C-129/82

JUDGMENT OF 13. 12. 1984 — CASES 129 AND 274/82

In Joined Cases 129 and 274/82,

CHARLES LUX, an official of the Court of Auditors of the European Communities, residing at 17 Rue Bertholet, Luxembourg, represented by Edmond Lebrun of the Brussels Bar, with an address for service in Luxem- bourg at 17 Rue Bertholet, applicant, v

COURT OF AUDITORS OF THE EUROPEAN COMMUNITIES, represented by its Secretary, Jean-Aimé Stoli, acting as Agent, assisted by Lucette Defalque of the Brussels Bar, with an address for service in Luxembourg at the seat of the Court of Auditors, 29 Rue Aldringen, defendant,

APPLICATION for the annulment of the defendant's decision of 20 January 1982 classifying the applicant in Grade A 5, Step 3, and for a declaration that he should be classified in Grade A 4,

T H E C O U R T (Second Chamber)

The facts of the case, the course of The applicant, however, considered that the procedure and the conclusions, that new classification did not comply submissions and arguments of the parties with the decision of 21 February 1980 may be summarized as follows: and was contrary to the principles of equality and objectivity, and on 16 March 1982 he therefore submitted a complaint against that new decision. I — S u m m a r y of t h e facts

The applicant claims that on the basis of Having been successful in an inter- Article 2 of the decision of 21 February institutional competition, the applicant 1980 he was entitled to be classified in was promoted by decision of 9 Grade A 4. September 1980 to Grade A 5, Step 2. That decision referred to various provisions of the Staff Regulations of Officials of the European Communities, in particular to Article 46. On 27 August II — W r i t t e n p r o c e d u r e 1981 the applicant submitted a complaint against that decision under Article 90 (2) of the Staff Regulations, claiming that Immediately after submitting his com- he ought to have been classified on the plaint, the applicant made an application basis of the defendant's decision of to the Court of Justice on 13 April 1982 21 February 1980 on the criteria for the as a precautionary measure in case it classification and appointment of staff, should be considered that, rather than and not on the basis of Article 46 of the submitting a complaint, he ought to have Staff Regulations. brought an action directly against the decision of 20 January 1982. That In his reply dated 18 December 1981, application is the subject of Case 129/82. the President of the Court of Auditors The procedure in that case was stated that he entirely agreed with the suspended until judgment had been applicant and decided that the decision delivered in Case 9/81, Williams v Court concerning him should be revised and of Auditors, a case which had some taken on the basis of the Court of connection with this case. The judgment Auditor's decision of 21 February 1980. in Williams was delivered on 6 October 1982.

By order of the Second Chamber of 16 Order the defendant to pay the costs." December 1982, the Court decided to join Cases 129 and 274/82 for purposes The defendant contends that the Court of the procedure and the judgment. should: Meanwhile, on 24 November 1982, the " 1 . Declare the applicant's applications defendant had submitted to the Court an in Cases 129 and 274/92 admissible application for interpretation of the but unfounded; judgment given on 6 October 1982 in Williams. By letter of 2 December 1982 2. Consequently, confirm the classi- it requested the Court to stay the fication of the applicant in Grade proceedings in the two joined cases until A 5, Step 3; the judgment interpreting the Williams judgment had been given. 3. Order the applicant to pay the costs." By order of 29 September 1983, the Third Chamber dismissed the application for interpretation of the judgment in Williams as inadmissible. That order was IV — S u b m i s s i o n s a n d a r g u m e n t s communicated to the parties and the of t h e p a r t i e s d u r i n g t h e written procedure resumed its usual written procedure course.

length of professional experience of the Auditors was in the process of setting up person concerned. The applicant admits its departments and wished to facilitate that Article 2 contains the word "may", appointments to the higher grades of the but in his view that merely means that intermediaiy career brackets, and that the defendant has an option of is why it adopted the decision of appointing a successful candidate in a 21 February 1980. It was only when that competition to a grade other than the process was complete that some starting grade; once that option has been discretion was once again conferred exercised, the appointing authority must upon the appointing authority by the automatically grade the person con- decision of 12 June 1980 and 3 De- cerned in accordance with the criteria cember 1981. defined in Article 2, that is to say on the basis of the length of his professional experience. The applicant concludes his first submission with the claim that, since on 1 August 1980 he had 11 1 / 4years' That interpretation is confirmed by the experience, he ought to have been principles of equality and objectivity, appointed to Grade A 4 because Article 2 since there is no reason why, where two of the decision of 21 February 1980 successful candidates in a competition states that, in order to be appointed to have more professional experience than Grade A 4, a person must have at least is required, one should be classified in 10 years' experience. the higher grade and the other in the lower grade of the career bracket.

JUDGMENT OF 13. 12. 1984 — CASES 129 AND 274/82

a shortage of budgetary posts. In relation even though they had less experience or to the statement made by the President had not had a university education. of the Court of Auditors to the effect that the candidates promoted to Grade A 4 all had a minimum of 13 years' experience, the applicant makes the following comments : 2. The defendant first of all emphasizes the circumstances in which the ap- plicant's appointment was made. It stresses that appointments were made by That is an ex post facto finding based on the Court of Auditors in two stages : statistical data and cannot replace an objectively justifiable criterion; As regards the appointments made before 1 April 1980, the objective of the There is no apparent reason why 13 Court of Auditors was to fill the posts years' experience should be required in higher grades and to appoint the when the decision in question stipulates a institution's senior staff. Consequently, it minimum of 10 years' experience; was looking for persons of considerable ability, and it was entirely logical for it to recruit them in Grades A 6 and A 4. Furthermore, all the persons appointed The disparity between the average to Grade A 4 had at least 13 years' experience of officials classified in Grade seniority. Furthermore, the applicant had A 4, namely 17 years, and the experience the opportunity of taking part in that of the official with the least experience, initial stage but failed to pass the namely 13 years, is considerable; competition.

(a) In relation to the applicant's first appointed to the lower grade of the submission, the defendant considers that career bracket. It infers from that that the applicant has confused career bracket the appointing authority did indeed, in with grade. In making an appointment, exercising its discretionary power, apply the appointing authority has two choices : objectively justifiable criteria and that it first, it chooses the career bracket was under no obligation to lay down (A 5/4) and, secondly, it chooses the those criteria in advance. grade (either Grade 5 or Grade 4); it is not obliged, when holding a competition in a high career bracket, to make The defendant further stresses that the appointments to the higher grade of that applicant cannot challenge the other career bracket. appointments to which he refers except by bringing an action before the Court, which he has not done. Furthermore, the applicant's interpret- ation is contrary to Articles 31 and 32 of the Staff Regulations because it would mean that appointments to a grade could 3. In his reply, the applicant examines no longer be made on the basis of the first the defendant's reference to the post to be filled but only on the basis of circumstances surrounding his appoint- seniority. ment, that is to say the two stages of recruitment. Moreover, appointment to the higher grade within a career bracket is an option and is subject to budgetary According to the applicant, on the basis constraints and conditional upon the of the same decision of 21 February 1980, existence of exceptional circumstances; two conflicting principles were applied; such appointment therefore cannot be during the first stage, appointments were made systematically without infringing made to the higher grade within a career Articles 31 and 32 of Staff Regulations. bracket, whilst during the second stage appointments were made to the lower grade. According to the applicant, such a It is also wrong to state that, if the practice must be illegal because it cannot appointing authority has a discretionary be based on two conflicting principles power, the criteria enabling its scope to and it is clearly contrary to the principle be determined must be stated: they need of equality. only be fixed. That was the case in this instance, where during the first stage of appointments, after the higher grades It is in addition incompatible with the had virtually all been filled, the decision of 12 June 1980, which appointing authority chose to assign the provided that the criteria laid down by remaining budgetary posts in those the decision of 21 February 1980 were to grades persons who had the greatest continue to apply to appointments — seniority. such as the applicant's — made as a result of the inter-institutional com- petitions which were then in progress (b) In reply to the arguments put and which altered those criteria so far as forward by the applicant in his second future appointments were concerned by submission, the defendant repeats that stating that appointments to Grades A 4 the contested appointment took place and A 6 would be made only in during the second stage, in which all exceptional circumstances. It is therefore staff, with certain exceptions, were apparent from the decision of 12 June

1980 that a principle was applied to the In addition, in relation to the question applicant which it was decided should whether the appointing authority's dis- not enter into force until after the second cretionary power was limited by the stage of appointments. posts available in the budget, the applicant claims first that on 1 August 1980 at least three A 4 posts were The applicant further submits that available in the budget and points out different, conflicting principles were thus that on 22 December 1981 he himself applied in grading those appointed by actually occupied a post classified in the internal competition — during the first budget as Grade A 4. stage — and those appointed by inter- institutional competition — during the second stage. It follows from the judgment of the Court of 6 October He concludes that there is therefore no 1982 in Case 9/81, Williams, [1982] purpose in entering into a legal debate ECR 3301, that the "difference in the in order to show that a shortage of methods of appointment does not affect available budgetary posts could not classification and cannot constitute prevent an official from being classified grounds for discrimination in classi- in accordance with the Staff Regulations fication". or general decisions adopted in im- plementation thereof. The applicant claims that it follows from the foregoing considerations that the application is well founded; the two (b) The applicant supplements his submissions put forward in his ap- second submission by the further claim plication are therefore considered only in that there was an infringement of the the alternative. defendant's decision of 12 June 1980. In his view, that decision provides that the principle that appointments should be (a) In relation to the first submission, made to the higher grade in any career the applicant denies that he has confused bracket should still apply to ap- the concepts of career bracket and grade pointments made during the second stage and that he sought to establish a and should only be abandoned there- principle to the effect that the appointing after. Consequently, the applicant ought authority was bound to appoint a person to have been classified in the higher to the higher grade of a career bracket. grade in the career bracket, that is to say On the contrary, he repeats that in his in Grade A 4 ; therefore by adopting a view such an obligation arises simply different course of action the defendant from a reading of Article 2 of the failed to comply with the aforesaid decision of 21 February 1980. decision.

the applicant denies that in the second within the framework thus laid down by stage all staff were appointed to the the Staff Regulations, should conse- lower grade and claims that on the quently be read in the light of Articles 31 contrary, but for him, they were all and 32 of those regulations. Thus, appointed to the higher grade. He according to the defendant, Article 2 of concludes from that that, even by the decision of 21 February 1980 sets out comparison with the persons appointed for the appointing authority a table of in the second stage alone, he was minimum experience to be required of discriminated against. By way of candidates when notices of competitions evidence, he refers to other cases and are drawn up. The contention that that produces an annotated table. table is intended to determine the grade is incompatible with the spirit of the aforesaid internal decision and with the 4. In its rejoinder the defendant Staff Regulations. The table is merely observes by way of preliminary that it intended to be indicative and is not cannot agree with the approach which intended to be followed automatically, underlies the applicant's action and and the distinction drawn between the which amounts to an endeavour to two stages of appointment — based on compel the appointing authority to the exceptional circumstances, namely appoint officials by reference solely to the setting up of a new institution — their experience and not by reference to cannot provide support for the view that the nature of the post to be filled, as is appointments were bound to be made on none the less required by the Staff Regu- the basis of seniority. Equally, the lations and the judgments of the Court. distinction does not constitute a breach For that reason it does not believe that it of the principle of equality, since the is worthwhile replying to each of the situation of the applicant, who was applicant's arguments individually, but appointed during the second stage, is not considers it necessary first to set out the comparable to the situation of other staff rules applicable in order to demonstrate who were appointed during the first that the applicant's argument is fun- stage. damentally inconsistent with the wording and spirit of the law applicable in this case. (a) In relation to the applicant's arguments concerning his first sub- According to the defendant, it follows mission, the defendant considers that it is from the Staff Regulations, especially illogical on the part of the applicant to Articles 31 and 32, and from the way in cite in support of his application the which they have consistently been decision of 21 February 1980 when he interpreted by the Court, that in puts forward an interpretation of that principle a successful candidate in a decision which is clearly contra legem. competition should be appointed to the starting grade of the career bracket, which is to be determined by reference The applicant's argument is also un- to the nature of the post to be filled. tenable because, Grade A 8 having fallen Only in exceptional cases can the into disuse, the appointing authority appointing authority make an ap- would have no choice but to appoint pointment to the higher grade of a staff on the basis of their seniority. career bracket.

(b) In relation to the second submission, the defendant repeats that The defendant stated in particular that during the second stage, in the absence the decision of 12 June 1980 also of exceptional circumstances, all staff provided that the date by which all were appointed to the lower grade of a appointments resulting from inter- single career bracket and that the institutional competitions should be applicant ought to have challenged the made was to be fixed by the appointing appointments to which he refers as authority. The date fixed by the evidence of the discrimination of which appointing authority was 1 August 1980. he claims to have been a victim. After that date, the criteria for Moreover, it stresses that the various appointment were amended to the effect cases relied upon have nothing in that a successful candidate in a com- common with the applicant's case. petition was to be appointed directly to Grade A 4 only in exceptional circum- stances. The defendant concludes that the applicant's aim is to force the appointing In the reply which it gave by letter of authority to apply provisions auto- 6 June 1984 to the questions put by the 10029matically without any discretion or Court at the sitting, the defendant stated choice. According to the defendant, that that the selection board for inter- view has no basis in law, cannot be institutional competition No C C / A / applied in practice and is not feasible 3/80, as a result of which the applicant from the point of view of personnel was appointed on 9 September 1980 had management. been set up on 24 April 1980; the closing date for applications was 5 May 1980, the oral tests were held on 9 June 1980, In conclusion, the defendant contends the selection board's report on the that, in refusing to recognize that the outcome of those tests was received by appointing authority is entitled to adopt the appointing authority on 12 June 1980 a recruitment and personnel policy and and an offer of appointment was made to grade officials on appointment by to the applicant on 3 August 1980. reference to the posts to be filled, as it is required to do, the applicant bases his arguments on a mistaken view of the The Advocate General delivered his powers of the appointing authority and Opinion at the sitting on 25 October of the rules governing those powers. 1984.

and Article 2 provides:

"By way of derogation from Article 1, the appointing authority may appoint a candidate to a grade other than the starting grade of the starting career bracket of his category or service if he gives evidence of professional experience of at least . . . 10 years for Grade A 4 . . . "

3 In addition the Court of Auditors decided in Document No MC 6/80 Rev. 1, adopted in restricted session on 12 June 1980, that "the criteria for classification in grade and step, laid down by the Court and set out in Document No M 8/80 Rev. 1, shall remain in force until the appointments resulting from the inter-institutional competitions at present being held have been made. As soon as those procedures are completed [on a date to be fixed

JUDGMENT OF 13. 12. 1984 — CASES 129 AND 274/82

by the appointing authority], the criteria set out in Document N o M 8/80 Rev. 1 shall be amended or supplemented by the following provisions, which shall however take immediate effect for temporary staff . . . . As regards both temporary and permanent staff, appointments direct to A 4 and to À 6 will be made in exceptional circumstances, to be justified in each individual case by reference to the duties to be carried o u t . . . ."

4 Having regard to the two decisions of 21 February 1980 and 12 June 1980 and considering that it was necessary to lay down identical criteria for the classification of persons appointed on the basis of competitions, the Court of Auditors adopted on 3 December 1981 Decision N o 81-5 on the criteria applicable to the grade and step classification of the staff of the Court. Article 3 of that decision provides that "the appointing authority may, in exceptional circumstances justified on the basis of the post to be filled, make appointments to the higher grade of starting or intermediary career brackets, provided that the candidate gives evidence of professional experience of at l e a s t . . . 10 years for Grade A 4...".

8 Accordingly the President of the Court of Auditors, acting in his capacity as the appointing authority, adopted the individual decision of 20 January 1982; by that decision which expressly referred to the decision of 21 February 1980 and revoked the decision of 9 September 1980, the applicant was appointed to Grade A 5, Step 3.

9 On 16 March 1982 the applicant submitted a complaint, pursuant to Article 90 (2) of the Staff Regulations, against the decision of 20 January 1982, claiming that his new classification was not in conformity with the decision of 21 February 1980, that the decision was thus contrary to the principles of equality and objectivity and that he should be appointed to Grade A 4. The applicant also submitted the first of the two applications to the Court of Justice on 13 April 1982, as a precautionary measure, in case it should be considered that, instead of submitting a complaint, he ought to have brought an action directly against the decision of 20 January 1982.

10 The applicant received no reply from the Court of Auditors to his complaint of 16 March 1982, and, on 13 October 1982, made a second application to the Court of Justice challenging the implied decision rejecting that complaint.

JUDGMENT OF 13. 12. 1984 — CASES 129 AND 274/82

Substance

1 1 The applicant bases his claim to a higher classification upon Article 5 (3) of the Staff Regulations of Officials, which provides that "identical conditions of recruitment and service career shall apply to all officials belonging to the same category or the same service". He states that the defendant, in accordance with its decision of 21 February 1980 concerning internal competitions, as confirmed by the decision of 12 June 1980 as regards the inter-institutional competitions then in progress, made appointments to a grade higher than the starting grade.

16 It follows that the criteria for grade and step classification laid down in the decision of the Court of Auditors of 21 February 1980 were still in force at the time of the appointment of the applicant, a successful candidate in competition No C C / A / 3 / 8 0 .

17 As regards the application of Article 2 of the decision of 21 February 1980 to the applicant's appointment, the Court of Auditors contends that it would result in a successful candidate's being graded solely on the basis of his pro- fessional experience and not on the basis of the post to be filled. In its view, appointment to a higher grade is merely an option which the appointing authority may or may not exercise and cannot be automatic without infringing Articles 31 and 32 of the Staff Regulations.

18 It should be pointed out in that regard that Article 31 (2) (b) of the Staff Regulations authorizes the appointing authority to make exceptions within certain limits to the general rule that candidates should be appointed to the starting grade. Such an exception, justified by special needs, was laid down by the decision of 21 February 1980.

19 Where an exception to the general rule governing appointments is introduced in the form of a general decision adopted within an institution, the principle that there should be no discrimination between officials in any one categoiy at the time of their recruitment, laid down by Article 5 (3) of the Staff Regu- lations, would be deprived of any legal significance if in such a case the appointing authority still had the same discretion as is conferred upon it by Article 31 of the Staff Regulations.

23 Consequently, the defendant's decision of 20 January 1982 must be annulled and the case must be remitted to the Court of Auditors for it to revise the applicant's grading in accordance with the criteria laid down in this judgment.

LUX / COURT OF AUDITORS

Costs

24 Under Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs. Since the Court of Auditors has failed in its submissions, it must be ordered to pay the costs.

On those grounds,

T H E C O U R T (Second Chamber)

P. Heim O. Due Registrar President of the Second Chamber