C-266/83

JUDGMENT OF 15. 1. 1985 — CASE 266/83

JUDGMENT OF THE COURT (First Chamber) 15 January 1985 *

In Case 266/83

Euridiki Samara, an official of the Commission of the European Communities, residing in Strassen, represented by Victor Biel, of the Luxembourg Bar, with an address for service in Luxembourg at the latter's Chambers, 18A rue des Glacis, applicant,

v

Commission of the European Communities, represented by its Legal Adviser, Dimitrios Gouloussis, acting as Agent, with an address for service in Luxembourg at the office of Manfred Beschel, a member of its Legal Department, Jean Monnet Building, Kirchberg, defendant,

SAMARA / COMMISSION

JUDGMENT

Facts and Issues

The facts of the case, the course of the application of Article 46 of the Staff Regu­ procedure and the conclusions, submissions lations in view of the fact that she had been and arguments of the parties may be an established official in Grade C 5 prior to summarized as follows: her success in the competition.

On 26 April 1983 Miss Samara submitted to the Commission a complaint pursuant to 1. Facts and procedure Article 90 (2) of the Staff Regulations. That complaint was rejected by a decision of 5 Euridiki Samara, who is a Greek national August 1983 which was communicated to and who was a successful candidate in an her on 13 September following. open competition held by the Council of the European Communities, was appointed by a decision of 3 December 1981 a probationary By an application registered at the Court on official in Grade C 5, Step 3. By a decision 28 November 1983 the applicant brought of 22 December 1981 she was transferred to this action against the decision of 5 August the Commission in Luxembourg, still as a 1983 rejecting her complaint. probationary official in Grade C 5, Step 3. She was established in her post as from 1 June 1982 and towards the end of that year Upon hearing the report of the Judge- she obtained an appointment in Grade C 3, Rapporteur and the views of the Advocate Step 1, following an open competition in General, the Court (First Chamber) decided which she was placed first. to open the oral procedure without any preparatory inquiry.

(3) Refer the case back to the appointing who, following an open competition, are authority so that it may comply with the appointed to posts which are two or more judgment to be given; grades higher. In that regard, the applicant then refers to the opinion of Mr Advocate (4) Order the Commission to pay the costs. General Reischl in Case 176/83 (Van Belle v Council, [1974] ECR 1361) in which he The defendant claims that the Court should: attributed a broad meaning to the concept of 'recruitment' : (1) Dismiss the action as unfounded; ' ... the concept "recruitment" must in fact (2) Order the applicant to pay the costs. not be understood in the narrow sense of appointment to the service, that is to say in 3. Submissions and arguments of the the sense of external appointment. Rather, it parties is a general concept which, understood correctly, embraces all possible forms of appointment to posts.' The applicant considers that in view of her experience she. ought to have been classified on her appointment in 1982 in Grade C 3, In the applicant's view, the uncertainty and Step 3, by virtue of the second paragraph of inconvenience involved in an open Article 32 of the Staff Regulations. Against competition and the fact that a successful the contested decision she advances four candidate in such a competition is chosen by submissions: (i) infringement of Articles 32, a selection board in accordance with the 45 and 46 of the Staff Regulations, (ii) rules of Annex III to the Staff Regulations breach of the principle of equal treatment, constitute additional reasons for considering (iii) breach of the principle of good that she cannot be treated in the same way administration, and (iv) infringement of as an official who has been promoted. Article 5 (3) of the Staff Regulations.

SAMARA / COMMISSION

competition. In the first place, those the provisions in question, in particular provisions do not exclude promotion by Article 46, which applies to just such a case decision of the appointing authority as that of the applicant, who following an following the success of an official in an open competition, was appointed not to the open competition, which should in principle next higher grade but to a higher grade. constitute a factor in considering his merits pursuant to the second sentence of the first subparagraph of Article 45 (1). Secondly, those provisions, and in particular the first The submission based on breach of the paragraph of Article 45, refer expressly to principle of equal treatment the possibility that a promotion may lead to appointment to a higher grade.

JUDGMENT OF 15. 1. 1985 — CASE 266/83

The submission based on breach of the identical conditions of recruitment and principle ofgood administration career development must apply to officials belonging to the same category or the same service. That is a fundamental provision According to the applicant, there is in this which cannot be overridden by another case a breach of the principle of good provision of the Staff Regulations, such as administration inasmuch as the Commission Article 46, which, if applied to the did not take into consideration all the applicant's case, would not guarantee her factors capable of leading to a reasonable identical career conditions to those of the decision. In order to effect a fair classi­ other two candidates who took part in the fication the Commission ought to have same competition. taken into account the experience of all the candidates concerned, including the applicant. According to the Commission, a distinction between provisions which are fundamental The Commission concedes that the principle and those which are not does not contribute advanced by the applicant certainly requires to a solution of the problem raised in these that all the factors on the basis of which its proceedings. Rather, the question is whether administration may reach reasonable the applicant's classification was in fact decisions must be taken into account but consistent with the principle of equal adds that they must be taken into account in treatment. The reply to that question is accordance with the rules of law applicable affirmative, as the Commission has already in the particular case. In the applicant's case explained in its observations regarding the those rules, in particular Article 46 of the applicant's second submission. Staff Regulations, make it impossible to take her previous experience into con­ sideration for the purposes of her classi­ fication. 4. Oral procedure

3 On 26 January 1983 the applicant submitted a request that her classification in step should be reconsidered and all her relevant experience taken into account. That request was rejected by a decision of 16 February 1983. On 26 April 1983 she lodged a complaint against that rejection, which was in turn rejected by the Commission.

4 The dispute concerns the applicant's classification in step. The applicant takes the view that in the light of her relevant experience prior to her entry into service, she ought to have been classified in a higher step in Grade C 3, by virtue of the second paragraph of Article 32 of the Staff Regulations, the provision which governs the classification in step of an official upon recruitment.

5 In support of that claim, the applicant maintains that she was placed first in Open Competition No COM / C / 365 and that she had 17 years relevant experience prior to her entry into the service of the Communities, whilst her sister, Kalliopi Samara, who was placed second in the same competition and whose professional experience was much less, was appointed to Step 2 of Grade C 3 and the candidate who was placed third even obtained Step 3 of that grade.

6 The Commission does not dispute those facts. However, it considers that the appointment of the applicant to Grade C 3 did not constitute, as she claims, a 'recruitment' within the meaning of Article 27 of the Staff Regulations, since, when she took part in Competition No COM / C / 365 , she already had a legal relationship with the Commission governed by the Staff Regulations. The existence

9 The Commission acknowledges that Articles 45 and 46 of the Staff Regulations do not apply directly to the applicant's case, since she was appointed following an open competition and not as a result of the promotion procedure provided for in Article 45. The provisions in question are, however, based on the principle that, once a person has been admitted to the body of officials of the Communities following recruitment, his position is governed by the provisions relating to the career development of officials. In particular, experience prior to entry into service is taken into consideration at the time of an official's initial appointment. It is no

SAMARA / COMMISSION

longer relevant in any subsequent appointment. For those reasons, in the Commission's view, the provisions concerning promotion must be applied in a case such as that of the applicant, who was already an official and who was appointed to a higher grade following her success in a competition.

10 The applicant contests that argument on two grounds. She submits in the first place that open competitions are the normal recruitment procedure provided for in the Staff Regulations, as is clear from Article 29 in particular, and that, accordingly, the appointment of candidates who are successful in such competitions must be regarded as recruitment. She then maintains that even if it were otherwise, under Article 5 of the Staff Regulations and in accordance with the general principle of equality, the Commission would be compelled to treat all the participants in an open competition equally.

1 4 It is in that ambiguous context that the Court must appraise the Commission's refusal to take the applicant's previous experience and the fact that she was placed first in the competition into account when it appointed her to her new post on the ground that it was not possible to award seniority in step under Article 46.

15 Consideration of the facts of the case shows that the Commission should have applied the criteria defined by Article 32, since the applicant's appointment to her new post was not part of the normal development of her career. In the first place, the differences between the post of typist which she held as an official in Grade C 5 and the post of secretary/shorthand typist to which she was appointed were such that she was entitled to draw attention to her previous experience in the latter field. Secondly, her participation in an open competition organized shortly after her entry into the service placed her in direct competition with outside candidates rather than with colleagues who were eligible for promotion. In such a case, the principle that the participants in an open competition deserve equal treatment must take precedence.

16 It follows that the Commission could not rely on Article 46 of the Staff Regu­ lations to maintain the applicant's classification in Grade 3, Step 1. The contested decision must therefore be annulled.

17 The Commission must reconsider the applicant's position and apply the criteria laid down in Article 32 of the Staff Regulations.

Costs

18 Under the terms of Article 69 (2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the Commission has failed in its submissions, it must be ordered to pay the costs.

Delivered in open court in Luxembourg on 15 January 1985.

P. Heim G. Bosco Registrar President of the First Chamber