Opinion of Mr Advocate General Reischl

Mr President,Members of the Court,

The applicant in the present proceedings was, after participating in a competition in 1974, recruited by the Audit Board as a member of its temporary staff and classified in Grade A 7, Step 2. By a decision of 16 December 1976 he was — without any change to his grading — appointed a probationary official with effect from 1 October 1976 for a period of nine months. Subsequently he was established in Grade A 7 by a decision of 14 June 1977 with effect from 1 July 1977.

In 1978 the Court of Auditors, which had recently been created by a Treaty of 22 July 1975 and which had replaced the Audit Board, gave notice of five vacancies in Career Bracket A 7/A 6, which were to be filled by transferring officials from other institutions in accordance with Article 29 (1) (c) of the Staff Regulations. The applicant, who applied for one of the posts, was transferred to the Court of Auditors by a decision of that institution of 18 April 1978, with effect from 1 May 1978, and was assigned to Grade A 7, Step 3. As from 1 May 1979 the applicant was promoted to the first step of Grade A 6 and provision was also made to antedate his seniority in that grade and step to 1 July 1977.

At that time the Court of Auditors was increasing its staff by engaging officials and other employees who were not already employed by the Communities.

Their grading was governed from 21 February 1980 by a decision adopted by the Court of Auditors (which, it appears, has been amended twice since then) relating to the criteria for grading and appointing staff. It provided that, in any given category, appointment was possible to a grade other than the starting grade of the basic career bracket, if, subsequent to the acquisition of the qualification required for that career bracket, a specified minimum level of experience had been gained, which in the case of Grade A 6, for instance, amounted to four years. Any experience in excess of that minimum might qualify for additional steps as set out in a table attached to the decision.

The applicant maintains that the practical consequence of that has been that officials and other employees graded in accordance with the decision have obtained considerably more favourable terms than officials transferred to the Court of Auditors from other institutions. On 12 May 1980 he therefore submitted a request to his appointing authority under Article 90 (1) of the Staff Regulations. In that request he pointed out that employees newly recruited to the Court of Auditors but having ten year's experience less than himself had been classified in Grade A 6, Step 1 or Step 2, that is to say, in the same grade and step (A 6, Step 2) as that which he had subsequently attained. He requested the authority to consider whether that anomaly could be rectified.

The request was unsuccessful. A memorandum from the President of the Court of Auditors dated 25 July 1980 denied any abnormality in the grading of the applicant. While conceding that the Court had established its own grading criteria for its newly-recruited staff based on their practical experience, it alleged that it had, in promoting the applicant, been bound by Article 46 of the Staff Regulations, with the result that its point of departure had been a previouslyestablished grade and it had therefore been precluded from exercising any discretion.

Early in 1980 the applicant, looking through his personal file, noticed a memorandum which the Member of the Court of Auditors responsible for staff and administration had drafted on the subject of the applicant's request and addressed to the President of the Court. That memorandum, of which the applicant received a copy (which has since been removed from his personal file), demonstrates inter alia that the grading criteria established by the Court of Auditors confer preferential treatment upon officials and other servants who have been recruited by it without having previously been employed by the Community, as compared with the grading of officials to whom Article 46 of the Staff Regulations has been applied. This is set forth in detail in the case of Career Bracket A 5/A 4 and — on page 3 of the memorandum of Grade A 6.

The applicant then lodged a complaint under Article 90 (2) of the Staff Regulations with his appointing authority on 15 September 1980. He argued that the abovementioned memorandum revealed that he had — in spite of his age and seniority — been graded worst of all the officials and other servants in Grade A 6, since according to the memorandum even a thirty-year old probationary official received a salary corresponding to Grade A 6, Step 4. Such a practice, which caused persons employed under a contract, upon being established, to benefit from a better grade than officials who had been promoted under Article 46 of the Staff Regulations, constituted an infringement of Article 5 (3) of the Staff Regulations. His grade should therefore be revised so as to be comparable with that of his colleagues of the same age and experience.

Here again the applicant was unsuccessful. In a memorandum of 13 November 1980 from the President of the Court of Auditors he was reminded that in 1974 he had accepted a particular grade and that now precluded any amendment thereof; to that extent, therefore, his complaint had to be treated as inadmissible. Any infringement of Article 5 (3) of the Staff Regulations was out of the question. The applicant had had ample opportunity to take part in competitions for filling posts in Career Brackets A 5/A 4 and Grade A 3. Finally, the memorandum alluded to by the applicant was merely a preparatory opinion and could therefore not be binding upon the appointing authority.

Thereupon the applicant brought an action before the Court of Justice on 14 January 1981. He claims that the Court should:

Being convinced that the action was inadmissible on a number of grounds, the Court of Auditors then lodged an application under Article 91 of the Rules of Procedure, but by a decision of 19 May 1981 the Court of Justice reserved its decision on the matter for the final judgment. It further contends that the action should in any event be dismissed as unfounded.

My opinion in this dispute is as follows:

I — Admissibility

The Court of Auditors has doubted the admissibility of the action or of individual heads of claim on several grounds.

None the less, I consider that none of these misgivings ultimately entitles us to dismiss the action or individual heads of claim as inadmissible.

1. The applicant has not asserted that the decisions previously taken on his grading were mistaken and therefore in need of amendment (which of course would no longer be possible). What he does maintain is that, after the Court of Auditors had issued in early 1980 a general decision together with the grading criteria for newly-recruited staff and had translated them into practice by way of decisions in individual cases, the need arose, in order to avoid inequalities of treatment, to review the applicant's grading and to make it conform to the new criteria in the future. That was the sole purpose of his request of 12 May 1980. In making the request he relied upon new facts and the decision rejecting it must therefore now be open to judicial review.

2. Accordingly, the Court of Auditors' objection that the decisions concerning the grading of newly-recruited staff did not constitute acts adversely affecting the applicant is clearly beside the point. Naturally the applicant does not contest those decisions as being unlawful, but rather he takes their legality for granted and relies upon them in arguing that in the interests of equal treatment an appropriate amendment of his grade was necessary.

3. No objection can be raised in principle against the contention made by the Court of Auditors, in reply to the applicant's claim for annulment of the decision relating to his complaint, that that decision constituted merely an act of confirmation — namely of the rejection of his request of May 1980 — and as such was unassailable. Quite apart from previous case-law (such as the judgment in Joined Cases 33 and 75/79), reference may be made in that regard to the general scheme of Articles 90 and 91 of the Staff Regulations, from which it is clear that any dispute must relate to an act adversely affecting the complainant. However, only an express decision or the failure to take a decision which is the subject of a complaint may be regarded as such an act and not therefore the decision on the complaint. Nor is it convincing for the applicant to argue that his complaint of 15 September 1980 referred — as had not been possible in the request of 12 May 1980 — to the memorandum which had subsequently been drafted by a Member of the Court of Auditors on the problems under discussion, as well as to later grading decisions which had not been published before May 1980. The appointing authority was in any case already familiar with those facts at the time when it dismissed the applicant's request, so that they were not new when it adopted its decision on the complaint.

4. Lastly, in the light of the foregoing, it would not be permissible to cast doubt upon the admissibility of the action on the ground that it lacks any valid subject of dispute or is too vaguely defined. In my opinion it would in principle be inappropriate to adopt too formal an approach in this matter, that is to say, in determining the requirements laid down by Article 38 (1) (c) of the Rules of Procedure. Indeed, in referring to previous acts, the application makes abundantly clear that the applicant is concerned to compel the Court of Auditors, now that it has established generous grading criteria for newly-recruited staff, henceforth to treat officials transferred from other Community institutions in a similar manner.

II — Substance

Turning to the merits of the application we must first examine whether the grading practice of the Court of Auditors in early 1980 can be described as discriminatory and whether that discloses a need to award the applicant a grade :— effective from the date of the application — which is comparable to the grade of newly-recruited officials and employees. Secondly we must consider whether the applicant should be awarded compensation on the ground of a wrongful act or ommission on the part of an institution.

1. In support of his argument the applicant has explained at length how his present grade was arrived at. Even at the beginning of his career no generosity was shown in the award of his grade, since his former employer, the Audit Board, did not apply the Commission's decision of 6 June 1973 on the allowing of additional seniority. In his case, moreover, the Audit Board departed from its previous practice by failing to promote him to Grade A 6 at the time when be became established, since in 1977 it was decided to suspend promotions pending the creation of the Court of Auditors. He alleges that it must therefore be assumed that as long ago as 1974 to 1978 his grading was too low and inconsistent with his duties under the Audit Board.

2. We must now turn to the applicant's claim for damages for a wrongful act or omission on the part of an institution, which, he maintains, his discriminatory grading discloses.

I therefore propose that the Court should grant the application and declare that the Court of Auditors is obliged to revise the applicant's grade with effect from May 1980, taking account of the criteria contained in the decision of February 1980, and to make a retroactive payment of the amounts resulting from that amendment, together with interest calculated at 6 % from the dates on which the individual payments fell due. In the event of such a decision, the Court of Auditors, being unsuccessful in the main part of its submissions, should be ordered to pay the costs.

1 Translated from the German.

2 Judgmend of 12 July 1973 in Case 28/72 Leandro Tontodonati v Commission [1973] ECR 779.

3 Judgment of 28 May 1980 in Joined Cases 33 and 75/79 Richard Kubner v Commission [1980] ECR 1677