61983J0017

1 . OFFICIALS - APPOINTMENT - CLASSIFICATION IN STEP ON PROMOTION AND ON RECRUITMENT - PROVISIONS OF THE STAFF REGULATIONS - RESPECTIVE PURPOSE AND SCOPE

( STAFF REGULATIONS OF OFFICIALS , ARTS 32 AND 46 ).

2.OFFICIALS - RECRUITMENT - CLASSIFICATION IN STEP - ADDITIONAL SENIORITY IN STEP - CRITERIA FOR GRANTING THEREOF - PREVIOUS EXPERIENCE - DISCRETION OF THE ADMINISTRATION

( STAFF REGULATIONS OF OFFICIALS , ART . 32 , SECOND PARA .).

1 . THE PROVISIONS OF THE STAFF REGULATIONS OF OFFICIALS CONCERNING PROMOTIONS , OF WHICH ARTICLE 46 FORMS PART , WHETHER FROM THE POINT OF VIEW OF THEIR WORDING OR FROM THAT OF THEIR CONTEXT , ARE INTENDED TO GOVERN THE ADVANCEMENT , IN THEIR RESPECTIVE CATEGORIES AND BRANCHES , OF EMPLOYEES OF THE COMMUNITY WHO , AT THE TIME OF THEIR PROMOTION , ALREADY HAVE THE STATUS OF OFFICIALS . THOSE PROVISIONS ARE THUS NOT ADAPTED TO THE POSITION OF AN EMPLOYEE WHO , AFTER A PERIOD OF SERVICE AS A MEMBER OF THE TEMPORARY STAFF , OBTAINS BY MEANS OF AN OPEN COMPETITION , HIS FIRST DEFINITIVE APPOINTMENT WITHIN THE COMMUNITY ADMINISTRATION AFTER COMPLETING THE REQUIRED PROBATIONARY PERIOD . ON THE OTHER HAND , A CASE OF THIS KIND IS GOVERNED BY ARTICLE 32 OF THE STAFF REGULATIONS , WHOSE PURPOSE IS TO GOVERN THE POSITION OF AN EMPLOYEE WHO HAS BECOME AN OFFICIAL OF THE COMMUNITY FOR THE FIRST TIME AS A RESULT OF A RECRUITMENT PROCEDURE WHICH WILL NORMALLY HAVE BEEN A COMPETITION .

2 . THE APPOINTMENT AUTHORITY HAS A WIDE DISCRETION , WITHIN THE LIMITS LAID DOWN BY THE SECOND PARAGRAPH OF ARTICLE 32 OF THE STAFF REGULATIONS , IN ASSESSING THE PREVIOUS EXPERIENCE OF A PERSON APPOINTED AS AN OFFICIAL BOTH AS REGARDS THE NATURE AND THE DURATION OF THAT EXPERIENCE AND ITS RELATIONSHIP , BE IT CLOSE OR OTHERWISE , TO THE REQUIREMENTS OF THE POST TO BE FILLED .

IN CASE 17/83

ANGEL ANGELIDIS , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDENT IN BRUSSELS , REPRESENTED BY EDMOND LEBRUN OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF TONY BIEVER , 83 BOULEVARD GRANDE-DUCHESSE-CHARLOTTE ,

APPLICANT ,

V

COMMISSION OF THE COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , DIMITRIOS GOULOUSSIS , ACTING AS AGENT , ASSISTED BY DANIEL JACOB OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO , A MEMBER OF ITS LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

APPLICATION FOR ANNULMENT OF THE COMMISSION ' S REFUSAL TO GRANT THE APPLICANT ADDITIONAL SENIORITY OF TWO STEPS ,

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 1 FEBRUARY 1983 , ANGEL ANGELIDIS , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , BROUGHT AN ACTION SEEKING THE ANNULMENT OF THE DECISION RELATING TO HIS STEP CLASSIFICATION , CONTAINED IN THE INSTRUMENTS OF 4 MAY AND 14 DECEMBER 1982 APPOINTING THE APPLICANT AS A PROBATIONARY OFFICIAL AND AS AN ESTABLISHED OFFICIAL IN GRADE A 5 RESPECTIVELY , AND ASSIGNING HIM TO THE DIRECTORATE GENERAL FOR AGRICULTURE AS A PRINCIPAL ADMINISTRATOR .

2 THE DOCUMENTS BEFORE THE COURT INDICATE THAT THE APPLICANT WAS ENGAGED , IN THE FIRST PLACE , BY A CONTRACT OF 11 JULY 1979 AS A MEMBER OF THE TEMPORARY STAFF IN THE CAPACITY OF TRANSLATOR AT GRADE L/A 7 , STEP 3 . BY A CONTRACT OF 11 AUGUST 1980 , HE WAS TRANSFERRED TO A POST OF ADMINISTRATOR IN THE DIRECTORATE GENERAL FOR AGRICULTURE , STILL AS A TEMPORARY EMPLOYEE , IN GRADE A 7 , STEP 3 , KEEPING THE SENIORITY ACQUIRED IN HIS PREVIOUS POST . HAVING BEEN SUCCESSFUL IN COMPETITION NO COM/A/377 , HE WAS APPOINTED , BY A DECISION OF 4 MAY 1982 , AS A PROBATIONARY OFFICIAL IN THE CAPACITY OF PRINCIPAL ADMINISTRATOR IN GRADE A 5 , STEP 1 .

3 ON 14 JUNE 1982 , MR ANGELIDIS SUBMITTED A COMPLAINT , REGISTERED ON 5 JULY 1982 , SEEKING ADDITIONAL SENIORITY OF 48 MONTHS AND THEREFORE CLASSIFICATION IN STEP 3 OF GRADE A 5 . NO REPLY WAS MADE TO THAT COMPLAINT . BY A DECISION OF 14 DECEMBER 1982 , THE APPLICANT WAS ESTABLISHED IN THE SAME CAPACITY AND AT THE SAME GRADE AND STEP .

4 THE SUBJECT OF THE DISPUTE IS THE APPLICANT ' S STEP CLASSIFICATION . MR ANGELIDIS CONSIDERS THAT IN THE LIGHT OF HIS EXPERIENCE BEFORE ENTERING THE SERVICE OF THE COMMUNITIES , HE SHOULD HAVE BEEN CLASSIFIED , AT THE TIME OF HIS APPOINTMENT AS AN OFFICIAL , IN STEP 3 OF HIS GRADE , BY VIRTUE OF THE SECOND PARAGRAPH OF ARTICLE 32 OF THE STAFF REGULATIONS AND ARTICLE 5 OF THE COMMISSION DECISION OF 6 JUNE 1973 ON THE CRITERIA APPLICABLE TO GRADE AND STEP CLASSIFICATION UPON RECRUITMENT .

5 THE APPLICANT CLAIMS THAT THE COURT SHOULD :

( A ) ANNUL THE DECISIONS OF 4 MAY AND 14 DECEMBER 1982 IN SO FAR AS THEY CONCERN HIS CLASSIFICATION IN STEP ; AND

( B)DECLARE THAT HE MUST BE ASSIGNED TO STEP 3 OF GRADE A 5 .

6 THE COMMISSION ' S PRINCIPAL ARGUMENT IS THAT ARTICLE 32 OF THE STAFF REGULATIONS , RELIED UPON BY THE APPLICANT , IS NOT RELEVANT . THAT ARTICLE APPLIES ONLY TO CASES OF RECRUITMENT . HOWEVER , MR ANGELIDIS WAS NOT RECRUITED AS A RESULT OF THE CONTESTED DECISIONS BECAUSE HE WAS A MEMBER OF THE TEMPORARY STAFF BEFORE BEING APPOINTED AS AN OFFICIAL . HIS CASE MUST THEREFORE BE DEALT WITH BY ANALOGY WITH ARTICLE 46 OF THE STAFF REGULATIONS , WHICH DEALS WITH PROMOTIONS . HOWEVER , IN VIEW OF THE DISTANCE SEPARATING GRADE A 7 , STEP 3 , PREVIOUSLY OCCUPIED BY THE APPLICANT , AND GRADE A 5 , MR ANGELIDIS COULD ONLY OBTAIN THE FIRST STEP IN HIS NEW GRADE .

7 IN THE ALTERNATIVE , THE COMMISSION CONTENDS THAT EVEN IF THE APPLICANT ' S APPOINTMENT TO GRADE A 5 MUST BE REGARDED AS A RECRUITMENT , HE DOES NOT MEET THE CONDITIONS LAID DOWN BY THE DECISION OF 6 JUNE 1973 BECAUSE HIS EXPERIENCE HAS NOT BEEN SUFFICIENTLY LONG . THE COMMISSION HAS ALREADY RECOGNIZED THAT HE HAS SEVEN YEARS ' EXPERIENCE , WHICH WAS ONE OF THE CONDITIONS OF COMPETITION NO COM/A/377 . HOWEVER , THE TABLE ANNEXED TO THE DECISION OF 6 JUNE 1973 GRANTS ADDITIONAL SENIORITY ONLY IN RESPECT OF PREVIOUS EXPERIENCE OF MORE THAN EIGHT YEARS .

8 THE PARTIES ' ARGUMENTS MAKE IT NECESSARY TO DEFINE THE SCOPE OF ARTICLE 32 , CONCERNING RECRUITMENT , AND OF ARTICLE 45 CONCERNING THE DETERMINATION OF STEP IN CASES OF PROMOTION TO A HIGHER GRADE .

9 ACCORDING TO THE FIRST PARAGRAPH OF ARTICLE 32 : ' ' AN OFFICIAL SHALL BE RECRUITED AT THE FIRST STEP IN HIS GRADE ' ' . THE SECOND PARAGRAPH ADDS : ' ' HOWEVER , THE APPOINTING AUTHORITY MAY , TAKING ACCOUNT OF THE TRAINING AND SPECIAL EXPERIENCE FOR THE POST OF THE PERSON CONCERNED , ALLOW ADDITIONAL SENIORITY IN HIS GRADE ' ' , WHICH IS LIMITED TO 48 MONTHS , OR TWO STEPS , IN THE GRADE IN QUESTION .

10 ACCORDING TO THE FIRST PARAGRAPH OF ARTICLE 46 , AN OFFICIAL APPOINTED TO A HIGHER GRADE IS TO HAVE , IN HIS NEW GRADE , THE SENIORITY CORRESPONDING TO THE NOTIONAL STEP EQUAL TO OR NEXT ABOVE THE NOTIONAL STEP REACHED IN HIS FORMER GRADE , PLUS THE AMOUNT OF THE TWO-YEARLY INCREMENT FOR HIS NEW GRADE , SUBJECT TO THE PROVISO THAT , ACCORDING TO THE THIRD PARAGRAPH OF THE SAME ARTICLE , AN OFFICIAL APPOINTED TO A HIGHER GRADE IS ALWAYS TO BE CLASSIFIED NOT LOWER THAN THE INITIAL STEP FOR THAT GRADE .

11 THE PROVISIONS CONCERNING PROMOTIONS , OF WHICH ARTICLE 46 FORMS PART , WHETHER FROM THE POINT OF VIEW OF THEIR WORDING OR FROM THAT OF THEIR CONTEXT , ARE INTENDED TO GOVERN THE ADVANCEMENT , IN THEIR RESPECTIVE CATEGORIES AND BRANCHES , OF EMPLOYEES OF THE COMMUNITY WHO , AT THE TIME OF THEIR PROMOTION , ALREADY HAVE THE STATUS OF OFFICIALS . THOSE PROVISIONS ARE THUS NOT ADAPTED TO THE POSITION OF AN EMPLOYEE WHO , AFTER A PERIOD OF SERVICE AS A MEMBER OF THE TEMPORARY STAFF , OBTAINS , BY MEANS OF AN OPEN COMPETITION , HIS FIRST DEFINITIVE APPOINTMENT WITHIN THE COMMUNITY ADMINISTRATION AFTER COMPLETING THE REQUIRED PROBATIONARY PERIOD .

12 ON THE OTHER HAND , THE APPLICANT ' S CASE IS GOVERNED BY ARTICLE 32 , WHOSE VERY PURPOSE IS TO GOVERN THE POSITION OF AN EMPLOYEE WHO HAS BECOME AN OFFICIAL OF THE COMMUNITY FOR THE FIRST TIME AS A RESULT OF A RECRUITMENT PROCEDURE WHICH WILL NORMALLY HAVE BEEN A COMPETITION .

13 IT FOLLOWS THAT THE COMMISSION , WHEN IT APPOINTED THE APPLICANT FOLLOWING UPON THE COMPETITION , WAS REQUIRED TO CONSIDER THE POSSIBILITY OF ADDITIONAL SENIORITY UNDER THE TERMS OF THE SECOND PARAGRAPH OF ARTICLE 32 , IN THE LIGHT OF THE CRITERIA LAID DOWN IN ITS DECISION OF 6 JUNE 1973 . SINCE THE COMMISSION APPLIED ARTICLE 46 IN DETERMINING THE APPLICANT ' S STEP IN HIS GRADE , IT CANNOT HAVE CONSIDERED THE POSSIBILITY OF TAKING THE APPLICANT ' S PREVIOUS EXPERIENCE INTO ACCOUNT PURSUANT TO THE AFOREMENTIONED PROVISIONS . THE DECISIONS OF 4 MAY AND 14 DECEMBER 1982 MUST THEREFORE BE ANNULLED IN SO FAR AS THEY CONCERN THE APPLICANT ' S CLASSIFICATION IN STEP .

14 HOWEVER , THE APPLICANT ALSO ASKS THE COURT TO DECLARE THAT HE MUST BE ASSIGNED TO STEP 3 OF GRADE A 5 .

15 THAT ANCILLARY CLAIM IS INADMISSIBLE INASMUCH AS IT GOES BEYOND THE POWER OF REVIEW CONFERRED ON THE COURT , IN REGARD TO STAFF CASES , BY THE TREATIES AND BY THE PROVISIONS OF ARTICLE 91 ( 1 ) OF THE STAFF REGULATIONS .

16 AS THE COURT HAD OCCASION TO EMPHASIZE IN ITS JUDGMENT OF 1 DECEMBER 1983 ( CASE 190/82 BLOMEFIELD V COMMISSION ( 1983 ) ECR 3981 ), THE APPOINTING AUTHORITY HAS A WIDE DISCRETION , WITHIN THE LIMITS LAID DOWN BY THE SECOND PARAGRAPH OF ARTICLE 32 , IN ASSESSING THE PREVIOUS EXPERIENCE OF A PERSON APPOINTED AS AN OFFICIAL BOTH AS REGARDS THE NATURE AND THE DURATION OF THAT EXPERIENCE AND ITS RELATIONSHIP , BE IT CLOSE OR OTHERWISE , TO THE REQUIREMENTS OF THE POST TO BE FILLED .

17 IN THIS CASE , IT WILL BE FOR THE COMMISSION TO RECONSIDER THE APPLICANT ' S POSITION AND APPLY TO IT THE CRITERIA LAID DOWN IN ARTICLE 32 OF THE STAFF REGULATIONS AND THE DECISION OF 6 JUNE 1973 WITH A VIEW TO ARRIVING AT A DECISION ON THE APPLICANT ' S CLASSIFICATION IN STEP .

COSTS

18 UNDER THE TERMS OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS .

19 AS THE COMMISSION HAS FAILED IN ITS PRINCIPAL SUBMISSIONS , IT MUST BE ORDERED TO PAY THE COSTS .

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . ANNULS THE COMMISSION ' S DECISION OF 4 MAY 1982 APPOINTING THE APPLICANT AS A PROBATIONARY OFFICIAL IN GRADE A 5 , STEP 1 , AND ITS DECISION OF 14 DECEMBER 1982 ESTABLISHING HIM IN THE SAME CAPACITY IN SO FAR AS THEY CONCERN THE CLASSIFICATION IN STEP ;

2.DISMISSES THE REMAINDER OF THE APPLICATION ;

3.ORDERS THE COMMISSION TO PAY THE COSTS .