C-20/83

JUDGMENT OF 13. 12. 1984 — JOINED CASES 20 AND 21/83 VLACHOS / COURT OF JUSTICE

CELEX: 61983CJ0020
Datum: 1984-12-13
Källa: eur-lex.europa.eu

In Joined Cases 20 and 21/83

THE COURT (First Chamber) composed of: G. Bosco, President of Chamber, A. O'Keeffe and T. Koopmans, Judges, Advocate General: M. Darmon Registrar: H. A. Rühl, Principal Administrator

gives the following

JUDGMENT

Facts and Issues

I — Facts and written procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

First submission: Wrong application of the Staff Regulations

Second submission: Breach of the principle of the protection of legitimate expectation

Third submission: Breach of the principle of equal treatment of officials serving the same Community institution

Fourth submission: Breach of the principle of equal treatment of officials of all the Community institutions

Fifth submission: Breach of the principle of good administration in conjunction with the fourth submission

Sixth submission: Breach of the prohibition of discrimination

Seventh submission: Unjustified departure from the established practice of the Court

III — Oral procedure

Decision

Costs

I —. Facts and written procedure

II —. Conclusions of the parties

1. In Case 20/83:

2. In Case 21/83:

III —. Submissions and arguments of the parties

(i). to allow a sufficient number of officials to be appointed to a grade higher than the starting grade,

(ii). to provide an incentive so that the most capable and most experienced candidates would enter the competition and

(iii). to enable the best hierarchical structure for the service and one which was as efficient as possible to be set up within a short period of time.

(i). (a) Besides the favourable provisions concerning the award of an additional step depending on experience, the Commission grants Grade L/A 4 if the official appointed has at least 10 years' experience. (b) Furthermore, the Commission may grade an appointed official who has performed military service for a period of at least 24 months in the grade immediately above the starting grade. The applicant completed 28 months of military service.

(ii). The European Parliament may grade an appointed official in Grade L/A 4 if he has more than 10 years' relevant experience.

(iii). Under Decisions 81-5 and 82-9 of 3 December 1982 the Court of Auditors may appoint an official to Grade L/A 4 if he has more than 10 years' experience.

(iv). By a decision of 17 January 1975, the Council adopted similar rules; it applies various coefficients according to the number of months of experience and in doing so rightly takes no account of age.

(a). Not only in the case of an official transferred from one service to another or promoted from one category to another — the case expressly referred to in Article 45 (2) of the Staff Regulations,

(b). but also, under a consistent administrative practice, in the case of advancement in grade if the official concerned has not completed the minimum period in his grade as required by the first paragraph of Article 45 (1) of the Staff Regulations.

III —. Oral procedure

1. By an application lodged at the Court Registry on 8 February 1983, the applicant, a lawyer-reviser at the Court of Justice of the European Communities, brought an action (Case 21/83) under Article 91 of the Staff Regulations for the annulment of the decision of 28 October 1982 rejecting his complaint of 28 July 1982, submitted under Article 90 (2) of the Staff Regulations, in which he asked to be appointed to a grade and step corresponding to his age and experience.

2. By a second application lodged on the same day, the applicant brought a further action (Case 20/83) under Article 91 of the Staff Regulations for the annulment of the decision of 19 January 1983 rejecting his complaint of 15 October 1982 lodged against the Court's decision of 29 June 1983 appointing him at the end of an internal competition to a post of lawyer-reviser in Grade L/A 5, Step 1, with seniority in step backdated to 1 September 1980.

3. The applicant was engaged as a member of the auxiliary staff on 15 September 1980 in the capacity of a lawyer-linguist. On 1 January 1981 he was appointed a temporary servant in Grade L/A 6, Step 3. On 1 April 1981 he was made a temporary reviser for a period of six months. By a supplementary clause dated 15 September 1981 his contract was amended to the effect that from 1 April 1981 he was employed as a lawyer-reviser and classified in Grade L/A 5, Step 1. At the end of internal competition No CJ 14/81 he was appointed a probationary official employed in the capacity of a lawyer-linguist and classified in Grade L/A 6, Step 3, with effect from 1 October 1981. His temporary appointment as a reviser was renewed and he received an allowance covering the difference between his pay in Grade L/A 6 and the pay he would have received in Grade L/A 5 in which he had been classified as a temporary servant.

4. On 20 January 1982 the applicant submitted a request to the President of the Court asking to be established as a lawyer-reviser Career Bracket L/A 5 -L/A 4. Having received no reply to his request, he submitted a complaint, dated 28 July 1982, under Article 90 (2) of the Staff Regulations in which he asked to be appointed to a grade and step which corresponded to his age and experience.

5. By decision of 30 June 1982 the applicant was established in Grade L/A 6, Step 3, with seniority in step backdated to 1 January 1981.

6. At its administrative meeting on 29 June 1982 the Court, upon hearing the report of the Selection Board in internal competition No CJ 149/81, appointed the applicant a lawyer-reviser in Grade L/A 5, Step 1, as from 1 July 1982 with seniority in step backdated to 1 September 1980. On 15 October 1982, the applicant submitted a complaint against that decision, which was notified to him on 5 October 1982, and asked to be appointed to Grade L/A 5, Step 4.

7. The complaint dated 28 July 1982 was rejected by a decision of 28 October 1982 and the complaint of 15 October 1982 by a decision of 19 January 1983. The applicant has brought these actions against those decisions.

8. In Case 21/83 the applicant asks the Court to annul the decision of 28 October 1982 and to declare that he must be regarded as recruited for the purposes of Articles 29 to 32 of the Staff Regulations and that consequently Article 46 of the Staff Regulations is not applicable to him. In Case 20/83 he asks the Court to annul the decision of 19 January 1983 and to declare that he must be treated as a newly recruited official for the purposes of Articles 29 to 32 of the Staff Regulations and that consequently Article 46 is not applicable to him.

9. In its decision of 28 October 1982 the appointing authority stated that in his request of 20 January 1982 the applicant asked to be appointed to a post of lawyer-reviser and classified in Grade L/A 5, Step 4, without taking part in a competition and moreover without meeting the conditions laid down in Article 45 of the Staff Regulations. In so far as the applicant's request was for his immediate appointment to Grade L/A 5, it had lost its purpose from the time when the applicant, who was at that time a lawyer-linguist in Grade L/A 5, Step 3, entered the competition for the recruitment of revisers or at any rate once he was appointed a reviser and classified in Grade L/A 5, Step 1. In any case, it would have been impossible to grant his request without infringing the provisions of the Staff Regulations. At the time of his appointment to Grade L/A 5, the applicant was not a newly recruited official for the purposes of Article 32 of the Staff Regulations but an established official promoted from Grade L/A 6 to Grade L/A 5. His grading was therefore governed by Article 46 of the Staff Regulations.

10. In its decision of 19 January 1983 the appointing authority rejected the complaint of 15 October 1982 for those reasons.

11. In both actions the applicant's submissions are as follows:

12. The decision of 28 October 1982, which the applicant asks to be annulled, was taken by the appointing authority in response to the applicant's complaint of 28 July 1982. That complaint was lodged after the applicant had submitted the request to the President of the Court on 20 January 1982 asking to be established as a lawyer-reviser (Career Bracket L/A 5 - L/A 4). When he submitted that request the applicant was a probationary official in Grade L/A 6, having been classified among the successful candidates in Competition No CJ 14/81. It must be pointed out that the purpose of that competition was to recruit lawyer-linguists in Career Bracket L/A 7 - L/A 6 and that the Court could not establish the applicant in a post in Career Bracket L/A 5 - L/A 4 without infringing the provisions of the Staff Regulations. The action must therefore be dismissed, it being unnecessary to consider the submissions set out in the application.

13. The applicant's argument is that in order to recruit five Greek-language lawyer-revisers the Court published Notice of Internal Competition No CJ 149/81 in accordance with Article 29 of the Staff Regulations because it was impossible to fill those five posts by promotion, since none of the Greek staff in the service of the Court met the formal requirements — none of them was an established official who had completed two years' service in Grade L/A 6. The same reason was given by the Court's Administration when it informed him in its letter of 5 April 1982 that the application he had submitted in response to Vacancy Notice No CJ 149/81 could not be accepted since he was not eligible for transfer or for promotion.

14. He contends that the appointing authority was therefore wrong to base its decisions on Articles 45 and 46 of the Staff Regulations. It was not a question of promotion but of recruitment in another capacity, namely as a lawyer-reviser. He considers that he must, in any event, be regarded as having been recruited at the outset as a lawyer-reviser and that Article 31 (2) (b) and the second paragraph of Article 32 of the Staff Regulations must be applied to his case. Chapter 1 of Title III of the Staff Regulations is entitled Recruitment and comprises Articles 27 to 34. It follows that the successful candidates in an internal competition are not promoted but recruited under Article 29 (1) (b).

15. It is first of all necessary to recall the provisions of the Staff Regulations on which the applicant relies. Chapter 1 of Title III of the Staff Regulations deals with recruitment procedures while Chapter 3 governs staff reports, advancement to a higher step and promotion. Article 29 of the Staff Regulations provides that, except in the case of the recruitment of officials in Grade A 1 or A 2 and in exceptional cases, the appointing authority must first consider, before filling a vacant post in an institution, (a) whether the post can be filled by promotion or transfer within the institution, (b) whether to hold competitions internal to the institution and (c) what applications for transfer have been made by officials of other Community institutions and then follow the procedure for competitions on the basis either of qualifications or of tests, or of both qualifications and tests.

16. Article 31 provides that the candidates selected are to be appointed as follows :

17. Article 45, which forms part of Chapter 3, governs promotion. It provides that promotion is to be by decision of the appointing authority. It is effected by the appointment of the official to the next higher grade in the category or service to which he belongs. To be promoted, an official must have completed a minimum period in his grade. For officials appointed to the starting grade in their service or category, that period is six months from the date of their establishment; for other officials, it is two years. Paragraph (2) of the same article provides that an official may be transferred from one service to another or promoted from one category to another only on the basis of a competition.

18. It appears from the facts set out above that, simply by virtue of Article 45 of the Staff Regulations, in April 1982 the applicant was not eligible for promotion. He had been appointed a probationary official in Grade L/A 6 as from 1 October 1981 by decisions of 11 and 25 November 1981. Before being established, he had to serve a probationary period of nine months. Even after completion of the probationary period, an official eligible foipromotion had to complete a minimum period in his grade which in the applicant's case was two years.

19. According to Article 29 of the Staff Regulations, when, the appointing authority intends to fill a vacant post, it must first consider whether the post can be filled by promotion or transfer within the institution and then whether to hold competitions internal to the institution. The order of preference thus established is the very expression of the principle that recruited officials are entitled to reasonable career prospects.

20. While recruitment marks entry into a category or a service of the Community institutions, promotion governs the advancement of the career thus begun within the category or service which the candidate has entered.

21. The decision of 29 June 1982 has the effect of both appointing and promoting the applicant at the same time, its preamble referring in fact to Article 29 and Articles 45 and 46. It applies the rules for grading officials to the case of an official appointed to new duties as a lawyer-reviser as a result of his having succeeded in internal competition No CJ 149/81. It thus concerns the advancement of the applicant's career.

22. It is true that, if Articles 31 and 32 of the Staff Regulations had been applicable to his case and not Articles 45 and 46, the derogations contained in Article 31 (2) and the second paragraph of Article 32 might have been applicable to him. It must be pointed out however that those derogations are to be applied at the discretion of the appointing authority, although that authority could not refuse to apply them to the applicant if it was proved that this was the consistent practice of the institution. In this regard, it appears that since 1973 no lawyer-reviser in Career Bracket L/A 5 - L/A 4 employed at the Court of Justice has been directly recruited from outside the Community institutions and that the Court's established practice is to treat the appointment of a serving official to the next higher career bracket following an internal competition as promotion and to apply the rule contained in Article 46 of the Staff Regulations in such a case.

23. That practice does not infringe any provision of the Staff Regulations. It is in the interests of sound administration for the institution to consider whether a post can be filled by way of an internal competition. In such a case the procedure chosen to fill the vacant post must be equated with the promotion procedure; in any event the official promoted through the procedure cannot be treated more favourably under the Staff Regulations than an official who has completed the required minimum period of service.

24. It follows from those considerations that the Community institutions are right to treat an official's appointment to a higher grade following an internal competition as promotion and in that regard to apply the rules of the Staff Regulations on promotion properly so called.

25. The applicant is therefore wrong in complaining in his first submission that the appointing authority erred in applying the Staff Regulations. That submission must therefore be rejected.

26. The applicant states that in December 1979 the Court published a notice of competition in various Greek newspapers with a view to recruiting a head of department and lawyer-revisers and translators of Greek mother tongue. The applicant submitted an application and in the section for indicating the post applied for he put chief or equivalent. The Court offered him a contract as a member of the auxiliary staff in Category AII, Class 4. He complained about this by telephone and in a letter dated 29 July 1980 in reply to which he received towards the end of August 1980 a letter dated 25 August 1980 in which he was assured that, once the 1981 Budget was adopted, the best lawyer-linguists will have the opportunity to be appointed as revisers (Grade L/A 5). He contends that he was thus legitimately entitled to expect that after the initial interim period of six months, which would be a probationary period or test or both, he would be established as a lawyer-reviser. He thinks that at the end of competition No CJ 14/81 he ought to have been established as a lawyer-reviser (Categoty L/A 5 - L/A 4). The applicant contends that the Court thus acted in breach of the legitimate expectation which that letter had given him.

27. That submission cannot be accepted. The letter of 25 August 1980 was meant to allay the misgivings of the applicant who was disappointed at having been engaged as a member of the auxiliary staff in Category A II, Class 4, by pointing out that that situation was only temporary owing to the budgetaiy situation at the time. However, the letter offered the prospect of a career in the new language division once budget funds had been appropriated. That letter was therefore only informative in nature and did not commit the appointing authority to appoint the applicant to the desired grade.

28. The applicant points out that when the Court previously appointed English-and Danish-language lawyer-revisers in exactly the same circumstances as the applicant it took account of their previous experience, training and age and appointed them, depending on the circumstances of each case, to a grade or step higher than their starting grade or step. In support of that argument, the applicant refers to the case of a lawyer-reviser who, according to him, was appointed to Grade L/A 4.

29. That submission cannot be accepted either. The appointing authority has stated, without being contradicted by the applicant, that the consistent practice of the Court has been to appoint lawyer-linguists to Grade L/A 6, which was the grade given to the applicant when he was appointed as a lawyer-linguist by the decisions of 11 and 25 November 1981. The applicant has not succeeded in showing that his allegations are true. It emerged at the hearing that the lawyer-reviser to whom he was referring was not an official but a temporary servant whose situation is subject to different considerations.

30. The applicant relies on decisions of other Community institutions regarding the classification of appointed officials and the application of Articles 31 and 32 of the Staff Regulations. He contends that in adopting the contested decisions the appointing authority acted out of step with the appointing authorities of other institutions. It improperly applied criteria which were unfamiliar and in any event unfavourable to him, which constituted discrimination against him in relation to his colleagues in other institutions doing the same work and a breach of the principle of fairness which is recognized as a general principle of the Community legal order.

31. This submission cannot be accepted either. The cases mentioned by the applicant concern only measures taken at the time of initial recruitment and are therefore irrelevant in the case of an appointment made after an internal competition.

32. In these submissions the applicant contends that the principle of sound administration required the appointing authority to take account of all the factors on which it might base its decision. It did not take account of information contained in his personal file, particularly information regarding his training in general and his special experience. By not applying Article 31 (2) (b) and the second paragraph of Article 32 of the Staff Regulations, the appointing authority put an official already in the service of the Court in a worse position than an official who had just entered its service. In adopting the contested decision the Court departed from the practice which it had previously followed regarding the award of additional seniority to the appointed official depending on his qualifications and experience and thus acted in breach of any internal instructions of the Court which may be in force regarding the application of Articles 31 and 32 of the Staff Regulations.

33. Those arguments cannot be accepted. Starting from the view that since his appointment resulted from a competition the Court could regard him as having been promoted, the applicant is trying to demonstrate that the Court could not apply the rules on promotion in his case. Those arguments were dealt with in connection with the first submission. The fifth, sixth and seventh submissions must therefore be rejected.

34. Since the applicant has failed in all his submissions, the application must be dismissed.

35. Under Article 69 (2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. However, under Article 70 of the Rules of Procedure, the institutions are to bear their own costs in proceedings by servants of the Communities.

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

1 Dismisses the application;

2 Orders the parties to pay their own costs.