according to the applicant, for the period between 15 November 2012 (the date of the above-mentioned Management Board meeting) and 22 July 2014 (the date of the adoption of the corrigendum) the Recruitment GIPs had yet to be approved by the Board of Supervisors so that they could be deemed adopted and thus come into force. In any event, the applicant disputes ‘the lawfulness and existence of the corrigendum’.
64Secondly, regarding the principle of legal certainty, the applicant states that, first, the vacancy notice, which is the binding legal framework for the Authority and in the light of which she submitted her candidature, did not make any reference whatsoever to the Recruitment GIPs. Second, since the Authority had not brought them to the attention of its staff in accordance with Article 110(3) of the Staff Regulations, at least not by the date of notification of the contested decision, the Recruitment GIPs could not, in her view, be applied to her or enforced against her.
65EIOPA claims that the first plea in law should be rejected, arguing in particular that the reference to the approval of the Recruitment GIPs by the Board of Supervisors in the minutes of the Management Board meeting of 15 November 2012 was merely a clerical error and that, moreover, the error was subsequently rectified by the corrigendum, as was explained to the applicant in the decision rejecting her complaint.
–Findings of the Tribunal
66As regards, first of all, the principle of legality, the Tribunal notes that, under Article 110 of the Staff Regulations, read together with Article 68(2) of Regulation No 1094/2010, implementing measures for the Staff Regulations and the CEOS, such as the Recruitment GIPs, must be adopted by the Management Board after consulting the Staff Committee and in agreement with the Commission, and they must be brought to the attention of the staff.
67It is common ground that the Commission formally approved the draft Recruitment GIPs on 3 April 2012. Regardless of whether or not the Staff Committee was consulted, a question which will be addressed in the examination of the third plea, it must be ascertained, in the context of the present plea, whether the Management Board was the body empowered to adopt the Recruitment GIPs and, in particular, whether it was able to do so without involving the Board of Supervisors.
68In that regard it is clear from Article 68(2) of Regulation No 1094/2010 that the Recruitment GIPs, which are implementing measures for the Staff Regulations and the CEOS for the Authority’s staff, fall within the scope of that provision. Article 68(2) provides that it is the Management Board which is responsible for the adoption of such GIPs.
69The applicant seeks to dispute that the mere fact that the Chairman of the Management Board affixed his signature to a version of the Recruitment GIPs implies that the Management Board actually approved that version. As the Authority in essence points out, the signature in this case merely serves to authenticate the GIPs as a measure adopted by the Management Board. That does not mean, however, that they were adopted by the Chairman of the Authority in an individual capacity.
70As for the reference in the minutes of the Management Board meeting of 15 November 2012, at which the Recruitment GIPs were approved, stating that the adoption of the GIPs was subject to approval by the Members of the Board of Supervisors and not just the Management Board, that reference does not affect the finding that the Recruitment GIPs were adopted by the Management Board at that meeting, or their legality, or their applicability in the present case. The Management Board was, in any event, under the legislation applicable to the Authority — here Regulation No 1094/2010 and in particular Article 68(2) thereof — alone empowered to adopt them, and, in that regard, the applicant has failed to prove that the Recruitment GIPs were also covered by or encroached on the decision-making powers of the Board of Supervisors. Furthermore, there is nothing in the documents before the Tribunal which is capable of contradicting or even merely casting doubt on the Authority’s explanation that the reference to approval by the Board of Supervisors in the minutes of the meeting of 15 November 2012 was simply a clerical error in the drafting of those minutes.
71Still on that issue, a reading of the full minutes of the first Management Board meeting held on 10 January 2011 tends to confirm that, when it decided on and announced the procedure it would follow in that regard, the Management Board had not intended or contemplated making the actual adoption of the Recruitment GIPs subject to the agreement of members of the Board of Supervisors. Since the abbreviation ‘BoS’ refers to the Board of Supervisors, it is clear that, as EIOPA maintains, the reference in point 7 of those minutes to approval by the EIOPA ‘Board’ rather than the ‘BoS’ refers to the EIOPA Management Board and not to the Board of Supervisors. Thus the wording of those minutes tends to confirm that, subsequently, the reference in the minutes of the Management Board meeting of 15 November 2012 to the involvement of the members of the Board of Supervisors was simply a clerical error and cannot in any way be reasonably interpreted, in context, as the expression of a sudden, deliberate intention by the Management Board to make the adoption of the text of GIPs for the Staff Regulations and the CEOS subject to prior approval by the Board of Supervisors.
72That being so, the applicant’s argument that, in correcting the minutes of the 15 November 2012 meeting, the Authority adopted an inconsistent approach which rendered the Recruitment GIPs inapplicable in the present case must be rejected. The Tribunal considers that, with its corrigendum, the Management Board merely corrected an acknowledged clerical error so that the contents of the minutes of the 15 November 2012 meeting reflected the actual procedure followed in order to adopt the Recruitment GIPs, that is to say, the procedure laid down in Article 110(1) of the Staff Regulations read in conjunction with Article 68 of Regulation No 1094/2010, which did not entail the involvement of the Board of Supervisors.
73As regards, secondly, the principle of legal certainty, it should be remembered that, according to consistent case-law, that principle requires that the administration put those concerned in a position to know precisely the scope of their obligations or their rights (see, to that effect, judgments of 21 June 2007 in ROM-projecten, C‑158/06, EU:C:2007:370, paragraph 25; 11 December 2007 in Skoma-Lux, C‑161/06, EU:C:2007:773, paragraph 28, and 10 March 2009 in Heinrich, C‑345/06, EU:C:2009:140, paragraph 44). Accordingly, and according to equally settled case-law, the principle of legal certainty requires that a rule laid down by the administration which determines rights and obligations for the members of its staff is given adequate publicity according to the procedures and forms which it is for the administration to determine (judgments of 30 November 2009 in Wenig v Commission, F‑80/08, EU:F:2009:160, paragraph 90; 14 April 2011 in Šimonis v Commission, F‑113/07, EU:F:2011:44, paragraph 73, and 15 October 2014 in Moschonaki v Commission, F‑55/10 RENV, EU:F:2014:235, paragraph 41).
74In particular, as regards the rules on the recruitment of temporary staff, the AECE of an institution or agency is required to state as precisely as possible in the vacancy notice the conditions required to occupy the post in question, in order to enable those concerned to determine whether it is appropriate to submit an application (see, to that effect, judgments of 30 October 1974 in Grassi v Council, 188/73, EU:C:1974:112, paragraph 40, and 2 October 1996 in Vecchi v Commission, T‑356/94, EU:T:1996:136, paragraph 50). Admittedly, the AECE cannot be required to refer to all the conditions expressly provided for in the Staff Regulations, since candidates are presumed to be familiar with the Staff Regulations, but a vacancy notice would be deprived of its purpose, which is to inform candidates of the conditions that must be satisfied in order to occupy a post, if the administration were able to exclude a candidate on a ground not expressly stated in the vacancy notice or in the Staff Regulations, or that has not previously been published in a form accessible to or known to the candidate concerned (see judgments of 14 April 2011 in Šimonis v Commission, F‑113/07, EU:F:2011:44, paragraph 74, and 15 October 2014 in Moschonaki v Commission, F‑55/10 RENV, EU:F:2014:235, paragraph 42).
75In the present case, the reason why the applicant could not be confirmed at the end of the provisional assignment period in the post that had been the subject of the vacancy notice, that is, that she did not have the minimum of nine years’ relevant professional experience required to occupy such a grade AD 8 post, was not, it is true, mentioned in the vacancy notice, which incorrectly referred to a minimum requirement of eight years’ relevant professional experience. The Tribunal considers, however, that, in the light of the case-law cited in the previous paragraph above, an institution or agency has, as a general rule, the possibility, or even, in order to ensure observance of the principle of equal treatment in the conduct of the various selection procedures for posts at the same grade, the obligation to eliminate a candidate for failure to satisfy a condition which, because of a clerical error, did not appear as such in one of its vacancy notices, but which, as in the present case, is clearly and unequivocally evident from GIPs for the Staff Regulations and the CEOS adopted and appropriately publicised by that institution or agency, and which are therefore deemed to be known to a candidate exercising ordinary care who is a member of the staff of the institution or agency in question.
76In that regard, the Tribunal notes that the final version of the Recruitment GIPs was brought to the attention of the Authority’s staff on 18 December 2012 through publication on the Allegro intranet site, in addition, moreover, to an information meeting for staff which had already been held on 12 November 2012. That publication satisfied the requirement in Article 110(3) of the Staff Regulations, which allows the administration a broad discretion in choosing how to communicate the information referred to in Article 110 of the Staff Regulations (see, on communication only to the Staff Committee, judgment of 25 November 1976 in Küster v Parliament, 123/75, EU:C:1976:162, paragraph 7).
77It should be added that, at the hearing, the applicant was not able to provide a convincing explanation as to why she could not gain access, on or before 12 February 2014, to the Recruitment GIPs by entering the Allegro intranet site which, as the Authority pointed out, is not opened from Internet Explorer but requires the use of a different browser, a fact which, as the Authority also stated without being disproved on this point by the applicant, all the staff were supposed to know. Furthermore, the applicant does not dispute that every decision submitted for adoption by the Management Board, like the Recruitment GIPs, is recorded on a shared server within the Authority and is permanently accessible to all staff. She also does not dispute that the two versions of the Recruitment GIPs, to which she alleges she first gained access on 19 February 2014, were in any event identical in requiring a minimum of nine years’ relevant professional experience in order to be eligible for a grade AD 8 post within the Authority.
78It follows that the first plea must be rejected as unfounded.
The third plea, alleging the unlawfulness of the Recruitment GIPs by reason of failure to consult the Staff Committee
–Arguments of the parties
79Arguing that the Authority’s Staff Committee was only established by a decision of 15 November 2012, the applicant contends in support of her third plea, which it is appropriate to examine before the second, that in such circumstances where no Staff Committee was in place, it is evident that, contrary to Article 110(1) of the Staff Regulations, the Staff Committee could not have been consulted prior to the meeting of 15 November 2012, at which the Management Board allegedly, according to the Authority’s claims, adopted the Recruitment GIPs.
80According to EIOPA, the Staff Committee was properly consulted about the text of the Recruitment GIPs, which was approved by the Commission and then subsequently adopted by the Authority’s Management Board.
–Findings of the Tribunal
81First of all, it is clear from the documents before the Tribunal that, contrary to the applicant’s claims, the Staff Committee was set up before 15 November 2012. The outcome of the first election of the three members of the Staff Committee was announced on 13 April 2011.
82As regards compliance with the requirement, applicable by analogy to agencies such as EIOPA and laid down in Article 110(1) of the Staff Regulations, that GIPs are adopted by the appointing authority or the AECE of each institution or agency after consulting the Staff Committee, it is evident from the documents produced by the Authority in the annex to its defence that, on 19 September 2011, a meeting was held between the Staff Committee and the EIOPA management, and that at that meeting it was agreed that the Staff Committee would send its proposed amendments to three series of GIPs on, respectively, temporary agents, contract agents and middle managers. In that connection, on 14 October 2011 the human resources coordinator sent an email to the Staff Committee asking it to comment on the above GIPs, while on 14 November 2011 the Staff Committee replied that it had no comments to make on the various GIPs submitted for its consideration.
83The wording of the preamble to the Recruitment GIPs is therefore correct when it refers in unequivocal terms to the fact that the staff representation body was indeed consulted, stating that ‘The Management Board of EIOPA [has adopted the Recruitment GIPs] pursuant to Article 110 of the Staff Regulations and after consultation of the Staff Committee of EIOPA’.
84Secondly, even though, in support of her third plea, the applicant relied on only one argument — that the Staff Committee was not in place until 15 November 2012 — which has been rejected as manifestly unfounded, the submissions at the hearing also dealt with a question raised by a Member of the Tribunal as to whether the Staff Committee was consulted again about the draft Recruitment GIPs as amended as a result of the observations formulated by the Commission as a condition for its approval of the text under Article 68(2) of Regulation No 1094/2010.
85In that regard, as was stated in paragraph 66 above, Article 110 of the Staff Regulations provides that agencies are to adopt GIPs after consulting their Staff Committee and in agreement with the Commission, while Article 68(2) of Regulation No 1094/2010, which refers to Article 110 of the Staff Regulations, states that GIPs for the Staff Regulations and the CEOS must be adopted by ‘the [EIOPA] Management Board, in agreement with the Commission’.
86Although GIPs for Article 110 of the Staff Regulations cannot be adopted by an agency without the agreement of the Commission, thus conferring on the latter a certain supervisory power, it is, on the other hand, merely required that the Staff Committee be consulted, a modest form of participation in a decision-making process which in no circumstances involves any obligation for the administration to act upon the observations made by the Staff Committee in the course of the consultation. However, unless it is to undermine the effectiveness of the obligation to consult, the administration must comply with that obligation whenever consultation of the Staff Committee is such as to have an influence on the substance of the measure to be adopted (see, to that effect, judgment of 20 November 2003 in Cerafogli and Poloni v ECB, T‑63/02, EU:T:2003:308, paragraph 23 and the case-law cited therein).
87The above provisions of Article 110 of the Staff Regulations do not lay down the order in which the stages of the procedure for the adoption of GIPs by an agency should be carried out, in particular as regards whether its Staff Committee can or must be heard before or after the Commission gives its agreement. In that regard, the Tribunal points out, however, that in the legislative context at issue here, the power to adopt GIPs formally conferred on the Authority’s Management Board is conditional upon the Commission’s agreement, so that, in reality, both the Authority and the Commission hold decision-making power in this field. Thus, it must be considered that an agency’s Staff Committee may, as in the present case, be consulted before draft GIPs are approved by the Commission provided that the text subsequently adopted, formally, by the agency is not substantially different, as a result of amendments made at the Commission’s request, from the text originally submitted to the Staff Committee.
88Consequently, in the circumstances of the present case, the Authority was obliged to consult the Staff Committee afresh before the Recruitment GIPs were adopted only if it had decided to accept amendments called for by the Commission to its original proposal which would have substantially affected the general tenor of that proposal. Such an obligation is, however, excluded in the case of specific amendments of limited effect, bearing in mind that whether or not an amendment is substantial must be determined from the point of view of its subject matter and the place occupied by the amended provisions in the enacting terms overall, and not from the point of view of the individual consequences that it might have for the officials or other staff concerned (see, to that effect, judgment of 22 December 2008 in Centeno Mediavilla and Others v Commission, C‑443/07 P, EU:C:2008:767, paragraph 52).
89In that connection, the Tribunal notes that, by Decision C(2012) 2272 final of 3 April 2012, the Commission approved the GIPs adopted by various agencies for the Staff Regulations and the CEOS, including the EIOPA Recruitment GIPs. However, it is clear that the text of that decision, produced by the Authority, does not show that the Commission called for any specific or substantial amendment to the text of the Recruitment GIPs submitted to it for approval. On the contrary, in the approval decision referred to above, the Commission found, in the fourth recital, that ‘an in-depth examination has led to the conclusion that these draft [GIPs] follow, to a large extent, the relevant provisions laid down by the Commission for its own staff [and that] deviations from the Commission provisions are limited to the specificities of [the] Agencies [in question]’.
90Consequently, according to the principles identified in paragraphs 87 and 88 above, EIOPA was not, a priori, under any obligation to consult the Staff Committee afresh about the draft Recruitment GIPs after the Commission adopted its approval decision.
91Furthermore, it is apparent from the documents before the Tribunal that, in the course of the procedure followed for the adoption of the GIPs for the Staff Regulations and the CEOS by the Authority, the texts of a number of GIPs were submitted together to the Staff Committee and the Commission. In that regard, on 9 November 2012, the human resources coordinator sent an email to the Staff Committee in which he referred to discussions with the latter on the draft GIPs for the Staff Regulations and the CEOS, including the Recruitment GIPs, which had already been approved by the Commission and would be submitted to the Management Board for adoption at its meeting on 15 November 2012. It is clear from that email that only one text had not yet been submitted to the Staff Committee by 9 November 2012, and the Staff Committee expressly stated, in an email of 14 November 2012, that it had no comments to make on that text.
92Consequently, the foregoing findings of fact confirm, first of all, that no substantial change was made to the draft GIPs on which the Staff Committee had already been consulted. Secondly, and in any event, they confirm that the Staff Committee was widely involved in the procedure for adopting the various GIPs for Article 110 of the Staff Regulations, and that it did not wish to add any comments on the text of the Recruitment GIPs, which it had been informed in the above-mentioned email of 9 November 2012 was to be forwarded to the Management Board, and of whose contents it was aware, contents which, even if they might have differed from the contents of the draft Recruitment GIPs originally submitted to it, could contain only specific amendments of limited effect, within the meaning of the case-law cited in paragraph 88 above.
93It follows from the above that the plea of illegality of the Recruitment GIPs by reason of failure to consult the Staff Committee must be rejected as unfounded.
The second plea, alleging breach of the principle of protection of legitimate expectations
–Arguments of the parties
94The applicant contends, first of all, that, by the contested decision, the Authority retroactively rejected her candidature for the recruitment procedure initiated by the vacancy notice and, in particular, that it withdrew individual rights which the decision of 7 November 2013 had conferred on her in appointing her to the post concerned from 16 September 2013. In so doing, the Authority disregarded her legitimate expectation that her engagement on 7 November 2013 was lawful. In the applicant’s opinion, there was no objective circumstance which might have led her to realise the error contained in the vacancy notice, or to be aware of factors casting doubt on the lawfulness of the decision of 7 November 2013.
95Secondly, the applicant contends that the Authority acted within a manifestly unreasonable period, bearing in mind that the contested decision was taken seven months after her acceptance of the senior expert post on 18 July 2013, and nine months after the publication of the vacancy notice on 24 May 2013, respectively.
96The Authority claims that the second plea should be rejected, maintaining that the applicant could not have been unaware of the unlawfulness of her recruitment because the Recruitment GIPs had been published on the EIOPA intranet site. Moreover, in the fourteen recruitment procedures organised between 1 January 2011 and 24 May 2013, the date on which the vacancy notice was published, the requirement for filling grade AD 8 posts had always been a minimum of nine years’ relevant professional experience, a fact of which the applicant could not reasonably have been unaware given EIOPA’s small size.
–Findings of the Tribunal
97As a preliminary point, according to settled case-law, the principle of the protection of legitimate expectations, which is one of the fundamental principles of EU law (see, in particular, judgment of 5 May 1981 in Dürbeck, 112/80, EU:C:1981:94, paragraph 48), implies that any official or other staff member is entitled to rely on that principle in a situation where it is clear that the Union administration, by giving him precise assurances, has caused him to entertain legitimate expectations. The assurances given must, moreover, comply with the relevant rules (judgment of 18 July 2007 in EAR v Karatzoglou, C‑213/06 P, EU:C:2007:453, paragraph 33 and the case-law cited therein).
98Although the principle of the protection of legitimate expectations may restrict the administration’s right to withdraw an unlawful act with retroactive effect in a case where the addressee of the act has been led to rely on its apparent lawfulness, that condition is not deemed to be satisfied where there are objective circumstances which should have led the person concerned to realise the error in question or, in other words, where there are factors casting doubt on the lawfulness of the act. Thus the person cannot rely on the apparent lawfulness of the withdrawn act in particular where that act has no legal basis or was evidently adopted contrary to the applicable rules of law (judgment of 12 May 2010 in Bui Van v Commission, T‑491/08 P, EU:T:2010:191, paragraph 44 and the case-law cited therein).
99In the present case, the vacancy notice did not, it is true, contain any reference to the Recruitment GIPs or therefore, a fortiori, any reference to Article 7 of those GIPs, requiring at least nine years’ relevant professional experience in order to occupy a grade AD 8 post. However, the Tribunal considers that, in the circumstances of the present case, the applicant could not reasonably have been unaware that those GIPs necessarily applied in her case.
100It is not unreasonable to consider that an experienced member of the temporary staff such as the applicant, who already held a grade AD 6 post within the Authority, should have wondered about the minimum length of professional experience needed to be recruited and/or classified in a grade AD 8 post such as the one referred to in the vacancy notice. That is particularly true here since, firstly, obtaining the senior expert post involved, in the applicant’s case, advancement of two grades from her grade AD 6 classification in her post as expert on stakeholders. Furthermore, regard must be had to the particular context in which EU agencies operate generally, characterised amongst other things by the fact that they have a limited number of staff available, and are subject to specific operation constraints (see, to that effect, judgments of 4 December 2013 in ETF v Schuerings, T‑107/11 P, EU:T:2013:624, paragraphs 97 and 100, and 10 September 2014 in Tzikas v ERA, F‑120/13, EU:F:2014:197, paragraph 93). Before filling the senior expert post, the Authority, a small administrative body with only 13 posts in the assistants function group and 70 posts in the administrators function group, only 11 of which were at grade AD 8, had published no fewer than fourteen vacancy notices to fill grade AD 8 posts and, for each of those posts, a minimum of nine years’ professional experience was consistently required of candidates.
101Nonetheless, it should be remembered that, again according to consistent case-law, the basis of the employment relationship between a member of the temporary staff and the institution or agency concerned is a contract of employment (judgments of 18 October 1977 in Schertzer v Parliament, 25/68, EU:C:1977:158, paragraph 40, and 19 June 1992 in V. v Parliament, C‑18/91 P, EU:C:1992:269, paragraph 39). Consequently, as regards the possibility of terminating a contractual relationship, once that relationship has been established by mutual agreement between the parties, the AECE cannot act unilaterally like an appointing authority, but is bound by the relevant provisions of the contract with its staff member and, in any event, is bound to comply with the provisions of the CEOS, in particular Articles 14 and 47 thereof.
102In that regard, in circumstances such as those in the present case, where EIOPA expressly confirmed in its written and oral replies that it did not intend to rely on any of the above-mentioned provisions, but to refer solely to its decision of 30 June 2011, the Tribunal considers that, regardless of considerations relating to observance of the principle of protection of legitimate expectations, the Authority’s AECE could not unilaterally decide to withdraw the offer of employment, which was governed by the conditions referred to in the decision of 30 June 2011, as was pointed out in the email of 17 July 2013 making that offer formal, and retroactively reject the applicant’s candidature.
103Although there is nothing in the CEOS which prevents the AECE, by means of contractual provisions which are more favourable for staff, from limiting, in the interests of those staff, its power under Article 47 of the CEOS to terminate employment contracts which have been lawfully concluded (judgments of 30 November 1994 in Düchs v Commission, T‑558/93, EU:T:1994:279, paragraph 43, and 7 July 2004 in Schmitt v EAR, T‑175/03, EU:T:2004:214, paragraph 53), it may not, however, outside the situations contemplated by the CEOS, unilaterally release itself from its contractual undertaking with the staff member concerned. In particular, an offer of employment addressed to a candidate with a view to his appointment as a member of the temporary staff is, admittedly, merely a statement of intent and, as such, a preparatory measure which does not create rights and may be withdrawn, for example where the AECE discovers, after making the offer of employment, that the person concerned does not satisfy one of the conditions of engagement laid down in the CEOS, the vacancy notice or internal rules (see, to that effect, judgment of 23 October 2012 in Eklund v Commission, F‑57/11, EU:F:2012:145, paragraph 66, and the order of 10 July 2014 in Mészáros v Commission, F‑22/13, EU:F:2014:189, paragraph 73). However, the situation is different where such an offer has been accepted, has been expressed in a decision of the AECE, such as the decision of 7 November 2013, and the new contractual relationship has, in fact, already begun to be put into practice. In such a situation, the mutual agreement between the contracting parties gives rise to new contractual obligations which limit the AECE’s power to act unilaterally outside the situations expressly provided for by the CEOS, such as those referred to in Article 47 of the CEOS, and, in any event, to act retroactively.
104In the present case, the Tribunal notes, first, that the applicant had expressly accepted, on 18 July 2013, the offer of employment made on the previous day by the Authority in the terms used in its email of 17 July 2013 addressed to the applicant. In that regard, it is clear from the wording of that email that it contains two aspects: a first firm offer of ‘provisional assignment’ was made to the applicant, who retained the benefit of her indefinite employment at grade AD 6, while a second offer was made which was dependent on the quality of her performance during the provisional assignment period. Thus, the email did not contain an offer of immediate employment under the conditions of the vacancy notice, which referred only to a temporary post for a fixed term of three years under Article 9 of the CEOS. The Tribunal notes, secondly, that the firm offer of ‘provisional assignment’ was expressed, in this case, in the decision of 7 November 2013, even though this was not, formally, a supplementary agreement to the contract of employment countersigned by both parties. Thirdly, the Tribunal notes that the applicant actually occupied the post of senior expert for almost six months and, fourthly, EIOPA stated, at the hearing, that the legal basis for the contested decision was not a provision of the CEOS, but the decision of 30 June 2011, which was adopted by the Authority’s Executive Director in order to fill a gap in the Staff Regulations and the CEOS.
105In such circumstances, the Authority’s AECE could not, on 24 February 2014, decide unilaterally, retroactively and without a tangible legal basis to reject the applicant’s candidature for the senior expert post, which was, in other words, tantamount to withdrawing the firm ‘provisional assignment’ element of its offer of employment of 17 July 2013, which the applicant had already accepted and which had thus exhausted its effects. That is true even if it was merely an offer of provisional assignment for six months with, at the end, the possibility for the applicant, by accepting a second offer if it was made, to continue her indefinite employment relationship, resulting from her current grade AD 6 contract, in the senior expert post, which would normally be filled only for a fixed term of three years.
106It must therefore be held that, in so far as it retroactively rejected the applicant’s candidature for the senior expert post, the contested decision is unlawful.
107As regards whether, as the applicant maintains, particularly in the wording of the form of order sought, the Authority’s AECE actually withdrew the decision of 7 November 2013 assigning the applicant to the senior expert post on a probationary basis, the contested decision clearly does not expressly refer to the withdrawal of the decision of 7 November 2013. The Tribunal notes that the latter decision simply provided for the applicant’s provisional assignment from 16 September 2013 and referred to a future decision of the AECE, should she be confirmed in the new post she was taking up, offering her a definitive assignment and confirming her in the AD 8 grade envisaged for the senior expert post, retroactively to 16 September 2013. In the end, given that it was the decision of 7 November 2013 which determined that the applicant was paid at grade AD 6 during the provisional assignment period, and given that, because of the subsequent refusal of the Authority’s AECE to confirm her in her post, she was not paid at grade AD 8 retroactively to 16 September 2013, it must be considered that the decision of 7 November 2013 was not withdrawn or in any other way deferred by the contested decision since it did, on the contrary, exhaust its effects.
108In the light of the foregoing, the second plea must be upheld in part, with a finding that the contested decision was unlawful in so far as, in disregard, in a contractual relationship, of the acquired rights and terms of the contract, it retroactively rejected the applicant’s application for the senior expert post and impliedly withdrew the offer of employment made on 17 July 2013, which the applicant had already accepted.
The fourth plea, alleging a breach of the rights of the defence and of Article 41 of the Charter
–Arguments of the parties
109The applicant claims that, in not having given her the opportunity to submit her observations properly before the contested decision was adopted, the Authority infringed her right to be heard prior to the adoption of a decision adversely affecting her. She maintains that, had she been put in a position to make her views known about whether the Authority was entitled to adopt that decision, she might have influenced its substance.
110EIOPA claims that the plea should be rejected, observing, inter alia, that the applicant was heard at the interviews she had on 3 and 11 February 2014 with a member of the human resources team and the Director of the Regulations Directorate, respectively.
–Findings of the Tribunal
111As regards whether, in the present case, the Authority fully respected the applicant’s right to be heard on the question of whether she had at least nine years’ relevant professional experience when she applied for the senior expert post, it is clear from the documents before the Tribunal and the submissions at the hearing, first, that the applicant had been informed, at the interview she had on 3 February 2014 with a member of the human resources team, that the Authority was currently ascertaining whether she satisfied the requirement of having at least nine years’ professional experience in order to be eligible for a grade AD 8 post, and, second, that at the meeting on 11 February 2014 with the Director of the Regulations Directorate, they had both endeavoured to determine whether or not she, in fact, fulfilled the requirement for a minimum of nine years’ professional experience.
112It is clear from the file, inter alia, that, at the meeting on 11 February 2014, the Director of the Regulations Directorate had given the applicant the opportunity to challenge the administration’s calculation of the number of years’ professional experience to be credited to her. Consequently, as far as the review of her previous professional experience is concerned, the applicant had the opportunity to make her views properly known to the Director before the Executive Director adopted the contested decision.
113In addition to the fact that the applicant was heard in connection with the verification of her professional experience, the Tribunal considers that, in the factual context just described, not only could the applicant not be unaware of the importance which the Authority attached to whether she had at least nine years’ relevant professional experience in order to be eligible for a grade AD 8 post, but the applicant had also been informed that the Authority regretted that she could not hope to be confirmed in the senior expert post at grade AD 8 unless she could prove that she had, on the date laid down in the vacancy notice, at least nine years’ relevant professional experience.
114Furthermore, the applicant still had the option, in the thirteen days that passed between the meeting on 11 February 2014 and the adoption of the contested decision on 24 February 2014, of supplementing what she had already said about the method of calculating her professional experience and the legal consequences arising from that calculation (see judgment of 10 September 2014 in Tzikas v ERA, F‑120/13, EU:F:2014:197, paragraph 59).
115That being so, the Tribunal finds that, before deciding, by the contested decision, not to confirm the applicant in the senior expert post, the Authority respected the applicant’s right to be heard under Article 41(2)(a) of the Charter.
116In the light of the foregoing, the fourth plea must be rejected.
The fifth plea in law, alleging, principally, the unlawfulness of the rules contained in the decision of 30 June 2011 and, in the alternative, failure to take account of the scope of that decision
–Arguments of the parties
117The applicant essentially claims, principally, that the decision of 30 June 2011 is unlawful for four reasons.
118First, the Executive Director did not have the power to adopt the decision of 30 June 2011 since, in the applicant’s view, that power lay with the Management Board, which could have adopted a similar decision on the basis of Article 47(2) of Regulation No 1094/2010. In that regard, the applicant essentially disputes whether the decision of 30 June 2011 can constitute an ‘administrative instruction’ within the meaning of Article 53(3) of that regulation.
119Second, the applicant disputes the lawfulness of the main ground for the adoption of the decision of 30 June 2011, that is, the existence of a legal gap to be filled between the Staff Regulations and the GIPs adopted by the Authority for the Staff Regulations and the CEOS for cases of reassignment to temporary posts of staff already employed by the Authority under the same system, but at a lower grade. The applicant considers that, where the same staff member is assigned to different posts in succession within the Authority and with the same temporary status, only the first post should entail a probationary period as provided for in Article 14 of the CEOS. The CEOS does not provide that, where a temporary staff member has been confirmed in his post within an agency at the end of the probationary period referred to in that provision, he may be subject to the obligation to serve a further probationary period where he is assigned to a different temporary post within the same agency, even if he is required to perform different duties or to do so at a higher grade.
120Third, the applicant claims that the decision of 30 June 2011 may lead to a situation of abuse where, as in her case, the same temporary staff member remains ‘on probation’ for 18 months in the context of an employment relationship which, in the present case, is of only three years’ duration.
121Fourth, the applicant claims that the Authority should have repealed the decision of 30 June 2011 because it existed simply to deal with the first case of successive assignments of a temporary staff member, until a policy for the management of temporary staff contracts was established. As the Recruitment GIPs had been adopted, the decision of 30 June 2011 could no longer apply in the present case.
122In the alternative, the applicant claims that the decision of 30 June 2011 was misapplied in her case. In particular, she contends that the vacancy notice did not refer to a probationary period or to the existence of the decision of 30 June 2011. The applicant did, however, acknowledge, at the hearing, that by accepting the offer of the senior expert post on 18 July 2013, she had agreed to be subject to the provisional assignment rules laid down in the decision of 30 June 2011.
123The Authority claims that the fifth plea should be rejected, arguing that the decision of 30 June 2011 is an ‘internal administrative instruction’ which the Executive Director was entitled to adopt on the basis of the power conferred on him in that regard by Article 53(3) of Regulation No 1094/2010. As for its purpose, the Authority explains that the decision, which was adopted for the benefit of staff, aims to give internal candidates within EIOPA the opportunity to begin working in a higher grade post without losing the benefit of their previous contract, whether fixed-term or indefinite, which, ultimately, still remains in operation and is not terminated or rendered inoperative by a provisional assignment to a higher grade post.
–Findings of the Tribunal
124By her fifth plea the applicant’s real intention is to raise a plea of illegality of the decision of 30 June 2011. In that regard, she did not expressly challenge, in her complaint, the lawfulness of that decision or, in particular, the very principle of being subject afresh to the obligation to pass a probationary period, similar to the obligation to serve such a period laid down in Article 14 of the CEOS. However, as explained in paragraphs 58 to 60 above, the present plea of illegality must be declared admissible.
125As regards the Executive Director’s competence ratione personae to adopt the decision of 30 June 2011, it is clearly possible for that decision to be categorised as an ‘internal administrative instruction’ which the Executive Director is competent to adopt under Article 53(3) of Regulation No 1094/2010. Consequently, the plea of illegality of the decision of 30 June 2011 must be rejected in so far as it relates to lack of competence ratione personae.
126As regards lack of competence ratione materiae, it must first be examined whether, as the Executive Director claimed in the decision of 30 June 2011, there really was, on that date, a ‘gap’ between the Staff Regulations and the CEOS and the Authority’s internal implementing rules warranting the introduction of a special administrative practice for the engagement in a fixed-term temporary post, which had been the subject of a vacancy notice published within and outside the Authority, of a staff member already employed for an indefinite period by the Authority as a temporary staff member, but in a lower grade than that of the post to be filled.
127First of all, the Tribunal considers that the decision of 30 June 2011 envisages that, in practice and under the term ‘provisional assignment’, the engagement, or in other words the definitive assignment, of the person concerned in a higher grade post should be deferred until and made conditional upon demonstration, at the end of a six month probationary period organised in the form of a provisional assignment, of the quality of his performance in the new post, which is consequently occupied temporarily. The mechanism of ‘provisional assignment’ essentially amounts to using the possibility of a temporary staff member’s occupying a higher grade post temporarily, as provided for in Article 7(2) of the Staff Regulations, applicable by analogy pursuant to Article 10 of the CEOS, while requiring him to serve a probationary period similar in purpose to that provided for by Article 14 of the CEOS. In such a mechanism, which is not provided for by the Staff Regulations or the CEOS and makes no reference to Article 14 of the CEOS, thus appearing to be sui generis, the engagement or new assignment only becomes definitive after a probationary period during which the temporary staff member, in possession of a contract relating to a different post at a lower grade, is only temporarily assigned to a higher grade vacant post, which has been the subject of a vacancy notice.
128In that regard, Article 10(3) of the CEOS admittedly requires, in the case of a new ‘assignment’, even one that is ‘provisional’ (the terminology used in the decision of 30 June 2011), the conclusion of an agreement supplementary to the contract of service at the same time as the change of assignment. However, the Tribunal considers, in the present case, first, that the Authority and the applicant, in their emails of 17 and 18 July 2013 respectively offering and accepting the post that was the subject of the vacancy notice, contractually decided on a provisional assignment, without, however, anticipating whether it would, in fact, become definitive, and that those emails must be regarded as amounting, together, to an agreement supplementary to the contract of service as provided for in Article 10(3) of the CEOS. The Tribunal considers, second, that the conclusion of such a supplementary agreement did not deny the Authority’s AECE the possibility of deciding, at the end of the applicant’s provisional assignment period, to conclude a further supplementary agreement by which it would be decided to assign her definitively to the new post and the new grade.
129Having arrived at those findings, the Tribunal observes that the Staff Regulations and the CEOS do not contain any provision which specifically states that the administration can — which the applicant denies — impose a fresh probationary period, in the form of a provisional assignment, on a temporary staff member, here under an indefinite contract, who has already been confirmed in her post under Article 14 of the CEOS, where it eventually wishes to assign or employ her permanently in a different post carrying a higher grade.
130At the very most, Article 10(3) of the CEOS provides that ‘assignment of temporary staff to a post carrying a higher grade than that at which they were engaged shall be recorded in an agreement supplementary to their contract of service’. It is not, however, evident from the wording or the scheme of Articles 10 and 14 of the CEOS that they prevent the administration from being able to require the staff member concerned to serve a fresh probationary period within the meaning of Article 14 of the CEOS, or any other form of probationary period for the purposes of that new assignment.
131Thus, when it engages in one of its other posts a member of the temporary staff who has already been confirmed, under a fixed-term or indefinite contract, in his previous post at the end of a probationary period as provided for in Article 14 of the CEOS, the AECE may decide to exempt the person concerned from serving a fresh probationary period where it considers that he is continuing, in that temporary staff capacity, his employment relationship with his employer, even in a situation where the continuation of the employment relationship is accompanied by grade progression or a change in the duties performed, and where the vacancy notice relating to the newly occupied post refers only to recruitment for a specified period.
132Conversely, where the new employment contract with the same AECE involves a different category of post or marks an interruption of the career path of a temporary staff member who has already been confirmed following a probationary period under Article 14 of the CEOS, as shown, for example, by a material change in the type of duties performed by the staff member concerned or, as in the present case, by a difference of two grades, the AECE may, in the exercise of its discretion and its power to organise its departments, decide to consider that, for the purposes of Article 14 of the CEOS, the contract of service of the staff member concerned, including one supplementary to the previous contract, relates to a different post requiring the staff member, just like candidates from outside the institution or agency, such as temporary staff of other institutions or agencies or persons not working for the European Union, to demonstrate adequate professional abilities in the new post, thereby warranting confirmation in that post and classification in a higher grade than previously.
133Consequently, the Tribunal considers that the Authority was entitled to provide, in the decision of 30 June 2011, that a candidate for a post to be filled within the Authority who was already working for the Authority as a confirmed temporary staff member but in a lower grade than that of the post in question, may be required, like a candidate from outside the Authority who must serve a probationary period under Article 14 of the CEOS in the post in question, to undergo a new form of probationary period of six months, the outcome of which will determine whether he is subsequently given fixed employment in the new post and at the new higher grade by means of an agreement supplementary to his contract providing for his permanent reassignment to the post concerned. Such an interpretation, based on an application by analogy of Article 14 of the CEOS to a temporary staff member who is not being newly recruited by an institution or agency, but already has fixed-term or indefinite employment within that institution or agency, obtained at the end of a probationary period under Article 14 of the CEOS, also makes it possible to avoid penalising temporary staff who have already been confirmed within an agency, since, depending on the circumstances, the agency might be led to favour the recruitment of candidates whose performance would have to be assessed at the end of a probationary period, in the present case under the conditions of Article 14 of the CEOS, precisely to the detriment of candidates within the agency for whom a fresh probationary period would not be a possibility.
134It should now be examined whether, as the applicant claims, the Authority was able to make her remuneration at grade AD 8 conditional on passing the provisional assignment period.
135In the circumstances of the present case concerning the employment of temporary staff under Article 2(a) of the CEOS, the Tribunal notes first of all that, as a general rule, any successful candidate in a selection procedure must be engaged for the period and at the grade laid down in the corresponding vacancy notice, which here was at grade AD 8 for a fixed period of three years. In that regard, the Authority confirmed that any external candidate would have been engaged at that grade and for that period, regardless of whether he was previously a member of the temporary staff of another institution or agency and whether or not he had already served a probationary period under Article 14 of the CEOS. The Tribunal notes, however, that in the present case, the applicant wishes to continue her indefinite employment, in which, before being provisionally assigned to the senior expert post, she held the post of expert on stakeholders.
136Furthermore, Article 7(2) of the Staff Regulations, applicable by analogy pursuant to Article 10(1) of the CEOS, provides for the possibility that an official or other staff member who is called upon to occupy temporarily, for up to a year, a post which is normally classified in a higher grade than that of his original post is not immediately paid at the higher grade. That article thus provides for the possibility of provisional assignment, albeit limited to a maximum period of four months, beyond which the staff member concerned must in essence be paid at the higher grade. In the present case, and regardless of the fact that the Authority did not rely on that provision, the maximum period of four months was clearly exceeded.
137Having made those points, the Tribunal notes that the mechanism established by the decision of 30 June 2011 is not expressly provided for in the CEOS or the Staff Regulations, which are applicable by analogy. In practice, the mechanism allows the Authority to offer the opportunity to one of its temporary staff to obtain, for the medium term, and without losing the benefit of his previous engagement, whether fixed-term or indefinite, the higher grade attached to the post for which he has applied, to which he will only be definitively assigned at the end of a six month probationary period in the form of the provisional assignment described above. The principle underlying the mechanism appears particularly favourable, especially in a situation such as the applicant’s, since it enables those concerned to advance a number of grades in their classification without having to terminate their previous contract, which a candidate not working for the Authority would, on the other hand, have to do.
138From that point of view, the Authority’s intention was, first, to ensure that the staff member concerned should demonstrate sufficient professional abilities to be confirmed and assigned permanently and definitively to the new post, which had been published in a vacancy notice, and to receive retroactively, at the end of the provisional assignment period, the higher grade remuneration laid down for the performance of the new duties. Secondly, the Authority wished to provide a certain protection for its temporary staff who had already been confirmed in their posts within the Authority, in this case by not requiring them to terminate their previous, perhaps indefinite, contract, thereby preventing them, unlike temporary staff from other agencies or institutions, from finding themselves out of work if, at the end of the provisional assignment period, they had not demonstrated adequate professional abilities when evaluated in the light of the new duties.
139Nonetheless, the Tribunal considers that candidates within the Authority who are assigned to a higher grade post under the conditions provided for in the decision of 30 June 2011 are called upon to perform the duties relating to that post. Consequently, in a situation such as here, where the administration does not intend to rely on an application of Article 7(2) of the Staff Regulations, concerning the temporary occupation of a higher grade post, or a fortiori the possibility of provisionally assigning a staff member for four months to a higher grade post while paying him the remuneration of his original post, at a lower grade, it appears that there is no objective legal reason why the applicant, as an internal candidate within the Authority, should not have been able immediately to receive the remuneration for the grade published for the post referred to in the vacancy notice, for which she had applied and which she occupied by way of a provisional assignment.
140It follows from the foregoing that the decision of 30 June 2011, in so far as it provides in paragraph 6 that a temporary staff member who has been provisionally assigned to a post which is usually classified in a higher grade than that of his current post is not immediately classified in the grade published in the vacancy notice, but is so classified only retroactively at the end of a six month probationary period, is unlawful, since it leads, in cases such as the applicant’s, to the provisional assignment of an internal candidate within the Authority to a post which has been the subject of a published selection procedure, without granting him the classification laid down for the post referred to in the vacancy notice, even though the person concerned has been called upon to perform all the duties relating to the post in question for a period of more than four months.
141Consequently, the plea of illegality must be upheld in part and the contested decision annulled in so far as it denies the applicant the benefit of remuneration corresponding to grade AD 8 during the probationary period in the form of a provisional assignment to the post, from 16 September 2013 to 24 February 2014.
The claim for damages
Arguments of the parties
142The applicant claims that, in view of the unlawfulness of the contested decision, she should have been employed by the Agency at grade AD 8 from 16 September 2013. Consequently, she claims, principally, payment of the difference in remuneration between grades AD 6 and AD 8 from that date, or, in the alternative, for the period between 16 September 2013 and 24 February 2014. Furthermore, she considers that she has suffered non-material harm. Given the quality of her performance and her degree of professionalism and commitment to the Agency’s activities, she felt that she had been treated extremely unfairly and that she should therefore be awarded compensation of EUR 20000 for that non-material harm.
143The Authority contends that, because it was not presented in the complaint, the claim for damages, at the very least for the non-material harm allegedly suffered, should be dismissed as inadmissible. In any event, the claims for damages for both material and non-material harm should be dismissed as unfounded.
Findings of the Tribunal
144As regards the admissibility of the claims for damages, it is settled case-law that where, as in the present case, there is a direct link between an action for annulment and a claim for compensation, the latter is admissible as incidental to the action for annulment, without necessarily having to be preceded by a request from the person concerned to the administration for compensation for the damage allegedly suffered and by a complaint challenging the validity of the implied or express rejection of that request (judgment of 28 April 2009 in Violetti and Others v Commission, F‑5/05 and F‑7/05, EU:F:2009:39, paragraph 120 and the case-law cited therein). In any event, the Tribunal notes that here, the applicant had, in her complaint, not only requested to be confirmed in her senior expert post, but also asked the Authority to order the payment, in her case, of remuneration corresponding to grade AD 8 from 16 September 2013. That amounts to a request for compensation.
145As to the substance, concerning the material harm alleged by the applicant, the Tribunal considers that, as regards the period of provisional assignment actually served by the applicant, between 16 September 2013 and 24 February 2014, it is evident from the pleas in law above, in support of the annulment of the contested decision, that the applicant did suffer certain and actual material harm during that period, since, without prejudice to the period of four months referred to in Article 7(2) of the Staff Regulations, applicable to the temporary occupation of a post in a higher grade, she should have been paid at grade AD 8 and not at grade AD 6. Consequently, her claims for compensation should be upheld in so far as they seek compensation for the material harm suffered during the period of provisional assignment, as should her request for default interest on the amount of compensation, calculated at the rate of two points above the European Central Bank refinancing rate.
146On the other hand, as regards the period after 24 February 2014, the date of the contested decision and from which the applicant no longer occupied the senior expert post, the Tribunal notes that if, as she claims, the applicant had been immediately and definitively engaged in the senior expert post, she should in principle have been so engaged according to the conditions of the vacancy notice, that is, at grade AD 8, admittedly, but for a fixed period of three years. In such a situation, the AECE could have demanded the termination of her previous engagement because of the materially different nature of the duties and the higher grade laid down for the new post in question.
147However, it is apparent from the documents in the case, in particular the emails from the Authority and the applicant on 17 and 18 July 2013 respectively, which are deemed to constitute an agreement (formalised by the decision of 7 November 2013) supplementary to the contract of employment then in force, that the parties decided by contract, initially, that the applicant should merely be provisionally rather than permanently assigned to the senior expert post. In such circumstances, as the Authority rightly claimed, the AECE was able to defer, to a date after the occupation of the post concerned in the form of a provisional assignment, the conclusion and signature of a new supplementary agreement providing, subsequently, for the applicant to be assigned afresh, this time definitively, which would, contractually, replace her previous assignment as expert on stakeholders.
148It follows that, in the present case, the Authority’s AECE was entitled, by the contested decision, to refuse to confirm the applicant in her senior expert post, which was, in the end, tantamount to refraining from offering her a new agreement supplementary to her contract containing an offer of permanent and definitive assignment to the senior expert post, on the lawful ground that she had not fulfilled the requirement of having at least nine years’ relevant professional experience on 16 June 2013, as required by the Recruitment GIPs, with the consequence that she could, however, resume her duties as expert on stakeholders or other duties for which she remained employed by the Authority for an indefinite period, that is, duties corresponding to grade AD 6.
149Consequently, in so far as they relate to material harm after 24 February 2014 resulting from a difference in remuneration between grades AD 6 and AD 8, the claims for compensation must be rejected.
150As for the alleged non-material harm, it should be remembered that, according to settled case-law, the annulment of an unlawful measure such as the contested decision constitutes, in itself, adequate and, in principle, sufficient compensation for all non-material damage which that measure may have caused, except where the applicant shows that he has suffered non-material damage which is separable from the unlawfulness which is the basis for the annulment and which is incapable of being entirely repaired by that annulment (see, to that effect, judgments of 6 June 2006 in Girardot v Commission, T‑10/02, EU:T:2006:148, paragraph 131, and 19 November 2009 in Michail v Commission, T‑49/08 P, EU:T:2009:456, paragraph 88).
151In the present case, the applicant essentially put forward her conduct, efficiency and the quality of her professional performance to show that she suffered non-material harm consisting in a feeling that she had been unfairly treated and that her work had been undervalued, as well as in the impression or belief that she had been downgraded.
152It is clear from the case-law that the feeling of injustice and the anxiety caused by the fact that a person has to conduct a pre-litigation procedure and then a litigation procedure in order to have his rights recognised can, in certain circumstances, constitute harm that may arise solely from the fact that the administration committed an unlawful act (see, to that effect, judgment of 7 February 1990 in Culin v Commission, C‑343/87, EU:C:1990:49, paragraphs 27 and 28).
153In that regard, the Tribunal notes that the specific rules on provisional assignment to a higher grade post, established by the Authority in the form of an ‘administrative instruction’ such as the decision of 30 June 2011, were not, it is true, unlike the GIPs adopted by the Authority for the Staff Regulations and the CEOS, adopted by agreement with EIOPA’s supervisory institution, that is, the Commission, and that, for the reasons set out earlier, they are not entirely consistent with the requirements of the Staff Regulations and the CEOS.
154Nonetheless, it is apparent that those specific rules were designed so that temporary staff already confirmed in their posts within the Authority, like the applicant, might have a way of gaining rapid access to higher grade posts without losing the benefit of their original engagement in the event that, at the end of a six month probationary period during which they occupy their new post under a provisional assignment, they have not demonstrated that they can perform their new duties satisfactorily, when their original engagement would resume its full effect without having become inoperative.
155Consequently, in the specific circumstances of this case, it is apparent that the applicant, in the end, benefited from the specific rules on provisional assignment designed by EIOPA for the posts of expert on stakeholders and senior expert as much as she was disadvantaged by those rules in respect of the latter post. In particular, the rules enabled her, unlike candidates outside the Authority, who would probably have had to resign from their positions in order to occupy the senior expert post, to retain the benefit of her indefinite engagement at grade AD 6. That being so, regardless of the applicant’s merits in performing her duties, the Tribunal does not consider that the applicant has shown the existence of non-material damage which is separable from the unlawfulness which is the basis for the annulment of the contested decision and which is incapable of being entirely repaired by that annulment.
156It follows from all the foregoing considerations that:— the contested decision must be annulled in so far as:— in disregard, in a contractual relationship, of the acquired rights and terms of the contract, it retroactively rejects the applicant’s application for the senior expert post and impliedly withdraws the offer of employment, under a provisional assignment, already accepted by the applicant, made to her on 17 July 2013;— it deprives the applicant of the benefit of remuneration corresponding to grade AD 8 for the period of her provisional assignment from 16 September 2013 to 24 February 2014;— the remainder of the claims for annulment must be dismissed;— EIOPA must be ordered to compensate the applicant for her material loss, suffered between 16 September 2013 and 24 February 2014, in an amount corresponding to the difference in remuneration between grades AD 6 and AD 8, together with default interest, to run from 16 September 2013, at the rate set by the ECB for main refinancing operations during the relevant period and increased by two points;— the remainder of the claims for compensation must be dismissed.
Costs
157Pursuant to Article 101 of the Rules of Procedure, subject to the other provisions of Chapter 8 of Title 2 of those Rules, the unsuccessful party is to bear his own costs and is to be ordered to pay the costs incurred by the other party if they have been applied for in the other party’s pleadings. Under Article 102(1) of those Rules, if equity so requires, the Tribunal may decide that an unsuccessful party is to bear his own costs, but is to pay only part of the costs incurred by the other party, or even that he is not to be ordered to pay any costs.
158It follows from the grounds set out in this judgment that the Authority is the party which must be regarded as unsuccessful in part. Moreover, in her pleadings, the applicant has expressly applied for EIOPA to pay the costs. Furthermore, the circumstances of the case, particularly the fact that the applicant’s situation is partly due to a clerical error in the wording of the vacancy notice and that, consequently, the Authority incorrectly made her an offer of employment which it then unlawfully withdrew at the end of the probationary period, warrant an order that, in any event, pursuant to Article 102(2) of the Rules of Procedure, EIOPA should bear its own costs and should pay all of the applicant’s costs, even though the action was only partly successful.
Operative part
On those grounds,THE CIVIL SERVICE TRIBUNAL (First Chamber)hereby:
1.Annuls the decision of 24 February 2014 of the European Insurance and Occupational Pensions Authority in so far as:— in disregard, in a contractual relationship, of the acquired rights and terms of the contract, it retroactively rejects the application of Ms Murariu for the post of senior expert on personal pensions and impliedly withdraws the offer of employment, under a provisional assignment, already accepted by Ms Murariu, made to her on 17 July 2013;— it deprives Ms Murariu of the benefit of remuneration corresponding to grade AD 8 for the period of her provisional assignment from 16 September 2013 to 24 February 2014;
2.Dismisses the remainder of the claims for annulment;
3.Orders the European Insurance and Occupational Pensions Authority to compensate Ms Murariu for her material loss, suffered between 16 September 2013 and 24 February 2014, in an amount corresponding to the difference in remuneration between grades AD 6 and AD 8, together with default interest, to run from 16 September 2013, at the rate set by the European Central Bank for main refinancing operations during the relevant period and increased by two points;
4.Dismisses the remainder of the claims for compensation;
5.Orders the European Insurance and Occupational Pensions Authority to bear its own costs and to pay the costs incurred by Ms Murariu.
Delivered in open court in Luxembourg on 16 July 2015.
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