C-190/82

JUDGMENT OF 1. 12. 1983 — CASE 190/82

and classification in step on re- 3. The appointing authority may not cruitment are concerned, constitutes give an official credit for previous an internal directive, even though the experience by granting him, on re- decision at issue may not be regarded cruitment, additional seniority in the as a general implementing provision grade in which he is appointed except within the meaning of Article 110 of in cases where such experience may the Staff Regulations. As such it must be recognized to be of an appropriate be regarded as a rule of conduct, level and of a nature specifically indicating the practice to be followed, relevant to the post in question. In which the administration imposes on view of the great diversity of itself and from which it may not experience offered by candidates for depart without specifying the reasons employment with the European which have led it to do so, since institutions, the competent authority otherwise the principle of equality of must be allowed a discretionary treatment would be infringed. power covering all aspects of potential importance for the recognition of previous experience, both as regards Such an internal directive may not, in the nature and duration of such any circumstances, legally establish experience and as regards the extent rules which derogate from the Staff to which it matches the requirements Regulations. of the post to be filled.

In Case 1 9 0 / 8 2

A D A M P . H . BLOMEFIELD, an official of t h e Commission of t h e E u r o p e a n C o m m u n i t i e s , residing at I n c o u r t (Belgium), represented b y E d m o n d Lebrun of t h e Brussels Bar, with an address for service in L u x e m b o u r g at t h e C h a m b e r s of T o n y Biever, 83 Boulevard G r a n d e - D u c h e s s e - C h a r l o t t e , applicant,

Advocate General: S. R o z è s Registrar: J. A. P o m p e , D e p u t y Registrar

gives the following

JUDGMENT

Facts and Issues

The facts of the case, the course of the Following representations from Mr procedure and the conclusions, sub- Blomefield pointing out his experience in missions and arguments of the parties the field of translation, the Commission, may be summarized as follows: by a decision of 23 August 1977, appointed him to Grade L/A 7, Step 1, with effect from his taking up the post on 1 August 1977.

I — S u m m a r y of the facts Mr Blomefield was established in that grade and step as from 1 May 1978, by a decision of 26 April 1978. Mr Adam P. H. Blomefield, a British national, was entered on the list of suitable candidates drawn up following In March 1981 Mr Blomcfield learnt of a tests in Competition No COM/LA/141 decision of the Commission of 6 June for the creation of a reserve for the re- 1973, entitled "Decision on the Criteria cruitment of assistant translators, and Applicable to Grade and Step Classi- was notified by a letter of 22 April 1977 fication upon Recruitment". On examin- that the Commission had decided to ing that document, Mr Blomefield came employ him as a probationary official in to the conclusion that, on taking up the Grade L/A 8, Step 2. post, he should have been awarded an

Mr Blomefield, on 28 July 1982, brought The Commission contends that the Court the present proceedings against the should: implied rejection of his complaint which was deemed to arise from the Com- 1. Dismiss the action as unfounded; and mission's silence. 2. Order the applicant to pay the costs. The written procedure followed its normal course.

Upon hearing the report of the Judge- IV — S u b m i s s i o n s a n d a r g u m e n t s Rapporteur and the views of the of t h e p a r t i e s d u r i n g t h e Advocate General, the Court (Second written procedure Chamber) decided to open the oral procedure without any preparatory A — Admissibility of the action inquiry.

The parties were requested to give The Commission points out that the special attention at the sitting to three applicant had successfully challenged his questions which were notified to them classification even before taking up the on 27 April 1983. post; on that occasion he had shown that

BLOMEFIELD v COMMISSION

he had a sound knowledge of the criteria of Grade L/A 7 but should have been governing grading. The applicant had awarded, on the strength of those therefore accepted his new classification provisions and principles, and in view of in the full knowledge of the circum- his professional experience, an additional stances. seniority of two steps.

In support of his action, the applicant pleads breach of: (i) the Staff Regu- For determining the step, it is only lations, especially Article 5 (3) and the experience in excess of that used for second paragraph of Article 32 thereof; determining the grade which may be (ii) the Commission's decision of 6 June taken into account; moreover, the 1973, especially Article 5 (1) thereof; experience in question must be specific and (iii) general rules and principles of and relevant, and hence connected with law, especially the principles of equality, the post to be filled. objectivity and distributive justice.

(b) At the time of his recruitment, the At the time of his appointment he should applicant had furnished proof of nine not have been classified in the first step years' experience as a lawyer and a

JUDGMENT OF 1. 12. 1983 — CASE 190/82

translator since the award of his law decision of 6 June 1973, entitles him to decree at Oxford University. two additional steps.

The Commission points out that under (c) The applicant had been recruited the second paragraph of Article 32 of the to a post which essentially involved translating legal texts in the field of agri- Staff Regulations culture; his department had therefore ". . . the appointing authority may, had the benefit not only of his taking account of the training and experience as a lawyer and translator but special experience for the post of the also of his experience in the wine- person concerned, allow additional growing sector, as is testified by his staff seniority in his grade; this shall not report for the period from 1 July 1979 to exceed 72 months in Grades A l to A 4, 30 June 1981. The applicant can L/A 3 and L/A 4 and 48 months in other therefore undeniably point to specific grades." experience.

Furthermore, some successful candidates from that competition had indeed been It might be useful in this connection to classified in Step 3 of Grade L/A 7, recall that the wording of Notice of apparently because they had the same Open Competition No COM/LA/141 length of experience as the applicant but stated that the award of higher steps was had acquired it as translators in the full dependent on the training and special sense of the word. On that point, it experience of the candidate, and that · should be borne in mind that, for the Step 3 of Grade L/A 7 could be granted purposes of a translator's training, an only in exceptional cases. occupation less centred on translation itself may be compensated to a large extent by practical experience in areas in (b) The applicant's experience could relation to which he will be required to therefore not be taken into consideration carry out translations. except in so far as it was specially related to the post to be filled — in this instance the post of translator. (e) One year of specific experience is taken into account for grading in L/A 7; the applicant can provide ample Although experience as a lawyer is a evidence, for the purposes of classi- valuable asset not only for the institution fication in step, of at least five years' but also for the applicant's future career, experience, which, by virtue of the first it could not be taken into account for the subparagraph of Article 5 (1) of the purpose of determining the step, because

BLOMEPIELD v COMMISSION

the vacancy notice for the post to which the Commission; they mainly confined the applicant was recruited stated that their submissions to the three questions the tasks to be performed consisted in which had been submitted to them by the the translation of texts of every kind for Court. the departments of the Commission.

Counsel for the Commission recalled that Since the the applicant was not recruited the legal relationship between an official to do translation work in any particular and his employer is statutory by nature, field on a permanent basis, the ex- not contractual; once recruited, the perience which he acquired as a lawyer official is subject to all the provisions of cannot be regarded as specific for the the Staff Regulations and the implement- purposes of classification in step. ing decisions adopted by the institution. The consent of the official is required neither to his classification nor in respect (d) The applicant cannot therefore of the other conditions of employment. furnish evidence of at least five year's The official has the possibility, under specific experience, and his claim to Article 25 of the Staff Regulations, of additional seniority of two steps is not submitting a request concerning the well-founded. decision on his classification and, should that request be rejected, may lodge a complaint; if he docs not obtain satis- faction he must, within three months of the rejection of his complaint, bring an action before the Court, failing which it V ·—• O r a l p r o c e d u r e will be debarred. It is not possible for him subsequently to submit a second request to the same effect and then a second complaint after expiry of the At the sitting on 7 July 1983 oral original period permitted for bringing argument was presented by E. Lebrun, legal proceedings. A decision which is for the applicant, and by D.Jacob, for identical in substance to a previous

2 After passing C o m p e t i t i o n N o C O M / L A / 1 4 1 (Official J o u r n a l 1976, C 127, p. 6), the applicant w a s appointed in 1977 to an assistant translator's post which h a d been advertised in V a c a n c y N o t i c e N o 5.4/77. In that notice the n a t u r e of the duties involved was defined as the translation of all types of text for the d e p a r t m e n t s of the Commission; the qualifications required by the notice included some experience of translation.

BLOMEFIELD v COMMISSION

3 Originally, as a letter of 22 April 1977 shows, the Commission had envisaged classifying the applicant in Grade L/A 8, Step 2. In a letter of 6 May 1977 Mr Blomefield argued that in view of his age — at that time 31 years — and his previous experience in the service of a private company, which had entailed contact with Community matters and translation work connected with Community legislation, he should be classified in Grade L/A 7.

4 The Commission acceded to that request, and the applicant was appointed a probationary official in Grade L/A 7, Step 1, with effect from 1 August 1977. He was subsequently established in the same grade and step by a decision of 26 April 1978.

s In March 1981 the Director-General for Personnel and Administration distributed to all members of staff a circular containing the text of a "Decision on the Criteria Applicable to Grade and Step Classification upon Recruitment", originally adopted on 6 June 1973. Appended to that decision were two further texts forming Annexes II and III to the circular and dealing with the practical application of the decision and with the membership of the "Grading Committee" set up under Article 6 thereof.

I regret to inform you that I concur with the Committee's conclusion and must therefore turn down your request for reclassification."

s In response to that decision the applicant submitted a complaint under Article 90 (2) of the Staff Regulations, which was registered on 8 January 1982. The complaint received no answer within the period laid down by the Staff Regulations and, on 28 July 1982, the applicant brought an action based on the second paragraph of Article 32 of the Staff Regulations and on Article 5 (1) of the decision of 6 June 1973 in conjunction with para- graph 3 (c) of Annex II to the circular of March 1981.

Admissibility

9 The Commission queries the admissibility of the action. It recalls that the applicant had, at the time of his recruitment, challenged his classification by producing specific arguments, thereby demonstrating a sound understanding of the criteria governing classification; that challenge had indeed been suc- cessful, since he was finally recruited in Grade L/A 7, Step 1, instead of Grade L/A 8, Step 2, as originally anticipated. In those circumstances the Commission takes the view that the action, having been brought five years after the applicant's recruitment and relating as it does to a question which was discussed and settled as long ago as 1977, must be regarded as out of time.

BLOMEFIELD v COMMISSION

10 In principle, that observation by the Commission is justified. An official cannot be permitted to challenge the conditions of his initial recruitment once that recruitment has become definitive. A fortiori, he may not raise retrospective claims relating to his classification and, consequently, to his past and future remuneration.

JUDGMENT OF 1. 12. 1983 — CASE 190/82

purpose of determining step. It points out that, according to the second paragraph of Article 32 of the Staff Regulations, the experience in question must be specific and that, under paragraph 3 (c) of Annex II to the circular, consideration may be given only to "relevant experience".

is The Commission acknowledges that the applicant was able to demonstrate a certain amount of experience at the time of recruitment, but denies that such experience may be regarded as specific and relevant to the post within the meaning of Article 32 of the Staff Regulations, since it was a question of recruiting a translator whose function would, according to the vacancy notice, be to translate all types of text for the departments of the Commission. The Commission does not, however, dispute that the applicant had, in the course of his previous employment with a private company, carried out some translation work on a limited number of Community texts. It emphasizes that it had already taken that experience into account when recognizing that he had one year's professsional experience, thereby enabling him to be recruited in Grade L/A 7 rather than Grade L/A 8. However, in the absende of specific experience in excess of that taken into account for the purpose of dedermining his grade, there could be no question of granting the applicant additional seniority without contravening Article 5 (1) of the decision of 6 June 1973.

ie In order to resolve this dispute, it is necessary to consider at the outset the nature and legal status of the decision of 6 June 1973 and of the circular of March 1981, in relation to the Staff Regulations.

21 It should be noted that in the present case the Commission has pleaded no special circumstance allowing it to depart from the rules of conduct which it set itself. That point must not, however, obscure the fact that internal directives adopted by the Community institutions may not, in any circum- stances, legally establish rules which derogate from the Staff Regulations.

22 It is appropriate in this context to recall that, under the second paragraph of Article 32 of the Staff Regulations, the appointing authority may, "taking account of the training and special experience for the post of the person concerned", allow additional seniority in his grade.

23 According to Article 5 (1) of the decision of 6 June 1973, "In consideration of a candidate's professional experience which exceeds the length of that taken into account for determining his grade of appointment, the appointing authority shall, in accordance with the annexed table, allow additional seniority." Such additional seniority may be granted for each full 12-month period of experience, up to a maximum of 48 months, over and above the year's experience already required for appointment in Grade L/A 7.

JUDGMENT OF 1. 12. 1983 — CASE 190/82

24 Viewed in the light of Article 32 of the Staff Regulations, those indications given by the decision of 6 June 1973 can apply only to experience which is specifically related to the post to be filled. The Commission is therefore right in stating in Article 2 of the same decision, in respect of a comparable situation, that "professional experience [shall be assessed] with regard to the post to be filled"; similarly, Annex II to the circular of March 1981 states that in practice credit is not given in Career Bracket L/A 7-L/A 6 (Translator) except for "relevant" experience and on the further condition that it is of a level equivalent to Category A work, that is to say university level.

BLOMEFIELD v COMMISSION

which is called for in such circumstances. It is in fact apparent that the previous occupations of the applicant, as described by him at the time of his recruitment, had no more than a partial and remote bearing on the duties which he later took up in the service of the Community, as a translator attached to a general department.

28 Therefore the application must be dismissed.

Costs

29 Under the terms of Article 69 (2) of the Rules of Procedure, the unsuccessful party must be ordered to pay the costs.

30 However, under Article 70 of the Rules of Procedure, the institutions must bear their own costs in proceedings commenced by employees of the Communities.

Delivered in open court in Luxembourg on 1 December 1983.

J. A. Pompe K. Bahlmann Deputy Registrar President of the Second Chamber