C-230/82

J U D G M E N T OF T H E C O U R T (THIRD CHAMBER) 6 JULY 1983 l

Kirsten Johanning v Commission of the European Communities

(Official — Initial classification of a member of the language staff)

Case 230/82

Officials — Staff Regulation — Amendment — Reorganization of the career brackets of assistant translator and translator — Lack of transitional provisions — Power of the appointing authority (Council Regulation No 912/78, Art. 13)

Since Regulation No 912/78 amending authority to resolve any transitional legal the Staff Regulations abolished with problems caused by that measure in the effect from its entry into force Grade absence of provisions in the said regu- L/A7 in the career bracket of assistant lation to that effect. translator, it is for the appointing

APPLICATION for the annulment of the rejection of the applicant's request for an alteration of her classification,

T H E C O U R T (Third Chamber),

composed of: U. Everling, President of Chamber, Y. Galmot and C. Kakouris, Judges,

Advocate General: S. Rozès Registrar: H. A. Rühi, Principal Administrator

gives the following

JUDGMENT

appointing authority might by way of cruitment published by the Commission exception and to take account of the in April 1981 the appointing authority requirements of recruitment, assign the might by way of exception and to take successful applicant to a higher grade in account of the requirements of re- the career brackets and intermediate cruitment, assign the successful applicant career brackets provided that he had to the higher grade in the basic career experience of a minimum of one year for brackets and intermediate career brackets Grade L/A 7 and to take account of the provided that he had experience of a experience of an applicant exceeding that minimum of five years for Grade L/A 6 taken into account for the purposes of and to take account of the experience of determining the grade on appointment an applicant exceeding that taken into grant additional seniority of step of a consideration for the purposes of maximum of 48 months corresponding to determining the grade on appointment a minimum of five years' experience. grant additional seniority of step of a maximum of 48 months for a minimum of nine years' experience.

JUDGMENT OF 6. 7. 1983 — CASE 230/82

classified in Grade L / A 7 , Step 3. That be regarded as null and void. Since decision referred to Competition No Competition No COM/LA/150 related COM/LA/150 and Vacancy Notice No only to Grades L/A 8 and L/A 7 reclassi- COM/1078/78 relating to a post of fication in Grade L/A 6 was not possible translator.- The applicant was sub- under the Staff Regulations. sequently established. On 5 February 1982 the applicant made a complaint under Article 90 (2) of the 3. According to particulars given by the Staff Regulations against that decision Commission a total of 66 appointments rejecting her request for regrading. were made on the basis of Competition No COM/LA/150 and the parallel Competition N o COM/LA/151 relating An express decision rejecting that to assistant translators for other main complaint was sent to the applicant on languages: of those 66 applicants 12 17 September 1982. were appointed before 2 May 1978 including 6 in L/A 8 and 6 in L/A 7 and 54 were appointed thereafter including 23 in L/A 8 and 31 in L/A 7. I I — P r o c e d u r e and c o n c l u s i o n s

4. In April 1981 the applicant became 1. By application lodged at the Court aware of the new criteria applicable to Registry on 3 September 1982 the classification in grade and step upon applicant brought an action against the recruitment published during that month. Commission claiming that the Court should:

In a letter dated 22 April 1981 the Declare that the appointing authority applicant referred to those criteria and must apply its decision on classification requested that her classification be in grade and step upon recruitment as reviewed in consideration of her from the applicant's appointment as a experience which justified classification translator on probation; in Grade L/A 6, Step 3.

Upon hearing the report of the Judge- of assistant translator applicants in that Rapporteur and the views of the competition could at most claim Advocate General the Court (Third appointment to Grade L/A 7 as assistant Chamber) decided to open the oral translators. After the entry into force of procedure without any preparatory Regulation No 912/78 the Commission inquiry. It did however put certain could, strictly according to principle, questions to the Commission which recruit applicants only in Grade L/A 8 as replied thereto in writing before the assistant translators. Since it nevertheless hearing. took the view that it ought not disappoint the legitimate hopes of applicants who according to the notice of competition might expect recruitment in Grade L/A 7 and that it ought not to discriminate between applicants according to whether they were recruited Ill — Submissions and argu- before or after the entry into force of m e n t s of t h e p a r t i e s Regulation No 912/78, it continued to recruit in Grade L/A 7 if the applicant had the necessary experience although Grade L/A 7 was henceforth a grade of 1. In support of her application the translator. It could not reasonably go applicant relies on the principles of equal further without creating discrimination treatment, non-discrimination and the as against other officials since the protection of legitimate expectation and competition in question was a com- also on Article 5 (3) of the Staff Regu- petition for assistant translators and thus lations and the Commission decision on lower in level than a competition for the criteria applicable to classification in translators. It correctly applied Articles grade and step upon recruitment. She 31 and 32 of the Staff Regulations and claims that since she was appointed as a the criteria of its decisions relating translator after the entry into force of thereto especially as recruitment in a Regulation No 912/78 following a higher grade and the grant of additional vacancy notice for a translator, in the seniority of step are merely a matter for career bracket for a translator, the its discretion. criteria of that decision ought to have been applied. According to those criteria she may claim classification in Grade L/A 6, Step 3, in view of her experience. In appointing her the Commission rightly recognized Competition No C O M / LA/150 as equivalent to a competition IV — O r a l p r o c e d u r e for a translator and it cannot go back on that decision. The Commission is bound by the rules of classification which it had itself determined. The applicant, represented by Mr Biel, and the Commission, represented by Mr Andersen, presented oral argument at the sitting on 5 May 1983. 2. The Commission relies on the fact that the Competition No COM/LA/150 related only to posts as assistant translator and not as translator. The advocate General delivered her According to the former career bracket opinion at the sitting on 9 June 1983.

JOHANNING v COMMISSION

5 After becoming aware of the new criteria for grading adopted after the reor- ganization of the career brackets the applicant requested the apointing authority to amend her grade and step and to assign her to Grade L/A 6, Step 3, which in the career bracket of translator would have corresponded to her experience according to the new criteria. That request was rejected and a complaint under Article 90 (2) of the Staff Regulations did not receive a reply within the period provided thereby, and the applicant thereupon brought the present action.

6 The applicant alleges that in appointing her to a post in a new career bracket of translator the appointing authority recognized that she possessed the qualifications and must therefore apply to her the criteria for an appointment in that career bracket which were in force when she was recruited, that is to say as amended by the Commission after the reorganization of the career brackets.

7 In answer the Commission states that the applicant had been appointed following a competition for assistant translators, that is, at a lower level than competitions for translators and that Grade L/A 7 as translator had been assigned to her and to other applicants in the same competition appointed after 2 May 1978 only in order not to disappoint their legitimate hopes of obtaining an appointment in Grade L/A 7 for which they satisfied the conditions in the career bracket of assistant translator at the time of the competition.

s It must be observed that Regulation N o 912/78 provided no transitional provision and abolished with effect from its entry into force Grade L/A 7 in the career bracket of assistant translator. That abolition caused certain transitional problems which it was for the appointing authority to resolve in the absence of appropriate provisions in the regulation.

i2 Since the classification in grade and step of the applicant was correctly effected, the appointing authority rightly refused her request to amend the decision relating thereto.

13 The application must therefore be dismissed.

Costs

u Under Article 69 (2) of the Rules of procedure the unsuccessful party is to be ordered to pay the costs. However, under Article 70 of the Rules of Procedure, costs incurred by the institutions in proceedings by employees of the Commission are to be borne by those institutions.

JOHANNING v COMMISSION

On those grounds,

For the Registrar H. A. Rühi U. Everling Principal Administrator President of the Third Chamber

OPINION OF MRS ADVOCATE GENERAL ROZÈS DELIVERED ON 9 JUNE 1983 '

Mr President, I — The facts are as follows: Members of the Court,

There is before the Court an application The Commission published in the made by Kirsten Johanning against Official Journal of the European the Commission of the European Com- Communities of 22 March 1977 a notice munities for the annulment of the of competition, No COM/LA/150, for rejection of her request for regrading of an open competition, based on tests, to 5 February 1982: constitute a reserve of assistant trans-

1 — Translated from the French.