C-17/83

composed of: K. Bahlmann, President of Chamber, P. Pescatore and O. Due, Judges,

Advocate General: C. O. Lenz Registrar: J. A. Pompe, Deputy Registrar

gives the following

JUDGMENT

Facts and Issues

The facts of the case, the course of the I — Statement of facts procedure and the conclusions, sub- missions and arguments of the parties Angel Angelidis, a Greek national, may be summarized as follows : obtained a degree in agricultural science

on 12 January 1970 from the School of Products and Conditions of Com- Higher Agricultural Studies, Athens, on petition. He was classified in Grade A 7, 8 June 1974, a doctorate in agriculture Step 3. from the Technical High School for Advanced Agricultural Studies, Madrid, and, on 12 June 1975, the title of Doctor Having been successful in a competition of Economics ("Docteur d'État en organized for the purpose of recruiting Sciences Economiques") at the Uni- principal administrators of Greek na- versity of Montpellier I. tionality, Mr Angelidis was appointed as a probationary official by a Commission decision of 4 May 1982, with effect from After having been, from 1970, an the preceding 1 April. He was assigned adviser, first, to a number of agricultural to the post which he occupied at the undertakings, then, at the Centre for Directorate General from Agriculture Planning and Economic Research, and classified in Grade A 5, Step 1. Athens, and, finnally, at the Greek Ministry for Coordination, Mr Angelidis By a letter of 14 June 1982, lodged at took part in the negotiations leading to the Secretariat General of the Com- the accession of the Hellenic Republic to mission on 5 July, Mr Angelidis the Communities, as an adviser to the submitted a complaint, pursuant to Greek Ministry for Coordination. In Article 90 (2) of the Staff Regulations, February 1979, he was nominated head seeking additional seniority of 48 of the Agriculture Division in that months, that is, two additional steps, Ministry. with the result that he would be placed in Step 3 of Grade A 5. He considered that that additional seniority was due to As a result of a competition limited to him, pursuant to the second paragraph Greek nationals, Mr Angelidis, by a of Article 32 of the Staff Regulations, by contract of 11 July 1979, which took virtue of his occupational experience of effect on 19 July, was engaged by the 12 years. Commission of the European Com- munities as a member of the temporary staff in the capacity of translator at the Mr Angelidis's complaint did not receive Directorate General for Personnel and an express reply from the Commission. Administration. He was classified in Grade L/A 7, Step. 3. By a decision of 14 December 1982, which took effect on 1'January 1983, Mr On 1 September 1979, Mr Angelidis was Angelidis was established in his post, transferred to the Commission's Direc- without change of grading. torate General for Agriculture and assigned to the Directorate for Inter- national Affairs. II — W r i t t e n p r o c e d u r e and. c o n - c l u s i o n s of the p a r t i e s By a contract of 11 August 1980, Mr Angelidis was engaged by the Com- mission, with effect from the preceding 1 On 1 February 1983, Mr Angelidis January, as a member of the temporary brought this action against the implied staff in the capactiy of administrator at rejection of his complaint which was the Directorate General for Agriculture, deemed to have resulted, on 5 November Directorate for Agricultural Legislation, 1982, from the Commission's failure to Division for Matters Common to Several reply.

The applicant having expressed his views, on 25 November 1983, on the Com- The Commission, in its defence, claims mission's statement, the latter, by a tetter that the Court should: of 19 December 1983, informed the Court that, since the essential point of the dispute was a question of law, Dismiss the application as unfounded; namely, the interpretation of Articles 32 and 46 of the Staff Regulations, and Order the applicant to pay the costs. since that concerned a fairly large number of officials, it was not in a position to agree to a settlement of the The written procedure followed the action by classifying the applicant in Step normal course. 2 of Grade A 5.

ANGELIDIS v COMMISSION

Under those conditions, the Court The Commission contends that a former (Second Chamber), upon hearing the member of the temporary staff appointed report of the Judge-Rapporteur and the as an official cannot claim the benefit of views of the Advocate General, decided Article 32 of the Staff Regulations, the to open the oral procedure without any relevant provision being Article 46 of preparatory inquiry. those regulations. In any event, the applicant has not proved that he has relevant and specific experience such as to justify the additional seniority of two steps which he claims. The parties were invited to take account, in their pleadings, of the points of law laid down in the meantime in the judgment of the Court (Second Chamber) of 1 December 1983 (Case 190/82) Adam Blomefield v Commission A — The legal aspects [1983] ECR 3981).

The applicant complains that the Commission, when it appointed him as a III — Submission and a r g u m e n t s probationary official and, consequently, of t h e p a r t i e s d u r i n g 'the when it established him, classified him in written procedure Step 1 of Grade A 5 without any additional seniority in breach of the applicable rules and principles.

JUDGMENT OF 12. 7. 1984 — CASE 17/83

That table shows that relevant experience it took place as a result of an open of at least 11 years entitles an official in competition. Grade A 5 to additional seniority of 48 months, which is equal to two steps. (c) The decision appointing the applicant as a probationary official The applicant claims that he has proved expressly refers to Article 32, and not to that he possesses the necessary ex- Article 46, of the Staff Regulations. perience. However, the Commission has wrongly refused to apply to his case Article 32 of the Staff Regulations and (d) The provisions relied upon by the the relevant provisions of the decision of Commission in support of its position are 6 June 1973. totally irrelevant.

Article 15 of the Conditions of Contrary to- the Commission's con- Employment of Other Servants and tention, Article 46 of the Staff Regu- Article 9 of the decision of 6 June 1973 lations is not applicable in this case. concern members of the temporary staff, not officials.

It is thus clearly impossible to regard as a promotion the applicant's appointment as (f) The Commission's argument based a probationary official, all the more so as on the principle of equality proceeds

ANGELIDIS v COMMISSION

grade. Nothing can justify such a temporary staff. That provision is to distinction. be found under the general title "Temporary Staff Appointed as Officials". The fact that it mentions The Commission contends that the expressly only the case of a member of relevant provision in the applicant's case the temporary staff appointed as an is Article 46 of the Staff Regulations and official to a post in the same career not Article 32. bracket is because that is the most common situation (plerumque fit). Article

Thus, only the initial classi- fication' of the temporary employee is determined in accordance with Article 32 of the 'Staff Regulations. It may be deduced from that, by virtue of the In view of that principle, former principle of the continuity of careers, temporary staff appointed as pro- that a later classification, even as an bationary officials cannot, at that time, official, cannot be based on the said claim the benefit of Article 32 of the Article 32.

JUDGMENT OF 12. 7. 1984 — CASE 17/83

(c) The application of Article 32 to B — The factual elements former temporary staff would have consequences which are incompatible with the principle of equal treatment. The applicant indicates that, according to Article 2 of Annex II to the Commission In such a case, and all other things decision of 6 July 1973, experience is being equal, a former member of assessed .with regard to the post to be the temporary staff appointed as a filled regard being had to all the probationary official in a given grade employment pursued by the candidate would have the benefit of a higher step before recruitment (relevant experience), classification than would an official and is calculated from the time at which promoted to the same grade, but who the candidate was awarded the first had been recruited ab initio as an qualification giving access pursuant to official. Article 5 of the Staff Regulations to the category in which the post is to be filled.

ANGELIDIS v COMMISSION

from October 1975. The applicant was itself, which was established by that engaged as an adviser to the Greek decision. Ministry of Coordination precisely because of the special experience he had already acquired in the private sector, "Neutralizing" the early years of the and later appointed to that Ministry on applicant's experience with regard to the the basis of all his previous experience in post to which he was to be appointed agricultural science. contradias or duplicates the fact that the level of that post required a longer period of relevant experience. The applicant's relevant experience in agricultural science forms a single whole. (e) The applicant was admitted to a competition for recruitment to A 3 posts, in which one of the special conditions of (c) That the Commission should admission was to have a "long" period contest the relevance of the applicant's of post-university experience related to experience during the period from 1970 the post chosen by the candidate. One of to the end of 1975 is uncalled for. the posts chosen by the applicant for that competition was that of adviser in the Directorate General for Agriculture.

JUDGMENT OF 12. 7. 1984 — CASE 17/83

temporary staff in Grade L/A 7, Step 3, (b) During the period from January to that of a member of the temporary 1970 to June 1975, the applicant spent staff in Grade A 7, Step 3, was purely an two years doing his military service, administrative adjustment without re- followed by studies at the Technical consideration of his classification. High School for Advanced Studies, Madrid, and at the University of Montpellier I. In any event, one error does not justify another. However, as regards the length of experience, not all activities engaged in from the time of the award of the first (g) When the applicant was appointed university degree are necessarily taken as a probationary official, the Com- into account in fixing the step. Account mission did not undertake a fresh class- is taken only of activities which ification procedure. The Grading constitute experience specific to the post Committee, set up by Article 6 of the to be filled. decision of 6 June 1973, was thus not consulted and could not have expressed an opinion on the applicant's step classi- fication. Moreover, the provision under which experience is calculated from the award of the first degree has no purpose other The fact that the Grading Committee than to prevent account being taken of was not consulted constitutes a pro- experience acquired before the award of cedural irregularity which should be that degree. condemned.

In fact the Commission is putting itself in (c) The Grading Committee, on 26 the place of the Grading Committee. October 1979, recommended that the applicant be placed in Grade A 7, Step 3. That classification was not in fact as a translator, but as an administrator. On 1 The Commission points out that, in its January 1980, that part of the applicant's view, the relevant provision in this case is experience considered relevant with not Article 32 of the Staff Regulations regard to the A 7 post which he occupied and it contends that, in any event, the at that time was considered not to be applicant can only claim to have, at greater than seven years. most, a little more than nine years' experience.

admit any candidate who could give Court, in its judgment of 1 December evidence of experience or further studies, 1983 in the Blomefield case declared that or both, of at least 10 years in addition the Commission decision of 6 June 1973, to his university degree. In the case of an internal directive, cannot lay down the applicant, the selection board, taking rules derogating from the provisions of account of the experience acquired and the Staff Regulations, in this case from the further studies in relation to the posts the second paragraph of Article 32. chosen, calculated his experience, in the broadest sense of that term, at 10, and not at 12, years. However, since As regards the facts, it should be noted experience is assessed in relation to the that, during the procedure, the Com- post to be filled, the length of the mission stated that it was prepared to applicant's experience as fixed by the take account, in favour of the applicant, selection board cannot be simply of relevant experience totalling nine transposed for the purpose of deter- years and one month. According to mining the step to be granted to him, in Annex II to the decision of 6 June 1973, the light of the post occupied since 1 the applicant's period of compulsory April 1982. military service, that is, two years, must be added to that, with the result that the applicant should have been classified in Step 3 of Grade A 5. The purpose of (e) The fact that the Commission, taking military service into account in applying Article 46 of the Staff Regu- the calculation of additional seniority is lations, did not consult the Grading to maintain equality between officials, Committee at the time when the that is, between male and female applicant was recruited as an official, is officials, on the one hand, and between not of such a nature as to entail the male officials who are nationals of a annulment of the contested decision, Member State in which military service is even if it were in theory to be regarded compulsory and male officials who are as a procedural irregularity. It is clear nationals of other Member States in from the settled case-law of the Court which there is no compulsory military that an irregularity in the procedure service, on the other. It is intended to leading up to a decision will entail the neutralize the handicap which certain nullity of that decision only if it can be officials suffer at the time of their re- shown that, were it not for the irregu- cruitment, by virtue of being obliged to larity, the administrative procedure perform military service and, in certain might have led to a different result. cases, to perform a relatively long period of military service.

2 The documents before the Court indicate that the applicant was engaged, in the first place, by a contract of 11 July 1979 as a member of the temporary staff in the capacity of translator at Grade L/A 7, Step 3. By a contract of 11 August 1980, he was transferred to a post of administrator in the Directorate General for Agriculture, still as a temporary employee, in Grade A 7, Step 3, keeping the seniority acquired in his previous post. Having been successful in Competition N o C O M / A / 3 7 7 , he was appointed, by a decision of 4 May 1982, as a probationary official in the capacity of principal administrator in Grade A 5, Step 1.

3 On 14 June 1982, Mr Angelidis submitted a complaint, registered on 5 July 1982, seeking additional seniority of 48 months and therefore classification in Step 3 of Grade A 5. No reply was made to that complaint. By a decision

ANGELIDIS v COMMISSION

of 14 December 1982, the applicant was established in the same capacity and at the same grade and step.

4 The subject of the dispute is the applicant's step classification. Mr Angelidis considers that in the light of his experience before entering the service of the Communities he should have been classified, at the time of his appointment as an official, in Step 3 of his grade, by virtue of the second paragraph of Artie e 32 of the Staff Regulations and Article 5 of the Commission decision of 6 June 1973 on the criteria applicable to grade and step classification upon recruitment.

5 The applicant claims that the Court should :

s The parties' arguments make it necessary to define the scope of Article 32 concerning recruitment, and of Article 45 concerning the determination ot step in cases of promotion to a higher grade.

9 According to the first paragraph of Article 32: "An official shall be recruited at the first step in his grade". The second paragraph adds: However, 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", which is limited to 48 months, or two steps, in the grade in question.

io According to the first paragraph of Article 46, an official appointed to a higher grade is to have, in his new grade, the seniority corresponding to the notional step equal to or next above the notional step reached in his former grade, plus the amount of the two-yearly increment for his new grade, subject to the proviso that, according to the third paragraph of the same article, an official appointed to a higher grade is always to be classified not lower than the initial step for that grade.

n The provisions concerning promotions, of which Article 46 forms part, whether from the point of view of their wording or from that of their context, are intended to govern the advancement, in their respective cate- gories and branches, of employees of the Community who, at the time ot their promotion, already have the status of officials Those provisions are thus not adapted to the position of an employee who, after a period ot service as a member of the temporary staff, obtains, by means ot an open competition, his first definitive appointment within the Community administration after completing the required probationary period.

i7 In this case, it will be for the Commission to reconsider the applicant's position and apply to it the criteria laid down in Article 32 of the Staff Regu- lations and the decision of 6 June 1973 with a view to arriving at a decision on the applicant's classification in step.

JUDGMENT OF 12. 7. 1984 — CASE 17/83

Costs

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

i9 As the Commission has failed in its principal submissions, it must be ordered to pay the costs.

On those grounds,

Delivered in open court in Luxembourg on 12 July 1984.

For the Registrar H. A. Rühi K. Bahlmann Principal Administrator President of the Second Chamber