OPINION OF MR ADVOCATE GENERAL

VERLOREN VAN THEMAAT

DELIVERED ON25 OCTOBER 1984 ( 1 )

Mr President,

Members of the Court,

1. Introduction

The appellant, Charles Lux, claims that the Court should annul the Court of Auditors' decision of 20 January 1982 classifying him in Grade A 5, Step 3. He considers that, by virtue of the general internal decisions of the Court of Auditors concerning the criteria for appointment adopted on 21 February and 12 June 1980, he ought to have been appointed to Grade A 4.

The appellant's appointment follows his success in an inter-institutional competition (CC/A/3/80) for a post in Career Bracket A 5/4 in the Legal Department of the Court of Auditors. Originally he was appointed by decision of 9 September 1980 to Grade A 5, Step 2. He lodged a complaint against that decision pursuant to Article 90 (2) of the Staff Regulations, because his appointment was wrongly based on Article 46 of the Staff Regulations and not the general internal decision of 21 February 1980. The President of the Court of Auditors, in his capacity as appointing authority, informed the applicant on 18 December 1981 that he ought indeed to have been appointed on the basis of the internal decision of 21 February 1980. After a further examination of the application of the said internal decision, the applicant's appointment of 9 September 1980 was annulled by the aforesaid decision of 20 January 1982 and he was appointed this time to Grade A 5, Step 3, express reference being made to the internal decision of 21 February 1980. The applicant has brought the present action against the decision of 20 January 1982.

2. Legal basis of the decisions

The measures which are relevant to the present case are Article 31 of the Staff Regulations and the Court of Auditors' internal decisions of 21 February and 12 June 1980 and, to a lesser extent, that of 3 December 1981.

The relevant part of Article 31 reads as follows :

“1.	Candidates thus selected shall be appointed as follows: Officials in Category A of the Language Service: to the starting grade of their category or service; ...

2.

However, the appointing authority may make exceptions to the foregoing provisions within the following limits : ... (b) In respect of other grades [that is to say, other than Grades A 1, A 2, A 3 and L/A 3], up to one-third of the appointments to becoming vacant; up to half the appointments to newly created posts. ...”

The internal decision of 21 February 1980 on the criteria for appointment reads as follows:

“Décision relative aux critères de classement et de nomination du personnel

La Cour des comptes des Communautés européennes,

vu le statut des fonctionnaires, notamment les articles 2, 5, paragraphe 3, 29, 30, 31 et 32...;

vu la décision de la Cour relative à la politique du personnel en date du 25 avril 1979;

considérant qu'il y a lieu d'établir des critères de classement égaux pour les agents d'une même catégorie ou d'un même cadre;

arrête la présente décision :

Article 1er

Classement au grade de base de la carrière de base d'une catégorie

En règle générale, l'autorité investie du pouvoir de nomination nomme le candidat lauréat d'un concours au grade de base de la carrière de base de sa catégorie ou de son cadre.

Article 2

Nomination dans un grade autre que le grade de base

Par dérogation à l'article 1er, l'AIPN peut procéder à la nomination dans un grade autre que le grade de base de la carrière de base de sa catégorie ou de son cadre, à condition que l'intéressé justifie d'une expérience professionnelle minimale de:

pour la catégorie A/LA:

moins de	4 ans pour le grade A 7/LA 7
	4 ans pour le grade A 6/LA 6
	6 ans pour le grade A 5/LA 5
	10 ans pour le grade A 4/LA 4
	15 ans pour le grade A 3/LA 3

...”

The decision of 12 June 1980 provided as follows:

...

“1.

Les critères de classement dans le grade et l'échelon établis par la Cour et exposés dans le document 8/80 Rev. 1 resteront en vigueur jusqu'à ce que les nominations à effectuer à la suite des concours internes aux institutions actuellement en cours auront été prononcées. Dès que ces opérations seront terminées [date à établir par l'AIPN], les critères exposés dans le document 8/80 Rev. 1 seront amendés ou complétés palles dispositions suivantes qui, d'ailleurs, sont d'application dès aujourd'hui aux agents temporaires qui seront sélectionnés...

2.

...

3.

La nomination immédiate en A 4 et A 6, tant en ce qui concerne les agents permanents que les agents temporaires, ne sera prononcée que dans des circonstances exceptionnelles, à justifier cas par cas, par référence aux fonctions à occuper. Les grades supérieurs [A4 et A 6] des carrières A 5/4 et A 6/7 sont en principe réservés pour des promotions...”

The new policy, set out at the end of that decision to appoint to the higher grade of a career bracket only in exceptional circumstances, was then incorporated into the general decision on appointments of 3 December 1981. Article 3 of that decision reads as follows:

“1.

Par dérogation à l'article 1er, l'AIPN peut, dans des circonstances exceptionnelles justifiées par référence à l'emploi à pourvoir, procéder à la nomination dans le grade supérieur des carrières de base et des carrières intermédiaires, à condition que l'intéressé justifie d'une expérience professionnelle au sens de l'article 2, paragraphe 2, d'une durée minimale de 10 ans pour les grades A 4 et LA 4. ... ”

3. The submissions of the parties

The applicant relies inter alia on the internal decision on appointments of 21 February 1980, to which the contested decision of 20 January 1982 appointing the applicant expressly refers. He maintains that on the basis of the aforesaid internal decision all appointments were made to the higher grade of a career bracket. That general policy was adopted because the Court of Auditors was a new institution which had to provide itself with the necessary staff. When that had been accomplished, appointments to the higher grade were restricted to exceptional cases, regard being had inter alia to the duties to be performed. That change in appointments policy is apparent from the decision of 12 June 1980, except for the proviso in respect of competitions already in progress, and it is also clearly apparent from the decision of 3 December 1981. The applicant maintains that on 1 August 1980 he possessed the 10 years' experience required for appointment to Grade A 4. In so far as his appointment to Grade A 4 does not already follow directly from the internal decision, it must follow on the basis of the principle of equality.

The Court of Auditors admits that under the decision of 21 February 1980 almost all, if not all, appointments were made to the higher grade in a career bracket. There were, however, two distinct phases. The first phase, which ended on 1 April 1980, was aimed at providing the new institution with staff of considerable ability. That was achieved by means of internal competitions. During the subsequent phase, that is to say from August 1980, appointments were generally made to the lower grades of career brackets except in exceptional circumstances. According to the Court of Auditors, the applicant's appointment was made in the second phase since it was made in September 1980. Moreover, it would be inconsistent with the discretion conferred on the appointing authority by Article 31 (2) of the Staff Regulations for the internal decision to require it to appoint the applicant to Grade A 4. It is clear from that provision that there must be exceptional circumstances. The defendant contends that it is clear from the case-law of the Court that the internal decision may not infringe the rules of the Staff Regulations.

4. Assessment of the submissions

In my view, the solution to the present case is to be found in the answer to the question which the Court put to the Court of Auditors during the oral procedure. The Court asked to which group or phase the applicant's appointment belonged. Having regard to the documented reply which the defendant gave to the Court after the hearing by letter dated 6 June, its original claim that the appointment took place in the second phase is no longer tenable. In my opinion it follows that the applicant's appointment must be based upon the decision of 21 February 1980. In the first place, the contested decision of 20 January 1982 appointing the applicant refers thereto expressly. In the second place, that inference is to be drawn from the decision of 12 June 1980, which states that the criteria for classification established on 21 February 1980 are to remain in force “... jusqu'à ce que les nominations à effectuer à la suite des concours internes aux institutions actuellement en cours auront été prononcées. Dès que ces opérations seront terminées [date à établir par l'AIPN] les critères exposés... seront amendés...”.

It is apparent from the documents produced that various stages of the inter-institutional competition in question had taken place before 12 June and that at that date the competition was therefore one of the competitions in progress, in respect of which the decision of 12 June expressly stated that the criteria laid down on 21 February 1980 were still applicable. The closing date for applications was 5 May. The Selection Board drew up its final report on 10 June. The report was received by the appointing authority on 12 June and the appointment was then made on 9 September 1980.

In my opinion it clearly follows from the foregoing that, according to the decision of 12 June, the applicant's appointment following inter-institutional competition No CC/A/3/80 should have been made on the basis of the internal appointment criteria adopted on 21 February 1980.

The defendant has not denied that the applicant possessed the 10 years' experience required as a minimum for appointment to Grade A4 under the internal decision. Nor has it contended that the aforesaid appointment criteria infringed Article 31 (2).

Finally, it is necessary to inquiry whether, in view of Article 31 of the Staff Regulations, the applicant may rely on the internal decision of 21 February. The Court of Auditors docs not deny that the applicant has the right to do so, but maintains that he cannot derive any advantage therefore in view of the discretion which Article 31 confers on the appointing authority.

The Court has now held on numerous occasions that an internal decision establishes a rule of conduct specifying the practice to be followed and that the administration may not depart from that practice without stating the reasons which have led it to do so, since otherwise the principle of equal treatment would be infringed (cf. recently the judgment of 1. 12. 1983 in Case 343/82 Michaelv Commission). The sole recital in the preamble to the internal decision applicable in this case bases the classification criteria laid clown in the decision on the principle of equality.

I have already shown that the defendant's argument that it departed from the internal decision of 21 February because the applicant's appointment took place in the second phase is not tenable. The defendant cannot contend that the second phase began in April or August 1980, since the decision of 12 June expressly stated the contrary with regard to inter-institutional competitions which were still in progress.

It has not been contended that the practice followed during the first phase of recruitment of making all appointments to the higher grade where the conditions relating to experience were satisfied was contrary to Article 31. Consequently the Court need not, in my view, give judgment on that point. The question which must be decided is whether the applicant's appointment on the basis of the internal decision would be contrary to the aforesaid provision of the Staff Regulations. The defendant claims to find support for an affirmative reply to that question in the Court's decisions in Case 33/67 (Kurrer v Council [1968] ECR 127) and Case 102/75 Petersen v Commission [1976] ECR 1777). It is indeed apparent from those cases that appointment to the higher grade of a career bracket must be an exception to the general rule that officials in Category A are to be appointed to the starting grade in their career bracket. However, having regard to the circumstances of those cases, it is clear that the defendant cannot rely upon them. In the first case the applicant complained that in the competition notice it was stated that the appointment would be made directly to Grade A 5. The Court held that such an exceptional appointment was justified by the specific needs of the service in order to correct a patent imbalance in the composition of the department concerned.

In the second case the applicant became acquainted with the internal criteria for appointment after his appointment. The Court held inter alia that those criteria did not restrict the appointing authority in making its appointments. In that case the aforesaid criteria themselves clearly revealed that there were exceptional circumstances.

However, in the present case the criteria laid down by the internal decision of 21 February 1980 are such that all appointments may be made to Grade A 4 provided that the requirement of at least 10 years' experience is met; that power has been exercised in every case other than the applicant's. It is not denied that the applicant had the requisite experience for appointment to Grade A 4. The decisions of 12 June 1980 and 3 December 1981 confirm that the liberal policy which was originally applied and which is applicable in the present case by virtue of the internal decision of 21 February 1980 was a transitional and exceptional measure justified by the need to set up a new institution.

In conclusion I consider that the contested decision of 20 January 1982 appointing the applicant must be annulled since it was adopted in breach of the internal decision of 21 February 1980 and the general principle of equality, the principle which forms the very basis of that decision according to its preamble.

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( 1 ) Translated from the Dutch.