Opinion of Mr Advocate General Lenz

Mr President,

Members of the Court,

The present action turns on the question whether the seniority of an official who, after successfully taking part in an open competition, is transferred from Category B to Category A, is to be determined in accordance with the rules in the Staff Regulations on promotion or those on recruitment.

1. The facts of the case may be summarized as follows:

The applicant, Bernard Michel, who was born in 1945, has been an official of the European Communities since 1975. He started as an Administrative Assistant in Grade B 4 and in 1979 was promoted to Senior Administrative Assistant in Grade B 3. In addition to carrying out his duties, the applicant followed a course of study at the Institut d'Enseignement Supérieur Lucien Cooremans, in Brussels, which he completed in 1977, obtaining a Licence en sciences commerciales et consulaires (civil service qualification in business studies) and qualifying as an Agrégé de l'enseignement secondaire supérieur pour les sciences commerciales (a person entitled to teach commerce in senior schools).

After successfully taking part in an open competition organized by the Commission (Competition No COM/A/325), based on qualifications and tests, to constitute a reserve of administrators in Career Bracket A 7/A 6 (Official Journal 1981 C 233, p. 21), the applicant, who at that time was in the fourth step in Grade B 3, was appointed, by a Commission decision of 11 May 1983, an Administrator in Grade A 7, Step 1, with effect from the first of that month. The decision was based inter alia on Articles 1, 2, 29 and 30 of the Staff Regulations and on the Commission's decision of 10 March 1971 on criteria for determining the grade and step of officials changing category, as amended by the decision of 7 January 1976 (classification criteria applicable to officials changing category).

According to those decisions, any official who is appointed to a post in a career bracket which belongs to a higher category is to be classified in the starting grade of that career bracket. It is further provided, in accordance with the first paragraph of Article 46 of the Staff Regulations, that the official in question is to have the seniority corresponding to the notional step equal to or next above the notional step reached in his former grade.

The applicant objected to his classification in the first step of Grade A 7 in accordance with those criteria by means of a complaint submitted through official channels in due form and time. Essentially, he stated that after taking part in an open competition he should be accorded the same rights and advantages as those enjoyed by candidates who had not previously been officials of the Communities. By virtue of Article 5 of the Commission Decision of June 1975 on the Criteria Applicable to Grade and Step Classification upon Recruitment (criteria for classification upon recruitment), additional seniority was to be granted to such officials on the basis of relevant experience of a specified period. He claimed that, according to that provision, he should be classified in the fourth step of Grade A 7, in view of his experience as an official since he obtained his university degree in 1977.

That complaint was rejected by a Commission decision of 20 September 1983, essentially on the ground that the appointment of the applicant was to be regarded as the transfer of an official from one category to another and not as a case of recruitment.

On 14 December 1983 the applicant brought an action claiming that that decision should be annulled and that the Court should declare that he is entitled to additional seniority, in accordance with the Commission's criteria for classification upon recruitment, in the same way as a newlyrecruited candidate. The applicant also requested that the Commission should be ordered to recognize his relevant experience acquired since the award of his university degree or, in the alternative, that the Appointing Authority should be ordered to reclassify him, taking into account the above considerations.

2. My opinion on those claims is as follows :

2.1. The claim for annulment of the classification of the applicant in the first step of Grade A 7 in accordance with the classification criteria applicable to officials changing category

In the applicant's view, his classification in the first step in accordance with the classification criteria for officials changing category is in breach of the principle of equal treatment of officials in the same category, as laid down in Article 5 (3) of the Staff Regulations. By virtue of that principle, all participants in an open competition must be classified in accordance with the same criteria. However, whilst candidates recruited externally are awarded additional seniority on account of previous experience in accordance with the criteria for classification upon recruitment, which are based inter alia on Article 32 of the Staff Regulations, that does not apply to officials already in the service of the Community, to whom the classification criteria applicable to officials changing category are applied. Since those criteria cannot override the mandatory rules of the Staff Regulations, the criteria for classification upon recruitment should be followed for his classification in step.

That being so, it is nevertheless necessary to verify whether, as the applicant considers, the application of those provisions is to be excluded as infringing the principle of nondiscrimination, where they lead to an official's being placed in a less-favourable position than external candidates who take part in the same competition and whose experience is evaluated in accordance with the second paragraph of Article 32 and the criteria for classification applicable upon recruitment.

In the Commission's opinion, all that can be inferred from that principle is that, on the one hand, all participants in an open competition must be subject to the same conditions regarding tests and, on the other, that participants satisfying the same requirements are to be classified in the same grade or step. Since, however, the status of an official is very different from that of an external candidate, a different classification does not constitute a breach of the principle of equal treatment.

2.2. The applicant's claims in relation to the evaluation of his experience

Since, according to the view put forward here, the classification of the applicant in the first step of Grade A 7 in accordance with the classification criteria applicable to officials changing category is valid, the remaining claims connected with the reassessment of the applicant's relevant experience need be examined only on a subsidiary basis and in brief. In that regard, the applicant asks the Court to declare that his experience from the date of the award of his university degree should be fully taken into account and, in the alternative, that the defendant should be ordered to reclassify him, taking into account that view of the law.

As the Court has emphasized inter alia in Blomefield (Case 190/82), the Appointing Authority has, by virtue of the second paragraph of Article 32 of the Staff Regulations, a wide margin of discretion covering all matters which may be relevant to the recognition of previous experience of officials appointed, as regards both the nature and duration of such experience and the extent to which it is related to the requirements of the post to be filled. According to consistent decisions regarding the exercise of that discretion, the Court may not place itself in the position of the Appointing Authority. If the Court were to uphold the applicant's claim and take the view that his seniority ought to have been determined in accordance with Article 32 of the Staff Regulations, then, notwithstanding the dismissal of the rest of the action, the classification would have to be annulled and the competent authority would have to reassess the applicant's experience.

3. In conclusion, however, I suggest that the claim should be dismissed as unfounded and that the parties should be ordered to bear their own costs in accordance with Articles 69 (2) and 70 of the Rules of Procedure.

1 Translated from the German.

2 Judgment of 12 July 1984 in Case 17/83, Angelidis v Commission, [1984] ECR 2907.

3 Opinion delivered on 21 June 1984 in Case 227/83, Moussis , v Commission, [1984] ECR 3133, 3147.

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

5 Judgment of 1 December 1983 in Case 190/82, Blomefield v Commission, [1983] ECR 3981.