C-102/75

2. Officials — Recruitment — Procedure — Criteria — Laid down by the

administration — Grading Committee — Setting thereof up — Nature of internal measures — Rights of those concerned — Absence thereof — Notification of the latter Duty on the part of the administration None — —

3. Officials — Appeals — Recruitment — Procedure — Criteria laid down by the administration — Discovery by a candidate — New fact such as to start the

period for lodging an appeal to run afresh — Absence thereof

1. The appointment of an official cannot candidates. The fact that the

be the outcome of an agreement but candidates were not informed of the

measures which do not confer rights 3. The discovery by the person

or expectations of any kind concerned of the existence of criteria

whatsoever on those concerned. They for recruitment laid down by the

leave the appointing authority free to administration cannot constitute a

take decisions regarding the grades to new fact such as to start the period for be offered for the recruitment of lodging appeals to run afresh.

In Case 102/75

COMMISSION OF THE EUROPEAN COMMUNITIES­ , represented by its Legal Adviser, Trevor Townsend, assisted by Peter Baumann, Legal Adviser to the

Commission, with an address for service in Luxembourg at the office of Mario Cervino, Legal Adviser to the Commission, Bâtiment CFL, place de la Gare,

defendant,

Application for annulment of the implied decision of the defendant rejecting

a complaint lodged by the applicant on 19 February 1975 (appointment in

Grade A 4),

JUDGMENT

Facts

The facts and the arguments developed that he applied for a post in a grade not

by the parties during the oral procedure lower than A 4 at the Commission of the

may be summarized as follows: European Communities. He was

summoned to an interview at the

appointed in Grade A­4 because the that he should be placed in Grade A­ 4. number of years of experience he had was insufficient. As the Commission did not reply within

the prescribed period, which amounts to

By letter of 30 September 1973, Mr an implied decision rejecting his Petersen confirmed his interest in one of complaint, Mr Petersen lodged the

the posts concerned on condition, present application, which was dated

however, that the post was graded in 22 September 1975 and entered in the

Category A 4. Mr Petersen stated that, in Court Register on 23 September 1975.

Commission that the provisions of the 28 September 1973. Staff Regulations of Officials precluded

his immediate appointment in Grade A­ 4 II — Conclusions of the parties but that, in the event of appointment in Grade A­ 5, it would be possible for him The applicant claims that the Court to be granted additional seniority. On 28 should: November 1973, the Commission 1. declare null and void the implied informed Mr Petersen of his decision of rejection constituted by appointment as Principal Administrator the failure of the appointing authority in Category A­ 5, Step 3, and of his to reply within four months to the assignment to the Directorate-General for Competition, Inspection Directorate, complaint submitted by the applicant

on 19 February 1975. Inspection —

seniority requirements for appointment Judgment of the Court of 22 March 1961 in Grade A 4. in Joined Cases 42 and 49/59, SNUPAT v High Authority the ECSC, Rec. of The defendant contends that the Court 1961, p. 101). should:

1. dismiss the inad­ The application as provisions governing the grading of

missible; officials were available to the applicant (a 2. in the alternative, dismiss the copy of the Staff Regulations was sent to application as unfounded; him at the same time as the letter of 28 3. in any event, order the applicant to November 1973) and the applicant did

pay the costs. not apply for any additional information until October 1974.

III — Submissions and argu­ With regard to the application submitted

ments of the parties in this case, although it is true that a

lodging such a complaint should start to grading in Grade A­ 4 was concerned, an

run from the date on which he was administrative measure of rejection, in

sufficiently informed about grading the respect of which the reasons upon which

provisions of which he became aware less it was based were given in the letter of 9 than one week before he lodged his October 1973. The period for lodging an complaint. Before that date, he justifiably application against such a measure can, believed the statements of the appointing under the general principles of

authority since all the legal consider­ administrative law, start to run only from ations with a bearing on the question the date on which the person to whom

were exclusively available to and under the measure is addressed has every reason the control of the Commission. to know that the grounds on which the

November 1973. In the absence of any comparatively short time, they would be new factor which would cause the period deprived of all legal protection against to start to run afresh, the period of three such measures.

months provided for in Article 90 (2) expired towards the end of February The applicant also draws attention to the

1974. No ground advanced by the principles of equity operative in English applicant constitutes a new fact such as law which must now form an integral to change the essential circumstances part of the legal system of the European and conditions which governed the Communities.

PETERSEN v COMMISSION

Under those principles courts are given a If the applicant's argument on this point

wide discretion to. ignore limitation were upheld, it would be necessary to

accepted in good faith that the reasons tending to suspend the running of the given for the administrative measure of period for lodging an application, the rejection were correct and, as this was defendant refers to the case law of the done in good faith, it is reasonable in law Court of Justice which specifies the that this should suspend the period conditions provided for under Articles 90 within which the complaint must be (2) and 91 (3) of the Staff Regulations. lodged. He began to be suspicious in (Judgment of 21 February 1974 in October 1974 but, because of the Joined Cases 15 to 33, 52, 53, 57 to 109, defendant's information methods, he was 116, 117, 123, 132 and 135 to 137/73, never absolutely sure, with the result that, Schots-Kortner Council, and Others v before the lodging of the complaint, he Commission and Parliament [1974] ECR was at no specific time in possession of 177; and the judgment of 15 December the information necessary to cause the 1966 in Case 34/65, Mosthaf v period to start running. Commission of the EAEC [1966] ECR 521). It further refers to the judgment of The judgments of the Court of Justice 12 December 1967 in Case 4/67, Muller quoted by the defendant have no v Commission [1967] ECR 365, in which relevance to the present case. it was held that the periods prescribed

for instituting proceedings are mandatory In the applicant's view, a reasonable in nature and that the parties cannot degree of protection by the law requires derogate from them. The applicant that the objection of inadmissibility cannot therefore invoke the alleged need should not be upheld. He adds that, in to to new officials special rules on apply the present case, no third party would be the time-limit for bringing proceedings. likely to be adversely affected if his application were upheld. In its rejoinder, B — The substance of the case the defendant denies that the

the interview on 28 September 1973 and seniority at the end of his probationary in subsequent correspondence. period.

The representative of the Commission In any event, the Commission should, as promised him that he would secure in previous cases, have been able to make appointment in Grade A­ 4 in so far as up for any slight lack of seniority by that appointment was compatible with taking into account: the rules governing recruitment. The (a) military service, applicant said only if this grading proved (b) university study, and absolutely impossible would he be (c) experience acquired during the

willing to reconsider his position and period of study.

that he accepted the post in Grade A­ 5

only after the Commission informed him (a) In its report of 15 February 1974, that the relevant rules did not allow of the Provisional Grading Committee his being granted the grade requested. considered that it had to regard a period

spent on service as experience, military He states that he began to have doubts subject to a maximum of two years

misapplication of the recruitment (b) The applicant refers to the provisions applicable to officials of the difficulties created by the fact that, in the EEC. His appointment in Grade A­ 4 was various Member States, the length of refused on the ground that he did not university study varies from country to possess 12 years experience. As he had country. In fact, in Denmark a university obtained his final degree in January graduate begins his career two and a half 1963 he had only 11 years of experience years later than the graduate of a British when he entered the service of university. In one borderline case at least, the Commission. A note dated part of the period university study has of 16 September 1975 sent by the Head of been taken into account in calculating the Recruiting, Appointments and the seniority of a Danish candidate in Promotion Division to the Danish order to make up for this difference Private Office confirmed for the first between the two systems. time that his seniority had been calculated with effect from September According to the applicant, even if he 1962. were granted four months'

additional

PETERSEN v COMMISSION

incompatible with the recruitment rules application. It emphasizes that, during in force. The Commission bound the interview on 28 September 1973 with was by this promise unless the reservation stated Mr Junger, an official of the

was found to apply. Directorate-General for Competition, the

applicant was informed of the rule on 'experience'

and of the fact that decisions Com­ According to the applicant, the as to could be taken after grading only mission was under a duty to exercise its discretion in his in obtaining the opinion of the Grading case accordance with Committee. the rules of recruitment having regard to the interpretation and practice applied in With regard to the appointment of

previous cases and to do so on the basis officials in a grade other than the basic of the principle of the most favourable grade of their or career bracket, category treatment. the defendant refers to the provisions of

Title III of the Staff Regulations, to the

appropriate adjustments have been made in the case of Danish and The defendant contends that the 'experience'

British nationals, this reference to Article 27 of the Staff should be taken into account as from Regulations is based on a misconception.

the fourth or fifth year of study onwards. The applicant probably intended to

claim that there has been an page 3: infringement of the third paragraph of

2. Period in military service spent the said article in that, in certain cases, See Application under 1 (a) above. the experience of Danish candidates was

deemed to have begun at a later date than that applied in the case of British page 7: candidates.

university degree. In fact, with regard to

the period of employment from 12 to 14 The applicant has supplied no evidence years the Committee has accepted that to show that the factors described in the classification in Grade A­ 4 is possible report received different consideration

only in so far as the Committee was according to the nationality of the assured that the candidate to be candidate concerned. He has, therefore appointed possessed experience adduced no proof whatever that any specifically related to the post to be differentiation, as regard grading, filled. between, on the one hand, Danish candidates and, on the other, other As regards the period of university candidates of the same age, was based on

studies, the Grading Committee has the nationality of the said candidates in calculated the experience of Danish such a way that posts were reserved to candidates as from the beginning of their the nationals of a specific Member State. sixth year of study and that of British candidates with effect from the fifth year In giving its opinion concerning the after the beginning of their studies. appointment of the applicant in Grade A­ 5, the Grading Committee duly However, experience acquired during applied all the governing the rules study before obtaining a first university degree and the period grading of officials and, in any event, did probationary so without discrimination according to completed by an official after his nationality. appointment have never been taken into account in making an appointment in a

particular step or grade in Category A. II — Second submission

appointment in Grade A­ 4. Furthermore, obligation on it to do so, nor was it in

there could have been to grade the applicant in no any way obliged misrepresentation of the facts to him Grade A­4. since compliance with the relevant rules

made it impossible for him to be Reply appointed in Grade A­4. The applicant adheres to the statement

Again, the discussions between the that the defendant made him a clear and

applicant and Mr Junger cannot be unequivocal promise which fulfils the

regarded as having created a legal condition precedent described in the

proceedings (see the Judgment of 13 question of grading.

July 1972 in Case 79/71, Heinemann v

Commission, Rec. 1972, p. 579). In order I — First and second submissions

to do so the applicant must prove that

the defendant caused him 'a still The applicant states that the application injury'

subsisting (see Case 79/71). of all the rules governing recruitment quoted by the defendant are subject to The information alleged to be incorrect the principle of equality which the

in Grade A­ 5 and other prospects of the basis, a certain number of years are

employment open to him and the deducted if the basic length of study in a

statement cannot in consequence be Member State is shorter and a certain

regarded as creating an entitlement to number are added if it lasts longer. This regrading. is not, however, enough if, in the case of Danish candidates, the beginning of the The defendant states that it was entitled sixth year of study is taken as the starting to grade the applicant in Grade A­ 5 point and, in the case all British because, although under Article 31 of the candidates, it is the beginning of the fifth -

Staff Regulations it grade a year of study. Systematic application of may

JUDGMENT OF 2. 12. 1976 - CASE 102/75

promise, should have been graded in A­ 4. II — Second submission alone

As regards compulsory military service, The applicant claims that there has been the applicant recognizes the need to an infringement of a number of general avoid a situation in which a candidate is legal principles from the law classified in a higher grade on stemming solely of obligations and administrative law. account of seniority consisting essentially in military service. In his case, however, Under the basic principles of the law of service represents military only about obligations, the telegram of 21 10 % of his seniority. Under the September 1973 constitutes a special principle of equality of treatment laid authority conferred on Mr Junger under down in the report of 15 February 1974, which he is empowered to negotiate with the defendant must, therefore, take the the applicant and to commit the eighteen months of compulsory military defendant. In that communication there service into account in calculating his is no indication of restictions on this seniority. authorization and the determining As regards experience acquired during question is, accordingly, whether he was

the period of study, the applicant aware, or ought to have been aware, of

explains that, after the first part of his those limits. course of study (May 1959), he was in paid employment for eight to nine On this point, the applicant maintains

months (Annexes 5 to 7). He made no that at no time during the meeting in reference earlier to these activities Brussels did he have any reason to

because he was not in a position to be suppose that, when Mr Junger made him aware of the rule allowing odd periods of the promise in question, he was

case of all candidates and taken the mentioned telegram in which no

trouble to obtain the relevant reference was made to any restrictions on

information. the delegation of authority.

PETERSEN v COMMISSION

Under current principles of promise to classify the applicant in administrative law, even if a favourable Grade A­ 4. The existence of such a

administrative measure, the promise in promise is confirmed neither by the

concerning the engagement of candidates

The judgments quoted by the defendant or their classification.

in no way affect this statement since, in the present case, the administrative On this point, the defendant emphasizes

measure is vitiated not because of a that the telegram summoning him mistake of law but, on the contrary, by a makes clear the distinction between lack of authority which the person to the Directorate-General Competition whom the measure was addressed could (Directorate-General IV) where the

not have envisaged. applicant was asked to contact Mr

Junger, and the Recruitment Service The applicant maintains that, as the (Directorate-General IX) to whom the

1973 constitutes, in this case, a mistake

of law which means that, under the basic The defendant considers that the

principles of the law of obligations, the principles contained in the report of the

declaration of intention by the person to Grading committee are fully commensur­

whom the measure was addressed to ate with the prohibition on discrimi­

which it gave rise is not binding upon nation based on race, religious belief or

decision was based was the decisive factor grading of new officials in Category A is, in the acceptance of the offer of the A­ 5 in the words of Article 31 of the Staff post. The answer to this question must Regulations, that they must be appointed clearly be in the affirmative. 'to the starting grade of their category or service'

which, in the case of career

Rejoinder bracket A­ 5/A 4, means recruitment at

the first step in Grade A­ 5. Any higher The Commission denies that, whatever grading of officials from the new

words were used at the on 28 Member States would, consequently, meeting September 1973, they amounted to a amount to a departure from the said

JUDGMENT OF 2. 12. 1976 - CASE 102/75

equality. equal treatment to have regard to

them in the applicant's case. This is the context of the general rule In the absence of details on which to requiring fourteen years'

experience as a base profitable inquiries, the qualification for classification in Grade defendant is unable to make any A­4. The applicant has forgotten that observations on the comments, classification in that grade after only 12 contained in the reply, about the two years is restricted to special cases. Danish officials.

But, in the defendant's view, the II — As regards the second applicant is in no sense a special case. submission relied upon

The defendant denies that the

application of the criteria in the case of The defendant contends that the

study and who also possess one based on the Staff Regulations and not year's direct experience, although at on any agreement. (See the Judgment of that date he himself would not yet 19 March 1975 in Case 28/74, Gillet v have completed the study of the basic Commission [1975] ECR 463 and the branches of law; the applicant's judgment of 28 May 1970 in Joined career at that juncture cannot be Cases 19, 20, 25 and 30/69 Richez-Parise compared with that of a British v Commission [1970] ECR 325). candidate.

(b) Compulsory military service A promise along the lines alleged by the The interpretation placed upon the applicant cannot in any case compel the

rule applied by the Grading defendant to appoint the applicant to a

Committee was that, while post in Grade A­ 4 contrary to the

compulsory service could recruitment rules applicable. military normally undoubtedly be taken into account in Nor, moreover, has the applicant

calculating the step in the grade it adduced any evidence at all of the

9 October. During the hearing, evidence was given

by the applicant and Mr Junger The defendant also rejects the appraisal concerning the course of the discussion of the facts from the viewpoint of public they had on 28 September 1973. law: since what Mr Junger said formed part of the preliminary stage of The Advocate-General delivered his recruitment, it cannot be treated as an opinion at the hearing on 26 October administrative measure. 1976.

Law

1 By application of 22 September 1975 the applicant, who entered the service ofthe Commission on 1 January 1974 and was established as an official in

Grade A­ 5 on 1 October 1974, has requested the annulment of the decision, implied by the absence of a reply by the appointing authority, rejecting the complaint which he had lodged on 19 February 1975 under Article 90 (2) of

the Staff Regulations of Officials.

Commission must amend his original classification and place him in Grade A 4/1.

4 The defendant states that the implied rejection of the complaint is merely confirmation of the refusal, contained in a letter of 9 October 1973, to

appoint the applicant in Grade A­ 4, and of his appointment in Grade A­ 5 by decision of 28 November 1973.

JUDGMENT OF 2. 12. 1976 - CASE 102/75

5 The contested decision, which merely confirms previous decisions, does not

have the effect of starting a fresh period for lodging an appeal against the

8 This is particularly so since the appointing authority was, from the beginning, aware of his desire to obtain an A­ 4 post and one of the officials who had been made responsible for the recruitment of staff from the new Member States had undertaken to meet his wishes if the regulations in force made this

possible.

9 The parties were not, in consequence, ad idem and the rules of natural justice require that the period within which this deficiency, which vitiates the act of appointment and acceptence, can be relied upon must begin to run only from the time when he was in a position to discover his mistake.

10 In any event, the applicant's argument amounts to claiming that the discovery by him of the existence and implementation of the aforementioned criteria

for grading constitutes a new fact such as to start running in his favour a fresh

period for lodging an appeal.

founded.

13 The examination as to admissibility must, therefore, be joined to that of the

substance of the case.

It is from 14 clear the preparatory inquiries in this case that the applicant relied

on the statements made to by Mr Junger, an official in Grade B 1 who is him responsible for looking after the candidates and for helping them to contact the heads of the departments to which their appointment might be considered.

15 This official was in no way authorized to give undertakings of the kind

18 At the time when officials were being recruited, consequent upon the

accession of the new Member States, the appointing authority was, under

Article 1 of Regulation No 2530/72 of the Council of 4 December 1972, authorized to make liberal use of Article 31 (2) and of Article 32 (2) of the Staff Regulations of Officials, under both of which it is permissible to make

exceptions from the usual rules governing appointment into grades in

Category A.

19 On 6 June 1973, the member of the Commission representing the

recommendations to be made.

21 These criteria were particularly concerned with the way in which experience prior to engagement was tobe assessed, taking account of university degrees and the completion of any period spent in military service.

22 There was however no question of the automatic application of these criteria

since they were exclusively intended to help the appointing authority in

making the selections which it was called upon to make on the

recommendation of the Committee.

informed of the said criteria did not, therefore, constitute an omission since

those candidates could not call them in aid nor a fortiori challenge in

proceedings before this Court the correctness of the assessments made in their case when those criteria were applied.

26 In consequence, the discovery by the applicant of the existence of these

criteria cannot constitute a new fact such as to start the period for lodging appeals to run afresh.

PETERSEN v COMMISSION

30 The applicant has failed in his submission.

31 Nevertheless under Article 70 of the Rules of Procedure the costs incurred by the institutions in applications by servants of the Communities shall be borne by the institutions.

On those grounds,

THE COURT (First Chamber)

hereby:

1. Dismisses the application;