C-276/85
ECLI:EU:C:1986:474
- Súd
- Súdny dvor Európskej únie
- IČS
- 61985CC0276
- Zdroj
- eur-lex.europa.eu ↗
CLADAKIS v COMMISSION
OPINION OF MR ADVOCATE GENERAL DA CRUZ VILAÇA delivered on 10 December 1986*
Mr President, The applicant maintained that his 20 years' Members of the Court, specific professional experience in the field of accountancy was well in excess of what was necessary under that decision in order to be classified in Grade B 3 (nine years) — or indeed in Grade B 1 (14 years), 1. The applicant, Mr. Georges Cladakis, had that grade been within the terms of successfully took part in Competition No reference of the competition — and hence COM/B/362 for the creation of a reserve that he should have been classified in Grade list for senior administrative assistants of B 2 from the date of his appointment. Greek nationality (Grades B 3/B 2). By a decision dated 9 March 1983, he was appointed a probationary official of the Commission of the European Communities in Grade B 3, Step 3. The request was rejected by the Director of Personnel by a memorandum dated 30 October 1984, subsequently confirmed by a memorandum dated 29 November 1984, on the ground that the applicant had exceeded The competition was held pursuant to the three-month time-limit for the Council Regulation No 662/82 of 22 March submission of requests for grading reviews 1982, which approved a number of special laid down by the Director-General for and temporary measures applicable to the Personnel and Administration in a notice recruitment of officials of the European dated 21 October 1983, and also that the Communities following the accession of applicant had been classified in the highest Greece. grade provided for by the classification criteria.
On 18 November 1983, the applicant was established as an official in the same post. The notice of 21 October 1983 referred to above gave Commission officials an oppor tunity to submit a request for regrading within three months if they considered that their classification was not in accordance On 12 July 1984, hearing, as he states, that with the criteria laid down in the Decision one of his Greek colleagues was going to be on the Criteria Applicable to Grade and regraded, the applicant requested the Step Classification upon Recruitment of 6 Chairman of the Joint Grading Committee June 1973. That decision was published in to regrade him pursuant to the Decision on March 1981, and the notice of 21 October the Criteria Applicable to Grade and Step 1983, as well as setting a fresh time-limit for Classification upon Recruitment. requests for regrading, stated that a new
* Translated from the Portuguese.
OPINION OF MR VILAÇA —CASE 276/85
decision superseding the 1973 decision had months' from the date of lodging a request been adopted with effect from 1 September for regrading. 1983.
If that notice was intended, as the On 15 January 1985, the applicant lodged a Commission stated at the hearing, to enable complaint pursuant to Article 90 (2) of the patent errors in grading to be corrected, it Staff Regulations against the refusal to must, if it was to have any meaning, have apply to him the 1973 decision on classifi given rise to fresh time-limits for bringing cation criteria, requesting a review of his an action; if that were not the case, any case in the light of that decision and of errors would have become part of the Regulation No 662/82. definitive decision and therefore been incapable of correction. The applicant's complaint was rejected by an express decision dated 4 June 1985, which was notified to him the following It is, however, at least doubtful whether a day. notice from the Director-General for Personnel and Administration can have had the effect of renewing the mandatory time- On 9 September 1985 the applicant lodged limits laid down by a Council regulation (in the application giving rise to these this case the Staff Regulations of Officials), proceedings, in which he asks the Court to and hence it can at most be interpreted as annul the part of the Commission decision granting interested parties the opportunity of 9 March 1983 classifying him in Grade to have their cases reviewed, on a discre B 3, Step 3, or, alternatively, to annul the tionary basis, by the administration. decisions of 30 October and 29 November 1984 and 4 June 1985 refusing his requests. The legality of such an offer to amend a 2. I shall now analyse the legal issues raised classification decision which has become by this action. definitive as a result of the expiry of the periods prescribed for bringing an action is, however, highly questionable. In its defence, the Commission contends that the application is inadmissible as being out of time because the complaint through At all events, it is clear that an answer to official channels was not lodged within the that question is unnecessary for the prescribed period. purposes of this action. Even if it is main tained that, as a result of the notice, fresh Since that complaint was directed against time-limits became available for bringing an the decision appointing the applicant, which action, the applicant failed to act within the was notified to him on 18 June 1983, it period of three months allowed by that should have been lodged — as required notice, in so far as his request for review of by Article 90 (2) of the Staff Regu his grading was not submitted until 12 July lations— within three months thereafter, 1984. which did not happen.
An alternative submission made by the It is common ground that, as we have seen, applicant in support of the admissibility of the notice from the Director-General for his action, namely that the updated version Personnel and Administration of 21 October of the Staff Regulations had not been 1983 granted a 'final period of three translated into Greek at the time of
CLADAKIS v COMMISSION
Greece's accession, does not seem to me to going to be regraded constituted the have any relevance. emergence of a new fact of that kind.
Indeed there seem to be no grounds what-· It should immediately be noted that the soever for maintaining that the absence of applicant seeks to prove the admissibility of a Greek translation of the current version his request for regrading — and hence the of the Staff Regulations constituted an admissibility of the subsequent complaint — insuperable difficulty for the applicant and on the basis of a 'fact' (the possibility that an infringement of the Commission's duty Mr Batras might be regraded) which was of due diligence in so far as he was unaware merely prospective and uncertain at the of the time-limit laid down in Article 90 and time. Mr Batras was not actually regraded the Commission nevertheless sought to rely until 19 September 1984, that is to say after
on it. The post in question required a satis- the applicant lodged his request for factory knowledge of a second Community regrading dated 12 July 1984. Thus it is language (paragraph III. B.3 of Notice of somewhat strange that the applicant now Competition No COM/B/362). In view of claims that an instance of discrimination the fact that Article 90 is absolutely clear which had not actually taken place at the regarding the periods prescribed for time of his request for regrading was a bringing an action, a satisfactory knowledge measure adversely affecting him. was certainly sufficient to enable that provision of the Staff Regulations to be understood in one of the languages in which When it was submitted, therefore, that it was available. request was based not on existing discrimi nation but on possible future discrimination; not, indeed, on any fact or event, but on a
mere presumption or suspicion stemming Quite apan from that, if the applicant had ' from information whose source has not any doubts as to his rights, there was been revealed. It follows that the applicant's nothing to prevent him from approaching request may be regarded as out of time on some other person, not necessarily a lawyer, the ground that it was submitted before the who had a better knowledge of one of the occurrence of the event which, being new, languages in which the Staff Regulations might otherwise establish its admissibility.
were available and could give him proper guidance as to the exact effect of the time- limits laid down in Article 90. Nevertheless, should it be held that the subsequent regrading of Mr Batras had the effect of validating the applicant's request, it However, the applicant relies on a further must be ascertained whether that fact argument in favour of the admissibility of constitutes a substantial new fact capable of his action. In his contention the request for establishing the admissibility of the request. regrading was lodged within a period of three months after the emergence of a new fact which, according to a judgment of the In other words, it is necessary to consider Court, ' justifies the submission of a request whether Mr Batras' reclassification was for a review of the decision. The applicant carried out according to the same principles considers that his being informed that a or criteria as those governing the applicant's colleague — Mr Georgios Batras — was original classification, because only if those principles or criteria are different will there 1 — Judgment of 15 May 1985 Case 127/84 Esly v Commission be a substantial new fact, consisting in the [1985] ECR 1437. administration's refusal to apply to the
OPINION OF MR VILAÇA —CASE 276/85
applicant the same rules as those which it The regulations cited all contain similar applied to other officials in the same provisions and the differences in wording position. 2 between them are largely accounted for by differences in the provisions of the Staff Regulations in force when they were To answer the question of the admissibility adopted. of the action, therefore, it will be necessary to examine the substance of the case, in so far as it must be determined whether only Mr Batras, and not the applicant, was The purpose of Article 1 (1) of Regulation classified in accordance with the provisions No 662/82 is simply to derogate from of Council Regulation No 662/82 of 22 certain provisions of the Staff Regulations, March 1982. According to the applicant, to which specific reference is made, in order Article 1 (2) of that regulation renders inap to enable vacant posts to be filled only by plicable Article 3 of the decision of 6 June nationals of the new Member State, Greece. 1973, which provides that the higher grade The first subparagraph of Article 1 (2) in career bracket B 3/B 2 is reserved for provides merely that certain appointments promotions within that career bracket. (including appointments to Grades B 2 and Therefore, the applicant argues, Articles 3 B 3) may only be made by means of a and 4 of that decision required that he competition based on qualifications, thus should be appointed in Grade B 2 in view of ruling out the possibility of filling those his previous experience. posts by holding competitions based on tests as provided for by Article 29 (1) of the Staff Regulations and Annex III thereto. It is clear, in my view, that the applicant's argument is incorrect.
Regulation No 662/82 does not, however, In the first place, it is obvious that Regu contain any classification criteria requiring a lation No 662/82 does not make it candidate to be appointed in one or other of compulsory to appoint any successful the possible grades, and in particular in candidate to a post in Grade B 2. Grade B 2 as opposed to Grade B 3. In other words, Regulation No 662/82 does It should be remembered that Regulation not of itself suffice to determine the classi- No 662/82 creates a legislative exception in ficaion of a candidate, nor does it even refer the same way as those adopted following to the matter. the accession of other new Member States in order to provide in an equitable manner for the appointment of their nationals to the That regulation does not therefore affect various types of post in the Community the internal directives, such as the decision administration. of 6 June 1973, adopted by the Community institutions in order to define general This happened at the time of the first criteria applicable to appointments within enlargement (Regulation No 2530/72 of the the various grades and classification in step. Council of 4 December 1972) and, more recently, on the accession of Spain and Portugal (Council Regulation No 3517/85 At all events, the applicant's interpretation, of 12 December 1985). which would have the effect of disregarding those provisions of the 1973 decision which 2 — See Esly v Commission, cited above, at paragraphs 11 and 12 of the Decision. are disadvantageous to him and retaining
CLADAKIS v COMMISSION
only the favourable ones, is wholly simple analysis of Notice of Competition untenable. His argument is that the part of No COM/B/362 that the competition was Article 3 restricting the higher grade in held 'in accordance with Regulation No Career Bracket B 3/B 2 to promotions 662/82'. That is why recruitment was within the career bracket is not applicable to limited to senior administrative assistants of him but that he is nevertheless entitled to Greek nationality and why the competition benefit from the classification criteria based was based on qualifications but not tests on professional experience contained in (except that the notice allowed the selection Article 2 and in the first paragraph of the board to carry out an additional exam selfsame Article 3. ination of documents evidencing academic and other qualifications and to verify professional experience by means of an interview). As is consistent with the internal directives adopted by the Commission, Notice of Competition No COM/B/362 for the The reference to Competition No creation of a reserve list for senior adminis COM/B/362 contained in both the decision trative assistants of Greek nationality within appointing the applicant and the decision the career bracket comprising Grades 3 and regrading Mr Batras therefore incorporates 2 of Category B does not provide for the an implicit reference to Regulation No possibility of appointments in Grade B 2 662/82, under which that competition was since paragraph II, which deals with re held. muneration, states in the clearest possible manner that the basic salary will lie between the salary for Grade B 3, Step 1, and that What that regulation, taken by itself, did for Grade B 3, Step 3. not do was to enable candidates to be classified on the basis of their professional experience. It has been established that the decision regrading Mr Batras refers expressly both to The Commission has repeatedly stated that the list of suitable candidates drawn up by the applicant's appointment and Mr Batras' the selection board in Competition No regrading were based on the same measure, COM/B/362 and to Regulation No namely the decision of 6 June 1973 on 662/82, whilst the decision appointing the classification criteria. applicant refers only to the list of suitable candidates and to Notice COM/1720/82. In the light of all the foregoing consider ations, the applicant's arguments do not As the Commission explains in its defence, succeed in refuting that assertion. that is due to the fact that that notice was published before the post filled by the applicant became available, which did not Moreover, if a literal approach were happen in the case of Mr Batras' adopted, taking account only of the express appointment. wording of the appointment or regrading decisions — the approach which the applicant appears to advocate — either he would not have been appointed under any Notice No COM/1720/82 is not included general criteria or else he would have been among the documents before the Court. appointed solely under the terms of the However, it may be concluded from a notice of competition, which provides only
OPINION OF MR VILAÇA —CASE 276/85
for a variation between Steps 1 and 3 in once again, therefore, there are no grounds Grade B 3. Neither of those documents for alleging discrimination and it is clear refers to the decision of 6 June 1973. that the 1973 decision was not applied only to the applicant and Mr Batras.
That decision adopted internal directives intended to ensure that all officials recruited On the other hand, that does not lend were treated equally without reference to support to the applicant's submission based nationality, and the Commission has on the fact that the Commission sought, and properly applied Article 3 of that decision obtained, from the Council authority to by reserving Grade B 2 for promotions create seven new permanent posts in Grade within the career bracket. B 2 in 1981 and five in 1982.
Both officials were accordingly classified in As the Commission explains in its rejoinder, Grade B 3 and the only correction made the purpose of creating those posts was not regarding Mr Batras' grading related to to enable Greek nationals to be recruited in additional seniority: he was moved from Grade B 2 but instead to avoid a distortion Step 1, at which he had been erroneously in its organization chart by enabling appointed, to Step 3. In the result Mr Batras officials from the new Member State to was classified in the same category, grade follow a normal career structure. and step as the applicant, namely Grade B 3, Step 3, which was the highest grading possible according to the Commission's That being the case, it does not appear that classification criteria. That fact alone would the applicant has been subject to any suffice to dispose of the allegation of discrimination, and therefore Mr Batras' discrimination made by the applicant — reclassification does not constitute a new whose principal concern is in fact to be fact capable of causing time to start running classified in Grade B 2. In short, the afresh for the purpose of lodging a Commission has not granted to any one else complaint and for bringing an action within what it has refused the applicant. the prescribed periods.
In his reply, the applicant refers to Regu Since the present application is therefore lation No 2530/72, which was adopted at inadmissible as a result of the complaint's the time of the first enlargement, and to being made out of time it is also competitions organized under it by the unnecessary to consider whether the action Commission. They are irrelevant; suffice it was brought within the time-limit laid down to note that both Regulation No 2530/72 in Article 91 (3) of the Staff Regulations. and the notices of competition to which the applicant refers ante-dated the decision of 6 June 1973. None the less, I would say that in my view the application would be inadmissible on the basis of that provision as well since it was Besides, according to the statements made lodged at the Court outside the time-limit by the Commission at the hearing, no Greek computed according to the method adopted official has been recruited in the grade to by Mr Advocate General Mancini in his which the applicant claims to be entitled; Opinion of 18 November 1986 in Case
CLADAKIS v COMMISSION
152/85 Misset v Council with which I I should just like to take this opportunity to entirely agree. add to the reasoning put forward by my learned friend the image of a calendar fitted with a cursor: if the dies a quo is included in The rejection of the applicant's complaint the computation of the time-limit, the was notified to him on 5 June 1985 and the period of one month from the notification application was not lodged at the Court of a decision on 1 November expires at Registry until 9 September. Thus the midnight on the 30th of that month; if the applicant exceeded the period of three dies a quo is not counted, the cursor is months plus two days on account of moved by one day so that the same distance to which he was entitled, which one-month period expires at midnight on 1 expired, according to that method of December, that is, the day of the following computation, on Saturday 7 September month with the same number as that on 1985. which the notification took place.
3. In conclusion, in the light of what I have said, I propose that the Court should dismiss the application as inadmissible and order the parties to bear their own costs in accordance with Article 70 of the Rules of Procedure.