C-20/83

JUDGMENT OF 13. 12. 1984 — JOINED CASES 20 AND 21/83

Staff Regulations than an official who period before being established must, has completed the required minimum even after completion of the pro- period of service. bationary period, complete the mini- mum period of service required by the 2. An official eligible for promotion Staff Regulations. who had to complete a probationary

In J o i n e d Cases 20 and 2 1 / 8 3

ARISTIDES V L A C H O S , a lawyer-reviser at the C o u r t of Justice of the E u r o p e a n Communities, residing at 21 R u e Bertels, L u x e m b o u r g , represented b y V i c t o r Biel, of t h e L u x e m b o u r g Bar, with a n address for service in L u x e m b o u r g at the C h a m b e r s of M r Biel, 18 A R u e des Glacis, applicant,

v

COURT O F JUSTICE O F T H E E U R O P E A N COMMUNITIES, represented by Francis H u b e a u , H e a d of t h e Personnel Division, assisted b y Alex Bonn, of t h e L u x e m b o u r g 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 M r Bonn, 22 C ô t e d'Eich, defendant,

JUDGMENT

Facts and Issues

The facts of the case, the course of and with effect from 1 January 1981 it the procedure and the submissions, ar- converted Mr Vlachos' original contract guments and conclusions of the parties into a temporary servant's contract by may be summarized as follows: which he was engaged as a lawyer- linguist in Grade L/A 6, Step 3.

I — Facts and written p r o c e d u r e On 20 January 1982 Mr Vlachos submitted a request to the President of the Court under Article 90 (1) of the At the end of a selection procedure the Staff Regulations. He asked to be Court, by letter dated 21 July 1980, appointed as a lawyer-reviser in the offered Mr Vlachos an auxiliary grade and step corresponding to his servant's contract as lawyer-linguist in Category A II, Class 4, with effect from training and experience. In his request, 15 September 1980. he suggested that he should be established as a lawyer-reviser in Grade L/A 5, Step 4. Mr Vlachos was not happy with the offer and on 29 July 1980 he sent a letter asking the Administration of the Court In the meantime Mr Vlachos entered to reconsider his grading in the light of internal competition No CJ 149/81 and, his professional experience. In a letter on the basis of the Selection Board's dated 25 August 1980 the Court assured report, the Court, at its administrative Mr Vlachos that meeting on 29 June 1982, appointed him as a Greek lawyer-reviser in Grade "once the 1981 Budget has been L/A 5, Step 1, as from 1 July 1982. That adopted, the best lawyer-linguists will decision was notified to the applicant on have the opportunity to be appointed as 5 October 1982. revisers (Grade L/A 5)".

revoke the contested decision and to (iv) accordingly declare Article 46 adopt a new one appointing him to of the Staff Regulations inap- Grade L/A 4 or, alternatively, to Grade plicable; L/A 5, Step 3. That further complaint was rejected by the Court on the ground (v) remît the case to the appointing that, at the time of his appointment to authority; Grade L/A 5, Mr Vlachos was not an official newly recruited by the Court for (vi) order the Court to pay the costs; the purposes of Article 32 but an established official promoted from Grade 2. In Case 21/83: L/A 6 to Grade L/A 5 and his grading was therefore governed by Article 46. (i) declare the application admis- sible; The applications were lodged on 8 Fe- bruary 1983. (ii) declare it well founded and accordingly annul the decision Upon hearing the report of the Judge- notified to the applicant on Rapporteur and the views of the 10 November 1982 rejecting his Advocate General, the Court (First complaint of 28 July 1982; Chamber) decided to open the oral procedure without any preparatory (iii) declare that he has been enquiry. "recruited" for the purposes of Articles 29 to 32 of the Staff By order of 12 January 1983, the Court Regulations; (First Chamber) joined Cases 20 und 21/83 for the purposes of the oral (iv) accordingly declare Article 46 of procedure and the judgment. the Staff Regulations inap- plicable;

II — C o n c l u s i o n s of t h e p a r t i e s (v) remit the case to the Court in its capacity as appointing authority;

The applicant claims that the Court (vi) order the defendant to pay all the should: costs.

First submission: Wrong application of candidates would enter the com- the Staff Regulations petition and In order to recruit five Greek-speaking (iii) to enable the best hierarchical lawyer-revisers the appointing authority structure for the service and one published, in accordance with Article which was as efficient as possible to 29 (1) (b) of the Staff Regulations, the be set up within a short period of Notice of internal competition No CJ time. 149/81 based on qualifications and tests. Its reason was that it had been impossible to fill the five posts by The fact that the Staff Regulations promotion, since none of the Greek enables up to half the candidates employees met the required conditions appointed to be recruited at a grade (none was an established official who higher than the starting grade indicates had completed two years' service in that the exercise of the appointing auth- Grade L/A 6). ority's discretion for this purpose should not be regarded as limited and fettered Both the aforementioned vacancy notice since the provision itself lays down the and the notice of internal competition, framework and the limits within which which both had the same number, that discretion must be exercised. indicated quite clearly through the use of the word "recruitment" what their Consequently, if the candidate appointed purpose was. objectively meets the formal and sub- stantive conditions for occupying the The contested decision was therefore post, the appointing authority would be wrongly based on Articles 45 and 46 of misusing the discretion in question if if the Staff Regulations and the grounds on refused to apply Article 31 (2) (b). which that decision are based are thus defective. The argument advanced on this point is compatible with the consistent practice This case involves nothing other than of the Court to appoint all lawyer- the applicant's recruitment in another linguists without exception to the higher capacity, namely as a lawyer-reviser. grade, L/A 6, and not to the starting Consequently, Article 31 (2) (b) and the grade, L/A 7, even though that practice second paragraph of Article 32 of the involves exceeding the figure laid down Staff Regulations must be applied and by the provision in question. not the provisions concerning promotion contained in Title III, Chapter 3, of the Staff Regulations. Consequently, the contested decision involves unequal treatment and discrimi- The fact that it is possible under Article nation between officials in Career 31 (2) (b) of the Staff Regulations for Bracket L/A 5 - L/A 4 and officials in up to half the appointments to newly Career Bracket L/A 7 - L/A 6 which is created posts to be at a grade higher harmful to the applicant. than the starting grade shows that the Community legislature's intention was Second submission: Breach of the prin- ciple of the protection of legitimate (i) to allow a sufficient number of expectation officials to be appointed to a grade higher than the starting grade, Mr Vlachos contends that he had reason to believe that he would be appointed to (ii) to provide an incentive so that the Career Bracket L/A 5 - L/A 4 in view of most capable and most experienced the written and verbal promises made to

him by his superiors and the relevant 24 months in the grade im- reports concerning his efficiency and mediately above the starting qualifications. Although he was ap- grade. The applicant completed pointed to Grade L/A 5 after the tests, 28 months of military service. this was after having been disappointed in his legitimate expectation as to the kind of treatment he was entitled to (ii) The European Parliament may expect. grade an appointed official in Grade L/A 4 if he has more than 10 years' relevant experience. Third submission: Breach of the principle of equal treatment of officials serving the same Community institution (iii) Under Decisions 81-5 and 82-9 of 3 December 1982 the Court of Auditors may appoint an official to In the past, when the appointing Grade L/A 4 if he has more than authority appointed lawyer-revisers of 10 years' experience. British and Danish nationality in exactly the same circumstances as those in which the applicant was appointed, it took into account their previous experience, (iv) By a decision of 17 January 1975, training and age, and, depending on the the Council adopted similar rules; case, appointed them to a grade or step it applies various coefficients ac- higher than their starting grade or step. cording to the number of months of experience and in doing so rightly takes no account of age. Fourth submission: Breach of the principle of equal treatment of officials of all the Community institutions In adopting the contested decision the appointing authority was clearly out of step with the appointing authorities of According to the decisions in force other Community institutions. It im- adopted by the other institutions with properly applied criteria which were regard to the grading of appointed unfamiliar and in any event unfavourable officials and the application of Articles to the applicant and this constituted 31 and 32 of the Staff Regulations, the discrimination against him as an official situation was as follows: of the Court compared with his colleagues in other institutions doing the same work. It is also clearly contrary (i) (a) Besides the favourable pro- to the principle of fairness which is visions concerning the award of recognized as a general principle of the an additional step depending Community legal order. on experience, the Commission grants Grade L/A 4 if the official appointed has at least 10 years' experience. Fifth submission: Breach of the principle of good administration in conjunction with the fourth submission (b) Furthermore, the Commission may grade an appointed official who has performed military The principle of good administration service for a period of at least requires the Administration of the Court

to take account of all the factors on of the Court itself informed him in its which it might base its decision. memorandum of 5 April 1982 (Annex 8 to the second application) that he was The reason for the insufficient and not eligible for transfer or promotion. extremely brief statement of reasons for Notice of Competition No CJ 149/81 the contested decision as well as for the announced the "recruitment" of five grading of the applicant in the first step lawyer-revisers. None of the candidates of the new grade is that the appointing who took part in the competition was authority did not consider the contents eligible for promotion and it is therefore of his personal file. illogical to maintain that the five persons selected were promoted. The candidates Sixth submission: Breach of the pro- who were successful in the competition hibition of discrimination have been recruited and the Ad- ministration must treat them as such and The appointing authority's failure to apply Article 32 of the Staff Regulations apply Article 31 (2) (b) and the second instead of Article 46, which reduces die paragraph of Article 32 of the Staff scope for granting steps according to Regulations placed a serving official in merit, experience and other qual- an unfavourable position compared with ifications. an official who had recently entered the service of the Court. The concepts of "recruitment" and "promotion" have been discussed and Seventh submission: Unjustified departure examined before the Court on several from the established practice of the occasions. In Van Belle v Council (Case Court 176/73 [1974] ECR 1361), Mr Advocate General Reischl stated: In the contested decision the appointing authority departed from its previous " . . . the concept of 'recruitment' must in practice regarding the grant of additional fact not be understood in the narrow seniority to an appointed official sense of appointment to the service, that depending on his training and experience is to say in the sense of external and thus acted in breach of any internal appointment. Rather, it is the general instructions of the Court regarding the concept which, understood correctly, way in which Articles 31 and 32 of the embraces all possible forms of ap- Staff Regulations are to be applied. pointment to posts." The applicant also relies on the provisions of Article 5 (3) of the Staff Since, in the present case, it was Regulations, which the Court sought to impossible to fill a post of lawyer-reviser disregard in this case. by promotion, competition No CJ 149/81 must have ended in genuine re- In view of the defendant's failure to cruitment within the meaning of Ar- reply to the submissions in his complaint, ticles 31 and 32 of the Staff Regulations. the applicant asks whether it must be inferred that it has no arguments to Even if it is accepted for the sake of offer. argument that the Administration is right and that the applicant was promoted, his In his application, the applicant contends grading is not necessarily and exclusively that in law he must be regarded as governed by the restrictive provisions having being recruited and not as having laid down in Article 46 of the Staff being "promoted". The Administration Regulations.

In its judgment of 6 October 1982 in by Article 46. Consideration of that Case 9/81, Williams v Court of Auditors, provision led to the applicant's classi- [1982] ECR 3301 the Court held that fication in the first step of Grade L/A 5. Article 46 of the Staff Regulations It should be added that it is the governing the classification of promoted consistent practice of the Administration employees, applies only when careers are of the Court to apply Article 46 to all "organized in a consistent manner from cases similar to that of the applicant. the outset". However, that is not the case at the Court as regards the career of lawyer-reviser in the English and Danish It is irrelevant that Notice of Com- divisions. petition No CJ 149/81 referred to the "recruitment" of five lawyer-revisers because the competition was internal to In Case 20/83, the defendant refers to its the institution and was thus intended, in arguments in Case 21/83. particular, to enable officials in a lower grade to qualify for promotion. In that case, the defendant contends that the applicant's claim set out in his request of 20 January 1982 has been Before formally requesting the Court to overtaken by events because he was dismiss the application, the defendant appointed to Grade L/A 5 as from 1 July makes a general observation. Mr Vlachos 1982. Consequently, the request and entered the service of the Court on 15 subsequent complaint have been met. September 1980 as a member of the auxiliary staff. After less than two years of service he was established in Grade The only question which remains is that L/A 5. His career has therefore pro- of grading in step within Grade L/A 5 ; gressed at lightning speed. that matter is governed by Article 46 of the Staff Regulations. In his reply, the applicant objects to the The defendant contends that Article 32 defendant's remarks. He has not had a of the Staff Regulations is not applicable "meteoric" career but on the contrary to the applicant. It is clear from the has felt frustrated in his expectations. He general scheme of the Staff Regulations has had to accept every kind of contract and in particular Title III ("Career of and enter normal competitions in order Officials") that "recruitment" must be to reach Grade L/A 5. understood as meaning the first employment by a Community institution of a person who until then did not With regard to Case 21/83, the applicant belong to the staff of the institutions notes that the principal argument for of the European Communities. It is rejecting his complaint of 20 January indisputable that Mr Vlachos was 1982 was that he had obtained what he already a serving official and that he had requested. However, although the was "promoted" within the meaning of applicant was appointed to Grade L/A 5 Article 45 of the Staff Regulations, that as from 1 July 1982, that appointment is to say, he was appointed to the next followed a normal competition. higher grade in the category to which he belonged. If he had taken part in Competition No CJ 149/81 as an official in Grade L/A 5, His classification in the grade to which he would have been appointed to Grade he was promoted is therefore governed L/A 4.

The defendant contends that Article 46 Even if it is accepted that Article 32 of governs the appointment of an es- the Staff Regulations applies to the tablished official to a higher grade. It is applicant, it must be pointed out that the immaterial that the promotion of the second paragraph of that provision official in question could only take place permits the appointing authority to grant following an internal competition, which additional seniority. However, it is under happens in two types of cases: no obligation to do so.

(a) Not only in the case of an official "transferred from one service to another or promoted from one III — O r a l p r o c e d u r e category to another" — the case expressly referred to in Article 45 (2) of the Staff Regulations, The parties presented oral argument at the sitting on 23 February 1984. (b) but also, under a consistent ad- ministrative practice, in the case of The Advocate General delivered his advancement in grade if the official opinion at the sitting on 22 March 1984.

JUDGMENT OF 13. 12. 1984 — JOINED CASES 20 AND 21/83

Decision

1 By an application lodged at the Court Registry on 8 February 1983, the applicant, a lawyer-reviser at the Court of Justice of the European Communities, brought an action (Case 21/83) under Article 91 of the Staff Regulations for the annulment of the decision of 28 October 1982 rejecting his complaint of 28 July 1982, submitted under Article 90 (2) of the Staff Regulations, in which he asked to be appointed to a grade and step corresponding to his age and experience.

2 By a second application lodged on the same day, the applicant brought a further action (Case 20/83) under Article 91 of the Staff Regulations for the annulment of the decision of 19 January 1983 rejecting his complaint of 15 October 1982 lodged against the Court's decision of 29 June 1983 appointing him at the end of an internal competition to a post of lawyer- reviser in Grade L/A 5, Step 1, with seniority in step backdated to 1 September 1980.

7 The complaint dated 28 July 1982 was rejected by a decision of 28 October 1982 and the complaint of 15 October 1982 by a decision of 19 January 1983. The applicant has brought these actions against those decisions.

8 In Case 21/83 the applicant asks the Court to annul the decision of 28 October 1982 and to declare that he must be regarded as "recruited" for the purposes of Articles 29 to 32 of the Staff Regulations and that consequently Article 46 of the Staff Regulations is not applicable to him. In Case 20/83 he asks the Court to annul the decision of 19 January 1983 and to declare that he must be treated as a newly recruited official for the purposes of Articles 29 to 32 of the Staff Regulations and that consequently Article 46 is not applicable to him.

9 In its decision of 28 October 1982 the appointing authority stated that in his request of 20 January 1982 the applicant asked to be appointed to a post of lawyer-reviser and classified in Grade L/A 5, Step 4, without taking part in a competition and moreover without meeting the conditions laid down in Article 45 of the Staff Regulations. In so far as the applicant's request was for his immediate appointment to Grade L/A 5, it had lost its purpose from

JUDGMENT OF 13. 12. 1984 — JOINED CASES 20 AND 21/83

the time when the applicant, who was at that time a lawyer-linguist in Grade L/A 5, Step 3, entered the competition for the recruitment of revisers or at any rate once he was appointed a reviser and classified in Grade L/A 5, Step 1. In any case, it would have been impossible to grant his request without infringing the provisions of the Staff Regulations. At the time of his appointment to Grade L/A 5, the applicant was not a newly recruited official for the purposes of Article 32 of the Staff Regulations but an established official promoted from Grade L/A 6 to Grade L/A 5. His grading was therefore governed by Article 46 of the Staff Regulations.

(v) breach of the principle of sound administration considered with submission (iv);

(vi) breach of the principle of non-discrimination and

(vii) unjustified departure from the Court's consistent practice.

Case 2 1 / 8 3

1 2 The decision of 28 October 1982, which the applicant asks to be annulled, was taken by the appointing authority in response to the applicant's complaint of 28 July 1982. That complaint was lodged after the applicant had submitted the request to the President of the Court on 20 January 1982

VLACHOS / COURT OF JUSTICE

15 It is first of all necessary to recall the provisions of the Staff Regulations on which the applicant relies. Chapter 1 of Title III of the Staff Regulations

JUDGMENT OF 13. 12. 1984 — JOINED CASES 20 AND 21/83

deals with "recruitment" procedures while Chapter 3 governs staff reports, advancement to a higher step and promotion. Article 29 of the Staff Regu- lations provides that, except in the case of the recruitment of officials in Grade A 1 or A 2 and in exceptional cases, the appointing authority must first consider, before filling a vacant post in an institution, (a) whether the post can be filled by promotion or transfer within the institution, (b) whether to hold competitions internal to the institution and (c) what applications for transfer have been made by officials of other Community institutions and then follow the procedure for competitions on the basis either of qualifications or of tests, or of both qualifications and tests.

16 Article 31 provides that the candidates selected are to be appointed as follows :

Officials in Category A or the Language Service: to the starting grade of their category or service;

Officials in other categories: to the starting grade for the post for which they have been recruited.

20 While recruitment marks entry into a category or a service of the Community institutions, promotion governs the advancement of the career thus begun within the category or service which the candidate has entered.

21 The decision of 29 June 1982 has the effect of both appointing and promoting the applicant at the same time, its preamble referring in fact to Article 29 and Articles 45 and 46. It applies the rules for grading officials to the case of an official appointed to new duties as a lawyer-reviser as a result of his having succeeded in internal competition No CJ 149/81. It thus concerns the advancement of the applicant's career.

22 It is true that, if Articles 31 and 32 of the Staff Regulations had been applicable to his case and not Articles 45 and 46, the derogations contained in Article 31 (2) and the second paragraph of Article 32 might have been applicable to him. It must be pointed out however that those derogations are to be applied at the discretion of the appointing authority, although that authority could not refuse to apply them to the applicant if it was proved that this was the consistent practice of the institution. In this regard, it appears that since 1973 no lawyer-reviser in Career Bracket L/A 5 - L/A 4

JUDGMENT OF 13. 12. 1984 — JOINED CASES 20 AND 21/83

employed at the Court of Justice has been directly recruited from outside the Community institutions and that the Court's established practice is to treat the appointment of a serving official to the next higher career bracket following an internal competition as promotion and to apply the rule contained in Article 46 of the Staff Regulations in such a case.

VLACHOS / COURT OF JUSTICE

after the initial interim period of six months, which would be a probationary period or test or both, he would be established as a lawyer-reviser. He thinks that at the end of competition No CJ 14/81 he ought to have been established as a lawyer-reviser (Categoty L/A 5 - L/A 4). The applicant contends that the Court thus acted in breach of the legitimate expectation which that letter had given him.

27 That submission cannot be accepted. The letter of 25 August 1980 was meant to allay the misgivings of the applicant who was disappointed at having been engaged as a member of the auxiliary staff in Category A II, Class 4, by pointing out that that situation was only temporary owing to the budgetaiy situation at the time. However, the letter offered the prospect of a career in the new language division once budget funds had been appropriated. That letter was therefore only informative in nature and did not commit the appointing authority to appoint the applicant to the desired grade.

The third submission

28 The applicant points out that when the Court previously appointed English- and Danish-language lawyer-revisers in exactly the same circumstances as the applicant it took account of their previous experience, training and age and appointed them, depending on the circumstances of each case, to a grade or step higher than their starting grade or step. In support of that argument, the applicant refers to the case of a lawyer-reviser who, according to him, was appointed to Grade L/A 4.

29 That submission cannot be accepted either. The appointing authority has stated, without being contradicted by the applicant, that the consistent practice of the Court has been to appoint lawyer-linguists to Grade L/A 6, which was the grade given to the applicant when he was appointed as a lawyer-linguist by the decisions of 11 and 25 November 1981. The applicant has not succeeded in showing that his allegations are true. It emerged at the

32 In these submissions the applicant contends that the principle of sound administration required the appointing authority to take account of all the factors on which it might base its decision. It did not take account of infor- mation contained in his personal file, particularly information regarding his training in general and his special experience. By not applying Article 31 (2) (b) and the second paragraph of Article 32 of the Staff Regulations, the appointing authority put an official already in the service of the Court in a worse position than an official who had just entered its service. In adopting the contested decision the Court departed from the practice which it had previously followed regarding the award of additional seniority to the appointed official depending on his qualifications and experience and thus acted in breach of any internal instructions of the Court which may be in force regarding the application of Articles 31 and 32 of the Staff Regu- lations.

VLACHOS / COURT OF JUSTICE

33 Those arguments cannot be accepted. Starting from the view that since his appointment resulted from a competition the Court could regard him as having been promoted, the applicant is trying to demonstrate that the Court could not apply the rules on promotion in his case. Those arguments were dealt with in connection with the first submission. The fifth, sixth and seventh submissions must therefore be rejected.

34 Since the applicant has failed in all his submissions, the application must be dismissed.

Costs

35 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, the institutions are to bear their own costs in proceedings by servants of the Communities.

Delivered in open court in Luxembourg on 13 December 1984.

For the Registrar D. Louterman G. Bosco Administrator President of the First Chamber