Opinion of Mrs Advocate General Rozès

Mr President,

Members of the Court,

The Court has before it an action brought against the Commission of the European Communities by Adam Blomefield, seeking the annulment of decisions concerning his classification in step.

I — The facts are as follows:

Adam Blomefield participated successfully in the tests in Open Competition No COM/LA/141, organized by the Commission with a view to drawing up a reserve list for the recruitment of assistant translators (Grades L/A 8 and L/A 7 of the Language Service).

The competition notice stated that the basic monthly salary on recruitment would correspond to classification in Grade L/A 8, Step 1. It was, however, added that regard would be had to the training and specific professional experience of the candidate for the purpose of awarding a higher step. In exceptional cases a basic salary corresponding to classification in Grade L/A 7, Step 3, might be awarded.

After being entered on the reserve list, Mr Blomefield was appointed a probationary official on 23 August 1977, in the capacity of assistant translator, with effect from 1 August 1977. He was placed in Grade L/A 7, Step 1.

He was subsequently established on 26 April 1978, with effect from 1 May 1978.

Unlike the decision appointing him a probationary official, the decision which established him did not specify his step in the grade and carried no reference to the post which he occupied. It may nevertheless be assumed that the post in question was that of assistant translator.

Following the amendment of the Staff Regulations of Officials of the European Communities by Council Regulation (Euratom, ECSC, EEC) No 912/78 of 2 May 1978, the career bracket of assistant translator no longer extends beyond Grade L/A 8, whilst Grades L/A 6 and L/A 7 thereafter constitute the career bracket of translator. Thus the duties performed by Adam Blomefield are now those of a translator.

II — In March 1981 the Director-General of Personnel and Administration at the Commission notified to the staff of that institution a Commission Decision on the Criteria Applicable to Grade and Step Classification upon Recruitment.

I shall return later to the legal nature of that measure, since its status determines the admissibility of this action.

At this stage I shall confine myself to noting that the decision, adopted on 6 June 1973, was originally intended to facilitate the many selections and decisions which had to be made during a comparatively short period; however, as the Commission explained in reply to a question put to it by the Court in Case 343/82 (Michael v Commission), it wished to be sure that those rules displayed the requisite stability and coherence to ensure that members of staff received uniform treatment in the course of their careers.

The 1981 version of that decision contains certain amendments to the 1973 text in order to reflect the changes introduced by Regulation No 912/78.

The Commission considered it opportune to publish simultaneously with that decision an annex summarizing the practice of the Grading Committee set up under Article 6 thereof and describing its composition.

A copy of each of these various documents was sent to every member of staff and, since March 1981, every successful candidate in a competition has received one.

On the strength of the provisions of the above decision, Mr Blomefield submitted a request under Article 90 (1) of the Staff Regulations to the appointing authority on 6 June 1981, in which he sought to be placed in Step 3 of Grade L/A 7 with effect from his appointment on 1 August 1977.

The secretary of the Grading Committee referred to in Article 6 of the decision replied to the applicant on 9 July 1981, informing him that after a preliminary exchange of views on 17 June 1981 the Committee was going to rule, in September or October 1981, on all the requests submitted following publication of the decision and that he would be personally notified of the opinion relating to him.

On 7 January 1982, Mr Blomefield submitted a complaint under Article 90 against the implied rejection of his request of 6 June 1981.

On the same day the member of the Commission responsible for staff matters informed him that the Committee had, on 11 November 1981, reached the conclusion that his classification in Grade L/A 7, Step 1, was in accordance with the criteria applicable at the time of his recruitment and that those criteria had moreover been applied equally to other successful candidates from the same competition. Consequently, the Commission was endorsing the opinion of the Grading Committee.

By an application lodged on 28 July 1982, Mr Blomefield claimed that the Court should:

He further requests the Court to declare that he should be classified in Step 3 of Grade L/A 7 or, in the alternative, to order the Commission to grant him, as from a date to be fixed in the judgment, additional seniority of two steps.

III — Without pleading a formal objection, the Commission states that the admissibility of the application seems dubious, at the very least.

That issue should be considered first.

It could be argued that the directives made public in March 1981, which do not refer to Article 110 of the Staff Regulations, constitute a purely internal measure and confer no right of which employees may usefully avail themselves; in that case the measure would have the same scope as the criteria which were at issue in the Petersen case cited above and the Court might follow that decision by holding that consideration of the legal nature of these criteria, which is necessary for a decision on the admissibility of the application, also arises in connection with the examination as to whether the application is wellfounded.

Whilst it did not necessarily call for the adoption of a general implementing provision under Article 100, Article 31 of the Staff Regulations did not preclude the adoption, in order to avoid its being applied in an arbitrary manner, of an internal directive within the meaning of the Court's judgment in the Louwage case, which states: Although an internal directive has not the character of a rule of law which the administration is always bound to observe, it nevertheless sets forth a rule of conduct indicating the practice to be followed, from which the administration may not depart without giving the reasons which have led it to do so, since, otherwise the principles of equality of treatment would be infringed.

It seems to me that the Commission's decision of 1973 assumed, at all events, the character of an internal directive from the moment of its publication in 1981, when, by reason of the very manner of its publication, it lost the transient character which it may originally have had.

The fact of publication enables officials to challenge the details of the classification which they accepted at the time of their recruitment. In that connection, the Court has held that, in any case, the appointment of a official cannot be the outcome of an agreement but is based on a unilateral decision of the appointing authority.

In the Williams case, the Court described as a general decisionthe measure which was adopted by the Court of Auditors in February 1981 and which is fully comparable to the decision of the Commission in the present case.

Finally, the fact that the Grading Committee made a ruling on the applicant's request amounts to a new event. The Committee's opinion — of which he was not informed — is referred to in the letter of 7 January 1982, the annulment of which is the subject of the applicants' first head of claim. The letter is not purely confirmatory in character, since it is based essentially on the opinion delivered by the Committee.

I therefore consider the action admissible.

IV — As for substantive matters, the first consideration is whether Mr Blomefield satisfies the requirements of professional experience laid down by the decision of 6 June 1973.

1. That decision, which permits exceptions to the general principle of appointment in the starting grade of the lowest career bracket of the official's category, derives, not from Article 32 of the Staff Regulations but from Article 31 thereof.

2. I shall now turn to consider whether that principle or other legitimate grounds allowed the Commission to depart from that rule in the applicant's case.

3. Finally, Mr Blomefield adds that other successful candidates in the competition in which he took part were awarded additional seniority of 48 months.

I propose the following:

1 Translated from the French.

2 Official Journal 1976, C 127, p. 6.

3 Official Journal 1978, L 119, p. 1.

4 Judgment of 2 December 1976, Case 102/75 Petersen v Commission [1976] ECR 1777, para. 23.

5 Anieles 2 and 3.

6 The complaint was registered on 8 January 1982.

7 The term employed in the notice to Commission staff of March 1981.

8 [1976] ECR 1777, para. 12.

9 Judgment of 30 January 1974, Case 148/73 Louwage v Commission [1974] ECR 81, para. 12.

10 Petersen case, cited above, para. 16.

11 Judgment of 6 October 1982, Case 9/81 Williams v Court of Auditors [1982] ECR 3301.

12 Louwagcv Commilsioii, ciicd above, para. 13.

13 See Annex II to the decision (Practical Application — General Survey), paragraph 1 (b).

14 Judgment of 6 October 1982, Case 9/81, para. 28 of decision and operative part of judgment.