Contents
Judgment of the General Court (Fourth Chamber)28 April 2021note(Civil service — EESC staff — Members of the temporary staff — Refusal to regrade — Action for annulment — Time limit for lodging a complaint — Burden of proving expiry of the time limit — Act adversely affecting an official — Admissibility — Equal treatment — Legal certainty — Action for damages — Non-material damage)In Case T‑843/19,Paula Correia, residing in Woluwe-Saint-Étienne (Belgium), represented by L. Levi and M. Vandenbussche, lawyers,vEuropean Economic and Social Committee (EESC), represented by M. Pascua Mateo, X. Chamodraka and K. Gambino, acting as Agents, and by B. Wägenbaur, lawyer,THE GENERAL COURT (Fourth Chamber),composed of S. Gervasoni, President, P. Nihoul and R. Frendo (Rapporteur), Judges,Registrar: L. Ramette, Administrator,having regard to the written part of the procedure and further to the hearing on 13 January 2021,gives the following
Judgment
Background to the dispute
1The European Economic and Social Committee (EESC) is a consultative body representing European organisations of employers, employees and other participants in civil society, particularly in the socio-economic, civic, professional and cultural domains. It is made up of three groups: the employers’ group (‘group I’), the workers’ group and the ‘Diversity Europe’ group. Each of those groups has its own secretariat, to which temporary staff are recruited under Article 2(c) of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’).
2On 11 July 2000, the applicant, Ms Paula Correia, was engaged as a member of the temporary staff within group I in Grade C3 (now AST 4), taking up her post on 1 September 2000, pursuant to a contract for an indefinite period within the meaning of Article 2(c) of the CEOS.
3On 9 January 2008, the applicant was regraded from Grade AST 4, Step 5 to Grade AST 5, Step 1, with effect from 1 January 2007. On 18 January 2016, she was regraded from Grade AST 5, Step 3 to Grade AST 6, Step 1, with effect from 1 January 2016.
4On 26 March 2019, a meeting took place between the applicant and the President of group I (‘the meeting of 26 March 2019’). On 28 March 2019, an interview took place between the applicant and the ad interim Director of Directorate E (‘Human Resources and Finance’) of the EESC (respectively ‘the meeting of 28 March 2019’ and ‘the Human Resources Directorate’).
5On 12 April 2019, the applicant attended an interview with her Head of Unit concerning the reporting procedure for the year 2018 (‘the meeting of 12 April 2019’).
6On 10 July 2019, the applicant lodged a complaint (‘the complaint’) pursuant to Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), against the decision not to regrade her in Grade AST 7 in 2019 (‘the contested decision’). In the complaint, she stated (amongst other things) that she did not know the date on which that decision had been adopted.
7On 21 October 2019, the EESC sent the applicant a letter informing her that the authority authorised to conclude contracts of employment (‘the AACC’) would not be able to respond to her complaint within the time limit prescribed by Article 90(2) of the Staff Regulations.
8On 10 November 2019, the complaint was dismissed by implied decision.
9On 16 January 2020, the EESC notified the applicant that her complaint was dismissed (‘the decision on the complaint’).
Procedure and forms of order sought
10By application lodged at the Court Registry on 12 December 2019, the applicant brought the present action. The defence, reply and rejoinder were lodged on 16 March, 30 June and 17 July 2020, respectively.
11The applicant claims that the Court should:– annul the contested decision;– order the EESC to compensate her for the non-material damage caused by the decision, assessed ex aequo et bono at EUR 2000;– order the EESC to pay the costs.
12The EESC contends that the Court should:– dismiss the action;– order the applicant to pay the costs.
13By letter lodged at the Court Registry on 5 January 2021, the applicant made two observations on the Report for the hearing, one of which concerned the issue of whether a meeting took place on 28 March 2019.
14The parties presented oral argument and answered the questions put to them by the Court at the hearing on 13 January 2021.
15As regards the letter referred to in paragraph 13 above, the applicant indicated at the hearing that she no longer disputed that a meeting took place on 28 March 2019, but that she did dispute the subject matter of that meeting. In response to the applicant’s observations on the Report for the hearing, the EESC produced, at the hearing, an email of 15 March 2019, from the President of group I to the Secretary General of the EESC (‘the Secretary General’), with a view to establishing what had been discussed at the meeting of 28 March 2019 (‘the email of 15 March 2019’). The applicant submitted that that document was inadmissible on the basis that it had been produced out of time. The Court added the document to the file, without prejudice to the examination of its admissibility.
Law
Admissibility of the action
16In its defence, the EESC raises a plea of inadmissibility on the basis that the applicant did not lodge the complaint against the contested decision within the three-month time limit laid down by Article 90(2) of the Staff Regulations. It submits in that regard that, at the meeting of 26 March 2019, the President of group I informed the applicant of his decision not to propose to the Secretary General that she should be regraded in the 2019 exercise. It argues that it is only that decision which constitutes an act adversely affecting the applicant, in that it resulted in her losing any chance of being regraded in 2019, and that the complaint lodged on 10 July 2019 is therefore inadmissible, as is the present action.
17The applicant opposes the plea of inadmissibility raised by the EESC, arguing essentially that the meeting of 26 March 2019 related only to the reconstitution of her career, and not to the decision not to regrade her. At the hearing she added that, as it was an informal meeting, it could not be regarded as an occasion for communicating a decision relating to a specific individual within the meaning of the second paragraph of Article 25 of the Staff Regulations. Furthermore, as decisions concerning the regrading of members of the temporary staff assigned to the EESC are not published, the applicant is not, she states, in a position to know the date on which the contested decision was adopted. She states that it came to her knowledge incidentally during a meeting of 12 April 2019, which related to the 2018 reports procedure.
18Accordingly, the applicant considers that her complaint under Article 90(2) of the Staff Regulations against the contested decision, which was submitted on 10 July 2019, cannot be regarded as having been lodged out of time, and therefore that her action is admissible.
19In the reply, the applicant states that, in the decision on the complaint, which was communicated to her on 16 January 2020 (after the present action had been brought), the EESC did not state that her complaint was inadmissible. In that way, she argues, the EESC impliedly admitted that she had not been informed of the contested decision until the meeting of 12 April 2019.
20In that regard, it must be observed from the outset that, notwithstanding the plea of inadmissibility raised in the defence, the EESC expressly acknowledged, in the sixth subparagraph of paragraph 5 of the decision on the complaint, that the applicant was made aware of the contested decision at the meeting of 12 April 2019, as she maintains.
21However, according to settled case-law, and as the EESC pointed out at the hearing, the time limits for the complaint and the action, laid down in Articles 90 and 91 of the Staff Regulations, are mandatory and cannot be left to the parties and the court, which must verify, if necessary on its own initiative, whether they have been complied with (see judgments of 8 September 2008, Kerstens v Commission, T‑222/07 P, EU:T:2008:314, paragraph 53 and the case-law cited, and of 12 December 2019, Feral v Committee of the Regions, T‑529/16, not published, EU:T:2019:851, paragraph 34 and the case-law cited).
22Under Article 90(2) of the Staff Regulations, which is applicable to members of the temporary staff by virtue of Article 46 of the CEOS, complaints must be lodged within three months starting ‘on the date of notification of the decision to the person concerned, but in no case later than the date on which the latter received such notification, if the measure affects a specified person’, as it does in the present case.
23Furthermore, the Court has consistently held that it is for the party relying on expiry of the time limit, here the EESC, to prove the date on which time began to run (see order of 7 September 2005, Krahl v Commission, T‑358/03, EU:T:2005:301, paragraph 53, and judgment of 9 July 2020, Commission v HM, C‑70/19 P, not published, EU:C:2020:544, paragraph 123 and the case-law cited).
24Equally, it is well established in the case-law that evidence of the point at which the person concerned had knowledge of the decision may be obtained from circumstances other than formal notification of the decision. In that regard, while such evidence cannot be obtained simply from circumstantial factors suggesting that the applicant received the decision, it can be obtained, in particular, from an email from the applicant from which it is undoubtedly clear that he or she had had effective knowledge of the decision before the date alleged (see, to that effect, judgment of 15 February 2012, AT v EACEA, F‑113/10, EU:F:2012:20, paragraph 39 and the case-law cited).
25In that regard, the EESC relies on an exchange of emails between the applicant and the Human Resources Directorate, and on an extract from the directorate’s electronic diary. At the hearing, the EESC indicated that it also wished to rely on a further piece of evidence, an email of 15 March 2019.
26In relation, first, to the exchange of emails attached to the defence, it is apparent from the file that, on 26 March 2019, the applicant sent the Human Resources Directorate a request in the following terms:‘[The President of group I] just informed me that following your last conversation, I should contact you in order to ask for an appointment. The reason for this request is to look for a way forward for the reconstitution of my career and my reclassification.’
27The EESC submits that the applicant would not have requested that urgent meeting if she had not become aware, that same day, that she was not to be put forward for regrading in the 2019 exercise.
28In the reply, the applicant stated that she had sent that email following a conversation with the President of group I, who had come to her office. In the presence of another colleague, he had advised her to contact the personnel department in relation to the reconstitution of her career. As regards the use of the word ‘reclassification’ in that email, the applicant observed, at the hearing, that the career reconstitution procedure necessarily involves regrading.
29On 27 March 2019, the personnel department replied to the email from the applicant referred to in paragraph 26 above, in the following terms:‘Following your request, could you please tell me when we could meet to discuss your career situation …’
30It must be observed, in the light of the case-law referred to in paragraph 24 above, that that exchange of emails, in itself, does nothing to establish the subject matter of the meeting of 26 March 2019. Accordingly, it is not, by nature, evidence that the contested decision was brought to the applicant’s attention at that meeting, as the EESC claims.
31As is apparent from the explanation given by the applicant at the hearing (see paragraph 28 above), the simple fact that she referred to regrading in the email of 26 March 2019 does not mean that she undoubtedly became aware of the contested decision on the date alleged by EESC. That is all the more so for the fact that, in that email, the applicant was simply concerned with ‘look[ing] for a way forward’ for her regrading, and not with a refusal to regrade her, which is an entirely understandable approach in the context of a request for reconstitution of her career.
32Second, in addition to this exchange of emails the EESC produces an extract from the electronic diary of the personnel department which, it says, is evidence that a meeting of about one hour took place on 28 March 2019 between the applicant and the personnel department. The EESC states that it informed the applicant, at that meeting, of the grounds of the contested decision, which had come to her knowledge on 26 March 2019. However, it should be observed, from the outset, that that statement conflicts with the decision on the complaint, as is apparent from paragraph 20 above.
33Furthermore, there is absolutely no evidence to support that statement. In particular, the extract from the electronic diary referred to in paragraph 32 above does not contain any details of the subject matter of the meeting of 28 March 2019 and the EESC has not produced any minutes of the meeting, or even a statement from the personnel department indicating the matters discussed at the meeting.
34Third, the EESC relies on the email of 15 March 2019, which it produced at the hearing, by which the President of group I proposed the regrading of two members of staff assigned to the secretariat of that group. It follows from that email, the EESC submits, that the contested decision must have come to the knowledge of the applicant at the meeting of 26 March 2019.
35In that regard, it should be observed that Article 85(3) of the Rules of Procedure of the General Court provides, amongst other things, that the parties may offer further evidence before the oral part of the procedure is closed, provided that the delay in the submission of such evidence is justified.
36In the present case, however, the EESC has not justified the delay in offering the evidence referred to in paragraph 34 above. That is particularly so in view of the fact that, from as early a stage as the submission of the reply, the applicant had disputed the assertion in the EESC’s defence as to the subject matter of the meeting of 28 March 2019. It follows that the email of 15 March 2019 must be considered, for the purposes of Article 85(3) of the Rules of Procedure, to have been produced late, and must therefore be disregarded as being inadmissible.
37In any event, it must be observed that the email of 15 March 2019 is merely a proposal for regrading from the President of group I which, as a preparatory act, does not constitute the decision by which the Secretary General, in his capacity as AACC, refused to regrade the applicant.
38In that regard, it must be observed that the acts or decisions in respect of which an action for annulment may be brought are limited to those measures which produce binding legal effects such as to affect the interests of the applicant by bringing about a distinct change in his or her legal position. Where the acts or decisions in question are formulated in several stages, for example in the course of an internal procedure such as that relating to the procedure for regrading of members of the temporary staff, the only acts which can be challenged are the measures definitively determining the position of the institution at the conclusion of that procedure. By contrast, the intermediary measures whose purpose is to prepare the final decision are not acts adversely affecting an official within the meaning of Article 90(2) of the Staff Regulations and can only be challenged incidentally in an action against the acts capable of being annulled (see, by analogy, judgments of 5 March 2003, Staelen v Parliament, T‑24/01, EU:T:2003:52, paragraph 32 and the case-law cited, and of 21 September 2015, Anagnostu and Others v Commission, F‑72/11, EU:F:2015:103, paragraph 38).
39It must be observed that, even if the lack of any mention of the applicant in the email of 15 March 2019 can be regarded as a decision on the part of the President of group I not to put her forward to the Secretary General for regrading, that act constitutes only one of the successive stages of the regrading procedure which culminates, as the case may be, in the decision to regrade other members of the temporary staff – a decision which, moreover, is required to be published under the third subparagraph of Article 25 of the Staff Regulations, which is applicable to members of the temporary staff by virtue of Article 11 of the CEOS. It is only when the duly published list of regraded members of the temporary staff is established that the legal position of members of the temporary staff eligible for regrading can be affected. It follows that the group I President’s proposals are acts preparatory to the decision of the AACC establishing the list of regraded members of the temporary staff (see, to that effect and by analogy, judgments of 19 March 2003, Tsarnavas v Commission, T‑188/01 to T‑190/01, EU:T:2003:77, paragraph 73 and the case-law cited, and of 21 September 2015, Anagnostu and Others v Commission, F‑72/11, EU:F:2015:103, paragraph 39).
40However, given that it is common ground that decisions of the Secretary General concerning the regrading of members of the temporary staff were not published in accordance with the third paragraph of Article 25 of the Staff Regulations, and that the EESC stated at the hearing that it did not know the date on which the Secretary General, in his capacity as AACC, adopted his decision on the regrading proposals contained in the email of 15 March 2019, the applicant was even less in a position to know when the contested decision had been taken. It follows that the EESC cannot legitimately argue that the applicant had effective knowledge of the contested decision no later than 26 March 2019. Accordingly, the complaint was not made out of time.
41The EESC’s plea of inadmissibility must consequently be dismissed, and the present action declared admissible.
The claim for annulment
42In support of her claim for annulment, the applicant indicates that she raises four pleas in law. In the light of the content of the application, however, five pleas should be identified. The first plea essentially alleges breach of the obligation to state reasons for the contested decision. The other four are based, respectively, on a breach of the principle of equal treatment (second plea), a breach of the principle of legal certainty (third plea), a manifest error of assessment (fourth plea) and breach of the duty to have regard for the welfare of officials (fifth plea).
43In the circumstances of the case, the Court considers it appropriate to begin by examining, together, the second and third pleas, which are based respectively on a breach of the principle of equal treatment and a breach of the principle of legal certainty.
44Essentially, the applicant argues that the EESC breached the principle of equal treatment, under which it was obliged to lay down objective and transparent criteria such that members of the temporary staff were in a position to know the regrading arrangements applicable to them, and that the absence of a clear, precise, foreseeable and transparent procedure in that regard constitutes a breach of the principle of legal certainty.
Admissibility of the second and third pleas
45The EESC raises an objection of inadmissibility in relation to the second and third pleas, on the basis that the applicant has not explained how the lack of written rules concerning the regrading of members of the temporary staff adversely affects her personally, and that her arguments in support of those pleas are therefore advanced in the sole interests of the law and, consequently, must be regarded as inadmissible.
46In that regard, it should be observed that while, under settled case-law, an official is not entitled to act in the interests of the law or of the institutions and may put forward, in support of an action for the annulment of a measure, only such claims as relate to him or her personally, it is sufficient that the unlawfulness pleaded affected his or her legal situation for a claim based on that unlawfulness to be regarded as one which relates to him or her personally (judgment of 10 November 2011, Merhzaoui v Council, F‑18/09, EU:F:2011:180, paragraph 63). In the present case, the applicant’s argument is precisely that her personal legal situation was affected by the lack of clear and precise criteria for the regrading of members of the temporary staff in the 2019 regrading exercise, and that that constituted a breach of the principles of equal treatment and legal certainty. It follows that the second and third pleas are admissible.
Merits of the second and third pleas
47The principle of legal certainty seeks to ensure that situations and legal relationships arising under EU law remain foreseeable (judgment of 3 July 2019, PT v EIB, T‑573/16, EU:T:2019:481, paragraph 233) and requires that any act of the administration which produces legal effects should be clear and precise, so that those concerned may be able to ascertain unequivocally what their rights and obligations are and may take steps accordingly (see, to that effect, judgment of 27 January 2016, DF v Commission, T‑782/14 P, EU:T:2016:29, paragraph 45 and the case-law cited). That requirement applies, in particular, where the act in question may have unfavourable consequences for those concerned (see, to that effect, judgment of 11 May 2017, Deza v ECHA, T‑115/15, EU:T:2017:329, paragraph 135).
48In that context, it must be observed that the EESC, by Decision No 114/16A adopting promotion rules, laid down written, codified rules for the regrading of contract staff and officials.
49In contrast, it is common ground that the EESC did not adopt any decision of that kind in relation to the regrading of members of the temporary staff. Thus there is no binding text or any other document specifying the evaluation material on the basis of which members of the temporary staff may be regraded, any link which may exist between the system for assessment of members of the temporary staff put in place by the EESC and the possibilities of regrading, or indeed the safeguards relating to the examination of individual situations prior to the adoption of decisions in that area.
50The EESC claims however that there is a well-established practice in relation to the regrading of members of the temporary staff, which is known to them and meets the requirements of the CEOS and the case-law. The applicant disputes that any such practice exists and, in any event, submits that it would not comply either with the principle of equal treatment or with the principle of legal certainty.
51Rule 80(3) of the Rules of Procedure of the EESC states that the powers of the AACC as regards the application, in particular, of Article 10(3) of the CEOS, governing the regrading of members of the temporary staff, are exercised by the Secretary General, on the basis of proposals from the Presidents of the three EESC groups. Those proposals are themselves the result of proposals from the unit heads concerning the members of the temporary staff attached to their units and, moreover, are subject to budgetary constraints.
52The EESC indicated at the hearing that the practice on which it relies relates in particular to the procedural arrangements for the regrading exercise whereas, from a substantive point of view, the regrading of members of the temporary staff is based on a comparison of merits and is carried out in accordance with the principle of equal treatment. However, the EESC stated that its particular nature, and in particular the ‘eminently political’ nature of its composition, prevents it from adopting a system for regrading members of the temporary staff based on an assessment of merits, comparable to the system applicable to officials under Article 45 of the Staff Regulations. It added, in that regard, that the criteria which are relevant in the regrading exercise relating to members of the temporary staff are ‘fundamentally different’ from those to be taken into consideration in relation to the promotion of officials.
53In its written observations, the EESC also submits that, with regard to the regrading of members of the temporary staff in the three groups making it up, it takes into consideration, amongst other things, the availability of budget posts and the promotion multipliers in Annex I, Part B of the Staff Regulations, so as to take account of the seniority of members of staff in their grade (the average time served in a grade being four years).
54Under the case-law, the institutions have freedom of choice as to the organisation and management of staff, and notably, as a consequence of that, are not obliged to adopt one particular appraisal and regrading system rather than another (see, to that effect, judgment of 14 February 2007, Simões Dos Santos v OHIM, T‑435/04, EU:T:2007:50, paragraph 132 and the case-law cited), provided that they observe the general principles of EU law, in particular the principle of equal treatment.
55Furthermore, the CEOS do not contain any specific provision, analogous to that applicable to officials under Article 45 of the Staff Regulations, concerning the regrading of members of the temporary staff. In that regard, the EESC rightly submits that the rules applicable to the regrading of members of the temporary staff cannot be identical to those applicable to officials. Members of the temporary staff do not have the same right as officials to reasonable career prospects within their institution (as to the right of officials to reasonable career prospects within their institution, see judgment of 28 June 2007, Da Silva v Commission, F‑21/06, EU:F:2007:116, paragraphs 70, 71 and 76). Similarly, the assessment of the professional merits of members of the temporary staff recruited, like the applicant, on the basis of Article 2(c) of the CEOS may be based on evaluation material which takes account of the specific nature of their employment relationship with the institution, especially the existence of any particular relationship of trust and, where relevant, the political context in which they perform their duties.
56It remains the case however that any regrading procedure must be carried out in accordance with general principles of law such as the principle of equal treatment, also enshrined in Article 21 of the Charter of Fundamental Rights of the European Union, to which all bodies, offices, agencies and institutions of the European Union are subject, and the principle of legal certainty (see judgments of 13 July 2018, K. Chrysostomides & Co. and Others v Council and Others, T‑680/13, EU:T:2018:486, paragraph 440, and of the 3 July 2019, PT v EIB, T‑573/16, EU:T:2019:481, paragraph 233 and the case-law cited). This, incidentally, has not been disputed by EESC.
57In that regard, it is settled case-law that the principle of equal treatment is a general and fundamental principle of EU law and means that comparable situations should not be treated differently unless such different treatment is objectively justified, and that situations which are not comparable should not be treated the same way. The principle of equal treatment is breached where, although there is no essential difference in the factual and legal position of two categories of persons, they are treated differently, or where different situations are treated the same way (see, to that effect, judgment of 20 February 2009, Commission v Bertolete and Others, T‑359/07 P to T‑361/07 P, EU:T:2009:40, paragraphs 37 and 38 and the case-law cited).
58Compliance with that principle requires the institution, body, office or agency of the European Union to ensure that it has a set of evaluation material, such as staff reports, available to provide the basis for its assessment of merits, so as to avoid arbitrariness and ensure equal treatment of candidates eligible for promotion (see, to that effect and by analogy, judgment of 15 December 2015, Bonazzi v Commission, F‑88/15, EU:F:2015:150, paragraph 61 and the case-law cited).
59Furthermore, while, in accordance with the case-law cited in paragraph 54 above, the institutions have a discretion, it is nevertheless for the EU judicature to review whether the institution, body, office or agency of the European Union in question – in this case the EESC – has complied with the principles of equal treatment and legal certainty as regards the organisation of the regrading exercise relating to members of the temporary staff and, in particular, as regards the comparative examination on which that exercise is based (see, to that effect, judgments of 13 July 2018, K. Chrysostomides & Co. and Others v Council and Others, T‑680/13, EU:T:2018:486, paragraph 440, and of 3 July 2019, PT v EIB, T‑573/16, EU:T:2019:481, paragraph 233 and the case-law cited).
60As is apparent from paragraph 49 above, the EESC has not put evaluation material in place enabling a comparison of the merits to be conducted in accordance with the principle of equal treatment. The considerations set out in paragraph 53 above are not sufficient to decide between the members of the temporary staff who are candidates for regrading. The EESC’s practice in this area thus fails to guarantee that regrading proposals are made on the same basis by all unit heads and group presidents, and that the decisions of the Secretary General as AACC comply with the principle of equal treatment.
61The lack of evaluation material is all the more objectionable for the fact that, as noted in paragraph 40 above, regrading decisions are not published internally, within the EESC, in accordance with the third paragraph of Article 25 of the Staff Regulations, which again is a breach of the principle of legal certainty.
62In that regard, it must be observed that the obligation of transparency is the corollary of the principle of equal treatment, as it is intended to guarantee a level of publicity sufficient to enable review of impartiality and non-arbitrariness on the part of administration (see, to that effect and by analogy, judgment of 15 April 2011, IPK International v Commission, T‑297/05, EU:T:2011:185, paragraph 124).
63It follows that the EESC’s non-publication of regrading decisions is not only contrary to the Staff Regulations, but also infringes the rights of members of the temporary staff assigned to the secretariats of the various EESC groups, in that it prevents review of the impartiality of the administration in relation to a regrading procedure.
64The applicant submits in that regard that, in comparison to colleagues who are also attached to the secretariats of the three EESC groups, her career progression has been particularly slow. In 19 years, her grade has only changed twice, once with effect from 1 January 2007 and once with effect from 1 January 2016.
65In support of her submissions, the applicant produces a table of comparison which she has drawn up, intended to demonstrate that the career progression of other members of the temporary staff employed within the three EESC groups has been faster than hers.
66It does not appear from the applicant’s table that either the regrading criterion – for members of the temporary staff – of four years’ service in grade, or indeed the principle of equal treatment, on which the EESC seeks to rely (see paragraph 53 above) were in fact applied. The table shows significant differences in the pace of regrading as between different members of the temporary staff attached to the secretariats of the three EESC groups. For example, as regards group I, to which the applicant is attached, the table shows that one member of the temporary staff progressed by three grades (from AST 2 to AST 5) in barely two years, while another made comparable progress (from AST 3 to AST 6) in almost six years. The same is true in relation to members of the temporary staff assigned to the secretariat of the workers group, whose career progression showed even more pronounced differences. It appears for instance that, in that group, one member of the temporary staff progressed by two grades (from AST 4 to AST 6) in 6 years, while another progressed by three grades (from AST 4 to AST 7) in 19 years.
67The EESC has not put forward any argument refuting the contents of the table or the applicant’s arguments as to the differences in the pace of career progression of members of the temporary staff assigned to the EESC group secretariats, particularly the group I secretariat. In particular, the EESC has produced nothing to indicate that the criteria on which it claims to base the regrading of members of the temporary staff – namely the availability of posts and the rule of seniority in grade – are applied in a manner consistent with the principle of equal treatment.
68In a case where there are numerous and sufficiently consistent indications supporting the applicant’s arguments, it is for the defendant institution to prove the existence of a practice which is compliant with that principle, by means of objective material which is capable of being reviewed by the court (see, to that effect and by analogy, judgment of 8 November 2018, RA v Court of Auditors, T‑874/16, not published, EU:T:2018:757, paragraph 56).
69It must be observed however that in describing the organisation of the 2019 regrading exercise, the EESC has given only an evasive explanation of the method used by the AACC to compare the merits of members of the temporary staff who were candidates for regrading. Its explanation does not enable it to be determined how, or on what basis, the AACC, or indeed the President of group I, could have conducted that comparison of the merits in the light of evaluation material reflecting the structure, needs and particular organisation of the EESC (see, to that effect and by analogy, judgment of 8 November 2018, RA v Court of Auditors, T‑874/16, not published, EU:T:2018:757, paragraph 57).
70Those considerations are not called into question by the other arguments put forward by the EESC.
71In the first place, the EESC submits that it is not possible for it to lay down rules for the regrading of members of the temporary staff resembling those applicable to the promotion of officials, based entirely on a system of comparison of merits, because the regrading of members of the temporary staff within the EESC is based on different considerations. In that regard, it relies on various organisational constraints.
72First, the EESC submits that members of the temporary staff are only regraded where there has been a distinct change in the tasks they carry out. Second, it observes that members of the temporary staff assigned to the EESC fall under a different budget line from officials, as they are appointed to non-permanent posts. In that respect, regrading is always subject to the availability of funds from an annual budget. Third, and consequently, given that the number of posts to be filled by members of the temporary staff is subject to a ceiling imposed by budget constraints, a member of the temporary staff can only be regraded if there is a vacant position at the new grade. In that regard, the EESC observes, in particular, that a regrading system which, like the system for promotion of officials, was based on a comparison of merits, would not ensure an even distribution of the functions corresponding to grades AST 1 to AST 9 within the EESC, particularly where staff numbers are very low, as they are in the secretariats of the groups which make it up.
73However, it must be stated that the constraints relied on by the EESC are not, in themselves, either specific to the structure and organisation of the secretariats of those groups, or insurmountable, and cannot be regarded as preventing the introduction of clear, objective and transparent evaluation material for the procedure for regrading of members of the temporary staff, capable of ensuring compliance with the principles of legal certainty and equal treatment.
74As regards the budgetary considerations relied on by the EESC, it must be observed that those cannot, in themselves, justify the lack of a procedure or of clear, precise and non-discriminatory internal rules concerning the regrading of members of the temporary staff (see, to that effect and by analogy, judgment of 20 July 2016, RN v Commission, F‑104/15, EU:F:2016:163, paragraph 72).
75In the second place, at the hearing the EESC submitted that, in so far as it was an ‘eminently political’ body, the merits to be taken into account in the regrading of its temporary staff are different from those to be taken into account in the promotion of officials, a procedure governed by Article 45 of the Staff Regulations.
76It is true, as is apparent from paragraphs 54 and 59 above, that the institutions are free to define the evaluation material in accordance with their particular service needs and specific organisational features, and are not required to apply the rules relating to the promotion of officials to the regrading of temporary staff.
77In that regard, the EESC observes that, while the first subparagraph of Article 16 of the CEOS makes Article 45 of the Staff Regulations applicable to members of the temporary staff assigned to European Parliament political groups, and not to those assigned to EESC groups, the Article 45 criteria, under which merits are compared and seniority in grade is taken into account, are principles inherent to all internal directives concerning EESC staff.
78Nevertheless, first, that general assertion does not make it possible either to understand how the criteria laid down in Article 45 of the Staff Regulations are applied to the regrading of members of the temporary staff assigned to the EESC, or to verify that they were in fact applied in the present case.
79Second, and in any event, there would appear to be a contradiction between that assertion and the argument, advanced by the EESC at the hearing, that its ‘eminently political’ nature prevents it from introducing a system for regrading of members of the temporary staff based on a comparison of merits, analogous to the promotion system provided for in Article 45 of the Staff Regulations. Furthermore, it suffices to observe that, given that that article, read in conjunction with the first subparagraph of Article 16 of the CEOS, provides for a promotion system based on merits for, amongst others, members of the temporary staff assigned to parliamentary political groups – which are political groups par excellence – the EESC cannot argue that the political nature of the groups of which it is composed prevents it from adopting a system for comparing the merits of members of the temporary staff assigned to those groups.
80It is incumbent on the institutions, bodies, offices and agencies of the European Union, in the exercise of the organisational freedom referred to in paragraphs 54 and 59 above, to define the evaluation material to be used in the comparison in advance, so as to comply with the principles of equal treatment and legal certainty while taking account of their particular service needs. It follows that the EESC is not justified in arguing that it is impossible, because of its specific nature, for it to adopt evaluation material for use in the assessment of the merits which is transparent, foreseeable and non-discriminatory, so as to enable its staff to assess the legality of regrading decisions, and to enable the Court to review the legality of such decisions in the light of the principles of legal certainty and equal treatment.
81In those circumstances, it is appropriate to uphold the second and third pleas and, in consequence, to annul the contested decision, on the basis that it breaches the principles of equal treatment and legal certainty, and there is no need to examine the other pleas raised by the applicant in relation to her claim for annulment.
The claim for damages
82The applicant submits that she suffered non-material damage by reason of the uncertain situation in which she found herself with regard to her career progression, and that this resulted from the EESC’s failure to adopt clear, transparent and non-discriminatory criteria for the regrading of members of the temporary staff. She submits that there will always be doubt as to how the merits she would have been able to demonstrate, if clear and precise criteria had been laid down in advance, would have been assessed. She accordingly seeks an order for the EESC to pay her compensation assessed ex aequo et bono in the sum of EUR 2000.
83The EESC submits that the arguments advanced by the applicant in relation to the claim for damages are unfounded. First, the EESC has not committed an unlawful act of such a kind as to cause damage to the applicant. Second, given that the contested decision was adopted against a background which was known to the applicant, she cannot rely on uncertainty with regard to her career development as a basis for her claim for damages.
84As a preliminary observation, it must be recalled that, in order for liability to arise on the part of an institution, organ or body of the European Union, a number of conditions must be satisfied. Thus, the conduct of which the institution, organ or body is accused must be unlawful, actual damage must have been suffered, and there must be a causal link between the alleged conduct and the damage pleaded, those three conditions being cumulative (see judgment of 3 October 2019, DQ and Others v Parliament, T‑730/18, EU:T:2019:725, paragraph 47 and the case-law cited).
85In the present case, the three cumulative conditions referred to in paragraph 84 above, namely unlawful conduct on the part of the EESC, damage suffered by the applicant, and a causal link between the conduct and the damage, are met.
86According to the 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 or she 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 judgments of 19 May 2015, Brune v Commission, F‑59/14, EU:F:2015:50, paragraph 80 and the case-law cited, and of 16 July 2015, Murariu v AEAPP, F‑116/14, EU:F:2015:89, paragraph 150 and the case-law cited).
87However, in the present case, the annulment of the contested decision cannot, in itself, constitute full compensation for the non-material damage suffered by the applicant.
88It is true that, under Article 266 TFEU, the EESC is required to implement the present judgment by basing the procedure for regrading of members of the temporary staff on evaluation material that is clear, transparent and non-discriminatory. Nonetheless, the illegality arising from the lack of such material prior to the bringing of this action cannot easily be rectified after the event. It is impossible to predict the nature of the evaluation material which will be adopted by the EESC, and difficult to determine how the applicant’s performance will be assessed in the light of that material. Thus, whatever system the EESC may adopt, doubt will remain as to the applicant’s prospects of retroactive regrading and, potentially, as to how she might have performed if the evaluation material to be used for the purposes of regrading had been defined from the outset. That doubt constitutes damage arising directly from the unlawful conduct of the EESC, and the measures that the EESC will have to take by way of implementation of the judgment cannot compensate the applicant for the uncertainty she feels as to her career development (see, to that effect and by analogy, judgment of 12 May 2011, AQ v Commission, F‑66/10, EU:F:2011:56, paragraph 110).
89In those circumstances, the Court, assessing the damage thus suffered by the applicant ex aequo et bono, considers that, as the applicant has submitted, a sum of EUR 2000 constitutes appropriate compensation for the non-material damage suffered by reason of the unlawful conduct of the EESC.
Costs
90Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the EESC has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.
Operative part
On those grounds,THE GENERAL COURT (Fourth Chamber)hereby:
1.Annuls the decision of the European Economic and Social Committee (EESC) refusing to regrade Ms Paula Correia in the 2019 regrading exercise;
2.Orders the EESC to pay Ms Correia the sum of EUR 2000 in respect of the non-material damage she has suffered;
3.Orders the EESC to bear the costs of the proceedings.
Delivered in open court in Luxembourg on 28 April 2021.
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