C-55/71

3. Officials — Promotion — Change of category — Loss of salary — Compensatory allowance

(Staff Regulations of the European Communities, Articles 5, 44 and 46)

1. Article 5 of the Staff Regulations, under grade in which an official is placed which in each category officials shall be following a change of category may not classified without exception in career be determined by the remuneration brackets comprising ordinarily two which he received previously with the grades lays down a principle which is legitimate interest of the official that, one of the guiding rules of the Staff save in exceptional cases, his promo­ Regulations. It is therefore not possible tion shall not entail loss of salary. While to apply the rules contained in Article derogation from Article 5 of the Regula­ 46 solely for determining step in cases tions in the event of change of category, of promotion by analogy in order to solely in order to avoid causing financial determine the grade in cases of change loss to the official concerned is not of category. justified, the administration may never­ 2. Remuneration is dependent on the theless grant that official a provisional grade and the post not the converse. compensatory allowance and may even, in certain cases, grant to him the two- 3. The administrative authority may seek yearly increments relating to his former to reconcile the general rule that the grade.

In Joined Cases 55 to 76/71, 86, 87 and 95/71

Marie-Josée BESNARD, Jean-Louis Deniel, MARCELLO BURATTINI, Pierrette Dethine, Annunziato Coco, Giovanni BATTISTA Dona,

Application for the annulment of the decisions of the Commission relating, on the one hand, to the criteria for classification in cases of change of category, and on the other hand, to classification in grade and step of the applicants after appoint­ ment,

THE COURT (First Chamber)

composed of: J. Mertens de Wilmars (Rapporteur), President of Chamber, A. M. Donner and R. Monaco, Judges,

Advocate-General: K. Roemer

Registrar: A. Van Houtte

gives the following

I — Summary of facts and proce from Category B to Category A and for dure which classification as to grade and step had expressly been reserved. The facts and the procedure may be sum Pursuant to this decision, the applicants marized as follows: received notice of appointment dated 3 The applicants are all officials of the Com June 1971 fixing their classification as to mission of the European Communities: grade and step (which had remained in The applicants in Cases 55 to 76/71 who abeyance) in their new career bracket in were officials in Category B were appointed, A 7, Step 6, in all cases in the 55 to 76/71 on different dates between 1968 and 1971, group except 65/71 where the official was to posts of administrator in career brackets placed in Grade A 7, Step 5.

The applicant in Case 95/71 was an This decision was taken on 10 March 1971 official in Grade Bl. On 13 September and published in the Staff Courier of 15 she was appointed to a post in career April 1971 in the following terms: bracket A 7-A 6 and pursuant to the general decision set out above she was placed in '(a) any decision making an appointment Grade A 7, Step 6. to a post in a career bracket in a The applicants submitted complaints seek higher category shall entail the classi ing, as appropriate, their classification in fication of the person concerned in Grade A 6 (instead of A 7) or B4 (instead the starting grade of that career of B5) and stated that the step within bracket; this grade should moreover in each case be determined by application of Article 46 (b) the official shall be classified within of the Staff Regulations. this grade in the step carrying a basic In Cases 55 to 76/71 these complaints were salary equal to or immediately above rejected by a decision of the Commission that of his former grade. If this is not of 9 July 1971 which was notified to the possible the official shall be classified parties concerned on 27 July 1971.

JUDGMENT OF 13.7.1972 — JOINED CASES 55 TO 76, 86, 87 AND 95/71

Cases 55 to 76/71 were joined for the pur­ Decide or at least rule that the applicant poses of procedure and judgment by order is, or at least should be, classified in of the Court (First Chamber) of 14 October Grade A 6, Step 4 as at the date on 1971. which the appointment took effect By order of the Court of 10 November with seniority in step of 6 months and 1971 Cases 86 and 87/71 were assigned to with all the appropriate legal con­ the First Chamber and were joined for the sequences, in particular payment of purposes of procedure and judgment to arrears of salary as from the date on Cases 55 to 76/71 by order of the Court which the appointment took effect; (First Chamber) of 3 December 1971. By order of the Court of 23 November (d) Annul the implied rejection of the 1971 Case 95/71 was assigned to the First applicant's appeal through her im­ Chamber and joined for the purposes of mediate superior of 12 May 1971; the oral procedure and judgment by order (e) Order the opposite party to bear the of this Chamber of 8 March 1972. costs. On hearing the report of the Judge- Rapporteur and the views of the Advocate- 2. In Case 56/71 General, the Court decided that there was no need to undertake a preparatory (a) Rule that the application is admissible; inquiry. The parties presented oral argument on (b) Annul the decision of the opposite party 26 April 1972. of 10 March 1971 published in Staff The Advocate-General delivered his Courier No 158 of 15 April 1971 opinion on 7 June 1972. concerned 'criteria for classification in cases of change of category'; II — Conclusions Rule that the classification of an official appointed to a post in a career bracket The applicants claim that the Court should; which is in a higher category should be made, both as to grade and step, 1. In Case 55/71 pursuant to and in accordance with the provisions of Article 46 of the Staff (a) Rule that the application is admissible; Regulations;

(e) Order the opposite party to bear the Rule that the classification of an official costs. appointed to a post in a career bracket which is in a higher category should be 3. In Case 57/71 made, both as to grade and step, pursuant to and in accordance with (a) Rule that the application is admissible; the provisions of Article 46 of the Staff Regulations; (b) Annul the decision of the opposite party of 10 March 1971 published in (c) Annul the decision classifying the ap­ Staff Courier No 158 of 15 April 1971 plicant in grade and step after appoint­ concerning 'Criteria for classification ment as appears from the instrument in cases of change of category'; appointing him dated 3 June 1971 in Rule that the classification of an so far as it classifies him in Grade A 7, official appointed to a post in a career Step 6 as at the date on which the bracket which is in a higher category appointment took effect without any should be made, both as to grade and seniority in step; step, pursuant to and in accordance Decide or at least rule that the appli­ with the provisions of Article 46 of cant is, or at least should be classified the Staff Regulations; in Grade A 6, Step 3 as at the date on which the appointment took effect (c) Annul the decision classifying the ap­ with seniority in step of 13 months plicant in grade and step after appoint­ and with all the appropriate legal ment as appears from the instrument consequences, in particular payment appointing him dated 3 June 1971 of arrears of salary as from the date in so far as it classifies him in Grade on which the appointment took effect; A 7, Step 6 as at the date on which the appointment took effect without any (d) Annul the implied rejection of the seniority in step; applicant's appeal through his im­ Decide or at least rule that the applicant mediate superior of 12 May 1971; is, or at least should be classified in Grade A 6, Step 5 as at the date on (e) Order the opposite party to bear the which the appointment took effect costs.

Grade A 6, Step 8 as at the date on which the appointment took effect 7. In Case 61/71 with all the appropriate legal con­ sequences, in particular payment of (a) Rule that the application is admis­ arrears of salary as from the date on sible; which the appointment took effect; (b) Annul the decision of the opposite (d) Annul the implied rejection of the party of 10 March 1971 published in applicant's appeal through her im­ Staff Courier No 158 of 15 April 1971 mediate superior of 12 May 1971; concerning 'Criteria for classification in cases of change of category'; (e) Order the opposite party to bear the Rule that the classification of an costs. official appointed to a post in a career bracket which is in a higher category 6. In Case 60/71 should be made, both as to grade and step, pursuant to and in accordance (a) Rule that the application is admissible; with the provisions of Article 46 of the Staff Regulations; (b) Annul the decision of the opposite party of 10 March 1971 published in Staff (c) Annul the decision classifying the Courier No 158 of 15 April 1971 applicant in grade and step after concerning 'Criteria for classification appointment as appears from the in cases of change of category'; instrument appointing him dated 3 Rule that the classification of an official June 1971 in so far as it classifies him appointed to a post in a career bracket in Grade A 7, Step 6 as at the date on which is in a higher category should be which the appointment took effect made, both as to grade and step, without any seniority in step; pursuant to and in accordance with the Decide or at least rule that the applicant provisions of Article 46 of the Staff is, or at least should be classified in Regulations; Grade A 6, Step 4 as at the date on which the appointment took effect (c) Annul the decision classifying the with seniority in step of 22 months and applicant in grade and step after ap­ with all the appropriate legal con­ pointment as appears from the in­ sequences, in particular payment of strument appointing him dated 3 June arrears of salary as from the date on 1971 in so far as it classifies him in which the appointment took effect; Grade A 7, Step 6 as at the date on which the appointment took effect (d) Annul the implied rejection of the without any seniority in step; applicant's appeal through his im­ Decide or at least rule that the applicant mediate superior of 11 May 1971; is, or at least should be classified in Grade A 6, Step 3 as at the date on (e) Order the opposite party to bear the which the appointment took effect costs. with seniority in step of 15 months and with all the appropriate legal consequences, in particular payment of 8. In Case 62/71 arrears of salary as from the date on which the appointment took effect; (a) Rule that the application is admissible;

which the appointment took effect with seniority in step of 16 months and 10. In Case 64/71 with all the appropriate legal con­ sequences, in particular payment of (a) Rule that the application is admissible; arrears of salary as from the date on which the appointment took effect; (b) Annul the decision of the opposite party of 10 March 1971 published in Staff (d) Annul the implied rejection of the Courier No 158 of 15 April 1971 con­ applicant's appeal through his im­ cerning 'Criteria for classification in mediate superior of 12 May 1971; cases of change of category'; Rule that the classification of an official (e) Order the opposite party to bear the appointed to a post in a career bracket costs. which is in a higher category should be made, both as to grade and step, 9. In Case 63/71 pursuant to and in accordance with the provisions of Article 46 of the (a) Rule that the application is admissible; Staff Regulations;

(b) Annul the decision of the opposite party (c) Annul the decision classifying the of 10 March 1971 published in Staff applicant in grade and step after ap­ Courier No 158 of 15 April 1971 pointment as appears from the instru­ concerning 'Criteria for classification in ment appointing him dated 3 June cases of change of category'; 1971 in so far as it classifies him in Rule that the classification of an Grade A 7, Step 6 as at the date on official appointed to a post in a career which the appointment took effect bracket which is in a higher category without any seniority in step; should be made, both as to grade and Decide or at least rule that the applicant step, pursuant to and in accordance is, or at least should be classified in with the provisions of Article 46 of the Grade A 6, Step 3 as at the date on Staff Regulations; which the appointment took effect

(b) Annul the decision of the opposite party (c) Annul the decision classifying the of 10 March 1971 published in Staff applicant in grade and step after Courier No 158 of 15 April 1971 appointment as appears from the concerning 'Criteria for classification instrument appointing him dated 3 in cases of change of category'; June 1971 in so far as it classifies him Rule that the classification of an in Grade A 7, Step 6 as at the date on official appointed to a post in a career which the appointment took effect bracket which is in a higher category without any seniority in step; should be made, both as to grade and Decide or at least rule that the applicant step, pursuant to and in accordance is, or at least should be classified in with the provisions of Article 46 of the Grade A 6, Step 4 as at the date on Staff Regulations; which the appointment took effect with seniority in step of 2 months and (c) Annul the decision classifying the with all the appropriate legal con­ applicant in grade and step after sequences, in particular payment of appointment as appears from the arrears of salary as from the date on instrument appointing him dated 3 which the appointment took effect; June 1971 in so far as it classifies him in Grade A 7, Step 5 as at the date on (d) Annul the implied rejection of the which the appointment took effect applicant's appeal through his im­ without any seniority in step; mediate superior of 12 May 1971; Decide or at least rule that the applicant is, or at least should be classified in (e) Order the opposite party to bear the Grade A 6, Step 3 as at the date on costs.

should be made, both as to grade and Decide or at least rule that the applicant step, pursuant to and in accordance is, or at least should be classified in with the provisions of Article 46 of Grade A 6, Step 4 as at the date on the Staff Regulations; which the appointment took effect with seniority in step of 2 months and (c) Annul the decision classifying the with all the appropriate legal con applicant in grade and step after sequences, in particular payment of appointment as appears from the arrears of salary as from the date on instrument appointing him dated 3 which the appointment took effect; June 1971 in so far as it classifies him in Grade A 7, Step 6 as at the date on d) Annul the implied rejection of the which the appointment took effect applicant's appeal through his im without any seniority in step; mediate superior of 12 May 1971; Decide or at least rule that the applicant is, or at least should be classified in (e) Order the opposite party to bear the Grade A 6, Step 4 as at the date on costs. which the appointment took effect with no seniority in step and with all the appropriate legal consequences, in 15.

14. In Case 68/71 pursuant to and in accordance with (a) Rule that the application is admissible; the provisions of Article 46 of the Staff Regulations; (b) Annul the decision of the opposite (c) Annul the decision classifying the party of 10 March 1971 published in applicant in grade and step after Staff Courier No 158 of 15 April 1971 appointment as appears from the concerning 'Criteria for classification instrument appointing him dated 3 in cases of change of category'; June 1971 in so far as it classifies him Rule that the classification of an in Grade A 7, Step 6 as at the date on official appointed to a post in a career which the appointment took effect bracket which is in a higher category without any seniority in step; should be made, both as to grade and Decide or at least rule that the applicant step, pursuant to and in accordance is, or at least should be classified in with the provisions of Article 46 of the Grade A 6, Step 4 as at the date on Staff Regulations; which the appointment took effect with seniority in step of 18 months (c) Annul the decision classifying the

JUDGMENT OF 13.7.1972 — JOINED CASES 55 TO 76, 86, 87 AND 95/71

(e) Order the opposite party to bear the Rule that the classification of an official costs. appointed to a post in a career bracket which is in a higher category should be 16. In Case 70/71 made, both as to grade and step, pursuant to and in accordance with the (a) Rule that the application is admissible; provisions of Article 46 of the Staff Regulations; (b) Annul the decision of the opposite party of 10 March 1971 published in Staff (c) Annul the decision classifying the Courier No 158 of 15 April 1971 applicant in grade and step after ap­ concerning 'Criteria for classification pointment as appears from the instru­ in cases of change of category'; ment appointing her dated 3 June 1971 Rule that the classification of an official in so far as it classifies her in Grade appointed to a post in a career bracket A 7, Step 6 as at the date on which which is in a higher category should be the appointment took effect without made, both as to grade and step, any seniority in step; pursuant to and in accordance with the Decide or at least rule that the applicant provisions of Article 46 of the Staff is, or at least should be classified in Regulations; Grade A 6, Step 6 as at the date on which the appointment took effect (c) Annul the decision classifying the with seniority in step of 5 months applicant in grade and step after ap­ and with all the appropriate legal pointment as appears from the instru­ consequences, in particular payment ment appointing him dated 3 June 1971 of arrears of salary as from the date on in so far as it classifies him in Grade which the appointment took effect; A 7, Step 6 as at the date on which the appointment took effect without any seniority in step; (d) Annul the implied rejection of the ap­ Decide or at least rule that the applicant plicant's appeal through her immediate is, or at least should be classified in superior of 12 May 1971; Grade A 6, Step 7 as at the date on which the appointment took effect (e) Order the opposite party to bear the with seniority in step of 11 months costs.

instrument appointing her dated 3 June (d) Annul the implied rejection of the 1971 in so far as it classifies her in applicant's appeal through his im­ Grade A 7, Step 6 as at the date on mediate superior of 12 May 1971; which the appointment took effect without any seniority in step; 20. In Case 74/71 Decide or at least rule that the applicant is, or at least should be classified in (a) Rule that the application is admissible; Grade A 6, Step 8 as at the date on which the appointment took effect (b) Annul the decision of the opposite party with all the appropriate legal con­ of 10 March 1971 published in Staff sequences, in particular payment of Courier No 158 of 15 April 1971 arrears of salary as from the date on concerning 'Criteria for classification which the appointment took effect. in cases of change of category'; Rule that the classification of an official appointed to a post in a career bracket (d) Annul the implied rejection of the applicant's appeal through her im­ which is in a higher category should be mediate superior of 12 May 1971; made, both as to grade and step, pursuant to and in accordance with (e) Order the opposite party to bear the the provisions of Article 46 of the Staff costs. Regulations;

JUDGMENT OF 13.7.1972 — JOINED CASES 55 TO 76, 86, 87 AND 95/71

Rule that the classification of an official in so far as it classifies him in Grade appointed to a post in a career bracket A 7, Step 6 as at the date on which the which is in a higher category should be appointment took effect without any made, both as to grade and step, seniority in step; pursuant to and in accordance with the Decide or at least rule that the applicant provisions of Article 46 of the Staff is, or at least should be classified in Regulations; Grade A 6, Step 5 as at the date on which the appointment took effect (c) Annul the decision classifying the ap­ with seniority in step of 19 months plicant in grade and step after appoint­ and with all the appropriate legal ment as appears from the instrument consequences, in particular payment of appointing him dated 3 June 1971 in arrears of salary as from the date on so far as it classifies him in Grade A 7, which the appointment took effect; Step 6 as at the date on which the appointment took effect without any (d) Annul the implied rejection of the seniority in step; applicant's appeal through his im­ Decide or at least rule that the applicant mediate superior of 11 May 1971; is, or at least should be classified in (e) Order the opposite party to bear the Grade A 6, Step 5 as at the date on costs. which the appointment took effect with seniority in step of 12 months and with all the appropriate legal 23. In Case 86/71 consequences, in particular payment of (a) Rule that the application is admissible; arrears of salary as from the date on which the appointment took effect; (b) Annul the decision of the opposite party of 10 March 1971 published in Staff (d) Annul the implied rejection of the Courier No 158 of 15 April 1971 con­ applicant's appeal through his im­ cerning 'Criteria for classification in mediate superior of 12 May 1971; cases of change of category'; Rule that the classification of an (e) Order the opposite party to bear the official appointed to a post in a career costs. bracket which is in a higher category should be made, both as to grade and 22. In Case 76/71 step, pursuant to and in accordance with the provisions of Article 46 of (a) Rule that the application is admissible; the Staff Regulations.

mediate superior of 12 May 1971 and, so far as may be necessary, the express 25. In Case 95/71 rejection dated 27 July 1971; (a) Rule that the application is admissible; (e) Order the opposite party to bear the costs. (b) Rule that the decision of the opposite party of 10 March 1971 published in Staff Courier No 158 of 15 April 1971 24. In Case 87/71 concerning 'Criteria for classification in cases of change of category' is illegal; (a) Rule that the application is admissible; Rule that the classification of an official appointed to a post in a career (b) Annul the decision of the opposite party bracket which is in a higher category of 10 March 1971 published in Staff should be made, both as to grade and Courier No 158 of 15 April 1971 con­ step, pursuant to and in accordance cerning 'Criteria for classification in with the provisions of Article 46 of cases of change of category'; the Staff Regulations; Rule that the classification of an official appointed to a post in a career bracket (c) Annul the decision classifying the which is in a higher category should be applicant in grade and step after ap­ made, both as to grade and step, pointment as appears from the instru­ pursuant to and in accordance with ment appointing her dated 13 Septem­ ber 1971 in so far as it classifies the the provisions of Article 46 of the Staff Regulations; applicant in Grade A 7, Step 6 as at the date on which the appointment took (c) Annul the decision classifying the effect without any seniority in step; Decide or at least rule that the applicant applicant in grade and step after ap­ pointment as appears from the instru­ is, or at least should be classified in Grade A 6, Step 3 as at the date on ment appointing her dated 28 May 1971 in so far as it classifies her in Grade which the appointment took effect B5, Step 4 as at the date on which the with seniority in step of 13 months and appointment took effect without any with all the appropriate legal con­ seniority in step; sequences, in particular payment of arrears of salary as from the date on Decide or at least rule that the applicant is, or at least should be classified in which the appointment took effect; Grade B4, Step 7 as at the date on (d) Order the opposite party to bear the which the appointment took effect costs. with seniority in step of 5 months and with all the appropriate legal con­ The defendant contends that the Court sequences, in particular payment of should: arrears of salary as from the date on which the appointment took effect; — reject the applications as unfounded,

A — Argument based on the infringement of their appointment. Moreover they do not Articles 46, 62 and 66 of the Staff receive the basic salary carried by the Regulations and of the principle of grades and steps in which they were classi maintenance of the level of basic fied by the instruments appointing them salary but the basic salary appropriate to their former grades and steps. 1. The applicants allege first that the con 2. The defendant replies that Article 46 tested decisions were taken in disregard of of the Staff Regulations is not, as such, Articles 46, 62(1) and 66 of the Staff applicable in a case of change of category Regulations and of the principle whereby and therefore cannot be relied on here to the basic salary must be maintained by determine the grade of the applicants. classification in an appropriate grade and Moreover even if Article 46 were applicable step. to changes of category, it would still not the applicants further allege that, in permit determination of the step, seniority stating that any decision making an ap in step and the basic salary in a given pointment to a post in a higher career grade which is determined by other provi bracket shall entail the classification of the sions of the Staff Regulations (Articles 5, person concerned in the starting grade of 6 and 31). that career bracket, the general decision The special problems raised by transfer of 10 March 1971 precludes the implemen from one category to another justify the tation of Articles 46 for determining the system applied to promotion within the classification of officials moving to a same category not being taken into ac higher category in that it results in having count in this case.

grade and step. To act as the applicants propose would The individual decisions in issue are illegal compromise the opportunities for promo in the same way as is the basic decision tion of officials who started their career in which they implement. The applicants are the higher category in the starting grade all classified in a grade and step of which and would conflict with the very notion of the basic salary at the date of appointment career bracket as set out in Article 5 of was lower than the basic salary of the the Staff Regulations (Case 33/67, Kurrer v grade and step in which they were before Council [1968] ECR 127 at 137).

Therefore the Commission was justified in would in the end have to apply it in all using its power to appoint the applicants those cases where the requirement of to the starting grade of the higher career maintaining the level of the basic salary bracket since in a judgment of 14 December demanded it, in order to avoid infringing in 1965 (Case 11/65, Morina v Parliament particular the first paragraph of Article 62 [1965] ECR 1017) the Court accepted and Article 66. impliedly but necessarily that classification (d) The applicants further consider that in the lower grade of the career bracket in application of Article 46 in the present cases of change of category did not in case does not come up against any fringe the provisions of the Staff Regula particular practical or legal problems:

tion. Once this choice has been made promoted cannot receive a basic salary lower than that which he had received in the Commission is no longer free as to his former post and that the maintenance the choice of grades. If it decided in of the level of remuneration may only be favour of the internal competition this ensured by means of the classification and would imply by definition that the post concerned could not be filled by promo not by the grant of a differential allowance. tion or transfer. The grade in which the officials must be placed follows naturally from these rules. Officials who started in the higher Therefore it is not possible to rely, as the career bracket do not necessarily pos Commission attempts to do, on Articles sess better qualifications than the ap 5, 6 and 31 of the Staff Regulations and on plicants whose suitability for the post is budgetary considerations which are outside recognized by their promotion. the scope of the problem. (e) Finally the Court did not decide the (c) Failure to apply Article 46 would have problem raised in this case in the judgments the inevitable effect of obliging the Com in the Morina case (Judgment of 24 December 1965, Case 11/65, Morina v mission to infringe other provisions of the

JUDGMENT OF 13.7.1972 — JOINED CASES 55 TO 76, 86, 87 AND 95/71

occur solely within the category to which 1. The applicants allege that the contested the official belongs. decisions were taken in infringement of Moreover application by analogy must be Articles 46 and 44 of the Staff Regulations excluded as Article 46 contains no rule for since the system established by means of determining the grade but solely provisions these decisions in the end results in the for determining the step. creation of an artificial career bracket with In this case the applicants cannot even actual steps for advancement, and notional invoke the principle that in other cases of steps for seniority. promotion the level of the basic salary With regard to most of the applicants the received before promotion must be main­ decisions of the Commission, according to tained. It is not evident that this principle their instruments of appointment, provide must be respected on change from one that the applicants shall continue to receive category to another. In addition Article the two-yearly increments of the steps of 46 in no way requires that maintenance of their former grade and, on the other hand, the level of remuneration should be achieved that if subsequently they should be pro­ solely by means of grading and the pur­ moted to a higher grade, account shall be pose of Article 46 is not moreover to taken for the purpose of Article 46 of the determine classification as to grade. step which they shall be deemed to have Therefore the solution adopted by the reached in the former Grade Bl or CI Commission, which ensures the main­ and of the seniority which shall be deemed tenance of the level of the previous re­ to have been acquired in this step on the muneration by payment of a differential day of promotion. allowance does not infringe Article 46, This system creates an artificial career which in fact does not determine fixing of bracket for promotion and seniority in grades, or the second paragraph of Article step which does not exist in the Staff 42 or Article 66. Indeed whilst Article 62 Regulations. The Commission is thus led does provide that an official has the right to:

BESNARD v COMMISSION

have the right to raise against these general decision was applied to the appli­ measures any arguments on illegality even cants retroactively. if the illegal aspect concerned does not itself adversely affect them. On the other 2. The defendant replies that whilst it has hand the illegality for which they are adopted a different method for transfer arguing does affect them adversely since from Category C to Category B from that the artificial career bracket established by for transfer from Category B to Category the decisions fails to give them rights A between March 1970 and March 1971 equivalent to those of a normal career this was solely due to the wider budgetary bracket in the event of subsequent promo­ facilities available in respect of officials tion and in the matter of pension rights. eligible for promotion which did not They add that the argument is well founded require the higher grade of career bracket and that the Commission has not even B5-B4 to be restricted to officials of Grade challenged its substance. B5.

1. In the alternative, the applicants allege 4. The defendant replies that whilst it is that the contested decision infringes the true that since the merger of the executives principle of the equality of officials under no official has been classified in the higher the Staff Regulations. grade of career bracket A 7-A 6, and that By the appointments made from March on the other hand, officials from Grade C 1970 until 31 January 1971 the general have been classified in Grade B4 on change decision at issue was only applied to of category, this is explained by the fact officials moving up from Category B to that the position of Grade C officials is not Category A (Cases 55 to 76/71) whereas identical to that of Grade B officials and officials promoted during the same period that, having more B4 posts than A 6 from Category C to Category B had in posts vacant, the Commission was to fact received the treatment claimed by the some extent able to use them to promote applicants; moreover the rule set out in this Grade C officials into Grade B4.

JUDGMENT OF 13.7.1972 — JOINED CASES 55 TO 76, 86, 87 AND 95/71

Grounds of judgment

1 By application lodged on 27 July, 4 October and 29 November 1971 respectively the applicants have brought actions seeking the annulment of the general decision of the defendant of 10 March 1971 published in the Staff Courier of 15 April 1971 concerning 'Criteria for classification in cases of change of category' and for the annulment of decisions taken on their classification.

2 By this general decision an official appointed to a post in a career bracket in a higher category shall be classified in the starting grade of that career bracket.

3 The step assigned to him shall be chosen in such a way that the basic salary shall be equal to or immediately above that of his former grade.

4 If this is not possible the official shall be classified in the final step of the new grade.

s Nevertheless if this classification only affords him a basic salary lower than that which he would have received in his former grade taking into account any auto­ matic increments provided for by Article 44 of the Staff Regulations, he shall be granted a compensatory allowance in respect of the difference.

11 Moreover they only concern classification in step and not in grade.

12 Under Article 5 of the Staff Regulations, in each category officials shall be clas­ sified without exception in career brackets comprising ordinarily two grades.

13 This provision lays down a principle which is one of the guiding rules of the Staff Regulations.

14 It is therefore not possible to apply the rules contained in Article 46 solely for determining step in cases of promotion by analogy in order to determine the grade in cases of change of category.

is In this respect therefore it was possible for the contested decision to provide that in the case of appointment to a post in a career bracket of a higher category, the official shall be classified in the starting grade of that career bracket.

16 The applicants allege that by authorizing the calculation of salary according to the scale appropriate to their former career bracket the general decision at issue diverges in this respect from Article 62 of the Staff Regulations whereby an official is entitled to the remuneration appropriate to his grade and step.

22 The submission must be rejected.

23 The applicants further allege that the decisions at issue were taken contrary to Articles 44 and 46 of the Staff Regulations since the system adopted leads in the end to the creation of an artificial career bracket for advancement and seniority.

24 With regard to the admissibility of this submission the defendant states that were the Court to decide that classification in the lower grade in cases of change of category is in conformity with the Staff Regulations, the applicants would have no interest in having the individual decisions annulled in so far as they maintain to their benefit, the advancement of step in their former grade which is an additional advantage.

25 Nevertheless this submission does not in the alternative, seek the partial annul­ ment of the contested decisions as the defendant assumes, but is in support of a request for the annulment of all these decisions.

26 In particular it serves to show that in cases of transfer to a higher category the general decision of 10 March 1971, by diverging from the rules laid down by Article 46 of the Staff Regulations, leads to infringements of other provisions of the regulations, in particular of Article 44.

27 The submission is therefore admissible.

33 The submission must be rejected.

34 Finally the applicants allege that the decision of 10 March 1971 and the individual decisions taken in implementation thereof violate the principle of the equality of officials under the Staff Regulations.

35 In this respect they claim that as from March 1970 the decision of 10 March 1971 is applicable in cases of advancement from Category B to Category A for which classification of grade and step had been reserved whilst it only becomes applicable to advancement from Category C to Category B as from 1 February 1971.

36 Secondly the applicants claim that even after 1 February 1971 changes of category took place is disregard of the rules set out in the decision of 10 March 1971 in particular for advancement from Category C to Category B and in addition in the case of a scientific officer who advanced from Grade B3 to Grade A 7 in career bracket A 8-A 5.

37 The first part of the submission concerns advancements from Category C to Category B and classifications carried out wholly before the entry into force of the general decision of 10 March 1971.

38 The position of the officials affected by this measure was therefore different from that of the applicants in Cases 55 to 76/71 whose classification and step were expressly reserved.

On those grounds,

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community; Having regard to the Staff Regulations of Officials, especially Article 5, 6, 31, 44, 45, 46, 62, 66 and 105; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities,

THE COURT (First Chamber)

hereby :

1. Dismisses the applications in Joined Cases 55 to 76/71, 86/71, 87/71 and 95/71;

2. Orders the parties to bear their own costs.