Report for the Hearing delivered in Case 37/87

I — Summary of the facts

1. After passing Open Competition No CJ 15/82 based on qualifications and tests for the constitution of a reserve for the recruitment of German language lawyerlinguists (Career bracket LA 7 — LA 6), Eckhard Sperber was placed on a reserve list drawn up on 17 June 1983.

2. Since no permanent post was immediately available, Mr Sperber was engaged by the Court on 3 October 1983 as a member of the temporary staff and classified in Grade LA 6, step 3. On 1 October 1985 he was classified in step 4.

3. After approving a vacancy notice for recruitment of a German language lawyerlinguist, the Court, as appointing authority, decided at its administrative meeting of 20 and 21 November 1985 to appoint Mr Sperber as a probationary official with effect from 1 December 1985, in Grade LA 6. At its administrative meeting of 5 March 1986, the Court, as appointing authority, classified Mr Sperber in step 3 with effect from 1 December 1985. That decision, dated 19 March 1986, was notified to Mr Sperber on 20 March 1986.

4. On 19 June 1986, Mr Sperber submitted a complaint against that decision under Article 90 (2) of the Staff Regulations.

5. On 4 November 1986, the committee of the Court responsible for dealing with complaints adopted a decision expressly rejecting that complaint.

II — Written procedure and conclusions of the parties

1. By an application received at the Court Registry on 5 February 1987, Mr Sperber brought an action before the Court of Justice for the annulment of the decision of the appointing authority of 5 March 1986 classifying him in. step 3 of Grade LA 6 and, so far as necessary, of the decision of the committee of the Court responsible for dealing with complaints of 4 November 1986 rejecting the complaint against the classification decision.

2. Eckhard Sperber, the applicant, claims that the Court should:

3. The Court of Justice, the defendant, contends that the Court should:

4. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry.

III — Submissions and arguments of the parties

Mr Sperber makes five submissions in support of his claim for annulment, relating to misapplication of Article 32 of the Staff Regulations, breach of the principle of nondiscrimination, infringement of Article 5 (3) of the Staff Regulations, disregard of the principles of good management and sound administration and of fairness, and infringement of vested rights.

The Court of Justice contends that none of those submissions is well founded and that the application must be dismissed.

A — Misapplication of Article 32 of the Staff Reguktions

1. Mr Sperber claims that he was penalized as a result of the fact that Article 32 of the Staff Regulations was applied to him twice, once when he was recruited as a member of the temporary staff and again when he was appointed as a probationary official, without account being taken on the latter occasion of his previous employment in the Court. The fact that Article 32 was applied on the first occasion as a result of the reference to that article made by the Conditions of Employment of Other Servants of the European Communities is irrelevant. Article 32 applies upon initial recruitment, normally by means of an open competition. Since the applicant passed an open competition and was eligible for appointment as a probationary official when he was taken on as a member of the temporary staff, his engagement in the latter capacity should be regarded as recruitment. He continued to perform the same duties and discharge the same responsibilities as a member of the temporary staff and as a probationary official and, moreover, did not on any occasion undergo a further medical examination. His training and specific professional experience had been assessed when he was taken on as a member of the temporary staff and the transition from being a member of the temporary staff to becoming a probationary official cannot entail a break in employment. The double application of Article 32, leading to his classification in a lower step on his appointment as a probationary official even though no open competition took place between the appointment as a member of the temporary staff and the appointment as a probationary official, reflects a purely formalist approach and is in breach of the principle non bis in idem.

2. In reply, the Court of Justice contends that the step in which an official is classified has no connection with competitions but relates to recruitment and that such classification is made only at the time of actual recruitment, namely when the person concerned is appointed a probationary official. The applicant's participation in the open competition merely rendered him eligible for recruitment in the event of a post being vacant and engagement as a member of the temporary staff cannot therefore be regarded as recruitment. The applicant had no entitlement to be engaged as a member of the temporary staff after passing the competition nor any right to be exempted from the probationary period or a fresh medical examination, although in the present case, as the result of an error, the latter examination was not carried out. Engagement as a member of the temporary staff is, from the legal point of view, wholly independent of the applicant's participation in an open competition and his inclusion on the reserve list. The appointing authority never gave the applicant any assurances regarding classification. Article 32 of the Staff Regulations is applied to members of the temporary staff only by virtue of the reference to that provision in Article 15 of the Conditions of Employment of Other Servants, and Article 32 applies directly only to probationary officials. In view of the difference between the rules applying to officials and those applying to other servants, there can be no question of continuity in the career of a member of the temporary staff who becomes an official, or of double application of Article 32. Service by a person as a member of the temporary staff cannot be taken into account when he is appointed as an official except in the circumstances expressly provided for in the Staff Regulations, for example for retirement-pension purposes. Even if the appointing authority did have to take account, on appointing a person as a probationary official, of the experience acquired when he was a member of the temporary staff, it would nevertheless have to remain within the limits of the additional seniority provided for in the second paragraph of Article 32 of the Staff Regulations.

B — Breach of the general principle of non-discrimination

1. Mr Sperber states that, having been given a lower classification when appointed a probationary official, he was the subject of discrimination by comparison with the other candidates in the competition who immediately obtained posts as probationary officials. In its judgment of 6 October 1982 (Case 9/81 Williams v Court of Auditors [1982] ECR 3301), the Court laid down the principle that no distinction should be drawn between officials transferred from other institutions and officials freshly recruited from outside the Communities, in so far as the decisive criterion for classification is relevant experience. That applies a fortiori where a comparison is being made between objectively identical situations involving people who have passed the same open competition and are subsequently offered a contract as a member of the temporary staff or an appointment as a probationary official, according to the posts available. In its judgment of 15 January 1985 (Case 266/83 Samara v Commission [1985] ECR 189), the Court expressed the view that participants in an open competition deserve equal treatment.

2. The Court of Justice emphasizes that the applicant took part in a competition organized for the purpose of constituting a reserve for recruitment and therefore was eligible for an appointment as a probationary official only to the extent to which permanent posts were or became vacant within the period of validity of the reserve list and according to his place on that list. The appointment procedure and the determination of seniority in step pursuant to Article 32 are not contrary to the principle of equality of treatment of successful candidates in a competition. Classification in step is required precisely in order to avoid any discrimination between successful candidates when they are actually recruited as probationary officials, whether or not they have been appointed as members of the temporary staff.

C — Infringement of Article 5 (3) of the Staff Regulations

1. Mr Sperber claims that Article 5 (3) was infringed with regard both to his recruitment and to his career development. His recruitment, if it is considered to be his appointment as a probationary official, resulted in the loss of a step, which affected his career by comparison with the other members of staff who, having passed the same open competition, were immediately appointed probationary officials. Even if it was not possible for any candidate who passed the open competition to be appointed immediately, the Court infringed Article 5 in so far as it invited the applicant to accept a contract as a member of the temporary staff pending regularization of his situation.

2. The Court of Justice contends in reply that it had not rendered itself liable by offering the applicant a contract as a member of the temporary staff which, moreover, he was at liberty to reject. It had given him no assurance whatsoever regarding maintenance of his classification in step. To accord him a retroactive appointment would have been tantamount to placing the applicant in a more advantageous position than the other successful candidates, some of whom had achieved higher marks.

D — Breach of the principles of good management, sound administration and fairness

1. Mr Sperber claims that the Court infringed those principles by not fulfilling the commitments which it gave him and by depriving him of seniority of one step when appointing him an official, which amounted to penalizing officials who agreed to be employed as members of the temporary staff before being appointed probationary officials. Moreover, it appointed other officials in similar circumstances with retroactive effect. The principles of fairness, sound administration and nondiscrimination, whose importance was stressed by Advocate General Sir Gordon Slynn in his Opinion in Samara (at [1985] ECR 190) provide scope for not applying Article 32 in a strict and unfair manner.

2. The Court of Justice states in reply that it is obliged to apply the provisions of the Staff Regulations to its staff and that it is not contrary to the principle of fairness to apply Article 32 to a probationary official formerly engaged as a member of the temporary staff. The applicant cannot rely on the judgment in Samara, cited above; by contrast with the applicant, Mrs Samara was already an established official when she took part in the open competition; moreover, the Court emphasized that that judgment was of a truly exceptional nature.

E — Infringement of vested rights

1. Mr Sperber maintains that the interruption of his career advancement and his classification in a lower step on appointment as an official constitute an infringement of his vested rights, since he did not change grade and continued to discharge exactly the same functions as when a member of the temporary staff. The counterpart for automatic advancement from one step to the next is the greater benefit obtained by the employer from the work done by the temporary staff member or official, which is deemed to improve with the passing of time. In the present case, the employer obtained an illicit and unlawful profit from the experience and improvement achieved by the applicant. The Court cannot rely upon the difference between the legal status of officials and that of members of the temporary staff which was at issue in the De Santis judgment, cited above, which related to an official who participated in an open competition only after being engaged as a member of the temporary staff, whereas the applicant's career has been uninterrupted.

2. The Court of Justice contends that the decisions in De Santis and Angelidis are wholly general in scope in so far as Article 32 of the Staff Regulations always applies to any person who, for the first time, is appointed an official, even if he was employed beforehand as a member of the temporary staff. There is a clear and welldefined distinction between time spent as a member of the temporary staff and the duties performed as an official and there is no question, from the legal point of view, of continuity of career.

1 Language of the Case: French.