C-47/87

OPINION OF SIR GORDON SLYNN — CASE 47/87

OPINION OF ADVOCATE GENERAL SIR GORDON SLYNN delivered on 9 March 1988

My Lords, She took the view that the classification in Step 1 was wrong and that she should have been classified in Step 3 in the light of her experience and language knowledge as specially mentioned in her periodical reports. On 18 July 1986, she lodged a complaint against the decision classifying In 1968 following an open competition Mrs her in Step 1. She did not receive a reply to Engelina Lucas was appointed by the that complaint which was deemed to have Commission as an official in Grade C 3, been rejected on 19 November 1986. Step 3. After passing another open compe­ Consequently, Mrs Lucas brought the tition she was appointed to a post in Grade present action by an application lodged on B 5 in 1977. She was promoted to Grade 17 February 1987. B 4 in 1980 and to Grade B 3 in 1984.

In her application she asks the Court to set Mrs Lucas obtained a 'certificat pratique de aside the rejection of her complaint, to rule langue française (1er degré)' from the that she is to be considered as having been University of Paris in 1966 and a diploma in recruited (according to Articles 29 to 32 of administration from the Brussels Institute the Staff Regulations) and that Article 46 of for Administrative Sciences in 1983. the Regulations is inapplicable to her case. She also asks for the case to be sent back to the appointing authority for it to give effect to the Court's judgment.

extra steps and been placed in Step 3, taking the meaning of Article 45 (1) of the Staff into account that she had been working for Regulations. the Commission for 17 years and that during that period she had spent much of her time doing translation work and work which corresponded to the work carried out by Category A officials. It may be regarded as a 'promotion' from one category to another or as a 'transfer' from one service to another within the meaning of Article 45 (2). That, however, is not the end of the problem. It is the Mrs Lucas thus moved from being an beginning. For my part, as a matter of official in Category B to being an official in language (especially if one adopts the view the Language Service. She moved from B 3 that this was 'carefully settled wording' as to LA 7, which in ascending order of rank Mr Advocate General Lenz felt in Michel) I is four grades higher, and from being an consider that 'appointed to a higher grade' 'assistant adjoint' to being a translator. in Article 46 is limited to 'appointment ... to the next higher grade' in Article 45 (1). If the draftsman had intended to include transfer to another service following a competition (a very different transaction from appointment from The Commission contends that this those who have completed a minimum application is inadmissible since even if it period in their grade) he would not simply was wrong to use Article 46, the same result have relied on the words 'appointed to a would inevitably follow under Article 32. higher grade'. He would have added in That submission seems to me to beg the Article 46 after the word 'grade' 'or transfer very questions to be answered. There are to another service'. Accordingly, even two broad issues: (a) whether Article 46 fell though in Michel the Court, whilst to be applied, and (b) if not, whether the considering that there was room for doubt, applicant has any valid claim that if Article felt that Article 46 had to be interpreted as 32 were used the same result would not including an official moving from one necessarily follow. I regard the case as category to another (and reliance can to admissible. some extent be placed on the word promotion in respect of movement between categories in Article 45 (2), even though the French version of Article 45 (2) uses 'passage' as opposed to 'nomination' in Was the Commission right to treat what Article 45 (1)) it does not to my mind happened as a promotion so that Article 46 follow that 'transfer to another service' is in fell to be applied? the same position.

provisions as the Commission concedes. The normal progression. He would effectively, present situation of transfer between albeit always an official, be changing careers categories and services after an open and beginning a new career. He does not in competition is not expressly dealt with and my opinion fall within Article 46. the task of the Court is to decide whether the Commission was right to apply Article 46 rather than Article 32, or whether some other rules indicated by fairness and good administration should be implied by analogy. As in Case 138/84 Spachis [1985] ECR 1939 (where the Court found that special experience which had not been taken into account for one appointment should be taken into account for the purpose of another appointment following a different I do not for my part think that the fact that competition for the purposes of Article the salaries of the highest step of the lower 31 (2)) it seems to me that the right grade and the lowest step of the next higher approach is to see to which of the two grade overlap, or that there is such an systems (recruitment and promotion) the overlap between the various categories event which occurred is closest. (which might in particular cases explain the use of Article 46) means that Article 46 has to be applied in all situations of transfer between services. Promotion from B 3 to A 7 and a change of function from 'assistant adjoint' to 'traductrice' seem to me to be such a change as not to fall within Article 46.

career. That is likely to be so where there is that an official shall be recruited at the first a normal progression of the career. But if a step in his grade, provides: 'However the person is accepted for one kind of post, his appointing authority may, taking account of experience relevant to that kind of post will the training and special experience for the be taken into account. His expertise or even post of the person concerned, allow his particular level of ability in another additional seniority in his grade' which in subject (e. g. as a translator rather than as a respect of LA 7 is not to exceed 48 months. secretary or a typist) may be of marginal or no relevance. Nor will it become crucial until it needs to be considered for the new post (e. g. that of translator). The notice of competition requires that candidates must have completed a full university course, with degree or diploma, and candidates with a university degree in a In view of the Commission's insistence that subject other than languages (as has Mrs Mrs Lucas' appointment in C 3, and as I Lucas) 'must have at least one year's understand it, even her subsequent posts experience since graduation in a post with Grade B 5, B 4 and then B .3, did not requiring a very good knowledge of require such expertise as a translator, it languages'. It was accepted that she satisfied seems to me that it cannot confidently be this latter test. said that her training and special experience (Article 32) had necessarily been taken into account, on her appointment or on subsequent promotion. The Decision on Criteria provides that the minimum period of professional experience for classification in the first step of the starting grade of each career bracket is On the other hand, I do not see that any three years for Grades A 7 and LA 7 and discrimination contrary to Article 5 of the that 'professional experience shall be Staff Regulations or otherwise arises in this calculated from the time the candidate was case as it did arise in Samara. The notice of awarded the first qualification giving access, open competition, COM / LA / 381 (Official pursuant to Article 5 of the Staff Regu­ Journal C 48, of 18 February 1983, p. 15) lations, to the category in which the post makes no distinction between those who falls, and it must be a level corresponding to were and those who were not already that category'. officials. The 'Decision on the Criteria Applicable to Grade and Step Classification upon Recruitment' of 21 October 1983 makes no such distinction. The Commission has accepted that Mrs Lucas' diploma in administrative sciences granted on 24 February 1983 was a qualifi­ cation for this purpose and that by the time The real question as I see it is whether those of her appointment as a translator in Grade criteria are, or have been applied, in a way LA 7 on 7 April 1986 she had completed compatible with Article 32 of the Staff the necessary three years to entitle her to be Regulations. Article 32, after laying down appointed in the first step of Grade LA 7. It

I can well see that as a matter of adminis­ trative convenience it is helpful to take only the period of experience subsequent to the grant of the diploma, which is a ticket of admission for this particular competition and that there are arguments in favour of such an approach. On the other hand, neither Article 5, nor in particular the Accordingly, for my part, I consider that the second paragraph of Article 32, limit the Commission's argument that even if Article period . of 'equivalent professional 32 had been applied, the present applicant experience' or 'training and special would inevitably have failed to be placed in experience' to the period subsequent to the Step 3 of Grade LA 7 should be rejected award of a diploma. Article 32 is in quite and that the decision challenged should be general terms. annulled.

LUCAS v COMMISSION

This does not mean that Mrs Lucas is neces­ diploma is of the same level as that sarily entitled to be placed in Step 3 of subsequent to obtaining the diploma (the LA 7. The Court does not have enough latter having been accepted as satisfying the information to assess that, nor is it for the Criteria, and thereby Article 32) then in my Court to do so. I consider, however, that view the Commission should take it into the Commission should look at the case account. again. If her experience before obtaining her

I conclude that the decision under review should be annulled and that the Commission should pay Mrs Lucas' costs.