QN v European Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice (T-484/22)

Contents

Judgment of the General Court (Tenth Chamber)22 November 2023^note(Civil service — Temporary staff — Reclassification — 2021 reclassification exercise — Decision not to reclassify — Guiding multiplication rates — General provisions for the implementation of Article 54 of the CEOS — Plea of illegality — Equal treatment — Liability)In Case T‑484/22,QN, represented by H. Tagaras, lawyer,vEuropean Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice (eu-LISA), represented by M. Chiodi, acting as Agent, and by A. Duron and D. Waelbroeck, lawyers,THE GENERAL COURT (Tenth Chamber),composed of O. Porchia, President, L. Madise and P. Nihoul (Rapporteur), Judges,Registrar: H. Eriksson, Administrator,having regard to the written part of the procedure,further to the hearing on 14 June 2023,gives the following

JudgmentOnly the paragraphs of the present judgment which the Court considers it appropriate to publish are reproduced here. As regards those matters which are omitted, reference is made to the judgment of the General Court of 22 November 2023, QN v eu-LISA (T‑484/22, EU:…).

1By his action based on Article 270 TFEU, the applicant, QN, seeks, first, annulment of the decision of the European Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice (eu-LISA) of 22 December 2021 not to reclassify him at the end of the 2021 reclassification exercise (‘the contested decision’) and, second, compensation for the loss he claims to have suffered as a result of the failure to reclassify him.

Background to the dispute

2On 1 March 2019, the applicant was recruited by eu-LISA to act as Head of the Corporate Services Unit as a member of its temporary staff under Article 2(f) of the Conditions of Employment of Other Servants of the European Union (‘CEOS’) and was classified in grade AD 9.

3On 28 February 2021, the applicant became eligible for reclassification.

4On 29 October 2021, eu-LISA published an administrative notice (‘the administrative notice’) concerning the launch of the reclassification exercise for temporary staff for 2021 (‘the 2021 exercise’).

5The applicant’s name was not included on the list of staff proposed for reclassification, published on 3 December 2021.

6On 14 December 2021, the applicant challenged the fact that he had not been put forward for reclassification before the Joint Reclassification Committee (‘the Joint Committee’). On 22 December 2021, the Joint Committee informed him that it would not be recommending him for reclassification.

7On the same day, the Executive Director of eu-LISA (‘the Executive Director’), as the authority empowered to conclude contracts of employment (‘the AECE’), published the list of reclassified staff for the 2021 exercise. The applicant’s name was not on that list.

8On 1 March 2022, the applicant lodged a complaint against the contested decision under Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), applicable by analogy to members of the temporary staff under Article 46 of the CEOS. That complaint was rejected by decision of the Chairman of the Management Board of eu-LISA of 25 June 2022 (‘the rejection decision’).

Forms of order sought

9The applicant claims that the Court should:– annul the contested decision and the rejection decision;– order eu-LISA to pay EUR 3000 in damages;– order eu-LISA to pay the costs.

10eu-LISA contends that the Court should:– dismiss the action as unfounded;– order the applicant to pay the costs.

Law…

The claims for annulment…

The first plea, alleging an error of law in the interpretation and application of the multiplication rate clause in Article 5(8) of the GIPs…

–Consideration of Section B of Annex I to the Staff Regulations and Annex II to the GIPs

28By this complaint, the applicant argues that, despite the wording of Annex II to the GIPs, the multiplication rate clause can only be interpreted as a mechanism to determine the number of positions available for the reclassification of staff.

29It is based in essence on a contextual interpretation of that clause and also takes into account its objectives.

30eu-LISA disputes the applicant’s arguments.

31In accordance with settled case-law, the interpretation of a provision of EU law requires account to be taken not only of its wording, but also of its context, and the objectives and purpose pursued by the act of which it forms part (judgment of 15 March 2022, Autorité des marchés financiers, C‑302/20, EU:C:2022:190, paragraph 63; see also judgments of 9 March 2023, Les Mousquetaires and ITM Entreprises v Commission, C‑682/20 P, EU:C:2023:170, paragraph 86 and the case-law cited, and of 16 March 2023, Towercast, C‑449/21, EU:C:2023:207, paragraph 31).

32In the first place, as regards the wording of Article 5(8) of the GIPs, it follows that the reclassification decision is conditional, first, upon the comparison of the merits, and second, upon the agency taking into account both the budgetary resources available for the exercise concerned and the need to respect ‘the multiplication rates for guiding average career equivalence, implemented as described in Annex II [to the GIPs]’.

33Similarly, under Article 5(5) and (7) of the GIPs, the list of staff proposed for reclassification and the recommendation of the Joint Committee must also not exceed those rates, implemented as described in Annex II to the GIPs.

34Annex II to the GIPs states that the multiplication rates for guiding average career equivalence set out in Section B of Annex I to the Staff Regulations must not be exceeded, noting that those rates apply on a five-year basis as from 1 January 2014. It also converts those rates into average seniority in each grade before reclassification to the higher grade. For grade AD 9 the rate is 25%, so the average seniority is four years.

35Therefore, Annex II to the GIPs, to which Article 5 of the GIPs refers, unequivocally lays down how the multiplication rates set out in Section B of Annex I to the Staff Regulations are to be applied during reclassification.

36The clear wording of Annex II thus contradicts the applicant’s argument.

37In the second place, as regards the context of the multiplication rate clause, the applicant considers that that clause is to be interpreted solely in the light of a number of provisions of the Staff Regulations. He argues in that regard that:– Annex II to the GIPs refers to Section B of Annex I to the Staff Regulations, which assigns multiplication rates to each grade;– since Section B of Annex I implements Article 6(2) of the Staff Regulations, the multiplication rates may only be used to calculate the number of vacant positions in each grade;– Article 5(8) and Annex II to the GIPs must therefore be interpreted on that basis, especially since Article 54 of the CEOS, which is hierarchically superior to the GIPs, also refers to multiplication rates in Section B of Annex I to the Staff Regulations; therefore, the interpretation of those rates in the light of the Staff Regulations takes precedence over any interpretation in the light of Annex II to the GIPs.

38In that respect, the contextual interpretation of the multiplication rate clause requires clarification of the interplay between the GIPs, Article 54 of the CEOS and the relevant provisions of the Staff Regulations – namely Article 6 thereof and Section B of Annex I thereto.

39First, the multiplication rate clause is included in the GIPs, which specify how Article 54 of the CEOS is to be implemented within eu-LISA.

40In that regard, the GIPs reflect the broad scope enjoyed by eu-LISA with regard to the reclassification of temporary staff (see, to that effect, judgments of 12 February 2020, WD v EFSA, T‑320/18, not published, EU:T:2020:45, paragraph 38 and the case-law cited, and of 28 April 2021, Correia v EESC, T‑843/19, EU:T:2021:221, paragraph 54).

41However, according to the case-law, when the agency has adopted, by an internal directive, a special system designed to ensure transparency in the reclassification process, by establishing the methods and procedure, the adoption of that system is tantamount to a voluntary curb on its discretion, from which it may not depart without setting out clearly the reasons which may justify that change, since otherwise the principle of equal treatment would be infringed (see, to that effect, judgment of 12 February 2020, WD v EFSA, T‑320/18, not published, EU:T:2020:45, paragraph 38 and the case-law cited; see also, by analogy, judgment of 9 November 2022, QM v Europol, T‑164/21, EU:T:2022:695, paragraph 87 and the case-law cited).

42Nevertheless, such an internal directive may not, under any circumstances, narrow the scope of the Staff Regulations or the CEOS or lay down rules which derogate from hierarchically superior provisions, such as the provisions of the Staff Regulations and the CEOS or the general principles of law (see judgments of 20 March 2018, Argyraki v Commission, T‑734/16, not published, EU:T:2018:160, paragraph 66 and the case-law cited, and of 15 February 2023, Freixas Montplet and Others v Committee of the Regions, T‑260/22, not published, EU:T:2023:71, paragraph 39 and the case-law cited).

43Still, the first paragraph of Article 54 of the CEOS makes the reclassification of temporary staff conditional upon the comparison of the merits and observance of the multiplication rates, stating that ‘multiplication rates … as set out for officials in Section B of Annex I to the Staff Regulations, may not be exceeded’.

44That provision – which is the only one in the CEOS to refer to multiplication rates and to Section B of Annex I to the Staff Regulations – does not specify how those rates are to be applied.

45By contrast, the second paragraph of Article 54 of the CEOS refers to the general provisions for the implementation of that article, which each agency must adopt in accordance with Article 110 of the Staff Regulations.

46Article 110(2) of the Staff Regulations lays down the procedures for the adoption of the general implementing provisions applicable to the agencies, entrusting the adoption of those provisions to the European Commission and stipulating that they apply by analogy to the agencies.

47In addition, Article 28(1) of Regulation (EU) 2018/1726 of the European Parliament and of the Council of 14 November 2018 on eu-LISA, and amending Regulation (EC) No 1987/2006 and Council Decision 2007/533/JHA and repealing Regulation (EU) No 1077/2011 (OJ 2018 L 295, p. 99), provides that the Staff Regulations and the rules adopted by agreement between the institutions of the European Union for giving effect to the Staff Regulations apply to the staff of eu-LISA.

48However, the GIPs were precisely adopted in accordance with Article 110(2) of the Staff Regulations and Article 54 of the CEOS, as well as, first, Article 20 of Regulation (EU) No 1077/2011 of the European Parliament and of the Council of 25 October 2011 establishing a European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (OJ 2011 L 286, p. 1), which was repealed and replaced, from 11 December 2018, by Article 28 of Regulation 2018/1726 referred to in paragraph 47 above, and, second, the ex ante agreement of the Commission of 16 December 2015 given to agencies, pursuant to Article 110(2) of the Staff Regulations, regarding implementing rules giving effect to Article 54 of the CEOS.

49The provisions referred to in paragraphs 46 and 47 above thus limit the scope that eu-LISA has to establish the rules for the reclassification of its staff.

50Furthermore, eu-LISA submits – without being contradicted by the applicant – that the GIPs have been approved by the Commission and are based on the provisions of the model decision for decentralised agencies and joint undertakings laying down general provisions for the implementation of Article 54 of the CEOS (‘the model decision’), which was adopted by the Commission and is contained in Annex I to Decision C(2015) 9563 final of the Commission of 16 December 2015, giving the Commission’s ex ante agreement to adoption by decentralised agencies and joint undertakings of general implementing provisions for Article 45 of the Staff Regulations.

51It should be noted in that respect that the provisions of the GIPs restate, in essence, those of the model decision. In particular, Article 5 of and Annex II to the GIPs reproduce the relevant provisions of that decision, which also make the reclassification of staff in grade AD 9 conditional upon minimum average seniority in the grade of four years.

52It follows from the foregoing that the conversion – in Annex II to the GIPs – of the multiplication rates set out in Section B of Annex I to the Staff Regulations into minimum average seniority in the grade restates the provisions adopted by the Commission, which are intended, pursuant to Article 110 of the Staff Regulations and Article 28(1) of Regulation 2018/1726, to apply in principle to all agencies.

53Second, with regard to the provisions of the Staff Regulations, it should be recalled that Section B of Annex I to the Staff Regulations establishes the ‘multiplication rates for guiding average career equivalence’ in the three function groups (AD, AST and AST/SC), by setting a specific rate for each grade in those groups. For grade AD 9 the rate is 25%.

54By contrast, Section B of Annex I to the Staff Regulations provides no details of the context in which those rates apply or how they are to be used.

55The only provision of the Staff Regulations referring to the rates set out in that annex is Article 6(2). According to Article 6(1) of the Staff Regulations, the establishment plan appended to the section of the budget related to each institution indicates the number of posts in each grade and each function group. In accordance with Article 6(2) of the Staff Regulations, without prejudice to the principle of promotion based on merit as laid down in Article 45 of the Staff Regulations, the plan ensures that for each institution, the number of vacant positions at every grade on 1 January of each year corresponds to the number of officials in the lower grade in active employment on 1 January of the preceding year, multiplied by the rates laid down in Section B of Annex I to the Staff Regulations for that grade. The rates apply on a five-year average basis as from 1 January 2014.

56Article 6(2) of the Staff Regulations thus provides that the multiplication rates are to be used to calculate the number of vacant positions for each grade and for each year in the establishment plan appended to the section of the budget of the institution concerned and that that number is to be taken into account for the promotion of officials.

57Although the first sentence of Article 45(1) of the Staff Regulations refers to Article 6(2) of the Staff Regulations, providing that the promotion of officials is to be by decision of the appointing authority in the light of the latter provision, that is not the case with Article 54 of the CEOS on the reclassification of staff, nor with any provision of the GIPs.

58In addition, Article 5 of the GIPs refers solely to how the multiplication rates are applied in Annex II to the GIPs – in other words, to the average seniority in the grade before reclassification calculated on the basis of those rates. It makes no mention of either Article 6 of the Staff Regulations or the number of positions per grade in the establishment plan. Accordingly, it cannot be concluded that Article 5 of the GIPs derogates from the relevant hierarchically superior provisions of the Staff Regulations or the CEOS.

59It follows from the foregoing contextual analysis that the multiplication rates, expressed as a percentage in Section B of Annex I to the Staff Regulations, serve two different purposes. First, under Article 6(2) of the Staff Regulations, they are used to calculate the annual number of vacant positions for each grade and thus the opportunities for promotion. Second, under Article 5(8) of and Annex II to the GIPs, they are used to determine the minimum average seniority in each grade, which is a condition for the reclassification of staff.

60However, for the promotion of officials, the General Court confirmed the dual purpose of multiplication rates by holding that they could, independently of Article 6(2) of the Staff Regulations, also be used to determine the average duration of a career in a grade (see, to that effect, judgment of 14 February 2017, Schönberger v Court of Auditors, T‑688/15 P, not published, EU:T:2017:76, paragraphs 121, 122 and 124).

61First, the General Court has stated that, under Article 6(2) of the Staff Regulations, the multiplication rates allowed the number of positions available for promotions to be calculated, and in that respect, they were applied on a five-year average basis (judgment of 14 February 2017, Schönberger v Court of Auditors, T‑688/15 P, not published, EU:T:2017:76, paragraph 121).

62Second, according to the Court, the same rates, converted into years, are used to determine the average career duration in a grade (judgment of 14 February 2017, Schönberger v Court of Auditors, T‑688/15 P, not published, EU:T:2017:76, paragraphs 121, 122 and 124). For that question, account should be taken of the multiplication rates applicable during the years in which the staff member was in the grade in question. Therefore, the limitation of the five-year basis provided for in Article 6(2) of the Staff Regulations does not apply (judgment of 14 February 2017, Schönberger v Court of Auditors, T‑688/15 P, not published, EU:T:2017:76, paragraph 121).

63It follows from the foregoing that it cannot be concluded from the provisions of the Staff Regulations and the CEOS relating to multiplication rates that, in the context of the reclassification of staff, those rates should only be used to calculate the number of positions open to reclassification, and cannot be used to set a minimum average seniority in each grade before reclassification.

64Therefore, the applicant’s argument is not supported either by the context of the multiplication rate clause.

65In the third place, regarding the objectives pursued by the multiplication rate clause, the applicant considers that it is designed to set a limit on the number of positions available for reclassification and thus to ensure a certain parallelism with officials with regard to career progression. The applicant submits that such an interpretation is not called into question by the fact that respect for the budgetary resources available, required, inter alia, by the GIPs and the establishment plan, has the same function, since the limit imposed by those resources and that establishment plan serves other interests.

66First, it is clear from Article 6(2) of the Staff Regulations that the multiplication rates express the progression of an average career and do not affect the principle of promotion based on merit (judgment of 13 March 2013, AK v Commission, F‑91/10, EU:F:2013:34, paragraph 71).

67However, the conversion of those rates into minimum average seniority in the grade is another way of regulating the average pace at which staff may be reclassified (see, to that effect, judgment of 14 February 2017, Schönberger v Court of Auditors, T‑688/15 P, not published, EU:T:2017:76, paragraphs 122 and 124), and thus pursues the same objective as Article 6(2) of the Staff Regulations.

68The second recital of the GIPs and of the model decision refers to the need to define specific coherent rules for the reclassification of temporary staff aiming, inter alia, at facilitating their mobility between agencies.

69Furthermore, the rules applicable to the reclassification of members of temporary staff cannot be identical to those applicable to officials, since members of the temporary staff do not have the same right as officials to reasonable career prospects within their institution (judgments of 28 April 2021, Correia v EESC, T‑843/19, EU:T:2021:221, paragraph 55, and of 27 April 2022, Correia v EESC, T‑750/20, not published, EU:T:2022:246, paragraph 80).

70By contrast with officials, whose security of tenure is guaranteed by the Staff Regulations, temporary staff are subject to specific conditions based on the contract of employment entered into with the institution concerned (judgment of 28 January 1992, Speybrouck v Parliament, T‑45/90, EU:T:1992:7, paragraph 90).

71Moreover, the recognition in the Staff Regulations of the reasonable career prospects of officials does not confer on them a subjective right to promotion, even if they satisfy all the requirements, since a promotion decision depends not only on the qualifications and abilities of candidates, but also on their assessment in comparison with other candidates eligible for promotion (see judgment of 27 April 2022, Correia v EESC, T‑750/20, not published, EU:T:2022:246, paragraph 85 and the case-law cited).

72The same necessarily applies to temporary staff, for the reasons set out in the case-law cited in paragraphs 69 and 70 above.

73Accordingly, it is not inconsistent to make the reclassification of staff conditional upon them spending on average a certain number of years in their grade, especially since, even with regard to the promotion of officials, who have reasonable career prospects within their institution, taking into account the number of positions available for promotions does not rule out the concomitant requirement for a minimum seniority in the grade (see, to that effect, judgment of 14 February 2017, Schönberger v Court of Auditors, T‑688/15 P, not published, EU:T:2017:76, paragraphs 121, 122 and 124).

74Second, by providing that the multiplication rates are used to calculate the number of vacant positions for each grade set out in the establishment plan, which is appended to the section of the budget of the institution concerned, Article 6(1) and (2) of the Staff Regulations establishes a direct link between the multiplication rates and the institution’s budget. However, it is impossible to conclude from the fact that, according to that text, the multiplication rates are a mechanism serving both to regulate the pace of career progression and the allocation of budgetary resources, that, in the context of the reclassification of staff, that pace can only be regulated by applying reclassification quotas, even indicatively, and that a minimum average seniority in the grade cannot be imposed.

75It is also clear from the foregoing that the applicant’s argument is not confirmed by the objective of the multiplication rate clause, namely the regulation of the average pace at which staff can be reclassified, which can be pursued by applying a minimum average seniority in the grade.

76Accordingly, the first complaint must be rejected.…

The second plea, in the alternative, based on a plea of illegality directed against the multiplication rate clause

91In the alternative, the applicant invokes a plea of illegality of the provisions of the GIPs requiring minimum average seniority in the grade. This plea in law is divided into two complaints.

–Infringement of Article 45 of the Staff Regulations, Article 54 of the CEOS, Article 4 of the GIPs and the principle of reclassification based on merit

92By this complaint, the applicant submits that the condition of minimum average seniority in the grade infringes the principle of reclassification based on merit, laid down in Article 45 of the Staff Regulations, Article 54 of the CEOS and Article 4 of the GIPs. The applicant considers that (i) merit is subject to that condition and its satisfaction does not depend solely on the person concerned, and (ii) that condition thus precludes entire grades from being reclassified, regardless of the merits of the staff eligible for reclassification.

93eu-LISA disputes the applicant’s arguments.

94Article 54 of the CEOS extends the principle of promotion based on merit laid down in Article 45 of the Staff Regulations to reclassification, while also requiring the administration not to exceed the multiplication rates. That dual requirement is restated in Articles 4 and 5 of the GIPs, respectively, which reproduce verbatim the relevant provisions of the model decision.

95The two reclassification criteria – namely the comparison of the merits and the minimum average seniority in the grade – are not purely individual criteria, since they depend on the merits and seniority, respectively, of the other eligible candidates in that grade.

96Furthermore, it is clear from the rejection decision that the candidates’ merits affect, first, the calculation of average seniority in the grade, since only the highest-ranked candidates, corresponding to the number of positions available in the establishment plan (‘the most deserving candidates’), are included in the calculation and, second, the possibility of reclassifying the most deserving candidates, who may have an individual seniority in the grade which is higher than the applicable average seniority.

97In that regard, in the rejection decision, eu-LISA used an example to explain the method applied in the 2021 exercise. According to that method, candidates are essentially ranked by a comparison of the merits, with eu-LISA selecting only the most deserving candidates. It then calculates the average seniority in the grade of the most deserving candidates. If the average seniority is insufficient, but one of the most deserving candidates has an individual seniority in the grade which is higher than the average seniority applicable, he or she may not be reclassified if a higher-ranked candidate has an individual seniority below that average seniority. In that case, none of the most deserving candidates are reclassified.

98Under that method, the application of the condition of average seniority in the grade could thus prevent the reclassification of a whole cohort of candidates in the same grade if the most deserving candidates collectively had an average seniority in their grade which was below the applicable threshold, and if the highest ranked of those candidates had an individual seniority in the grade which was below that average seniority. In that case, it would not be possible to reclassify lower-ranked candidates with an individual seniority above the minimum average seniority.

99Nevertheless, the method shows that the comparison of the merits remains the main criterion for reclassification. It is used to rank candidates according to their merits, and the ranking order then determines whether the average seniority in the grade prevents some or all of the cohort from being reclassified. In other words, if a staff member is one of the most deserving candidates but is not the highest ranked, and if that staff member has an individual seniority in the grade which is higher than the average seniority, he or she may not be reclassified if that average seniority is not achieved collectively by all of the most deserving candidates and if the highest-ranked members of that cohort have a seniority which is below the average seniority. If so, it is then the merits, and not seniority alone, that prevent the reclassification of the most experienced staff member in the grade.

100eu-LISA was therefore correct to note in the rejection decision that the average seniority in the applicable grade in no way compromised the reclassification of the most deserving candidates.

101As to the applicant’s grade, it stated that:– it considered the comparative merits of the eligible staff in each grade, following which it examined the condition of average seniority in the grade;– that condition was not satisfied in grade AD 9, since each of the seven eligible staff, including the applicant, had spent on average only two years in that grade, whereas the average seniority had to be four years;– under Article 5(5) of the GIPs, the failure to satisfy that condition prevented it from reclassifying staff in that grade;– it therefore decided not to propose any staff member in grade AD 9 for reclassification.

102It follows that the merits of eligible staff in grade AD 9 were considered during the first stage of the reclassification procedure, before the list of proposed staff was drawn up. However, the merits are not the reason for the non-reclassification: that was due to the insufficient average seniority of all eligible staff in that grade, since the seniority of each of them, including the applicant, was around half the applicable minimum average seniority.

103It should be recalled that, first, the condition of minimum average seniority in the grade provided for by the GIPs reproduces that contained in the model decision and is aimed at maintaining an average career equivalence by regulating the pace at which an agency can reclassify its most deserving staff. Second, pursuant to Article 6(2) of the Staff Regulations, the fact that the pace at which officials may be promoted is governed by a condition of average seniority in the grade based on multiplication rates does not affect the principle of promotion based on merit (see, to that effect, judgment of 13 March 2013, AK v Commission, F‑91/10, EU:F:2013:34, paragraph 71). The same applies a fortiori to staff who do not have the same reasonable career prospects as officials. Third, the condition of minimum average seniority in the grade is also aimed at facilitating mobility between agencies (see paragraph 68 above), which is in the interests of the most deserving staff.

104In view of the foregoing, the applicant cannot claim that the condition of average seniority in the grade breaches the principle of reclassification based on merit.…

Operative part

On those grounds,THE GENERAL COURT (Tenth Chamber)hereby:

1.Annuls the decision of the European Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice (eu-LISA) of 22 December 2021 not to reclassify QN at the end of the 2021 reclassification exercise;

2.Dismisses the action as to the remainder;

3.Orders eu-LISA to pay the costs.

Delivered in open court in Luxembourg on 22 November 2023.