61982J0343

OFFICIALS - RECRUITMENT - ASSIGNMENT OF GRADE - CLASSIFICATION IN STEP - INTERNAL DIRECTIVE OF AN INSTITUTION CONCERNING APPLICABLE CRITERIA - LEGAL EFFECTS

THE DECISION OF A COMMUNITY INSTITUTION , COMMUNICATED TO ALL MEMBERS OF ITS STAFF AND DESIGNED TO ENSURE THAT IDENTICAL CONDITIONS OF RECRUITMENT AND CAREER PROSPECTS SHALL BE ENJOYED BY ALL OFFICIALS IN THE SAME CATEGORY OR SERVICE AS FAR AS GRADING AND CLASSIFICATION IN STEP ON RECRUITMENT ARE CONCERNED , CONSTITUTES AN INTERNAL DIRECTIVE , EVEN THOUGH THE DECISION AT ISSUE MAY NOT BE REGARDED AS A GENERAL IMPLEMENTING PROVISION WITHIN THE MEANING OF ARTICLE 110 OF THE STAFF REGULATIONS . AS SUCH IT MUST BE REGARDED AS A RULE OF CONDUCT , INDICATING THE PRACTICE TO BE FOLLOWED , WHICH THE ADMINISTRATION IMPOSES ON ITSELF AND FROM WHICH IT MAY NOT DEPART WITHOUT SPECIFYING THE REASONS WHICH HAVE LED IT TO DO SO , SINCE OTHERWISE THE PRINCIPLE OF EQUALITY OF TREATMENT WOULD BE INFRINGED .

SUCH AN INTERNAL DIRECTIVE MAY NOT , IN ANY CIRCUMSTANCES , LEGALLY ESTABLISH RULES WHICH DEROGATE FROM THE STAFF REGULATIONS .

IN CASE 343/82

CHRISTOS MICHAEL , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , OF 41 BOULEVARD LEOPOLD-III , 1030 BRUSSELS , REPRESENTED BY G . VANDERSANDEN , OF THE BRUSSELS BAR , WHOSE CHAMBERS ARE AT 38 AVENUE DES KLAUWAERTS , 1050 BRUSSELS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF J . BIVER , 2 RUE GOETHE ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY HENDRIK VAN LIER , A MEMBER OF ITS LEGAL DEPARTMENT , ACTING AS AGENT , ASSISTED BY PHILIPPE MIHAIL , OF THE BRUSSELS BAR , OF 2 AVENUE JULES-CESAR , 1150 BRUSSELS ( POSTAL BOX 8 ), WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO , A MEMBER OF THE COMMISSION ' S LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

APPLICATION FOR A DECLARATION THAT THE ACTION IS ADMISSIBLE , FOR ANNULMENT OF THE COMMISSION ' S DECISION OF 1 OCTOBER 1982 REJECTING THE APPLICANT ' S COMPLAINT , FOR AN ORDER REQUIRING THE DEFENDANT TO RECLASSIFY THE APPLICANT IN ACCORDANCE WITH THE CRITERIA CONTAINED IN THE DECISION OF 6 JUNE 1973 AND FOR AN ORDER THAT THE DEFENDANT SHOULD PAY THE COSTS ,

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 28 DECEMBER 1982 MR MICHAEL , A TRANSLATOR AT THE COMMISSION OF THE EUROPEAN COMMUNITIES , BROUGHT AN ACTION FOR THE ANNULMENT OF THE DECISION OF 1 OCTOBER 1982 , WHEREBY THE COMMISSION REFUSED TO ALTER THE GRADE TO WHICH THE APPLICANT HAD BEEN APPOINTED ON HIS RECRUITMENT TO THE LANGUAGE SERVICE , AND FOR AN ORDER THAT THE COMMISSION SHOULD RECLASSIFY HIM IN ACCORDANCE WITH THE PROVISIONS OF THE ' ' DECISION ON THE CRITERIA APPLICABLE TO GRADE AND STEP CLASSIFICATION UPON RECRUITMENT ' ' OF 6 JUNE 1973 .

2 THE APPLICANT ENTERED THE SERVICE OF THE COMMISSION ON 16 APRIL 1980 AS A MEMBER OF THE TEMPORARY STAFF IN GRADE L/A 7 , STEP 3 . HE WAS EMPLOYED AS FROM 1 JANUARY 1981 AS A PROBATIONARY OFFICIAL , IN THE CAPACITY OF TRANSLATOR IN THE GREEK TRANSLATION DIVISION , IN THE SAME GRADE AND STEP .

3 IN MARCH 1981 THE COMMISSION DECIDED TO INFORM ALL THE MEMBERS OF ITS STAFF , AND ALL SUCCESSFUL CANDIDATES IN NEW COMPETITIONS AFTER THAT DATE , OF THE ABOVE-MENTIONED DECISION OF 6 JUNE 1973 , WHICH IS INTENDED ESSENTIALLY TO ALLOW THE COMMISSION TO APPOINT IN CAREER BRACKETS OTHER THAN THE STARTING CAREER BRACKETS , OR TO APPOINT IN THE UPPER GRADE OF A CAREER BRACKET , OFFICIALS WHO CAN PROVIDE EVIDENCE OF A CERTAIN DEGREE OF PROFESSIONAL EXPERIENCE .

4 ON 9 JUNE 1981 , HAVING TAKEN NOTE OF THAT DECISION , THE APPLICANT SUBMITTED TO THE HEAD OF PERSONNEL A REQUEST FOR HIS CASE TO BE RECONSIDERED . HE WAS INFORMED BY A MEMORANDUM OF 3 NOVEMBER 1981 THAT THE GRADING COMMITTEE HAD DECIDED , AT ITS MEETING ON 15 OCTOBER 1981 , THAT IT WAS NOT ABLE TO REVISE THE OPINION PREVIOUSLY ISSUED . THE APPLICANT THEN SENT A LETTER DATED 4 FEBRUARY 1982 TO THE DIRECTOR-GENERAL FOR PERSONNEL AND ADMINISTRATION , WHOM HE REQUESTED TO RECONSIDER HIS GRADING ON THE BASIS OF THE COMMISSION ' S DECISION OF 6 JUNE 1973 .

5 BY LETTER OF 27 MAY 1982 THE DIRECTOR-GENERAL CONFIRMED THE APPLICANT ' S INITIAL CLASSIFICATION IN GRADE L/A 7 .

6 ON 28 JUNE 1982 THE APPLICANT LODGED A COMPLAINT , PURSUANT TO ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS , AGAINST THE DECISION OF 27 MAY 1982 .

7 BY A DECISION DATED 1 OCTOBER 1982 , THE APPOINTING AUTHORITY REJECTED THAT COMPLAINT ON THE GROUND THAT , UNDER THE TERMS OF THE DECISION OF 6 JUNE 1973 AND ANNEX II TO THE NOTICE PUBLISHING THE DECISION , ONLY EXPERIENCE OF TRANSLATION IN THE STRICT SENSE MAY BE REGARDED AS ' ' RELEVANT ' ' TO THE WORK OF GENERAL TRANSLATORS AND THAT THE APPLICANT COULD NOT SHOW THAT HE HAD AT LEAST FIVE YEARS OF SUCH EXPERIENCE .

8 THAT IS THE DECISION AGAINST WHICH THE APPLICANT BROUGHT THE PRESENT ACTION .

THE CLAIM FOR ANNULMENT OF THE CONTESTED DECISION

9 IN SUPPORT OF THIS CLAIM THE APPLICANT SUBMITS THAT THE CONTESTED DECISION IS CONTRARY TO THE DECISION OF 6 JUNE 1973 AND WAS ADOPTED IN BREACH OF THE PRINCIPLE OF NON-DISCRIMINATION .

THE SUBMISSION BASED ON THE ALLEGED BREACH OF THE DECISION OF 6 JUNE 1973

10 IN SUPPORT OF THIS SUBMISSION THE APPLICANT CLAIMS , IN THE FIRST PLACE , THAT THE DECISION OF 6 JUNE 1973 IS BINDING ON THE APPOINTING AUTHORITY AND , SECONDLY , THAT HE SATISFIES THE CONDITIONS CONCERNING PREVIOUS EXPERIENCE LAID DOWN IN THAT DECISION .

THE FIRST BRANCH OF THE SUBMISSION

11 THE APPLICANT CLAIMS THAT THE DECISION OF 6 JUNE 1973 IS INTENDED TO ENSURE THAT UNIFORM RULES CONCERNING GRADING ARE APPLIED TO NEWLY RECRUITED OFFICIALS AND THAT THOSE OFFICIALS ENJOY IDENTICAL CONDITIONS OF RECRUITMENT AND CAREER PROSPECTS . IT IS THEREFORE BINDING ON THE APPOINTING AUTHORITY AND ITS PROVISIONS , WHICH ARE OF MANDATORY LEGAL EFFECT , ARE TO BE APPLIED AUTOMATICALLY AND OBJECTIVELY .

12 THE COMMISSION CONTENDS , ON THE OTHER HAND , THAT THE APPLICANT COULD HAVE FOUNDED HIS APPLICATION SOLELY ON THE ALLEGED BREACH OF ARTICLE 31 OF THE STAFF REGULATIONS , INASMUCH AS THE PROVISIONS OF THE DECISION OF 6 JUNE 1973 DO NOT CREATE FOR COMMISSION OFFICIALS ANY RIGHT ON WHICH THEY MIGHT USEFULLY RELY . ACCORDING TO THE COMMISSION , THOSE PROVISIONS MERELY STATE THAT THE APPOINTING AUTHORITY MAY MAKE AN APPOINTMENT TO THE UPPER GRADE OF A CAREER BRACKET EXCEPTIONALLY AND IN ORDER TO TAKE INTO ACCOUNT RECRUITMENT REQUIREMENTS . THUS THE COMMISSION CONSIDERS THAT IT RETAINS AN ' ' ABSOLUTE DISCRETION ' ' .

13 THE COMMISSION ' S DECISION OF 6 JUNE 1973 IS NOT SIMPLY A LIST OF THE CRITERIA GOVERNING CLASSIFICATION IN GRADE OR IN STEP INTENDED EXCLUSIVELY TO FACILITATE THE DECISIONS OF THE APPOINTING AUTHORITY . ACCORDING TO THE PREAMBLE THERETO , IT IS ALSO INTENDED TO ' ' ENSURE THAT IDENTICAL CONDITIONS OF RECRUITMENT AND CAREER PROSPECTS SHALL BE ENJOYED BY ALL OFFICIALS IN THE SAME CATEGORY OR THE SAME SERVICE ' ' . MOREOVER , THE COMMISSION CONSIDERED IT NECESSARY IN MARCH 1981 TO BRING THAT DECISION OFFICIALLY TO THE NOTICE OF ALL THE MEMBERS OF ITS STAFF IN THE FORM OF INDIVIDUAL NOTIFICATIONS .

14 IT FOLLOWS THAT , EVEN THOUGH THE DECISION IN QUESTION MAY NOT BE REGARDED AS A GENERAL IMPLEMENTING MEASURE WITHIN THE MEANING OF ARTICLE 110 OF THE STAFF REGULATIONS , IT CONSTITUTES AN INTERNAL DIRECTIVE . AS THE COURT STATED IN ITS JUDGMENT OF 30 JANUARY 1974 ( CASE 148/73 , LOUWAGE V COMMISSION , ( 1974 ) ECR 81 ), SUCH AN INTERNAL DIRECTIVE MUST BE REGARDED AS A RULE OF CONDUCT , INDICATING THE PRACTICE TO BE FOLLOWED , WHICH THE ADMINISTRATION IMPOSES ON ITSELF AND FROM WHICH IT MAY NOT DEPART WITHOUT SPECIFYING THE REASONS WHICH HAVE LED IT TO DO SO , SINCE OTHERWISE THE PRINCIPLE OF EQUALITY OF TREATMENT WOULD BE INFRINGED .

15 SINCE , IN REPLY TO THE QUESTIONS PUT BY THE COURT , THE COMMISSION HAS ACKNOWLEDGED THAT IT INTENDED TO ABIDE STRICTLY BY THE PROVISIONS OF THE DECISION OF 6 JUNE 1973 AND TO ACCORD THE BENEFIT OF THE PROVISIONS TO ALL OFFICIALS SATISFYING THE CONDITIONS SET OUT THEREIN , THE COURT MUST CONCLUDE , IN THE FIRST PLACE , THAT THE APPLICANT COULD LAWFULLY SUBMIT AN APPLICATION FOR REGRADING BASED SOLELY ON THE PROVISIONS OF THAT DECISION AND , SECONDLY , THAT HE IS ENTITLED TO RELY ON ANY BREACH OF THOSE PROVISIONS .

16 IT MUST , HOWEVER , BE BORNE IN MIND THAT UNDER NO CIRCUMSTANCES CAN SUCH INTERNAL MEASURES ADOPTED BY THE COMMUNITY INSTITUTIONS LEGALLY ESTABLISH RULES WHICH DEROGATE FROM THE PROVISIONS OF THE STAFF REGULATIONS .

THE SECOND BRANCH OF THE SUBMISSION

17 THE APPLICANT CLAIMS SECONDLY THAT HE CAN PROVIDE EVIDENCE OF PROFESSIONAL EXPERIENCE , WITHIN THE MEANING OF THE INTERNAL DIRECTIVE , OF 11 YEARS AND SIX MONTHS AND THAT CONSEQUENTLY HE EASILY SATISFIES THE CONDITIONS LAID DOWN IN ARTICLE 3 .

18 THE COMMISSION , ON THE OTHER HAND , CONTENDS THAT ONLY EXPERIENCE OF TRANSLATION IN THE STRICT SENSE MAY BE REGARDED AS ' ' RELEVANT ' ' AND MAY BE TAKEN INTO ACCOUNT IN CALCULATING THE LENGTH OF A TRANSLATOR ' S PREVIOUS EXPERIENCE IN ORDER TO ENABLE HIM TO BENEFIT FROM THE PROVISIONS OF ARTICLE 3 OF THE INTERNAL DIRECTIVE .

19 THE RULES ON GRADE AND STEP CLASSIFICATION SET OUT IN ARTICLES 31 AND 32 OF THE STAFF REGULATIONS LAY DOWN THE PRINCIPLE THAT CANDIDATES APPOINTED OFFICIALS IN CATEGORY A OR IN THE LANGUAGE SERVICE ARE RECRUITED IN THE STARTING GRADE OF THEIR CATEGORY OR SERVICE AND CLASSIFIED IN THE FIRST STEP OF THEIR GRADE . HOWEVER , THOSE TWO ARTICLES ALLOW THE APPOINTING AUTHORITY TO MAKE EXCEPTIONS TO THOSE RULES , TAKING ACCOUNT OF THE EXPERIENCE OF THE PERSONS CONCERNED , PROVIDED THAT IT IS SUFFICIENTLY ' ' SPECIFIC ' ' IN RELATION TO THE VACANT POST .

20 THE PRINCIPLE THAT ALL CANDIDATES SELECTED TO BE PROBATIONARY OFFICIALS SHALL BE APPOINTED IN THE STARTING GRADE OF THE STARTING CAREER BRACKET OF THEIR CATEGORY OR SERVICE IS FURTHER CONFIRMED IN ARTICLE 1 OF THE DECISION OF 6 JUNE 1973 . HOWEVER , ARTICLE 3 OF THAT DECISION , WHICH CONCERNS APPOINTMENT IN THE UPPER GRADE OF A CAREER BRACKET , PROVIDES THAT ' ' BY WAY OF DEROGATION FROM ARTICLE 1 , THE APPOINTING AUTHORITY MAY , EXCEPTIONALLY AND IN ORDER TO MEET RECRUITMENT REQUIREMENTS , APPOINT A CANDIDATE TO THE UPPER GRADE IN THE STARTING OR INTERMEDIATE CAREER BRACKET , IF THE CANDIDATE GIVES EVIDENCE OF PROFESSIONAL EXPERIENCE , WITHIN THE MEANING OF ARTICLE 2 , OF AT LEAST . . . FIVE YEARS FOR GRADE L/A 6 ' ' .

21 ARTICLE 2 OF THE DECISION OF 6 JUNE 1973 GIVES THE FOLLOWING GENERAL DEFINITION OF PROFESSIONAL EXPERIENCE : ' ' PROFESSIONAL EXPERIENCE WITH REGARD TO THE POST TO BE FILLED SHALL BE ASSESSED ON THE BASIS OF ALL THE ACTIVITIES IN WHICH THE CANDIDATE HAS ENGAGED BEFORE RECRUITMENT ' ' .

22 VIEWED IN THE LIGHT OF ARTICLES 31 AND 32 OF THE STAFF REGULATIONS , THE INDICATIONS GIVEN BY THE DECISION OF 6 JUNE 1973 CAN APPLY ONLY TO EXPERIENCE WHICH IS SPECIFICALLY RELATED TO THE POST TO BE FILLED . THE COMMISSION IS THEREFORE RIGHT IN STATING IN ANNEX II TO THE NOTICE PUBLISHING THE DECISION THAT IN PRACTICE CREDIT IS NOT GIVEN IN CAREER BRACKET L/A 7 - L/A 6 ( TRANSLATOR ) EXCEPT FOR ' ' RELEVANT ' ' EXPERIENCE AND ON THE FURTHER CONDITION THAT IT IS OF A LEVEL EQUIVALENT TO CATEGORY A WORK , THAT IS TO SAY UNIVERSITY LEVEL .

23 ON THE OTHER HAND , THE PROVISIONS OF THE STAFF REGULATIONS WOULD BE INFRINGED BY ANY PRACTICE WHICH CONSISTED IN GIVING CREDIT FOR EXPERIENCE WHICH WAS NOT SPECIFICALLY RELATED TO THE POST TO BE FILLED , AS SEEMS TO BE IMPLIED BY THE WORDS ' ' ( EXPERIENCE ) AS TRANSLATOR , ECONOMIST , LAWYER , ETC . ' ' IN PARAGRAPH 3 ( C ) OF ANNEX II . IT SEEMS MOREOVER , AS THE COMMISSION ACKNOWLEDGED AT THE HEARING , THAT CERTAIN PROVISIONS OF THE ANNEX TO THE DECISION ARE AMBIGUOUS AND ARE LIKELY TO MISLEAD THE OFFICIALS CONCERNED AS TO THEIR RIGHTS REGARDING RECLASSIFICATION .

24 SINCE IN THIS CASE THE POST IN QUESTION IS A GENERAL TRANSLATOR ' S POST WHICH ENTAILS THE TRANSLATION OF TEXTS ON DIVERSE SUBJECTS , THE COMMISSION COMMITTED NO MANIFEST ERROR OF ASSESSMENT AND DID NOT BASE ITS DECISION ON SUBJECTIVE GROUNDS IN FINDING THAT ONLY PREVIOUS EXPERIENCE OF TRANSLATION IN THE STRICT SENSE MIGHT BE CONSIDERED SUFFICIENTLY SPECIFIC IN RELATION TO THE DUTIES IN QUESTION .

25 IT FOLLOWS THAT THE FIRST SUBMISSION MUST BE DISMISSED .

THE SUBMISSION BASED ON THE ALLEGED BREACH OF THE PRINCIPLE OF NON-DISCRIMINATION

26 THE APPLICANT CLAIMS THAT HE HAS BEEN DISCRIMINATED AGAINST IN RELATION TO HIS COLLEAGUES WHO CANNOT LAY CLAIM TO THE SAME QUALIFICATIONS AND PROFESSIONAL EXPERIENCE AND WHO HAVE NEVERTHELESS BEEN CLASSIFIED , LIKE HIM , IN GRADE L/A 7 .

27 THAT SUBMISSION MUST ALSO BE DISMISSED . AS THE COMMISSION MAINTAINED AT THE HEARING , WITHOUT BEING CONTRADICTED , THE PRACTICE OF TAKING INTO ACCOUNT ONLY EXPERIENCE OF TRANSLATION IN THE STRICT SENSE FOR CLASSIFICATION IN THE HIGHER GRADE IN A POST OF GENERAL TRANSLATOR IN THE LANGUAGE SERVICE REPRESENTS AN ESTABLISHED PRACTICE OF THE GRADING COMMITTEE AND THE APPOINTING AUTHORITY . THEREFORE THE COMMISSION WAS ENTITLED TO CONSIDER THAT , SINCE THE APPLICANT DID NOT HAVE GREATER SPECIFIC PROFESSIONAL EXPERIENCE THAN HIS COLLEAGUES , HE HAD NO GROUNDS FOR COMPLAINING OF ANY DISCRIMINATION AGAINST HIM .

28 THEREFORE THE CLAIM FOR THE ANNULMENT OF THE DISPUTED DECISION MUST BE DISMISSED , AS MUST , IN CONSEQUENCE AND IN ANY EVENT , THE CLAIM FOR RECLASSIFICATION . IT FOLLOWS THAT THE APPLICATION MUST BE DISMISSED .

COSTS

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

30 THE APPLICANT HAS FAILED IN HIS SUBMISSIONS .

31 HOWEVER , IN VIEW OF THE COMMISSION ' S ATTITUDE IN PUBLISHING A DECISION CONTAINING CERTAIN PROVISIONS LACKING IN CLARITY WHICH COULD HAVE MISLED THE OFFICIALS CONCERNED AS REGARDS THE RIGHTS TO WHICH THEY WERE ENTITLED , IT IS APPROPRIATE , PURSUANT TO THE SECOND SUBPARAGRAPH OF ARTICLE 69 ( 3 ) OF THE RULES OF PROCEDURE , TO ORDER THE DEFENDANT TO PAY ALL THE COSTS .

ON THOSE GROUNDS ,

THE COURT ( THIRD CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE DEFENDANT TO PAY ALL THE COSTS .