C-343/82

J U D G M E N T O F T H E C O U R T (THIRD CHAMBER) 1 D E C E M B E R 1983 '

Christos Michael v Commission of the European Communities

(Official — Career — Regrading)

Case 343/82

Officials — Recruitment — Assignment of grade — Classification in step — Internal directive of an institution concerning applicable criteria — Legal effects

The decision of a Community institution, as a rule of conduct, indicating the communicated to all members of its staff practice to be followed, which the and designed to ensure that identical administration imposes on itself and conditions of recruitment and career from which it may not depart without prospects shall be enjoyed by all officials specifying the reasons which have led it in the same category or service as far as to do so, since otherwise the principle of grading and classification in step on re- equality of treatment would be infringed. cruitment are concerned, constitutes an internal directive, even though the decision at issue may not be regarded as Such an internal directive may not, in a general implementing provision within any circumstances, legally establish rules the meaning of Article 110 of the Staff which derogate from the Staff Regu- Regulations. As such it must be regarded lations.

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by Hendrik van Lier, a member of its Legal Department, acting as Agent, assisted by Philippe Mihail, of the Brussels Bar, of 2 Avenue Jules-César, 1150 Brussels (Postal Box 8), with an address for service in Luxembourg at the office of Oreste Montako, a member of the Commission's Legal Department, Jean Monnet Building, Kirchberg,

defendant,

APPLICATION for a declaration that the action is admissible, for annul- ment of the Commission's decision of 1 October 1982 rejecting the applicant's complaint, for an order requiring the defendant to reclassify the applicant in accordance with the criteria contained in the decision of 6 June 1973 and for an order that the defendant should pay the costs,

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

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

Advocate General: G. Reischl Registrar: J. Biancarelli, Legal Secretary

Article 2, which concerns appointment to career brackets other than the starting career bracket, provides that, by way of I — T h e legal c o n t e x t , the facts derogation from Article 1, the appointing and t h e p r o c e d u r e authority may appoint the selected candidate to the starting grades of certain career brackets if the candidate A •— The legal context can give evidence of professional experience of a specified number of years. Professional experience is to be assessed with regard to the post to be In March 1981 the Commission decided filled and on the basis of all the activities to inform all the members of its staff of in which the candidate has engaged its decision of 6 June 1973 on the criteria before recruitment. applicable to grade and step classification upon recruitment. Article 3 of the decision, which concerns appointment to a higher grade of a It is stated in the preamble to that career bracket and which is the article decision that it is based, in particular, applicable in this instance, provides that: upon Articles 30, 31 and 32 of the Staff Regulations of Officials of the European Communities, that it has, for years, been "By way of derogation from Article 1, the main principle of the recruitment the appointing authority may, excep- policy to recruit in the starting grade of tionally and in order to meet recruitment each category, and that it is necessary to requirements, appoint a candidate to make exceptions to that principle to meet the upper grade in the starting or particular departmental requirements, so intermediate career bracket, if the as to ensure, in particular, that the candidate gives evidence of professional Commission secures the services of can- experience, within the meaning of Article didates who already have sound practical 2, of at least . . . five years for Grade experience. Finally, it is stated that such L/A 6." exceptions must be kept to the absolute minimum. Annex II to the notice publishing the decision, which is headed "Practical Article 1 of the decision of 6 June 1973 Application — General Survey", states in (hereinafter referred to as "the de- paragraph 1 (a) thereof that practical cision"), lays down the principle that an experience is to be assessed by reference

(1) Experience in teaching the 2. Since post-graduate studies are not mother tongue is disregarded; taken into account, the Committee concluded that your 'peripheral' (2) Experience in teaching a experience or experience treated as foreign language counts as (a), such is to be calculated as from (b), (c) above." January 1973 and amounts to five years and eight months."

b — Facts On 28 June 1982 the applicant lodged a complaint pursuant to Article 90 of the Staff Regulations, against the above- The applicant entered the service of the mentioned decision of the Grading Commission as a temporary servant in Committee. Grade L/A 7, Step 3, on 16 April 1980. As from 1 January 1981 he was By a letter dated 1 October 1982 and appointed a probationary official as a notified to the applicant on 4 October translator in the Greek Translation 1982, the appointing authority informed Division in the same grade and step. Mr Michael that it was obliged to reject his complaint. On 9 June 1981 he submitted an application for the revision of his classi- On 28 December 1982 the applicant fication in grade and step. The Grading brought the present action against the

MICHAEL b COMMISSION

4. Does the Commission still take the II — C o n c l u s i o n s of the p a r t i e s view, advanced in its written obser- vations, that the provisions of the decision of 6 June 1973 which allow 1. The applicant claims that the Court for exceptions from the general should: principle of classification in the starting grade of the starting career bracket are based on Article 32 of the Declare the application admissible; Staff Regulations? Is it not rather the case that they are based on Article 31 ? Annul the Commission's decision of 1 October 1982 rejecting the applicant's 5. If the Commission had considered complaint; that Mr Michael satisfied all the con- ditions laid down in the decision of Order the defendant to reclassify the 1973, would it have classified him in applicant in accordance with the Grade L/A 6? criteria contained in the decision of 6 June 1973; 6. The Commission is requested to specify the number of its servants who Order the defendant to pay the whole since 1973 have been classified in the of the costs.

JUDGMENT OF 1. 12. 1983 — CASE 343/82

2. The Commission contends that the exercised in accordance with the terms Court should: of the decision of 6 June 1973.

MICHAEL v COMMISSION

It follows that, even if the contested decision may be annulled or varied, such an annulment would not establish a right (b) The Commission contends in the for the applicant to be appointed to the first place that the submission is upper grade in the starting career unfounded in law inasmuch as it is based bracket. That appointment could only exclusively on the infringement of the be made on the basis of recruitment decision of 6 June 1973. It is clear from requirements. Consequently, the con- the preamble to that decision that the clusions set out in the application asking aim of the decision is simply to that the Commission should be ordered determine the conditions in which the to reclassify the applicant must be dis- Commission intends to apply the regarded.

JUDGMENT OF 1. 12. 1983 — CASE 343/82

2. The question whether the applicant The applicant also states that he parti- satisfies the conditions of professional cipated in 1981 in the first open compe- experience set out in Article 3 of the tition organized for Greek nationals for decision of 6 June 1973. the recruitment of administrators in Grade A 5 (Competition A/337) and that he was admitted to the competition (a) The applicant claims that he satisfies although professional experience of the conditions concerning professional seven years was required in order to be experience, laid down in Article 3 of the so admitted; he was moreover successful decision and defined in paragraph 3 of in that competition. There is therefore Annex II to the notice publishing the inconsistency in the Commission's decision for classification in the upper attitude and in its assessment of the grade of the career bracket in question. applicant's professional experience.

Annexed to his application, the applicant provides a biographical note summarizing his university and post- graduate education and claims that In the first place, paragraph 3 (c) of 100% credit should be given in respect Annex II states that "100% credit is of his studies in so far as they are of a given for relevant experience at a level level equivalent to Category A work, in equivalent to Category A work (as particular in relation to experience translator, economist, lawyer, etc.)". gained as an economist, an administrator That provision must be interpreted in and a sociologist. Accordingly, the accordance with its wording and none of applicant should be credited with those qualifications, which are not listed experience of five years and six months. exhaustively, takes precedence over the Moreover, in view of the fact that he others. Consequently, the Commission's held posts involving a high level of view, which amounts to requiring responsibility in various commercial experience as a translator-economist or a undertakings from 1973 to 1980, a translator-lawyer, conflicts with the further six years of additional experience actual letter of the relevant provision. should be taken into account in respect Moreover, such an argument was never of the applicant's professional activities. previously raised against the applicant The total length of his professional and was developed in this instance only experience therefore amounts to 11 years to accommodate the circumstances of the and six months. Thus it is clearly case. Furthermore, the provision requires superior to the five years required under only relevant experience, not experience Article 3 of the decision of 6 June 1973, as a translator, and it is erroneous to and that is without taking into account maintain, as the Commission does, that several papers published by him. Annex II is only indicative, since,

Secondly, the Community institutions (b) The Commission contends that the have long pursued a recruitment policy applicant's argument is based on a whereby translators are recruited, less misinterpretation of the decision of 6 by reference to degrees and other June 1973. qualifications in translation in the strict sense, than by consideration of their knowledge of the specialized areas in which they are required to translate. It In the light of the terms of Article 2 of is therefore impossible to reduce the that decision and Annex II to the notice concept of professional experience ex- publishing the decision, it may be seen clusively to experience of translation. that the applicant's view depends on a On the contrary, it should be extended misconception of the scope of the to include experience gained as an expressions "relevant experience", and economist, especially if, in the course of "experience assessed by reference to the such duties the person concerned, as in posts to be filled" and in particular the this instance, regularly worked in expression "special experience for the languages other than his mother tongue. post" contained in Article 32 of the Staff Moreover, the fact that the applicant was Regulations. assigned to the group specializing in economic and financial affairs clearly demonstrates that translators are The Commission states that the authors assigned principally on the basis of their of the second paragraph of Article 32 of qualifications in their specialized field the Staff Regulations and of the decision and not merely with regard to their of 6 June 1973 certainly did not intend ability to translate. to guarantee for all officials a grade and step determined by reference to the number of years of actual or deemed Finally, the necessary qualifications, as experience prior to recruitment. They set out in the notice of competition merely sought to permit the appointing which led to the applicant's appointment, authority, if it so desired, to take into did not include the requirement of account, in so far as appropriate, specific knowledge connected with experience gained by officials prior to translation or the necessity of pro- their recruitment in a field specifically fessional experience in that area. related to the duties for which they have been recruited. Any other interpretation would be contrary to the principle that Whilst the applicant has never claimed each official is appointed to the starting that his qualifications and experience grade of the starting career bracket of amount to full-time activity as a trans- his category or service. lator, he wishes to point out that his experience in the field of economics was acquired in an international environment That objective is particularly important and was completed in conjunction with a in respect of translators and interpreters thorough and indispensable knowledge since they have been placed in a special of several languages, for which the category, the Language Service, because

Since the applicant has never claimed that his qualifications and experience The Commission concludes that the corresponded to full-time employment as applicant's argument, which is based on a translator, the Grading Committee's the view that recruitment policy has decision, confirmed by the contested regard to candidates' knowledge of the decision, is entirely justified. specialized areas in which translators work, cannot be accepted because the nature of the texts which the translators appointed are asked to translate cannot The argument based on the fact that the be taken into consideration, since applicant's qualifications and experience experience is to be assessed by reference were taken into account for his to the post to be filled and not by admission to Competition A/337 is reference to the work actually carried deprived of any significance because the out after appointment. It is moreover

MICHAEL v COMMISSION

In which the decision is based is those circumstances he might be credited erroneous with professional experience pro rata temporis. But that is not the case in this instance, because the applicant never 1. The applicant, referring to the claimed experience of translation even grounds relied on by the Grading on a part-time basis and his general Committee and repeated in the Director- assertion that he acquired his experience General's letter of 27 May 1982, submits in an international environment, in that: conjunction with a thorough knowledge of several languages, is too imprecise for The first ground used against him, which him to be attributed with specific pro- is based on his lack of experience of

they were recruited. That would entirely the decision of 6 June 1973 to gain

access to Grade L/A 6 and that, in C — The submission based on the breach consequence, he is justified in requesting of the principle of non-discrimi- that he should be appointed to Grade nation L/A 6 with 48 months' seniority and with retroactive effect, in other words as from the date of his entry into the 1. The applicant submits that he has service of the Commission. been discriminated against in relation to his colleagues who cannot claim the same qualifications and professional experience and who nevertheless have, 2. The Commission considers generally like him, been classified in Grade L/A 7. that this submission in reality amounts Such a situation is moreover prejudicial only to presenting in another form the to his career prospects. arguments cited in support of the first submission. 2. The Commission considers on the contrary that, since the applicant does It contends, secondly, that the sub- not possess greater specific experience mission is unfounded inasmuch as it than his colleagues who have also been challenges grounds other than those appointed to Grade L/A 7, he cannot which appear in the decision of 1 claim that he has been discriminated October 1982, whose annulment is against. Moreover, since access to the sought. upper grade of the career bracket is not a right for officials but is to be granted at the discretion of the appointing In the alternative, the Commission authority, in the light of recruitment maintains that, inasmuch as it challenges requirements, there can under no the ground concerning the necessity of circumstances be any discrimination. The experience of full-time translation, the Commission concludes that in reality it is submission is unfounded for the reasons the applicant's appointment to Grade set out above. L/A 6 that would amount to discrimi- nation against the other translators The Commission emphasizes finally, on possessing an experience "with as little the one hand, that the submission does specific relevance to the post" as that of not show how the concept of the applicant. "peripheral" experience is erroneous and, on the other hand, that "peripheral" experience is inconsistent with specific experience, so that the I V — R e p l i e s to t h e questions argument again amounts to presenting p u t by t h e C o u r t under another form the arguments already put forward in support of the first submission. Finally, the Commission By a letter received at the Court on notes that there is no error or 7 June 1983 the Commission replied as contradiction on its part in the fact that follows to the questions which had been it recognized that the applicant had pro- put to it: fessional experience of five years and eight months, because that experience First question: The Commission waited was not specific or relevant to the until March 1981 before informing each post and so cannot be taken into member of its staff of the contents of the consideration for the purposes of Article decision of 6 June 1973 because it 3 of the decision of 6 June 1973. wished to make sure that those rules

Sixth question: The Commission stated Second question: A copy of the decision that it did not yet possess the necessary accompanied by an annex summarizing information to reply to this question. the practice of the Grading Committee was sent by post to each member of the staff. Moreover, since March 1981 each successful candidate in a competition has Seventh question: No official satisfying also received a copy of those documents. the requirements laid down in the decision of 1973 has been refused access to a higher grade than the starting grade. Third question: In drawing up the decision of 6 June 1973, the Commission did not intend to adopt a general Eighth question: The Commission main- provision giving effect to the Staff Regu- tains that there would be no obstacle to lations, within the meaning of Article Mr Michael's appointment in Grade 110 thereof; consequently, it considers L/A 6 if he satisfied the requirements that the provisions of that decision are laid down in the decision of 1973. strictly internal measures which may be "amended or repealed". Ninth question: The Commission Fourth question: The Commission acknowledges that at present there are recognizes that its power to depart from no Greek translators in Grade L/A 6. the general principle of recruitment in However, it points out that that situation the starting grade of the starting career does not cause any problems. bracket is based on Article 31 of the Staff Regulations. However, it stresses that the decision of 6 June 1973 defines in the same way the experience required for appointment in career brackets other V — Oral procedure than the starting career bracket (Article 31 of the Staff Regulations) and the experience required for additional seniority within the official's grade At the sitting on 15 September 1983 oral (Article 32 of the Staff Regulations). argument was presented by Mr Vander- sanden, for the applicant, and by Mr Mihail, for the defendant. Fifth question: The Commission main- tains that if Mr Michael had satisfied all the requirements laid down in the The Advocate General delivered his decision of 1973 he would have been opinion at the sitting on 20 October classified in Grade L/A 6. Although 1983.

MICHAEL v COMMISSION

5 By letter of 17 May 1982 the Director-General confirmed the applicant's initial classification in Grade L/A 7.

6 On 28 June 1982 the applicant lodged a complaint, pursuant to Article 90 (2) of the Staff Regulations, against the decision of 27 May 1982.

7 By a decision dated 1 October 1982, the appointing authority rejected that complaint on the ground that, under the terms of the decision of 6 June 1973 and Annex II to the notice publishing the decision, only experience of translation in the strict sense may be regarded as "relevant" to the work of general translators and that the applicant could not show that he had at least five years of such experience.

s That is the decision against which the applicant brought the present action.

T h e claim for a n n u l m e n t of the c o n t e s t e d d e c i s i o n

i2 The Commission contends, on the other hand, that the applicant could have founded his application solely on the alleged breach of Article 31 of the Staff Regulations, inasmuch as the provisions of the decision of 6 June 1973 do not create for Commission officials any right on which they might usefully rely. According to the Commission, those provisions merely state that the appointing authority may make an appointment to the upper grade of a career bracket exceptionally and in order to take into account recruitment requirements. Thus the Commission considers that it retains an "absolute discretion".

1 3 The Commission's decision of 6 June 1973 is not simply a list of the criteria governing classification in grade or in step intended exclusively to facilitate the decisions of the appointing authority. According to the preamble thereto, it is also intended to "ensure that identical conditions of recruitment and career prospects shall be enjoyed by ail officials in the same category or the same service". Moreover, the Commission considered it necessary in March 1981 to bring that decision officially to the notice of all the members of its staff in the form of individual notifications.

u It follows that, even though the decision in question may not be regarded as a general implementing measure within the meaning of Article 110 of the Staff Regulations, it constitutes an internal directive. As the Court stated in its judgment of 30 January 1974 (Case 148/73, Louwage v Commission, [1974] ECR 81), such an internal directive must be regarded as a rule of conduct, indicating the practice to be followed, which the administration imposes on itself and from which it may not depart without specifying the reasons which have led it to do so, since otherwise the principle of equality of treatment would be infringed.

i9 The rules on grade and step classification set out in Articles 31 and 32 of the Staff Regulations lay down the principle that candidates appointed officials in Category A or in the Language Service are recruited in the starting grade of their category or service and classified in the first step of their grade. However, those two articles allow the appointing authority to make exceptions to those rules, taking account of the experience of the persons concerned, provided that it is sufficiently "specific" in relation to the vacant post.

20 The principle that all candidates selected to be probationary officials shall be appointed in the starting grade of the starting career bracket of their category or service is further confirmed in Article 1 of the decision of 6 June 1973. However, Article 3 of that decision, which concerns appointment in the upper grade of a career bracket, provides that "by way of derogation from Article 1, the appointing authority may, exceptionally and in order to meet recruitment requirements, appoint a candidate to the upper grade in the

JUDGMENT OF 1. 12. 1983 — CASE 3+3/82

starting or intermediate career bracket, if the candidate gives evidence of professional experience, within the meaning of Article 2, of at least . . . five years for Grade L/A 6".

21 Article 2 of the decision of 6 June 1973 gives the following general definition of professional experience: "professional experience with regard to the post to be filled shall be assessed on the basis of all the activities in which the candidate has engaged before recruitment".

MICHAEL v COMMISSION

T h e s u b m i s s i o n b a s e d on the alleged breach of the prin- ciple of n o n - d i s c r i m i n a t i o n

26 The applicant claims that he has been discriminated against in relation to his colleagues who cannot lay claim to the same qualifications and professional experience and who have nevertheless been classified, like him, in Grade L/A7.

27 That submission must also be dismissed. As the Commission maintained at the hearing, without being contradicted, the practice of taking into account only experience of translation in the strict sense for classification in the higher grade in a post of general translator in the Language Service represents an established practice of the Grading Committee and the appointing authority. Therefore the Commission was entitled to consider that, since the applicant did not have greater specific professional experience than his colleagues, he had no grounds for complaining of any discrimi- nation against him.

28 Therefore the claim for the annulment of the disputed decision must be dismissed, as must, in consequence and in any event, the claim for reclassi- fication. It follows that the application must be dismissed.

Costs

hereby:

1. Dismisses the application;

2. Orders the defendant to pay all the costs.

Galmot Everling Kakouris

Delivered in open court in L u x e m b o u r g on 1 D e c e m b e r 1983.

For the Registrar H . A. R ü h i Y. G a l m o t Principal Administrator President of the Third Chamber