C-25/83

In Case 25 / 83

ADAM BUICK, an official of the Commission of the European Communities , represented and assisted by Victor Biel, of the Luxembourg Bar, with an address for service at the latter's Chambers , 18 A Rue des Glacis,

applicant,

v

I — Language of the Case: French.

JUDGMENT OF 29. 3. 1984 — CASE 25/83

JUDGMENT

Facts and Issues

The facts of the case, the course of the 2. In March 1981, staff were informed procedure and the conclusions, sub­ by a Notice to Commission Staff of the missions and arguments of the parties Commission's decision of 6 June 1973 may be summarized as follows: "On the Criteria Applicable to Grade and Step Classification upon Re­ cruitment". Enclosed with the notice I — Facts were the decision itself (Annex I), a document entitled "Practical Application 1. Adam Buick started work for the — General Survey" (Annex II) and a Commission in January 1974. He was statement on the membership of the classified in Grade A 7, Step 3, on re­ Grading Committee (Annex III). The cruitment. On 1 January 1978 he was provisions which are relevant to this case promoted to Grade A 6. are the following:

BUICK / COMMISSION

Annex I — Decision Annex II, entitled "Practical Application — General Survey" "Article 1 1. Under the first heading — "General" Appointment to the starting grade of the — is to be found a definition of the starting career bracket of a category relevant practical experience and a statement of credit to be given for the The appointing authority shall generally length of compulsory military service; appoint the selected candidate as a the second heading provides : probationer in the starting grade of the starting career bracket of his category or service. "2. Career Bracket A 7/6

Article 3 (b) At least eight years' relevant practical experience are required for Appointment to a higher grade of a an A 6 grading (see 1(a) above). career bracket 3. On being informed of that decision, By way of derogation from Article 1, the the applicant on 29 April 1981 submitted appointing authority may, exceptionally to the Commission a request for a and in order to meet recruitment reclassification in Grade A 6 with effect requirements, appoint a candidate to the from the date of his recruitment. upper grade in the starting or in­ termediate career bracket, if the candidate gives evidence of professional 4. It appears from the file on the case experience, within the meaning of Article that the applicant had completed his 2, of at least: secondary education in December 1961, when he took the Oxford University entrance examination. However, he did not begin his university studies until 8 years for Grade A 6; October 1962. It seems that the gap of ten months was due to the fact that the Oxford Scholarship Examination taken

JUDGMENT OF 29. 3. 1984 — CASE 25/83

by the applicant is held only in Dismiss the application as unfounded; December of each year. He obtained his university degree in June 1965. Order the applicant to pay the costs ;

Subject to all necessary reservations. 5. On 11 May 1982, the Grading Committee (a body set up under Article 6 of the Commission's decision and competent to give an opinion on the III — Written procedure matters governed by that decision) sent him a memorandum to the effect that it The written procedure followed the was unable to propose an amendment to normal course. Upon hearing the views his original classification. of the Advocate General, the Court decided to open the oral procedure 6. On 18 June 1982 the applicant without any preparatory inquiry. submitted a complaint to the Com­ mission under Article 90 (2) of the Staff Regulations, which was rejected by letter of 23 November 1982. IV — Relevant provisions of the Staff Regulations

The applicant argues that on the basis of his secondary education in December the provisions relating to short university 1961, the applicant takes the view studies under paragraph 2 of Annex II that this provision entitles him to claim above (cited in the application and that his practical experience should pleadings as Article 2 of Annex I to the be calculated from December 1965. decision), his practical experience should Consequently, when he took up his have been taken into account with duties in January 1974, he had had at effect from the fourth year following least the eight years' experience required December 1961, when he received his in order to be classified in Grade A 6. secondary qualification, in other words

However, applicant had not yet begun his the appointing authority cannot be university studies. exempted from the effect of its own decisions in defiance of the principle legem patere quam ipsefecìsti. VI — Submissions and arguments of the parties in full 2. The Commission begins by observing that the 1973 decision does not confer 1. The sole submission advanced by the on candidates as regards appointment in applicant alleges the illegality of the the upper grade in a career bracket any memorandum rejecting his complaint, right infringement of which will give rise which is due to a misinterpretation of the to a cause of action. The wording of

. . d'une experience is taken into account only durée d'au moins huit ans"). with effect from the fourth year For this reason, if for no other, the following the completion of advanced Commission was under no obligation to secondary studies". Since he completed appoint the applicant to Grade A 7 and,

conversely, he did not have a right to be The fact that the wording of the appointed to the upper grade in his provision takes the "fourth year career bracket. following the completion of advanced secondary studies" as the starting point Furthermore, the Commission argues for the calculation is explained by the that it did not in any way contravene the fact that when the 1973 decision was general guide-lines which it had laid drafted it was assumed that the down for itself in the matter of

The January 1974). He was therefore quite approach which has been adopted in the properly appointed to the starting grade provision is as follows: where university of Career Bracket A 7/A 6. studies are long, the years of study after the sixth year of such study are The Commission adds that a literal considered equivalent to "professional" interpretation of paragraph 2 (a) would experience for the purposes of Article 2 not only defeat the purpose which the of the 1973 decision; and where administration had set itself, namely of university studies are short, the first year compensate for disparities in the length of practical experience is treated as if it of university studies in the Member were an extra year of study.

In such cases, therefore, that period any practical experience or at the intended result is that the first year least any relevant experience. of experience following the award of a degree after short university studies is The interpretation which is suggested by disregarded. the applicant therefore contradicts the very content of Article 2 of the 1973 The defendant accordingly argues that, decision in so far as a provision in the light of its spirit and its context, governing the detailed rules for the the rule laid down in paragraph 2 (a) of calculation of practical experience would Annex II to the staff notice regarding the allow periods of no activity or of 1973 decision necessarily requires that irrelevant activity to be treated as four years must actually have run before relevant practical experience, and, the years of practical experience can consequently, would modify the basic begin to be taken into account. rule contained in Article 2.

Turning to the question of the interpret­ (d) The Commission has not put ation of the disputed provisions of forward any valid arguments for paragraph 2 (a) of Annex II, the rejecting the literal interpretation of applicant wonders whether he should not a positive provision. Moreover, it is refer to the context and general scheme not clear why such an interpretation of Annex II in order to clarify this should render nugatory the spirit and provision beyond all possible doubt and substance of the article. claim its strict and complete application. If the Commission really wished to give Finally, the applicant requests that the the provision in question the meaning Commission should be ordered to pay which it claims it has, it had only to draft the costs of the case in their entirety it without any ambiguity by providing even if the Court should not accept the simply that "practical experience is taken substance of his submission. into account only with effect from the fourth year following the start of 4. The defendant, in its rejoinder, university studies. recognizes that the dispute between the parties turns upon the question of what In a different connection, he observes should be the starting point for calcu­ that instead of confining itself to lating the practical experience of a the supposed philosophical principles candidate who has completed short underlying the scheme adopted, which university studies. lead to the astonishing possibility that a candidate might be credited with practical experience which he lacks, the It maintains that the definition of the Commission should have taken the starting point for practical experience, as following into account: referred to in paragraph 2 of Annex II ("... is taken into account only with (a) The purpose of paragraph 2 (a) of effect from the fourth year following the Annex II is to reduce the actual completion of advanced secondary practical experience of a candidate studies"), is to be explained by the fact and not to credit him with that the draftsmen of the provision experience which he lacks. In this essentially had in mind the most general case, the question to be determined case (quod plemmque fit) of a student is thus from what time experience beginning his university studies actually gained should be taken into immediately after he has gained his account. secondary qualification.

2 The applicant started work for the Commission in January 1974 and was appointed to Grade A 7, Step 3. He was promoted to Grade A 6 on 1 January 1978.

3 In March 1982, the Director General for Personnel and Administration issued a notice , which has been brought to the attention of all the staff of the Commission and all successful candidates in competitions since that date ,

BUICK / COMMISSION

comprising the above-mentioned "decision" of 6 June 1973 (Annex I), a statement of the practice relating to its application (Annex II) and a list describing the membership of the Grading Committee, a body set up under Article 6 of that "decision" (Annex III).

4 Article 3 of the "decision", which deals with appointments to the upper grade in 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 starting or intermediate career bracket, if the candidate gives evidence of professional experience, within the meaning of Article 2, of at least: . .. eight years for Grade A 6 . ..".

8 It appears from the documents on the file of the case that the applicant completed his secondary studies in December 1961, when he took the entrance examination to Oxford University. However, he did not begin his university studies until October 1962, and obtained his university degree in June 1965.

9 On 11 May 1982, the Grading Committee notified the applicant of its opinion refusing his request for reclassification on the grounds that he could not show practical experience of sufficient length.

io On 18 June 1982, the applicant lodged a complaint with the Commission under Article 90 of the Staff Regulations, claiming that the Grading Committee had wrongly interpreted the decision of 6 June 1973.

n That complaint was rejected by letter of 23 November 1982 by the Member of the Commission in charge of Personnel and Administration, who confirmed the interpretation of the Grading Committee.

i2 That is the decision against which the applicant brought these proceedings on 16 February 1983.

13 The sole submission put forward by the applicant alleges the illegality of the decision rejecting his complaint, which is due to a misinterpretation and hence an infringement of the "decision" of 6 June 1973. He stresses that according to the clear terms of paragraph 2 of Annex II to the notice mentioned above, practical experience is to be taken into account with effect from the fourth year following the completion of secondary studies. Therefore in his case practical experience should have been taken into account from December 1965, since it is common ground that he completed his secondary studies in December 1961. Eight years' practical experience should have been recognized at the time of his recruitment in January 1974 and the applicant should consequently have been classified in Grade A 6.

is As the Court has already had occasion to declare, the "decision" on the criteria applicable to grade and step classification contained in Annex I of the notice to staff is an internal directive which should 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 (judgments of 1 December 1983 in Case 190/82 Blomefield [1983] ECR 3981; Case 343/82 Michael [1983] ECR 4023). The same considerations must apply with regard to the legal nature of Annex II to the notice, entitled "Practical Application — General Survey", which briefly describes the "practice" of the administration in applying the provisions laid down in the "decision" in question, by setting forth more specific rules which the administration considers itself bound to observe.

i6 The wording of the disputed paragraph 2 (a) shows that the purpose of the Commission, when it adopted the rules therein contained, was to comply with the provisions of Article 5 (3) of the Staff Regulations, which lays down that: "Identical conditions of recruitment and service career shall apply to all officials belonging to the same category or the same service". It follows that the disputed provision should be interpreted in the light of the general scheme of the measure and of the purpose mentioned above.

i7 Against that background, it must be stated that the application of the provisions of Article 2 of the "decision" has brought to light considerable disparities which are due to differences in the duration of university studies between Member States, and that it was in order to reduce such disparities that the Commission's Grading Committee proceeded to establish the scheme laid out in paragraph 2 (a) of Annex II to the staff notice. It must therefore be concluded that the purpose of the provisions mentioned above was to define the length of the practical experience to be taken into account for purposes of classification as starting to run from the actual commencement of university studies.

22 However, in view of the wording of the provision in question, the applicant might well, as the Commission has conceded, have been misled as to the extent of his rights; it is therefore appropriate to apply the second subparagraph of Article 69 (3) of the Rules of Procedure and to order the defendant to bear the costs in their entirety.

On those grounds,

THE COURT (Third Chamber)

hereby:

1. Dismisses the application;

BUICK / COMMISSION

Mr President years' practical experience laid down for Members of the Court, such an appointment in the upper grade. In June 1965, four years after the A — Adam Buick, the applicant in this completion of his advanced secondary staff case, seeks to obtain an im­ studies, he had obtained his university provement of his classification in the degree. He had been in relevant starting grade. He started work for the employment since September 1965. He Commission in January 1974 as a claims that he therefore had eight years probationary official in Grade A 7, step of practical experience behind him when 3, and was promoted to Grade A 6 in he started work for the Commission. January 1978. The Commission's Grading Committee In a memorandum dated 27 April 1981 replied in a memorandum dated 11 May the applicant asked to be reclassified in 1981 that in the case of a short course of Grade A 6, step 1, with retroactive university studies of three years such as effect, relying on the Commission's the applicant had taken, the first year of "Decision on the Criteria applicable · to employment following the award of the Grade and Step Classification upon re­ degree is regarded as a fourth year of cruitment" (hereinafter referred to as study. Thus only the period from June "grading criteria") dated June 1973 1966 to 1 January 1974, amounting to and distributed in March 1981 by the seven and a half years, could be taken Directorate General for Personnel and into account as practical experience. Administration. He argued that he There were therefore no grounds for satisfied the requirement of at least eight recommending a reclassification.