JUDGMENT OF 29.3.1984 — CASE 25/83 JUDGMENT OF THE COURT (THIRD CHAMBER)

In Case 25/83

THE COURT (Third Chamber) composed of: Y. Galmot, President of Chamber, U. Everling and C. Kakouris, Judges, Advocate General: C. O. Lenz Registrar: P. Heim

gives the following

JUDGMENT

Facts and Issues

I — Facts

II — Conclusions of the parties

III — Written procedure

IV — Relevant provisions of the

V — Summary of the submissions and arguments of the parties

VI — Submissions and arguments of the parties in full

VII — Oral procedure

Decision

Costs

I —. Facts

1. Adam Buick started work for the Commission in January 1974. He was classified in Grade A 7, Step 3, on recruitment. On 1 January 1978 he was promoted to Grade A 6.

2. In March 1981, staff were informed by a Notice to Commission Staff of the Commission's decision of 6 June 1973 On the Criteria Applicable to Grade and Step Classification upon Recruitment. Enclosed with the notice were the decision itself (Annex I), a document entitled Practical Application — General Survey (Annex II) and a statement on the membership of the Grading Committee (Annex III). The provisions which are relevant to this case are the following:

3. On being informed of that decision, the applicant on 29 April 1981 submitted to the Commission a request for a reclassification in Grade A 6 with effect from the date of his recruitment.

4. It appears from the file on the case that the applicant had completed his secondary education in December 1961, when he took the Oxford University entrance examination. However, he did not begin his university studies until October 1962. It seems that the gap of ten months was due to the fact that the Oxford Scholarship Examination taken by the applicant is held only in December of each year. He obtained his university degree in June 1965.

5. On 11 May 1982, the Grading Committee (a body set up under Article 6 of the Commission's decision and competent to give an opinion on the matters governed by that decision) sent him a memorandum to the effect that it was unable to propose an amendment to his original classification.

6. On 18 June 1982 the applicant submitted a complaint to the Commission under Article 90 (2) of the Staff Regulations, which was rejected by letter of 23 November 1982.

II —. Conclusions of the parties

1. By application dated 14 February 1983 and lodged at the Court Registry on 16 February 1983, the applicant claims that the Court should :

2. The Commission contends that the Court should;

III —. Written procedure

IV —. Relevant provisions of the

(1). Candidates ... shall be appointed ... to the starting grade of their category or service;

(2). However, the appointing authority may make exceptions to the foregoing provisions ... within certain limits as to posts to be filled by way of derogation.

V —. Summary of the submissions and arguments of the parties

VI —. Submissions and arguments of the parties in full

1. The sole submission advanced by the applicant alleges the illegality of the memorandum rejecting his complaint, which is due to a misinterpretation of the decision. He observes that the dispute which has arisen between himself and the defendant is due to the divergent interpretations which the parties have attributed to certain provisions of that decision. According to him, its wording in the three languages (English, French and German) is clear and does not give rise to any ambiguities. Thus, in the case of short university studies (of three years), paragraph 2 of Annex II to the staff notice provides that practical experience is taken into account only with effect from the fourth year following the completion of advanced secondary studies. Since he completed his secondary education in December 1961, the applicant takes the view that this provision entitles him to claim that his practical experience should be calculated from December 1965. Consequently, when he took up his duties in January 1974, he had had at least the eight years' experience required in order to be classified in Grade A 6.

2. The Commission begins by observing that the 1973 decision does not confer on candidates as regards appointment in the upper grade in a career bracket any right infringement of which will give rise to a cause of action. The wording of Article 3 of the decision is particularly explicit on this point: it provides that: By way of derogation from Article 1, the appointing authority may, exceptionally and in order to meet recruitment requirements, appoint to the upper grade candidates satisfying the requirements laid down (cf. the French text of paragraph 2 (b) of Annex II to the staff notice: le classement au grade A 6 pourrait être envisagé au vu d'une expérience professionnelle ... d'une durée d'au moins huit ans).

3. în his reply, the applicant takes the view, without entering into detailed discussion, that the defendant's argument on the discretionary character of the appointing authority's power to make an appointment to the upper grade of a career bracket is contrary to the notice to staff distributed in March 1981, which states that the relevant authority has constantly approved the practice briefly described in Annex II to the staff notice regarding the decision. At all events, he remarks that it is enough for him to prove that at the time of his appointment he had had eight years' experience within the meaning of the relevant provisions.

4. The defendant, in its rejoinder, recognizes that the dispute between the parties turns upon the question of what should be the starting point for calculating the practical experience of a candidate who has completed short university studies.

VII —. Oral procedure

1. By application lodged at the Court Registry on 16 February 1983, Adam Buick, an official of the Commission in Grade A 6, brought an action for the annulment of the Commission's decision of 23 November 1982 refusing to reclassify him in Grade A 6 with effect from his taking up duty in January 1974. He had requested this reclassification under the provisions of the Decision on the Criteria Applicable to Grade and Step Classification upon Recruitment, adopted on 6 June 1973.

2. The applicant started work for the Commission in January 1974 and was appointed to Grade A 7, Step 3. He was promoted to Grade A 6 on 1 January 1978.

3. In March 1982, the Director General for Personnel and Administration issued a notice, which has been brought to the attention of all the staff of the Commission and all successful candidates in competitions since that date, comprising the abovementioned decision of 6 June 1973 (Annex I), a statement of the practice relating to its application (Annex II) and a list describing the membership of the Grading Committee, a body set up under Article 6 of that decision (Annex III).

4. Article 3 of the decision, which deals with appointments to the upper grade in a career bracket, provides that:

5. Article 2 of the decision provides that:

6. Paragraph 2 (a) of Annex II to the staff notice, which relates to the practice observed in applying that decision, provides:

7. On reading the abovementioned notice of staff, the applicant submitted a request to the Commission in a memorandum dated 27 April 1981, asking to be reclassified in Grade A 6 with effect from the date of his recruitment, in accordance with the criteria laid down in Annexes I and II, in view of the fact that, when he entered the service, he could prove eight years practical experience, counting from December 1965, four years after the completion of his secondary studies.

8. It appears from the documents on the file of the case that the applicant completed his secondary studies in December 1961, when he took the entrance examination to Oxford University. However, he did not begin his university studies until October 1962, and obtained his university degree in June 1965.

9. On 11 May 1982, the Grading Committee notified the applicant of its opinion refusing his request for reclassification on the grounds that he could not show practical experience of sufficient length.

10. On 18 June 1982, the applicant lodged a complaint with the Commission under Article 90 of the Staff Regulations, claiming that the Grading Committee had wrongly interpreted the decision of 6 June 1973.

11. That complaint was rejected by letter of 23 November 1982 by the Member of the Commission in charge of Personnel and Administration, who confirmed the interpretation of the Grading Committee.

12. That is the decision against which the applicant brought these proceedings on 16 February 1983.

13. The sole submission put forward by the applicant alleges the illegality of the decision rejecting his complaint, which is due to a misinterpretation and hence an infringement of the decision of 6 June 1973. He stresses that according to the clear terms of paragraph 2 of Annex II to the notice mentioned above, practical experience is to be taken into account with effect from the fourth year following the completion of secondary studies. Therefore in his case practical experience should have been taken into account from December 1965, since it is common ground that he completed his secondary studies in December 1961. Eight years' practical experience should have been recognized at the time of his recruitment in January 1974 and the applicant should consequently have been classified in Grade A 6.

14. Against this the Commission maintains that the interpretation adopted by the applicant does not take account of either the context to which Annex II to the notice belongs, or the general scheme of that annex, and above all does not take account of the fact that paragraph 2 (a) thereof is justified by a concern to avoid distortions in classification by reducing practical experience by one year in the case of short university studies, that is to say a course of study not lasting longer than three years, and, in the case of long university studies, which last for longer than six years, by regarding them as equivalent to practical experience. According to that approach, the Commission considers that the applicant, on entiy into the service, did not have eight years' practical experience.

15. As the Court has already had occasion to declare, the decision on the criteria applicable to grade and step classification contained in Annex I of the notice to staff is an internal directive which should 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 (judgments of 1 December 1983 in Case 190/82 Blomefield [1983] ECR 3981; Case 343/82 Michael [1983] ECR 4023). The same considerations must apply with regard to the legal nature of Annex II to the notice, entitled Practical Application — General Survey, which briefly describes the practice of the administration in applying the provisions laid down in the decision in question, by setting forth more specific rules which the administration considers itself bound to observe.

16. The wording of the disputed paragraph 2 (a) shows that the purpose of the Commission, when it adopted the rules therein contained, was to comply with the provisions of Article 5 (3) of the Staff Regulations, which lays down that: Identical conditions of recruitment and service career shall apply to all officials belonging to the same category or the same service. It follows that the disputed provision should be interpreted in the light of the general scheme of the measure and of the purpose mentioned above.

17. Against that background, it must be stated that the application of the provisions of Article 2 of the decision has brought to light considerable disparities which are due to differences in the duration of university studies between Member States, and that it was in order to reduce such disparities that the Commission's Grading Committee proceeded to establish the scheme laid out in paragraph 2 (a) of Annex II to the staff notice. It must therefore be concluded that the purpose of the provisions mentioned above was to define the length of the practical experience to be taken into account for purposes of classification as starting to run from the actual commencement of university studies.

18. In those circumstances, the applicant cannot rely on the wording used in paragraph 2 (a) of Annex II to the staff notice, which is to be explained by the fact that, in general, university studies begin immediately after the completion of secondary studies., as the Commission has rightly observed. As the Commission also correctly emphasizes, the literal interpretation of the provision in question would lead to absurd results by treating as years of practical experience periods of inactivity or experience with no relevance to the duties performed.

19. It follows from the foregoing that the sole submission advanced by the applicant cannot be accepted and, consequently, that the application must be yydismissed.

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

21. The applicant has failed in his submission.

22. However, in view of the wording of the provision in question, the applicant might well, as the Commission has conceded, have been misled as to the extent of his rights; it is therefore appropriate to apply the second subparagraph of Article 69 (3) of the Rules of Procedure and to order the defendant to bear the costs in their entirety.

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

1 Dismisses the application;

2 Orders the defendant to bear the whole of the costs.