C-314/86
ECLI:EU:C:1988:271
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OPINION OF MR DARMON — JOINED CASES 314 AND 315/86
OPINION OF MR ADVOCATE GENERAL DARMON delivered on 31 May 1988 *
Mr President, 4. In its judgment the Court stated that Members of the Court,
'the decisions appointing the applicants as probationary officials .. . must be annulled 1. The actions brought by Mrs Feyaerts and in so far as they classify the applicants in Mr de Szy-Tarisse relate essentially to the grades or steps inferior to those which they Commission's alleged failure to comply with held in the service of the EAC'. 2 the judgment of 11 July 1985 ' by which the Court annulled various decisions appointing former special contract staff of the European Association for Cooperation (the 5. It is common ground that the 'EAC' ), including the applicants, in so far as Commission did not classify the applicants those decisions determined their grade and in grades or steps below those which they step. held in the service of the EAC. However, must it be considered that the Commission failed to comply with the terms of the Court's judgment in so far as it reclassified the applicants with effect from the date of 2. By decision of 3 February 1986 the their appointment as probationary officials? Commission reclassified the applicants with effect from the date of their appointment as probationary officials (1 July 1982) in Grade A 5, Step 7, in the case of Mr de 6. The judgment of 11 July 1985 gives no Szy-Tarisse and Grade C 3, Step 7, in the indication as to the date from which the case of Mrs Feyaerts. The additional reclassification should take effect. The remuneration ensuing from that decision Court stated that was paid to the parties with their salaries for April 1986.
'when the Commission appointed the EAC's special contract staff it was recruiting staff from outside the institutions. The fact that 3. In their first submission the applicants the relevant provisions of the Staff Regu challenge the date fixed by the Commission lations were applied involved no irregu 3 for their reclassification. They consider that larity'. in order to comply properly with the Court's judgment the Commission should have taken the date on which they were engaged as members of the temporary staff. It must be pointed out in that connection that the Commission applied Article 8 of 4 Translated from the French. 1 — Judgment of 11 July 1985 in Joined Cases 66 to 68 and 136 2 — Hattet, cited above, paragraph 25, my emphasis. to 140/83 Hattet and Others v Commission [1985] ECR 3 — Hattet, cited above, paragraph 23. 2459.
DE SZY-TARISSE v COMMISSION
Decision 61 / IX / 81 to the applicants in so 10. The Court stated in its judgment in far as when classifying them it gave them Délhez v Commission that: seniority corresponding to the time which they had served as members of the temporary staff. 'an obligation to pay default interest can arise only where the amount of the principal sum owed is certain or can at least be ascer tained on the basis of established objective factors'. 5 7. Lastly, I agree with the Commission's point that the applicants did not bring actions in time against their engagement as members of the temporary staff. Whereas However, the principal sum owed cannot be the applicants maintain that it was not regarded as being ascertainable before the necessary to challenge each of the individual adoption of the decision of 6 February acts since it was sufficient to 'challenge the 1986. Since by its judgment of 11 July 1985 final act', the applicants' engagement as the Court instructed the Commission to members of the temporary staff and their reclassify the applicants, only that reclassifi appointment as officials constitute two cation could establish the objective factors separate acts, as the Court pointed out in its from which the relevant sum owed could be judgment of 11 July 1985. 4 Consequently, determined. the validity of the applicants' engagement as members of the temporary staff can no longer be challenged. 11. There remains the hypothetical situation referred to in the judgment in Delhez, in which the Court stated that
8. I therefore propose that the Court should dismiss the applicants' claim that their 'A . .. question which could arise is whether classification should take effect as from an obligation to pay default interest should their engagement as members of the be recognized where there was an unjus temporary staff. tified delay in actually determining the 6 amount of the remuneration owed'.
9. The applicants ask the Court to order the 12. In the present case, the Commission Commission to pay default interest both on adopted the reclassification decision the additional remuneration paid as a result approximately six months after the Court's of the reclassification carried out pursuant judgment annulled the initial decision to the judgment of 11 July 1985 and on any classifying the applicants. Admittedly, that additional remuneration which may result time-lag does not indicate a great deal of from a fresh reclassification made as a result diligence; however, having regard to the of the Court's judgment in this case. In view need for the administration to find a of the recommendation which I have just solution satisfying the requirements of the made, only the first of those points needs to Court's judgment, and in view moreover of be considered. 5 — Judgment of 30 September 1986 in Case 264/83 Delhez and Others vCommission [1986] ECR 2749, paragraph 20. 4 — Hattet, cited above, paragraph 22. 6 — Paragraph 23.
OPINION OF MR DARMON — JOINED CASES 314 AND 315/86
the complex situation involved, it cannot be being challenged, that in fact he was regarded as excessive. including in his claimed experience a period corresponding to Grade B, which could not be taken into account for a Grade A post. As a result, the claimed arbitrariness as regards his classification has not been made out and it does not appear that the limits of 13. Thirdly, the applicants claim that the appointing authority's discretion, as according to Articles 5, 31 and 32 of the mentioned above, have been exceeded. Staff Regulations their grades and steps should be higher than the grades and steps which they had at the time when they were dismissed by the EAC. 16. For her part, Mrs Feyaerts considers that the Commission should have granted her a C 2 grading in view of the time for which she had carried out her duties and her excellent reports. The Commission 14. Before considering that complaint the disputes, in any event, that Article 3 of applicable principles must first be called to Decision 61 / IX / 81 , which provides that no mind. It appears from a line of cases appointment may be made in career bracket 7 C 3/C 2 — a provision which the Court decided by the Court , to which moreover reference is made in the judgment of 11 July held to be lawful in its judgment in the De 1985, that the appointing authority has a Santis case 8— could be applied to her. wide discretion in assessing the previous experience of a person appointed as an official both as regards the nature and the 17. However, the applicant contests that length of that experience and as regards the view on the ground that in so far as she was extent to which it meets the requirements of classified in Grade C 3, contrary to the the post to be filled. wording of that provision, the adminis tration could have classified her in Grade C 2.
15. Mr de Szy-Tarisse maintains that he 18. It must be pointed out that, according should be classified in Grade A 4, Step 4. to the case-law of the Court, Article 3 of He points out that several former special Decision 61 / IX / 81 , which provides for the contract staff of the EAC having the same possibility of appointing an official to the or less experience than he were reclassified upper grade in the starting or intermediate in Grade A 4. The files of the persons career bracket by way of derogation, must concerned were produced to the Court by be construed as the Commission, according to which Mr de Szy-Tarisse had 15 years' experience, including eight with the EAC, which is significantly less than that of his colleagues. 'an exception to the general classification Mr de Szy-Tarisse contested that claim, on rules, and as a decision which in any event the ground that he had some 19 years' lies within the discretionary power of the relevant experience. However, at the administration'. 9 hearing, the Commission stated, without 8 Judgment of 6 June 1985 in Case 146/84 De Santis v Court ofAuditors [mi] ECR 1723. 7 Judgment of 1 December 1983 in Case 190/82 Blomefield v Commission [1983] ECR 3981 ; judgment of 12 July 1984 in 9 — Judgment of 21 January 1987 in Case 219/84 Powell v Case 17/83 Angelidis vCommission [1984] ECR 2907. Commission [1987] ECR 339, paragraph 8.
DE SZY-TARISSE v COMMISSION
19. Consequently, the Commission was 20. There remain the claims for compen entitled, without exceeding its discretionary sation for material and non-material power, to consider that neither Mrs damage. Since they depend on the claim for Feyaerts' qualifications nor the requirements reclassification, which I propose should be of the service were such as to justify her dismissed, they do not need to be being classified in Grade C 2. considered.
21 . I therefore propose that the Court should
(i) dismiss the applicants' claims ;
(ii) order the parties to bear their own costs.