Opinion of Mr Avocate General Reischl
Mr President,
Members of the Court,
The applicant in the proceedings which are the subject of this opinion has been in the service of the Commission since 16 April 1980 as a Greek-language translator. He was initially engaged as a member of the temporary staff in Grade L/A 7, Step 3. He then took part in an internal competition on the basis of qualifications and was appointed a probationary official in the same grade with effect from 1 January 1981.
Subsequently, in particular after studying the Criteria applicable to grade and step classification upon recruitment (herein referred to as the decision of 6 June 1973), which was brought to the notice of officials by the Directorate-General for Personnel and Administration in March 1981, the applicant began to entertain doubts about the correctness of his classification. On 9 June 1981 he requested that his classification should be reexamined in the light of his university degrees and his previous experience. By a memorandum of 3 November 1981, the Grading Committee informed him that it was unable to revise its original opinion regarding his classification.
The applicant then addressed a letter dated 4 February 1982 to the Director-General for Personnel and Administration, in which he requested a further review of his case in the light of the abovementioned decision of 6 June 1973. By memorandum dated 27 May 1982 the Director-General informed the applicant that in his view the Grading Committee was correct in considering that he lacked sufficient relevant experience to justify appointment in the upper grade of the career bracket L/A 7-L/A 6. Appointment to the upper grade was reserved for those candidates who could provide evidence of experience as fulltime translators. The Grading Committee did not take into account his postgraduate studies and concluded on that basis that his peripheral experience or experience treated as such was to be assessed at five years and eight months.
The applicant lodged a complaint pursuant to Article 90 of the Staff Regulations against that refusal. That complaint was expressly rejected by the appointing authority in a letter dated 1 October 1982, which was notified to the applicant on 4 October 1982.
As a result, on 28 December 1982, the applicant brought an action before the Court of Justice, whereby he asked the Court to annul that decision and to order the Commission to reclassify him in accordance with the criteria contained in the decision of 6 June 1973.
My views on that application are as follows:
1. Admissibility of the action
Although the Commission has not expressly challenged the admissibility of the action, there are in my view certain doubts regarding admissibility, which the Court must consider of its own motion. In any event, the action is inadmissible if the decision contested by the applicant is regarded purely as confirmation of earlier decisions which may not be challenged.
In that connection it is significant that in seeking reclassification witli retroactive effect, the applicant is really attempting to obtain the annulment of his original classification in Grade L/A 7, which may not be challenged because the prescribed periods for lodging a complaint and bringing an action have expired. The contested decision whereby the Commission rejected the applicant's complaint may therefore be said to be a measure confirming the original decision. The Court has always held that such a measure may be challenged in itself only if in the meantime new circumstances, such as an alteration of the factual or legal position, have come to light. Only in such a case would the administration have cause to review on application the earlier contested decision and a decision resulting from that review could not be regarded as a mere confirmatory measure.
Thus has the Court emphasized, in particular in the Williams case, that the implementation of a general decision introducing new criteria for the classification of newly recruited staff, which entails inequalities of treatment for officials appointed at an earlier stage, entitles those officials to call for a review of their administrative status with a view to their obtaining an appropriate alteration of their classification on the ground that the emergence of that new development is such as to affect them adversely.
In this case it is common ground that the criteria for classification relied on by the applicant, which were adopted in 1973, have been applied since that date but were not made generally known to the staff until March 1981. Moreover, the applicant does not claim that the Commission's practice in applying the criteria, which is summarized in Annex II to the notice publishing the decision, has changed since the adoption of the decision. He suggests merely that the publication of the decision, which occurred after his original classification, should be regarded as a new development which causes the limitation period to run afresh.
As appears inter alia from the judgments in Petersen and Blasig the discovery of the existence and applicability of purely internal administrative directives by individual officials and the publication of those directives by the administration does not in principle constitute a new development which causes the limitation period to run afresh. The Court of Justice based its decisions, in particular, in Blasig, on the principle that even where internal measures are communicated to individuals or published to the staff as a whole, their purpose remains merely to give information to the officials concerned with the matter; they are not intended to accord the staff any right. Consequently, as there was no change in the factual and legal position in that respect, the Court considered the actions inadmissible.
In my view, the emergence of an important new fact could not however be denied if in this case the notification of the decision of 6 June 1973 to the staff had led to a change in the legal nature of that decision so that a purely internal measure — as it was referred to by the Court in the judgment in Petersen of 2 December 1976 — had been converted into legal rules giving rise to rights. Furthermore, it is clear that the action must also be admissible if the applicant claims that he only became aware of the criteria for classification after his classification and at the same time discovered that those criteria had been disregarded inasmuch as other candidates had been placed in a better position in a way which constituted an abuse of power.
As those questions are closely linked to the substance of the action — it is an established principle that a prima facie case must be deemed sufficient for admissibility — I consider that it is appropriate to consider immediately the substance of the case.
2. Substance of the action
The applicant relies in the first place on the infringement of the Commission's decision of 6 June 1973 on the criteria for classification, in particular Article 3 thereof. Article 3 provides that, by way of derogation from the principle that all officials are to be appointed in the starting grade of the starting career bracket, the appointing authority may appoint successful candidates with at least five years experience in Grade L/A 6. According to the applicant, it is clear from paragraph 3 (c) of Annex II, which concerns the practical application of the criteria, that, with regard to Career Bracket L/A 7 - L/A 6, no specific fulltime experience as a translator is required. He therefore had a total of at least five years relevant experience, even if he was not entitled to claim total relevant experience of 11 years and six months. Thus, in his view, the contested decision rejecting his complaint is based on incorrect grounds.
Finally he claims in a third submission that, in view of his qualifications and experience, he was discriminated against in relation to those colleagues who were also classified in Grade L/A 7, although they could not provide evidence of similar qualifications.
Since those submissions are closely connected, I consider it appropriate to deal with them together.
I therefore propose that the action should be dismissed, if not as inadmissible — the fact that the appointing authority reexamined the matter following the applicant's complaint militates against inadmissibility — then in any case as unfounded; in accordance with Article 70 of the Rules of Procedure the parties should be ordered to bear their own costs.
1 Translated from the German.
2 Judgment of 6. 10. 1982 in Case 9/81, Williams v Court of Auditors, [1982] ECR 3301.
3 Judgment of 2. 12. 1976 in Case 102/75, Petersen v Commission, [1976] ECR 1777.
4 Judgment of 18. 6. 1981 in Case 173/80, Blasig v Commission, [1981] ECR 1649.
5 Judgment of 18. 6. 1981 in Case 173/80, Blasig v Commission, [1981] ECR 1649.
6 Judgment of 2. 12. 1976 in Case 102/75, Petersen v Commission, [1976] ECR 1777.
7 Judgment of 8. 7. 1965 in Case 110/63, Willame v Commission of the European Atomic Energy Community, [1965] ECR 649.
8 Judgment of 2. 12. 1976 in Case 102/75, Petersen v Commission, [1976] ECR 1777.
9 Judgment of 4. 12. 1980 in Case 782/79, Geeraerd v Commission, [1980] ECR 3651.
10 Judgment of 18. 6. 1981 in Case 173/80, Blasig v Commission, [1981] ECR 1649.
11 Judgment of 30. 1. 1974 in Case 148/73, Louwage v Commission, [1974] ECR 81.
12 Judgment of 28. 3. 1968 in Case 33/67, Kurrer v Coimai, [1968] UCR 127.
13 Judgment of 30. 1. 1974 in Case 148/73, Louwage v Commission, [1974] ECR 81.