JUDGMENT OF 12. 7. 1984 — CASE 17/83 ANGELIDIS v COMMISSION

In Case 17/83

THE COURT (Second Chamber) composed of: K. Bahlmann, President of Chamber, P. Pescatore and O. Due, Judges, Advocate General: C. O. Lenz Registrar: J. A. Pompe, Deputy Registrar

gives the following

JUDGMENT

Facts and Issues

I — Statement of facts

II — Written procedure and. conclusions of the parties

III — Submission and arguments of the parties during the written procedure

A — The legal aspects

B — The factual elements

IV — Oral procedure

Decision

Costs

I —. Statement of facts

II —. Written procedure and. conclusions of the parties

(a). annul the decision assigning him to a step in the measure of 4 May 1982, appointing him a probationary official with effect from 1 April 1982 and in consequence in the measure of 14 December 1982 establishing him in his post with effect from 1 January 1983;

(b). declare that he must be classified in Step 3 of Grade A 5 in the said measures;

(c). annul the implied rejection of the complaint made in this respect on 5 June 1982;

(d). order the defendant consequently to rectify the situation of the applicant, particularly with regard to his remuneration;

(e). order the Commission to pay the costs.

III —. Submission and arguments of the parties during the written procedure

A —. The legal aspects

(a). According to the second paragraph of Article 32 of the Staff Regulations, the appointing authority may, taking into account, the training and special experience for the post of the person concerned, allow additional seniority in his grade, which is not to exceed 71 months in Grades Al to A 4, L/A 3 and L/A 4 and 48 months in other grades. Moreover, Article 5 (1) of the Commission Decision of 6 June 1973 on the criteria applicable to grade and step classification on recruitment provides that, in consideration of any experience which a candidate may have going beyond that taken into account in determining the grade at which he is appointed, the appointing authority must grant additional seniority in accordance with the table annexed to that decision. That table shows that relevant experience of at least 11 years entitles an official in Grade A 5 to additional seniority of 48 months, which is equal to two steps.

(b). Article 46 is to be found in Chapter 3 of Title III of the Staff Regulations, entitled Reports, Advancement to a Higher Step and Promotion. The Staff Regulations provide for two means of filling vacant posts: promotions and other methods of appointment. Article 46, by reason of the very place which it occupies in the Staff Regulations, can only be applicable to cases of promotion and not to the other methods of appointment.

(c). The decision appointing the applicant as a probationary official expressly refers to Article 32, and not to Article 46, of the Staff Regulations.

(d). The provisions relied upon by the Commission in support of its position are totally irrelevant.

(e). The supposed lacuna in the Staff Regulations or in the decision of 6 June 1973 may be explained by the fact that the problem of the step classification of a former member of the temporary staff appointed as an official to a post in a higher career bracket must be dealt with according to the clear wording of Article 32 of the Staff Regulations and Article 5 (1) of the decision of 6 June 1973.

(f). The Commission's argument based on the principle of equality proceeds from a comparison of two situations which are completely different, and which thus objectively justify different solutions. There is no connection between a recruitment procedure by open competition and a promotion procedure. Officials cannot be promoted from Grade A 7 to Grade A 5.

(a). According to Article 15 of the Conditions of Employment of Other Servants, temporary staff are to be graded initially in accordance with Article 32 of the Staff Regulations and, in the event of assignment to a post corresponding to a higher grade his grading is to be determined in accordance with Article 46 of the Staff Regulations. Thus, only the initial classification' of the temporary employee is determined in accordance with Article 32 of the Staff Regulations. It may be deduced from that, by virtue of the principle of the continuity of careers, that a later classification, even as an official, cannot be based on the said Article 32.

(b). No provision of the Staff Regulations or of the decision of 6 June 1973 expressly deals with the problem of the step classification of a former member of the temporary staff who, having been appointed to a post in a given career bracket, is appointed, as an official, to a post in a higher career bracket. However, according to Article 8 of the decision of 6 June 1973, a member of the temporary staff appointed as a probationary official to a post in the same career bracket with classification in the same grade is, on the day of his appointment as a probationary official, entitled to the seniority acquired since his appointment as a member of the temporary staff. That provision is to be found under the general title Temporary Staff Appointed as Officials. The fact that it mentions expressly only the case of a member of the temporary staff appointed as an official to a post in the same career bracket is because that is the most common situation (plerumque fit). Article 8 of the decision of 6 June 1973 is no more than the application of a general principle by which the appointment of a former member of the temporary staff as an official does not give rise to a fresh assignment to a step. In this way, the principle of career continuity from the time at which the member of the temporary staff is engaged by the Commission is established.

(c). The application of Article 32 to former temporary staff would have consequences which are incompatible with the principle of equal treatment.

(d). The fact that Article 46 of the Staff Regulations is to be found under the heading Chapter 3 — Reports, Advancement to a Higher Step and Promotion is in no way decisive. In the absence of provisions dealing expressly with the problem of the step classification of a former member of the temporary staff appointed to a post in a higher career bracket, the appropriate solution, in accordance with the principle of career continuity, is to apply Article 46 by analogy.

(e). The fact that the decision appointing the applicant as a probationary official expressly refers to Article 32 of the Staff Regulations is also not decisive. That decision was drawn up on a printed form, used in the great majority of cases in which persons from outside the Communities are recruited as probationary officials.

B —. The factual elements

(a). From 12 January 1970, the date on which he obtained his degree in agricultural science, he worked as an agricultural expert. Until the end of 1975 he did this exclusively in the private sector as an adviser to agricultural undertakings. From the end of 1975 until he was engaged by the Commission on 19 July 1979, he worked both in the private sector and in the public sector. From 1 September 1979 until the date.of his appointment as a probationary official, he was a member of the temporary staff of the Directorate General for Agriculture.

(b). The circumstance that, from 1970 to the end of 1975, the applicant's experience was exclusively acquired in the private sector in no way signifies that it was not relevant. It would be arbitrary to limit the applicant's relevant experience to the period during which he was in the Greek civil service, namely, from October 1975. The applicant was engaged as an adviser to the Greek Ministry of Coordination precisely because of the special experience he had already acquired in the private sector, and later appointed to that Ministry on the basis of all his previous experience in agricultural science.

(c). That the Commission should contest the relevance of the applicant's experience during the period from 1970 to the end of 1975 is uncalled for.

(d). The Commission's argument amounts to a misinterpretation of both the third paragraph of Article 2 of its decision of 6 June 1973, according to which experience is to be calculated from the time at which the candidate was awarded the qualification giving access to the category in which the post falls, and of the system of additional seniority itself, which was established by that decision.

(e). The applicant was admitted to a competition for recruitment to A 3 posts, in which one of the special conditions of admission was to have a long period of post-university experience related to the post chosen by the candidate. One of the posts chosen by the applicant for that competition was that of adviser in the Directorate General for Agriculture.

(f). The Commission's argument based on the fact that the applicant was engaged as a translator in Grade L/A 7, Step 3, and was transferred to a post in Grade A 7, Step 3, in the Directorate General for Agriculture is totally irrelevant.

(g). When the applicant was appointed as a probationary official, the Commission did not undertake a fresh classification procedure. The Grading Committee, set up by Article 6 of the decision of 6 June 1973, was thus not consulted and could not have expressed an opinion on the applicant's step classification.

(a). The only specific experience which may be taken into account, regard being had to the type and the level of the post to which the applicant was appointed on 1 April 1982, was that which he acquired in the period following his appointment in 1975, as an independent adviser to the Greek Ministry of Coordination.

(b). During the period from January 1970 to June 1975, the applicant spent two years doing his military service, followed by studies at the Technical High School for Advanced Studies, Madrid, and at the University of Montpellier I.

(c). The Grading Committee, on 26 October 1979, recommended that the applicant be placed in Grade A 7, Step 3. That classification was not in fact as a translator, but as an administrator. On 1 January 1980, that part of the applicant's experience considered relevant with regard to the A 7 post which he occupied at that time was considered not to be greater than seven years.

(d). The notice of the competition organized for the purpose of recruiting heads of division of Greek nationality was limited, by a flexible formula, to requiring that candidates have long professional experience. In fact, the selection board, taking account in particular of the lower age-limit fixed by the notice of competition, decided to admit any candidate who could give evidence of experience or further studies, or both, of at least 10 years in addition to his university degree. In the case of the applicant, the selection board, taking account of the experience acquired and the further studies in relation to the posts chosen, calculated his experience, in the broadest sense of that term, at 10, and not at 12, years. However, since experience is assessed in relation to the post to be filled, the length of the applicant's experience as fixed by the selection board cannot be simply transposed for the purpose of determining the step to be granted to him, in the light of the post occupied since 1 April 1982.

(e). The fact that the Commission, applying Article 46 of the Staff Regulations, did not consult the Grading Committee at the time when the applicant was recruited as an official, is not of such a nature as to entail the annulment of the contested decision, even if it were in theory to be regarded as a procedural irregularity. It is clear from the settled case-law of the Court that an irregularity in the procedure leading up to a decision will entail the nullity of that decision only if it can be shown that, were it not for the irregularity, the administrative procedure might have led to a different result.

IV —. Oral procedure

1. By an application lodged at the Court Registry on 1 February 1983, Angel Angelidis, an official of the Commission of the European Communities, brought an action seeking the annulment of the decision relating to his step classification, contained in the instruments of 4 May and 14 December 1982 appointing the applicant as a probationary official and as an established official in Grade A 5 respectively, and assigning him to the Directorate General for Agriculture as a principal administrator.

2. The documents before the Court indicate that the applicant was engaged, in the first place, by a contract of 11 July 1979 as a member of the temporary staff in the capacity of translator at Grade L/A 7, Step 3. By a contract of 11 August 1980, he was transferred to a post of administrator in the Directorate General for Agriculture, still as a temporary employee, in Grade A 7, Step 3, keeping the seniority acquired in his previous post. Having been successful in Competition No COM/A/377, he was appointed, by a decision of 4 May 1982, as a probationary official in the capacity of principal administrator in Grade A 5, Step 1.

3. On 14 June 1982, Mr Angelidis submitted a complaint, registered on 5 July 1982, seeking additional seniority of 48 months and therefore classification in Step 3 of Grade A 5. No reply was made to that complaint. By a decision of 14 December 1982, the applicant was established in the same capacity and at the same grade and step.

4. The subject of the dispute is the applicant's step classification. Mr Angelidis considers that in the light of his experience before entering the service of the Communities he should have been classified, at the time of his appointment as an official, in Step 3 of his grade, by virtue of the second paragraph of Artie e 32 of the Staff Regulations and Article 5 of the Commission decision of 6 June 1973 on the criteria applicable to grade and step classification upon recruitment.

5. The applicant claims that the Court should :

6. The Commission's principal argument is that Article 32 of the Staff Regulations, relied upon by the applicant, is not relevant. That article applies only to cases of recruitment. However, Mr Angelidis was not recruited as a result of the contested decisions because he was a member of the temporary staff before being appointed as an official. His case must therefore be dealt with by analogy with Article 46 of the Staff Regulations, which deals with promotions. However, in view of the distance separating Grade A 7, Step 3 previously occupied by the applicant, and Grade A 5, Mr Angelidis could only obtain the first step in his new grade.

7. In the alternative, the Commission contends that even if the applicant's appointment to Grade A 5 must be regarded as a recruitment, he does not meet the conditions laid down by the decision of 6 June 1973 because his experience has not been sufficiently long. The Commission has already recognized that he has seven years' experience, which was one of the conditions of Competition No COM/A/377. However, the table annexed to the decision of 6 June 1973 grants additional seniority only in respect ot previous experience of more than eight years.

8. The parties' arguments make it necessary to define the scope of Article 32 concerning recruitment, and of Article 45 concerning the determination ot step in cases of promotion to a higher grade.

9. According to the first paragraph of Article 32: An official shall be recruited at the first step in his grade. The second paragraph adds: However, the appointing authority may, taking account of the training and special experience for the post of the person concerned, allow additional seniority in his grade, which is limited to 48 months, or two steps, in the grade in question.

10. According to the first paragraph of Article 46, an official appointed to a higher grade is to have, in his new grade, the seniority corresponding to the notional step equal to or next above the notional step reached in his former grade, plus the amount of the two-yearly increment for his new grade, subject to the proviso that, according to the third paragraph of the same article, an official appointed to a higher grade is always to be classified not lower than the initial step for that grade.

11. The provisions concerning promotions, of which Article 46 forms part, whether from the point of view of their wording or from that of their context, are intended to govern the advancement, in their respective categories and branches, of employees of the Community who, at the time ot their promotion, already have the status of officials Those provisions are thus not adapted to the position of an employee who, after a period ot service as a member of the temporary staff, obtains, by means ot an open competition, his first definitive appointment within the Community administration after completing the required probationary period.

12. On the other hand, the applicant's case is governed by Article 32, whose very purpose is to govern the position of an employee who has become an official of the Community for the first time as a result of a recruitment procedure which will normally have been a competition.

13. It follows that the Commission, when it appointed the applicant following upon the competition, was required to consider the possibility of additional seniority under the terms of the second paragraph of Article 32, in the light of the criteria laid down in its decision of 6 June 1973. Since the Commission applied Article 46 in determining the applicant's step in his grade, it cannot have considered the possibility of taking the applicant's previous experience into account pursuant to the aforementioned provisions. The decisions of 4 May and 14 December 1982 must therefore be annulled in so far as they concern the applicant's classification in step.

14. However, the applicant also asks the Court to declare that he must be assigned to Step 3 of Grade A 5.

15. That ancillary claim is inadmissible inasmuch as it goes beyond the power of review conferred on the Court, in regard to staff cases, by the Treaties and by the provisions of Article 91 (1) of the Staff Regulations.

16. As the Court had occasion to emphasize in its judgment of 1 December 1983 (Case 190/82 Blomefield v Commission [1983] ECR 3981), the appointing authority has a wide discretion, within the limits laid down by the second paragraph of Article 32, in assessing the previous experience of a person appointed as an official both as regards the nature and the duration of that experience and its relationship, be it close or otherwise, to the requirements of the post to be filled.

17. In this case, it will be for the Commission to reconsider the applicant's position and apply to it the criteria laid down in Article 32 of the Staff Regulations and the decision of 6 June 1973 with a view to arriving at a decision on the applicant's classification in step.

18. Under the terms of Article 69 (2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs.

19. As the Commission has failed in its principal submissions, it must be ordered to pay the costs.

On those grounds, THE COURT (Second Chamber) hereby:

1 Annuls the Commission's decision of 4 May 1982 appointing the applicant as a probationary official in Grade A 5, Step 1, and its decision of 14 December 1982 establishing him in the same capacity m so far as they concern the classification in step;

2 Dismisses the remainder of the application;

3 Orders the Commission to pay the costs.