JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber)

5 October 1995

Case T-17/95

Spyridoula Alexopoulou

v

Commission of the European Communities

‛Officials — Classification in grade — Article 31(2) of the Staff Regulations’

Full text in French   II-683

Application for:

annulment of the decision of the Commission of 5 April 1994 in so far as it appoints the applicant to Grade A 7, Step 5, and implicitly refuses to appoint her to Grade A 6.

Decision:

Annulment.

Abstract of the Judgment

The applicant was successful in Competition No COM/T/A/93 and was appointed by decision of 5 April 1994 (the contested decision) a probationary official as an administrator in the Directorate-General for Employment, Industrial Relations and Social Affairs (DG V).

It is apparent from Article 2 of the Commission's decision of 1 September 1983 on the criteria applicable to appointment in grade and classification in step (decision of 1 September 1983) that the appointing authority ‘shall appoint a probationary official in the starting grade of the career bracket to which he is recruited’. Article 5 of the decision states that ‘this decision applies mutatis mutandis to the recruitment of members of the temporary staff ...’. Finally, it appears from Article 8 of the decision that, with the exception of certain officials engaged under Article 2(c) of the Conditions of employment of other servants of the European Communities, a temporary member of staff ‘appointed as a probationary official to a post in the same career bracket is entitled, when he is appointed as a probationary official, to the grade and seniority in step acquired by that date ...’. Accordingly, the competition notice in this case provided that ‘successful candidates to be appointed shall be classified in the grade to which they belong on the date when the reserve list is drawn up subject to the condition that at the time of their initial recruitment they were classified on the basis of the classification criteria then in force’.

Pursuant to those provisions, the applicant, a member of the temporary staff in Grade A 7 at the time of her appointment, was classified in Grade A 7, Step 5. The applicant claims that such classification was in breach of Article 31(2) of the Staff Regulations of Officials of the European Communities and of the principle of equal treatment of officials, and that she ought to have been classified in Grade A 6.

Substance

The plea in law alleging infringement of Article 31(2) of the Staff Regulations

The Court observes that the classification of officials upon recruitment is governed, as regards grade, by Article 31 of the Staff Regulations. Article 31(2) provides for the possibility of derogating, within certain limits, from the principle laid down in Article 31(1), according to which officials in Category A or the Language Service are recruited ‘to the starting grade of their category or service’.

The decision to classify an official in a particular grade, based on Article 31(2) of the Staff Regulations, comes within the scope, according to settled case-law, of a ‘wide discretionary power’ of the administration. Judicial review cannot take the place of assessment by the appointing authority but must be restricted to the question whether the appointing authority exercised its powers in a manifestly erroneous manner (paragraph 19).

See: C-298/93 P Klinke v Court of Justice (19941 ECR I-3009; T-18/90 Jongen v Commission [1991] ECR II-187

As regards the application of those provisions in practice, the Court observes first of all that the option available to the administration to appoint a newly-recruited official to the upper grade in the starting or intermediate career bracket must be construed as an exception to the general rules on classification and, secondly, the competent authority must reconcile the use of its power under Article 31(2) with observance of the requirements arising from the concept of a career bracket within the meaning of Article 5 and Annex I to the Staff Regulations (paragraph 20).

See: 219/84 Powell v Commission [1987] ECR 339; Jongen v Commission, cited above; 146/84 De Santis v Court of Auditors [1985] ECR 1723

The Court finds that, as a general mie, when appointing a newly-recruited official, the appointing authority is not required to examine in each case whether Article 31(2) of the Staff Regulations should be applied or to state reasons for its decision not to make use of that provision (paragraph 20).

On the other hand, in order to prevent Article 31(2) of the Staff Regulations from being deprived of any legal significance, the Court considers that the appointing authority is required in special circumstances, such as where a candidate has exceptional qualifications, specifically to assess the possible application of that provision. Such an obligation arises in particular where the specific needs of the department require the recruitment of a specially qualified official and therefore justify resort to Artide 31(2) of the Staff Regulations or where the person recruited possesses exceptional qualifications and requests the application of those provisions. In the light of the great diversity in the types of practical experience evidenced by die candidates applying for posts as officials in the European public service, the appointing authority enjoys a wide discretion within the framework of Article 31 and the second paragraph of Article 32 of the Staff Regulations and the internal decisions implementing those provisions when assessing the previous experience of a candidate recruited as an official, as regards both the nature and duration thereof and its relevance to the post to be filled (paragraph 21).

See: De Santis v Court of Auditors, cited above; T-2/90 Ferreira de Freitas v Commission [1991] ECR II-103

The Court notes the Commission's statement that, by its decision of 1 September 1983, it waived entirely the discretion conferred upon it by Article 31(2) of the Staff Regulations (paragraph 22).

Although the exercise of the discretion conferred on the appointing authority by Article 31(2) of the Staff Regulations may be governed by internal decisions such as that of 1 September 1983, internal directives adopted by the Community institutions may not, in any circumstances, lay down rules which derogate from the Staff Regulations (paragraph 24).

See: Ferreira de Freitas v Commission, cited above; Z)e Santis v Court of Auditors, cited above; 190/82 Blomefleld v Commission [1983] ECR 3981

In accordance with the hierarchy of rules, the Commission cannot, simply by means of a decision, restrict or limit the legal effects of provisions of the Staff Regulations. It follows that the Commission cannot waive altogether the power conferred upon it by Article 31(2) of the Staff Regulations by debarring itself absolutely from appointing a newly-recruited official to a grade other than the starting grade in the career bracket. Therefore, an internal decision which governs the exercise of the discretionary power conferred by Article 31(2) of the Staff Regulations must leave open the possibility in exceptional cases of appointing a candidate to the upper grade in the career bracket (paragraph 24).

See: Opinion of Advocate General Sir Gordon Slynn in De Santis v Court of Auditors, cited above, at p. 1728

The Court finds that the decision of 1 September 1983 is contrary to the Staff Regulations in so far as it does not allow the appointing authority to appoint an official to a grade higher than the starting grade. Since the Commission has stated that it was required, pursuant to the principles laid down in the decision of 1 September 1983 and the wording of the notice of internal competition which limited its power of appointment, to appoint the applicant to the starting grade in career bracket A 7/A 6, the Court finds that the contested decision is vitiated by an error of law and that it should therefore be annulled in so far as it concerns the applicant's classification in grade, in order to enable the Commission to assess the previous experience of the official concerned having regard to the criteria laid down in Article 31 of the Staff Regulations (paragraphs 25 and 26).

Operative part:

The decision of the Commission of 5 April 1994 is annulled in so far as it concerns the applicant's classification in grade.