61987J0037

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OFFICIALS - RECRUITMENT - CLASSIFICATION IN STEP - ADDITIONAL SENIORITY IN STEP - MEMBER OF TEMPORARY STAFF APPOINTED AS AN OFFICIAL - ACCOUNT TAKEN OF EXPERIENCE AS MEMBER OF TEMPORARY STAFF - LIMITS

( STAFF REGULATIONS, ARTS 32 AND 44 )

THE PURPOSE OF ARTICLE 32 OF THE STAFF REGULATIONS IS TO GOVERN THE POSITION OF AN EMPLOYEE WHEN HE FIRST BECOMES AN OFFICIAL OF THE COMMUNITIES . NO PROVISION OF THE STAFF REGULATIONS ENABLES ACCOUNT TO BE TAKEN, IN THE FORM OF ACCUMULATED SENIORITY AS PROVIDED FOR IN ARTICLE 44, OF A PERIOD DURING WHICH AN OFFICIAL PREVIOUSLY SERVED HIS INSTITUTION AS A MEMBER OF ITS TEMPORARY STAFF . EXPERIENCE ACQUIRED DURING THAT PERIOD CAN GIVE RISE ONLY TO THE ADDITIONAL SENIORITY PROVIDED FOR IN ARTICLE 32 OF THE STAFF REGULATIONS .

IN CASE 37/87

ECKHARD SPERBER, AN OFFICIAL OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES, REPRESENTED BY GEORGES VANDERSANDEN, OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG IN THE CHAMBERS OF JANINE BIVER, 8 RUE ZITHE,

APPLICANT

V

COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES, REPRESENTED BY FRANCIS HUBEAU, HEAD OF THE PERSONNEL DIVISION, ACTING AS AGENT, ASSISTED BY ROBERT ANDERSEN, OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS AGENT AT THE COURT OF JUSTICE, WEIMERSHOF,

DEFENDANT

APPLICATION FOR THE ANNULMENT OF THE DECISION OF THE COURT OF 5 MARCH 1986 CLASSIFYING THE APPLICANT IN GRADE L/A 6, STEP 3, AND THE DECISION OF THE COMMITTEE OF THE COURT RESPONSIBLE FOR DEALING WITH COMPLAINTS OF 6 NOVEMBER 1986 REJECTING THE APPLICANT' S COMPLAINT AGAINST THE CLASSIFICATION DECISION,

THE COURT ( FIRST CHAMBER )

COMPOSED OF : G . BOSCO, PRESIDENT OF CHAMBER, R . JOLIET AND F . SCHOCKWEILER, JUDGES,

ADVOCATE GENERAL : G.F . MANCINI

REGISTRAR : H.A . ROEHL, PRINCIPAL ADMINISTRATOR

HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 8 DECEMBER 1987,

AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 9 MARCH 1988,

GIVES THE FOLLOWING

JUDGMENT

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 5 FEBRUARY 1987, ECKHARD SPERBER, AN OFFICIAL OF THE COURT OF JUSTICE, BROUGHT AN ACTION FOR THE ANNULMENT OF THE DECISION WHICH THE COURT, AS APPOINTING AUTHORITY, ADOPTED ON 5 MARCH 1986, CLASSIFYING HIM IN GRADE L/A 6, STEP 3, AND, IN SO FAR AS NECESSARY, OF THE DECISION OF THE COMMITTEE OF THE COURT RESPONSIBLE FOR DEALING WITH COMPLAINTS OF 4 NOVEMBER 1986 REJECTING THE COMPLAINT AGAINST THE CLASSIFICATION DECISION .

2 AFTER PASSING OPEN COMPETITION CJ 15/82 BASED ON QUALIFICATIONS AND TESTS, FOR THE CONSTITUTION OF A RESERVE FOR THE RECRUITMENT OF GERMAN LANGUAGE LAWYER-LINGUISTS, AND BEING INCLUDED ON A RESERVE LIST DRAWN UP ON 17 JUNE 1983, MR SPERBER WAS, SINCE NO PERMANENT POST WAS IMMEDIATELY AVAILABLE, ENGAGED BY THE COURT ON 3 OCTOBER 1983 AS A MEMBER OF THE TEMPORARY STAFF, IN GRADE L/A 6, STEP 3 . AS FROM 1 OCTOBER 1985, MR SPERBER WAS CLASSIFIED, AS A MEMBER OF THE TEMPORARY STAFF, IN STEP 4 .

3 BY A DECISION ADOPTED AT ITS ADMINISTRATIVE MEETINGS OF 20 AND 21 NOVEMBER 1985 AND 5 MARCH 1986, THE COURT, AS APPOINTING AUTHORITY, APPOINTED MR SPERBER A PROBATIONARY OFFICIAL, WITH EFFECT FROM 1 DECEMBER 1985, IN GRADE L/A 6, STEP 3 .

4 THE COMMITTEE OF THE COURT RESPONSIBLE FOR DEALING WITH COMPLAINTS, BY DECISION OF 4 NOVEMBER 1986, REJECTED THE COMPLAINT SUBMITTED BY MR SPERBER UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS AGAINST THAT CLASSIFICATION DECISION WHEREUPON HE BROUGHT THE PRESENT ACTION FOR ANNULMENT .

5 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A FULLER ACCOUNT OF THE FACTS, THE PROCEDURE AND THE SUBMISSIONS AND ARGUMENTS OF THE PARTIES, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .

6 THE APPLICANT' S ACTION FOR ANNULMENT IS BASED ON FIVE SUBMISSIONS, NAMELY INFRINGEMENT OF ARTICLE 32 OF THE STAFF REGULATIONS, BREACH OF THE PRINCIPLE OF NON-DISCRIMINATION, INFRINGEMENT OF ARTICLE 5 ( 3 ) OF THE STAFF REGULATIONS, BREACH OF THE PRINCIPLES OF GOOD MANAGEMENT, SOUND ADMINISTRATION AND FAIRNESS, AND INFRINGEMENT OF VESTED RIGHTS .

7 IN HIS FIRST AND LAST SUBMISSIONS, THE APPLICANT ESSENTIALLY CHALLENGES THE COURT' S REFUSAL TO TAKE ACCOUNT, WHEN APPOINTING HIM AN OFFICIAL, OF THE SENIORITY ACQUIRED BY HIM AS A MEMBER OF THE TEMPORARY STAFF . HE CONSIDERS THAT, AS A RESULT, THE COURT APPLIED ARTICLE 32 OF THE STAFF REGULATIONS TWICE AND INFRINGED HIS VESTED RIGHTS .

8 IN DECIDING WHETHER THOSE SUBMISSIONS ARE WELL FOUNDED, IT IS APPROPRIATE TO BEAR IN MIND THE FACT THAT OFFICIALS OF THE EUROPEAN COMMUNITIES AND MEMBERS OF THE TEMPORARY STAFF ARE GOVERNED BY DIFFERENT CONDITIONS OF SERVICE .

9 AS REGARDS, IN PARTICULAR, RECRUITMENT, THE ENGAGEMENT OF TEMPORARY STAFF IS GOVERNED BY ARTICLES 8 TO 15 OF THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS, WHICH DO NOT REQUIRE THE PASSING OF A COMPETITION, WHEREAS THE RECRUITMENT OF OFFICIALS IS GOVERNED BY ARTICLES 27 TO 34 OF THE STAFF REGULATIONS WHICH, AS A GENERAL RULE, REQUIRE SUCCESSFUL PARTICIPATION IN A COMPETITION .

10 EVEN THOUGH ARTICLE 15 OF THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS REFERS, FOR THE PURPOSE OF CLASSIFICATION OF A MEMBER OF THE TEMPORARY STAFF UPON ENGAGEMENT, TO ARTICLE 32 OF THE STAFF REGULATIONS, ARTICLE 32 CANNOT BE DEEMED INAPPLICABLE WHERE A MEMBER OF THE TEMPORARY STAFF IS APPOINTED AN OFFICIAL, ON THE GROUND RELIED UPON BY THE APPLICANT, NAMELY THAT A MEMBER OF STAFF HAS ONLY ONE CAREER AND THE APPLICATION OF ARTICLE 32 WOULD DUPLICATE THE PREVIOUS APPLICATION OF ARTICLE 15 OF THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS .

11 IT IS CLEAR FROM THE JUDGMENT OF THE COURT OF 12 JULY 1984 ( CASE 17/83 ANGELIDIS V COMMISSION (( 1984 )) ECR 2907 ) THAT THE PURPOSE OF ARTICLE 32 IS TO GOVERN THE POSITION OF AN EMPLOYEE WHO HAS BECOME AN OFFICIAL OF THE COMMUNITIES FOR THE FIRST TIME .

12 BY VIRTUE OF THE JUDGMENT OF 6 JUNE 1985 ( CASE 146/84 DE SANTIS V COURT OF AUDITORS (( 1985 )) ECR 1723 ), NO PROVISION OF THE STAFF REGULATIONS ALLOWS ACCOUNT TO BE TAKEN, IN THE FORM OF ACCUMULATED SENIORITY AS PROVIDED FOR IN ARTICLE 44, OF A PERIOD DURING WHICH AN OFFICIAL PREVIOUSLY SERVED HIS INSTITUTION AS A MEMBER OF ITS TEMPORARY STAFF .

13 THE SPECIAL CIRCUMSTANCE REFERRED TO BY THE APPLICANT, NAMELY THE FACT THAT WHEN HE WAS ENGAGED AS A MEMBER OF THE TEMPORARY STAFF HE HAD PASSED THE COMPETITION FOR ADMISSION AND THEREFORE WAS ELIGIBLE FOR APPOINTMENT AS AN OFFICIAL, DOES NOT CHANGE THAT FINDING IN ANY WAY SINCE, IN THE ABSENCE OF A VACANT POST, HE COULD NOT BE APPOINTED AN OFFICIAL .

14 THE EXPERIENCE WHICH THE APPLICANT ACQUIRED AS A MEMBER OF THE TEMPORARY STAFF OF THE COURT COULD THEREFORE ONLY BE TAKEN INTO CONSIDERATION ON THE BASIS OF ARTICLE 32 OF THE STAFF REGULATIONS WHICH, FOR THE PURPOSES OF CLASSIFICATION, LIMITS ADDITIONAL SENIORITY IN STEP GRANTED TO AN OFFICIAL TO 48 MONTHS IN GRADES OTHER THAN A 1 TO A 4, L/A 3 AND L/A 4 .

15 THE SUBMISSIONS BASED ON THE MISAPPLICATION OF ARTICLE 32 AND INFRINGEMENT OF THE APPLICANT' S VESTED RIGHTS ARE THEREFORE UNFOUNDED .

16 IN HIS SECOND, THIRD AND FOURTH SUBMISSIONS, THE APPLICANT CLAIMS IN SUBSTANCE THAT HE WAS DISCRIMINATED AGAINST BY COMPARISON WITH THE OTHER SUCCESSFUL CANDIDATES IN THE COMPETITION WHO WERE OFFERED PERMANENT POSTS IMMEDIATELY AND BY COMPARISON WITH OTHER OFFICIALS WHOSE PERIODS SPENT AS MEMBERS OF THE TEMPORARY STAFF WERE TAKEN INTO ACCOUNT . THE COURT' S PRACTICE IN THAT RESPECT, MOREOVER, IS IN BREACH OF THE PRINCIPLES OF GOOD MANAGEMENT, SOUND ADMINISTRATION AND FAIRNESS .

17 AS REGARDS THE ALLEGED DISCRIMINATION BY COMPARISON WITH THE SUCCESSFUL CANDIDATES ENGAGED IMMEDIATELY, IT MUST BE REMEMBERED THAT THE APPOINTING AUTHORITY CAN RECRUIT A PROBATIONARY OFFICIAL ONLY IF A POST IS VACANT . HAVING TAKEN PART IN A COMPETITION ORGANIZED WITH A VIEW TO CONSTITUTING A RESERVE LIST, THE APPLICANT WAS ELIGIBLE TO BE APPOINTED A PROBATIONARY OFFICIAL ONLY IF AND WHEN A PERMANENT POST BECAME VACANT DURING THE PERIOD OF VALIDITY OF THAT LIST AND ACCORDING TO HIS POSITION ON THAT LIST .

18 WITHOUT ITS BEING NECESSARY TO CONSIDER THE OTHER ARGUMENT PUT FORWARD BY THE APPLICANT, IT NEED MERELY BE NOTED THAT UNDER ARTICLE 32 OF THE STAFF REGULATIONS, AS INTERPRETED BY THE COURT IN ITS JUDGMENTS IN ANGELIDIS AND DE SANTIS ( CITED ABOVE ), THE APPOINTING AUTHORITY WAS UNDER AN OBLIGATION TO CLASSIFY THE PROBATIONARY OFFICIAL IN ACCORDANCE WITH ARTICLE 32 AND WAS NOT ENTITLED TO TAKE ACCOUNT OF THE SENIORITY ACQUIRED BY THE OFFICIAL IN THE MEANTIME AS A MEMBER OF THE TEMPORARY STAFF .

19 SINCE THE SECOND, THIRD AND FOURTH SUBMISSIONS ARE LIKEWISE UNFOUNDED, THE APPLICATION MUST BE DISMISSED .

COSTS

20 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . HOWEVER, UNDER ARTICLE 70 OF THOSE RULES, INSTITUTIONS ARE TO BEAR THEIR OWN COSTS IN PROCEEDINGS BROUGHT BY SERVANTS OF THE COMMUNITIES .

ON THOSE GROUNDS,

THE COURT ( FIRST CHAMBER )

HEREBY :

( 1 ) DISMISSES THE APPLICATION;

( 2 ) ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .