C-37/87
ECLI:EU:C:1988:143
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OPINION OF MR MANCINI — CASE 37/87
O P I N I O N O F M R ADVOCATE GENERAL MANCINI delivered on 9 March 1988 *
Mr President, 1985, Mr Sperber was placed in the next Members of the Court, step in his grade.
A post subsequently became vacant in the 1. O n 2 February 1987, M r Eckhard German translation division and the Court Sperber, an official of the Court of Justice appointed Mr Sperber as a probationary of the European Communities, brought an official with effect from 1 December 1985, action seeking the annulment of: (a) the classifying him first in Grade LA 6 (20 and decision of 5 March 1986 by which the 21 November 1985) and then, within that Court, as appointing authority, classified grade, in step 3 (5 March 1986). The him in Grade LA 6, step 3; and (b) the applicant complained about that classifi- decision of 4 November 1986 whereby the cation, which in his opinion represented a committee of the Court responsible for such demotion; but the complaint which he matters rejected his complaint concerning submitted to the appointing authority under the decision appointing him. Article 90 (2) of the Staff Regulations was rejected on 4 November 1986.
The issue in this case is the interpretation of 3. In support of his application, Mr Sperber Article 32 of the Staff Regulations of makes five submissions: (a) misapplication Officials. The first paragraph states that 'an of Article 32 of the Staff Regulations; official shall be recruited at the first step in (b) breach of the principle of non- his grade' and the second adds that 'the discrimination; (c) infringement of Article 5 appointing authority may, taking account of (3) of the Staff Regulations; (d) disregard of the training and special experience . . . of the the principles of good management, sound person concerned, allow additional seniority administration and fairness; and in his grade; this shall not exceed 72 months (e) infringement of vested rights. in grades A 1 to A 4, LA 3 and LA 4 and 48 months in other grades'. The first and last submissions can be considered together because the applicant relies upon the same arguments for both. In 2. O n 17 June 1983 Mr Sperber was placed breach — he claims — of the rule ne bis in on the reserve list of successful candidates in idem, Article 32 was applied to him on two Open Competition CJ 15/82 for German- occasions: when he was engaged as a speaking translators (Career bracket member of the temporary staff and again LA 6—LA 7); in the absence of permanent when he was appointed an official. The posts, he was then offered a contraa as a unlawful effects of the second application of member of the temporary staff. H e accepted that article are clear: it meant that the the offer and was employed as from 3 appointing authority, in evaluating his October 1983 as a lawyer-linguist in Grade professional experience, did not take LA 6, step 3. Two years later, on 1 October account of his employment at the Court and
* Translated from the Italian.
SPERBER v COURT OF JUSTICE
for the same reason demoted him, thus give a successful candidate any right to be infringing his vested rights. appointed a probationary official. The reasons for this are clear. According to Article 4 of the Staff Regulations, no Mr Sperber considers that, instead, the appointment is to be made 'for any purpose appointing authority should have other than that of filling a vacant post'; if recognized that once he had passed the there is a shortage of posts, it is impossible competition he was eligible to take up ,a to make an appointment and the conclusion permanent post immediately and should of a temporary staff contract — which is not have deduced that his employment compulsory in any case — becomes the only relationship did not commence on his means available to the successful candidate appointment as an official but already of entering the service of the Communities. existed, having come into being when the It is therefore absurd to describe that contract appointing him a member of the outcome as a breach of the commitment temporary staff was concluded. Far from given by the Court in 1981; that making changes to the situation brought commitment too is inescapably limited by about by that contract, the decision the terms of Article 4. appointing him, therefore, merely 'regu- larized' the situation. The fact that that reconstruction reflects reality is, moreover, On the other hand, everyone knows that in borne out by a number of factors: for the Community civil service the rules example, Mr Sperber was not required to applicable to officials are clearly different undergo a fresh medical examination and from those applicable to other servants, was assigned the tasks which he had already whether they be temporary, auxiliary or carried out as a member of the temporary local staff.
Passage from the second staff. category to the first therefore entails the creation of a new relationship and conse- quently prevents contracts for other staff — except as regards pension But that is not all. By offering him a rights — from giving rise to any rights contract — the applicant observes — the which an employee who becomes an official Court failed to fulfil a commitment which it may rely upon as 'vested rights'. For the had given on 17 June 1981 that it would same reasons, Mr Sperber's reference to the give permanent posts immediately to trans- rule ne bis in idem must be rejected: the lators who had passed a competition. That applicant was indeed classified on two commitment supports his argument in any occasions, but — and this is the important event, and the judgments referred to in the point — for different purposes and with decisions rejecting his complaint do not respect to two statuses between which there undermine his case (Case 17/83 Angelidis v was no continuity. Commission [1984] ECR 2907; Case 146/84 De Santis v Court of Auditors [1985] ECR 1723 and Case 134/84 Williams v Court of Furthermore, the difference which M r Auditors [1985] ECR 2225). In those cases, Sperber perceives between his case in fact, the temporary staff contract was (employment as a member of the temporary entered into before the persons concerned staff following a competition) and those had passed a competition. with which the Angelidis and De Santis judgments were concerned (competition passed after recruitment) is real, but is
4. The two submissions are unfounded. In certainly not so great as to render the latter the first place, success in a competition and cases irrelevant. In fact, they lay down prin- consequent inclusion on a reserve list do not ciples which are general in scope and are
OPINION OF MR MANCINI — CASE 37/87
therefore applicable to all situations where official in Category A for whom the Court there is a transition from the status of made a retroactive appointment which temporary or other staff to that of official. therefore involved recognition of the appro- Thus, it is stated in Angelidis that 'the priate seniority. position of an employee who has become an official of the Community for the first time' Let me say straight away that none of those is governed by Article 32 (paragraph 12 of three allegations appears to me to be well the judgment); and in De Santis it is stated founded.
The first overlooks the fact that that 'no provision of the Staff Regulations the candidates appointed as officials allows account to be taken, in the form of immediately after the competition were accumulated s e n i o r i t y . . . , of a period placed higher on the reserve list than Mr during which an official previously served Sperber; by giving them priority the his institution as a member of its temporary appointing authority thus applied a rational staff' (paragraph 17 of the judgment). criterion and, in any event, did not infringe the principle laid down in Article 5 (3), which requires equality of conditions regarding recruitment and career devel- Indeed, the professional experience acquired opment. Moreover, there was no discrimi- by the applicant before being appointed an nation with respect to translators recruited official, and thus also during the contractual earlier. The practice to which Mr Sperber phase of his employment with the Court, refers was not in fact departed from in could only be taken into account on the his particular case, but was modified on basis of Article 32. However, we know a general and abstract basis following (a) that that provision authorizes the the interpretation of Article 32 given in appointing authority to grant additional the Angelidis, De Santis and Williams seniority which, in Grade LA 6, may be of judgments. up to two steps (48 months); and (b) that M r Sperber enjoyed that benefit in full and that, even if he had had greater experience, The applicant's third observation ((c) supra) he could not have obtained more. N o is likewise not persuasive; but because, at doubts can therefore exist as to the the hearing, counsel for the applicant lawfulness of his classification. developed that argument when dealing with the fourth submission, I shall wait until my consideration of the latter submission to show that it is unfounded.
5. In his second submission, Mr Sperber states that, by depriving him of a step at the 6. The fourth submission alleges breach of time of his appointment, the Court the principles of good management, sound discriminated against him (a) by comparison administration and fairness. Mr Sperber with the other candidates in his competition states that the Court promised to recognize who were immediately offered a permanent the seniority accruing to him as a member post (that observation is repeated in the of the temporary staff; however, it failed to third submission concerning infringement of fulfil that commitment and is therefore Article 5 (3) of the Staff Regulations); obliged today, if only because of the excep- (b) with respect to the translators who came tional nature of the applicant's situation, to before him, in so far as they benefited from grant that benefit to him. Such a measure
the practice previously followed by the would be in conformity with the practice Court, which consisted in recognizing adopted by the other institutions. What is officials' seniority acquired as members of more important, the principles of substantive temporary staff; and (c) with respect to an justice upon which that measure would be
SPERBER v COURT OF JUSTICE
based were approved in the case just because he did not suffer damage as a result mentioned in which a retroactive of his position as a member of the appointment was made. temporary staff but secured an advantage: he benefited from the practice according to That submission is no more acceptable than which the Court appoints as officials other the others. The applicant himself admitted servants on a reserve list before those at the hearing that the appointing authority persons who, although higher on the list, made no promise to him, either when refused the offer of temporary employment entering into the temporary contract or until a post fell vacant. By contrast, what during the next two years. Thus, there is no was exceptional was the situation which foundation whatsoever for his claim that, as prompted the appointing authority to make a matter of fairness, he should have been the appointment in question. As is apparent appointed with retroactive effect. That is from the documents before the Court, that also the view of the defendant institution, decision was taken to compensate for the although the latter relies upon insubstantial considerable delay which, as a result of arguments, like the lack of vacant posts errors or negligence on the part of the when Mr Sperber was recruited, or what administration, had occurred in the filling of might be described as masochistic the post. arguments, such as the advisability of not repeating in the applicant's case a decision which might be unlawful. To conclude, I shall merely state that the practice followed by the other institutions to which Mr Sperber referred conflicts with The real situation is different. There is Article 32 as interpreted by the judgments nothing unusual about Mr Sperber's case of the Court cited earlier.
7. In view of the foregoing considerations I propose that the C o u r t should dismiss the application b r o u g h t by M r E c k h a r d Sperber against the C o u r t of Justice of t h e E u r o p e a n C o m m u n i t i e s a n d , p u r s u a n t to Article 70 of the Rules of P r o c e d u r e , o r d e r the parties t o b e a r their o w n costs.