C-227/83

J U D G M E N T OF T H E C O U R T (SECOND CHAMBER) 12 JULY 1984 '

Sophie Moussis v Commission of the European Communities

(Recruitment and promotion)

Case 227/83

Officials — Appeals — Prior administrative complaint — Time-limits — Matter of public policy — Right of action definitively time-barred (Staff Regulations, Arts 90 and 91)

The time-limits prescribed in Articles 90 The fact that an institution, for reasons and 91 of the Staff Regulations for the related to its staff policy, deals with the lodging of complaints and appeals are a substance of a request submitted out of matter of public policy and are not time and therefore inadmissible cannot subject to the discretion of the parties or have the effect of derogating from the the Court, since they were laid down system of mandatory time-limits and re- with a view to ensuring clarity and legal establishing a right of action which is certainty. definitively time-barred.

APPLICATION for the annulment of a Commission decision refusing to alter the grade to which the applicant was appointed following a competition,

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

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

Advocate General: C. O. Lenz Registrar: D. Louterman, Administrator

gives the following

JUDGMENT

Having passed Open Competition No Declare the application admissible; C O M / A / 3 3 7 , to which only Greek nationals were admitted, Mrs Moussis Declare the application well founded was appointed, by a decision of 8 June and annul the decision rejecting her 1982, which became effective on 1 June complaint and confirming her grading in 1982, as a Principal Administrator in the Grade 5, Step 3, following Open Directorate General for Agriculture, Competition No C O M / A / 3 3 7 / 8 1 ; Directorate for Agricultural Structure and Forestry, Division for Implemen- tation of Common Measures and Secre- Order the Commission to place the tariat of the Standing Committee on applicant in the correct grade following Agricultural Structure (DG VI-F-2) and that competition in accordance with the classified in Grade A 5, Step 3. criteria contained in the Commission's decision of 6 June 1983; On 11 January 1983 Mrs Moussis submitted a request to the Grading Order the Commission to pay the costs. Committee pursuant to Article 90 (1) of the Staff Regulations for a review of her The Commission contends that the classification and for appointment to Court should: Grade A 4. That request, based on the Commission's decision of 6 June 1973 Dismiss the application as inadmissible entitled "Decision on the Criteria and unfounded; Applicable to Grade and Step Clas- sification upon Recruitment" and distributed to the staff in March 1981, Order the applicant to pay the costs. was refused by a letter dated 20 January 1983 from the Head of the Careers The written procedure followed the Division of the Directorate General for normal course. Personnel and Administration which Mrs Moussis received on 20 February 1983. By order of the President of the Court dated 17 October 1983, the case was On 25 March 1983 Mrs Moussis assigned to the Second Chamber. submitted a complaint under Article 90 (2) of the Staff Regulations against that Upon hearing the report of the Judge- refusal. Her complaint was rejected by a Rapporteur and the views of the Commission decision of 14 July 1983. Advocate General the Court (Third Chamber) decided to open the oral procedure without any preparatory inquiry. II — W r i t t e n p r o c e d u r e a n d c o n - c l u s i o n s of t h e p a r t i e s The parties were invited to give their views at the hearing on two questions On 6 October 1983 Mrs Moussis relating to the admissibility and sub- brought the present action against the stance of the case.

A — Admissibility The applicant considers that the action meets all the requirements of ad- missibility. The Commission claims that the action is inadmissible on the ground that it is out (a) The Commission's practice is of time. initially to consider any complaints of its officials in a non-contentious context. Relying on that practice, the applicant (a) By virtue of Article 91 (2) of the was perfectly within her rights to initiate Staff Regulations an action for the procedure by submitting a request — annulment is admissible only if the which Article 90 (1) of the Staff Regu- appointing authority has previously lations does not make subject to any received a complaint under Article 90 (2) time-limit — for an adjustment of her against the act adversely affecting the grade. complainant. The complaint must be lodged within three months from the date on which the contested decision was (b) The Commission did not raise the not notified to the complainant or objection of inadmissibility either in its the date on which he received such decision refusing the request or in its notification. In the present case, how- decision rejecting the complaint. It ever, the act adversely affecting the thereby ratified the procedure followed applicant is the appointing decision of 8 by the applicant and accepted the June 1982 which was notified to her on internal dispute procedure which more- 18 June 1982. She did not submit a over it advocated itself. complaint against that decision within the period prescribed in the Staff Regu- (c) Since grounds of inadmissibility can lations. be raised by the Court of its own motion, it must be stated that in the present case the requirements regarding (b) The applicant cannot rely on the the admissibility of an appeal by an fact that the Commission did not point official are satisfied under Articles 90 out that the complaint was out of time and 91 of the Staff Regulations. The either in its decision of 20 January 1983 applicant's interest in requesting a refusing the request or in its decision of revision of her grading cannot be 14 July 1983 rejecting the complaint. As contested. All the time-limits, in par- a matter of law, the Administration is ticular the three-month limit following not obliged under Article 90 of the Staff the date of notification of the rejection Regulations to reject a complaint as of the complaint provided for in Article inadmissible. From a practical point of 91 (3), were observed. The complaint view, it considers that, in order to procedure had been exhausted as a first maintain good relations with its staff, it step. The act adversely affecting the must give a reasoned reply to all applicant, against which she is now complaints, even those submitted out of appealing, is the Commission's decision time. of 8 June 1982, grading her in Grade A 5, Step 3, and upheld by the decision Since time-limits for bringing actions are of 14 July 1983 rejecting her complaint. a matter of public policy and are not at That point is not at issue.

The applicant points out that the word The Commission's decision of 6 June "recruitment" appearing in Chapter 1 of 1973, on the criteria applicable to grade Title III of the Staff Regulations, dealing and step classification upon recruitment, with the career of officials, has more must be read in that light. It applies than one meaning. mainly to the grading of officials when they are first recruited. However, it does not exclude the application of the criteria In some cases, it refers exclusively to the it lays down to internal candidates who initial appointment, that is to say, the have passed an open competition. The engagement of the official in the service final recital of the preamble to the of one of the institutions of the decision states that it is intended to Community. Thus, Articles 27 and 28 lay ensure that identical conditions of re- down the objective requirements to be cruitment and career prospects shall be met upon each appointment, while enjoyed by all officials in the same Articles 33 and 34 make it necessary to category or the same service. pass a medical examination and to serve a probationary period. Those require- ments do not have to be met during the The Commission is wrong to link rest of the official's career. Articles 31 and 32 of the Staff Regu- lations to Article 27 only so as to limit their application to the initial recruitment The scope of Articles 29, 30, 31 and 32 of an official when they should be read is quite different. Broadly, they lay down with reference to Article 29. They merely conditions for filling vacant posts and lay down the criteria for grading suc- criteria for grading the persons cessful candidates after an open appointed. competition in which, according to Article 3 of Annex III to the Staff Regu- lations, both external and internal candi- The Court has given a wide meaning to dates may participate. Both categories of the word recruitment which has been candidates must be treated in the same construed as meaning appointment to way, both as regards the competition any vacant post. On the basis of that procedure and as regards the grading of

successful candidates, depending on their The applicant may not rely on the final experience and specific training. recital of the preamble to the 1973 decision: it is the actual text of the decision which matters. Article 1, which defines the scope of the decision, refers to the appointment of "the selected Since Articles 29, 30, 31 and 32 must be candidate as a probationer", which considered as a whole, the fact that the clearly shows that the decision applies decision appointing the applicant is based only to the "first" recruitment and not to on Articles 29 and 30 means that Articles each appointment after which the official 31 and 32 and the 1973 decision must be is not required to serve a probationary applied in order to determine her new period again. grade and step. In view of her experience and specific training, the applicant was entitled to be classified in Grade A 4. The decision appointing the applicant mentions Article 29 only in order to refer to the filling of vacant posts and Article 30 only in order to refer to the competition procedure. The Commission considers that the applicant's appointment to Grade A 5 is not recruitment within the meaning of Article 27. There has been a legal relationship between the Commission Submission based on the infringement of and the applicant since 15 November the Commission decision of 6 June 1973 1971, initially under a contract and then under the Staff Regulations. A sub- sequent modification of that relationship, in particular an improvement in her The applicant considers that the Com- administrative status, cannot be regarded mission decision of 6 June 1973 was as recruitment. Articles 31 and 32 are applicable to her. In particular, her applicable only once in an official's experience ought to have been taken into career. account, which, by virtue of Articles 2 and 3 of the decision, would have enabled her to be appointed to Grade A 4. There is no doubt that she has the seniority and experience required by The distinction which the applicant those provisions. draws between two types of recruitment is arbitrary. The terms of Article 32 (1) are very clear: grading takes place only at recruitment and each official is The Commission's argument for refusing recruited only once. A distinction should to apply the decision to her, namely that be drawn, not between two kinds of at the time of her recruitment she was recruitment but between recruitment and not classified in Grade A 5, is irrelevant. appointment. An official is recruited only H o w could the Commission decision, once during his career whereas he may which came into force on 1 July 1973, be appointed several times, for example, apply to the applicant who was after promotion. An official is graded nominated as a probationary official on only at the time of his recruitment and 1 October 1972 and established on 1 not after each appointment. May 1973?

Promotion, which is governed by Article 45 (1) of the Staff Regulations, is to be by selection from among officials who The Court has always been careful to have completed a minimum period in distinguish between internal recruitment their grade, after consideration of the procedures and the external procedure of comparative merits of the officials holding an open competition. If it were eligible for promotion and of the reports accepted that both methods of re- on them. In the present case, however, cruitment involved the same grading the grading was made after an open criteria when an internal candidate competition. According to Article 29 (1), passes an open competition, this would promotion is an internal procedure cause deplorable confusion between the which has higher priority than the two procedures. holding of an open competition. The Commission cannot apply to an internal candidate who has passed an open competition the grading criteria appro- The Commission contends that the priate to that internal procedure which applicant's -appointment to Grade A 5 ought normally to have been considered following her success in an open com- already. According to the decisions of petitions constitutes promotion within the Court, a vacancy notice must not the meaning of Articles 45 and 46 of the exclude applications from officials Staff Regulations.

JUDGMENT OF 12. 7. 1984 — CASE 227/83

According to Article 45, promotion In the case of an open competition, all consists of the appointment of an official candidates, external or internal, must be to the next higher grade in the category treated in the same way, both in the to which he belongs. It is possible for an actual competition itself and in the official to be promoted after passing an matter of grading. In the present case, open competition which must constitute external candidates whose experience a merit within the meaning of the second was less than or the same as that of the sentence of the first subparagraph of applicant were graded in Grade A 4. Article 45 (1).

MOUSSIS v COMMISSION

The applicant considers that if there is some doubt as to whether Articles 45 In the Commission's view, the principle and 46 or the 1973 decision should be of non-discrimination must be applied as applied, the provision which is most between the applicant and the other favourable to her should be preferred.

JUDGMENT OF 12. 7. 1984 — CASE 227/83

Although the Commission has always rather than by the immediate submission applied Articles 45 and 46 of the Staff of a complaint so as to allow officials to Regulations in order to grade successful present their case in the braodest way internal candidates in an open com- possible. That information was con- petition, account must be taken of the firmed by the attitude of the Commission special features of the competition in itself which at no stage in the pro- question, prior to which the internal ceedings contended that the request or procedures were not exhausted and the complaint was inadmissible. to which only Greek nationals were admitted. In those circumstances, Articles 2 and 3 of the 1973 decision should have It should be pointed out that a new been applied without discrimination. In three-month period started to run from case of doubt, those provisions must the publication of the new decision of prevail over Article 45 and 46 of the the Commisison of 21 October 1983, Staff Regulations. annulling and replacing the decision of 6 June 1973.

The Commission points out that it has consistently applied Articles 45 and 46 of The request and the complaint com- the Staff Regulations to this type of case. plemented one another in view of the That practice has never been contested single purpose of the administrative before, in any event not before the procedure prior to the institution of legal Court. proceedings.

At the sitting on 17 May 1984 the applicant, represented by François As regards the substance of the case, the Motulsky of the Brussels Bar, and applicant maintained that she obtained the Commission, represented by D. the post to which she was appointed Gouloussis, presented oral argument and after taking part in an external com- replied to questions asked by the Court. petition. Even though she was already an official, she was, by analogy, in the same situation as the external candidates in The applicant pointed out that, after that competition, at least as far as her asking officials of the Commission's grading was concerned. Legal Department about the procedure to be followed, she was told that in disputes concerning grading it was The inanity of the criterion used by the established practice to allow the dispute Commission for grading its staff was procedure to be commenced by a request clear from the fact that, if the applicant

MOUSSIS v COMMISSION

2 It appears from the documents before the Court that from 1968 the applicant worked for the Commission as an expert and that she was engaged as a temporary servant in Grade A 7 by a decision of 15 November 1971. On 1 May 1973, after completing her probationary period .in Grade A 7, she was appointed as an established official in that grade. On 1 January 1975 she was promoted to Grade A 6. In 1981 she passed Open Competition N o C O M / A/337, held to recruit officials to posts in Career Bracket A 5/A 4, and, by a decision of 8 June 1982, she obtained an appointment as a Principal Administrator in Grade A 5.

JUDGMENT OF 12. 7. 1984 — CASE 227/83

3 The 1982 decision has not been contested by Mrs Moussis. However, on 11 January 1983, she submitted a request to the "Grading Committee", seeking reclassification in Grade A 4 pursuant to Article 3 of the Decision of 6 June 1973 entitled "Decision on the Criteria Applicable to Grade and Step Classification upon Recruitment".

4 By a memorandum dated 20 January 1983 the Head of the Careers Division of the Directorate General for Personnel and Administration informed the applicant that the decision of 6 June 1983 was "intended to govern the grading possibilities upon recruitment created by Articles 31 and 32 of the Staff Regulations" and drew her attention to the fact that, since she was an established official before her appointment, her classification in her new grade had been calculated on the basis of Article 46 of the Staff Regulations, dealing with promotions. It was also pointed out in the same memorandum that the applicant had immediately been appointed as an official in Grade A 5 without being required to serve a probationary period.

s The Commission objects in the first place to the admissibility of the application. It states that the act adversely affecting the applicant is the appointing decision of 8 June 1982 which was not contested within the pre- scribed period. The Commission's decision on a complaint submitted out of time does not cause time to start running again. The Commission's policy on this matter is to consider officials' complaints, even if submitted out of time, and to give a reasoned reply to them in order to maintain good relations with its staff. However, such a reply does not constitute a decision against which an appeal can be brought.

9 In answer to that objection of inadmissibility the applicant contends that she exercised the right granted to all officials by Article 90 (1) of the Staff Regu- lations which provides that "any person to whom the Staff Regulations apply may submit to the appointing authority a request that it take a decision relating to him". In her case the request was for the adjustment of the grade into which she had been placed by the appointing decision of 8 June 1982, adopted at the end of Open Competition No C O M / A / 3 3 7 . The applicant states that her action is directed against the Commission's rejection of that request, given that it confirmed the decision of 8 June 1982 classifying her in g Grade A 5.

io The applicant criticizes the Commission for having raised the issue of admissibility for the first time in its defence and for not having pointed, during the administrative procedure, to any procedural irregularity on her part.

14 Consequently, the application must be dismissed as inadmissible.

Costs

,5 Under the terms of Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs. However, under Article 70 of those rules, institutions are to bear their own costs in proceedings commenced by officials, without prejudice to the second subparagraph of Article 69 (3) regarding costs which the Court considers to have been unreasonably or vexatiously caused.

ie The Court considers that Article 70 should not be applied in the applicant's case. It is clear from the foregoing that, in lodging a request which was manifestly inadmissible having regard to the system of complaints and appeals governed by Articles 90 and 91 of the Staff Regulations, she caused litigation to ensue which was futile and constituted a burden for the Commission's administration.

i7 The applicant must therefore be ordered to pay the whole of the costs of these proceedings.

MOUSSIS v COMMISSION

Delivered in open court in L u x e m b o u r g on 12 July 1984.

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

OPINION OF MR ADVOCATE GENERAL LENZ DELIVERED ON 21 JUNE 1984 '

Mr President, with promotion, or by the rules on re- Members of the Court, cruitment laid down in Article 31 et seq. of those regulations. The question in this staff case is whether an official's appointment to the next grade of a higher career bracket after A — The facts of the case, the details of successful participation in an open which are to be found in the Report for competition is governed by Article 45 et the Hearing, may be summarized as seq. of the Staff Regulations, which deal follows :

1 — Translated from the German.