Opinion of Advocate General Gulmann
Mr President,
Members of the Court,
1. This appeal is brought by Mr Klinke, an official of the Court of Justice, against the judgment delivered by the Court of First Instance in Case T-30/92 on 30 March 1993. By that judgment, the Court of First Instance dismissed the action brought by Mr Klinke for a declaration that his classification in grade on his appointment as an official in category A was not in accordance with the applicable law.
2. The appellant entered the service of the Court of Justice on 1 April 1982 as a lawyer-linguist in the German Translation Division. He was classified in Grade LA 6. With effect from 1 June 1985, the appellant was placed at the disposal of the Court's Information Service, in which he was appointed an administrator on 1 July 1991, having passed an internal competition. He was classified in Grade A 7, Step 3; it was decided at the same time to grant him a compensatory allowance equal to the difference between the net remuneration which he received in Grade LA 6, Step 6, and that relating to his new classification in Grade A 7, Step 3.
3. Mr Klinke submitted a complaint against the decision appointing him an administrator, inasmuch as it classified him in Grade A 7, and requested that he be classified in Grade A 6. He maintained, first, that, by classifying him in Grade A 7, the appointing authority had not taken into account the exceptional circumstance that he had performed for six years the duties pertaining to the post to which he was ultimately appointed. Whilst recognizing that the appointing authority has a discretion in that regard, he submitted that
4. That complaint was rejected by decision of the Administrative Committee of 20 January 1992, which found that the classification had been decided ... in accordance with the consistent practice of the Court, which was decided on the basis of its case-law at the administrative meeting on 11 July 1979. The Administrative Committee's decision went on to state:
5. Mr Klinke then brought proceedings before the Court of First Instance, pleading inter alia a manifestly erroneous assessment of the facts, breach of the principle of nondiscrimination and breach of the duty to have regard for the welfare and interests of officials laid down by Article 24 of the Staff Regulations. The Court of First Instance dismissed the action as unfounded.
6. Mr Klinke asserts in support of his appeal that the Court of First Instance erred in its assessment of the three pleas referred to. The respondent contends, primarily, that the appeal is inadmissible and, in the alternative, that it should be dismissed as unfounded.
7. In support of its plea of inadmissibility, the respondent argues that, for the purposes of deciding appeals, the jurisdiction of the Court of Justice is limited to examining only questions of law, and that the appellant's pleas relate only to questions of fact. The respondent has not particularized that objection of inadmissibility.
8. In commenting on that objection, it should be noted, first, that there is no dispute whatever between the parties as to the facts of the case and, second, that the Court has established that its task in deciding appeals is also to ... verify whether the findings and assessments made by the Court of First Instance within the scope of its sole jurisdiction show that the lower court correctly carried out a legal characterization of the facts ....
9. Before proceeding to examine the various pleas concerning the substance of the case, I think it would be helpful to consider the scope of judicial review in a case such as this.
10. Both Mr Klinke and the appointing authority accept as an established fact the contention that the appointing authority has a discretion to take a decision such as that at issue in this case. However, Mr Klinke takes the view that the exercise of that discretion must necessarily have resulted in his being appointed to Grade A 6. According to him, the fact that he had for six years performed entirely satisfactorily the duties attaching to the post to which he was finally appointed must necessarily entail such classification. The crux of Mr Klinke's argument — if I have understood it correctly — is that in normal circumstances, that is to say, if he had been appointed to that post from the start of the period when he was placed at the disposal of the Information Service, he could have expected to be promoted after having satisfactorily carried out those duties for six years.
11. According to the statement of reasons on which the appointing authority's decision is based, the appointing authority certainly took into account the six years during which Mr Klinke occupied the post. However, that was clearly only one of the factors which the appointing authority took into account. In all probability, the appointing authority had some difficulty in reaching its decision, since — in my view at any rate — the point made by Mr Klinke is clearly valid.
12. The aim of judicial review is not, however, to substitute, in place of the appointing authority's assessment, that of the Court.
13. As to the various pleas put forward in support of the appeal, the first alleges that the Court of First Instance erred in its assessment of the plea advanced in support of the application, to the effect that there had been a manifestly erroneous assessment of the facts.
14. Next, the Court of First Instance found that Mr Klinke had produced no evidence whatsoever to show that in the present case the needs of the Information Service were such as to require the recruitment of a particularly well-qualified official (paragraph 27). According to the Court of First Instance, therefore, the applicant's qualifications were irrelevant to the determination of his classification in grade on his appointment and ..., even though the applicant was eminently qualified for the A 7 post to which he was appointed and which he occupies to the general satisfaction of all concerned, that still does not mean that exceptional qualifications were required in order to occupy that post (paragraph 28).
15. Neither the appellant nor the respondent is able to concur with that reasoning. They refer, in particular, to the judgments in Case 343/82 Michael v Commission [1983] ECR 4023, Joined Cases 314/86 and 315/86 De Szy-Tarisse and Feyaerts v Commission [1988] ECR 6013 and Case T-18/90 Jongen v Commission [1991] ECR II-187, contending that, according to those decisions, Article 31(2) gives the appointing authority a wide discretion in assessing, inter alia, the practical experience of the person recruited.
16. As to the question whether Article 31(2) allows the individual qualifications of the official recruited to be taken into account on his classification in grade, the starting point in answering that question must clearly be the wording of the provision.
17. As the parties have rightly maintained, the relevant provisions are silent as regards the criteria to be taken into account for the purposes of appointing an official to a higher grade. It is common ground, therefore, that, according to its wording, Article 31(2) does not preclude the appointing authority from taking an official's qualifications into account when determining his classification in grade. As the provision is silent on that point, I am of the view that fairly compelling arguments are needed if we are to accept the interpretation that the provision precludes the appointing authority from taking into account wholly legitimate considerations regarding an official's qualifications.
18. It is not easy to identify any such arguments. One argument could be that Article 32 of the Staff Regulations expressly governs the way in which the practical experience of the official recruited is to be taken into account.
19. Having regard to Article 54 of the Protocol on the Statute of the Court of Justice of the EEC, I further propose that the Court give final judgment in the matter, given that the state of the proceedings so permits.
20. In the context of the first plea, therefore, it only remains to resolve the question whether the appointing authority did in fact commit an error of assessment by appointing Mr Klinke to Grade A 7, despite his lengthy experience in the Information Service and his ability, which was highly regarded by his hierarchical superior, given, of course, that judicial review is limited to the question whether the appointing authority exercised its discretion in a manner which is manifestly wrong.
21. That plea must be rejected, given that Mr Klinke has not even attempted to demonstrate the validity of the essential premiss underlying his argument, namely that specific experience may entitle the person who possesses it to be appointed to the higher grade in the career bracket.
22. As to the second plea, alleging a breach of the principle of non-discrimination, it should be noted that this was rejected by the Court of First Instance in the following terms (paragraphs 35 to 37):
23. Mr Klinke maintains in his appeal that the Court of First Instance was wrong in its view that the relevant comparative criterion can only be the specific requirements of the different posts to be filled. Mr Klinke asserts that the comparative criterion for the purposes of assessing whether he has suffered discrimination can only be the individual circumstances of the (in this case, hypothetical) candidates who passed the competition organized to fill the post to which he was ultimately appointed. Moreover, the appeal states that Mr Klinke's position is different from the position of any of his rivals for that post, and from that of any rival of his who expects shortly to be appointed to any post whatever: the applicant has in fact been occupying for over six years the post which he is now being called upon to occupy in an official capacity, and has been performing the tasks pertaining to that post.
24. I am unable to concur with the reasoning of the Court of First Instance, having regard to the aforesaid considerations concerning the discretion conferred on the appointing authority by Article 31(2). Nor am I able to concur with Mr Klinke's argument.
25. Mr Klinke maintains that the contested decision constitutes discriminatory treatment, that is to say, the appointing authority either treated comparable situations differently or treated different situations in the same way, without any objective justification for doing so.
26. I therefore propose that the Court should set aside the reasons which led the Court of First Instance to reject that plea alleging breach of the principle of nondiscrimination, but uphold the rejection of the plea by finding that the appointing authority did not act in breach of the principle of equal treatment.
27. Lastly, Mr Klinke considers that the Court of First Instance failed to take account of his plea concerning the duty to have regard for the welfare and interests of officials. More precisely, Mr Klinke maintains that that duty, which is enshrined in Article 24 of the Staff Regulations, obliged the appointing authority to remedy the adverse consequences suffered by him as a result of his having been placed, unlawfully or contrary to the Staff Regulations, at the disposal of the Information Service.
28. The Court of First Instance rejected that plea as inadmissible, in the following terms (paragraphs 41 and 42):
29. In his appeal, Mr Klinke challenges that reasoning, maintaining that he suffered adverse consequences from his secondment only because the period in question lasted for over six years. He goes on to state: That argument concerning secondment in circumstances not provided for under the Staff Regulations for a period in excess of six years is different from the argument which the Court of First Instance understood him to be putting forward. It was only the persistence of a situation not in conformity with the Staff Regulations which adversely affected Mr Klinke.
30. Allow me to point out that the substance of the case is not altered by that plea either; it is not open to Mr Klinke, by invoking the duty to have regard for the welfare of officials, to impose on the appointing authority an obligation to produce, in the exercise of its discretion, a result which is not provided for by the Staff Regulations.
31. Apart from that observation, I consider that the Court of First Instance was correct in regarding that plea as inadmissible, since the system of legal remedies provided for by Articles 90 and 91 of the Staff Regulations would be undermined if an official were allowed to accept the adverse consequences of an allegedly unlawful act on the part of the appointing authority, only to be in a position later on to assert at any time that those consequences should be mitigated by the application of the general principle of the duty to have regard for the welfare of officials.
32. Mr Klinke's appeal is therefore unfounded in its entirety. Even though my analysis has shown that the reasons for the contested judgment cannot be upheld in every respect, the operative part of the judgment is well founded on other legal grounds, and the appeal must be dismissed in accordance with the decision in Lestelle v Commission.
33. Given that the reasons for the contested judgment have proved to a certain extent to be incorrect, and that, as a result, there was some justification for bringing an appeal, I consider, on the basis of the second indent in the second paragraph of Article 122 of the Rules of Procedure, that each party should bear its own costs.
Conclusion
34. In the light of the foregoing, I propose that the Court should:
1 Original language: French.
2 [1993] ECR II-375.
3 Judgment of the Court of Justice in Case C-220/91 P Commission v Stahlwerke Peine-Salzgitter [1993] ECR I-2393, paragraph 30.
4 See, for example, paragraph 26 of the judgment in De Szy-Tarisse and Feyaerts v Commission, in which the Court of Justice stated: ... it must be pointed out that, according to a line of cases decided by the Court, the appointing authority has a wide discretion, within the limits laid down by Article 31 and the second paragraph of Article 32 of the Staff Regulations or by the internal decisions implementing those articles, in assessing the previous experience of a person recruited as an official, both as regards the nature and length of that experience and as regards the extent to which it meets the requirements of the post to be filled.
5 Article 31(1) and (2) provides:1. Candidates thus selected shall be appointed as follows: officials in Category A or the Language Service: to the starting grade of their category or service; ... 2. However, the appointing authority may make exceptions to the foregoing provisions within the following limits: (a) in respect of Grades A 1, A 2, A 3 and LA 3, ... (b) in respect of other grades, up to one third of the appointments to posts becoming vacant; up to half the appointments to newly created posts.
6 See, inter alia, the judgment of the Court of First Instance in Case T-38/89 Hochbaum v Commission [1990] ECR II-43, paragraph 24.
7 Case C-30/91 P, [1992] ECR I-3755. The Court of Justice stated in paragraph 28: ... if the grounds of a judgment of the Court of First Instance reveal an infringement of Community law but the operative part appears well founded on other legal grounds, the appeal must Be dismissed.