C-9/81

JUDGMENT OF 6. 10. 1982 — CASE 9/81

exist in that form in other Community the case of officials transferred from institutions, with the result that the other institutions, upon Article 46 of careers of the new officials, on the the Staff Regulations in order to one hand, and of those transferred justify the alleged difference between from other institutions, on the other, their status and that of the newly- are not organized in a consistent recruited officials from outside the manner, it is not entitled, to rely, in Communities.

In Case 9/81

CALVIN E. WILLIAMS, an official of the Court of Auditors of the European Communities, residing at 15 Route de Luxembourg, Bridei, represented by V. Biel of the Luxembourg Bar, with an address for service in Luxembourg at the latter's Chambers, 18a Rue des Glacis, applicant,

v

COURT OF AUDITORS OF THE EUROPEAN COMMUNITIES, represented by its Secretary, J.-A. Stoll, assisted by A. Bonn, of the Luxembourg Bar, with an address for service in Luxembourg at the latter's Chambers, 22 Côte d'Eich,

WILLIAMS v COURT OF AUDITORS

JUDGMENT

Facts and Issues

JUDGMENT OF 6. 10. 1982 — CASE 9/81

In giving the above decision the Court of much higher grades on the newest Auditors also replied to a further request recruits than on the existing staff; by the applicant under Article 90 (1), concerning the fact that Mr Leicht's 3. Declare that the Court of Auditors memorandum, which had still been in the must assure the applicant of a classi­ applicant's personal file on 4 August fication which is at least comparable 1980, was no longer there in September with that of his colleagues of about 1980. The appointing authority alleged the same age, who have university that the memorandum, being an internal qualifications of the same level and administrative document expressing an the same experience, and that this opinion, was not a document of the shall have effect from the date on type contemplated by Article 26 and which this action is brought; consequently should not have appeared 4. Annul the decision of 13 November in the personal file, for which reason it 1980 inasmuch as it rejects the had been removed pursuant to a decision applicant's complaint; of 26 August 1980. 5. Declare that the Court of Auditors By application lodged at the Court has made an official error for which Registry on 14 January 1981 the it must pay compensation, the applicant brought an action before the damages being estimated, subject to Court of Justice against the decision of all necessary reservations, at BFR 13 November 1980. 1 080 000, and accordingly order the Court of Auditors to pay the The Court of Auditors objected under applicant by way of damages the Article 91 of the Rules of Procedure that said sum plus interest at the rate of the action was inadmissible. 6% from the date on which this By order of 19 May 1981, the Third action is brought until the sum is Chamber of the Court of Justice reserved paid in full; until final judgment its decision on the 6. In any event order the Court of objection of inadmissibility raised by the Auditors to pay the costs." defendant.

(b) In the alternative, reserve its for lodging a complaint the day on decision on the procedural issue which he became aware of the measures until final judgment and, in any specifically affecting him and giving rise event, prescribe new time-limits for to the inequality of treatment of which the further steps in the pro­ he is a victim, the applicant is treating ceedings." those measures as a measure "adversely affecting him" within the meaning of Article 90 (2) of the Staff Regulations. In its defence, the Court of Auditors supplements its previous conclusion and Since the classification of other officials claims, in the alternative, that the Court recruited after the applicant cannot as should declare the action unfounded and such amount to a measure adversely dismiss the same. affecting him, he expresses a different view, namely that his own classification has been shown to be inappropriate in III — Summary of the sub­ the light of the classifications assigned to missions and arguments of other officials. the parties Moreover, by contesting the decision rejecting his complaint the applicant has A — Admissibility not contested the measure adversely affecting him since it necessarily The defendant contends that both the antedated that decision and therefore applicant's claim and his subsequent could not be embodied in it. Indeed, the action are inadmissible on the ground decision rejecting the complaint was no that they are manifestly out of time, more than the confirmation of a previous since no complaint was made nor any decision and, seen in isolation, could not action brought regarding the original amount to a measure subject to review, grade assigned to him by the Audit as is apparent from the judgment of 28 Board or his appointment and promotion May 1980 in Joined Cases 33 and 75/79' by the Court of Auditors. Kubner vCommission [1980] ECR 1677

The applicant admits that his action is specific grounds of complaint required out of time in so far as it refers to his by the Staff Regulations, the applicant initial classification. claims that the later classification of other officials does, in the circumstances, On the other hand, he submits that adversely affect him since his career inequality of treatment and discrimi prospects have been blocked by new nation favouring officials recruited after officials' being "parachuted in" at higher him do adversely affect him. To maintain levels despite major differences of age — as the Court of Auditors does — that and experience. In his view, it is precisely the classification of officials entering the admission of new candidates on employment after the applicant cannot more favourable conditions which adversely affect him would be amounts to a measure adversely affecting tantamount to acknowledging that there him; he adds that there is no dispute as is no defence against discrimination, to the classification of those new officials abuse and inequality. but his aim is to ensure that he is assigned a comparable classification so as to restore equality to the career structure

on the one hand, and on the other, that of those who were recruited hastily and Turning to the argument of the Court of as temporary or auxiliary staff and for Auditors that he had contested only the the classification of whom the Court of decision of 13 November 1980 rejecting Auditors claims to be entitled to lay his complaint, the applicant admits that down the criteria. his fourth head of claim seeks the annulment of that decision but does so merely because, if the Court of Justice Although is is true that the defendant were to uphold his claim and to was entitled to prescribe the length of recognize the discriminatory character of experience required, it should none the his classification, it would have to annul less apply the same standards to all that negative decision as well. officials within the same category and

WILLIAMS v COURT OF AUDITORS

As to the argument adopted by the being set up, it decided to comply with appointing authority in its memorandum the Staff Regulations and Conditions of of 13 November 1980 to the effect that Employment of Other Servants and the obligation contained in Article 5 (3) recruited temporary and auxiliary staff of the Staff Regulations relates solely to who were later appointed as officials procedure, the applicant denies ever exclusively on the basis of competitions having asserted that promotion should be organized in compliance with the Staff automatic but claims that conditions Regulations. It is thus incorrect to speak should be the same for all officials from of haphazard recruitment or the award the outset. of generous grades and it is no less mistaken to say that the competitions in which the present officials were succ­ essful were specially tailored to suit In the applicant's opinion, however, his them. present classification is vitiated by discrimination and is contrary to Article 5 (3) of the Staff Regulations in view of the criteria and staff policy adopted by The defendant argues on the other hand the new appointing authority. that the applicant has taken part in virtually all the competitions for Career Brackets A 5/A 4 and A 3. He was The applicant therefore accuses, the admitted to the tests in nine competitions Court of Auditors of classifying its but had not been placed on any of the officials in a discriminatory fashion and lists of suitable candidates drawn up by claims that the unequal treatment the various selection boards. accorded to him is wholly without justification.

The defendant concludes that the Comparing his own situation with that of applicant is wrong in believing that he another official in the same grade as has superior training and wider himself, he adds that the latter was experience than other officials who have classified in Step 4 although he had ten reached grades comparable with his own years' less experience than the applicant, and also considers that, in the circum­ which irrefutably demonstrates the stances, the administration of the Court existance of discrimination, regardless of of Auditors acted properly, making its all the competitions for Career Brackets assessments calmly and objectively. A 5/A 4 and A 3. In the circumstances, by virtue of Article 5 (3) of the Staff Regulations, the applicant should be classified in Step 8 at the least. Since the difference between the remuneration of an official in Grade A 6, Step 2, and that of an official in Grade A 6, Step 8, is of In his reply, the applicant refers first to the order of BFR 30 000, the applicant his career with the Community. In that alleges that he has suffered damage to connection he points out that the Audit the extent of BFR 30 000 per month over Board usually promoted its A 7 officials a period of three years, giving a total of to A 6 when they were established in BFR 1 080 000. their posts but that that had not occurred in his case, on the ground that the Audit Board had decided to hold back all promotions pending the creation of the Court of Auditors. In those circum­ stances, it would have been perfectly normal for the court to have promoted In that connection the applicant states him — a year later than such promotion that, long before its decision of 21 would have occurred under the February 1980, the Court of Auditors procedure adopted by the Audit Board had appointed its temporary staff to — to Grade A 6. "generous" grades and he maintains that most of the officials of the Court of Auditors were indeed recruited in a random fashion, without the normal advertising when they were initially engaged as temporary staff. In his opinion, Document M 287/78 shows After this reference to his Community that the President of the Court of career, the applicant repeats that he is Auditors had expressed regret that the not seeking an amendment of his initial new recruits included a number of classification but considers that, as far as poorly-qualified people. The status of the career development is concerned, it temporary staff had been regularized by should be impossible for officials a competition in which, although the recruited at a later stage to be granted formalities had been complied with, the more favourable conditions than officials essential purpose had been completely of longer standing. The circumstances ignored in so far as no knowledge of constitute a new development, the accountancy had been required of the emergence of which enables the previous so-called auditors. Furthermore, there situations to be reviewed, as the Court of was a success rate of 91.66 % in the Justice held in its judgment of 12 July competitions thus organized. In those 1973 in Case 28/72 Tontodonati v circumstances it is, in his view, Commission [1973] ECR 779. impossible to speak of jealousy on his

(a) As far his training is concerned, in As regards the argument of the Court of view of the fact that fewer than 12 of Auditors that he had been unsuccessful the 65 officials assigned to the in nine competitions, the applicant auditing of the Communities' maintains that in reality that was not the accounts have university degrees in case — although he had been permitted accountancy or certificates qualifying to apply for nine posts, he had been them as accountants, the superiority allowed to take part in only three of his training is unarguable; competitions, namely one for Grade A 3 and two for Career Bracket A 5/A 4. In any case, he maintains that those three competitions had only one objective, (b) As far as experience is concerned, namely to establish temporary staff the applicant has spent seventeen members who had been recruited years in accountancy and finance without any entrance competition. and considers that he is the only official at the Court of Auditors to have been responsible for the In support of his argument the applicant accounts of the subsidiaries of examines the circumstances of those several multi-national companies. candidates who were successful in the Furthermore, when he was classified three competitions. only in Grade A 7 at the Audit Board, the applicant had discharged responsibilities which bore no On the subject of Mr Leicht's relationship to his grade from 1974 memorandum, whilst admitting that it to the end of 1978. was of an internal character, the applicant claims that the information contained in it should be of relevance to the Court of Justice and that even an Consequently, the applicant maintains "isolated case" should be a matter of that his action is well founded both on concern for a public service. legal grounds and on grounds of equity, since the Court of Auditors has infringed Article 5 (3) of the Staff Regulations by The applicant also admits the usefulness practising discrimination. and even the fairness of the decision of the Court of Auditors of 21 February 1980, but he criticizes its failure to find a In its rejoinder the defendant expresses way to apply the same generous criteria regret that the applicant should have to its existing staff. It is from that discussed the circumstances of individual situation that the discrimination officials at the Court of Auditors and inconsistent with Article 5 of the Staff adds that, despite the risk that its silence Regulations arises. may be interpreted as prevarication, it refuses to give details, in proceedings to which they are not parties, of the Lastly, in reply to the defendant's qualifications, merits, careers and pros­ argument that he is wrong in believing pects of officials who are not involved.

Yet, according to the defendant, the Finally, the defendant maintains that, applicant bases his entire argument upon after checking, it finds that the applicant such a comparison. Moreover, a view did indeed participate in nine such as that of the applicant would lead competitions. to incessant complaints from officials of a particular age or seniority who saw younger or less senior members of staff obtain similar of even better posts than their elders, by virtue of ' valid qualifications or successful participation IV — Oral procedure in competitions.

At the sitting on 10 June 1982, oral argument was presented and questions After thus rejecting the applicant's put by the Court were answered by the assertion, the Court of Auditors nevertheless goes on to examine his applicant, represented by V. Biel of the various arguments relating both to the Luxembourg Bar; and by the Court of situation of other officials and to the Auditors, represented by J.-A. Stoll, propriety of the competitions organized acting as Agent, and by A. Bonn of the by the Court of Auditors. In that Luxembourg Bar. connection it stresses that none of the many competitions cited in the reply had given rise to a complaint or an action on the part of Mr Williams or of any other The Advocate General delivered his candidate. opinion at the sitting on 15 July 1982.

WILLIAMS v COURT OF AUDITORS

Decision

JUDGMENT OF 6. 10. 1982 — CASE 9/81

5 In the applicant's view the classification criteria thus established led to discrimination, in so far as the classification of new officials and other staff was considerably more favourable than that of the existing officials transferred from the Audit Board. On 12 May 1980 he therefore sent a letter to the appointing authority requesting the Court of Auditors to examine the possibility of rectifying that anomaly.

6 By letter of 25 July 1980, the President of the Court of Auditors refused the request since there were, in his opinion, no grounds for regarding the situation as anomalous and the applicant had been transferred and promoted in conformity with the Staff Regulations and especially Article 46 thereof.

WILLIAMS v COURT OF AUDITORS

10 Before expounding its arguments on the substance of the case, the Court of Auditors raised an objection pursuant to Article 91 of the Rules of Procedure that the action brought by Mr Williams was inadmissible.

Admissibility

11 In support of its objection of inadmissibility, the defendant contends that the action is manifestly out of time, since no action has ever been brought against the decisions which are relevant to the applicant's classification, namely his establishment by the Audit Board, his transfer to the Court of Auditors in the same grade as he had previously held and his promotion to Grade A 6 and that the classification of officials engaged later could not as such constitute a measure adversely affecting him. The defendant adds that the decision rejecting the complaint was merely a measure confirming previous decisions and was consequently not subject to review.

12 The applicant admits that he is no longer entitled to contest his initial classi­ fication, but considers himself entitled to contest his present classification because there have been new developments, namely the better classification assigned to officials and other staff recruited since February 1980 from outside the Communities. It is indeed that measure, namely the more favourable classification subsequently assigned to other officials, which adversely affects him, although he is not in any way concerned to discuss such classification. Lastly, he claims that the decision rejecting his complaint was not merely a confirmatory measure because it was the only reasoned reply to his complaints.

16 The application is, accordingly, admissible.

Substance

17 All the applicant's arguments essentially concern two problems, relating first to his classification and secondly to his claim for damages.

A — The applicant's classification

18 The applicant bases his claim for a better grade on Article 5 (3) of the Staff Regulations, which provides as follows: "Identical conditions of recruitment and service career shall apply to all officials belonging to the same category or to the same service." He takes the view that that provision should be interpreted as meaning that any discrimination between officials in the same category or service is prohibited. However, he notes — as does the administration itself in its memorandum of 13 June 1980 — that as a result of the recruitment carried out since February 1980, officials with less professional experience and fewer university qualifications than himself are

WILLIAMS v COURT OF AUDITORS

23 In the circumstances, the Court of Auditors is not entitled to rely, in the case of officials transferred from other institutions (including the Audit Board), upon Article 46 in order to justify the alleged difference between their status and that of the newly-recruited officials from outside the Communities, especially when the decisive criterion laid down by the decision of February

JUDGMENT OF 6. 10. 1982 — CASE 9/81

1980 with regard to assignment to an appropriate step is appropriate experience and when, in the opinion of the Court of Auditors itself, by virtue of that criterion the applicant should be awarded a higher step.

24 Consequently, the defendant's decision refusing to review the applicant's classification should be annulled and the defendant should be ordered to classify the applicant on the appropriate step, taking account of his experience and possibly of his qualifications in conformity with the decision of February 1980, in order to remove the difference in classification between him and officials from outside the Community to whom the classification criteria of the above-mentioned decision have been applied.

B — Claim for damages

25 The applicant bases his claim for damages upon the allegation that the Court of Auditors was guilty of a wrongful act consisting of discrimination against him regarding his classification. If he had been placed in Grade A 6, Step 8, he would have earned an extra sum of BFR 30 000 per month, which, over a period of three years, amounts to BFR 1 080 000, the sum which he now seeks to recover.

30 As the Court of Auditors has substantially failed in its submissions, it must be ordered to pay the costs.

On those grounds,

THE COURT (Third Chamber)

hereby:

1. Orders the Court of Auditors to correct the step assigned to the applicant with effect from 12 May 1980 and to observe the criteria laid down in its decision of February 1980;

2. Orders the Court of Auditors to pay the difference in salary resulting from that correction, increased by interest at the rate of 6% as from the date on which each payment fell due;