JUDGMENT OF 1. 12. 1983 — CASE 343/82 MICHAEL v COMMISSION
In Case 343/82
THE COURT (Third Chamber) composed of: Y Galmot, President of Chamber, U. Everling and C. Kakouris, Judges, Advocate General: G. Reischl Registrar: J. Biancarelli, Legal Secretary
gives the following
JUDGMENT
Facts and Issues
I — The legal context, the facts and the procedure
A — The legal context
B — Facts
II — Conclusions of the parties
III — Submissions and arguments of the parties
A — Submission based on the alleged breach of the decision of 6 June 1973
1. The nature, purpose and scope of the decision of 6 June 1973
2. The question whether the applicant satisfies the conditions of professional experience set out in Article 3 of the decision of 6 June 1973.
B — Submission based on the allegation that the statement of the reasons on which the decision is based is erroneous
C — The submission based on the breach of the principle of non-discrimination
IV — Replies to the questions put by the Court
V — Oral procedure
Decision
The claim for annulment of the contested decision
The submission based on the alleged breach of the decision of 6 June 1973
The first branch of the submission
The second branch of the submission
The submission based on the alleged breach of the principle of non-discrimination
Costs
I —. The legal context, the facts and the procedure
A —. The legal context
(a). As in Career Bracket A 7 - A 6, post-graduation practical experience of a level below L/A or A work is disregarded (e.g. temporary secretarial work).
(b). Experience as a freelance is reckoned as half the equivalent period in fulltime employment.
(c). 100 % credit is given for relevant experience at a level equivalent to Category A work (as translator, economist, lawyer, etc.)
(d). The position regarding language teaching is as follows:
B —. Facts
1. Only successful candidates who can claim experience of fulltime translation may be appointed to the upper grade in Career Bracket L/A 7 -L/A 6.
2. Since postgraduate studies are not taken into account, the Committee concluded that your peripheral experience or experience treated as such is to be calculated as from January 1973 and amounts to five years and eight months.
1. Why did the Commission wait until March 1981 before informing its staff of the decision of 6 June 1973?
2. Were any measures taken to publicize that decision and if so what measures?
3. In taking that decision, did the Commission intend to adopt a general provision for giving effect to the Staff Regulations within the meaning of Article 110 of the Staff Regulations oían internal directive?
4. Does the Commission still take the view, advanced in its written observations, that the provisions of the decision of 6 June 1973 which allow for exceptions from the general principle of classification in the starting grade of the starting career bracket are based on Article 32 of the Staff Regulations? Is it not rather the case that they are based on Article 31 ?
5. If the Commission had considered that Mr Michael satisfied all the conditions laid down in the decision of 1973, would it have classified him in Grade L/A 6?
6. The Commission is requested to specify the number of its servants who since 1973 have been classified in the grade above the starting grade on the basis of the decision of 1973?
7. The Commission is requested to specify the number of its servants who, since 1973, despite satisfying the conditions laid down by the decision of 1973, have not been appointed to a grade above the starting grade for reasons relating to recruitment requirements.
8. What are the possible recruitment requirements that might prevent Mi-Michael from being classified in Grade L/A 6, provided that he satisfied the conditions laid down by the decision of 1973?
9. Does the Commission acknowledge the accuracy of the applicant's statements relating to the table of staff in the Language Service and the absence of any Greek translator in Grade L/A 6?
II —. Conclusions of the parties
1. The applicant claims that the Court should:
2. The Commission contends that the Court should:
III —. Submissions and arguments of the parties
A —. Submission based on the alleged breach of the decision of 6 June 1973
1. The nature, purpose and scope of the decision of 6 June 1973
(a). The applicant submits that the decision was intended, in particular in the context of the problems raised by the enlargement of the Community, to ensure that newly recruited officials enjoy the benefit of uniform rules concerning grading and identical conditions governing recruitment and career prospects. Its aim is therefore to ensure that new officials are assessed objectively and without discrimination, on the basis of their qualifications and experience. That requirement of objectivity precludes any arbitrary intervention by the authority responsible for grading. Although that authority must of course retain a certain discretion, such discretion must be exercised in accordance with the terms of the decision of 6 June 1973.
(b). The Commission contends in the first place that the submission is unfounded in law inasmuch as it is based exclusively on the infringement of the decision of 6 June 1973. It is clear from the preamble to that decision that the aim of the decision is simply to determine the conditions in which the Commission intends to apply the appointing authority's power, under the second paragraph of Article 32, to derogate from the general rule of classification in the first step of the official's grade. The applicant ought to have relied on an infringement of Article 32 of the Staff Regulations; the mere infringement of the decision of 6 June 1973 cannot provide grounds for an action for annulment. Indeed, the infringement of a rule which is contained in the decision of 6 June 1973 but which cannot be reconciled with Article 32 of the Staff Regulations cannot provide grounds for an action for annulment.
2. The question whether the applicant satisfies the conditions of professional experience set out in Article 3 of the decision of 6 June 1973.
(a). The applicant claims that he satisfies the conditions concerning professional experience, laid down in Article 3 of the decision and defined in paragraph 3 of Annex II to the notice publishing the decision for classification in the upper grade of the career bracket in question.
(b). The Commission contends that the applicant's argument is based on a misinterpretation of the decision of 6 June 1973.
B —. Submission based on the allegation that the statement of the reasons on which the decision is based is erroneous
1. The applicant, referring to the grounds relied on by the Grading Committee and repeated in the Director-General's letter of 27 May 1982, submits that:
2. The Commission considers generally that this submission in reality amounts only to presenting in another form the arguments cited in support of the first submission.
C —. The submission based on the breach of the principle of non-discrimination
1. The applicant submits that he has been discriminated against in relation to his colleagues who cannot claim the same qualifications and professional experience and who nevertheless have, like him, been classified in Grade L/A 7. Such a situation is moreover prejudicial to his career prospects.
2. The Commission considers on the contrary that, since the applicant does not possess greater specific experience than his colleagues who have also been appointed to Grade L/A 7, he cannot claim that he has been discriminated against. Moreover, since access to the upper grade of the career bracket is not a right for officials but is to be granted at the discretion of the appointing authority, in the light of recruitment requirements, there can under no circumstances be any discrimination. The Commission concludes that in reality it is the applicant's appointment to Grade L/A 6 that would amount to discrimination against the other translators possessing an experience with as little specific relevance to the post as that of the applicant.
IV —. Replies to the questions put by the Court
V —. Oral procedure
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 abovementioned 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 17 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.
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 nondiscrimination.
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.
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 ail 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.
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.
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/A7.
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.
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.